Cri.Appeal No.436/2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.436 OF 2009 Mangalbai Virbhadrappa Dhaturge, Age 37 years, Residing near I.T.I., Colege, Omerga, Taluka Omerga, District Osmanabad presently in custody in the Yerwada Central Prison, Yerwada, Pune 411 006 ..APPELLANT (Orig.Accused No.1) VERSUS State of Maharashtra at the instance of Omerga Police Station ..RESPONDENT Mr S.J.Salgare, Advocate holding for Smt. S.S.Jadhav, Advocate for appellant Mrs R.K.Ladda, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 27th January 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2000/- in default of which to undergo further simple imprisonment for one year, by the Additional Sessions Judge, Omerga by judgment dated 11.2.2009, in Sessions Case No.9/2007, by this appeal questions the correctness of her conviction and sentence. Cri.Appeal No.436/2009 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.6 P.I. Nannaware, who was working as P.I. at the Omerga Police Station was on duty at village Diggi on 15.1.2007. He received information from the Police Station that one lady had been assaulted and the lady was referred to the Sub-District Hospital, Omerga. P.W.6 P.I. Nannaware, therefore, returned to the Police Station and learnt that the injured lady named Vaishali had succumbed to her injuries and A.D.No. 5/2007 was registered at the Police Station and the enquiry of the A.D. was entrusted to Police Head Constable Kazi. P.W.6 P.I. Nannaware took the enquiry himself as the matter was serious and immediately proceeded to the hospital and drew the inquest panchnama of deceased Vaishali at Exh.32 in the presence of P.W.4 Giriraj. The Medical Officer namely P.W.1 Dr.Vilas Inamdar issued the provisional cause of death certificate at Exh.37. An offence vide Crime No.17/2007 under Sections 302, 394 of the Indian Penal Code came to be registered and the investigation thereof was entrusted to P.W.6 P.I. Nannaware. He accordingly proceeded to the scene of the offence and drew the scene of the offence panchnama at Exh.29 in the presence of P.W.2 Sunil. The accused had been detained at the spot by the Police personnel and some other persons and was accordingly brought to the Police Station and then arrested. The clothes worn by the accused came to be seized vide Cri.Appeal No.436/2009 3 seizure memo at Exh.34 in the presence of P.W.5 Sujata. The accused was also referred for medical examination and the clothes of deceased Vaishali came to be seized in the presence of witnesses at Exh.38. Statement of witnesses came to be recorded. The seized property was referred for chemical analysis along with the requisition at Exh.40. The report of the Chemical Analyzer at Exh.41 discloses that the clothes of deceased including the inner garments and the clothes of the accused including her inner garments were stained with blood of “A” group. The blood group of accused was determined as “B” group. The clothes of deceased and the accused tested positive of detection of kerosene vide Chemical Analyzer’s report at Exh.42. From the scene of the offence a weapon viz. a sickle had been recovered from a container of water. The Chemical Analyzer, however, could not detect any blood stains on the said weapon. 3. Further to the completion of investigation a charge-sheet against the accused came to be filed. On committal of the case to Court of Sessions, trial Court vide Exh.19 framed charge against the accused for offence punishable under Section 302 of the Indian Penal Code and Section 201 of the Indian Penal Code. The accused denied her guilt and claimed to be tried. Cri.Appeal No.436/2009 4 4. Prosecution in support of its case examined six witnesses. The trial Court placed reliance on the evidence of P.W.3 Sujeet, who had seen the accused in the house of deceased brandishing the sickle. The defence of the appellant/accused was that deceased Vaishali had called the accused to her house and when the accused had gone to the house of the deceased she had seen a person leaving the house in suspicious circumstances. Upon entering the house she had seen the dead body of deceased and on seeing the ghastly site she had fainted and, therefore, her clothes came to be stained with the blood matching that of deceased. The trial Court repelled the defence of the accused and convicted and sentenced her accordingly. Dead body of deceased Vaishali had been referred for post mortem and post mortem came to be conducted by P.W. 1 Dr.Inamdar. Dr.Inamdar noticed the following external injuries. 1. Incised wound over the right upper lip 1 cm x 1 cm x ½ cm; 2. Incised wound over right nostril ½ x ½ x ¼ cm; 3. Incised wounds, oblique over center of forehead: (a) of size 4 cm x 1 cm x bone deep; (b) left side of forehead of 2 cm x 1 x bone deep 4. Incised wound left frontal region of head of size 6 cm x 2 cm x bone deep; Cri.Appeal No.436/2009 5 5. Incised wound over central part of head (parietal region) of size 7 cm x 3 cm x bone deep; 6. Incised wound over left parietal region of head of size 5 cm x 2 cm x bone deep; 7. Incised wound left parietal region of head of size 6 cm x 3 cm and cavity deep; 8. Incised wound left temporal region of head of size 6 cm x 3 cm x bone deep; 9. Incised wound over the right side parietal occipital region of head semi circular of size 7 cm x 3 cm x bone deep; 10. Incised wound over the right side occipital region of head of size 4 cm x 1 cm x bone deep; 11. Incised wound, vertical, over the right side occipital region of head of size 6 cm x 2 cm x bone deep; 12. Incised wound over the right side of head above pinna of ear and four in number : (i) of size 3 cm x 2 cm x bone deep; (ii) of size 4 cm x 2 cm x bone deep; (iii) of size 4 cm x 2 cm x bone deep; (iv) of size 2 cm x 1 cm x bone deep; And there is loss of part of right pinna of ear. Cri.Appeal No.436/2009 6 13. Incised wound over the right ear lower part of size ½ cm x ½ cm x 1/4th cm; 14. Incised wound over the head left temporal region of head near pinna of left ear of size 8 cm x 2 cm x cavity deep; 15. Incised wound over the head left temporal region of size 6 cm x 1 cm x bone deep; 16. Incised wound over the head left parietal region of size 3 cm x 1 cm x bone deep; 17. Incised wound over the head left side occipital region of size 5 cm x 2 cm x cavity deep; 18. Incised wound over the cheek of face left side, oblique of size 6 cm x 2 cm x ¼ cm; 19. Incised wound over the back of neck lower part, horizontal of size 8 cm x 2 cm x 1 cm; 20. Incised wound over the left back near shoulder of size ½ cm x ½ cm x ½ cm; 21. Incised wound over the chest left side near sternoclavicular junction of size 3 cm x ½ cm x ½ cm; 22. Incised wound over the chest right side, upper part of size 4 cm x ½ cm x ½ cm; Cri.Appeal No.436/2009 7 23. Incised wound causing near amputation of left thumb at proximal portion leaving only a small skin tag behind; 24. Incised wound over the left wrist and hand of size 5 cm x 2 cm x 1 cm; 25. Incised wound over the left dorsum of hand of size 2 cm x 1 cm x ½ cm; 26. Incised wound over the left palm of hand near middle finger of size 8 cm x 2 cm x 1 cm; 27. Incised wound over the left index finger of size 2 cm x 1 cm x ¼ cm; 28. Incised wound two in number over left forearm near the wrist of size : (i) ½ cm x ½ cm x ¼ cm; (ii) ½ cm x ½ cm x ¼ cm He opined that all the injuries were ante mortem injuries and on internal examination noticed evidence of multiple haemorrhage under the scalp and communicated fracture of parietal bone with two fragments of size 3 cm x ½ cm corresponding to injury No.7. He also noticed linear fracture of skull bones of various length and radiating seen corresponding to injuries No.4, 8, 9 and 17. He had also noticed haemorrhage in the Cri.Appeal No.436/2009 8 muscles of the chest corresponding to the injuries. He opined that the probable cause of death was due to haemorrhagic shock due to multiple injuries to head, neck and other parts of the body. The post mortem report is at Exh.36. He has further opined that the injuries were sufficient in ordinary course of nature to cause death. He has further opined that the injuries were possible by the weapon sickle – Article No.19. 5. Before we advert to the submissions advanced before us by the learned Counsel for the appellant and the learned Assistant Public Prosecutor, it would be useful to refer to the evidence of P.W.3 Sujeet. P.W.3 Sujeet states that on 15.1.2007 he was present in his house and at about 10.00 a.m. his two friends viz. Moin Chaudhari and Chand Bagwan had come to his house. He had noticed persons running towards the house of deceased Vaishali which is situated in the same locality. P.W.3 Sujeet along with his two friends, therefore, rushed towards the house of deceased Vaishali. Sanjay Babodkar, husband of deceased Vaishali was a tenant in the premises of the house of one Jadhav. As they neared the house they had heard cries of a lady. The door of the house of deceased was open and, therefore, P.W.3 Sujeet along with others entered the house of deceased. They had noticed a lady standing in the door of the second room brandishing sickle in her hand. Her clothes were stained with blood and there were blood stains on her face as well. They had also noticed the weapon i.e. sickle stained with blood. On seeing them Cri.Appeal No.436/2009 9 the lady brandishing the weapon, rushed towards them and raised the weapon and threatened them to go out of the house. Accordingly, P.W.3 Sujeet and his friends retreated from the house and then approached the Police Station, Omerga and narrated the incident to the Police. P.W.3 Sujeet along with the Police returned back to the scene of the offence and noticed the doors of the house of deceased were closed. Police broke open the entrance door of the house and entered the house of deceased. They noticed blood stains on the floor of the first room. The Police then broke the door of the second room and also noticed blood stains on the floor as well as on the wall of that room. The door leading to kitchen was also broke open and on entering the kitchen they noticed the dead body of deceased Vaishali lying in a pool of blood. There was odor of kerosene in the room and they noticed two buckets of water mixed with blood and also noticed the lady, who had brandished the sickle at them standing by the side of the dead body of Vaishali. The accused appeared to be frightened. The Police then took injured Vaishali in an auto-rickshaw as well as the accused towards the Police Station. He has identified the accused as the same lady, who was present in the house and who had brandished the sickle at them. 6. In cross-examination he has admitted that his house is situated at a distance of 100 to 150 feet from the house of deceased. He has also admitted that there are other houses of the residents nearby. He has also Cri.Appeal No.436/2009 10 admitted that there are residential houses adjacent to the house of deceased. He has admitted that a compound wall is not constructed towards the rear of the house. He has admitted that he along with 7 to 8 persons had entered the room and had attempted to catch the accused but the accused had brandished the sickle and, therefore, they had not attempted to catch the accused. He has denied the suggestion that the accused had also entered the house along with P.W.3 Sujeet and others after Vaishali had been killed. He has also denied the suggestion that upon seeing the dead body of Vaishali the accused had felt giddy and had fallen on the ground. He has admitted that four Police personnel had accompanied him from the Police Station to the scene of the offence. 7. Learned Counsel for the appellant has urged before us that no reliance can be placed on the evidence of P.W.3 Sujeet, particularly as the evidence of P.W.3 Sujeet is not corroborated by examining the other persons, who had accompanied Sujeet to the house of deceased. It is also urged before us that statement of P.W.3 Sujeet has been recorded on the next day of the incident. According to the learned Counsel for the appellant the accused has probablised her defence and has explained the presence of blood stains on her clothes. The learned Assistant Public Prosecutor has supported the judgment of the trial Court. Cri.Appeal No.436/2009 11 8. We have scrutinised the evidence of P.W.3 Sujeet and upon such scrutiny, we find that Sujeet can be termed as a reliable witness. Nothing has been elicited in the cross-examination of P.W.3 Sujeet, which would caste any doubt on his credibility. Since we have found that the evidence of P.W.3 Sujeet is that of a reliable witness on whom implicit reliance can be placed, according to us the failure of the prosecution to examine other witnesses would not materially affect the evidence of P.W.3 Sujeet. At the close of cross-examination, P.W.3 Sujeet has emerged as a reliable witness. The scene of the offence panchnama came to be recorded on the day of the incident itself and the spot was shown by P.W.3 Sujeet. Therefore, delay in recording his statement would not in the absence of any other circumstance caste a doubt on his veracity. We find that the evidence of P.W.3 Sujeet can certainly be implicitly accepted. Blood stains were found in all the three rooms. The appellant-accused, according to us has not probablised her defence at all. The appellant had shown her ferocious intent in rushing at P.W.3 Sujeet and others, in brandishing the sickle and threatening them to go out of the house. It appears that thereafter the doors of the house were bolted and some attempts were made at destruction of the evidence since the clothes of deceased as well as the clothes of accused were found stained with kerosene. Two buckets were in the kitchen, which was a mixture of water and blood and it appears that an attempt was made to clean the blood stains with the help of kerosene and water. Be that as it may, since we Cri.Appeal No.436/2009 12 find that the evidence of P.W.3 Sujeet is that of a reliable witness, failure of the prosecution to examine the other witnesses would not in any manner affect the veracity of P.W.3 Sujeet. 9. The circumstantial evidence, therefore, is complete and unerringly points to the guilt of the accused and excludes every hypothesis of the innocence of the accused. According to us, therefore, the accused has been rightly convicted and the present appeal, which is sans merit, therefore, deserves to be dismissed. 10. Criminal Appeal No.436 of 2009 is, therefore, dismissed confirming the conviction and sentence. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/436.09criapeal)