[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION APPEAL NO.259 OF 2006 Balu Barku Hilam ] Aged about 40 years ] residing at Kombhivali, ] Adivasi Wadi, Tal.Khalapur ] Dist.Raigad ] At present Detained at ] C/3216, Kolhapur Central ] Prison, Kolhapur ]..Appellant/ Accused Vs. 1. State of Maharashtra ] At the instance of ] 2. Hari Damodar Veer ] Police Station, ] Kolhapur ]..Respondents .... Smt.B.P.Jakhade Advocate (appointed) for Appellant Ms.M.M.Deshmukh APP for the State .... CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : APRIL 04, 2008 : APRIL 04, 2008 : APRIL 04, 2008 ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.]: ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.]: ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.]: 1. Through this appeal, the appellant-original accused has challenged the judgment and order dated 20th July, 2001 passed by the learned Sessions Judge Raigad-Alibag. The learned Sessions Judge [-2-] convicted the appellant under Section 302 of IPC and sentenced him to R.I. for life and fine of Rs.1,000/- i/d R.I. for one month. 2. The prosecution case briefly stated is as under: . The appellant-accused was married to Bhima (deceased). They had three children i.e. one son Ramdas and two daughters. Unfortunately Ramdas died. The accused desired to have a son and for that purpose he wished to marry for second time. However, Bhima used to oppose the second marriage, therefore, there used to be frequent quarrels between the couple. The said quarrels were also witnessed by P.W.5 Surekha who is the daughter of the appellant and deceased Bhima. At the time of incident, accused along with his wife Bhima were returning home from village Kumbhivali. On the way, there was quarrel between them and accused smashed the head of his wife Bhima with stone. Due to assault, Bhima died. Thereafter, accused returned home and told his daughter P.W.5 Surekha that Bhima is lying dead in the forest and Surekha should get her. At that time, the accused was [-3-] wearing white shirt (article 7) which was stained with blood. P.W.5 Surekha went and saw the dead body of Bhima and she reported the fact to the brother of the accused who reported the matter to the police patil P.W.1 Hari Veer. Police Patil went and saw the dead body of Bhima and he found that there were injuries all over the body. Hence, he lodged his FIR Exhibit-16 to the police station. Thereafter, investigation commenced. After completion of investigation, charge sheet came to be filed. 3. Charge came to be framed against the appellant-accused for the offence under Section 302 of IPC. He pleaded not guilty to the said charge and claimed to be tried. His defence is that he and his wife Bhima were returning home. At that time, he had consumed alcohol. As he was under the influence of alcohol, he took a nap. When he awoke, he found that his wife was lying dead. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal. 4. We have heard the learned advocate for the [-4-] appellant and the learned APP for the State. We have perused the judgment and order as well as the evidence on record. After carefully considering the matter, we are of the opinion that this appeal deserves to be dismissed. 5. From the evidence of P.W.3 Dr.Mahesh Kalangutkar, it is clear that death of Bhima was a homicidal death. Dr.Kalangutkar noticed 12 external injuries on the body of Bhima i.e. on the head, mandible and other parts of body. On internal examination, he found fractures of (i) Right angle of mandible, (2) right humerus middle 1/3rd (shaft), 3) right femur shaft middle 1/3rd, 4) Right 1st and 2nd rib mid clav. line, 5) left 1st to 2nd ribs mid clav. line and 6) sternum middle 1/3rd. According to Dr.Manish Kalambuskar, the external injuries were ante mortem and could be caused by any hard and blunt object. Doctor has stated that cause of death was due to extra cranial/intra cranial haemorrhage coupled with right vetricular perforation and bi-lateral haemothorax and multiple fractures. He has also opined that with the multiple hits with a stone,the injuries as noticed by him on body of Bhima could [-5-] be possible. Thus, from the evidence of P.W.3 Dr. Manish Kalambuskar, it is seen that death of Bhima is a homicidal death. 6. We have already observed that death of Bhima is a homicidal death in which case, it is necessary to see who is the author of the homicidal death. There is no eye witness in the present case. The present case is based only on circumstantial evidence. The circumstantial evidence is in the nature of last seen together, seizure of blood stained shirt (article 7) which was on the person of the accused, corroboration received to the prosecution evidence by the statement of the accused under Section 313 of Cr.P.C. 7. Now, we shall deal with evidence of last seen. From the evidence of P.W.5 Surekha, it is seen that her parents i.e. accused and deceased Bhima left home together to go to village Kumbhivali. However, in the evening, her father returned home alone. At that time, shirt (article 7) on his person was found stained with blood. Thereafter, Surekha and her sister went and saw dead body of their mother lying in the forest. [-6-] 8. P.W.2 Madhukar Labade has also stated about Bhima and accused returning home at around 5.30 p.m. on the fateful day. Thereafter Bhima was not found alive. It is pertinent to note that in the statement under Section 313 of Cr.P.C. accused has also admitted that he had gone to village Kumbhivali with his wife. However, he has stated that as he was under the influence of alcohol, he took a nap and when he woke up he found that his wife was dead. Thereafter, he picked up his wife and brought her home. However, the stand of the accused that after he woke up on seeing his wife he brought her home is falsified by the evidence of P.W.5 Surekha who is the daughter of the accused. Surekha has clearly stated that accused came home alone and he informed Surekha that her mother was lying in the forest and she should bring her back. We have already observed that witnesses P.W.2 Madhukar Labade and P.W.5 Surekha have stated that deceased was last seen in the company of accused. Nothing has been brought on record to disbelieve their testimony. Thus, it is established that deceased was last seen in the company of deceased. [-7-] 9. Another circumstance which goes against the accused is that his shirt (article 7) came to be seized. The said shirt had blood stains. The said shirt was sent to C.A. and as per the report, the shirt had blood stains of same group as that of the deceased. Blood group of the accused is "B" and blood group of the deceased was "O" and on the shirt, blood of "O" group was found. P.W.4 Vilas Khedekar has deposed about seizure of the shirt from the house of the accused. This witness has not been shaken during his cross examination. 10. Looking to all these facts, we are of the view that we find such a chain of circumstances as to lead to the conclusion that it was the accused and the accused alone who committed murder of his wife Bhima. The learned Sessions Judge has rightly convicted and sentenced the appellant. 11. In the result, the appeal is dismissed. The appellant is in jail, he shall serve out the sentence. [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [-8-]