1 APEAL308.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.308 OF 2005 Shri Ramesh Tarachand Dhelwan, Age 35 years, Occu-Service, Residing at House No.10, first floor, Coach House, Kamate Road, Cantonment Lashkar, PUNE—411 001 (presently undergoing sentence in Central Prison, Yerawada, Pune—6. : Appellant V/s. The State of Maharashtra : Respondent .... Mr.Arfan Sait (appointed) for the appellant. Mrs.A.S.Pai, Addl. Public Prosecutor for the State. .... CORAM : D.D. SINHA AND SMT.V.K.TAHILRAMANI, JJ. Date of Reserving ) : 24.11.2010. the Judgement. ) Date of Pronouncing ) : 02.12.2010. the Judgement. ) JUDGEMENT (Per D.D.Sinha, J.) Heard the learned counsel for the appellant and the learned Addl. Public Prosecutor for the State. 2 APEAL308.05 2. This Criminal Appeal has been preferred by the appellant against the judgement and order dated 17.4.2003 passed by the III Ad-hoc Addl. District & Sessions Judge, Pune, whereby the appellant was convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/-, in default of payment of fine, to suffer R.I. for six months. 3. The circumstances which have given rise to the prosecution of the appellant in a nut-shell are as follows:- The appellant, at the relevant time, was residing in chawl no.1 of Kamble Coach in house no.10 at Camp. The appellant was residing with his wife Vimal, father, mother, two daughters and a son. Rohini (P.W.1) is the daughter of the appellant and, at the relevant time, was seven years of age. On the date of the incident at about 10 a.m., the appellant asked deceased Vimal to prepare breakfast for him. However, she refused to provide him breakfast. There were hot exchange of words between them. The appellant got annoyed, picked up a smashing stone (patta) and assaulted his wife deceased Vimal with the said stone on her head. Rohini who was present in the house witnessed the incident and shouted loudly for help. The persons residing in the neighborhood such as Kailas (P.W. 3 APEAL308.05 2), Rakesh (P.W.3) and Geeta (P.W.8) rushed to the house of the appellant and questioned him about the incident. It is the case of the prosecution that the appellant confessed before them that since his wife refused to provide him breakfast, he lost his temper and assaulted her with the smashing stone on her head. All these witnesses saw the wife of the appellant who was lying in a pool of blood. Witness Kailash rushed to Parekh Hospital to call the mother of the appellant. On arrival of the mother of the appellant, Vimal was removed by them to Sasoon Hospital, Pune. 4. It is the case of the prosecution that on 14.9.2001 between 9.00 a.m. and 9.00 p.m., police constable Ms Sunita Jagtap was on duty at Sasoon Hospital. She gave intimation to the police station at about 11.00 a.m. that Vimal, the wife of the appellant, was admitted in Sasoon Hospital. Entry was made in the admission register maintained at the hospital. The said intimation was received by PSI Ms Deepali Ghadge attached to Central Street Police Chowky at about 12.20 p.m. After receipt of the intimation, PSI Ms Deepali Ghadge immediately proceeded to Sasoon Hospital. She made inquiries with the Medical Officer attending the patient. The Medical Officer informed her that the patient was not in a position to give statement. Based on the information given 4 APEAL308.05 by the appellant, crime was registered for the offence punishable under section 307 of the Indian Penal Code. Thereafter, the appellant was arrested. The clothes of the appellant were seized in the presence of panchas. The Investigating Officer drawn spot panchanama and seized the articles which were stained with blood. The statement of witnesses were recorded. On receiving the information regarding the death of Vimal from Sasoon Hospital, an offence was registered under section 302 of the Indian Penal Code. The articles were forwarded to the Chemical Analyser for the purpose of analysis. On receipt of the Chemical Analyser’s report and on completion of the investigation, charge-sheet was filed in the Court of the Judicial Magistrate, First Class, who committed the case to the Court of Sessions and charge under section 302 of the Indian Penal Code was framed against the appellant which was explained and read over to him. The appellant pleaded not guilty and claimed to be tried. However, from the tenor of the cross-examination of the witnesses conducted by the defence, the defence of the appellant was that the death of his wife Vimal was an accidental one and he was suffering from lunacy. 5. The counsel for the appellant has submitted that the prosecution has examined in all 14 witnesses to bring home the guilt of the appellant 5 APEAL308.05 for the offence of murder. However, P.W.1 Rohini is the only eye-witness to the incident examined by the prosecution. It is submitted that the evidence of P.W.2 Kailash, P.W.3 Rakesh and P.W.8 Geeta (neighbours of the appellant) does not carry much importance as they had not witnessed the incident and reached the spot of the incident only after the incident of assault had taken place. The counsel for the appellant has submitted that Rohini, although initially supported the prosecution case in her examination-in-chief, however, the admission given by her in her cross- examination adversely affects the veracity of the testimony of this witness. It is further submitted that P.W.1 Rohini being a child witness, her evidence needs to be appreciated with great care and caution. The counsel for the appellant has further contended that the evidence of P.Ws. 2 and 3 is also not consistent with the material particulars of the prosecution case as well as the testimony of P.W.1 Rohini. Similarly, the evidence of P.W.8 Geeta is also inconsistent with the evidence adduced of the other prosecution witnesses. It is contended that deceased Vimal was taken to Sasoon Hospital by P.Ws.1, 2 and 3, they admitted her in the hospital and at that time, one of them may have informed the Doctor about the history of the patient. However, Dr.Prakashchand Raidasani in his evidence has stated that deceased Vimal was brought to the hospital by her husband, he examined the patient, the history of the patient was 6 APEAL308.05 narrated by her husband, the present appellant, who informed the Doctor that the injury sustained by the deceased on her head was caused by fall of a smashing stone from niche on her head. The learned counsel for the appellant has submitted that these prosecution witnesses at the time of admission of the deceased in the hospital informed the Doctor that the injury sustained by the deceased was caused by the stone which fell on her head from niche which renders the evidence of extra-judicial confession untrustworthy. 6. The counsel for the appellant has submitted that the prosecution has not recorded the statement of the appellant before the Magistrate under section 164 of the Cr.P.C. and in the absence thereof, inculpatory statement made by the appellant which was reduced in writing and was treated to be the First Information Report is hit by the provisions of section 25 of the Indian Evidence Act and is inadmissible in law. Similarly, the extra-judicial confession alleged to have been made by the appellant to P.Ws.2 and 3 is also a weak piece of evidence and without corroboration cannot be relied upon. 7. The counsel for the appellant has further submitted that the evidence of D.W.1 Kalpana (mother of the appellant) and D.W.2 Farjana, 7 APEAL308.05 the sister of the appellant, would show that the appellant was in the habit of picking up quarrels with his neighbours because of his violent behviour and, therefore, their relations with the appellant were not cordial. It is submitted that in such a situation, it is unlikely that the appellant would confess the guilt by making extra-judicial confession to P.Ws.2 and 3. 8. The learned counsel for the appellant further contended that the appellant was an alcoholic and used to get withdrawal symptoms as and when he used to stop drinking. It is further contended that because of the excessive consumption of alcohol, the psyche of the appellant was not normal and, therefore, at times, his behaviour used to be violent and abnormal. D.W.3 Dr. Kishor Kale has thrown some light on these aspects. It is contended that taking into consideration the psyche of the appellant, even if it is presumed for the sake of argument, that the prosecution has succeeded in proving the fact that he was the author of the injury sustained by deceased Vimal even then, considering the mental condition of the appellant, at the relevant time, the act of the appellant could not be punishable under section 302 of the Indian Penal Code, but under section 304 Part I. The learned counsel for the appellant, therefore, submitted that the finding of conviction recorded by the trial Court for the offence punishable under section 302, is unsustainable in law and liable to 8 APEAL308.05 be quashed and set aside. 9. The learned Addl. Public Prosecutor, on the other hand, has supported the impugned judgement and order of the trial Court. It is contended that the evidence of the sole eye-witness Rohini (P.W.1) is truthful and trustworthy and is corroborated by the evidence of P.W.2 Kailash and P.W.3 Raskesh to whom extra-judicial confession is made by the appellant and the evidence of these witnesses has been completely corroborated by the medical evidence. The prosecution has examined P.W.4 Dr.Shrikant Chandekar, who had conducted the post-mortem examination on the dead-body of the deceased. Similarly, the evidence of Dr.Prakashchand Raidasani (P.W.10) who had examined the deceased when she was admitted in the hospital and evidence of Dr.Harshad Rajekar (P.W.11) corroborated all the material particulars of the prosecution case. Looking to the injuries caused by the appellant on the person of the deceased Vimal, the trial Court was justified to hold that the offence committed by the appellant was murder and was punishable under section 302 of the Indian Penal Code. 10. Considered the contentions canvassed by the learned counsel for the respective parties and scrutinised the prosecution case. It is very 9 APEAL308.05 unfortunate that the girl of seven years of age who had lost her mother was required to give evidence in the Court of law against her own father. The prosecution had examined a number of witnesses, however, the case of the prosecution primarily depends upon the evidence of P.W.1 Rohini, the eye-witness to the incident, P.W.2 Kailash and P.W.3 Rakesh, to whom extra-judicial confession was made by the appellant and the medical evidence. 11. P.W.1 Rohini, at the time of recording of her evidence was seven years of age and, therefore, before recording her evidence, the Court has asked questions to her and after getting satisfied that Rohini had the capacity to understand those questions and to answer them, her evidence came to be recorded by the trial Court. It is well-settled that evidence of a child witness can very well be accepted provided it is truthful, trustworthy and inspires confidence and the prosecution has ruled out the possibility of tutoring. It is true that the evidence of a child witness needs to be appreciated by the Court with great care and caution. In view of this legal position, we propose to scrutinise the evidence of Rohini (P.W.1). 12. P.W.1 Rohini in her examination-in-chief has stated that at the time of the incident, she, her mother deceased Vimal and her father, the 10 APEAL308.05 appellant, were the only persons present at home. The incident had occurred in the morning. Her mother was sleeping in the house at the time of the incident. While her mother was asleep, the appellant picked up a stone and assaulted deceased Vimal with it on her head. She has further stated that the stone with which her mother was assaulted is used for grinding spices, etc. It has come in her testimony that prior to the incident, there used to be quarrels between her father and mother. This witness has identified the stone (article nos.1 & 2) as well as the clothes of the appellant (article nos.3, 4 and 5). It is important to note that Rohini at the time of recording of her evidence was a child of seven years of age. However, on the material particulars stated by her pertaining to the assault committed by the appellant with the smashing stone on the head of her mother Vimal, the defence could not elucidate any omission or contradiction in her cross-examination in this regard. It is no doubt true that in her cross-examination, there is a passing remark made by her regarding the falling of stone from the niche on the head of her mother. However, this solitary passing remark is not adequate enough to discard her substantive evidence pertaining to the material particulars of the assault since it is consistent with the case of the prosecution. Similarly, Dr.Shrikant (P.W.4) in his evidence has clearly stated that the injuries sustained by the deceased were on the face, head and chest of the 11 APEAL308.05 deceased. As per the opinion of the Doctor, the injuries mentioned in column 17 were spread over different parts of the body of the deceased and such injuries can be caused when there is multiple impact. It is, therefore, evident that the medical evidence completely rules out the possibility of causing of injuries by falling of the stone from the niche. 13. It is the case of the prosecution that the appellant made extra- judicial confession to P.W.Kailash, P.W.3 Rakesh in the presence of P.W.8 Geeta. Therefore, it will be appropriate to consider the evidence of these witnesses. P.W.2 Kailash (landlord of the appellant) stated in his examination-in-chief that when this witness questioned the appellant about the incident, the appellant informed him that since his wife refused to give him breakfast, he has assaulted her by smashing stone on her head and she was lying in the kitchen room of his house. Similarly, P.W.3 Rakesh has stated in his examination-in-chief that when he asked the appellant as to what had happened, the appellant informed that since his wife refused to give him breakfast, he assaulted her by stone on her head. The testimony of both these witnesses shows that they have mentioned the presence of each other at the relevant time on the spot of the incident. The prosecution evidence on record also demonstrates that P.W.2 Kailash, P.W.3 Rakesh and others had taken deceased Vimal to Sasoon Hospital by 12 APEAL308.05 an auto-rickshaw and admitted her in the said hospital. The defence could not elucidate any material in the cross-examination of these witnesses which would affect the veracity of the testimony of these witnesses. 14. It is well-settled that confession, voluntarily and truthfully made, is an effective proof of the guilt. If the confession is believed by the Court to be truthful, the same can safely be accepted and in a given case without any corroboration. However, the rule of prudence requires the Court to seek corroboration from independent evidence. In the instant case, the evidence of P.W.2 Kailash and P.W.3 Rakesh to whom the appellant has made the extra-judicial confession, in our view, clearly demonstrates that the confession made by the appellant was voluntary and the appellant in unequivocal terms admitted the commission of the crime, apart from the fact that it was made voluntarily and was truthful. In the instant case, the evidence of extra-judicial confession is corroborated by the medical evidence of P.W.4 Dr.Shrikant as well as Rohini, the sole eye- witness to the incident. 15. In the instant case, Dr.Shrikant (P.W.4) has conducted the post- mortem examination on the dead-body of deceased Vimal and found the following external injuries:- 13 APEAL308.05 “1. Injection marks at both wrist regions, dorsally. 2. Abrasions over left foream, medially U/3 1x2 cm and M/3 1.5 x 7 cm. Vertical. Right elbow 0.5x2 cm. Right forearm M/3 0.5 x 0.3 cm in number. Left knee Inferolaterally 0.5 x 1 cm. Left mid cheek 0.5 x 0.8 cm. Two in number. 3 cm behind lateral end of left eyebrow, 1.5 x 3 cm, 4 cms above left mid eyebrow 2 x 1 cm, Upper mid nape verticle 0.3 x 1 cm. 3. Contusions over, left forearm, flexer aspect, M/36 3 to 4 x 8 cm, Left side of face posteriorly 3 to 5 x 12 cm. Below right eye 1.5 x 3 cm, transverse, right cheek 3 x 4 cm. 4. Lacerated wounds over lower lip nucossally just right of middle 0.5 x 0.5 cm muscle deep with contusion 1 x 1.5 cm surrounding left mid upper lip 0.2 x 0.5 cm. at mucocutaneous junction, with contusion around 1 cm x 1 cm, 4.5 cm above lateral end of left eyebrow 3 x 2.8 cm irregular bone deep, 4 cm above left mid eyebrow 0.3 x 0.6 cm. bone deep, 5 cm above left year top 0.5 x 2 cms x 6 cms bone deep, 3 cm above right mid eyebrow, 0.3 x 1 cm verticle oblique skin deep, with abrasion around 6 cm above lateral end of right eyebrow, saggital oblique 0.2 x 2.5 cm muscle deep, left mid cheek 0.2 x 0.2 cm, skin deep.” It has come in the evidence of Dr.Shrikant that the probable cause of death was due to external and internal injuries sustained by the deceased on her face and head which were sufficient in the ordinary course of nature to cause death. Dr.Shrikant has specifically stated in his testimony 14 APEAL308.05 that the type of injuries found on different parts of the body of the deceased can be caused by multiple impact which, in our view, not only rules out the possibility of the injuries being caused by the fall of the stone from the niche, but it corroborates the material particulars of the prosecution case disclosed by P.W.1 as well as the extra-judicial confessions made to P.Ws.2 and 3. P.W.11 Dr.Harshad Rajekar had examined deceased Vimal immediately after she was admitted in the hospital. Dr.Harshad Rajekar on examination of the deceased noticed multiple head injuries with an underlying skull fracture and also noticed that the brain-matter was protruding out of the head injuries. The Doctor has also noticed contused lacerated wounds of about 6 x 3 x 3 cm. on left parietal temporal region, with an underline communicated skull fracture. In cross-examination, Dr.Harshad Rajekar has specifically stated that if the article like smashing stone falls from the height of four-and-a-half feet, then injury on only one side may be possible. It clearly shows that the multiple injuries sustained by the deceased could not be caused by the single fall of smashing stone from the niche. Insofar the evidence of D.W.3 Dr.Kishor Kale is concerned, it shows that the appellant Ramesh was not suffering from schizophrenia and was only addicted to alcohol. In cross-examination, Dr.Kishor Kale has admitted that alcoholism is different from schizophrenia. The evidence of the Medical Officer shows 15 APEAL308.05 that the appellant was not suffering from schizophrenia, however, was addicted to alcohol and was also treated for this addiction. The evidence of Dr.Kishor does not affect the evidence of the prosecution witnesses nor does it improve the case of the defence. 16. In the instant case, the defence has examined three defence witnesses (D.W.1 Kalpana, D.W.2 Farjana and D.W.4 Dipak Chavan). However, their evidence, in our view, also does not affect the veracity of the testimony of the prosecution witnesses. 17. In the instant case, the above referred prosecution evidence is independently sufficient to bring home the guilt of the appellant without placing reliance on the inculpatory statement made by the appellant which was treated as the First Information Report. Since the prosecution without taking any support of the inculpatory statement made by the appellant proved the charge against the appellant beyond all reasonable doubt by adducing independent evidence, it is not necessary to deliberate on the issue whether the said statement made by the appellant was hit by the provisions of section 25 of the Indian Evidence Act and, therefore, was inadmissible in evidence. 16 APEAL308.05 18. In our view, the prosecution has established that the appellant caused multiple injuries on the vital parts of the body such as face, head and chest with such a force that they were sufficient, in the ordinary course of nature, to cause death. It is, in these circumstances, that the trial Court was justified in convicting the appellant for the offence of murder, punishable under section 302 of the Indian Penal Code. The contention canvassed by the learned counsel for the appellant is devoid of substance and, therefore, rejected. The prosecution, in our view, has succeeded in bringing home the guilt of the appellant for the offence of murder beyond all reasonable doubt and, therefore, the findings of conviction and sentence recorded by the trial Court for the offence punishable under section 302 of the Indian Penal Code are just and proper and, therefore, maintainable in law. 19. In the result, the Criminal Appeal fails and is dismissed. (D. D. SINHA, J.) (V.K.TAHILRAMANI,J.)