1 Cri.Appeal No. 7 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 7 OF 2009 Nimba s/o Pundlik Patil, Age : 54 years, Occu. Labour, R/o Chitod, Taluka & District Dhule ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr R.S. Shinde, Advocate holding for Mr N.L. Choudhari for the appellant; Mr D.R. Kale, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 1st December, 2010 ORAL JUDGMENT (PER P. V. HARDAS, J.) 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 a fine of Rs.1,000/-, in default of which to undergo S.I. for one month, by the Ad hoc Additional Sessions Judge-I, Dhule, by judgment dated 12.12.2008, in Sessions Case No.107 of 2007, by this appeal questions the correctness of his conviction and sentence. 2 Cri.Appeal No. 7 of 2009 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.13 P.S.I. Borse, who was attached to the Dhule city police station was on duty as Police Station Officer from 8.00 a.m. to 1.00 p.m. on 12.7.2007. On the said day, as per the complaint lodged by P.W.9 Devidas at Exh.40, an offence came to be registered vide Crime No. 139/2007. Investigation thereof was handed over to P.W.12 P.I. Gulab Patil. P.W.12 P.I. Patil who was also attached to the city police station, Dhule visited the City Hospital and drew the inquest panchnama of the dead body of Hasrabai at Exh.26. Thereafter he visited the scene of the offence and drew the scene of the offence panchnama in the presence of witnesses at Exh.28. From the scene of the offence he seized one axe and a bicycle. He recorded the statements of witnesses and arrested the appellant and seized the clothes on the person of the appellant vide seizure memo at Exh.29. The clothes of the appellant which were seized comprised of a white shirt and a white payjama. Clothes of deceased came to be seized in the presence of panchas at Exh.33. The seized articles were forwarded to the Chemical Analyser along with Lady Police Constable P.W.7 Chandrakala Pawar along with the requisition at Exh.16. Statements of other witnesses came to be recorded. Meanwhile the dead body of deceased Hasrabai had been referred for post mortem examination and post mortem examination on the dead body of deceased Hasrabai was performed by P.W.6 Dr. Ajeet Patil. He noticed the 3 Cri.Appeal No. 7 of 2009 following external injuries on the dead body of deceased Hasrabai :- 1. Chop wound present below right ear, horizontally placed, 7 cm x 2 cm x 3 cm. Mandible bone cut, underlying vessels severed. 2. Contused lacerated wound on right shoulder, vertically situated, 6 cm. medial to shoulder tip; size 6 cm. x 1.5 cm. x muscle deep 3. Abrasion on posterior aspect of right shoulder, linear 6 cm. in length, reddish brown in colour. He opined that all the injuries were ante mortem and caused within 24 hours. He has further opined that injury no.1 was possible by sharp cutting and heavy object and could be caused by an axe. Injury nos.2 & 3 were possible by the impact of the hard and blunt object. On internal examination he noticed that the brain was pale and oedematous, scattered sub-arachnoid haemorrhage was present. He has opined that injury no.1 was sufficient in ordinary course of nature to cause death. He has, therefore, opined that cause of death was shock and haemorrhage following the chop wound over neck, i.e. injury no.1. The post mortem report is at Exh.35. The report of the Chemical Analyser at Exh.19 reveals that the axe and the clothes of the accused were found stained with blood but the group could not be determined. The clothes on the person of deceased Hasrabai were found stained with blood of "O" group. 4 Cri.Appeal No. 7 of 2009 Further to the completion of investigation a charge-sheet against the present appellant came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.8 framed charge against the appellant for an offence punishable under section 302 of the Indian Penal Code for having committed murder of deceased Hasrabai. The appellant pleaded his innocence and claimed to be tried. Prosecution in support of its case examined 13 witnesses. Practically all the witnesses excepting the Medical Officer and the police witnesses and P.W.8 Bhatu Bhalerao, P.W.9 Devidas and P.W.10 Jijabai, were declared hostile. The entire prosecution case revolves round the evidence of P.W.9 Devidas, who is an eye witness to the incident. Trial Court accepted the evidence of the prosecution and accordingly convicted and sentenced the appellant. 4. There is not much challenge to the evidence of the Medical Officer in respect of the injuries sustained by deceased Hasrabai and the opinion of the Medical Officer P.W.6 Dr. Ajeet Patil in respect of the cause of death. As pointed out by us above, prosecution has examined P.W.9 Devidas, who is an eye-witness to the incident. P.W.9 Devidas states that P.W.10 Jijabai is his mother and he was residing along with his mother, brother and his wife. Deceased Hasrabai was his aunt i.e. sister of P.W.10 Jijabai. The husband of deceased Hasrabai had deserted her and, therefore, Hasrabai was taking out her life by selling 5 Cri.Appeal No. 7 of 2009 vegetables and fruits in the villages and at the Dhule Bus stand. He states that the appellant/accused is his uncle and was unemployed. The appellant was addicted to liquor and was demanding money for purchasing liquor. The demand for money was made to P.W.10 Jijabai as well as to deceased Hasrabai. He states that on the previous day, i.e. on 11.7.2007, at about 9.00 to 9.30 p.m. the accused, who was then under the influence of liquor demanded money; both from Jijabai and Hasrabai. On failure of deceased Hasrabai to pay money to him for purchase of liquor, the accused had threatened Hasrabai and had said that he would kill her. On the next day i.e. on 12.7.2007 deceased Hasrabai left for purchasing bananas and P.W.9 Devidas also followed his aunt. Devidas was wanting to go to the Tahsil office, Dhule for obtaining attestation on the school record. He states that when he reached near the quarters of District Prison, at that time he noticed his aunt deceased Hasrabai coming from the Barafattar side up to the house of the District Jailor. On seeing his aunt deceased Hasrabai, P.W.9 Devidas started going in her direction and at that time noticed the accused inflicting blows of axe on the neck of Hasrabai. On receiving the injuries Hasrabai fell on the ground and P.W.9 Devidas tried to catch the accused. He attempted to talk to his aunt deceased Hasrabai but deceased Hasrabai had succumbed to her injuries. The appellant/accused fled from the scene in the direction of the police station and while fleeing from the scene of the offence had thrown the axe at the scene of the offence. P.W.9 Devidas thereafter telephoned his 6 Cri.Appeal No. 7 of 2009 mother and had informed her that the appellant had killed deceased Hasrabai. Dead body of Hasrabai was referred for post mortem examination and P.W.9 Devidas accordingly lodged his report at the police station at Exh.40. He states that the appellant/accused had worn a white shirt and payjama and has identified the clothes as articles 4 & 5. 5. In cross-examination certain minor omissions have been brought on record. It has been proved that he had not stated in his report that the accused was asking Jijabai and Hasrabai to permit him to sell his ancestral land and both the ladies were refusing to permit him to do so. Omission has been duly proved that he had not stated in his report that grandfather of P.W.9 Devidas owned about 7 acres of land at Chitod. Omission has been duly proved that he had not stated in his report that at the time of the incident the accused had worn white payjama and a shirt. Omission has been duly proved that he had not stated in his report that he attempted to catch the accused. Omission has been duly proved that he had not stated in his report that Hasrabai had sustained a bleeding injury on her neck. Omission has been duly proved that he had not stated in his report that he had informed the incident to his mother on telephone. He has admitted not to have stated that when he was going towards his aunt his aunt fell on the road and, therefore, he rushed towards her and found that his aunt had sustained bleeding injuries and had died. He has denied the suggestion that the person who had assaulted his aunt had fled from the scene before he reached his aunt. 7 Cri.Appeal No. 7 of 2009 He has further admitted that when he saw the dead body of his maternal aunt, his maternal uncle i.e. the accused was running from the scene of the incident. 6. On the basis of the aforesaid admission, it is sought to be urged by the learned Counsel for the appellant that all that P.W.9 Devidas had seen was the appellant/accused fleeing from the scene of the incident. We are unable to agree with the aforesaid submission. What was put to the witness was only a part of the recital in the first information report. In the first information report P.W.9 Devidas had clearly stated about the entire incident and had also stated that when he reached near his aunt he had noticed that his aunt had fallen on the ground and had sustained a bleeding injury and had died. It is further stated in the first information report that he had seen his uncle i.e. the accused fleeing from the scene of the incident. In such circumstances, therefore, according to us, it would not be open for the appellant to urge before us that P.W.9 Devidas is not an eye-witness to the incident. 7. Though P.W.9 Devidas has been cross-examined at length, nothing of importance has been elicited in his cross-examination. Devidas has further admitted that the appellant/accused was earlier assisting them in the several criminal cases which had been filed against P.W.9 Devidas but since last 2-1/2 years the appellant/accused was not assisting them as they had declined to pay money to the 8 Cri.Appeal No. 7 of 2009 appellant/accused. He has admitted that they were annoyed as the appellant was taking money in order to help them in the criminal proceedings. Learned Counsel for the appellant, therefore, has urged before us that the appellant has taken a defence that the appellant has been falsely implicated on account of the annoyance which has been expressed by P.W.9 Devidas as the appellant was taking money to help Devidas in the criminal proceedings. It is, therefore, urged before us that on account of strained relations the appellant has been falsely involved in the present offence and P.W.9 Devidas has allowed the real offender to go scot free. 8. Prosecution has also examined P.W.8 Bhatu Bhalerao. P.W.8 Bhatu Bhalerao in his evidence has clearly stated that he had not witnessed the actual incident of assault but had noticed the accused fleeing from the scene of the incident. He has also stated that he had noticed a person with lad in white shirt and white payjama fleeing from the scene of the incident. Obviously, P.W.8 Bhatu Bhalerao had not seen the face of the person who had fled from the scene and his identification of the accused, therefore, appears to be extremely doubtful. However, P.W.8 Bhatu Bhalerao has stated that one boy, who was near the dead body of deceased, had informed him that his uncle had killed his aunt. This statement made by P.W.9 Devidas to P.W.8 Bhatu Bhalerao has gone unchallenged in the cross-examination. According to us, the aforesaid disclosure had been made by P.W.9 Devidas to P.W.8 Bhatu 9 Cri.Appeal No. 7 of 2009 Bhalerao contemporaneously to the incident, i.e. soon after the incident and, therefore, would be admissible under section 6 of the Evidence Act as res gestae and would corroborate the evidence of P.W.9 Devidas. 9. Prosecution has also examined P.W.10 Jijabai, who speaks about an earlier incident of the accused assaulting her. She also states that P.W.9 Devidas had telephoned her and had informed her that the appellant had killed Hasrabai. The aforesaid statement has also gone unchallenged and, therefore, the evidence of P.W.10 Jijabai, to that limited extent, also corroborates P.W.9 Devidas. 10. The first information report came to be lodged immediately and the offence came to be registered also immediately. Though P.W.9 Devidas has been cross-examined at length, nothing of importance has been elicited in the cross-examination of P.W.9 Devidas to doubt his version that he had witnessed the actual assault by the accused. The accused had wielded an axe and had caused injuries to deceased Hasrabai which were sufficient in ordinary course of nature to cause death. The submission of the learned Counsel for the appellant that the accused had no intention to commit murder of Hasrabai and, therefore, the appellant would be guilty of offence punishable under section 304 of the Indian Penal Code, is not available to be urged before us. The appellant/accused had caused an injury which was sufficient in ordinary course of nature to cause death and Hasrabai had died instantaneously 10 Cri.Appeal No. 7 of 2009 on account of the said injury. Apart from that, on the previous day the appellant/accused had threatened that he would kill her and accordingly had gone to the place where deceased Hasrabai was standing and had assaulted her with an axe causing the said injuries. The appellant/accused, therefore, according to us, had the requisite intention and had also caused the injury which was sufficient in ordinary course of nature to cause death of Hasrabai. The appellant/accused, therefore, according to us, has been rightly convicted for an offence punishable under section 302 of the Indian Penal Code. 11. After considering the evidence of the prosecution, according to us, there is no merit in the present appeal and the present appeal is, therefore, dismissed confirming the conviction and sentence of the appellant. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/cria7.09