1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 294/2009 Marotrao s/o Baburo Pawar, Age : 40 years Occupation : Labourer, R/o Parali Vaijnath, Dist. Beed. ...Appellant. versus The State of Maharashtra Through P.P. High Court, Bench at Aurangabad. ..Respondent. Mrs. S.G. Chincholikar, Advocate for appellant (appointed). Shri B.R. Kakde, A.P.P. for respondent. CORAM : P.R. BORKAR, J. Date : 28/01/2010 ORAL JUDGMENT :- 1. This appeal is preferred by accused person who is convicted of offences punishable u/s 304 Part-II of I.P.C. and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months by the learned Sessions Judge, Parbhani in Sessions Case no. 6/2009 decided on 30-05-2009. 2 2 The facts giving rise to this appeal can be stated as follows. P.W. 1 Rustum Shinde lodged complaint on 17/12/2007 at Gramin Police station, Parbhani alleging that he is resident of Dharmapuri and he was residing with his mother, wife, brother and brother’s wife. His father Shrirang had been working as watchman for previous three years at Pune and he used to come to Dharmapuri for festivals and special occasions. P.W. 2 Sakhubai is elder sister of P.W. 1 Rustum. She lived with the appellant Marotrao – her husband for about 10 to 12 years at Parali. Pooja their elder daughter was ten years of age. Divya was six years of age. For previous 2 to 3 yeas, the appellant was beating Sakhubai and there was no change in the behaviour in spite of intervention and therefore, Sakhubai was brought to Dharmapuri and she was living with her daughters in a rented room. The appellant Marotrao used to come to the house of Sakhubai once in a fortnight or a month and go back to Parali. About six months before lodging of the complaint, appellant Marotrao has beaten Sakhubai and caused bleeding injury on her head and a complaint was lodged in police station. On 09-12-2007, Shrirang Shinde who is father of complainant Rustum had come from Pune for a family ceremony. 3 On 16/12/2007 at about 7.00 p.m. deceased Shrirang went to take meals at the house of P.W. 2 Sakhubai. At that time, appellant Marotrao had come there and Sakhubai served food to both the appellants and deceased Shrirang. According to P.W. 1 Rustum, when he had gone to the house of his sister Sakhubai, he saw both deceased Shrirang and appellant taking food but he did not wait and came back. At 7.45 p. m. Sakhubai came shouting from house. He was standing outside the house. Sakhubai said that the appellant had hit wood on the head of Shrirang Shinde as a result he sustained bleeding injury on the head and therefore, both P.W. 1 Rustum and P.W. 2 Sakhubai went back to house. People had gathered. At that time, the appellant came out of the house of Sakhubai and ran away. Inside the house, Shrirang was lying in a pool of blood. He was unconscious and therefore, he was taken to Government hospital at Parbhani and thereafter the Doctor declared him dead. Therefore, complaint was lodged against the appellant. He stated that Shrirang had advised appellant not to ill treat Sakhubai and to behave property and being enraged thereby, the appellant gave blow on the head of Shrirang and caused his death. 4 3 After said complaint was registered at about 1.30 a. m., the police drew inquest on the dead body and the dead body was sent for post mortem. Spot panchanama was also drawn. Statements of P.W. 2 Sakhubai, P.W. 3 Pooja and others were recorded. The accused was absconding and he was arrested on 28-01-2008. Ultimately, charge sheet was sent in the Court of Judicial Magistrate (First Class). The prosecution examined 7 witnesses. Relying on their evidence, the learned Sessions Judge, Parbhani passed impugned order which is under challenge. 4 In this case, P.W. 1 Rustum is examined at Ex. 9 and he deposed as per his complaint. He stated that his father had gone to house of his sister Sakhubai for meals and Sakhubai had served meals to her husband and her father. Thereafter, Sakhubai came crying and told him that the appellant had beaten her father with wooden piece (Dhalpi) of neam tree and therefore, when he went, he saw his father lying in the house. So, he called auto rickshaw and took his father to the hospital. The doctor declared him dead. It is said that thereafter the dead body was taken back to the village instead of immediately lodging complaint. It is argued that this was unnatural. 5 5 The evidence of P.W. 1 Rustum is further corroborated by P.W. 2 Sakhubai. She stated that on the date of happening of incident, she had served food to both her father and her husband. After completion of meal, she was standing near hearth. The accused took wooden piece and inflicted it’s blow on the head of her father. She cried and ran to the house of her father and brought her brother and told him that the accused had beaten her father. In the meanwhile, the accused ran away from the place of occurrence. The neighbourers had gathered and then the father was taken to the hospital where he was declared dead. 6 The police attached article no.1 wooden piece from the place of incident. It may be noted that it is half burnt piece of wood of about 1.4 feet in length and about one foot in width. So, it was part of plank which was half burnt. There were blood stains on it. The article was attached under spot panchanama Ex. 14 which is admitted by the accused. The Spot panchanama clearly shows that inside the house of P.W. 2 Sakhubai, there was pool of blood and also blood stained piece of wood. So the incident did take place inside the house. 6 7 The evidence of P.W. 1 Rustum and P.W. 2 Sakhubai is further corroborated by Pooja the daughter of accused / appellant, who is examined at Ex. No. 12. Her age was given ten years in her deposition. She was in 6 th standard at that time. So, her age might be about 8 years when the incident took place. She said that her father and grand father had taken food and her father hit her grand father with wooden piece which is article no. 1 before Court. 8 It is argued before this Court that there is no independent witness. P.W. 4 Uttam Kadam who was auto rickshaw driver did say that he had taken Shrirang Shinde to the hospital in his auto rickshaw and the Doctor declared him dead and so he took back dead body to the village. It is not known why the dead body was allowed to be taken back. It is also argued that Uttam Kadam did not say that P.W. 1 Rustum told him that his father was injured. It may be noted that in examination in chief, Uttam Kadam was mainly asked question regarding taking the deceased in hospital in his auto rickshaw. Merely because there is omission in examination in chief, it does not mean that such disclosure was not there. No such omission from his statement 7 before police was brought on record. 9 In this case, it is argued that so many neighbourers had gathered but no one is examined. But it may be noted that it is case of prosecution that the incident had taken place inside house and none of the neighbourers could be witness to actually causing hurt by the accused. So, it can not be said that non examination of the other witnesses is fatal to the prosecution. 10 It is also argued that Sakhubai said that she was standing near hearth. But her examination in chief also disclosed that the accused had taken wooden piece (Dhalpi) and inflicted blow on the head of her father. It may be noted that it was half burnt piece of wood. So, ordinarily it must be near hearth. So, the accused had come to hearth, took piece of wood and injured deceased Shrirang. Obviously, Sakhubai could not be a chance witness. Moreover, besides Sakhubai, her daughter Pooja, accused and Shrirang, there was nobody else in the house. So no other person could be culprit. 11 Dr. Syed Momin Hasan examined at Ex. 24 has found (1) contused lacerated wound on left temporal region 2 c m x 2 c m x c m with skull fracture and (2) C.L.W. on frontal and occipital region 3 x 4 x 2 c.m. 8 with skull fracture. The cause of death was haemorrhagic shock with intra cranial haemorrhage. The Doctor said that the injuries mentioned in Post mortem notes Ex. 25 were not possible by dash of head against door frame of lower height when a person gets up suddenly. So, the defence of accidental injury was negatived by the Doctor. 12 It is also argued before this Court that P.W. 2 Sakhubai and P.W. 1 Rustum admitted in their cross examination that they were not liking the appellant coming to the house of Sakhubai. In my opinion, if we consider the complaint itself, it is clear that six months before the incident, the appellant had caused grievous injury on the head of Sakhubai and even prior to that he was ill treating his wife and so merely because Sakhubai and her relatives were not liking the appellant, that does not mean that he was falsely involved. It may be noted that it is a case of murder and in no circumstances, P.W. 1 Rustum or P.W. 2 Sakhubai would have involved any one other than the real culprit. They would not have allowed real culprit to escape at the cost of appellant. Moreover, it is also prosecution case that in spite of strained relations and ill treatment by appellant, the appellant used to come to the 9 house of Sakhubai once in fortnight or month. 13 The conduct of the appellant is also worth considering. After injury to his father in law, he does not wait at the place and help in giving medical aid to his father in law. He ran away and was absconding from 16/2/2007 to 28/01/2008. P.S.I. Bhusare Investigating officer has stated in deposition that the accused was absconding till he was arrested and there is no denial of the same in his cross examination. 14 Considering total circumstances, case is proved beyond reasonable doubt. The evidence of eye witness namely P.W. 2 Sakhubai, P.W. 3 Pooja taken with P.W. 1 Rustum is sufficient to bring home guilt of the accused. In the result, the order of conviction and sentence is upheld. The appeal is dismissed. Fees payable to Mrs. Chincholikar who is appointed amicus curiae for defending accused / appellant are quantified at Rx.3,000/-. [P.R. BORKAR, J.] tsk/criapl294.09