1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 1030 OF 2001 Dadaji Devchand Chavan ] Age 43 years, Residing at Chinchave ] (Gilane), Tal. Malegaon, Dist.Nasik ...Appellant [Ori.Accused ] Vs. The State of Maharashtra ] (Through Vadner Khakurdi ] Police Station ) ]..Respondent [Ori.Complainant] .... Mrs. Z.M.Koparkar Adv. appointed for Appellant Mr. Rajesh More APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JUNE 25, 2010 ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1 Through this appeal, the appellant / original accused has challenged the judgment and order dated 12.10.2001 passed by the 2 learned Additional Sessions Judge Malegaon, District Nasik in Sessions Case No. 28 of 1998. By the said judgment and order, the learned Judge convicted the appellant under section 302 of I.P.C. and sentenced him to life imprisonment and fine of Rs.1000/- i/d RI for one year. 2 The prosecution case briefly stated, is as under: The appellant Dadaji Chavan was married to Sindhubai (deceased). They were residents of village Chinchave (G) Taluka Malegaon. They had one daughter PW 4 Shobha. Shobha was married. The incident took place on 15.2.1998 at about 3 a.m. in the house of the accused. On the night between 14.2.1998 and 15.2.1998, the appellant and his wife Sindhubai were sleeping in the inner room of the house. Their daughter Shobha was sleeping on the “ota ” outside the house. Shobha heard sudden noise in the house, hence, she woke up. She knocked on the front door of the house. It was not opened, hence, Shobha went to back door of the house. She called out to her mother by saying “Akka Akka ”. At that time, her father opened the door. Shobha saw that clothes and hands of her father were stained with blood. She saw her mother was lying on the bed in an injured condition. Her father told her (Shobha) that whatever had happened, 3 had happened on his count. PW 1 Namdeo is the police patil of village Chinchave. He came to know from the villagers that appellant had killed his wife Sindhubai, hence, he went to the spot. He saw injuries on face, head and neck of Sindhubai. Blood was found on the bed as well as on the walls of the house. He made enquiry with children of the appellant i.e. Shobha (PW 4) and Ravindra. On enquiry with them, he came know that the appellant had committed murder of his wife, hence, PW 1 Namdeo lodged FIR (Exh.17). 3 Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4 The appellant has preferred this appeal through jail. He had prayed that amicus curiae lawyer may be appointed to defend him. 4 Hence, Mrs .Z.M.Koparkar advocate came to be appointed to represent his case. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties and the judgment delivered by the learned Additional Sessions Judge, we are of the opinion that the judgment and order passed by the learned Additional Sessions Judge does not call for any interference. 5 The star witness in the present case is PW 4 Shobha who is the daughter of appellant as well as deceased. PW 4 Shobha was married, however, on the day of the incident, she had come to the house of her parents at village Chinchave. She had two younger brothers. All of them were sleeping on the “Ota ” of the house at the time of the incident. Sindhubai was sleeping inside the house. Shobha heard sudden sound of noise, hence, she woke up. She knocked on the front side door of the house, it was not opened, hence, Shobha went to back door of the house. She called out to her mother by saying “Akka Akka ”. At that time, her father opened the door. Her father told her (Shobha) that whatever had happened, had happened on his count. Shobha saw that the clothes and hands of her father were stained with blood. She saw her mother was lying on the bed in an injured condition. 5 On seeing this, Shobha became unconscious as she was pregnant at that time. 6 Nothing has been elicited during the cross examination of Shobha so as to disbelieve her testimony. The evidence of Shobha is corroborated by the evidence of PW 1 Namdeo who is police patil of the village. He has stated that he came to know from the villagers that appellant had killed his wife Sindhubai hence, he went to the spot. He saw injuries on face, head and neck of Sindhubai i.e. wife of the appellant. Blood was found on the bed as well as on the walls of the house. He made enquiry with children of the appellant i.e. Shobha (PW 4) and Ravindra. On enquiry with them, he came know that the appellant had committed murder of his wife, hence, PW 1 Namdeo lodged FIR (Exh.17) 7 It is the prosecution case that the appellant assaulted his wife Sindhubai with an axe on her head, face and neck. PW 2 Tukaram Wagh is the panch relating to the scene of offence. He has stated that there was blood on the bed, in the house as well as on walls of the house of the appellant. The axe (Article D) was lying on the spot. The said axe was blood stained. This finding of extensive blood stains in the 6 house, shows that the incident took place in the house and the evidence of Shobha shows that there were only two persons inside the house i.e. her mother and father. Though Shobha is not an eye witness to the actual incident but from the evidence of Shobha the only conclusion which can be drawn is that the appellant had committed murder of his wife Sindhubai. 8 Another circumstance which connects the appellant with the crime is that immediately after the incident he came to be arrested and at that time, the clothes which were on his person, were found to have blood stained. These clothes are Baniyan (Article-G) and Pyjama (Article-H). Both these clothes bore extensive blood stains. Chemical Analyser ’s report Exhibit 12 shows that the clothes of the appellant were found to be stained with blood of blood group `A ’. C.A. Report Exh.12 also shows that the axe which was found at the spot, was found to have blood stains of blood group `A ’. The fact that the mattress and the blood found in the room also contained blood of blood group `A ’ shows that the blood group of the deceased was `A ’. Thus the finding of blood stains of the blood group of deceased on the clothes of the appellant is another circumstance which connects the appellant with the crime. 7 9 PW 5 Dr.Tribhuvan has conducted post mortem on the dead body of Sindhubai on 15.2.1998 and found following external injuries on Sindhubai: 1. Incised wound over face and neck starting from left to right upper border-Raze of it sternoclido mastoid muscle, left mandible, at angle left maxilla, left upper lip, below of the a1g of nose, right maxilla, angle of right mandible, base of right sternoclido mastoid muscle. 2. The lower border of above injury starting from left to right – base of the sterno clido mastoid muscle, cardioid and thyroid cartilage of trachea, and base of right sterno clido - mastoid muscle. The length of above injury as 16 ” and breadth is 7 ” and depth is upto cervical vertebrae. The tissues crushed and cut in above injuries, are 1) Fracture of Maxilla right and left with upper juis. 2) Fracture of mandible on both sides and separated from upper jaw, tongue separated and came outside. Pharynx, larynx cut and came outside. Trachea, cricoid cartilage, thyroid cartilage are cut into pieces and trachea separated and cut into three pieces. 3) Left carotid and jugular vein is cut artery. 8 4) Tarnocido mastoid muscle cut. 5) right carotid artery and jugular vein is cut. 6) Esophagus is cut into three pieces. 7) Muscles of the neck are cut into three pieces. 8) Multiple skin pieces having clear cut edges seen lying in the upper and lower border of above mentioned injury. 3. Apart from above mentioned injuries, there are three separate incised wounds on left side of the neck. (a) incised wound over left supra clavitar area 2 ” x1 ” deep into lungs. (b) incised wound over neck 2 inches just above the 1st injury 2 ” x half “ x muscle deep. (c) Incised would over 1 foot side of the neck 2 ” x half ” x muscle deep 1 ” away from above injury no.b. 4. Contusion over left clavicular area 5 ” x half ” black in colour. 5. Incised wound over base of left middle finger on dorsal side 1 ” x half ” x bone deep with fracture of III metacarpo bone. According to Dr. Tribhuvan all the above injuries are ante mortem injuries and they could be caused by sharp and cutting object which is used multiple times with maximum force. In the opinion of the 9 Doctor Tribhuvan, the cause of death is due to cardio respiratory failure hemorrhagic shock due to cutting of both carotid arteries and large veins of neck and obstruction of air passage by blood clots in trachea and bronchi. The evidence of the Doctor especially regarding multiple assault and the force used while assaulting, show that the appellant assaulted Sindhubai with the intention of causing death. 10 Taking into consideration the above referred evidence, we are of the opinion that it is cogent, reliable and sufficient enough to show that the appellant committed murder of his wife Sindhubai by assaulting her with axe on her face, head and neck. We are of the opinion that the evidence adduced by the prosecution against the appellant is trustworthy and reliable to prove the guilt of the appellant beyond reasonable doubt. 11 Before we part with this judgment, we would like to place on record our appreciation for the able assistance rendered by Advocate Mrs. Z.M.Koparkar to the Court. She be paid the fees for conducting this matter as per the Rules. 12 In the result, the appeal is dismissed. The judgment and order of conviction and sentence dated 12.10.2001 passed by the 10 learned Additional Sessions Judge, Malegaon in Sessions Case No. 28 of 1998 is confirmed. The appellant is in jail. He shall serve out the remaining sentence. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]