JUDGMENT Dr. Pratibha Upasani. J.
1. This Appeal has been filed by the appellant/original accused Parvatibai Narayan Savara, being aggrieved by the judgment and order dated 7.9.1985 passed by the Sessions Judge, Thane in Sessions Case No. 296 of 1984. By the impugned judgment and order, the learned Sessions Judge, Thane, convicted the appellant Parvatibai for offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer imprisonment for life.
2. The prosecution story can be briefly narrated as follows : Parvatibai, a middle aged woman, was residing at Dssarpada, Ganjad, which is a tiny village in Taluka Dahanu, District Thane. The deceased Ladkibai was the mother-in-law of the accused Parvatibai. Ladkibai was first married to one Devlya Savara. The complainant/P.W. 1 Jivlya was born to Ladkibai from Devlya. After the death of Devlya, the deceased Ladkibai married for the second time to one Mahadu, who was the father-in-law of the accused. Mahadu also died and about one and a half months after the death of Mahadu, the deceased Ladkibai came to reside with her son Jivlya/ complainant leaving the house of her another son Narayan, who was the husband of the appellant/accused Parvatibai.
3. The incident took place on 24.8.1984 at about 2 p.m. at the house of Jivlya. The prosecution case is that after taking meals on that day, Jivlya, the complainant, and the deceased Ladkibai were taking their siesta. Jivlya was sleeping in the room and Ladkibai was sleeping in the front Oti, which is closed by reed walls. Jivlya's wife Janibai was out to do labour work. At this time, accused Parvatibai came with an axe, having long and sharp blades, in her hand and assaulted Ladkibai. She gave blows with the axe to Ladkibai. Some blows fell on her head fracturing the parietal left side region 7 cms. In length and fracture on the mandible right side causing laceration in brain. The death of Ladkibai was instantaneous as she had suffered, besides the above injuries, incised wound on the occipital region, incised wound on the right parietal region posterior to ear 9 cms. (1 cm.) (1/2 cm.) and also incised wound on the right side back auxiliary.
On hearing the commotion, Jivlya, who was sleeping in the room, woke up and came near the door of the Oti. He saw the accused giving a blow on the neck of his mother. On seeing him, the accused ran away with the axe. Jivlya tried to chase her but the accused was running hard and fast. She was also armed with axe. Therefore, Jivlya got frightened and gave up his chase. He came back to his house and saw that his mother was lying dead on the Oti in a pool of blood.
Jivlya's father-in-law Laxya (P.W. 2) was residing just in the adjoining house. He also heard the noise and commotion. He also saw the accused running away with an axe. When he came to the house of his son-in-law, he saw Ladkibai lying dead in the Oti. Keeping Laxya by the side of his dead mother. Jivlya proceeded to Dahanu, which was 15 kms. away from Dasarpada. He reached the police station, Dahanu at about 5 p.m. and lodged F.I.R. there.
P.S.I. Bajpai recorded the F.I.R. and registered the offence and started Investigation of the matter. He came to Dasarpada and drew up Panchanama. He also directed to send the dead body of Ladkibai to Cottage Hospital, Dahanu for post-mortem examination. Panchnama of the scene of offence was also drawn. The articles from there were seized and statement of witnesses, including that of Laxya, under Section 161 of the Code of Criminal Procedure, 1973 came to be recorded.
The accused came to be arrested on the very same day. On the next day, at the instance of the accused, there was recovery of the axe from the house of Parvatibai. The same was seized under Panchnama. Thereafter, it was sent to the Chemical Analyser for examination.
4. Thus, after completing routine investigation, charge-sheet came to be filed against the accused on 12.9.1984 in the Court of J.M.F.C., Dahanu for offence punishable under Section 302 of the Indian Penal Code. As the said offence is triable exclusively by the Court of Sessions, J.M.F.C., Dahanu committed the accused to Sessions Court, Thane to stand trial. When charge came to be framed against her under Section 302 of the I.P.C., she denied the said charge and claimed to be tried. Her defence was that of total denial.
5. The prosecution, to prove the charge against the accused, examined. In all, six witnesses.
P.W. 1, Jivlya, was the alleged eye-witness. P.W. 2. Laxya, was the father-in-law of Jivlya, whose house is next to the house of Jivlya P.W. 3, Dr. Vijay Nale, was the Medical Officer, who conducted the post-mortem examination of the dead body of Ladkibai at the Cottage Hospital, Dahanu. P.W. 4 Dhanji Jethya Karmoda, was the panch witness for memorandum and recovery panchanama. P.W. 5, Beva Rupa Pawar, was also a panch witness for memorandum and recovery panchanama. P.W. 6 - P.S.I. Yogeshkumar R. Bajpai, was the Investigating Officer.
6. P.W. 1 - Jivlya, is the alleged eye-witnesses of the incident. He has stated that after the death of his father, his mother Ladkibai married for the second time and after his death, his mother came to reside with him for some time. On the day in question, he was in the house and his mother was sleeping in the Oti. He further stated that the accused came and inflicted five blows with axe on the body of his mother, that the accused inflicted three blows on the neck, one on the head and one on the back. He further stated that he actually saw the incident of assault and that when he came out, the accused ran away. He also began running after her. But he returned home, giving up the chase. Then, he asked his father-in-law to sit near his mother, went to Dahanu police station and lodged F.I.R. (Exhibit 5). He identified the axe with which the accused assaulted his mother.
7. P.W. 2, Laxya, supported the evidence given by P.W. 1 Jivlya. Laxya stated in his evidence that he did not see the accused actually inflicting blows, but that he heard the noise and saw the accused running with axe in her hand, and that he saw Ladkibai lying dead in the Oti.
8. P.W. 3. Dr. Vijay Nale, stated in his deposition that he conducted the post-mortem examination of the deceased Ladkibai between 9.30 a.m. and 11 a.m. on 25.8.1984 at the Cottage Hospital, Dahanu. He stated that on examination, he found the following external injuries, which he had written in column 17 of his post-mortem report :
1. Incised wound on the back right side at level of scapula lateral to midline 12 cms. x 2 cms. x 1 cm.
2. Contused Lacerated wound right shoulder posterior 3 cms. x 1cm. x 1 cm.
3. Incised wound on back of neck 6 cm. x 1 cm. x 1/2 cm.
4. Incised wound right side upper neck back side 9 cms. x 2 cms. x 1 cm.
5. Contused lacerated wound left eye-brow 3 cm. x 1 cm.
6. Incised wound left parietal region 8 cms. x 2 cms. x 1/2 cm.
7. Incised wound occipital region 5 cms. x 1 cm. x 1/2 cm.
8. Incised wound right side parietal region posterior to ear 9 cms. x 1 cm. x 1/2 cm.
9. Abrasion on the right arm 4 cm. x 2 cm.
10. Fracture on the mandible right side.
11. Fracture on the parietal region 7 cms in length.
The above injuries were ante-mortem.
Dr. Vijay Nale further stated that he noted the following internal injuries:
Head : External injury No. 6.
Skull : Fracture of parietal bone left side 7 cms. in length.
Brain : Small subdural laceration in brain left side.
Dr. Vijay Nale opined that the death of Ladkibai was due to the fracture of the scalp and skull as a result of which there was laceration in brain. He further opined that the above injuries were sufficient in the ordinary course of nature to cause death. He further stated that the external injuries suffered by the deceased could be caused by the blows with the axe which was shown to him in the Court.
9. P.W. 4 - Dhanji Karmoda and P.W. 5 - Beva Rupa Pawar were panch witnesses for the memorandum and recovery Panchanama. Of these two panch witnesses, P.W. 4 Dhanji Karmoda turned hostile and proved lo be of no use to the prosecution, as he stated that he knew nothing about the information given by the accused and that she did not produce any article in his presence and that the police called him at the police station and obtained his thumb impression. P.W. 5 Beva Rupa Pawar, however, stated in his deposition that he knew both the deceased as well as the accused. He also stated tn his deposition that the accused produced muddemal axe (article No. 5) from her house in his presence. He also stated that the accused produced other Muddemal articles like one blood stained saree and blood stained blouse (article Nos. 6 and 7). He also stated that the police attached these articles under panchanama in his presence.
10. P.W. 6 is the Investigating Officer, P.S.I. Yogesh kumar Bajpai. He stated in his evidence that in the year 1984, he was attached to Dahanu police station as P.S.I, and that on 24.8.1984 at about 5.05 p.m. one Jivlya Savara came to the police station and lodged F.I.R. (Ex. 5), which was recorded by him as per the information given by Jivlya. He identified the said F.I.R. and his own signature on it, so also the thumb impression of Jivlya. He then narrated all the steps of investigation taken by him.
11. If one goes through the evidence of all these prosecution witnesses, it will be seen that all the prosecution witnesses except P.W. 4, who turned hostile have honestly narrated the incident. There is no dent to their deposition in the cross-examination. P.W. 1 has given vivid account of the incident and has described how his step sister-in-law gave axe blows to his mother. There does not appear to be any attempt to exaggerate the event and there is a ring of truthfulness in his narration. P.W. 2 Laxya also has lent corroboration to the evidence of P.W. 1. His evidence also appears to be a very honest narration of what he saw and what he did not see. He could have very well stated, to lend support to his son-in-law, that he also was an eye-witness to the incident. But he has not stated so. He has only stated that he heard the noise and saw the accused running with the axe and also saw Ladkibai lying dead in the Oti. He has candidly admitted that he did not see the accused inflicting the blows on the deceased. All this gives credence to his deposition.
12. P.W. 5 also has given a credible testimony about his role as a panch witness to the memorandum and recovery panchanama. There is no reason to disbelieve the evidence of these witnesses.
13. We have heard Mr. Shingarpure, the learned A.P.P. appearing for the State. We have also gone through the records of the case including the impugned judgment and order dated 7.9.1985 passed by the Sessions Judge, Thane. We have also gone through the evidence of all the prosecution witnesses and the relevant documents. After careful consideration and scanning of the evidence of prosecution witnesses and the relevant records, in our opinion, the learned Sessions Judge was right in coming to the conclusion that the prosecution had established beyond reasonable doubt that the accused Parvatibai had murdered her mother-in-law Ladkibai with the axe.
14. The evidence of all the prosecution witnesses, especially the evidence of the eye-witness Jivlya and the evidence of P.W. 2 Laxya has been properly assessed and analysed. Laxya's deposition is very relevant in view of Section 8 of the Indian Evidence Act, 1872, inasmuch as it throws light on the previous and subsequent conduct as envisaged by Section 8 of the Evidence Act. This conduct belongs to the category of Res gestae and is a relevant fact.
15. Thus, the cumulative effect of the direct evidence of Jivlya, evidence of Laxya supported by the panch witness P.W. 5, the relevant panchanamas, production of blood stained articles by the accused from her house is that the prosecution story comes out full pr6of, pointing unmistakably to the guilt of the accused. It has to be said that the prosecution has succeeded in establishing beyond reasonable doubt that the accused was guilty of the offence for which she was charged, as the evidence on record highlights that the accused did the dastardly act with the intention of causing bodily injury to Ladkibai and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. Thus, the ingredients of clause thirdly in Section 300 of the I.P.C. are fully complied with.
16. Recourse can be taken with advantage to the decision of Supreme Court in Virsa Singh. v. State of Punjab, wherein Supreme Court has observed as follows :
"The prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended."
17. In the present case at hand, as stated earlier, the Trial Court has correctly come to the conclusion after marshalling the evidence that conditions of clause 3 of Section 300 have been duly satisfied. The Trial Court, thus, rightly held the accused Parvatibai guilty for offence punishable under Section 302 of Indian Penal Code and sentenced the accused to suffer imprisonment for life.
18. We have carefully perused the impugned judgment of the Trial -Court. Mr. Sule, the Advocate for the appellant, is not present. However, we have heard the learned A.P.P. and we are deciding this appeal on merits, in view of the decision of the Supreme Court in Bant Singh State of U. P.,2. In this case, the Supreme Court has observed that in an appeal, under Section 386 of the Cr.P.C., 1973, when the lawyer of the appellant is absent on the appointed date of hearing, the Court is not bound to adjourn the case but should dispose of the appeal on merits and that dismissal of appeal simpliciter for non-prosecution is not contemplated. We are doing just the same. We are deciding this appeal on merits after carefully perusing the record and after hearing the learned A.P.P.
19. In view of the aforesaid discussion, we find no fault in the Trial Court judgment. The appeal therefore falls. Hence, the following order ;
"Criminal Appeal No. 10 of 1986 is dismissed.
Rule discharged.
Conviction and sentence of the appellant/accused Parvatibai Narayan Savara under Section 302 of the Indian Penal Code is hereby confirmed.
Bail bond of the appellant to stand cancelled. The appellant to be taken into custody forthwith.
Writ to be sent down accordingly.