Kailash S/O Manikrao Khanzode vs State Of Maharashtra
2004 Latest Caselaw 454 Bom

JUDGMENT

D.S. Zoting, J.

1. This is an appeal preferred by the original accused against the Judgment and Order dated 30th November, 1999 passed by the Additional Sessions Judge, Pusad in Sessions Trial No. 51/97 whereby the original accused has been convicted and sentenced for an offence under Section 302 of the Indian Penal Code to undergo life imprisonment.

2. The facts which are not in dispute may be stated as under :

The murdered woman was one Dwarkabai, aged about 30 years. Gayabai (P.W. 3) is the mother of deceased Dwarkabai. Deceased Dwarkabai was married to one Bhimrav. Godabai is the daughter of deceased Dwarkabai from her first husband Bhimrav. However, there was a divorce between Bhimrav and Dwarkabai. Thereafter, deceased Dwarkabai was residing with her mother Gayabai at Yeldhari. She was earning her livelihood by selling firewood. The accused is the resident of Yeldhari. He was also doing the same work for earning his livelihood. The accused used to accompany Gayabai and her daughter deceased Dwarkabai while going to forest for collecting firewood. He developed love affairs with Dwarkabai. He wanted to marry with Dwarkabai. For that purpose, he obtained consent from his first, wife. A document to that effect was executed on stamp paper. Thereafter, the accused got married with deceased Dwarkabai and he was living with Dwarkabai at Yeldhari. Witness Panchafulabai is the second daughter of Gayabai. One Waman is the husband of Panchafulabai. They were residing at Yeldhari. Dead body of deceased Dwarkabai was found on 6-4-1997. The accused was arrested on 10th April, 1997 at village Veni Dharan.

3. The appellant has been prosecuted for having committed an offence punishable under Section 302 of the Indian Penal Code on the allegation that on 6-4-1997 at about 3.30 p.m. at village Gajipur Shivar he committed murder by causing death of his wife Dwarkabai.

4. The prosecution case, in brief, is that the accused was living with deceased Dwarkabai since the time of their marriage. After marriage, their relations were cordial. Deceased Dwarkabai was carrying pregnancy from the accused. The accused has got four children from his first wife. It is alleged that the accused was thinking that if Dwarkabai delivers a child, the child will get share in the property of the accused. Therefore, he started quarreling with deceased Dwarkabai and the relations between the husband and wife became strained. Therefore, Dwarkabai started living with her at Yeldhari. Her child viz. Godabai was also residing with her.

5. The incident occurred on 6th April, 1997. On that day, deceased Dwarkabai along with her mother Gayabai (P.W.3), sister Panchafulabai (P.W. 5), daughter Godabai and one Shobhabai (P.W. 2) had gone to the forest for collecting firewood. After collecting the firewood, they started returning to the village with the bundles of firewood. When they reached near Mahadeo Temple, they heard shouts of Dwarkabai. At that time they noticed that the accused was giving blows with an axe on the person of Dwarkabai. They rushed towards Dwarkabai. However, accused gave threat to them not to come to that place and also threatened them that he would kill them. Therefore, these ladies returned to the village. Gayabai (P.W.3) narrated the incident before Waman who is the husband of Panchafulabai. Waman approached the Police Patil of the village and informed him about the incident. The Police Patil (P.W.1) along with the Surpanch of the village visited the spot. They saw Dwarkabai lying dead near Mahadeo Temple. Thereafter, Police Patil went to the Police Station and lodged report. An offence was registered on the basis of the report lodged by the Police Patil vide Crime No. 57/97 under Section 302 of the Indian Penal Code against the accused. P. S. I., Rathod (P.W.4) who conducted the investigation, sent two police constables to the spot to protect dead body. On the next day, the panchanama of occurrence was drawn. One axe which was found stained with blood was seen hanging on bush at some distance from the place where the dead body of Dwarkabai was lying. Police Officer has drawn the panchanama according to the circumstances. It is at Exh.40. Thereafter, he prepared inquest panchanama. At the time of drawing the inquest panchanama he noticed injuries on person of the deceased. Inquest panchanama is at Exh.41. The dead body was sent to the Hospital for post-mortem examination. Dr. Minal (P.W.13) performed the post-mortem examination. On the next day of the incident also the accused was not traceable. He was arrested on 10th April, 1997 at the residence of his relative at village Veni Dharan. In the meanwhile statements of the witnesses were recorded. The clothes of deceased Dwarkabai were attached. The axe and clothes were sent to the Chemical Analyser. After completion of the investigation, the accused was charge sheeted for the aforesaid offence in the Court of the Judicial Magistrate, First Class, Pusad.

6. An offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions. Therefore, the learned Judicial Magistrate committed the case to the Court of Sessions for trial according to law.

7. The accused was produced before the Additional Sessions Judge, Pusad. The charge under Section 302 of the Indian Penal Code was framed at Exh.9. It was read over and to the accused. The accused pleaded not guilty and claimed to be tried. His defence is of total denial. According to him, the Police Patil is on inimical terms with him and at the instance of the Police Patil a false case is made out against him. According to him, he is innocent and he has no concern with the death of deceased Dwarkabai. He has not produced any evidence in his defence.

8. During trial as many as 15 witnesses have been examined by the Prosecution. The learned Additional Sessions Judge heard the arguments advanced by the learned counsel for the original accused as well as the learned A.P.P. and on appreciation of the evidence he found that deceased Dwarkabai died homicidal death and that the accused is responsible for the homicidal death of Dwarkabai. In pursuance of the findings recorded by him, he held the accused guilty of an offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life.

9. Being aggrieved by the said Judgment and Order of conviction and sentence passed against the accused, he has preferred this appeal challenges the order of said conviction and sentence before this Court.

10. We have heard the arguments advanced by Shri Daga, learned counsel for the appellant and Shri Mirza, learned A.P.P. appearing on behalf of the respondent State. Mr. Daga, the learned counsel for the appellant submits that the learned Additional Sessions Judge was in error to have come to his finding holding the accused guilty of the offence under Section 302 of the Indian Penal Code. He submitted that there are three eye witnesses. Out of them independent witness Shobhabai has not supported the prosecution. The remaining two witnesses are related to deceased Dwarkabai and they are interested witnesses. Their evidence ought not to have been accepted by the learned Judge without seeking corroboration from the independent witness. He further submits that Shobhabai (P.W.4) who is an independent witness has stated that these two witnesses were accompanying her but Shobhabai has categorically stated that no such incident had occurred and under such circumstances it was unsafe to rely on the evidence of Gayabai (P.W. 3) and Panchafulabai (P.W. 5). The learned counsel for the appellant further points out that no material on record is available by way of circumstantial evidence to show the nexus of the accused with the offence. He submits that though the clothes of the accused were seized, no blood was found on the said cloths. He further submits, that considering the facts and circumstances relating the fact as disclosed by Gayabai that she was at the distance of half k. m. from the spot, it would not be possible for her to see the occurrence of the incident. Thus, according to him, the prosecution evidence suffers from improbabilities which creates doubt and uncertainty sufficient to give benefit to the accused. Under such circumstances, he submits that the appeal deserves to be allowed by quashing and setting aside the order of conviction and sentence passed by the learned Additional Sessions Judge.

11. As against this, the learned A. P. P. appearing on behalf of the Respondent State fully supports the Judgment and Order passed by the Additional Sessions Judge. The learned A. P. P. submits that though Shobhabai (P. W.2) has turned hostile she has admitted her presence in the forest. She has also admitted the presence of Gayabai (P.W. 3) and Panchafulabai (P.W. 5) who were accompanying her while returning to the village on the day of incident. He further submits that it has come in the evidence that the accused had threatened these ladies and, therefore, due to the threats, Shobhabai (P.W.2) has not supported the prosecution and she turned hostile to the prosecution. He further submits that though the witnesses Gayabai (P.W.3) and Panchafulabai (P.W.5) are related to deceased Dwarkabai, they are natural witnesses and their evidence does not suffer from any contradiction and material discrepancies and as such their evidence is sufficient to sustain conviction recorded by the learned Additional Sessions Judge.

12. Having heard the arguments advanced by both the parties before this Court and after going through the entire evidence of prosecution, we find that there is ample cogent, reliable and trustworthy ocular evidence on record to sustain the order of conviction and sentence passed by the trial Court for the following reasons.

13. The fact that deceased Dwarkabai died unnatural death on 6th April, 1997, has not been disputed on behalf of the appellant/accused. Her dead body was found near Mahadeo Temple within the limit of Dajipura forest area. There were several injuries on her person. There is a reference of these injuries in the F.I.R. Exh.26. When inquest panchanama was drawn in presence of the panchas, at that time also, the Police Officer has noted the existence of the injuries on the person of deceased Dwarkabai. Her dead body was sent for post-mortem examination. Dr. Minal (P.W. 13) performed the post-mortem examination. At that time he noticed the following injuries.

i)       contused lacerated wound at right temporal region which was bone deep.
 

ii)      There was fracture on the skull.
 

iii)      Posterior part of neck was separated from body by multiple injuries.
 

iv)     Multiple injuries on both thigh and buttock.
 

v)      Contused lacerated wound on left scapulla region.
 

On internal examination, he noticed the following injuries:
 

i)       Fracture of right temporal bone.
 

ii)      Fracture of rib on right side.
 

According to him these internal injuries were caused due to external injuries 1 and 2 described by him in column No. 17. He opined that all these injuries were ante mortem and these injuries are possible with an axe. He has further opined that these injuries are sufficient for the death. He further opined that the cause of death is due to cardiorespiratory arrest due to accute irreversible neorovasoilar shock due to multiple injuries. Having regard to all this evidence of incontrovertible of nature, there cannot be doubt in this case that deceased Dwarkabai died homicidal death.

14. Now the next vital question that arises for our consideration in this case, is whether the prosecution has succeeded in proving that the appellant/accused is responsible for the said homicidal death of Dwarkabai. In support of its case, the prosecution has examined as many as 15 witnesses as under :

Ocular Evidence

Shobhabai(P.W.2);

Gayabai (P.W.3);

Panchafulabai(P.W.5)

Medical Evidence

Dr. Sau. Minal

Panch witnesses

Sudhakar Rathod (P.W.4.);

Dagdu Baliram Ingale (P.W.7);

Uttam Ratho 4(P.W.8);

Kailash Chavhan (P.W.9)

Police Officers

Subhash Dudhe (P.W.11)

Ashok Chaudhari (P.W.12)

Parashram Rathod (P.W.14)

Other formal witnesses

Sanjay Bopche (P.W.15)

15. To begin with we would first like to deal with the ocular evidence given by Panchafulabai (P.W.5). She gave evidence as under :

On the fateful day of the incident she along with deceased Dwarkabai, mother Gayabai, Shobhabai (P.W.2) and Godabai daughter of deceased Dwarkabai had gone to the forest to collect firewood, they collected the firewood and they were carrying bundles of the firewood while returning to the village she has categorically stated that she and Shobhabai were ahead and Gayabai, Godabai and Dwarkabai were following them while returning to the village. She further states that Dwarkabai was the last person amongst them while proceeding towards the village. As regard the distance she stated that there was a short distance of about 10 to 12 cubits between two persons while proceeding towards the village. She further states that she heard the shouts of Dwarkabai coming from the rear side. And, therefore, they all looked to that side and noticed that the accused was giving blows of an axe on the person of Dwarkabai. According to her, the accused gave 5 to 6 blows of an axe on the person of Dwarkabai. She further states that having seen this, Gayabai (P.W. 3) and Godabai started proceeding towards Dwarkabai and they asked the accused as to why he was assaulting Dwarkabai. However, accused threatened them not to come ahead else he would kill them. Therefore, they returned to the village. She stated that when they left the place, Dwarkabai was lying in the pool of blood. According to her, when she came along with her mother Gayabai (P.W.3) to her house, her husband was present. She narrated the occurrence to him. Thereafter, her husband Waman approached the Police Patil.

16. It is to be noted that this witness has been cross-examined at length. However, a careful scrutiny of the cross-examination shows that she has not been cross-examined as regards the actual occurrence of incident. A vague suggestion is given to her that she stated a false story as deceased Dwarkabai was her sister. Her evidence remained unshaken in the cross-examination. It is well known that when a person makes a statement on oath, the presumption is that he/she speaks the truth because of the oath he/she takes and the burden is on the person who challenges the veracity of that statement to show that it is not true. If this burden is not discharged by any of the well recognised legal methods by that person a Court can have no justification for not relying upon such statement made on oath. It is to be noted that not a single contradiction is brought on record during her cross-examination. As her evidence as regards the actual occurrence and the involvement of the accused has gone unchallenged during the cross-examination, it is not open to the appellant to say that this witness fails to inspire confidence simply on the ground that she is related to deceased Dwarkabai. The statement of this witness further finds corroboration in the fact that her husband immediately approached the Police Patil Pradip (P.W. 1) and gave information of the incident disclosing the name of appellant to be a perpetrator of crime on basis information received by him from this witness Panchafulabai (P.W.5) and her mother Gayabai (P.W. 3). The Police Patil immediately rushed to the spot and found that the dead body of Dwarkabai was lying on the spot. He lodged report immediately.

17. The evidence of witness Panchafulabai (P.W.5) further finds corroboration in the testimony of Gayabai (P.W.3). She has also narrated the same story by giving evidence that while returning to the village she heard the shouts of Dwarkabai who was following her and at that time she noticed that the accused was giving blows of an axe on the person of the deceased. She has also stated that the accused gave 5-6 blows on different parts of the person of deceased Dwarkabai viz. Head, neck, shoulder. The medical evidence also shows that deceased Dwarkabai received injuries on head, neck and, shoulder. She has also stated about the threats given by the accused which prevented her from going towards deceased Dwarkabai. According to her, due to the threats she got frightened and retuned to village Yeldhari where she narrated the incident to her son-in-law Waman. She is an illiterate woman and does not understand the measurement of distance and, therefore, in the cross-examination she stated that there was a distance of half km. between two persons while returning to the village. She has also stated that the spot is 15 KM away from village Yeldhari. The spot panchanama as well as the evidence of the Investigating Officer Rathod (P. W. 14) show that the distance between the spot of incident and village Yeldhari is about 4 to 5 KM, She being a rustic witness, it is not expected from her to know correct distance. From her (Panchafulabai) testimony, the fact remains that there was a distance of 10 to 12 cubits between two persons when all these witnesses were proceeding to village Yeldhari and this fact has gone unchallenged in her deposition. Similarly the fact that Panchafulabai was accompanied by Gayabai has also gone unchallenged in the cross-examination of both the witnesses. Under such circumstances, the statement made by Gayabai in the cross-examination as regards the distance does not carry any weight and she being a rustic witness, the said statement made by her as regards the distance, will have to be ignored.

18. The third witness Shobhabai (P.W.2) has not supported the prosecution. Though she admits that she was accompanying Panchafula (P.W.5) and Gayabai (P.W.3) for the purpose of collecting the firewood and bringing the same to the village, she denied the knowledge of the incident and whatever statement she might have stated before the Police during the investigation when her statement came to be recorded under Section 161(3) of Criminal Procedure Code when she came to the witness box to depose on oath she denied the prosecution story. However, she admits that these two witnesses were present on day of incident in the forest. Not only this but she has also admitted that she was returning to the village along with these two ladies P.W.3 Gayabai and P.W. 5 Panchafulabai. It may be noted that there was a threat from the accused as disclosed by Gayabai and Panchafulabai. Therefore, it appears that she has no courage to give true version against the accused. Considering the evidence of three ladies apparently it appears that Shobhabai (P. W.2) has turned hostile to the prosecution and that her testimony will have to be rejected.

19. The motive suggested by the prosecution for commission of the offence is that deceased Dwarkabai was the second wife of the accused and she was carrying pregnancy from the accused and the accused was under impression that if she delivers a child, the child will claim share in his property, therefore, he committed murder of deceased Dwarkabai. As there is a direct evidence available on record, the evidence of motive plays insignificant role in the matter and it does not carry much weight. It is also pertinent to note that one more circumstance goes against the accused i.e. his abscondance. The incident occurred on 6-4-1997. He was residing at Yeldhari. Since the time of occurrence he was absconding. P. W. 14 Rathod P.S.I. Stated that he carried out hectic search for the accused but the accused could not be traced out till 10th April, 1997. It is to be noted that though the accused is a resident of Yeldhari, he was found at village Veni Dharan at the residence of his relative. His abscondence since the time of incident reflects subsequent conduct of the accused after the occurrence of incident which is relevant under Section 8 of the Indian Evidence Act. The evidence adduced through other witnesses who are panchas etc. is of formal nature and in view of the direct ample evidence available on record the same does not require further consideration. The evidence of both the eye witnesses appears natural, cogent, reliable and trustworthy and there appears no reason to disbelieve the evidence of these witnesses merely on the ground that they are related to deceased Dwarkabai. The arguments advanced by the learned counsel for the appellant that they are the interested witnesses cannot be accepted. Both these witnesses cannot be called as interested witnesses. The witness can be called interested only when the witness derives some benefits from the result of the litigation. In the present case neither Gayabai (P.W. 3) nor Panchafulabai (P.W.5) is going to derive' any benefits from this criminal case against the accused. Their evidence has a ring of truth and the said evidence does not appears to be tainted in any way. Though it is suggested that they are giving evidence at the instance of the Police Patil, same cannot be accepted because it would not be possible for these ladies to spare the real assailant of Dwarkabai and to substitute the name of the accused who is son-in-law of Gayabai (P.W.3) and the brother-in-law of Panchafulabai (P.W.5) in the place of the real assailant. Moreover, they disclosed the name of the accused to Waman immediately after the occurrence of the incidence. The name of the accused finds reference in the F.I.R. lodged on the basis of the information given by Waman. Waman is not a ocular witness and, therefore, non-examination of Waman, at any rate, cannot be said to be fatal to the prosecution. Thus, an overall consideration of the facts and the circumstances of the case, the evidence on record and important features which have been noted by us as above, have lead to come to the conclusion that the prosecution has succeeded in proving that the accused is responsible for the homicidal death of deceased Dwarkabai.

20. It is to be noted that the accused had chosen the vital parts of the deceased while giving blows of an axe which shows that the knowledge as well intention that such injuries are going to cause death, must be there when he repeatedly gave blows of the axe on the person of the deceased. Thus, the case falls under the clause thirdly of Section 300 i.e. culpable homicide is murder if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The said offence is punishable under Section 302 of the Indian Penal Code.

21. In the result, we find that the learned Additional Sessions Judge has rightly convicted and sentenced the accused of the offence under Section 302 of the Indian Penal Code. We confirm the said order of conviction and sentence ordered by learned Additional Sessions Judge. Appeal is devoid of substance and it is dismissed accordingly.