Narendra S/O Maroti Kawale vs The State Of Maharashtra Through ...
2005 Latest Caselaw 293 Bom

JUDGMENT

S.T. Kharche, J.

Page 1564

1. This Criminal appeal takes an exception to the judgment and order of conviction dated 4.5.1996 passed by the learned Additional Sessions Judge, Nagpur, in Session Trial No. 360 of 1992, whereby the appellant/accused has been convicted of the offence punishable under Section 304 Part II of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for six months.

2. The case of the prosecution is required to be stated as under :

(a) The father of the accused by name Maroti was the Ex-police patil of village Sawarkheda who is now no more alive. Deceased Nanda was the wife of the accused and they were blessed with three children. The accused, his wife and parents and the children were living jointly at village Sawarkheda.

(b) Accused was appointed as an accountant for maintaining the accounts of cutting and auction of bidi patta by one Jamanbhai Morarji of Rajnandgaon, as he had taken contract in auction Bhajandas (P.W. 4) and one Budha were also employed by Jamanbhai and they happened to be living at the house of the accused for taking meals and taking rest in the night. Bhajandas and Budha were working as checkers.

(c) The incident occurred on 3.3.1992 at about 9 or 9-30 p.m. Bhajandas and Budha were present in the house as they had returned from their work. The accused had also arrived on bicycle from the work at about 9-00 p.m. At that time Bhajandas and the family members of the accused were engaged in watching the T.V. programmes. Soon after the arrival, the accused questioned his wife as to why the lunch was not sent to him and so saying he delivered kick blow to her. His wife went inside the kitchen and the accused also followed her. The accused had beaten his wife and consequently she started moaning and leaning and breathed her last by giving hiccup.

(d) Tanabai, who is the mother of the accused, had called her neighbour Pundlik (P.W.2) who arrived on the spot and saw that Nanda was moaning and leaning and died within a short time. It is the case of the prosecution that Nanda did not consume food during the whole day and because of the beating by the accused, she succumbed to the internal injuries.

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3. P.S.I. Reddiwar (P.W. 6) had come to village Sawarkheda on patrolling duty and he came to know from the whispering in the village that the accused had killed his wife. Therefore, he went to the house of the accused and interrogated Bhajandas and Budha. Thereafter he prepared the dehati report (Ex.43) and sent the same to the police station Veltur, on the bais of which offence under Section 302 of Indian Penal Code was registered. He forwarded the dead body to the Rural Hospital, Kuhi, and Dr. Kanta Motghare (P.W. 3) effected the autopsy on the dead body on 5.3.1992 in between 1 to 2 p.m. and initially opined that the probable cause of death was poisoning. However, after receipt of the chemical analyser's report regarding viscera she opined that the probable cause of death was due to beating. Accordingly she issued the post mortem report (Ex.19). The statement of Bhajandas was got recorded under Section 164 of the Code of Criminal Procedure through Executive Magistrate, Mushtaq Niyazi (P.W. 5). After completion of investigation, the charge-sheet was filed in the Court of J.M.F.C.

4. After committal of the case to the Court of Sessions, the learned Additional Sessions Judge framed and explained the charge to the accused to which he pleaded not guilty and thus the trial proceeded with. The defence of the accused is that of total denial in the sense that he claims to be innocent and that he has been falsely implicated in this case. The prosecution relied on the direct evidence of Bhajandas (P.W. 4) as well as the medical evidence of Dr. Kanta (P.W. 3) along with the circumstantial evidence in order to bring home the guilt. The learned Additional Sessions Judge on appreciation of the evidence has recorded the finding that Nanda died as a result of homicidal death. However, the learned Additional Sessions Judge observed that the probable cause of death was injuries due to beating by the accused, but those injuries appear to have been caused without intention or knowledge to kill the deceased. Consequently, the learned Additional Sessions Judge was of the view that the offence would be covered under Section 304 Part II of the Indian Penal Code. Consistent with these findings, she convicted the accused and sentenced him as mentioned above. This judgment and order of conviction is under challenge in this appeal.

5. Mr. J.M. Gandhi, learned Counsel, for the accused contended that this is a case wherein there is no positive medical evidence to show as to what was the cause of the death. He contended that the medical officer initially opined that the probable cause of death was poisoning and subsequently on receipt of the report of chemical analyser she opined that the probable cause of death was beating which was so severe that it was sufficient to cause death in the ordinary course of nature. He contended that the death of Nanda by poisoning has been ruled out by the report of chemical analyser and this is a case wherein there is a variance between the medical evidence and the ocular testimony of the prosecution witnesses. He contended that the entire case of prosecution rests on the solitary testimony of Bhajandas and the presence of this witness at the house of the accused itself is doubtful. There was a considerable delay of about 15-16 hours in recording the statements of Bhajanlal and Budha. Though Pundlik admits in the cross-examination that the village had gone to the police station and lodged the first information report, the prosecution has suppressed the said first information report and Page 1566 this fact goes to the root of the case of prosecution and makes the entire case doubtful. He contended that since there was a considerable delay in recording the statement of Bhajandas, no implicit reliance could be placed on his testimony. In support of these submissions, he relied on the decision of Supreme Court in the case of State of Orissa v. Brahmananda Nanda - wherein it has been held that "where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused."

6. Reliance is also placed on the decision of Supreme Court in Ganesh Bhavan Patel v. State of Maharashtra - wherein was held that "delay of a few hours, simpliciter, in recording the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."

7. Mr. Gandhi, learned Counsel, contended that the learned Additional Sessions Judge erroneously considered the scope of Section 106 of the Evidence Act in order to corroborate the sole testimony of Bhajandas and this is a case wherein two views are possible and in such circumstances benefit of doubt should be given to the accused. Alternatively, Mr. Gandhi contended that the accused is having three children and old mother who are dependent on him and, therefore, the accused may be released on his executing a bond for good behaviour as per the provisions of Section 4 of the Probation of Offenders Act or Section 360 of the Code of Criminal Procedure.

8. The learned A.P.P. supports the impugned judgment and order of conviction and contended that there are absolutely no omissions or contradictions in the statements of Bhajandas and his presence in the house of the accused at the relevant time has been more or less admitted and since he had no axe to grind against the accused his testimony has been rightly believe by the learned Additional Sessions Judge. He contended that the evidence of Dr. Kanta corroborates the testimony of Bhajandas in material particulars to show that the death was the probable result of beating by the accused. He contended that even the testimony of Bhajandas gets corroboration from the circumstances proved by the prosecution. Pundlik (P.W. 2) is the neighbour of the accused to whom Tanabai had called immediately when Nanda started Page 1567 moaning and leaning. Pundlik went there and saw Bhajandas, the accused and other family members including Tanabai were present inside the house and that Nanda died within a short time after taking some hiccups.

9. He contended that this is a case wherein the accused did not make any report at the police station regarding the unnatural death of his wife who was entirely in his custody at the relevant time and it is P.S.I. Reddiwar who happened to be in the village on patrolling duty who came to know from the whispering of the people that the accused has killed his wife and therefore he went to his house. He saw that Bhajandas and Budha were present there. P.S.I. Reddiwar interrogated them and recorded their statements, thereafter prepared the dehati report and sent it to the police station on the basis of which offence under Section 302 of Indian Penal Code was registered. He contended that non-explanation by the accused as to how his wife died and keeping silence till the visit of P.S.I. Reddiwar goes a long way to show his conduct and complete the chain of circumstances, and therefore the learned Additional Sessions Judge was perfectly justified in convicting the accused for the offence which is squarely covered by Section 304 Part II of Indian Penal Code and there is no reason for this Court to interfere into those findings and the appeal may kindly be dismissed.

10. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not the case of the accused that Nanda died as a result of suicide or by accident or died a natural death. The evidence of Dr. Kanta would reveal that autopsy was effected on the dead body of Nanda on 5.3.1992 in between 1-00 to 2-00 p.m. at Rural Hospital, Kuhi, and she did not find any external injury. However, she has mentioned in col. No. 13 of the post mortem report as under:

"Eyes closed, upper eye lid swollen, blackish blude,

mouth was swollen, blackish blue blood was oozing from mouth and nostrils."

11. Her testimony would indicate that the condition of the body was emaciated and cold, rigor mortis was absent, buttocks, back and loins were blackish. No injury was found on head. Brain was congested, Thorax walls, ribs, and cartilages were normal so also pleura was normal. Larynx, trachea and bronchi were swollen and congested, right lung, left lung and pericardium were congested, heart was normal and its both chambers were empty, all the internal organs were normal, peritoneum was congested and froth was seen in the cavity. Dr. Kanta opined initially that the probable cause of death was suspected poisoning and therefore she preserved viscera which was forwarded to chemical analyser. The report of chemical analyser revealed that no recognizable poison could be detected in the viscera and therefore Dr. Kanta Motghare categorically deposed in para 6 and 7 of her examination-in-chief as under:

"My findings in col. No. 13 that the mouth was swollen, eye lids were blackish blue and swollen, blood was oozing from mouth and nostrils, amount to injuries on the person of dead body. So also mention of oozing from mouth and nostrils has to be the result of internal injuries to the face or the head. It is correct that injuries as mentioned in col. No. 13 of post mortem notes are because of severe beating or assault. It is correct that injuries mentioned in col. No. 13 may result into death of the patient.

Page 1568

There is erosion to the stomach internally on the inner linings. All the organs were found congested, it may be because of severe beating or assault. Therefore, in this case the probable cause of death could be severe beating or assault. It is correct that beating was so severe that it was sufficient to cause the death of the patient in the ordinary course of nature."

12. During cross-examination Dr. Kanta Motghare has admitted that she has not mentioned in the post mortem report that the death may be caused because of severe beating or assault, but this admission does not go to indicate that the probable cause of death was not severe beating at the hands of the accused. The concomitant circumstances brought on record would clearly reveal that the death of Nanda was homicidal and this Court does not find any reason to take a different view of the matter and, therefore, it is obvious that the learned Additional Sessions Judge was perfectly justified in recording the finding that Nanda died as a result of homicidal death.

13. The crucial question which needs consideration is, whether the prosecution has established the complicity of the accused in committing the crime beyond reasonable doubt. In this context the testimony of Bhajandas (P.W. 4) would reveal that he was working as a checker and was employed by Jamanbhai who had taken the contract of plucking bidi patta. One Budha was also employed as checker by Jamanbhai. Therefore, both of them had gone to Sawarkheda and were living in the house of the accused. They were also taking their meals and taking rest in the night after finishing their day's work. The evidence of Bhajandas would reveal that the accused was living with her mother, wife Nanda and three children. The incident occurred on 3.3.1992 at about 8 or 9 p.m. This witness stated that on that day after finishing the meals they all were watching the T.V. programmes. At that time the accused was not present in the house and at about 9-00 p.m. he returned to the house. On arrival the accused asked his wife as to why she did not serve him the meals in the after noon and he had to go for work empty stomach and so saying he delivered kick blow on he head. He had put off the T.V. Thereafter Nanda went inside the kitchen for serving meals to Narendra who also followed her. The witness Bhajandas and other family members were in the chhapri. After some time Tanabai disclosed that Nanda was moaning and leaning and was in a serious condition. Therefore, this witness rushed inside and saw that she was suffering from hiccups and was in a semi unconscious condition. By that time Tanabai had called Pundlik. Tea was prepared and Tanabai tried to serve the tea to Nanda but she breathed her last.

14. Bhajandas reiterated that when he saw the face of Nanda, it was swollen and blood was oozing from her mouth and nostrils. This version of Bhajandas has gone unshattered in the cross-examination and a trivial contradiction has been brought on record to indicate that Bhajandas was sleeping inside the house and he was not able to see as to what has happened in the house and that he has stated for the first time before that Court that he was not sleeping but was just lying down. What is important to note is that in the cross-examination it has been elucidated from Bhajandas like this -

Page 1569 "At the time of giving kick blow, Nanda was watching T.V. Kick was aimed at her head. I cannot say on which side is struck."

15. This material brought on record in the cross-examination goes to establish that on the date of incident, the accused had delivered kick blow to Nanda who was watching the T.V. and the kick was aimed at her head. The medical evidence is not at variance but it is in consonance with the version of Bhajandas. This is not a case wherein there is a variance between the medical evidence and the ocular testimony of the prosecution witnesses especially when Dr. Kanta has clearly opined that the probable cause of death was beating and it was so severe that it was sufficient to cause death in the ordinary course of nature. The evidence of medical expert cannot be ignored in the light of the fact that it is not the case of the accused that Nanda died a natural death or the death was accidental or suicidal.

16. The learned Counsel for the accused pointed out that there was a delay of about 15-16 hours in recording the statements of the witnesses and, therefore, no implicit reliance could be placed on the testimony of Bhajandas. This Court on re-appreciation of the evidence is of the considered opinion that the delay in recording the statement of Bhajandas is not at all fatal to the prosecution case because it is P.S.I. Reddiwar who had been to village Sawarkheda on patrolling duty and after coming to know from the whispering in the village that Nanda was killed by her husband, he went to the house of the accused and then recorded the statement of Bhajandas. In such circumstances, the statement of Bhajandas recorded by P.S.I. Reddiwar could be perfectly considered as first information report on the basis of which the criminal law was set in motion by sending the dehati report to the police station Veltur. Therefore, by no stretch of imagination it could be said that there was no first information report lodged at the police station.

17. However, the direct evidence of Bhajandas has also been corroborated in material particulars by the clinching circumstances. In such circumstances, the decisions of Supreme Court in State of Orissa v. Brahmananda Nanda and Ganesh v. State of Maharashtra - , cited supra, have no bearing on the facts and circumstances of the present case.

18. Pundlik (P.W. 2) who is the neighbour of the accused was called by Tanabai soon after she noticed that Nanda was leaning and moaning. The evidence of Pundlik would clearly reveal that he is also distantly related to Tanabai as her nephew and he had gone to her house on disclosure by Tanabai into following words-

"Bapu Bapu Lawkar chal my daughter-in-law is serious"

Accordingly, Pundlik went to the house of Tanabai and saw that Nanda was leaning and moaning on the ground and was giving hiccups. Tanabai prepared tea which was tried to be served to Nanda but she was unable to drink and therefore she was made to lie down in a room and she breathed Page 1570 her last in the house. Nothing has been brought on record to show that his version is inconsistent with the concomitant circumstances brought on record since he has also no axe to grind against the accused and his testimony has to be accepted as trustworthy.

19. What is more significant to note is that it is an admitted position that Nanda died inside the house of the accused. It also stands established from the evidence that Bhajandas was present inside the house. It also stands established that the accused returned to home on bicycle at about 9-00 p.m. and he was enraged because he was not served lunch on that day by his wife and he was required to work empty stomach for the whole day. It also stands established that the accused under that state of mind had delivered kick blow to his wife, she went inside the kitchen in order to serve the meal to her husband and her husband followed her. Thereafter she started leaning and moaning on the ground and died in a short while.

20. Since the death of Nanda was not natural, it was expected of the accused to go to the police station and furnish the information to show under which circumstances Nanda died inside the house. Non furnishing and non explanation by the accused as to how his wife died, goes a long way to show that he is the only person who is responsible for causing the death of his wife it is also interesting to note that the accused kept silent though he is the son of Ex-Police Patil and also did not care to take Nanda to the nearby hospital for giving medical treatment. The callousness shown by the accused while Nanda was leaning and moaning on the ground would clearly point towards his guilt and, therefore, the conduct of the accused completes the chain of circumstances and, as such, the learned Additional Sessions Judge was perfectly right in coming to the conclusion that the complicity of the accused in commission of this crime has been established. The learned Additional Sessions Judge has considered all aspects of the matter and has rightly recorded the finding that since the death was neither intended nor there was any knowledge which can be attributed to the accused that the bodily injuries would result into death, the offence would be squarely covered by Section 304 Part II of Indian Penal Code. This Court also on re-appreciation of evidence is of the view that no case has been made out for interference into the said finding of conviction and sentence.

21. The last but not the least submission of the learned Counsel for the accused that three children and old mother are dependent on the accused and, therefore, he should be released on execution of bond for good behaviour as per Section 4 of the Probation of Offenders Act, 1958 is concerned, the learned Additional Sessions Judge has also considered this aspect and recorded the finding that this is not a case wherein the accused can be granted the said benefit. It is obvious that here is the husband who had shown such callousness in not taking his wife to the hospital when he saw that the result of beating was leading to her death. In fact, Nanda started leaning and moaning on the ground because of the severe beating subjected to her at the hands of the accused and not informing the police about the unnatural death of his wife would show that he does not deserve to be released on execution of bond for good Page 1571 behaviour under the provisions of Probation of Offenders Act or under Section 360 of the Code of Criminal Procedure.

22. In that view of the matter, the impugned judgment and order of conviction is confirmed and the appeal stands dismissed. The accused is directed to surrender to his bail and appear before the learned Additional Sessions Judge on or before 18th March 2005 who shall commit him to the prison for undergoing the sentence. In the case the accused fails to surrender in time, the Additional Sessions Judge shall secure his presence through Superintendent of Police and thereafter commit him to jail for undergoing the sentence. The accused shall be entitled to set-off under Section 428 of the Code of Criminal Procedure.