Shri Ramesh Tarachand Dhelwan vs The State Of Maharashtra :
2010 Latest Caselaw 239 Bom

                                       1                                  APEAL308.05



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                        APPELLATE SIDE

                    CRIMINAL APPEAL NO.308 OF 2005




                                                    
    Shri Ramesh Tarachand Dhelwan,
    Age 35 years, Occu-Service,
    Residing at House No.10, first floor,




                                                   
    Coach House, Kamate Road,
    Cantonment Lashkar,
    PUNE--411 001
    (presently undergoing sentence




                                            
    in Central Prison, Yerawada, Pune--6.                  : Appellant

            V/s.
                          
    The State of Maharashtra                              : Respondent
                         
                            ....

    Mr.Arfan Sait (appointed) for the appellant.
      

    Mrs.A.S.Pai, Addl. Public Prosecutor for the State.
                            ....
   



                               CORAM : D.D. SINHA AND
                                       SMT.V.K.TAHILRAMANI, JJ.





                              Date of Reserving    ) : 24.11.2010.
                              the Judgement.       )

                              Date of Pronouncing ) : 02.12.2010.
                              the Judgement.      )





    JUDGEMENT (Per D.D.Sinha, J.)

Heard the learned counsel for the appellant and the learned

Addl. Public Prosecutor for the State.

2 APEAL308.05

2. This Criminal Appeal has been preferred by the appellant against

the judgement and order dated 17.4.2003 passed by the III Ad-hoc Addl.

District & Sessions Judge, Pune, whereby the appellant was convicted for

the offence punishable under section 302 of the Indian Penal Code and

sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/-,

in default of payment of fine, to suffer R.I. for six months.

3.

The circumstances which have given rise to the prosecution of

the appellant in a nut-shell are as follows:-

The appellant, at the relevant time, was residing in chawl no.1 of

Kamble Coach in house no.10 at Camp. The appellant was residing with

his wife Vimal, father, mother, two daughters and a son. Rohini (P.W.1) is

the daughter of the appellant and, at the relevant time, was seven years of

age. On the date of the incident at about 10 a.m., the appellant asked

deceased Vimal to prepare breakfast for him. However, she refused to

provide him breakfast. There were hot exchange of words between them.

The appellant got annoyed, picked up a smashing stone (patta) and

assaulted his wife deceased Vimal with the said stone on her head. Rohini

who was present in the house witnessed the incident and shouted loudly

for help. The persons residing in the neighborhood such as Kailas (P.W.

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2), Rakesh (P.W.3) and Geeta (P.W.8) rushed to the house of the appellant

and questioned him about the incident. It is the case of the prosecution

that the appellant confessed before them that since his wife refused to

provide him breakfast, he lost his temper and assaulted her with the

smashing stone on her head. All these witnesses saw the wife of the

appellant who was lying in a pool of blood. Witness Kailash rushed to

Parekh Hospital to call the mother of the appellant. On arrival of the

mother of the appellant, Vimal was removed by them to Sasoon Hospital,

Pune.

4. It is the case of the prosecution that on 14.9.2001 between 9.00

a.m. and 9.00 p.m., police constable Ms Sunita Jagtap was on duty at

Sasoon Hospital. She gave intimation to the police station at about 11.00

a.m. that Vimal, the wife of the appellant, was admitted in Sasoon

Hospital. Entry was made in the admission register maintained at the

hospital. The said intimation was received by PSI Ms Deepali Ghadge

attached to Central Street Police Chowky at about 12.20 p.m. After

receipt of the intimation, PSI Ms Deepali Ghadge immediately proceeded

to Sasoon Hospital. She made inquiries with the Medical Officer

attending the patient. The Medical Officer informed her that the patient

was not in a position to give statement. Based on the information given

4 APEAL308.05

by the appellant, crime was registered for the offence punishable under

section 307 of the Indian Penal Code. Thereafter, the appellant was

arrested. The clothes of the appellant were seized in the presence of

panchas. The Investigating Officer drawn spot panchanama and seized

the articles which were stained with blood. The statement of witnesses

were recorded. On receiving the information regarding the death of

Vimal from Sasoon Hospital, an offence was registered under section 302

of the Indian Penal Code. The articles were forwarded to the Chemical

Analyser for the purpose of analysis. On receipt of the Chemical

Analyser's report and on completion of the investigation, charge-sheet

was filed in the Court of the Judicial Magistrate, First Class, who

committed the case to the Court of Sessions and charge under section 302

of the Indian Penal Code was framed against the appellant which was

explained and read over to him. The appellant pleaded not guilty and

claimed to be tried. However, from the tenor of the cross-examination of

the witnesses conducted by the defence, the defence of the appellant was

that the death of his wife Vimal was an accidental one and he was

suffering from lunacy.

5. The counsel for the appellant has submitted that the prosecution

has examined in all 14 witnesses to bring home the guilt of the appellant

5 APEAL308.05

for the offence of murder. However, P.W.1 Rohini is the only eye-witness

to the incident examined by the prosecution. It is submitted that the

evidence of P.W.2 Kailash, P.W.3 Rakesh and P.W.8 Geeta (neighbours of

the appellant) does not carry much importance as they had not witnessed

the incident and reached the spot of the incident only after the incident of

assault had taken place. The counsel for the appellant has submitted that

Rohini, although initially supported the prosecution case in her

examination-in-chief, however, the admission given by her in her cross-

examination adversely affects the veracity of the testimony of this

witness. It is further submitted that P.W.1 Rohini being a child witness,

her evidence needs to be appreciated with great care and caution. The

counsel for the appellant has further contended that the evidence of P.Ws.

2 and 3 is also not consistent with the material particulars of the

prosecution case as well as the testimony of P.W.1 Rohini. Similarly, the

evidence of P.W.8 Geeta is also inconsistent with the evidence adduced of

the other prosecution witnesses. It is contended that deceased Vimal was

taken to Sasoon Hospital by P.Ws.1, 2 and 3, they admitted her in the

hospital and at that time, one of them may have informed the Doctor

about the history of the patient. However, Dr.Prakashchand Raidasani in

his evidence has stated that deceased Vimal was brought to the hospital by

her husband, he examined the patient, the history of the patient was

6 APEAL308.05

narrated by her husband, the present appellant, who informed the Doctor

that the injury sustained by the deceased on her head was caused by fall

of a smashing stone from niche on her head. The learned counsel for the

appellant has submitted that these prosecution witnesses at the time of

admission of the deceased in the hospital informed the Doctor that the

injury sustained by the deceased was caused by the stone which fell on

her head from niche which renders the evidence of extra-judicial

confession untrustworthy.

6. The counsel for the appellant has submitted that the prosecution

has not recorded the statement of the appellant before the Magistrate

under section 164 of the Cr.P.C. and in the absence thereof, inculpatory

statement made by the appellant which was reduced in writing and was

treated to be the First Information Report is hit by the provisions of

section 25 of the Indian Evidence Act and is inadmissible in law.

Similarly, the extra-judicial confession alleged to have been made by the

appellant to P.Ws.2 and 3 is also a weak piece of evidence and without

corroboration cannot be relied upon.

7. The counsel for the appellant has further submitted that the

evidence of D.W.1 Kalpana (mother of the appellant) and D.W.2 Farjana,

7 APEAL308.05

the sister of the appellant, would show that the appellant was in the habit

of picking up quarrels with his neighbours because of his violent behviour

and, therefore, their relations with the appellant were not cordial. It is

submitted that in such a situation, it is unlikely that the appellant would

confess the guilt by making extra-judicial confession to P.Ws.2 and 3.

8. The learned counsel for the appellant further contended that the

appellant was an alcoholic and used to get withdrawal symptoms as and

when he used to stop drinking. It is further contended that because of the

excessive consumption of alcohol, the psyche of the appellant was not

normal and, therefore, at times, his behaviour used to be violent and

abnormal. D.W.3 Dr. Kishor Kale has thrown some light on these

aspects. It is contended that taking into consideration the psyche of the

appellant, even if it is presumed for the sake of argument, that the

prosecution has succeeded in proving the fact that he was the author of

the injury sustained by deceased Vimal even then, considering the mental

condition of the appellant, at the relevant time, the act of the appellant

could not be punishable under section 302 of the Indian Penal Code, but

under section 304 Part I. The learned counsel for the appellant, therefore,

submitted that the finding of conviction recorded by the trial Court for the

offence punishable under section 302, is unsustainable in law and liable to

8 APEAL308.05

be quashed and set aside.

9. The learned Addl. Public Prosecutor, on the other hand, has

supported the impugned judgement and order of the trial Court. It is

contended that the evidence of the sole eye-witness Rohini (P.W.1) is

truthful and trustworthy and is corroborated by the evidence of P.W.2

Kailash and P.W.3 Raskesh to whom extra-judicial confession is made by

the appellant and the evidence of these witnesses has been completely

corroborated by the medical evidence. The prosecution has examined

P.W.4 Dr.Shrikant Chandekar, who had conducted the post-mortem

examination on the dead-body of the deceased. Similarly, the evidence of

Dr.Prakashchand Raidasani (P.W.10) who had examined the deceased

when she was admitted in the hospital and evidence of Dr.Harshad

Rajekar (P.W.11) corroborated all the material particulars of the

prosecution case. Looking to the injuries caused by the appellant on the

person of the deceased Vimal, the trial Court was justified to hold that the

offence committed by the appellant was murder and was punishable under

section 302 of the Indian Penal Code.

10. Considered the contentions canvassed by the learned counsel for

the respective parties and scrutinised the prosecution case. It is very

9 APEAL308.05

unfortunate that the girl of seven years of age who had lost her mother

was required to give evidence in the Court of law against her own father.

The prosecution had examined a number of witnesses, however, the case

of the prosecution primarily depends upon the evidence of P.W.1 Rohini,

the eye-witness to the incident, P.W.2 Kailash and P.W.3 Rakesh, to whom

extra-judicial confession was made by the appellant and the medical

evidence.

11. P.W.1 Rohini, at the time of recording of her evidence was seven

years of age and, therefore, before recording her evidence, the Court has

asked questions to her and after getting satisfied that Rohini had the

capacity to understand those questions and to answer them, her evidence

came to be recorded by the trial Court. It is well-settled that evidence of a

child witness can very well be accepted provided it is truthful, trustworthy

and inspires confidence and the prosecution has ruled out the possibility

of tutoring. It is true that the evidence of a child witness needs to be

appreciated by the Court with great care and caution. In view of this

legal position, we propose to scrutinise the evidence of Rohini (P.W.1).

12. P.W.1 Rohini in her examination-in-chief has stated that at the

time of the incident, she, her mother deceased Vimal and her father, the

10 APEAL308.05

appellant, were the only persons present at home. The incident had

occurred in the morning. Her mother was sleeping in the house at the

time of the incident. While her mother was asleep, the appellant picked

up a stone and assaulted deceased Vimal with it on her head. She has

further stated that the stone with which her mother was assaulted is used

for grinding spices, etc. It has come in her testimony that prior to the

incident, there used to be quarrels between her father and mother. This

witness has identified the stone (article nos.1 & 2) as well as the clothes

of the appellant (article nos.3, 4 and 5). It is important to note that Rohini

at the time of recording of her evidence was a child of seven years of age.

However, on the material particulars stated by her pertaining to the assault

committed by the appellant with the smashing stone on the head of her

mother Vimal, the defence could not elucidate any omission or

contradiction in her cross-examination in this regard. It is no doubt true

that in her cross-examination, there is a passing remark made by her

regarding the falling of stone from the niche on the head of her mother.

However, this solitary passing remark is not adequate enough to discard

her substantive evidence pertaining to the material particulars of the

assault since it is consistent with the case of the prosecution. Similarly,

Dr.Shrikant (P.W.4) in his evidence has clearly stated that the injuries

sustained by the deceased were on the face, head and chest of the

11 APEAL308.05

deceased. As per the opinion of the Doctor, the injuries mentioned in

column 17 were spread over different parts of the body of the deceased

and such injuries can be caused when there is multiple impact. It is,

therefore, evident that the medical evidence completely rules out the

possibility of causing of injuries by falling of the stone from the niche.

13. It is the case of the prosecution that the appellant made extra-

judicial confession to P.W.Kailash, P.W.3 Rakesh in the presence of P.W.8

Geeta. Therefore, it will be appropriate to consider the evidence of these

witnesses. P.W.2 Kailash (landlord of the appellant) stated in his

examination-in-chief that when this witness questioned the appellant

about the incident, the appellant informed him that since his wife refused

to give him breakfast, he has assaulted her by smashing stone on her head

and she was lying in the kitchen room of his house. Similarly, P.W.3

Rakesh has stated in his examination-in-chief that when he asked the

appellant as to what had happened, the appellant informed that since his

wife refused to give him breakfast, he assaulted her by stone on her head.

The testimony of both these witnesses shows that they have mentioned

the presence of each other at the relevant time on the spot of the incident.

The prosecution evidence on record also demonstrates that P.W.2 Kailash,

P.W.3 Rakesh and others had taken deceased Vimal to Sasoon Hospital by

12 APEAL308.05

an auto-rickshaw and admitted her in the said hospital. The defence could

not elucidate any material in the cross-examination of these witnesses

which would affect the veracity of the testimony of these witnesses.

14. It is well-settled that confession, voluntarily and truthfully made,

is an effective proof of the guilt. If the confession is believed by the

Court to be truthful, the same can safely be accepted and in a given case

without any corroboration. However, the rule of prudence requires the

Court to seek corroboration from independent evidence. In the instant

case, the evidence of P.W.2 Kailash and P.W.3 Rakesh to whom the

appellant has made the extra-judicial confession, in our view, clearly

demonstrates that the confession made by the appellant was voluntary and

the appellant in unequivocal terms admitted the commission of the crime,

apart from the fact that it was made voluntarily and was truthful. In the

instant case, the evidence of extra-judicial confession is corroborated by

the medical evidence of P.W.4 Dr.Shrikant as well as Rohini, the sole eye-

witness to the incident.

15. In the instant case, Dr.Shrikant (P.W.4) has conducted the post-

mortem examination on the dead-body of deceased Vimal and found the

following external injuries:-

13 APEAL308.05

"1. Injection marks at both wrist regions, dorsally.

2. Abrasions over left foream, medially U/3 1x2 cm and M/3 1.5 x 7 cm. Vertical. Right elbow 0.5x2 cm. Right forearm M/3 0.5 x 0.3 cm in number.

Left knee Inferolaterally 0.5 x 1 cm. Left mid cheek 0.5 x 0.8 cm. Two in number. 3 cm behind lateral end of left eyebrow, 1.5 x 3 cm, 4 cms above left mid eyebrow 2 x 1 cm, Upper mid nape verticle 0.3 x 1 cm.

3.

Contusions over, left forearm, flexer aspect, M/36 3 to 4 x 8 cm, Left side of face posteriorly 3 to 5 x 12 cm. Below right eye 1.5 x 3 cm, transverse, right

cheek 3 x 4 cm.

4. Lacerated wounds over lower lip nucossally just right of middle 0.5 x 0.5 cm muscle deep with

contusion 1 x 1.5 cm surrounding left mid upper lip 0.2 x 0.5 cm. at mucocutaneous junction, with

contusion around 1 cm x 1 cm, 4.5 cm above lateral end of left eyebrow 3 x 2.8 cm irregular bone deep, 4 cm above left mid eyebrow 0.3 x 0.6 cm. bone deep, 5 cm above left year top 0.5 x 2 cms x 6 cms

bone deep, 3 cm above right mid eyebrow, 0.3 x 1 cm verticle oblique skin deep, with abrasion around 6 cm above lateral end of right eyebrow, saggital oblique 0.2 x 2.5 cm muscle deep, left mid cheek 0.2 x 0.2 cm, skin deep."

It has come in the evidence of Dr.Shrikant that the probable cause of

death was due to external and internal injuries sustained by the deceased

on her face and head which were sufficient in the ordinary course of

nature to cause death. Dr.Shrikant has specifically stated in his testimony

14 APEAL308.05

that the type of injuries found on different parts of the body of the

deceased can be caused by multiple impact which, in our view, not only

rules out the possibility of the injuries being caused by the fall of the

stone from the niche, but it corroborates the material particulars of the

prosecution case disclosed by P.W.1 as well as the extra-judicial

confessions made to P.Ws.2 and 3. P.W.11 Dr.Harshad Rajekar had

examined deceased Vimal immediately after she was admitted in the

hospital. Dr.Harshad Rajekar on examination of the deceased noticed

multiple head injuries with an underlying skull fracture and also noticed

that the brain-matter was protruding out of the head injuries. The Doctor

has also noticed contused lacerated wounds of about 6 x 3 x 3 cm. on left

parietal temporal region, with an underline communicated skull fracture.

In cross-examination, Dr.Harshad Rajekar has specifically stated that if

the article like smashing stone falls from the height of four-and-a-half

feet, then injury on only one side may be possible. It clearly shows that

the multiple injuries sustained by the deceased could not be caused by the

single fall of smashing stone from the niche. Insofar the evidence of

D.W.3 Dr.Kishor Kale is concerned, it shows that the appellant Ramesh

was not suffering from schizophrenia and was only addicted to alcohol.

In cross-examination, Dr.Kishor Kale has admitted that alcoholism is

different from schizophrenia. The evidence of the Medical Officer shows

15 APEAL308.05

that the appellant was not suffering from schizophrenia, however, was

addicted to alcohol and was also treated for this addiction. The evidence

of Dr.Kishor does not affect the evidence of the prosecution witnesses nor

does it improve the case of the defence.

16. In the instant case, the defence has examined three defence

witnesses (D.W.1 Kalpana, D.W.2 Farjana and D.W.4 Dipak Chavan).

However, their evidence, in our view, also does not affect the veracity of

the testimony of the prosecution witnesses.

17. In the instant case, the above referred prosecution evidence is

independently sufficient to bring home the guilt of the appellant without

placing reliance on the inculpatory statement made by the appellant

which was treated as the First Information Report. Since the prosecution

without taking any support of the inculpatory statement made by the

appellant proved the charge against the appellant beyond all reasonable

doubt by adducing independent evidence, it is not necessary to deliberate

on the issue whether the said statement made by the appellant was hit by

the provisions of section 25 of the Indian Evidence Act and, therefore,

was inadmissible in evidence.

16 APEAL308.05

18. In our view, the prosecution has established that the appellant

caused multiple injuries on the vital parts of the body such as face, head

and chest with such a force that they were sufficient, in the ordinary

course of nature, to cause death. It is, in these circumstances, that the

trial Court was justified in convicting the appellant for the offence of

murder, punishable under section 302 of the Indian Penal Code. The

contention canvassed by the learned counsel for the appellant is devoid of

substance and, therefore, rejected. The prosecution, in our view, has

succeeded in bringing home the guilt of the appellant for the offence of

murder beyond all reasonable doubt and, therefore, the findings of

conviction and sentence recorded by the trial Court for the offence

punishable under section 302 of the Indian Penal Code are just and proper

and, therefore, maintainable in law.

19. In the result, the Criminal Appeal fails and is dismissed.

(D. D. SINHA, J.)

(V.K.TAHILRAMANI,J.)