Bhimrao Shripat Khandare vs State Of Maharashtra :
2010 Latest Caselaw 179 Bom

                                      1                                      APEAL305.05




                                                                              
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           APPELLATE SIDE




                                                      
                 CRIMINAL APPEAL NO.305 OF 2005




                                                     
    Bhimrao Shripat Khandare,

    Convict No.C-2466,




                                         
    Kolhapur Central Prison,

    Kalamba, Dist. Kolhapur.
                            ig                     : Appellant
                                                 (Orig.Accused)
          V/s.
                          
    State of Maharashtra                           : Respondent

                               ....
      


    Mrs.Sonia Miskin (appointed) for the appellant.
   



    Mr.H.J.Dhedia, Addl. Public Prosecutor for the State.

                               ....





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

                           Date of Reserving     ) : 18.11.2010





                           the Judgement.       )

                           Date of Pronouncing ) : 23.11.2010
                           the Judgement.      )


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

1. Heard the learned counsel for the appellant and the learned Addl.

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Public Prosecutor for the State.

2. This Criminal Appeal is preferred against the judgement and

order dated 19.12.2003 passed by the Addl. Sessions Judge in Sessions

Case No.1144 of 2000 whereby the appellant came to be convicted for the

offence punishable under section 302 of the Indian Penal Code and

sentenced to suffer R.I. for life and to pay a fine of Rs.3,000/-, in default

of payment of fine, to suffer further R.I. for one year. The appellant was

also convicted for the offence punishable under section 307 of the Indian

Penal Code and sentenced to suffer R.I. for seven years and to pay a fine

of Rs.1,000/-, in default thereof, to suffer further R.I. for six months.

Both the substantive sentences passed against the appellant were ordered

to run concurrently.

3. The prosecution case in a nut-shell is as follows:-

One Vijay Vishnu Maske, who was attached to Oshiwara police

station lodged a complaint with D.N.Nagar police station on 11.8.2000. It

was stated in the said complaint that on 11.8.2000 at about 9.25 a.m., he

and his colleague P.C. Pandurang Chimaji Darade were sitting in Swami

Samarth police chowkie of beat no.1. At about 1.30 p.m., one person

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came to the police chowkie, holding an axe soaked with blood, the clothes

of the said person were also stained with blood. (At that time, the said

person told the complainant and his colleague that he assaulted his wife

and daughter with an axe). The above bracketed portion has been deleted

while exhibiting the complaint being inadmissible in evidence. Hence,

the complainant asked the name of that person and the place where he

assaulted his wife and daughter. The said person told the complainant

that (he assaulted his wife and daughter at MHADA, Four Bungalow).

The above bracketed portion has been deleted while exhibiting the

complaint, being inadmissible in evidence. The said person has also

disclosed his name as Bhimrao Shripat Khandare and told them to

accompany him to the spot of the incident.

4. It is the case of the prosecution that the complainant and his

colleague took charge of the said person, closed the police out-post and

proceeded towards the spot of the incident in an autorickshaw. The said

person took the complainant and his colleague to bungalow no.167 where

a temporary shed of wooden plank was erected. The complainant saw a

girl aged about 12 years lying outside the room in an injured condition

and was screaming. The complainant also saw that one lady was lying on

the floor of the room and there was no movement. There was blood

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scattered near the face and legs of the said lady.

5. It is the case of the prosecution that the complainant handed over

the accused along with the axe to his colleague. Police constable Darade

took the injured girl to the hospital in an autorickshaw. On the way to

Cooper Hospital, the complainant made inquiries with the injured girl as

to how she had sustained the injury. The girl disclosed her name as Rama

and her mother's name as Lata and also disclosed the name of her father

as Bhimrao, the appellant. The said injured girl further told the

complainant that on 11.8.2000, her father i.e. the appellant had assaulted

her and her mother with an axe. The complainant admitted Rama to

Cooper Hospital for treatment and came back to the spot of the incident.

It is the case of the prosecution that P.S.I.Alka Deshmukh (P.W.8) then

attached to D.N. Nagar police station, who was present at the spot,

recorded the complaint of the complainant, P.C. Maske. The complainant

put his signature on the complaint. The Investigating Officer recorded the

complaint, which is at exh.8. PSI Alka Deshmukh received a telephone

call from the control room that in flat no.167, Sardar Vallabhbhai Patel

Nagar, MHADA, Andheri (West), one person assaulted his wife with an

axe and the said lady was lying in a pool of blood. After she received the

message, she along with a police constable and her Senior Police

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Inspector as well as other staff went to the spot. There was one room

made of wooden planks, having tin door which was open. They went

inside the room and saw one lady lying in a pool of blood. While they

were inspecting the spot, police constable Vijay Maske (P.W.1) attached

to Oshiwara police station also came there and told P.W.8 PSI Alka

Deshmukh the incident which was narrated to him by the appellant. P.W.

8 recorded the complaint of P.C. Maske (P.W.1) at the spot as per his say.

At that time, police constable Darade (P.W.2) also came there along with

the appellant. The complaint of the complainant i.e. exh.8 was treated as

F.I.R. and on the basis of the same, the Investigating Officer P.W.8 Alka

Deshmukh registered the crime under sections 302 and 307 of the I.P.C.

6. It is the case of the prosecution that the Investigating Officer

thereafter called one lady panch and one male panch at the spot and in

their presence she drew spot as well as inquest panchanama, obtained the

blood sample and seized the clothes of the deceased. The Investigating

Officer also recorded the statement of P.W.2 police constable Darade at

the spot.

7. It is the case of the prosecution that P.W.8 Alka Deshmukh seized

the axe from P.W.2 in the presence of panchas. The seizure panchanama

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is at (exh.12). The Investigating Officer collected blood sample of the

appellant. All the seized articles such as clothes of the deceased,

appellant, injured Rama, axe and blood samples were sent to the

Chemical Analyser under a forwarding letter. The C.A.'s report dated

7.8.2001 was received. P.W.9 Anil Bhise took over the investigation from

P.W.8 Alka Deshmukh. P.W.9 went to Cooper Hospital where the victim

Rama was admitted for treatment. The Doctor told him that he could

record the statement of injured Rama. P.W.9 obtained endorsement of the

Doctor that Rama was in a fit mental condition to give statement and

thereafter recorded her statement as per her say. P.W.9, the Investigating

Officer, on completion of the investigation submitted charge-sheet against

the appellant. The charge was framed against the appellant by the Court

of Sessions under sections 302 and 307 of the Indian Penal Code which

was explained and read over to the appellant in vernacular to which he

pleaded not guilty and claimed to be tried. The trial Court, by the

impugned judgement, convicted the appellant for both the offences, being

aggrieved by the same, the appellant filed the present Criminal Appeal.

8. The learned counsel for the appellant has contended that though

the prosecution has examined in all nine prosecution witnesses, P.W.1

police constable Vijay Maske and P.W.2 police constable Darade, P.W.8

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Alka Deshmukh and P.W.8 Anil Bhise are the police personnel. P.W.3 Ms

Sasikala and P.W.7 Ramesh were examined by the prosecution as panch

witnesses. P.W.4 Dr. Mahesh Lade was examined by the prosecution to

prove the injury certificate (exh.14) issued by him in respect of the

injuries sustained by the victim Rama, and P.W.5 Dr.Manik Sangle was

examined to prove the postmortem notes. The learned counsel for the

appellant has submitted that the entire prosecution case primarily is based

on the evidence of P.W.6 Rama, who at the relevant time was only 12

years old. It is contended that she being a minor, the possibility of

tutoring cannot be ruled out. It is contended that the appellant being the

step-father, Rama has falsely implicated him in the crime in question. On

the other hand, the defence taken by the appellant in his section 313

examination is not only probable, but is also rational which renders the

case of the prosecution improbable. It is contended that the defence taken

by the appellant is that he and the deceased came to their hut at about 1.00

p.m. on the date of the incident to take lunch. Since lunch was not ready,

he told his wife Lata to prepare the lunch and went out of the hut. It is the

defence of the appellant that when he came back after about 30 to 45

minutes, he saw his wife Lata and daughter Rama lying in a pool of blood

and, therefore, he rushed to the police chowkie to inform the matter to the

police. However, the police falsely implicated him in the crime in

8 APEAL305.05

question.

9. The learned counsel for the appellant has submitted that if the

appellant would have killed his wife and was the author of the injuries

sustained by Rama, in that event, he would have absconded and would

not have gone to the police chowkie to report the matter. The very fact

that he had gone to the police station clearly shows that the conduct of

the appellant was a normal human conduct and not the conduct of a guilty

man. It is, therefore, contended that the sole testimony of P.W.6 Rama is

not adequate enough to prove the charge of murder and attempt to murder

against the appellant beyond all reasonable doubt and, therefore, the

finding of conviction recorded by the trial Court is unsustainable in law

and liable to be quashed and set aside.

10. The learned Addl. Public Prosecutor has submitted that the

evidence of P.W.6 Rama who herself is a victim of assault is cogent,

trustworthy and reliable which is also corroborated by the medical

evidence of Dr.Maske and Dr.Manik Sangle coupled with the Chemical

Analyzer's report. It is contended that the brutality of the act of the

appellant can be seen from the injuries mentioned in the post-mortem

report as well as the injury certificate (exh.14) of Rama. It is, therefore,

9 APEAL305.05

contended that the evidence adduced by the prosecution proves the

charges against the appellant beyond all reasonable doubt and, therefore,

the impugned judgement is sustainable in law and the appeal is liable to

be dismissed.

11. We have given anxious thoughts to the various contentions

canvassed by the learned counsel for the respective parties and considered

the evidence adduced by the prosecution. It is no doubt true that the

prosecution has examined in all nine prosecution witnesses, however, the

case of the prosecution primarily depends upon the evidence of P.W.6

Rama, who is the injured witness and the daughter of the appellant.

Before we consider the evidence of Rama, we would like to express that it

is well-settled that the conviction can be based on the testimony of sole

eye-witness, provided the same is cogent, reliable, trustworthy and

inspires confidence and corroborated by other evidence. At the same

time, the Court has to consider the evidence of the witness who is a minor

with utmost care and caution and must find out whether the evidence

adduced by the prosecution has ruled out the possibility of tutoring. In

the back-drop of this legal position, we propose to scrutinize the evidence

of P.W.6 Rama.

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12. The evidence of Rama shows that before recording her evidence,

the trial Court has put some preliminary questions to this witness who

was about 13 years of age at the time of recording of the evidence in the

trial Court. The trial Court was satisfied that the witness was capable of

giving evidence and it was only thereafter, her evidence came to be

recorded by the trial Court. Rama in her examination-in-chief has

specifically stated that the appellant and her mother deceased Lata came

to their hut to take lunch at about 1.00 p.m. Rama had already cooked

rice. The appellant told Rama that he would not eat the rice cooked by

her since it was stale. Thereafter, Rama started preparing chapattis. At

that time, the appellant started assaulting deceased Lata. This witness

further sated in her examination-in-chief that before the appellant-accused

started assaulting her mother, deceased Lata, a scuffle took place in

between the appellant and the her mother Lata. The appellant assaulted

her mother with an axe which was in her hut. The appellant gave two to

three blows by means of the axe on the person of her mother Lata. This

witness has further stated that the appellant also assaulted her with the

same axe on her neck. The appellant gave three blows by the axe on left

side neck, left side shoulder and left arm. This witness has stated that due

to the assault, her mother Lata received bleeding injury and fell down on

the ground. She also sustained bleeding injury in the assault at the hand

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of the appellant and she also fell down on the ground.

13. It has come in the examination-in-chief of this witness that the

appellant changed clothes which had blood-stains on them and ran away

with the axe from the spot, leaving injured Rama and her mother,

deceased Lata, on the spot. It has come in the evidence of this witness

that the police along with the appellant came to the spot ten minutes

thereafter and took her to Cooper Hospital for treatment in an

autorickshaw. She was also admitted in the hospital for treatment. This

witness has identified the appellant in the Court. She has also identified

the axe in the Court and the clothes worn by the appellant at the time of

committing the assault. We have carefully considered the cross-

examination of this witness. It has come in her cross-examination that

she could identify the axe because there was an identification mark in the

form of triangle on the blade of the axe. The careful scrutiny of the cross-

examination of this witness shows that the defence could not extract any

material which would affect the veracity of this witness. There are no

omissions or contradictions in her testimony and the omission which is

brought on record in her police statement is only in respect of which

portion of the neck, shoulder and arm the injury was caused by the

appellant with the axe. The said omission, in our view, pertains only to

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the placement of the injury and not in respect of causing the injury by an

axe and, therefore, is not of a material nature and does not affect the

veracity of the testimony of this witness.

14. In the instant case, we cannot forget that P.W.6 Rama is the

victim of the assault and the deceased Lata was her mother. There is

nothing on record to show that the relations between her and the

appellant, who is her step-father, were either strained or not cordial.

There is absolutely northing on record to demonstrate why this witness

would allow the real culprit to go scot-free and falsely implicate her own

step-father in the crime in question. It is pertinent to note that she had

already lost her mother and by giving evidence against the appellant, she

knew that she also would lose the appellant, who is her step-father. The

testimony of this witness, who is the victim of assault, inspires confidence

in the Court about its authenticity and genuineness. The testimony of this

witness which is free from contradictions and omissions, in our view, is

completely trustworthy and wholly reliable.

15. It is necessary now to find out whether the evidence of P.W.6

Rama is corroborated by medical evidence as well as other evidence

adduced by the prosecution. Dr.Mahesh Lade (P.W.4) examined Rama

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and noticed the following injuries on her person:-

"(1) Contused Lacerated wound 3 cm. x 2 cm

x 1 cm left cervical region.

(2) Contused lacerated wound 5 cm x 1 cm x

1 cm on left shoulder."

According to the opinion of the Doctor, both the injuries were grievous in

nature. The Doctor has issued Injury Certificate (exh.14) in this regard.

It has come in the evidence of Dr.Mahesh Lade that injuries nos.1 and 2

mentioned in the Injury Certificate (exh.14) could be caused by article no.

1 axe. Dr.Sangle (P.W.5) who has conducted the post-mortem

examination on the dead-body of Lata found the following external

injuries:-

"1. Transversely placed incised wound of 6

cm. x 2 cm x Vertebra deep on nape of

neck, 1.5 cm. below, external occipital

protrubeance.

2. Transversely placed incised wound of 8

cm x 3 cm x Vertebra deep on nape of

neck, 1.5 cm below above mentioned

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injury.

3. Transversely placed incised penetrating

wound of 2.5 cms. X 1 cm, on left neck,

3.5 cms. below angle, left mandible. On

dissection cartroid artery under-neath

clean cut blood vessels underneath clean

cut."

Dr.Sangle has stated in his testimony that the external injuries suffered by

the deceased were ante-mortem and opined that the cause of death was

due to haemorrhagic shock due to sharp weapon injury. The Doctor has

also opined that the said injuries could be caused by a sharp-edged

weapon like axe (article 1). The defence could not extract anything in the

cross-examination of both these Doctors to discredit their evidence. The

evidence of both these Doctors completely corroborates all the material

particulars of the prosecution case disclosed by P.W.6 Rama. Deceased

Lata suffered three incised wounds on the vital part of her body and as per

the opinion of the Doctor, the said injuries could have been caused by an

axe (art. 1). Similarly, the evidence of Dr. Mahesh Lade shows that Rama

(P.W.6) has also sustained grievous injuries. The medical evidence, in our

view, is wholly onsistent with the material particulars of the prosecution

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case as disclosed by P.W.6 in her substantive evidence.

16. In the instant case, the deceased was having blood of `A' group,

P.W.6 Rama's blood group is `O' and the appellant's blood group is `B'. It

is not in dispute that as per the Chemical Analyser's report, the blood

found on the clothes of the appellant was `A' and `O' groups. This again

is an incriminating circumstance which connects the appellant with the

crime in question and corroborates the case of the prosecution disclosed

by P.W.6 Rama.

17. In the instant case, the counsel for the defence has contended that

the conduct of the appellant in going to the police chowkie is consistent

with the innocence and it is not the conduct of a guilty person is

concerned, this aspect will have to be considered in the context of the

defence taken by the appellant. The defence of the appellant is that he and

his wife Lata came to the hut at 1.00 p.m. on the date of the incident to

take lunch, since lunch was not ready, he told his wife Lata to prepare the

same and went out of the hut. When he came back to the hut after 30 to

45 minutes, he saw his wife and Rama lying in a pool of blood and,

therefore, he went to the police chowkie to report the matter. It is

pertinent to note that the appellant and his wife were staying in the hut and

16 APEAL305.05

doing labour work. There is nothing on record to show that either the

appellant or the deceased Lata had enmity with anybody. The incident

had taken place in broad day light at 1.00 p.m. Looking to the financial

condition of the appellant and his family, it is difficult even to imagine

that somebody would have come to rob them and even if it is presumed

that somebody had come to commit theft, there is no reason for him to

commit murder of Lata and cause grievous injuries to Rama. It is difficult

to presume as to why P.W. 6 Rama would allow the real culprit to go scot-

free and falsely implicate the appellant without any rhyme or reason in the

crime in question. Considering these aspects in totality, the defence raised

by the appellant, in our view, is improbable and does not affect the case of

the prosecution.

18. For the reasons stated hereinabove, the Criminal Appeal suffers

from lack of merits and the same is dismissed.

(D.D. SINHA, J.)

(SMT.V.K.TAHILRAMANI, J.)