At Present In Jail vs The State Of Maharashtra
2011 Latest Caselaw 185 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           BENCH AT AURANGABAD




                                                 
                     CRIMINAL APPEAL NO. 353 OF 2010




                                                
     Achut s/o Narayan Shinde,
     Age 52 years, Occ. Agriculture,
     R/o. Limbla, Tq. Purna,
     District Parbhani




                                      
     At present in jail                                   ...Appellant

           Versus
                      
     The State of Maharashtra
     Through the Police Station,
                     
     Tadkalas, Tq. Purna
     District Parbhani                                    ...Respondent

                                       .....
      

     Mr. M.P. Kale, advocate for the appellant
     Mr. D.V. Tele, APP for respondent-State
   



                                       .....

                                             CORAM : S. B. DESHMUKH AND
                                                     A.M. THIPSAY, JJ.

DATED : 08TH DECEMBER, 2011

JUDGMENT (PER A.M. THIPSAY, J.) :-

1. The appellant was the accused in Sessions Case No. 4 of

2010, in the Court of Sessions at Parbhani. The allegation against

him was that he had killed his wife. The learned Additonal Sessions

Judge, Parbhani, after holding trial, held the appellant guilty of an

offence punishable under Section 302 of I.P.C. and sentenced him to

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suffer imprisonment for life and also to pay a fine of Rs.1000/-. The

appellant, being aggrieved by the judgment of conviction and the

sentence imposed upon him, has approached this Court by filing the

present appeal.

2. We have heard Mr. M.P. Kale, the learned advocate for the

appellant and Mr. D.V. Tele, the learned Additonal Public Prospector

for the respondent-State. We have been taken through the entire

evidence and other relevant record. We have gone through the

impugned judgment and order.

3. The prosecution case, as was before the trial court, may be

stated in brief, as follows;-

The appellant, (hereinafter referred to as "the accused"), was

married to Meena. They had a daughter-Swati-and a son-Govind-

born out of the said wedlock. Swati had married prior to the date of

incident in question. The accused was residing with his wife Meena

and son Govind (P.W.2) at village Limbla. However, some quarrels

took place between the accused and his brother. At the instance of the

son of the brother of the accused, a criminal case came to be

registered against the accused, who was arrested in that case and had

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to remain in custody for some time. After the accused was released

on bail in that case, he, alongwith with Meena and Govind, went to

reside in the house of maternal uncle of Meena viz. Vitthal Ambhore

(P.W.7), at Tadkalas. The accused was reluctant to go his house at

village Limbla, as he was afraid of the possibility of his brother

assaulting him in retaliation. Meena had been telling the accused that

they should go to their own village and cultivate their land, but the

accused did not accept such suggestions; and on one occasion, out of

anger, caused due to such persistent suggestions, the accused had

abused Meena and had pressed her throat.

On 19.10.2009, which was a Bhaubeej day, the accused,

Govind and Meena had dinner at the residence of Meena's brother

Vilas Chandane. After taking dinner, they returned to the house of

Vitthal Ambhore.

In the night, Govind and Meena slept on the mattress and

accused was sleeping on the cot in the sitting room of Vitthal

Ambhore's house.

At about 1.00 a.m., Govind heard some noise coming from the

throat of Meena and woke up. He noticed that Meena was bleeding

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from her nose, ear and mouth. Govind saw the accused running out of

the room from the door. Govind (P.W.2) followed him, but the accused

had already left. Govind also noticed a stone lying by the side of

Meena's head. Govind immediately went to the first floor of the same

house, where Vitthal Ambhore (P.W.7) was sleeping and told him that

the accused had beaten Meena with a stone. Govind, Vitthal Ambhore

and Rukhmini Ambhore (P.W.3), wife of Vitthal Ambhore, came down.

Vitthal Ambhore took Meena to the Public Health Center, in a jeep.

Meena died at about 2.00 a.m.

On the next day, at about 7.00 a.m. Govind lodged a report of

the incident at Tadkalas police station, which was treated as F.I.R.

(Exh.13).

The accused was arrested at about 9.00 a.m. on 21.10.2009.

A.P.I. Khushal Shinde (P.W.10), who had registered the crime,

continued further investigation. He drew inquest panchnama in

respect of dead body (Exh.26). He also went to the spot and drew

spot panchnama (Exh.24) in the presence of 2 panchas, one of whom

was Sham Ambhore (P.W.9). The articles, which had taken charge of

in the course of investigation, were sent to Chemical Analyzer for

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examination and report. They included the clothes of the accused,

clothes of the deceased and the stone, with which Meena had been

hit, as also the mattress, pillow and bed sheet, that had been seized

from the spot.

During the trial, the prosecution examined totally 10 witnesses,

some of whom have been referred to earlier. The remaining are

Kalyan Kadam (P.W.1), the Medical Officer who had conducted post

mortem examination on the dead body, Tulshidas Deshmukh (P.W.4),

Police Head Constable, who had carried Muddemal property to the

Chemical Analyzer, Gangadhar Shringare (P.W.5), brother of the

husband of daughter of the accused and Meena, Fulabai Gumbare

(PW.6), aunt of the deceased, Abasaheb Sonwane (P.W.8), a panch in

respect of the disclosure statement, allegedly made by the accused,

leading to the discovery of the spot from where the stone used as the

weapon of assault, had been removed.

4. It is contended by Mr. Kale, the learned advocate for the

accused, that the case was based only on circumstantial evidence and

that such circumstantial evidence was not sufficient to establish the

guilt of the accused. According to him, there was no eye witness to the

incident. It is also submitted that there is no material on record to

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show that relations between the accused and Meena were strained;

and that, there was no reason for the accused to have committed the

murder of Meena. It is also contended that there was no satisfactorily

evidence about the time of death and that the F.I.R. was belatedly

lodged. It was contended that the stone that was alleged to have been

used in the commission of offence, is weighing more than 35 kilograms

and if indeed, that was the weapon used for the assault, the injury

would have been 'crush injury' and not the injuries as had been

sustained by Meena. It is contended that the evidence of the

'discovery of the spot' from where the stone was removed, is not

admissible under the provisions of Section 27 of the Evidence Act. It

was submitted that, in the circumstances, the possibility of someone

else having entered inside the room, where the accused, deceased

and Govind were sleeping and having murdered Meena, cannot be

ruled out. Lastly, it was submitted that assuming that the accused had

assaulted Meena by the such a stone, there being no intention or

knowledge requisite for constituting the offence of murder, the accused

may be convicted only of an offence punishable under Section 304 of

I.P.C. and the sentence awarded to him be reduced.

5. We have considered all the contentions advanced by the

learned advocate for the accused.

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6. To begin with, we may observe, that, the claim that there is no

eye witness to the incident is rather misleading. In our opinion, Govind

(P.W.2) is to be treated as an eye witness, though he had not seen the

accused while putting or throwing the stone on the head of Meena.

The evidence of Govind is very clear on the aspect that he heard some

noise coming from the throat of his mother, who was sleeping by his

side and therefore, woke up and that at that time he saw the accused

going out of said room. Govind also noticed that the stone was lying

by the side of the head of Meena and that Meena was bleeding from

her nose, ear and mouth. Govind immediately went up to Vitthal

Ambhore and apprised him of the incident.

7. The Evidence of Rukhmini (P.W.3) and Vitthal Ambhore (P.W.

7) fully corroborates the version of Govind. It shows that Govind had,

in the night, come to them and had woken them up. That, Govind at

that time told these two witnesses that his father had beat his mother

and that a stone had been lying near her head. The evidence of these

witnesses further shows that they came down and found that

Meenabai was lying on the mattress and blood was oozing from her

nose, ear and mouth. These witnesses also noticed blood on the

mattress.

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8. In the cross examination of Govind, nothing which would

discredit his version, which is sufficiently corroborated by the evidence

of Rukhminibai and Vitthal Ambhore, has been brought on record. In

our opinion, his evidence on the point of he having seen the accused

going out of the room can be safely accepted as true and reliable for a

number of reasons. First of all, he has immediately disclosed this fact

to Vitthal Ambhore (P.W.7) and Rukhminibai (P.W.3). Secondly, there

is no suggestion that he had any grudge or ill feeling towards his

father. On the contrary, in the cross examination, he has admitted that

since his childhood he used to sleep with his father till they started

staying at Tadkalas. He also admitted that on the date of the

incident, there was no quarrel and that they (he, his mother and father-

accused) were happy. Thus, Govind does not seem to be interested

at all, in falsely implicating the accused. Even otherwise, his evidence

appears to be coherent and in consonance with rest of the evidence.

His presence on the spot at the time of the incident cannot be doubted

at all. Considering all these aspects, we do not see any reason to

disbelieve him when he says that he woke up on hearing the noise

coming from the throat of his mother, saw her injured and also saw the

accused going out of the room from the door. Undoubtedly, Govind

had not seen the accused actually throwing or placing the stone on the

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head of Meena, but what was seen by him with his own eyes, can not

be interpreted in any manner, except that the accused had assaulted

Meena and was seen while going away from the place of offence.

9. In the context of the reliability of the evidence of Govind, what

needs to be further observed, is that had he desired to implicate the

accused falsely, he could have very well said that he saw the accused

throwing stone on the head of his mother. That he does not state so,

adds to the credibility of Govind as a witness.

10. Even the evidence of Rukhminibai and Vitthal is truthful and

reliable. The same is consistent with the rest of the circumstances that

are satisfactorily proved. These witnesses do not seem to be eager or

keen in implicating the accused. It may be observed that had there

been an intention to falsely implicate the accused, it was easy for

Vitthal (P.W.7) to have introduced the theory of dying declaration

made by Meenabai to him while she was being taken to hospital.

Thus, in our opinion, their evidence can be safely accepted. It

corroborates, very firmly, the evidence of Govind.

11. We may now examine the other evidence. That Meena died a

homicidal death, cannot be doubted or disputed. As a matter of fact, it

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has not been disputed. The evidence of Dr. Kalyan Kadam (P.W.1)

shows that in the post mortem examination, he found following

external injuries on the dead body of Meena ;-

i) Contused lacerated wound left parietal region 4 x 2 x 1 cms.

Directing inwards.

ii) Contused abrasion 1 x 1 over left angle of mandible.

He found following internal injuries ;-

i) Depressed fracture of skull left parietal region directing

inwards with epidural hemorrhage

Brain: Meningel tear over left parietal lobe with hematoma 4x3 cms.

He opined the cause of death as "Due to head injury". The

evidence of this witness is corroborated by the notes of post mortem

examination (Exh.11) and we find no reason to reject the same.

12. An attempt was made to show that type of injury as had been

sustained by Meena could not have been possible by the stone (Article

3), as it was a big and heavy stone. However, the suggestion to that

effect has been denied by this witness. Since the contention that the

injury which Meena would have sustained, would have been much

more severe, if the weapon was the said stone, has been advanced

before us, we have considered the same, and we are unable to accept

this. Though the stone is heavy, what type of injury would be caused

by using it would depend on several factors including distance from

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which and the manner in which it was thrown or placed, or put over the

head; and how much part of that came in contact with the head of the

deceased, etc. Thus, causing of the injury in question by use of the

said stone, cannot certainly be ruled out. When, that there were marks

of blood on the stone, that it was lying by the side of the head of the

deceased, is clear, there is no substance in the contention that the

said stone could not be the weapon of assault.

13.

The evidence of Tulshidas Deshmukh (P.W.4), a police head

constable, shows that Muddemal property in crime No.72 of 2009 was

carried by this witness to the Forensic Science Laboratory,

Aurangabad. There is nothing in his cross examination, which would

make us doubt his claim, which is supported by the communication

(Exh.16) made by the A.P.I., Tadkalas police station to the Director of

the Forensic Science Laboratory, Aurangabad.

14. The evidence of Gandadhar Shringare (P.W.5), who is the

brother-in-law of Swati, the married daughter of the accused and the

deceased, is not very relevant in the context of the allegations against

the accused. Apparently, through this witness, what was intended to

be established, was only that the accused had stayed with his

daughter and son-in-law at Takalgaon for about 7/8 days and

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thereafter he had gone to Tadkalas.

15. The evidence of Fulabai (P.W.6), who is a sister of Meena's

mother, shows that the accused and Meena had, for some time,

stayed at the residence of this witness also. Apparently, this witness

was examined to show that the accused had a motive for killing Meena

and that Meena was insisting that they would go to their own village for

cultivating their land. This witness claims that the accused had

threatened Meena in presence of this witness that if Meena would

insist on going to their village, he would kill Meena. In our opinion, in

the anxiety felt for ascertaining and projecting the motive behind the

offence committed by the accused, this evidence has been adduced

and though there is no reason to discard what this witness says, it

does not appear to be very material to us.

16. The evidence of Abasaheb Sonwane (P.W.8), a panch, is to the

effect that, in his presence, the accused made certain statements,

pursuant to which, the witness and the police party were led to the

place, from where the stone, which was the weapon of offence, was

collected. We are in agreement with the contention of the learned

advocate for the accused that, the statement allegedly made by the

accused leading to the discovery of the spot, from where the stone

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used in the commission of the offence was collected, cannot be

brought within the purview of provisions of Section 27 of the Evidence

Act. However, though cannot be claimed to admissible under Section

27 of the Evidence Act, it is relevant; and the relevance thereof shall

be discussed later, in the context of certain arguments advanced by

the learned advocate for the appellant.

17. Sham Ambhore (P.W.9), is a panch in respect of the spot

panchnama (Exh.24). His evidence shows that the stone (Article 3),

mattress (Article 4), pillow (Article 5) and bedsheets were seized from

the spot in his presence and under a panchnama (Exh.24). There is

nothing in his cross examination, which would discredit his version.

18. The evidence of A.P.I. Khushal Shinde (P.W.10), Investigating

Officer, shows that he registered the crime, drew inquest panchnama

(Exh.26), spot panchnama (Exh.24) and recorded the statements of

several persons in the course of investigation.

19. The evidence leaves no manner of doubt that Meena died a

homicidal death. The evidence also does not leave any doubt about

the time and place, where the assault upon her took place, as also

about the weapon used.

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20. There is also no doubt or dispute about the fact that,

immediately before the assault, the accused, Meena and Govind were

sleeping in the sitting room i.e. the place where the assault took place.

21. We may observe that there would be strong circumstantial

evidence of the guilt of the accused, even if Govind had not seen the

accused leaving the room. Even if it is assumed-against the weight of

evidence on record and just for the sake of arguments-that the

accused was not actually seen by Govind while leaving the room,

there would be no change in the ultimate conclusion. The reason is

that the absence of the accused from the spot itself is a material

circumstance against the accused, which, coupled with other aspects

of the matter, would prove to be clinching.

22. In the course of arguments, when this was pointed out, it was

submitted by Mr. Kale, that the theory of the accused is that,

somebody else had entered inside the room and assaulted Meena by

the stone and ran away, and that accused on noticing this, had ran

behind the assailant to chase him, when he might have been seen by

Govind. Thus, attempt is made to show that the circumstance of the

accused leaving the room, as seen by Govind, would be consistent

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also with the theory that accused went out to chase the culprit. We are

unable to accept this submission, which has been put forth for the first

time in the present appeal. The accused did not state so when he was

examined under the provisions of Section 313 of the Code.

Undoubtedly, even if the accused had not stated so, such possibility

would be required to be considered by this Court since it is now put

forth before us. It requires little thought to rule out such possibility. If

the accused had indeed ran behind the actual assailant and in order to

catch him, he would have returned back once he could not catch the

assailant. He would chase the assailant only upto a certain distance

and return back worrying about his wife. The accused was

apprehended on the next day at about 9.00 a.m. and it is not possible

to hold that till the time he came to apprehend, he had continued his

chase for the real assailant.

23. It is also contended that the room had three doors and it was

possible for the outsider to come there and kill Meena. We do not

think such a possibility can be reasonably considered as probable,

interalia, for the following reason.

24. That, the weapon of assault is a stone, which had been taken or

removed just from the outside the sitting room, where Meena was

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sleeping, is significant in this context. There is no doubt as to from

where the stone was brought. The evidence of Abasaheb Sonwane

(P.W.8), Sham Ambhore (P.W.9) and A.P.I. Khushal Shinde (P.W.10)

shows that it was noticed that the stone had been removed from just

outside the room in which the assault took place. Though the

evidence in respect of the alleged disclosure statement made by the

accused leading to the discovery of the spot from where the stone

(Article 3) had been removed, cannot be introduced, claiming it to be

falling within the provision of Section 27 of the Evidence Act, what

was observed by the witnesses, is significant and admissible. The

witnesses have said that there was a fresh mark of removing of the

stone, just outside the sitting room, where the murder had taken place

and just adjacent to the wall of the said sitting room. The outsider, if

would come specifically to kill Meena, in the night time by taking a risk

and enter in a house occupied by a number of persons, would carry

the weapon of assault with him. Such outsider would not leave the

matter to a chance of finding a suitable weapon outside the room.

Under the circumstances, the theory of some outsider having

assaulted Meena, has to be dismissed.

25. It is contended that the accused himself had surrendered before

the police on the next day at 9.00 a.m. This, even if accepted, would

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not help the accused inasmuch as, the fact of his surrendering himself

before the police is consistent with the theory of his guilt.

26. In our opinion, therefore, the case against the accused was

proved beyond reasonable doubt.

27. It was lastly submitted by Mr. Kale, the learned advocate for the

appellant, that even assuming the prosecution case to be true, the

offence committed by the accused would not be one punishable under

Section 302 of I.P.C. According to him, the incident had happened

due to sudden provocation and that therefore, the offence would be

one punishable under Section 304 of I.P.C.

28. It is true that there is no satisfactory material to show the motive

behind alleged offence. The Investigating Officer has stated that in the

course of investigation, it was revealed to him, that the accused was

angered due to refusal of Meena to permit him to have sexual

intercourse. Though, the Investigating Officer has stated that, that was

the motive behind the offence, as revealed to him, it is worth keeping

in mind that since the motive was not apparent, initially the prosecution

witnesses tried to give a totally different motive viz. insistence of

Meena to go to their own native village and cultivate their land. Be that

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as it may, even if it is held that the accused was angered because of

the refusal of Meena to permit him to have sexual intercourse, still, the

case cannot be taken out of the purview of the Penal provision of

Section 302 of I.P.C. This could hardly amount to 'grave and sudden

provocation' reducing the degree of culpability of the act of the

accused. Further, even otherwise, it appears that the accused

decided to wait till Meena slept, brought a very heavy stone by going

out, and hit it on her head. The type of injury inflicted, which was

sufficient in the ordinary course of nature to cause death, is an

indication of the fact that the intention and/or knowledge requisite for

constituting the act of the accused into an offence punishable under

Section 302 of I.P.C., existed.

29. It is submitted that the evidence shows that the accused was

leading a generally happy life with his wife and son and that his

financial position was also reasonably good. It is submitted that

Govind is the only son of the accused, and that the irrigated land

belonging to the accused has been kept barren. It was urged, that

therefore, a lenient view of the matter be taken. This submission is

untenable in law. Once the offence committed by the accused is held

to be one punishable under Section 302 of I.P.C. the only sentence

that can be awarded to the accused, would be either of death or of

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imprisonment for life. There would be no question of awarding a lesser

sentence. We have already held that the offence committed by the

accused is of murder punishable under Section 302 of the I.P.C. and

not of 'culpable homicide not amounting to murder' which is punishable

under Section 304 of I.P.C.

30. In our opinion, there was sufficient and satisfactory evidence to

prove the guilt of the accused beyond reasonable doubt. The

conclusion arrived at by the trial court is proper and legal.

Consequently, there is no question of interfering with the impugned

judgment and order.

31. The appeal is dismissed.

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