Bombay High Court
Tulsidas S/O Lakadu Shende (In ... vs State Of Maharashtra, Through The ... on 7 June, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ig NAGPUR BENCH : NAGPUR
Criminal Appeal No. 457 of 2014
Tulsidas son of Lakadu Shende,
aged about 40 years,
resident of Sasra, Tq. Sakoli,
Distt. Bhandara. ..... Appellant.
[in Central Prison, Ngp.]
Versus
State of Maharashtra,
through Police Station Officer,
Sakoli,
Distt. Bhandara. .... Respondent.
*****
Mrs. Sonali Saware, Adv. [appointed] for the Appellant.
Mr. T.A. Mirza, Addl. Public Prosecutor for respondent.
*****
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CORAM : B. R. GAVAI AND
V.M. DESHPANDE, JJ.
Date : 07th June, 2016
ORAL JUDGMENT [Per V.M. Deshpande, J.]:
01. Feeling aggrieved by the Judgment and Order of conviction
passed by learned learned Sessions Judge, Bhandara, dated 26th June,
2014 in Sessions Trial No. 1 of 2013, thereby convicting the appellant
of the offence punishable under Section 302, Indian Penal Code, and
sentencing him to suffer Life Imprisonment and to pay a fine of
Rs.1,000/-, in default, to undergo further Rigorous Imprisonment for
two months, the appellant is before this Court.
Facts of the case, which are in short compass, are described
herein below :-
02. When Eknath Gadpayale [PW 9] was on duty at Police
Station, Sakoli, in the night between 23rd and 24th September, 2012,
between 2.30 and 2.45 a.m., Ganpat Narayan Thakre [PW 1] came to
the Police Station with his grand-sons, Sumedh and Umesh. He lodged
his report [Exh.19]. On the basis of the oral report, Eknath Gadpayle
registered a crime for the offence punishable under Section 302, Indian
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Penal Code, against the appellant vide Crime No. 109/12. The printed
First Information Report is at Exh.20.
03. The report of Ganpat [PW 1] states that he was having one
daughter, Lata, who was married with the appellant prior to eighteen
years age. From the said wedlock, she was having two sons, Sumedh,
aged about 16 years, and Umesh, aged about 14 years. Since last
four-five years, appellant, Tulsidas, started ill-treating Lata on trivial
issues, and also used to assault her. That led Lata to come to the
house of the first informant along with her two sons at village
Kumbhali. She stayed there for about 25 days. At the time of Pola
festival, the wife of the first informant reached Lata to her matrimonial
house along with her two sons. It was also reported in the First
Information Report that the appellant used to doubt the chastity of
Lata and on that account, he used to beat her. The First Information
Report further stated that he got the knowledge about the death of his
daughter and, therefore, he accompanied by his wife and son, Ganesh,
came to the house of the appellant. That time, he noticed that Lata
was lying in a dead condition with serious injury on her head and when
he made enquiries with his grand-sons, Sumedh and Umesh, he came
to know that the appellant, their father, gave an axe blow, resulting
into Lata's death.
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04. After registration of the offence, Eknath Gadpayle [PW 9], as
per the directions of his superior officers, handed over the
investigation to Assistant Police Inspector, Mr. B.B. Shripad.
05. Mr. Purushottam Badhewale [PW 8] was Police Inspector at
Police Station, Sakoli. On 29th September, 2012, the investigation of
Crime No. 109/12, which was with Mr. B.B. Shripad, came to him as Mr.
Shripad was on leave. During the course of investigation, Purushottam
[PW 8] recorded statements of the witnesses. Since Mr. Shripad was
then transferred from Sakoli Police Station, Mr. Badhewale completed
investigation and submitted charge-sheet to the Court of Law.
06. After completion of investigation, a Final Report was
presented in the Court of Judicial Magistrate First Class, Sakoli, who
committed the case to the Court of Sessions, being exclusively triable
by the said Court. The case was registered as Sessions Case No.
1/2013.
07. The learned Sessions Judge framed the charge against the
appellant. The appellant denied the charge and claimed for his trial.
08. In order to bring home the guilt of the appellant, the
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prosecution examined in all nine witnesses and also relied upon
various documents, duly proved during the course of the trial. The
appellant was examined by the learned Sessions Judge under Section
313, Criminal Procedure Code, and he submitted that a false case was
lodged against him. After appreciation of the prosecution case, the
learned Sessions Judge convicted the appellant and sentenced him, as
appeal.
observed in the opening paragraph of this Judgment. Hence this
09. We have heard Smt. Sonali Saware, learned counsel, who
was appointed through Legal Aid Committee, in order to give legal
assistance to the appellant, and Mr. T.A. Mirza, learned Addl. Public
Prosecutor for the State. Both the learned counsels strenuously urged
before this Court in support of their respective prayers. They also took
us in minute detail through the notes of evidence and other admissible
evidence.
10. Two questions arise before this Court after hearing the
counsel for the parties. They are:-
[1] Whether the prosecution has proved that
deceased Lata met with homicidal death?,
and
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[2] Whether the prosecution has proved that the
appellant is the author of the injuries resulting
into the death of Latabai?
11. Sau. Chhaya Pramod Tirpude [PW 6] was called by the police
at the house of the appellant on 24th September, 2012. She noticed
that Lata was lying in a dead condition in the pool of blood. Police
prepared Inquest Panchanama of dead body in her presence and
another Panch Tukaram Gotefode [Exh.48]. Also, a Spot Panchanama
was drawn in their presence by the Investigating Officer [Exh.47].
An axe was lying near the dead body. The said axe was also
seized under the Seizure Panchanama along with other articles in the
presence of this Panch witness by drawing a Seizure Memo [Exh.49].
While examining the dead body, the witness to the Inquest noticed a
serious injury on the head of the deceased.
12. Dr. Rupesh Badwaik [PW 3] was the Medical Officer at Sub-
District Hospital at Sakoli since the year 2009. He received the dead
body of Lata for post-mortem examination. Accordingly, Dr. Rupesh
along with Dr. C.D. Meshram conducted autopsy on the dead body.
The Autopsy Surgeons found following external injuries on the dead
body of Lata:-
"3. ............................................................................
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1. Lacerated wound present over middle of forehead
between two eyebrows, size 2 c.m. X 0.5 cm.
2. Lacerated wound present on left side of eye brow
on forehead, size 1 x 05 cm.
3. Abrasion present over lateral side of right nostril,
size 2 cm.
4. (There was a query for us during post mortem as
to whether)? fracture injury present on left wrist
joint.
Incise wound with stab present over middle of
back side - three wounds in number, size 1 cm
each.
6. Large lacerated wound present over right occipito
parital region of skull, size 5 cm x 1 cm x 2 cm
with underlined fracture of skull bone.
Following two fracture injuries were discovered
by external examination/palpation:
I) Over left wrist joint.
ii) Fracture of occipito parital bone of skull."
After opening the dead body, they also noticed injuries
under scalp, skull and brain. Those are as under:-
"4. ............................................................................
Large lacerated wound present over right occipito
parital region of skull - size 5 x 1 x 2 cm with
under lined fracture of occipito parital bone on
right side, length of fracture approximately 6 to 7
cm. Hemotoma was found present of size 5 x 2
cm over right side of occipito parital region."
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According to the doctor conducting the post-mortem, all the
injuries were ante-mortem. According to the evidence of Dr. Rupesh
Badwaik, the internal injuries under the scalp, skull and brain were
corresponding to the Injury No.6 as mentioned in Column No.17 of
Post-mortem Report. According to doctor, who conducted post-
mortem, the cause of death was head injury [injury to the brain]. The
post-mortem Report is duly proved and is at Exh.25 on record of the
court below.
13. In view of the Inquest Panchanama, evidence of the doctor
and injuries as mentioned by the Autopsy Surgeon in the Post-mortem
Report, there is no escape, but to reach to the conclusion that Lata
met with a homicidal death. Therefore, the first question is answered
accordingly.
14. After reaching to the conclusion that Lata met with a
homicidal death, the Court is to examine the prosecution case as to
whether the appellant is the author of the injuries, resulting into the
death of Latabai.
15. The submission of the learned counsel for the appellant is
that the appellant being falsely implicated and that the witnesses, who
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were cited by the prosecution, as eye-witnesses, had turned hostile.
Therefore, there is a serious doubt that the appellant is the author of
the injuries. The learned counsel for the appellant invited our attention
in that behalf to the evidence of Sumedh Shende [PW 2] and Umesh
Shende [PW 7], to buttress her aforesaid submission. Except the
aforesaid submission no other point was pressed into service by the
learned counsel for the appellant.
16. Sumedh Shende [PW 2] and Umesh Shende [PW 7] are the
sons of the appellant. Umesh Shende has flatly refused to support the
prosecution case for the obvious reason.
Though Sumedh Shende in his Examination-in-Chief did not
support the prosecution and, therefore, when with the permission of
the Court, he was declared hostile, in the cross-examination by the
learned Asstt. Public Prosecutor, he has disclosed the truth. The
relevant portion in that behalf is reproduced hereunder:-
"3. ............................................................................
..............My father was beating mother mercilessly,
and, therefore, we have gone to reside there. He was
also making quarrels with my mother."
..................On the day of incident during night at about
11 p.m., Umesh had woke up me. When I was slept,
Umesh was studying. I had stated before police that
when I woke up, I saw that my father is beating my
mother by axe on her head by its reverse side. I have
also stated before police that at that time my father
was having a Towel and Baniyan on his person. It is
true that thereafter we brothers have brought Rajnish,
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Ramchand, and Sumitra Shende. ....."
17. After the arrest of the appellant, when the appellant was in
police custody, he made a disclosure statement in presence of
Shalikram Khardekar [PW 5]. The admissible part of the said disclosure
statement is at Exh.41. By the said, the appellant agreed to take out
the clothes which were on his person at the time of commission of the
offence from the place where he had concealed the same. After
recording the memorandum statement, the police party along with
Shalikram Khardekar [PW 5] followed the appellant. The appellant took
out the clothes which were concealed beneath a big tile in a gutter.
Accordingly, Recovery Panchanama [Exh.41-A] was drawn.
18. The Investigating Officer sent the seized articles, such as
the clothes of the accused, the axe, which was seized from the spot
and the clothes of the deceased for chemical analysis to the Chemical
Analyzer under requisition [Exh.64].
19. It is to be mentioned that when Sumedh [PW 2] was in the
witness box, he was shown the clothes which were seized at the
behest of the appellant, and he admitted that those were the clothes
which were on the person of his father, namely the appellant, at the
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time of incident.
20. Chemical Analyzer's Report [Exh.5] shows that deceased
Lata was having her blood group as Blood Group "B". Similarly, the
axe was having blood stains of human blood.
Though this incriminating circumstance about noticing of
Blood Group "B" on the clothes of the appellant was put to the
appellant, no explanation was offered by the appellant.
21. The appellant in his statement recorded under Section 313,
Criminal Procedure Code, has admitted that he used to reside at village
Sasra along with his wife, Lata, and his two sons, Sumedh and Umesh.
He has also admitted about the factum of the dead body lying in his
house having the head injury. Once the appellant has admitted that he
was residing with his wife in the house from where the dead body of
Lata was recovered, the fact which he has not disputed, to it was for
the appellant to give a plausible explanation about the same. In that
view of the matter, the burden was on the appellant as per Section 106
of the Evidence Act, or at least, he was to give any plausible
explanation about the fact as to how his wife was found in a dead
condition in the house in which the appellant was residing and when
she was in his custody.
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22. In our view, much importance cannot be attached to the
factum of Umesh not supporting the prosecution case, when there is
evidence of Sumedh, which is duly corroborated by the surrounding
circumstances, such as recovery of clothes at the instance of the
appellant having blood stains of Blood Group "B" of the deceased and
the fact that the dead body was found in the house of the appellant
and the fact that the evidence of Ganpat Thakre [PW 1], father of the
deceased, that prior to two months of the incident of death, Lata was
required to take shelter of his house along with her two sons due to the
ill-treatment owing to appellant's suspicion over her character, which
finds place in the report [Exh.19] and also Sumedh has admitted that
his father used to beat Lata mercilessly, forcing them to go to the
house of their grand-father. We are of the view that the prosecution
has proved its case, beyond a reasonable doubt, against the appellant
that he is the author of the injuries appearing on the dead body of
Lata. Consequently, we see no reason to upset the judgment of
conviction and order of sentence passed by the court below, resulting
into passing of the following order:-
ORDER
[a] Criminal Appeal is dismissed.
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[b] Fees payable to the learned counsel [appointed]
for the appellant are quantified at Rs. 5,000/-
[rupees five thousand only].
Judge Judge
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