Vijaykumar Vyankatesh Parsa vs The State Of Maharashtra
2016 Latest Caselaw 2997 Bom

                                                                             Appeal971_2009.doc

    Vidya
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                        
                                   CRIMINAL APPEAL NO. 971 OF 2009




                                                                
            Vijaykumar Vyankatesh Parsa                          ... Appellant
                  Vs.
            The State of Maharashtra                             ... Respondent




                                                               
            Ms. Sushma Nair, Advocate for the appellant.
            Mrs. A.S. Pai, APP for the State.

                                                CORAM: MRS.V.K. TAHILRAMANI &
                                                       MRS.MRIDULA BHATKAR, JJ.

ig DATE: JUNE 20, 2016

ORAL JUDGMENT (Per Mrs. Mridula Bhatkar, J.)

This Appeal is directed against the judgment and order dated 26th &

27th February, 2009 passed by the learned Additional Sessions Judge,

Kalyan in Sessions Case No. 269 of 2006 by which the appellant/accused

was convicted for the offences punishable under section 302 of Indian

Penal Code and is sentenced to suffer imprisonment for life.

2. It is the case of the prosecution Avinash Vijay Parse, complainant is

the son of the accused. The incident of assault has taken place on 14 th

September, 2006 at the residence of the accused. The accused was

residing with his wife and their children, i.e., Avinash & Ashwini were

staying at Dubai. Ashwini is married and has son of four years old.

Ashwini wanted her mother to stay with her at Dubai and to look after her

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son. Avinash wanted his mother to go to Dubai and stay there. The

accused used to harass his wife. On 14th September, 2006, sister Ashwini,

her husband Vinay Shetty (PW-3) were sleeping in the bedroom and

Avinash and Kushal were sleeping in the hall. In the morning at around

8.30 a.m., Avinash heard scream of his mother. His brother-in-law Vinay,

sister Ashwini ran inside. Thereafter he went and saw that his father had

inflicted a blow of the kitchen knife on the throat of his mother. Vinay

snatched the kitchen knife from the appellant/accused. His mother had

sustained bleeding injuries. Thereafter Avinash and his neighbours shifted

his mother to the hospital. Avinash's mother informed him that his father

had inflicted blow on her throat. The police arrived at the spot. At the

instance of information given by Avinash, the offence was registered at

C.R. No. I-118 of 2006 with Vishnunagar Police Station. The police

arrested the accused on the same day. They conducted spot panchnama

and seized the knife, clothes of the deceased and accused and sent the

articles for chemical analysis. After completion of the investigation,

Investigating Officer PW-7 Jayant Wagh filed charge sheet in the Court of

learned Magistrate. Thereafter the case was committed to the Sessions

Court. The charge was framed. The accused pleaded not guilty and

adopted defence that his son-in-law Vinay Shetty is an assailant. He

inflicted blow on his mother-in-law Mira and when accused tried to save

his wife, Vinay inflicted knife blows in the stomach and on the neck of the

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accused, so the accused was injured. The prosecution in all examined 7

witnesses. After considering the oral as well as documentary evidence,

the learned Sessions Judge convicted the appellant/accused for the

offences punishable under section 302 of the Indian Penal Code and

sentenced to suffer R.I. for life.

3. It is a short case of 7 witnesses. PW-2 Avinash, who is the first

informant and prosecution proved FIR (Exhibit 19) through him and PW-3

Vinay Shetty, are the key witnesses. There is no eye witness to the actual

incident of assault. However, the incident has taken place in the house of

the accused and deceased in their kitchen in morning at around 8 a.m. to

8.30 a.m. when other members in the family were sleeping.

4. The learned counsel for the appellant submitted that the learned trial

Judge has committed an error in appreciating the evidence and not

considering the defence adopted by the accused. She argued that

Ashwini, who is the daughter of the accused and deceased, is a very

material witness, however, she is not examined but her husband Vinay,

who is the real culprit, is examined by the prosecution. The investigation

is partial. Ashwini and Vinay wanted the deceased to come to Dubai to

look after their son Kushal, however she refused to go to Dubai as she

was occupied in taking tuition in Mumbai. Vinay, in rage, assaulted his

Appeal971_2009.doc

mother-in-law with kitchen knife in the morning. She submitted that PW-2

Avinash in the cross-examination has given admission that there were

injuries caused to the stomach and neck of the accused and these injuries

were caused when the appellant/accused was trying to save his wife and

resisted the attack of Vinay. She further argued that though the fact of

injuries on the person of the accused was admitted by the prosecution

witness, the prosecution neither produced his injury certificate nor the

medical papers of the treatment given to the accused for his injuries. She

further argued that there is no recovery of weapon, i.e., knife (Article 1).

This article is not shown to anybody. PW-6 Dr. Raju Dhondiram

Lavangare has stated that the injuries caused to the deceased is probable

due to this knife (Article 1). She argued that there is no proper opinion

expressed by the doctor. The recovery of knife is doubtful, as it was found

at the time of spot panchnama. She submitted that the investigation is

doubtful. She further submitted that the condition of the deceased was

very delicate when she was assaulted. The doctor had opined that due to

such injury, the death was instantaneous, however, as per the case of the

prosecution, the injury was inflicted at around 8.30 a.m., however, in the

postmortem notes, which is marked as Exhibit 27, the time of death is

shown as 11 a.m. to 11.30 a.m. As per the medical report, the learned

counsel submitted that in the injury of throat, her artery was cut. There

must have been huge flow of blood and due to blood loss, it was not

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possible for the deceased to talk but she would have been collapsed

immediately. However, the theory of the prosecution of she giving dying

declaration to PW-2 Avinash is doubtful and it should be discarded. She

further submitted that as the appellant/accused was injured, wife was

injured, there bound to be blood stains on the clothes of the accused. The

deceased would have been spoken nothing due to injury to her vocal part.

She further argued that the explanation given by the accused of his

presence and the injuries in his statement recorded under section 313 of

Cr. P.C. should have been given weightage and should be given benefit of

doubt, as the manner in which the prosecution has presented the offence

as committed, in fact was not occurred.

5. Learned APP opposed this Appeal and has supported the judgment

of the trial Court.

6. We have gone through the evidence of all the witnesses. The

record and evidence discloses that accused used to harass the deceased

and there was dispute between them in respect of her visit to Dubai to the

house of her daughter and son-in-law. On the date of incident, i.e., on 14 th

September, 2006, at around 8 a.m. to 8.30 a.m., all the members of the

family were present in the house. Though nobody claims of seeing the

actual assault, both the witnesses PW-2 Avinash and PW-3 Vinay have

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stated that they heard shouts of deceased Mira in the morning from the

kitchen and immediately they rushed to the kitchen. Vinay was the one

who reached first in time and he saw the accused holding kitchen knife.

His mother-in-law was injured and there was bleeding wound to her throat.

He immediately intervened and tried to take away the knife from the hands

of the accused. Though PW-2 has admitted that the applicant/accused

was also injured but witnesses have stated that accused tried to inflict

injuries to himself with the said knife. As soon as they heard scream of the

deceased, they immediately reached the spot and saw accused holding

knife and it necessarily establishes nexus between the accused and the

offence. There was nobody in the kitchen. The prosecution has tendered

one more important piece of evidence, i.e., Avinash, son of the accused

and the deceased, has stated that when he reached near his mother, she

immediately told him that his father has assaulted her. This disclosure is a

dying declaration which is most natural, voluntary and appears truthful.

Avinash has no reason to lie. He is the son of both the deceased and the

accused. Rather it is most unfortunate for him to witness that his father

had given a fatal blow of knife to his mother. The injuries which were

found on the body of the accused, as stated by these two witnesses, were

self-inflicted. This act of the accused is also possible as he had inflicted

blow to his wife and thus out of frustration or defence mechanism, such

injuries can be self-inflicted.

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7. Mira was shifted to hospital. PW-6 Dr. R.D. Lavangare has

conducted postmortem on her body on the same day and declared that

she died at 11.30 a.m. It was a deep incised wound. Postmortem notes

(Exhibit 27) corroborates his evidence. The injury was fatal. Though as

per the admission given by the doctor, this injury resulted not

instantaneous death, but death of Mira was immediate. The injury was

deep and on the vital part. Instantaneous death is possible, however, it

depends upon the sustaining capacity of the person and thus the

deceased in fact was not in a position to talk or do anything when she was

shifted to the hospital. She was unconscious, therefore, the theory that

there was no instantaneous death, hence blow was not fatal cannot be

stretched beyond point. There are other two witnesses, i.e., PW-4 Jayesh

Pokhraj Lalwani and PW-5 Kishor Gangji Karani, who are neighbours.

However, in respect of dying declaration of the deceased, there is a

significant omission and therefore, on that point, their evidence is not

considered. However, they corroborate on the point that deceased was

assaulted in the house on that day in the morning and at that time, apart

from the accused and the deceased, PW-2 Avinash and PW-3 Vinay

Shetty were present in the house.

8. In the spot panchnama (Exhibit 16) panch PW-1 Sandeep Maruti

Arekar has deposed that he was present at the time of spot panchnama

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and when he went to kitchen, blood stains were found and there was one

kitchen knife and the blade of the knife was blood stained. His evidence

corroborates with the evidence of spot panchnama (Exhibit 16) wherein it

is mentioned that the police sized at the time of spot panchnama a kitchen

knife with blood stained blade (Article 1).

9. The prosecution has fully established that the appellant/accused

was the one who attacked his wife in the morning of 14 th September, 2006

and she died due to cut injury to her throat inflicted by the

appellant/accused with a knife. His defence that it was Vinay Shetty PW-

3, son-in-law, is a real assailant and he attacked his wife is imaginary and

cannot be appreciated. Under such circumstances, we maintain the

verdict given by the trial Court. Hence, the Appeal is dismissed.

         (MRIDULA BHATKAR, J.)                             (V.K. TAHILRAMANI, J.)