Shri. Vasant S/O Chhadami Bhalavi ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 226 Bom

    Judgment 
                                                                              apeal348.14




                                                                                  
                                              1




                                                          
    IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
               NAGPUR BENCH, NAGPUR

                      CRIMINAL APPEAL NO.348 OF 2014




                                                         
    Shri Vasant S/o Chhadami Bhalavi,
    Aged about 35 years, Occupation Labourer,
    R/o Lohara, Tahsil Barghat, District Shivani,




                                              
    P.S. Barghat, M.P.,
    Presently in Central Jail, Nagpur.                ..... Appellant.
                               ig      ::   VERSUS   ::
                             
    State of Maharashtra,
    Through Police Station Officer,
    Sonegaon, Nagpur.                                 ..... Respondent.
      


    ==============================================
                 Shri G.S. Lahoti, Counsel for the Appellant (appointed).
   



                 Shri R.S. Nayak, Addl. Public Prosecutor for the 
                 Respondent/State.
    ==============================================


                                    CORAM :  B.P. DHARMADHIKARI &





                                                       V.M. DESHPANDE, JJ.

DATED : MARCH 2, 2016.

ORAL JUDGMENT (Per : V.M. DESHPANDE, J.)

1. The present appeal is directed against judgment

and order of conviction dated 17.1.2013 in Sessions Trial

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No.199 of 2012 passed by learned Sessions Judge-12,

Nagpur.

By the impugned judgment, appellant Vasant

Bhalavi is convicted for the offence punishable under

Section 302 of the Indian Penal Code and is directed to

undergo rigorous imprisonment for life and to pay a fine of

Rs.1,000/- and, in default of payment of fine, to suffer

simple imprisonment for three months.

The appellant is also convicted for the offence

punishable under Section 324 of the Indian Penal Code and

on that count it is directed that he shall suffer rigorous

imprisonment for six months and to pay a fine of Rs.500/-

and, in default of payment fine, he shall suffer simple

imprisonment for two months.

2. The prosecution case, in brief, is as under :

From the night hours of 1.2.2012 to 10:00 hours

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of 2.2.2012, at police station Sonegaon, Shri Vishwas

Subhash Jadhav (PW 9), Police Sub Inspector, was a night

officer. A telephonic message was received in the police

station from Shyamsingh Inwati (PW 1) that dead body of a

woman is lying in the tin shed of Yathartha Apartment.

Accordingly, station diary entry was taken about the said

message. Then Police Sub Inspector Shri Jadhav along with

police staff reached to the spot. It was a tin shed of 12 x 12.

The dead body of a lady was lying on the ground in the said

shed. Police Sub Inspector Shri Jadhav noticed injury on her

throat. He noticed an axe behind the television. The said

axe was smeared with blood. He also noticed that the dead

body was lying on a quilt and plastic sheet. He called punch

witnesses for drawing spot panchnama. Accordingly, in

their presence, spot panchnama was drawn. He also seized

the axe and the quilt. Also, he seized simple soil and blood

mixed soil. He also noticed blood stained pair of chappal. It

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was also seized. All the seized articles were properly sealed

by him and a detailed panchnama, in that behalf, is drawn

as spot/seizure panchnama. The said is at Exh.20 on record.

3. Police Sub Inspector Shri Jadhav gathered the

identity of the lady as Khemwati. The deceased is the wife

of the appellant. He also noticed the presence of Khushal

(PW 2), the son of the appellant, who was also injured. He

sent the dead body for postmortem.

Thereafter, he came to the police station along

with Shyamsingh Inwati (PW 1) and recorded his oral

report. The oral report is at Exh.9. On the basis of said

report, a crime was registered against the appellant for the

offence punishable under Section 302 of the Indian Penal

Code vide Crime No.16 of 2012.

Police Sub Inspector Shri Jadhav also referred

Shyamsingh Inwati (PW 1) and Khushal (PW 2) for their

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medical examination under requisition Exh.30.

The inquest panchnama was drawn at mortuary.

The said is at Exh.17. He, thereafter, handed over the

investigation to senior police inspector Shri Arun Rautwar

(PW 10).

4. After being entrusted with the investigation of

Crime No.16 of 2012, senior police inspector Arun Rautwar

(PW 10) arrested the appellant under arrest memo Exh.36.

He noticed blood stained clothes on his person and also

found that the chappal, which he was wearing, was also

having blood stains. Those were seized under seizure

panchnama Exh.61. He also seized clothes of the deceased

vide seizure memo Exh.41. He also collected injury

certificate of Khushal (PW 2), the injured and, thereafter, he

added an offence punishable under Section 324 of the

Indian Penal Code, also. He also received postmortem

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report Exh.63. The weapon was also sent to the medical

officer for examination under Exh.54. The requisition and

the query report were received by him and the same are at

Exh.55. The seized articles were sent to the chemical

analyzer under requisition Exh.72. After completion of

other investigation, final report was filed in the Court of law

against the appellant.

5. Learned Additional Sessions Judge-12, Nagpur

framed charge below Exh.4 in Sessions Trial No.199 of 2012

against the appellant for committing murder of his wife

Khemwati and also causing injuries to his son Khushal

(PW 2) by means of an axe. Thus, the charge was framed

against the appellant for the offences punishable under

Sections 302 and 324 of the Indian Penal Code. The

appellant denied the charge and claimed for his trial.

To bring home the guilt against the appellant, the

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prosecution examined in all eleven witnesses and also relied

upon various documents which were duly proved during the

course of the trial. After appreciation of the prosecution

case and the evidence, by the impugned judgment, the

appellant was convicted.

Hence this appeal.

6. We have heard learned counsel Shri G.S. Lahoti

for the appellant who was appointed by the High Court

Legal Services Sub Committee, Nagpur to provide legal

assistance to the appellant and learned Additional Public

Prosecutor Shri R.S. Nayak for the respondent/State. With

their able assistance, we have gone through the records and

proceedings.

7. Learned counsel Shri G.S. Lahoti appointed for

the appellant, submitted that there is no eyewitness account

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in the prosecution case regarding actual assault by the

appellant on his wife. He submitted that the material

prosecution witnesses have turned hostile. Therefore,

according to him, the appellant is required to be set free by

allowing his appeal. It is his submission that since the

prosecution witnesses are turned hostile, false implication of

the appellant is not completely ruled out and, therefore, at

least, he is entitled for the benefit of doubt.

Per contra, learned Additional Public Prosecutor

Shri R.S. Nayak for the respondent/State submitted that in

view of the evidence of Khushal (PW 2), the son of the

appellant who himself is an injured, it is clear that the

appellant alone is the perpetrator of the crime and,

therefore, prayed for dismissal of the appeal.

8. The appellant is maternal cousin of Shyamsingh

(PW 1). The first information report is lodged by this

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prosecution witness. According to report (Exh.9), the

appellant used to reside at Yatartha Apartment along with

his wife, the deceased, and his son Khushal (PW 2). The

appellant was a choukidar. The report discloses that there

used to be frequent quarrels between couple. On 2.2.2012,

at 6:00 o'clock in the morning, he heard shout of Khushal

(PW 2). He noticed that appellant was giving axe blow on

Khushal. Therefore, he tried to hold the said axe, but

before completion of the said act, one axe stroke was given.

He noticed that the deceased was lying in pool of blood and

was having deep injury on her neck. It is also reported

when he was in the process of snatching the axe from the

appellant, he received injury on his cheek.

9. Shyamsingh (PW 1), the first informant; Lakhan

Pancheshwar (PW 4); the other labourers working at the

site; Shyamlal Inwati (PW5), an electrician and who was

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residing in the parking of the apartment whereat the

incident took place, and Mamta Yadav (PW 6) who was also

a labourer, a panch to the inquest panchnama, are turned

hostile.

It is the submission of the learned counsel for the

appellant that since these witnesses did not support the

prosecution, their evidence needs to be discarded and has to

be kept out of consideration while appreciating the

prosecution case.

We are afraid of accepting the aforesaid

submissions. It is settled principle of law that the evidence

of the prosecution witness need not be rejected in toto

merely because the prosecution chose to treat him as hostile

and cross examined him. Merely because such witness is

cross examined, or as is declared hostile, the evidence of

such witness is not washed off the record altogether. The

same can be accepted to the extent his version is found to be

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dependable on a careful scrutiny. This principle of law is

already settled in the case of Khujji @ Surendra Tiwari

...vs... State of Madhya Pradesh, reported at (1991) 3 SCC

627.

10.

The evidence of Shyamsingh Inwati (PW 1) shows

that he is closely related to the appellant. His evidence

reveals that he heard shout of Khushal (PW 2).

Khushal Bhalavi (PW 2) is the son of the deceased

and the appellant. Though he is a child witness, record

shows that learned Judge of the Court below put some

preliminary questions to him and learned Judge noticed that

this witness knows sanctity of oath and, therefore, the oath

was administered to him.

The evidence of a child witness need not be

viewed with tinted glasses only because he is a child

witness. While evaluating the evidence of such witness, the

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Court should be on guard and should seek corroboration by

way of prudence. If the testimony of such child witness

inspires confidence, it can safely be accepted.

11. The evidence of Shyamsingh (PW 1), Lakhan

Pancheshwar (PW 4), and Shyamlal Inwati (PW 5) shows

the presence of Khushal (PW 2) on the spot. All these

witnesses, who were declared hostile, not only state the

presence of Khushal (PW 2) but also state that he was

having injuries on his head. Further, these witnesses also

attribute the presence of the appellant at the place of the

incident.

12. According to us, Khushal (PW 2) though a child

witness, is a witness to the truth and is not a witness like

other prosecution witnesses who did not support the

prosecution, obviously, for the reasons that they are closed

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relatives of the appellant and, therefore, they attempted to

save him.

13. Khushal (PW 2) gives account to the effect that

prior to the incident he along with his deceased mother and

the appellant went to Lohara and stayed there for two days

and, thereafter, they went to Mohgaon, a place of sister of

his father. Thereafter, they returned on Thursday, at about

7:00 pm to Manish Nagar, Nagpur. This version of Khushal

(PW 2) is found due corroboration in the evidence of

Shyamlal (PW 5). This witness was also residing at Manish

Nagar, Nagpur with the appellant.

As per the evidence of Khushal (PW 2), at 6:00

o'clock in the morning, his father, the appellant, has made

assault by means of an axe due to which he suffered

injuries. What we notice while scrutinizing the evidence of

Khushal (PW 2), his evidence is free from all exaggerations

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and he has not stated before the Court what he has not seen.

It is to be noted that this witness has stated that he has not

seen his father assaulting his mother but it is stated by him

from the witness box that his mother was lying injured

having injury on her neck.

14. After noticing injury on the body of Khushal

(PW 2) and Shyamsingh Inwati (PW 1), the investigating

officer sent these injured to the Medical College, Nagpur

with a requisition Exh.30 to examine them. Exh.45 is the

injury certificate in respect of witness Khushal (PW 2). This

document is duly admitted by the defence during the trial.

Exh.45 depicts that Khushal (PW 2) was examined by Dr.

L.A. Shemla on 2.2.2012 at 2:10 pm and that time he

noticed a lacerated wound of size 3 cm x 0.5 cm over the

right prietal region of Khushal (PW 2). According to the

injury certificate, the injury was fresh and can be caused by

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hard and sharp object.

Thus, the version of child witness Khushal (PW2)

that he was assaulted by his father by means of axe is duly

corroborated by contemporaneous medical record which

shows the existence of injury attributable to the axe.

Further, the medical papers, regarding prosecution witness

Shyamsingh Inwati (PW 1) is available at Exh.32, show that

Shyamsingh was having injury on his right cheek and also

having abrasion as stated by him in his oral oral report

Exh.9.

In view of the existence of the injury on the head

of Khushal (PW 2), it is beyond any reasonable doubt that

the prosecution has proved its case for the offence

punishable under Section 324 of the Indian Penal Code

against the appellant.

15. Though nobody has stated about the assault by

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the appellant over his wife by means of axe, in our view, the

prosecution is successful to bring home the guilt of the

appellant on the basis of the circumstantial evidence

appearing in the prosecution case. Those circumstances can

be catalogued as under :

(i) place of the incident;

(ii) presence of the appellant on the spot;

(iii) injury found on the neck of the deceased as stated by Khushal (PW 2);

(iv) seizure of blood smeared axe from the spot;

(v) seizure of blood stained clothes and chappal from the appellant;

(vi) chemical analyzer's report.

16. Insofar as place of the incident in question,

Exh.20, the spot panchnama, shows that it is a place

whereat the appellant used to reside along with deceased

and Khushal (PW 2). Thus, the place of the incident is the

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residence of the appellant himself. The appellant used to

reside with his wife and son Khushal (PW 2), is firmly

established through the evidence of prosecution witnesses

Shyamsingh (PW 1) and Vipin Bhagat (PW 3), the builder on

whose site the appellant was working as watchman. This

independent witness proves the residence of the appellant at

the place of occurrence along with his wife and injured

witness Khushal (PW 2). Also, Shyamlal Inwati (PW 5)

corroborates the version about the residence. In view of the

consistent evidence, it is clear that the appellant was

residing along with his wife, the deceased; and his son

Khushal (PW 2), the injured, at the place of occurrence.

17. The another circumstance is in respect of the

presence of the appellant on the spot. The time of the

occurrence is in the early morning hours of the day.

Khushal (PW 2) states that on the previous day, he along

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with his parents returned to Manish Nagar, Nagpur. This

aspect is also corroborated by Shyamlal (PW 5) that on

1.2.2012, at 7:00 o'clock in the night, the appellant along

with his family members returned from the village and had

their supper. All the prosecution witnesses in very clear

words attribute the presence of the appellant on the spot at

the time of occurrence. Therefore, his presence on the spot

cannot be doubted at all. Further, it is not the defence of

the appellant even during the course of the trial or before

this Court that at the relevant time he was away from his

residence on account of his job. On the contrary, it is

established that he was a choukidar of the site where

temporary shed for the residence is erected.

18. The evidence of Khushal (PW 2) discloses that

though he has not seen the assault on his mother, he noticed

that his mother was lying in an injured condition having

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injury on her neck. Shyamsingh (PW1), the first informant,

also stated about noticing of the injury on the neck of the

deceased when he removed the bed-sheet. Even, in the first

information report Exh.9 has reference that he has noticed

injury on the neck of the deceased.

The postmortem report is at Exh.63. The said

document is admitted during course of the trial. The

autopsy surgeon noticed following external injuries over the

dead body.

"1) Chop wound 5.3 cm x 2.6 cm x muscle deep,

horizontal, margin contused with cutting of mussels, vessels present on 2 cm below angle of mandible.

2) Chop wound 4.6 cm x 1.7 cm x bone deep, horizontal with cutting of right side of thyroid cartdage, trachea ocsophagus with cutting of C5 and C6 cervical verterba, margins contused,

present on 2 cm medial to injury no.1 and 3 cm below ramus mandible.

3) Chop wound 4 cm x 1 cm x mussle deep, horizontal margins contused present on right side of neck 3 cm below injury no.2 falling towards

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medial aspect.

4) Contusion 6 cm x 1 cm, horizontal reddish present on right side of neck 2 cm below injury

no.1."

The doctor in the postmortem report has stated

that the cause of death is "cut throat injury". Thus, the

version of the prosecution witnesses that they noticed injury

on neck of the deceased is substantiated by the medical

evidence.

19. Exh.20 is spot panchnama. While drawing spot

panchnama, the investigating officer noticed various blood

stained articles including blood smeared axe, which were

duly seized and sealed by the investigating officer.

20. PW8 is Dr. Jaideo Laxman Borkar, who has

conducted the postmortem. He received a letter in respect

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of examination of the weapon. He received the same in

sealed condition. According to the evidence of Dr. Borkar,

on opening, he found an axe, which according to him, is

hard heavy weapon with one sharp cutting edge (slightly

blunt). According to his evidence, the said is a dangerous

weapon. He noticed, blade of the axe is made of iron

having length 11.5 cm, sharp edge length 4 cm, breadth 3

cm. According to the doctor, the injury mentioned in

column No.17 of the postmortem report and the internal

damage, which he noticed as mentioned in column Nos.20,

21, and 22 in the postmortem report, are possible by the

said weapon. Accordingly, he gave his report Exh.55. After

examination of the weapon, he again re-sealed and was

handed to the investigating officer.

21. Police Inspector Shri Arun Rautwar (PW 10)

caused arrest of the appellant. His arrest memo is at

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Exh.36. He was arrested on 2.2.2012. At the time of arrest,

the investigating officer noticed that the clothes, on the

person of the appellant, were having blood stains. Similarly,

he noticed the chappal of the appellant were also having

blood stains. Therefore, his clothes and chappal were seized

under seizure panchnama Exh.61. Thus, at the time of

arrest, the appellant was wearing the clothes having blood

stains is duly proved.

22. The seized articles were duly sent to the chemical

analyzer on 13.12.2012 by the investigating officer under

requisition Exh.72. Exh.73 is invoice challan showing the

acknowledgment from the office of the Regional Judicial

Forensic Science Laboratory, State of Maharashtra, Dhantoli,

Nagpur of receiving the articles in a sealed condition.

The chemical analyzer's report is at Exh.91. The

Blood Group of deceased Khemwati was determined as "O"

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as per Exh.92.

The chemical analyzer's report Exh.91 shows that

the axe, full shirt of the appellant, and the chappal which he

was wearing, were seen with human blood. Similarly, the

axe was also smeared with human blood. Though the blood

group on these articles is not determined, that by itself is

not sufficient to discard the said scientific evidence

especially when no explanation was offered by the appellant

when that incriminating circumstance was put to him when

he was examined under Section 313 of the Code of Criminal

Procedure. Further, the appellant himself has admitted in

his 313 statement that he used to reside with the deceased

and his son and came to Manish Nagar, Nagpur from

Mohgaon on Thursday itself.

23. The aforesaid circumstances, as appearing in the

prosecution case, clearly complete the chain of the evidence

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and it is so completed, that it shows not only finger of guilt

towards the appellant but it also excludes innocence of the

appellant.

24. Resultantly, the appeal must fail and the same is

dismissed.

25. The fees, payable to learned counsel Shri G.S.

Lahoti appointed for the appellant, are quantified at

Rs.5,000/-. However, learned counsel Shri G.S. Lahoti

requested to this Court that the High Court Legal Services

Sub Committee, Nagpur would pay the same amount of

Rs.5,000/- to the High Court Bar Association at Nagpur.

                      JUDGE                                       JUDGE

    BrWankhede


                                                                                     ...../-