Suresh S/O Sakharam Kalbande (In ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 5946 Bom

                                     1                  Appeal86-16.odt        



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



                  CRIMINAL APPEAL NO. 86 OF 2016



Suresh Sakharam Kalbande,
Convict No. C-4793,
Aged about 45 years,
R/o Kalgaon, Digras,
Distt. Yavatmal,
Presently in Amravati Central Prison,
Amravati.                             ..                    APPELLANT


                               .. VERSUS..


State of Maharashtra,
through P.S.O.,
Police Station, Digras,
Tq. Digras, District Yavatmal                ..             RESPONDENT


Ms. S.H. Bhatia, Advocate (Appointed) for Appellant.
Mr. C.A. Lokhande, Additional Public Prosecutor                                   for
Respondent.
                            ....


CORAM         : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON   : August 09, 2017
PRONOUNCED ON : August 16, 2017.



JUDGMENT (per Manish Pitale, J. )

This appeal has been filed by the accused-appellant

challenging the judgment and order dated 03.10.2015 passed

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by the Court of Additional Sessions Judge, Darwha, Yavatmal, in

Sessions Trial No. 39 of 2013, whereby he has been convicted

under Section 302 of the Indian Penal Code (IPC) and

sentenced to suffer imprisonment for life and to pay a fine of

Rs.1,000/- in default to suffer simple imprisonment for 3

months.

2. The prosecution case is that the incident in question

took place on 24.03.2013 at 1 a.m. i.e. in the intervening night

between 23.03.2013 and 24.03.2013. The accused was

residing with his wife (the deceased) and his daughter (PW3) in

a room adjacent to the house of his own mother (PW2). In the

night of the incident, PW2 (mother) stated that she heard the

noise of her granddaughter i.e. PW3, asking her father i.e. the

accused not to assault the deceased and PW3 was raising an

alarm.

3. PW2 (mother) knocked on the door of the room from

where the noise was emanating and she asked her son- the

accused, to open the door. But, the accused did not open the

door due to which PW2 (mother) entered the room from the

side of the wall which was not fully constructed. She asked

the accused not to assault his wife. But the accused tied the

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neck of his wife with a cable wire and he was strangulating her.

It is also alleged that there was a knife in the hands of the

accused and that he used the same to assault his wife on her

hands. Due to this brutal assault, the wife of the accused died

on the spot. The incident was also witnessed by PW3

(daughter).

4. Upon the oral report submitted by PW2, a first

information report (FIR) was registered on the same day i.e.

24.03.2013 against the accused in Police Station Digras,

Yavatmal, under Sections 302 and 201 of the IPC. The

Investigating Officer (PW10) visited the spot and seized the

weapons of assault along with the clothes of the deceased and

the accused as also other articles. The same were sent for

chemical analysis. The accused was arrested on the same day.

5. On 24.06.2013 the chemical analysis report was

received wherein it was stated that the blood detected on the

articles was human blood, but, the blood group could not be

conclusively established. The prosecution examined 10

witnesses to prove its case. The relevant witnesses are PW2

(mother), PW3 (daughter), PW4 (panch witness), PW7 ( Doctor

who conducted the post mortem), PW8 (Doctor who examined

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PW2) and PW10 (Investigating Officer). The statement of the

accused under Section 313 of the Criminal Procedure Code was

of denial and it was also claimed that he was not in the house

when the incident took place.

6. On the basis of the evidence and material on record,

by the impugned judgment and order, the Sessions Court found

that the prosecution had proved its case and accordingly it

convicted and sentenced the appellant under Section 302 of

the IPC.

7. We have heard Ms. S.H. Bhatia, learned counsel

appointed for the appellant and Mr. C.A. Lokhande, learned

Additional Public Prosecutor for the State.

8. In support of the appeal, the counsel for the appellant

submitted that the judgment and order of the trial Court

deserved to be set aside for the reason that there were no

independent witnesses to the incident and that the two

eyewitnesses were both interested witnesses. She further

contended that as per the statement of PW2 in her cross-

examination, her health condition was not such that she could

have jumped over the wall under construction to enter the

room and witnessed the incident in question. It was further

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contended that the blood group on the weapons of assault,

clothes of the accused and other articles, could not be

conclusively established in the chemical analysis report, which

was a factor in favour of the accused. It was further contended

that there was delay in recording the statements of witnesses

and that this vitiated the investigation, which the trial Court

failed to appreciate. It was also contended that the time

recorded in the first information report regarding information

received at the Police Station and the time depicted in the spot

panchanama of 10 a.m. to 10.45 a.m. raised doubts about the

veracity of the first information report, considering the distance

between the place of the incident and the Police Station.

9. As against this, the learned APP for the respondent-

State submitted that the trial Court was justified in convicting

and sentencing the appellant and that evidence of two

eyewitnesses and other material on record was sufficient to

prove the guilt of the accused.

10. Having perused the judgment of the trial Court as

also the evidence and material on record, it appears that the

findings rendered by the trial Court are justified. The

contentions raised on behalf of the appellant-accused

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regarding absence of independent witnesses deserves to be

rejected because it is natural that at 1 a.m., during night time,

only family members would be eyewitnesses to the kind of

incident that has occurred in the present case. It cannot be

expected that in the dead of the night, there would be

independent witnesses to see the actual incident that has

occurred.

11. The two eyewitnesses to the incident, PW2 -mother

of the accused and PW3- daughter of the accused are most

natural witnesses to the incident. Their versions of the incident

are consistent and the counsel for the appellant could not

demonstrate any contradiction in the said versions.

12. Both the aforesaid witnesses, who are eyewitnesses

to the incident, have categorically stated that the accused

strangulated the deceased with cable wire and that he also

assaulted her with knife on her hands. The post mortem report

records the cause of death due to asphyxia as a result of

strangulation and haemorrhagic shock, which corroborates the

evidence of the two eyewitnesses.

13. A perusal of the evidence of the said eyewitnesses

shows that they have stated facts which point towards the

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guilt of the accused. There is no reason for disbelieving their

versions and the contention of the counsel for the appellant

that independent witnesses were required to corroborate their

version, deserves to be rejected.

14. It has been contended on behalf of the appellant that

the admission by PW2 (mother) in her cross-examination that

she was unable to sit and walk properly due to old age, falsified

her claim that she entered the room from the side of the wall

which was not fully constructed. It was contended that the said

witness could not have entered the room by jumping over a

wall which was not fully constructed. The said contentions

raised on behalf of the appellant deserve to be rejected

because the evidence of PW8 i.e. the Doctor who examined

PW2 (mother) shows that PW2 had suffered injuries of abrasion

over right fore-fingers and swelling over left foot with

tenderness on 24.03.2013 i.e. the date of the incident. In the

cross-examination, the said PW8 (Doctor) stated that it was

possible for a person to suffer the said injuries by falling on

hard surface. Thus, there is evidence and material on record to

show that PW2 (mother) made the effort of entering the room

from the side of the wall that was not fully constructed, only to

dissuade her son (accused) from indulging in violence against

8 Appeal86-16.odt

his wife (deceased). Therefore, the said contention raised on

behalf of the appellant deserves to be rejected.

15. The contention raised on behalf of the appellant that

the finding in the chemical analysis report (Exh.38) to the

effect that blood group could not be conclusively established,

rendered the prosecution case unsustainable, also deserves to

be rejected. This is because the said chemical analysis report

clearly states that there was human blood on the weapons of

assault, as also the clothes of the accused and other articles

seized from the room. It was for the appellant/accused to

explain how human blood was found on his clothes, but, he

has failed to give any explanation in that regard.

16. The contention raised on behalf of the appellant that

statements of the witnesses were recorded after much delay, is

also unsustainable, because the trial Court has correctly

recorded that the statement of PW3 under Section 161 of the

Cr.P.C. was recorded on 24.03.2013 itself i.e. the date of the

incident. The record also shows that the statement of PW2 was

also recorded on the same day. Therefore, there is no ground

for the appellant to make a grievance in this regard.

9 Appeal86-16.odt

17. It is also relevant to peruse the evidence of PW7 i.e.

the Doctor who conducted the post mortem. His evidence

shows that there were eight injuries on the body of the

deceased, including ligature mark around the neck and incised

wounds on the hands along with a contusion over the right

temporo parietal region. The extent of injuries demonstrates

the brutality with which the appellant/accused assaulted his

wife, leading to her death on the spot.

18. The contention raised on behalf of the appellant that

the time recorded in the first information report and the time

period shown in the spot panchanama created doubt about the

genuineness of the first information report also cannot be

accepted. It is evident from the record that the first

information report was recorded on 24.03.2013 on the basis of

oral report submitted by the PW2 and thereupon the Police

visited the spot and the spot panchanama was recorded.

Although the distance between the place of the incident and

the Police Station has been stated by PW9 to be 18 kms. ,

nothing much turns on this fact. It does not lead to the

conclusion that the entire version of PW2 regarding the

incident is rendered suspicious. Therefore, the said contention

also stands rejected.

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19. Therefore, the evidence and material on record

clearly demonstrates that the accused/appellant did assault his

wife with cable wire and knife in a brutal manner in the middle

of the night, only with an intention to kill her. The incident was

witnessed by his mother and daughter, who have deposed in

favour of the prosecution. There is no reason for us to

disbelieve the evidence on record and we find that the

versions of the aforesaid two eyewitnesses are natural, cogent

and convincing.

20. In the light of the above, we find that there is no error

committed by the trial Court in the instant case while

convicting the appellant/accused under Section 302 of the

I.P.C. and sentencing him to suffer imprisonment for life.

Accordingly, we dismiss the appeal.

21. The fees of the learned counsel appointed for the

appellant/accused are quantified at Rs.5000/- (Rs. Five

Thousand).

      (Manish Pitale, J. )                        (R.K. Deshpande, J.)
                                        ...
halwai/p.s.