Bombay High Court
Balu Munkunda Pawar(Bhil) ... vs The State Of Maharashtra on 14 September, 2017
Bench: S.S. Shinde
(1) criapl270.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.270 OF 2013
Balu Mukunda Pawar, .. Appellant
Age-47 years, Occu-Labourer,
R/o. Bangeshwar Bhilati,
Samoda, Tq. Sakri, Dist. Dhule
Versus
1. State of Maharashtra .. Respondent
Mr.R.M.Deshmukh, Advocate for the appellant (appointed)
Mr.V.M. Kagane, APP for the respondent/State
CORAM : S.S.SHINDE &
S.M. GAVHANE, JJ.
RESERVED ON : 26.07.2017
PRONOUNCED ON : 14.09.2017
J U D G M E N T [PER:S.M. GAVHANE, J.]
. The appellant (hereinafter referred to as the
accused) who has been convicted and sentenced to suffer
imprisonment for life and to pay fine of Rs.2000/-
(Rupees Two Thousand), in default to suffer simple
imprisonment for two months for the offence punishable
under Section 302 of the Indian Penal Code (for Short the
IPC) as per the judgment and order dated 30.10.2009
passed by the Additional Sessions Judge, Dhule in
Sessions Case No.15 of 2009 has preferred this appeal
(2) criapl270.13
challenging the said judgment and order of conviction and
sentence recorded against him.
2. The facts of the prosecution case, in short, are
as under:-
A. The informant Shamrao Shankar Malich (PW-1) who
is resident of Mhasadi, Tq. Sakri, Dist. Dhule is the
father of the deceased Ushabai who was married to the
accused Balu Pawar who is resident of Gangeshwar Bhilati,
Samoda, Tq. Sakri, Dist. Dhule 10 years prior to the
incident of her death. The deceased and the accused have
three sons namely Kanhaiyalal (PW-2), Dinesh and Tushar.
B. After marriage the deceased went to the house of
the accused for cohabitation. She has begotten three sons
as above. It is alleged that at the time of Pola festival
of the earlier year of the incident the deceased, her
husband/accused and their children had come to the house
of the informant. At that time the deceased had told her
father (informant) that the accused is suspecting her
character and on that count he was torturing her.
Thereupon, the informant gave understanding to the
accused and they were sent to their village Samoda on
05.09.2008.
(3) criapl270.13
C. It is further alleged that in the morning on
06.09.2008 informant(PW-1) came to know from his relative
Bhavsha Bharat Pawar that in the night accused killed
Ushabai assaulting her by an axe and ran away. PW-1
rushed to the house of the accused and found Ushabai
lying in the pool of blood having sustained incised
injuries on her neck, ribs, hands and back. PW-1 asked
his grand-son Kanhaiyalal (PW-2) and upon asking his
grand son Kanhaiyalal told that accused assaulted the
deceased by an axe in the night and ran away from the
back door of the house. (PW-1) thereupon, immediately
went to the Police Station Pimpalner and accordingly
lodged the complaint. Treating the said complaint as FIR
Crime No.57/2008 for the offence punishable under Section
302 of the IPC was registered against the accused in the
said police station on the same day on 06.09.2008 at
06.30 am. and Assistant Police Inspector Avhad
immediately went to the spot of incident and prepared
inquest panchanama. Thereafter, he prepared panchanama of
spot of incident i.e. house of the accused and seized the
simple soil and soil mixed with blood as well as quilt
having blood stains under the same panchanama. So also,
he sent dead body in the Primary Health Centre,
Pimpalner, Tq. Sakri, Dist. Dhule for postmortem
examination where Medical Officer Dr. Mohane
(PW-3) and Dr. Sonwane conducted the postmortem
(4) criapl270.13
examination and issued postmortem report (Exh.17). They
had opined that the deceased died due to hemorrhagic
shock due to cutting of neck vessels as per injuries
mentioned in column No.17. They had also taken viscera
for chemical analysis. The Police Head Constable Bhagwan
Deochand Salve of Pimpalner Police Station seized the
clothes i.e. petticoat and blouse having blood stains of
the deceased and prepared panchanama. Thereafter, API
Avahad arrested accused on the same day i.e. 06.09.2008
and seized the pant and full sleeve shirt on the person
of the accused in presence of Panchas between 16.50 to
19.30 hours and since then the accused was in custody.
Thereafter an axe was seized at the instance of accused
in presence of panchas and separate panchanama was
prepared. API Avhad recorded the statements of some
witnesses including statement of Kanhaiyalal (PW-2) and
others on the same day. So also, the statement under
section 164 of Code of Criminal Procedure was recorded by
JMFC, Sakri. Seized clothes of accused, the deceased, axe
and samples of blood of the accused and the deceased were
sent to the Chemical Analyzer by API Avahad with letters
for analysis and report. He collected the reports of the
Chemical Analyzer.
D. After completion of the investigation API Avahad
submitted the charge-sheet against the accused in the
(5) criapl270.13
Court of JMFC, Sakri for the offence punishable under
Section 302 of the IPC. As the offence under Section 302
of the IPC was exclusively triable by the Sessions Court,
the learned JMFC committed the case to the Sessions
Court, Dhule, which was then made over to the Additional
Sessions Judge, Dhule.
E. The charge was framed against the accused for
the offence punishable under Section 302 of the IPC to
which the accused pleaded not guilty and claimed to be
tried. His defence is total denial and as it appears from
the trend of cross-examination of API Avhad his defence
is that unknown person has committed murder of his wife
Ushabai and on the say of complainant (PW-1) his father-
in-law his son Kanhaiyalal (PW-2) is shown eye witness to
the incident and false complaint is filed. No witness in
defence has been examined by the accused.
F. The prosecution has examined in all five
witnesses to prove charge against the accused and relied
upon the Panchanamas referred to above.
G. Upon considering the evidence adduced by the
prosecution the learned Additional Sessions Judge, Dhule
held that the prosecution has proved that death of the
deceased is homicidal and the accused has committed her
(6) criapl270.13
murder and as such held the accused guilty for the
offence punishable under Section 302 of the IPC and
sentenced him as mentioned earlier in introductory para
(supra) by the impugned judgment and order dated
30.10.2009.
H. Being aggrieved by the said judgment and order
the accused has preferred this appeal alongwith delay
condonation application bearing No.3339 of 2013 which was
condoned by the order dated 09.07.2013. The accused has
challenged the impugned judgment and order mainly on the
ground that the trial Court has erred in relying upon the
evidence of PWs. 1 to 5. It has further erred in
accepting the evidence of PW-2 Kanhaiyalal a child
witness of 9 years when said witness has admitted in the
cross-examination that there was dark inside the house
and the trial Court has failed to appreciate that there
was every possibility of tutoring Kanhaiyalal (PW-2) by
his grand-father Shamrao Malich (PW-1). The trial Court
has failed to consider the in consistency in the evidence
of Shamrao (PW-1) and the FIR (Exh.36) lodged by him as
he has deposed that incident took place after three days
of Pola festival, whereas in the FIR it is stated that
incident took place on the next day of Pola festival and
that said in consistency makes the evidence of Shamrao
Malich (PW-1) un-trust worthy. It has failed to
(7) criapl270.13
appreciate that the prosecution has not examined Mukunda
father of the accused and Bhavsha Pawar who informed
Shamrao Malich (PW-1) about the incident and as such non-
examination of the said witnesses is fatal to the
prosecution case. The trial Court has also failed to
appreciate that prior to arrest of the accused there was
seizure of axe as per panchanama (Exh.45). So also,
provisions of Section 313 of the Code of Criminal
Procedure are not properly followed. On the above grounds
accused has prayed to set aside the impugned judgment and
order and to acquit him of the offence under Section 302
the IPC by allowing the appeal.
3. In response to the notice learned APP has
appeared on behalf of the respondent/State.
4. Learned counsel for the appellant-accused made
submissions in the light of aforesaid grounds of appeal
and more particularly he submits that the evidence of
Kanhaiyalal (PW-2) who is admittedly the son of the
deceased and the accused and the child witness is not
properly considered by the trial Court when it is settled
law that a child witness being susceptible to tutoring
their evidence should be accepted with great caution and
the evidence of such witness cannot be implicitly relied
on. Further, it is submitted that conviction of the
(8) criapl270.13
accused cannot be based on sole testimony of PW-2-child
witness and evidence of child witness is to be evaluated
carefully and adequate corroboration to the said witness
is required from other evidence. It is submitted that the
evidence whatever brought on record by the prosecution is
not sufficient to state that the prosecution has proved
offence alleged against accused beyond reasonable doubt
and therefore, accused is entitled to be acquitted of the
offence for which he has been convicted by allowing
appeal.
5. In support of his submissions learned counsel
for the accused has relied upon following decisions.
A] In the case of Vikram Babasaheb Jadhav Vs
The State of Maharashtra reported in 2012 ALL MR
(Cri) 2548 the Bombay High Court in paragraph Nos.
15 and 16 observed as under:-
"15. Undoubtedly, a child is competent to
testify if he can understand and rationally
answer the questions put to him. However, it is
well settled that the children are often unable
to distinguish between what is true and what is
imaginary. They can easily betaught stories, and
once they have learnt a story by heart, it would
be difficult for them to distinguish it from
real happenings. The child witnesses are
susceptible to tutoring. The appreciation of
their evidence is a difficult task, as any
(9) criapl270.13
mistake or discrepancy in their statements, can
easily be ascribed to innocence or failure to
understand and undue weight is often given to
what can merely be a well taught lesson. It is
therefore, well settled that the evidence of a
child witness should be accepted with great
caution.
16. Considering the infirmities in the
evidence of Saurabh, such as non disclosure of
the manner of beating, method of beating,
weapon, if any, used during the beating, the
reaction of the victim i.e. Pushpa, while the
beating was going on, the reaction of the
appellate after the assault was over, and the
reaction of the witness himself during and after
the assault, it is difficult to believed that
Saurabh is narrating something, from his memory
of what he had seen. If he had seen the
incident, he would be expected to reveal some of
the details with respect to the incident, as
have been mentioned above. When his testimony is
so brief and incomplete, it would be difficult
to conclude that he had actually seen the
incident. Though the prosecution case was that
the appellant had assaulted Pushpa with an axe
and a stick, no efforts were made by the
Assistant Public Prosecutor to get the necessary
details from Saurabh during his examination in
chief. This creates suspicion that Saurabh would
not have been able to say anything more than
what he said viz. he saw that his mother was
being beaten by his Pappa and that mother became
unconscious and that she was taken to the
Hospital and that she died there. The narration
of these facts, therefore, it is quite likely,
was not based on what was observed by Saurabh
but on the basis of his knowledge of the
happenings which he might have derived
( 10 ) criapl270.13
subsequently from others. It is remarkable that
the statements, such as 'mother was taken to
hospital' and 'mother died in the Hospital' are
found in his evidence, which, obviously, are not
based on his personal knowledge. It is nobody's
case that he was taken to the Hospital alongwith
the mother or he was present in the Hospital
when his mother died there."
B] In the case of Bhagwan and others Vs State of
M.P., AIR 2003 Supreme Court 1088 in paragraph Nos.
19 to 22 it was observed as under:
"19. The law recognizes the child as a
competent witness but a child particularly at
such a tender age of six years, who is unable to
form a proper opinion about the nature of the
incident because of immaturity of understanding,
is not considered by the Court to be a witness
whose sole testimony can be relied without other
corroborative evidence. The evidence of child is
required to be evaluated carefully because he is
an easy prey to tutoring. Therefore, always the
Court looks for adequate corroboration from
other evidence to his testimony. See Panchhi and
others Vs State of U.P.(1998)7 SCC 177"
20. In the case before us, the trial judge
has recorded demeanour of the child. The child
was vacillating in the course of his deposition.
From a child of six years of age, absolute
consistency in deposition cannot be expected but
if it appears that there was a possibility of
his being tutored the Court should be careful in
relying on his evidence. We have already noted
above that Agyaram, maternal uncle of the child,
who first met him after the incident and took
him alongwith his younger brothers to his
( 11 ) criapl270.13
father's village, has not been produced by the
prosecution as witness in the Court. It was most
likely that if the child had seen the incident
and identified the three accused, he would not
have narrated it to Agyaram as the latter would
have naturally inquired about the same. The
conduct of his father Radheshyam who was
produced as a witness by the prosecution is also
unnatural that before recording the statement of
the child by the police, he made no inquiries
from the child.
21. We find some force in the submissions
made by the learned counsel appearing for the
State of Madhya Pradesh that looking to the age
of child and his two younger brothers, it was
most likely that they were with the mother and
sleeping with her when she had gone to stay with
her deceased father Mata Prasad. But the other
possibility of the children being fast asleep
when the elders of the house were attacked and
killed cannot be ruled out as the incident is
alleged to have happened in the midnight. Mere
presence of the children in the house at the
time of incident is no assurance to the case of
the prosecution that the eldest child got up on
hearing hue and cries and had not only seen the
incident but also identified the accused. Taking
into consideration the child psychology a lad of
six years having seen his mother being assaulted
would have raised a cry; but he says that he
quietly went back to sleep. It is also most
unnatural even for a child after witnessing his
mother being assaulted by known persons he would
go back to sleep to wake up late in the morning
only when his maternal uncle Agyaram came to
fetch him and his younger brothers to his
father's village Alampur.
( 12 ) criapl270.13
22. It is hazardous to rely on the sole
testimony of the child witness as it is not
available immediately after the occurrence of
the incident and before there were any
possibility of coaching and tutoring him. See
Paras 14-15 of State of Assam Vs Mafzuddin Ahmed
(1983)2 SCC 14. In that case evidence of child
witness is appreciated and held unreliable thus:
14. The other direct evidence is the deposition
of PW-7, the son of the deceased, a lad of 7
years. The High Court has observed in its
judgment:-
....the evidence of a child witness is always
dangerous unless it is available immediately
after the occurrence and before there were any
possibility of coaching and tutoring.
15. A bare perusal of the deposition of PW-7
convinces us that he was vacillating throughout
and has deposed as he was asked to depose either
by his Nana or by his own uncle. It is true that
we cannot expect much consistency in the
deposition of this witness who was only a lad of
7 years. But from the tenor of his deposition it
is evident that he was not a free agent and has
been tutored at all stages by someone or the
others."
6. Learned APP on the other hand submitted that
Kanhaiyalal (PW-2) was a child witness aged 9 years at
the time of incident. The incident took place on the
intervening night between 05.09.2008 and 06.09.2008 while
this witness was sleeping in the house with his two
brothers, deceased his mother and the accused his father
( 13 ) criapl270.13
and therefore, when there is no dispute regarding
presence of this witness and the accused in that night in
the house there is no reason to disbelieve the evidence
of this witness particularly when there is no material to
show that there was possibility of his tutoring. The
trial Court has rightly believed evidence of this witness
and held the accused guilty for the offence of murder of
his wife Ushabai. Thus, learned APP has claimed to
dismiss the appeal.
7. We have carefully considered the submissions
made by the learned counsel appearing for the accused and
the learned APP appearing for the respondent/State and
with their able assistance we have perused the evidence
adduced by the prosecution.
8. There is no dispute that on the night
intervening between 05.09.2008 and 06.09.2008 the
deceased and her three children were sleeping in the
house of the accused and at about 03.00 am death of the
deceased was caused and that her death is not natural.
Case of the prosecution is that death of the deceased is
homicidal. The accused in fact does not dispute the same.
However, to prove the same the prosecution has relied
upon evidence of Dr. Mohane (PW-3) and postmortem report
(Exh.17). Dr.Mohane who was Medical Officer in the
( 14 ) criapl270.13
Primary Heath Centre, Pimpalner at the relevant time has
deposed that on 06.09.2008 he performed the postmortem on
the dead body of Ushabai. He noticed following three
external injuries:
1] Incised wound anterior triangle at neck,
obliquely directed at the level of thyroid
cartilage, reddish brownish in colour, margin
sharp, clear cut everted 8 cm x 2.5 cm x 2.5 cm.
2] Incised wound-left side lower chest astero
lateral aspect from inframamtory region directed
downward.
3] Incised wound to left elbow lower arm,
lateral aspect, obliquely directed, reddish
brownish colour, margine sharp, clear cut,
everted, three in numbers of size 2 x 1/2 x 1/2
cm.
. According to Dr. Mohane above all injuries were
ante-mortem and possible by a sharp edged weapon such as
axe and that the said injuries are possible by Muddemal
Article-6 axe shown to him. He further deposed that cause
of death is due to hemorrhagic shock due to cutting of
neck vessels and also injuries mentioned in column No.17.
In the cross-examination his evidence that he noticed
above mentioned external injuries on the person of the
( 15 ) criapl270.13
deceased and as regards cause of death has gone un-
challenge. So also, he stated that he given opinion (Exh.
41) that the said injuries are possible by Muddemal
(Article-6) axe. The postmortem report (Exh.17) also
shows that Dr. Mohane noticed above mentioned external
injuries Nos. 1 to 3 as mentioned in the column No.17 of
the postmortem report and cause of death of the deceased
as mentioned in the postmortem report is as referred
above as deposed by him. Thus, on the basis of evidence
of Dr. Mohane, postmortem report (Exh.17) and
particularly on the basis of cause of death as deposed by
Dr. Mohane given in postmortem report, we hold that the
death of the deceased was caused due to injury No.1 on
the neck of the deceased and as such death of the
deceased was homicidal and the trial Court has rightly
held so.
9. Now it is to be seen, whether the accused is
responsible for causing external injury Nos. 1 to 3
referred above and particularly for causing injury No.1
i.e incised injury on neck due to which death of the
deceased was caused. To prove this fact the prosecution
has relied the evidence of following category.
(i) The evidence of eye witness Kanhaiyalal (PW-2)
(ii) The circumstantial evidence of the following
( 16 ) criapl270.13
nature.
(a) Death of the deceased was caused in the
house of accused in the night intervening
between 05.09.2008 and 06.09.2008 and false plea
of the defence of the accused.
(b) Seizure of axe having blood stains from the
accused.
(c) Seizure of clothes of the accused having
blood stains.
(d) Finding of human blood on seized clothes and
axe as per report (Exh.49) of the Chemical
Analyzer.
(e) Conduct of the accused to flee away in the
night after the incident and of not reporting
the incident to the police.
(f) Motive behind committing the offence.
10. Now coming to the evidence of Kanhaiyalal (PW-2)
who is admittedly son of the deceased and the accused. He
was aged about 9 years and he was studying in 4th Std.
when his evidence was recorded on 03.08.2009. As such, it
( 17 ) criapl270.13
is obvious that he was a child witness. Keeping in mind
the principles regarding appreciation of evidence of
child witness given by the Apex Court in the case of
Bhagwan Singh (Supra) and by the Bombay High Court in the
case of Vikram Babasaheb Jadhav (Supra) we shall proceed
to consider the evidence of PW-2.
11. The evidence of Kanhaiyalal (PW-2) is that he
has two brothers Dinesh and Tushar. The deceased was his
mother and the accused is his father. Alongwith his
parents he had gone to Mhasadi at his grand-father's
(PW-1's) house and it was Pola festival. They returned at
05.00 pm to their village. Further he deposed that they
all three brothers were sleeping in that night in the
house. He heard noise and therefore he got up. He saw his
father assaulting his mother by axe. His father ran away
from the back door of the house. He shouted. He went to
his grand-father and told that his father killed his
mother. He came there and police enquired with him. His
say was recorded. His statement was recorded at Sakri in
the Court. He identified Muddemal (Article No.6) axe.
12. In the cross-examination he stated that he has
been grazing cattle at Mhasadi. He does not want to go to
Samoda i.e. place of his father the accused. There was
dark inside the house but out side it was visible. In the
( 18 ) criapl270.13
night they three brothers were sleeping in the centre of
the room. Ushabai was sleeping towards back side of the
door. He has denied that in the night Balu-accused had
gone to work in the field of Sahebrao Dahite to irrigate
the crops. So also, he has denied that Shamrao Malich
(PW-1) told him what statement should be given before the
police. He stated that Rohidas Sonwane is his neighbor.
He was in visiting terms to their house. Prior to Pola
festival, first time quarrel between his father and
mother took place. Except that quarrel his father and
mother were okay. He denied that he is deposing false
that his father killed his mother. So also, he has denied
that he had seen the person going out side the house
looks like his father and therefore, he told that his
father killed his mother. Moreover, he has denied that
his grand-father Shamrao (PW-1) tutored him and
accordingly he is deposing false. He has denied that his
father came in the morning and he was weeping by holding
the dead body of his mother/deceased. He has stated that
when he got up he saw that his father ran away from back
door of the house. Thus, nothing is found in favour of
the accused in the cross-examination of PW-2.
13. As far as competency to depose of PW-2 a child
witness is concerned as noted above when his evidence was
recorded he was studying in 4th Std. and he was aged 9
( 19 ) criapl270.13
years old. It appears from his deposition (Exh.39) that
to ascertain whether he is competent to depose and to
know whether he is having maturity and understanding the
learned Additional Sessions Judge, put him as many as
eight questions which were answered by him properly and
on the basis of answers to said questions it can be
definitely said that PW-2-Kanhaiyalal is a competent to
depose.
14. As noted above it has come in the evidence of
PW-2 that when his evidence was recorded he was residing
at Mhasadi naturally at the village of his grand-father
(father of the deceased) and he has stated that he does
not want to go to Samoda village of accused. He claims
that he saw the accused assaulting his mother-the
deceased by axe and then accused ran away by the back
door of the house. Naturally therefore, due to
apprehension of accused he must be saying that he does
not want to go to Samoda at the house of the accused.
Moreover, he has denied the suggestions given to him in
the cross-examination on behalf of the accused that
he is deposing false that his father-the accused killed
his mother, he had seen the person going outside the
house looks like his father and therefore, he told that
his father killed his mother and that his grand-father
Shamrao Malich-(PW-1) tutored him and therefore he is
( 20 ) criapl270.13
deposing false. Therefore, when he has denied suggestions
as above he is competent to depose and when his mother
was assaulted by an axe by his father-the accused the
possibility of tutoring him by his grand-father Shamrao
Malich (PW-1) has been ruled out. On the contrary when he
along with his two brothers was sleeping in the house and
when he heard shouts of the deceased after she was
assaulted by axe by his father-the accused it was quite
natural for him to wake up and to see the incident of
assaulting his mother by his father-the accused. The
accused is his father and deceased was his mother.
Therefore, when he saw the incident as above of
assaulting his mother by his father-the accused, there is
no reason for him to unnecessarily implicate his father.
Leaving the real culprit.
15. Another aspect to be noted is that as noted
above Kanhaiyalal (PW-2) has denied suggestions given to
him that accused had gone to the work in the field of
Sahebrao to irrigate the crops in that night and further
he has denied that accused came in the morning and was
weeping by holding the dead body of the deceased. By
these suggestions accused wanted to show that he was not
in the house in the night of the incident. But when
Kanhaiyalal (PW-2) has denied suggestions as above, when
accused has not stated anything in this respect in his
( 21 ) criapl270.13
statement under Section 313 of the Code of Criminal
Procedure, when Sahebrao in whose field as per suggestion
the accused had allegedly gone in that night to irrigate
the crops has not been examined and when API the
Investigating Officer has also denied suggestions given
to him on behalf of the accused that unknown person had
committed the murder of Ushabai it cannot be said that
accused was not present in his house in the night of
incident and as such defence as above of the accused is
not acceptable.
16. It has come in the evidence of Kanhaiyalal
(PW-2) as referred earlier that after the incident he
went to his grand-father and told his grand-father that
accused killed his mother. Whereas it has come in the
evidence of his grand-father Shamrao Malich (PW-1) that
one Bhavsha came to him and told him about incident and
Shamrao Malich (PW-1) does not claim that Kanhiyala
(PW-2) informed him about the incident. Thus, there is
inconsistency in this regard in the evidence of PW-1 and
PW-2. But the said is not material inconsistency and
sufficient to discard the direct evidence of Kanhaiyalal
(PW-2) son of the deceased. For the above reasons and
careful evaluation of evidence of Kanhaiyalal (PW-2) we
hold that the evidence of Kanhaiyalal is quite natural
and trust worthy and on the basis of his evidence an
( 22 ) criapl270.13
interference can be drawn that on the intervening night
between 05.09.2008 and 06.09.2008 at 03.00 am his father-
the accused assaulted his mother the deceased by axe and
then accused ran away from the back door of the house. As
referred earlier Dr. Mohane has stated that external
injury Nos. 1 to 3 and more particularly injury No.1
incised wound of the neck of the deceased noticed by him
is possible by axe Article-6. Therefore, it can be said
that evidence of Dr. Mohane has corroborated the evidence
of Kanhaiyalal (PW-2) that the accused assaulted the
deceased by axe. Therefore, there is absolutely no reason
to disbelieve the evidence of Kanhaiyalal (PW-2) and
trial Court has rightly believed the said evidence.
17. Naturally therefore, the arguments advanced by
the learned counsel appearing for the accused that there
is possibility of tutoring to Kanhiaylala (PW-2) by
Shamrao Malich (PW-1) is not acceptable.
18. Now coming to the circumstantial evidence (a) to
(f) as regards the circumstance (a) there is no dispute
that the deceased and her three children including
Kanhaiyalal (PW-2) were present in the house in the night
of incident. So also, as observed earlier PW-2 has denied
suggestion given to him that the accused was not present
in the house in the night of incident and it is held that
( 23 ) criapl270.13
the accused was very well present in the house in the
night of incident. Admittedly the dead body of the
deceased was found in the night of incident in the house
of the accused. In such circumstances when accused was
very well present in the house in the night of incident
with the deceased and his three sons and dead body of the
deceased was found in his house and when his plea of
absence in the house in the night of incident is not
accepted as observed above it was incumbent on the
accused as per Section 106 of the Evidence Act to explain
as to how the death of the deceased was caused. It was
tried to suggest Kanhiayalal (PW-2) that he had seen the
person going outside the house who looks like his father-
the accused and therefore, he told that his father killed
his mother but he has denied the said suggestions. So
also, API Avhad (PW-5) Investigating Officer as referred
earlier denied suggestion given to him that unknown
person had committed murder of Ushabai. The accused has
not stated anything in this respect in his statement
under Section 313 of the Code of Criminal Procedure. So
also, he has not examined any defence witness to bring on
record the fact that somebody else committed murder of
the deceased. Moreover, there was no suggestion in this
respect to the witnesses except PWs-2 and 5. Therefore,
there is absolutely nothing on record to state that the
accused has explained under what circumstances death of
( 24 ) criapl270.13
his wife-the deceased was caused and how he is not
responsible for the death, in the light of provision
under Section 106 of the Evidence Act. Thus, failure of
the accused to explain under what circumstances death of
the deceased was caused is a circumstance against him.
19. As regards circumstance (b) regarding seizure of
clothes i.e. pant having blood stains and full sleeve
shirt having blood stains of the accused as per
panchanama (Exh.15) is concerned the accused has admitted
seizure of the said clothes. As regards circumstance (c)
regarding seizure of axe Article-6 at the instance of
accused as per panchanama (Exh.45) is concerned it has
come in the evidence of panch Pramod Patil (PW-4) and API
Avhad (PW-5)-Investigating Officer that on 06.09.2008
while accused was in police station he produced axe
(Article-6) and the same was seized under panchanama
between 18.00 to 18.30 hours i.e. between 06.00 pm to
06.30 pm and evidence of said witnesses in this respect
is not shuttered in the course of their examination
except the fact that after the said Panchanama (Exh.45)
of the seizure of axe on 06.09.2008 the accused was
arrested as per panchanama (Exh.15) between 15.50 to
19.30 on the same day. Simply because axe was seized
earlier and then accused was arrested it can not be said
that there was any illegality or irregularity in the
( 25 ) criapl270.13
investigation in respect of seizure of axe. Thus we hold
that prosecution has proved seizure of axe and clothes of
accused having blood stains as per panchanama (Exh.15 &
45).
20. As regards circumstance (d) it is the case of
the prosecution that seized clothes of the accused,
deceased and axe as well as sample of the blood of the
accused and deceased were sent to the Chemical Analyzer
and the reports of the Chemical Analyzer (Exh.18,19 and
49) were collected. Exh.18 C.A. Report in respect of
blood of the deceased shows that blood group of the
deceased cannot be determined as the results are in
conclusive. The Chemical Analyzer's report (Exh.49) shows
that human blood was found on Article-6 i.e. axe.
Article-7 full pant and Article-8 full shirt of the
accused. Of course this report does not show that the
blood of a particular group was found on the said
articles. The blood group of the deceased was not
determined as per report (Exh.18) of the Chemical
Analyzer as stated above. Therefore, it cannot be said
beyond doubt that whatever blood was found on the clothes
of the accused and axe (Article-6) as per Chemical
Analyzer's report (Exh.49) was blood of the deceased.
However, the fact remains that human blood was noticed on
the clothes of the accused and on the axe seized at his
( 26 ) criapl270.13
instance. Therefore, he was under obligation to explain
how human blood was found on his clothes and axe. But he
has not given any explanation in this respect. Therefore,
finding of human blood on the clothes of the accused and
axe is also an incriminating circumstance against him.
21. As regards circumstance (e) it has come in the
evidence of Kanhaiyalal (PW-2) son of the accused that
accused assaulted the deceased by axe and accused ran
away by the back door of the house. This evidence of
Kanhaiyala has gone un-challenged in his cross-
examination. As discussed earlier accused tried to show
his absence in the house in the night of incident but
said plea of the accused is not accepted. Thus, it is
obvious that after the incident in the night the accused
fled away. So also, it is not the case of the accused
that he informed police about death of his wife, Thus
this conduct of accused to flee away from the spot of
incident after the incident of death of his wife the
deceased and non informing the incident to the police is
an additional incriminating circumstance against him
which points out his guilt.
22. As regards the circumstance (f) it is the case
of the prosecution that one day earlier to the incident
i.e. on 05.09.2008 accused, deceased and their son
( 27 ) criapl270.13
Kanhaiyalal (PW-2) had come to the house Shamrao Malich
(PW-1) at the time of Pola festival and at that time the
deceased had told her father that the accused was
suspecting her character. Shamrao Malich (PW-1) convinced
and sent them to Samoda village of accused. Shamrao
Malich (PW-1) has deposed in accordance with above
contention of the prosecution. In his cross-examination
his evidence in this respect is not shattered. Naturally
therefore, it can be said that the accused had motive to
commit the offence of murder of his wife-deceased as he
was suspecting her character.
23. For the reasons discussed above on the basis of
circumstances (a) to (f) which are proved it can be said
that said circumstances have sufficiently corroborated
the evidence of eye witness Kanhaiyalal (PW-2) a child
witness who has no reason to depose false against his
father-the accused in respect of murder of his mother by
the accused. It is held that death of the deceased is
homicidal. Thus, we hold that the accused has caused
external injury Nos. 1 to 3 noted by Dr. Mohane (PW-3) on
the person of the deceased including external injury No.
1 i.e. insized wound over the neck which can be caused by
the axe as deposed by said Dr. Mohane which ultimately
resulted into death of the deceased. Therefore, we hold
that the prosecution has proved the offence under Section
( 28 ) criapl270.13
302 of the IPC beyond reasonable doubt against the
accused. Trial court has rightly held so. The sentence
recorded by the trial Court for the said offence against
appellant-accused is also in proportionate to the
sentence provided for the offence under Section 302 of
the IPC. Thus, there is absolutely no reason to interfere
with the impugned judgment and order of conviction and
sentence recorded against the accused. The accused is in
jail. Thus, the criminal appeal being devoid of merits
the same is liable to be dismissed. Accordingly we
dismiss the same.
24. Learned Advocate Mr. R.M. Deshmukh, was
appointed to represent the appellant-accused. We
appreciate his sincere efforts in conducting the matter
to arrive at the proper conclusion. We quantify his fees
at Rs.7,500/-.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
VishalK/criapl270.13
