Muktabai Zipar Kanoj vs State Of Maharastha
2021 Latest Caselaw 6034 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPEAL NO.305 OF 1998

Muktabai Zipper Kanoje                        .. Appellant
     Versus
The State of Maharashtra                      .. Respondents

                               ...
Mr.Bhavin Jain for the appellant
Mr.Y.Y. Dabake, APP for the State.


                           CORAM: BHARATI DANGRE, J.

DATED : 5th APRIL 2021.

JUDGMENT :-

1 The appellant, was charged for committing an offence under Section 302 IPC for committing murder of her husband Zipper G. Kanoje by assaulting him by means of an axe on his face, on being annoyed that the deceased had asked her whether the dinner was ready and abused her on that count.

2 For the charge of murder, she was tried by the 5 th Addl. Sessions Judge, Nashik and vide judgment dated 2 nd December 1997, came to be convicted for the offence punishable under Section 304(II) of IPC and sentenced to suffer RI for five years. The benefit available to her under Section 428 of Cr.P.C has also been granted.

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3                 The present Appeal is filed challenging the said
judgment.

I have heard Mr.Bhavin Jain, learned counsel for the appellant and Mr.Y.Y Dabake, learned APP for the State.

4 Learned counsel for the appellant assail the said judgment on the ground that it is solely based on extra-judicial confession and the prosecution has failed to prove the guilt of the accused by bringing on record cogent and reliable evidence. The submission of the learned counsel is to the effect that the discrepancies in the evidence of the prosecution witnesses leading to the discovery of axe is highly detrimental to the case of the prosecution when the cumulative effect of the testimony of PW 2

- the panch to the Inquest and Spot Panchnama, PW 3 - the panch to the recovery of axe and PW 6 - the Investigating Officer is perused. Since the testimony of the said witnesses create a doubt according to the learned counsel for the appellant, the benefit of doubt must go to her and she is entitled for an acquittal.

5 Per contra, the learned APP would support the impugned judgment and submit that the impugned judgment has already conferred the possible benefit on the appellant and though being charged under Section 302, in absence of any intention to cause such bodily injury as is likely to cause death,

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the offence has been held to be covered by Part II of Section 302 of IPC and held to be not a 'murder', and was categorized as the case of culpable homicide not amounting to murder. Drawing inference from the evidence placed on record by the prosecution, the learned APP would submit that though extra-judicial confession is a weak piece of evidence, if the prosecution case finds corroboration in form of other evidence brought on record, the conviction can be sustained on the basis of the said evidence. He, therefore, seek dismissal of the present Appeal.

6 In order to establish the charge levelled against the accused, the prosecution examined six witnesses which include the two witnesses who speak of the extra-judicial confession made by the accused to them. The first witness is PW 1, the Police Patil of the village Sapatpali who was acquainted with the deceased and the accused. He is also the informant who had lodged the report with Harsul Police Station resulting into the offence being registered against the accused. It is the version of PW 1 that on 17th July 1997, when he was present in the field in the evening, PW 4 Yashwant - son of the deceased and the accused came there and informed him that his father was murdered and he should accompany him to his house. On reaching the house, PW 1 found the dead body of Zipper near the hearth in the house and there were injuries on the face of the deceased. The accused was present at the house and on being inquired as to what had

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transpired, she was reluctant to speak but when repeatedly asked, disclosed to PW 1 that she herself had assaulted her husband by means of an axe as her husband had rushed towards her to assault her and questioned her as to why she had not prepared food. On the basis of the said confession, PW 1 approached Harsul Police Station and got his report reduced into writing and signed the same. The report lodged with the police station is exhibited at the instance of this witness as Exhibit-6 and it is in sync with his deposition. The said witness also deposed that before proceeding to the police station, he had taken an entry about the statement made by the accused in his Police Patil diary and the same was also exhibited at the instance of this witness who denied the suggestion that the accused had visited his house and informed him that her husband died by falling on a stone.

7 Corroborating the version of the said witness, is the son of the accused and the deceased PW 4 Yashwant. Yashwant is the middle son of the couple and was residing separately along with his wife and children. On the date of incident, when after finishing his field work, he returned to the house at 6.00 p.m and went to the house of his parents for tying the cattles, in the cattle shed, he noticed his mother weeping in the house. On inquiry, she disclosed that a quarrel had ensued between herself and his father on account of not cooking of food and she had picked up an axe and gave a blow on the face of his father. He witnessed the

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dead body of his father lying in the house. PW 4 deposed that he rushed to the field of village Police Patil (PW 1) and informed him about the incident who accompanied him to his house.

He corroborated PW 1 by deposing that inquiries were made with his mother as to how his father died and at that time, his mother had disclosed about the quarrel and that she had assaulted her husband by means of an axe.

8 The testimony of the two witnesses corroborate with each other on the point of extra-judicial confession by the accused and the chronology of events from the point when PW 4 noticed his mother in the house along with his father being dead. Learned counsel for the appellant would urge that the prosecution case cannot solely rely on the extra-judicial confession and he would submit that there is grave discrepancy in the evidence of the other witnesses, which would demonstrate that the prosecution has failed to corroborate the confession, to take its case on higher pedestal and to place it beyond reasonable doubt.

PW 2 - a resident of same village Sapatpali is examined as a panch to the Inquest Panchnama and also the Spot Panchnama. He deposed that on 17 th July 1997, he was called by the police to the house of the deceased for executing a panchnama. The dead body of Zipper was lying near the oven in the house with an injury on his face and the Inquest Panchnama

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was prepared which bear his signature. Inquest panchnama exhibited as Exhibit-9 record that it was transcribed between 22.00 hrs to 23.00 hrs. The panchnama in great detail refer to the position of the dead body in the kitchen and also describe the injuries on the face. The dead body was identified by PW 4 to be of his father. PW 2 is also a signatory to the spot panchnama which was drawn between 23.05 hrs to 23.50 hrs and contain a detail description of the spot. Spot panchnama record the blood stains on the area near the cooking place and on the spot, the following articles were found and seized, being (i) earth mixed with blood stains near the cooking place (ii) ordinary soil found nearby (iii) one white colour headgear (topi) smeared with blood.

9 In his deposition before the Court, PW 2 referred to the spot panchnama prepared by the police depicting the scene of offence and he state that there was seizure of an axe, a cap stained with blood and earth/soil stand with blood from the spot. He deposed that as per the situation of the scene, the police prepared the panchnama. The muddemal property, article no.3 (cap) has been identified by the witness in the witness box.

The submission of the counsel for the appellant is that the said witness has referred to seizure of an axe from the scene of offence but there is a contradiction in the case of prosecution as PW 3 - a panch on recovery of axe gives a different version. PW 3 is a panch on the memorandum recorded

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under Section 27 of the Evidence Act on 18th July 1997 when the appellant led to the discovery of the axe which was used as a weapon for assaulting the deceased. PW 3 has deposed before the Court that he was called to the Harsul police station on 18 th July 1997 when the accused disclosed that she would produce the axe from the loft of her house. He further state that the accused accompanied the panchas and the police patil and led to her house from where she produced an axe which was stained with blood which came to be seized. In the cross-examination, the witness admit that the exercise was carried on 17 th July 1997 and it was 9.00 or 9.30 p.m when he went to the police station and when they reached village Sapatpali, it was 11.00 to 11.30 p.m. The Memorandum which is exhibited as Exhibit-12 bear the date '18th July 1997' and the statement of the accused is recorded between 8.00 to 8.15 a.m on 18th July 1997. The memorandum panchnama record that the panchas and the police Patil along with the accused travelled in the jeep at 8.15 am and reached Sapatpali village at 8.30 a.m. On reaching near a temple, the accused led them to her residential house which also comprise of a cattle shed and she procured the weapon from the loft of the said cattle shed, being an axe which was taken in possession. The said document record that the work of execution of panchnama commenced at 8.25 am and ended at 9.15 am on 18th July 1997.

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10              The Investigating Officer is PW 6, who has registered

the offence on the complaint of Police Patil - PW 1. He referred to the Inquest Panchnama and the Spot Panchnama and deposed that on the next day, he arrested accused Muktabai and prepared Arrest Panchnama (Exhibit-4). She being subjected to interrogation made a statement before him and the panchas that she is willing to lead them to an axe which is used by her for the assault and she had concealed the same on the loft of her cattle shed and she is ready to produce the same. He deposed that on such a statement being made, he escorted the accused in a police jeep along with the panchas and on entering the cattle shed, the accused produced an axe from the mezanine floor of the cattle shed which had blood stains on it. The axe was seized in presence of panchas by drawing a panchnama. From the version of the aforesaid witnesses of the prosecution, PW 3 who has deposed that the panchnama was drawn on 17th July 1997, a contradiction appears on record. In the chief-examination, PW 3 has referred to the incident when he was called at the police station on 18 th July 1997 and admit of signing the Memorandum which was exhibited before the Court as Exhibit-12. However, in the cross- examination, he referred to the timings when the accused was taken to her house from police station at 9.00 or 9.30 pm on 17 th July 1997 and further state that they reached village Sapatpali at 11.00 to 11.30 p.m. Thus, as far as the recovery of the axe is

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concerned, the prosecution case falter and the recovery of the axe vide the memorandum under Section 27 cannot be of any assistance to the case of the prosecution.

11 Let me now turn to the other evidence of the prosecution, being the medical evidences and whether it corroborate the extra-judicial confession. The body of the deceased was handed over for post mortem to PW 5 who performed the post mortem between 00.30 pm to 1.30 p.m. The following injuries were noticed :-

(i) Naxal bone was fractured and depressed completely.

(ii) Manilla right side depressed and fractured completely.

Left side maxilla was also fractured and depressed.

(iii) Upper lip was lacerated and absent completely from left to right mouth angle having size 8 ½ cm x 1 ½ cm with blood clots.

(iv) CLW over left lower lip lateral 1/3 obliquely directed having size 3 ½ x 1 cm x 1 cm.

(v) CLW over right side of chin oblique in direction below the lip having size 3 x ½ x ½ cm. Deep bone seen.

(vi) Fracture of mandible bone over chin middle 1/3rd completely.

(vii) CLW on right maxilla 1 cm lateral to right nostril oblique in direction having size 2 x ½ x ½ bone deep.

(viii) CLW over foreheading between both eyebrows, vertical direction having size 3 x ½ cm x bone deep.

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(ix) Abrasion over left side of nose extending left to right side at tip of nose having size 3 ½ cm x ½ cm x skin deep.

(x) Black coloured skin on right eye lid upper and lower side.

The injuries were described to be within 24 hours caused by a hard, blunt, rough, heavy body. All the injuries were described as ante mortem. Perusal of the injury nos.1 to 10 would reveal that all the injuries are on the face. There is a fracture of base of the skull, obliquely being sized 8 x 1 x 6 cm. Face bone was also reported to be fractured, and as per PW 5, the cause of death was due to shock due to fracture of face of skull bones due to depressed fracture of bones.

12 The medical expert also opined that the above injuries can be possible by assault with an axe like muddemal property (article 4) shown to him from its blunt side. The medical report and the injuries correspond to the extra-judicial confession by the accused made to PW 1 where she had stated that she had assaulted by means of an axe on his face and this is mentioned in the report lodged by PW 1 in the police station, which resulted into an offence being registered against her. This is corroborated by PW 4 who has also deposed that his mother had confided in him that in the course of quarrel, she had picked up an axe and dealt an axe blow on his face. The inquest

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panchnama and the post mortem report corroborate the said version as the injuries sustained by the deceased are only on his face and on no other portion of the body. The report of the Chemical Analyser which has analysed the blood mixed earth and has reported that the said axe is stained with blood and the blood detected is human blood. The cap recovered from the spot has revealed blood stains ranging from 0.5 to 5 cms, spread at places and the said blood is also opined to be human blood. The extra- judicial confession of the accused that she had killed her husband near the hearth as the quarrel had ensued on account of not cooking of the food and in order to avoid the assault at the hands of the deceased, she had assaulted by means of an axe, finds corroboration from the report of the Chemical Analyzer which establish that the incident had taken place at the spot described in the spot panchnama (Exhibit-10) and the blood mixed earth corroborate the assault at the spot described in the panchnama.

13 There cannot be dispute about the well settled proposition that extra-judicial confession is a weak piece of evidence and cannot be relied upon solely by accepting it as a substantive piece of evidence but the prosecution case must find some corroboration to such a confession. However, a truthful extra-judicial confession made voluntarily and without any inducement can be made a basis for recording a conviction against a person making such a confession. Such a statement being made

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should be considered with great caution and it should be ascertained whether it is voluntary, true and trustworthy and capable of inspiring confidence. The Court should make a conscientious search to see whether it leads to truth and avert miscarriage of justice. The confession made by the accused in the present case is the one which satisfy the aforesaid test of it being worthy of confidence for more than one reason. The said confession on the part of the accused at the very first opportunity was made to her own son PW 4. The statement promptly made by the accused and gain support from the surrounding circumstances deposed by PW 4, her son who has deposed about the scenario in the house where body of his father was lying, with injuries on his face near the cooking place, and this corroborated the version of the accused who had stated to him that she assaulted him by means of an axe on his face. With equal promptitude, PW 4 rushed to the Police Patil, PW 1 who arrived at the spot and the accused once again repeated her confession about assaulting her husband and the cause for such an assault. Her statement is voluntary and trustworthy when read with the circumstances narrated by PW 4 and PW 1. Not only this, when the statement was made by the accused, she was found to be in fit state of mind as PW 1 has stated that when he reached the incident, she was sitting outside the house. She gave the confession in clear and unambiguous words, clearly conveying to PW 1 and PW 4 that she had assaulted the deceased with axe on

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his face when a quarrel ensued between them and his body was found lying near the hearth and spotted by PW 1 and PW 4.

14 The prosecution has therefore, not rest its case not only on the extra-judicial confession but also has strengthened the case by the surrounding circumstances brought before the Court in form of evidence by PW 1, PW 4, PW 5 and PW 6.

15 The Sessions Court while determining the nature of offence committed by accused has given due weightage to the act of the accused which caused his death being an axe blow on his face. On perusal of the evidence, the Sessions Judge has rightly recorded that the attack/assault took place when the quarrel suddenly started between the husband and wife over a trivial ground of non-cooking of food by the accused and since he consumed liquor, he attempted to assault the accused. Holding that there was no pre-meditation on the part of the accused and she dealt the blow in the sudden quarrel in absence of any motive, the trial Court has already held her to be guilty of an offence under Part II of Section 304, not amounting to murder. Keeping in mind that the accused assaulted her husband by giving 2 to 3 axe blows on his face which resulted in his death, as opined by PW 5, she has been sentenced to suffer RI for five years. The Sessions Judge has already taken a lenient view and in my considered opinion, perfectly justified in doing so, since in

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absence of any motive or intention to kill the deceased, the act of the accused would squarely attract Part II of Section 302 of IPC. I do not see any legal infirmity or any perversity in the judgment passed by the Addl. Sessions Judge, Nashik in Sessions Case No. 176 of 1997 and in absentia, the Appeal must fail.

16 Criminal Appeal No.305 of 1998 is dismissed.

SMT. BHARATI DANGRE, J

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