Maroti vs The State of Maharashtra

A.M. Badar, J.—By this appeal, appellant/accused is challenging the judgment and order dated 23.7.2012, passed by the learned Additional Sessions Judge, Majalgaon, District Beed, in Sessions Case No. 11/2011 thereby convicting appellant/accused of the offence punishable under Section 302 of IPC and sentencing him to suffer rigorous imprisonment for life, apart from paying fine of Rs. 1,000/-, in default to undergo simple imprisonment for a term of one month.

According to prosecution case, appellant/accused married Vrandawani (since deceased) about 18 years prior to the incident of her alleged murder. The couple used to reside at Azad Nagar area of Majalgaon, District Beed. It is case of the prosecution that the accused was addicted to liquor and he was not doing any work. He used to remain idle. The accused used to demand money from his wife Vrandawani in order to satisfy his habit of drinking liquor. This conduct of the accused used to cause quarrel amongst the couple. According to the prosecution case, PW-1 Umesh Kamble is brother of Vrandawani. He used to reside in the neighbourhood. He alongwith neighbourers used to pacify the quarreling appellant/accused. According to the prosecution, at about 6.30 p.m. on 2.8.2010, appellant/accused quarreled with Vrandawani and PW-1 Umesh Kamble pacified appellant/accused. Thereafter, in the morning of 3.8.2010, appellant/accused started quarreling with Vrandawani. PW-1 Uttam heard noise of his quarrel and therefore, he immediately rushed to the house of his sister Vrandawani. He saw appellant/accused abusing Vrandawani. Then, in presence of PW-1 Umesh, appellant/accused gave a blow of an axe on the right portion of head of Vrandawani. Upon hearing shouts of PW-1 Umesh, PW-4 Navnath Dhayje and other neighbourers also rushed to the house of appellant/accused. Because of blow of an axe on her head, Vrandawani suffered bleeding injury and therefore, she was rushed to the civil Hospital Majalgaon. Subsequently, she was referred to civil Hospital Beed and thereafter, to the Civil Hospital Aurangabad, where, she died at about 4.00 p.m. of 3.8.2010 itself.

After post mortem examination, dead body of Vrandawani was handed over to PW-1 Umesh Kamble on 4.8.2010. After funeral rites on the dead body, PW-1 Umesh Kamble, lodged FIR on 4.8.2010, which resulted in registration of Crime NO. 114 of 2010 for the offence punishable under Section 302 of IPC against the appellant/accused.

Routine investigation followed. The spot was inspected in presence of panch witnesses and a quilt, two pillows and an axe stained with blood came to be seized from the spot. Statement of witnesses came to be recorded. The seized Muddemal property was sent for chemical analysis. According to the prosecution case, appellant/accused was absconding. He was arrested on 17.3.2011.

After committal of the case, the learned Additional Sessions Judge, framed charge for the offence punishable under Section 302 of Indian Penal Code. It was read over to the accused, who pleaded not guilty and claimed trial.

In order to bring home the guilt to the accused, prosecution has examined as many as 8 witnesses, including 2 eye witnesses namely, PW-1 Umesh Kamble and PW-4 Navnath Dhayje. The defence of the appellant/accused before the learned trial court was to the effect that his wife Vrandawani wake up in wee hours for answering the call of nature suffered a fall on heap of boulders kept near their house. Because of head injury caused due to fall on heap of boulders, according to defence, Vrandawani died accidental death.

After hearing the parties, the learned trial court came to the conclusion that the appellant accused committed murder of his wife Vrundawani on 3.8.2010, at his residential house. Accordingly, the appellant/accused was convicted for the offence punishable under Section 302 of IPC and was sentenced to suffer punishment, as stated in the opening paragraph of this judgment.

Heard Shri A.K. Bhosle, learned counsel for appellant/accused. He vehemently argued that the evidence of the alleged eye witnesses PW-1 Umesh Kamble and PW-4 Navnath Dhayje is not at all trustworthy and acceptable. He further argued that their evidence is contrary to the medical evidence and therefore, needs to be discarded. By bringing our attention to the evidence of Autopsy Surgeon PW-6 Dr. Kailash Zine, the learned counsel for the appellant submitted that during autopsy, 3 injuries were found on the head of deceased Vrandawani, whereas, PW-1 Umesh has deposed that appellant/accused has dealt a single blow of axe on the head of the deceased. He further argued that though the incident was witnessed by brother of the deceased Vrandawani on the same day, he lodged report to police on the next day and as such, there is delay in lodging FIR. Hence, according to the learned counsel for appellant, the learned trial court has erred in recording conviction against the appellant/accused. To buttress his submissions, he relied upon the following decisions :-

[1] Kochu Maitheen Kannu Salim Vs. State of Kerala,

[2] State of Gujarat Vs. Patel Mohan Mulji and another, .

[3] State of Punjab Vs. Rakesh Kumar @ Painta,

[4] Subramaniam Vs. State of Tamil Nadu and Another, .

Learned counsel for appellant/accused further submitted that it is the duty of the prosecution to prove its case beyond all reasonable doubt. According to him, evidence of PW-4 Navnath shows that he was inside the compound of the house and had left an axe near heap of stones. However, spot panchanama at Exh. 20 shows that the axe allegedly used in commission of crime was seized from one of the rooms of the house of the appellant/accused. In submission of the learned counsel for the appellant/accused, the prosecution has failed to prove its case beyond reasonable doubt and, therefore, applying ratio of decisions in Pravin Vasant Deshmukh Vs. State of Maharashtra 2006 All M.R. (Cri.) 1361 ; Kundan Gangaram Sirsat Vs. The State of Maharashtra--> ; Satyanarayan Vithal Ambat Vs. The State of Maharashtra, and Rangrao Mithuji Kalokar Vs. State of Maharashtra, 2006 All M.R. (Cri.) NOC 102, benefit of doubt needs to be granted to the appellant/accused.

Learned counsel for the appellant/accused drew our attention to para 28 of the judgment of the learned trial court, wherein, it is observed that the conduct of the appellant/accused in not turning up for more than 7 months to the house, indicates his guilt. According to learned counsel for appellant/accused, learned trial court has relied upon alleged conduct of the appellant/accused in absconding and contended that even if it is held that the appellant/accused was absconding, that by itself, is not sufficient to infer the guilt of the appellant/accused in commission of the crime in question. In support of this contention, he further relied upon judgment of the supreme court in State through State Vs. Mahender Singh Dahiya, and Sk. Yusuf Vs. State of West Bengal, .

Lastly, in submission of learned counsel for appellant/accused, according to prosecution case, as only one blow of axe was dealt by the appellant/accused, he cannot be convicted for the offence punishable under Section 302 of IPC. Reliance is placed on Dnyaneshwar Dagdoba Hivrekar Vs. The State of Maharashtra, ; and Smt. Indubai Arjun Wagh Vs. The State of Maharashtra, .

Mrs. Chincholkar, learned APP appearing for the State, supported the impugned judgment and order, by arguing that the learned trial court has correctly appreciated the evidence on record and arrived at the conclusion that the charge leveled against the appellant/accused is proved.

With the assistance of learned counsel appearing for both the parties, we have carefully perused the entire record and proceedings, including the depositions of witnesses. It is case of the prosecution that appellant/accused had committed murder of his wife Vrandawani by intentionally and knowingly causing her death by assaulting her by means of an axe at their residential house at about 7.30 a.m. on 3.8.2010. PW-1 Umesh Kamble is brother of deceased Vrandawani. He is the informant in this case. His evidence shows that his sister Vrandawani died at about 4.00 p.m. on 3.8.2012, at Civil Hospital Aurangabad and after funeral he lodged report Exhibit 12 against the appellant/accused on 4.8.2010. Being an eye witness to the incident in question, he vividly narrated how the incident in question happened. It is in his evidence that appellant/accused used to demand money from Vrandawani for consuming liquor and he used to pick up quarrel with her. PW-1 Umesh has stated in his deposition that at about 6.30 p.m on 2.8.2010, there was quarrel between appellant/accused and Vrandawani, requiring his intervention. Then, as per version of PW-1 Umesh, at about 7.30 a.m. on 3.8.2010, he heard noise of quarrel of appellant/accused with deceased Vrandawani. PW-1 Umesh stated that he, therefore, rushed to the spot and when he was entering into the house of the appellant/accused, he saw appellant/accused giving the blow of an axe on right ear of deceased Vrandawani. Upon seeing this assault on his sister, PW-1 Umesh shouted and asked the appellant/accused as to what he is doing. Evidence of PW-1 Umesh shows that upon hearing his shouts, other neighbourers such as PW-4 Navnath, Rajesh and Rupchand came on the spot. The appellant/accused left the axe on the spot itself and ran away. Thereafter, as per version of PW-1 Umesh, with the assistance of neighbourers, he took his injured sister to the Civil Hospital Majalgaon, thereafter to the Civil Hospital, Beed and then, to the Civil Hospital, Aurangabad, where she died on the very same day.

Now, let us examine whether PW-1 Umesh Kamble had an opportunity to rush to the house of his sister immediately after hearing noise of quarrel. One may argue that being the brother of deceased, he is an interested witness and, therefore, his evidence should not be relied. It is seen from cross examination of PW-1, that his house is situated just at a distance of 20 feet away from the house of the accused and deceased Vrandawani. It is in cross examination of PW-1 Umesh, that he heard the noise of quarrel at about 7.3o a.m. And, therefore, he immediately rushed to house of the accused. It is brought on record from his cross-examination that he was at the first door of the house of accused when the incident of murderous assault on his sister happened. In cross-examination, he further stated that he has personally seen accused giving blow of an axe on head of deceased Vrandawani. The defence has also brought on record from cross examination of PW-1 Umesh that blow was given by accused by holding the axe by both hands and from sharp edge of that axe. There is no reason to disbelieve this version of PW-1 Umesh brought on record during his cross-examination.

This evidence of PW-1 Umesh needs to be appreciated by keeping in mind, what the another witness PW-4 Navnath Dayje states about the incident in question. PW-4 Navnath is not an eye witness to the incident in question, but he reached the spot soon after the incident. It is in evidence of PW-4 Navnath that his house is just at a distance of 100 to 150 feet from the house of the accused and deceased Vrandawani. PW-4 Navnath stated that on 3.8.2010, he heard noise of quarrel between the accused and Vrandawani. He has further stated that he also heard the shout of PW-1 Umesh questioning the accused, as to why accused has done such thing. PW-4 Navnath further stated that upon hearing the noise of yelling of PW-1 Umesh, he alongwith one Rajesh rushed to the house of accused and saw the accused holding an axe in his hand. PW-4 Navnath further deposed that PW-1 Umesh was questioning the accused, as to why accused assaulted his sister Vrandawani. As per version of PW-4 Navnath, the accused then ran away leaving the axe on the spot and at that time, deceased Vrandawani was lying inside the house with bleeding injury on her right ear. The defence brought on record from cross examination of witness is that within 2 minutes after hearing shots of PW-1 Umesh, this witness - PW-4 Navnath rushed to the spot. It was also brought on record from cross-examination of PW-4 Navnath that the accused left the axe near the heap of stones in the courtyard.

Congruous evidence of PW-1 Umesh and PW-4 Navnath as such, goes to show that deceased Vrandawani was lying inside the house with bleeding injury on her head and the accused was present there holding the axe in his hand. PW-1 Umesh had every opportunity to rush to the house of his sister Vrandawani after hearing noise of quarrel, which appears to be routine phenomenon in married life of accused and deceased Vrandawani. Just a day before, PW-1 Umesh who was residing just at a distance of 20 feet from the house of the accused, was required to intervene in their quarrel and to pacify the accused.

Evidence of PW-1 Umesh that upon entering the house of the accused, he saw the accused giving blow of an axe on head of deceased Vrandawani, is not at all shattered in cross-examination. Rather, it is gaining full corroboration from evidence of PW-4 Navnath, who reached on the spot soon after the incident. His evidence shows that he saw accused holding an axe and PW-1 Umesh questioning the accused as to why deceased Vrandawani is assaulted. Utterance of PW-1 Umesh questioning the accused, as heard and disclosed by PW-4 in his evidence, are relevant as forming part of the same transaction, as contemplated under Section 6 of the Indian Evidence Act, 1872.

PW-1 Umesh, is undisputedly brother of deceased Vrandawani. He is a natural witness to the incident in question, because he was neighbourer of the accused. There is no possibility of false implication of the accused by him as the case in hand is that of a single accused. Evidence of record does not disclose that PW-1 Umesh was on inimical terms with his brother in law - the accused. On the contrary, his evidence shows that he was on visiting terms with the accused and that he used to pacify the accused during the course of quarrel of the accused with deceased Vrandawani. As such, merely because PW-1 Umesh happened to be the brother of deceased Vrandawani, his evidence cannot be discarded. Rather, his evidence is fully corroborated by PW-4 Navnath. There is absolutely no reason to disbelieve his version about the incident in question.

True it is that though the incident murderous assault on deceased Vrandawani, had happened at 7.30 a.m. on 3.8.2010, she died at about 4.00 p.m. and that the FIR came to be lodged by PW-1 on 4.8.2010,this delay in the FIR is satisfactorily explained by PW-1 Umesh in his evidence. His version shows that he could not lodge report immediately as he was busy in saving life of his sister. His evidence shows that he carried his injured sister to the Government Hospitals at 3 different towns. Thereafter, upon getting dead body of his sister on 4.8.2010, he performed funeral and then FIR came to be lodged. As such, it cannot be said that there was any delay in lodging the FIR, making the prosecution case suspect.

According to version PW-1 Umesh, accused had given a single blow of an axe and that too from sharp edge on head of deceased Vrandawani. In submission of defence, this version regarding incident in question, coming from the mouth of PW-1 Umesh is not at all trustworthy. For that purpose, the learned counsel for the appellant is relying on evidence of Autopsy Surgeon PW-6 Dr. Kailash Zine. Evidence of PW-6 Dr. Zine shows that he conducted the post mortem examination on dead body of Vrandawani on 4.8.2010, and found the following 3 injures :-

[1] A suture wound over right temporal region of length 5 c.m. 4 sutures seen/liplace boginess felt on palpation in surrounding 3 c.m. Area around sutures. On removal of stitches lacerated would seen length 5 c.m., margins irregular and blood inflitrated;

[2] Contused lacerated wound over right ear pinna in upper side of size 1 x 0.3 c.m. Margins irregular and blood infiltrated.

[3] contusion over right ear lobule of size 1 x 1 c.m. Bluish colour and on cut section. Evidence of blood infiletration seen.

PW-6 Dr. Zine, Autopsy Surgeon opined that death of Vrandawani was caused due to head injury. His cross-examination shows that by one blow of an axe, injury nos 1 and 2 are possible and all the 3 injuries noted by him, on the head of the dead body, are not possible by one blow. Taking aid of this evidence, an attempt is being made to demonstrate that PW-1 Umesh is not an eye witness to the incident. It needs to be kept in mind that upon hearing the noise of quarrel between the couple, PW-1 Umesh rushed to the house of accused in the morning hours of 3.8.2010 and saw the accused giving blow of axe on head of his sister Vrandawani. PW-1 Umesh is resident of slum area of Majalgaon and appears to be a rustic person. It is not expected from him to possess a photographic memory to recall all the details of the incident. It is probable that he was overtaken by the murderous assault on his sister Vrandawani and as such, one cannot expect his mental faculties were alert to that extent, to absorb each minute details of the incident. Evidence of PW-1 Umesh that he was present on spot and saw the accused giving blow of axe on head of Vrandawani is not at all shattered in cross examination. Chances of getting injury due to fall after a blow on head cannot be ruled out in such case. As such, whether the blow on head of the deceased was from sharp edge side of axe or blunt side thereof, cannot be given overbearing importance to doubt the version of PW-1 Umesh, which is otherwise truthful and trustworthy. By the same analogy, version of PW-4 Navnath that accused left an axe near the heap of stones in the front yard of his house, cannot be given any undue importance to doubt his evidence regarding the incident as seen by him. Ultimately, an axe was found in the front room of the house of the accused.

Cross-examination of PW-1 Umesh goes to show that by holding the axe in both hands a forceful blow was given on head of the deceased Vrandawani by the accused. Because of this blow of axe on vital part of her body, deceased Vrandawani, had a fall on the ground floor of the room. As such, the fact that head of the dead body was having 3 injuries despite of one blow, cannot make the prosecution case or evidence of PW-1 Umesh doubtful. Ultimately, injury No. 2 found on head of the dead body was a contused lacerated would which may be caused by fall on the ground.

Upon appreciation of evidence of the prosecution witnesses, the learned trial court has come to the conclusion that the defence of the appellant/accused that deceased had a fall on heap of boulders, lying in the frond yard of the house and sustained injuries, cannot be believed. The learned trial court has given clear and cogent reasons for coming to this conclusion by observing that except head injuries, there were no other injuries on dead body. We also endorse the said view, considering the fact that there was injury to head of the dead body. The defence of the accused that deceased had a fall on heap of boulders while going for answering the nature''s call, and as such, she suffered accidental death, is improbable.

The trial court has not based conviction solely on the fact that accused/appellant was absconding for a period of about 7 months after the incident in question. It has only observed that conduct of the accused strengthens the prosecution case. We are of the considered view that the other evidence of prosecution as discussed in foregoing paragraphs, is clinching. The investigating Officer had recorded the panchanama of the spot of incident on 4.8.2010. It is in presence of panch witnesses including PW-2 Pradeep Patekar. Evidence of these witnesses, coupled with contemporaneous panchanama of the spot of occurrence, Exhibit 20, goes to show that on the eastern side room of 2 roomed house of the accused, a quilt alongwith 2 pillows was found lying apart from an axe. All the articles were found to be stained with blood. Finding of blood stains on quilt, pillows and axe in one room of the house of the accused, duly corroborates the version of PW-1 Umesh that when he was entering the house of the accused, he saw the accused giving blow of an axe on the right side of head of the deceased.

Evidence of the prosecution, as such, unerringly points out that it was appellant/accused who, at about 7.30 a.m. of 3.8.1010, at his residential house at Majalgaon, gave a blow of axe on head of the deceased wife Vrandawani, causing her death. The weapon of assault is an axe. The part of the body, chosen for inflicting the blow is head of the deceased. Blow of axe was dealt by accused by holding the axe by both hands. Nature of injuries caused to the deceased goes to show that the blow given was a forceful blow. As such, it cannot be said that said blow of an axe was given by the accused without intention to cause death of his wife Vrandawani. The blow inflicted was certainly with the knowledge that it was likely to cause death of Vrandawani. The intention of causing injury on head of deceased Vrandawani is explicit and the accused certainly wanted to kill Vrandawani by giving the blow of axe on her head. As such, it cannot be said that offence punishable under Section 302 of IPC is not made out by the prosecution.

In the result, we find no reason to interfere with the finding recorded by the learned Additional Sessions Judge, to the effect that the appellant/accused had committed murder of his wife Vrandawani by intentionally and knowingly causing her death. As such, there is no reason to interfere with the sentence of imprisonment for life imposed upon him by the impugned judgment and order.

In the result, the appeal fails and the same is dismissed. Fees of the learned Advocate appointed from Legal Aid panel to argue the appeal is quantified at Rs. 5000/-.