Shivaji vs The State of Maharashtra

A.S. Gadkari, J.—The appellant, original accused, has preferred the present appeal against the judgment and order dated 17th March 2012 passed by the learned Additional Sessions Judge, Jaisingpur, District-Kolhapur in Sessions Case No. 3 of 2010, thereby convicting the appellant for the offence punishable u/s 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5000/-, in default of payment of fine to undergo rigorous imprisonment for 6 months. The appellant is also convicted u/s 498A of the Indian Penal Code by this judgment and order and sentenced him to suffer 3 years rigorous imprisonment and to pay fine of Rs. 3000/-, in default of which to undergo 6 months rigorous imprisonment. The Trial Court has ordered that both sentences should run concurrently. The appellant has impugned the said judgment and order dated 17th March 2010 in the present appeal.

The facts which can be enumerated from the record, may briefly be stated thus:

(i) PW-12 is Mr. Sambhaji G. Kashid was then attached to Kurundwad Police Station as Assistant Police Inspector and on 12.11.2009 was on station house officer''s duty. On 12.11.2009 at about 23.05 i.e. about 11.05 p.m. PW-2 Balasaheb Bharmu Gawarai from village Abdullat came to the police station and lodged the first information report in respect of murder of Smt. Surekha @ Pinkutai. He has stated that in the said village Abdullat, the appellant-Shivling Nagendra Gatade was residing with his wife i.e. the deceased Surekha @ Pinkutai and there used to be always quarrel between the appellant and his wife Surekha @ Pinkutai on the point of preparing food. That on 12.11.2009, at about 10 p.m. the appellant had assaulted Surekha @ Pinkutai with the help of a stick over her head and thereafter she sustained head injuries and had died on the spot. PW-12 recorded the first information report as per the version of PW-2 Balasaheb Gawarai. The said first information report is at Exhibit 19. PW-12 thereafter registered an offence against the appellant u/s 302 of the Indian Penal Code vide Crime No. 80 of 2009 and after taking entry thereof in the station diary, he handed over the investigation to A.P.I. Shri Supe (PW-15).

(ii) PW-15 API Mr. Supe was then attached to the Kurundwad Police station in the year 2009. The aforestated C.R. No. 80 of 2009 u/s 302 and 498A of the Indian Penal Code which was registered at Kurundwad Police Station against the appellant was entrusted to him for investigation. After registration of the offence, he deputed ASI Mr. Shirajbhai (PW-13) and directed him to proceed to the spot immediately. The said ASI Mr. Shirajbhai after reaching to the spot conducted inquest panchanama. PW-12 thereafter reached the spot of the incident and inspected the said spot. PW-15 API Mr. Supe drew the spot panchanama in the presence of the panch-witness namely Suresh Patil and Adgonda Patil (PW-4). He found on the said spot the blood stains, broken pieces of green colour bangles, one bedding, one blanket and two clothes of gunny bags. He prepared the spot-cum-seizure panchanama which is at Exhibit 27. The said items are the Article Nos. 1 to 6 on record.

(iii) During the course of the investigation, on 13.11.2009 PW-15 API Mr. Supe arrested the appellant at about 7.15 a.m. in the presence of panch-witness namely Arvind Kamble (PW-1) and Dattatraya Mane. The arrest panchanama is at Exhibit 14. He also seized the half pant and baniyan which were on the person of the appellant at the time of his arrest. The said two items are Article Nos. 11 and 12. On 14.11.2009, when the appellant was in the custody, expressed his willingness to produce the weapon i.e. stick which was used by him for commission of the present offence. PW-15 API Mr. Supe thereafter called two panch-witnesses namely Husain Momin and Deelip Bandgar (PW-9). The memorandum statement of the appellant was recorded which is at Exhibit 35. In pursuance of the memorandum statement, the appellant led the police and panch-witnesses to the field of Ananda Kamble and from within the elephant grass situated in the said field, the appellant took out one bamboo stick. The said stick was seized by PW-15 in the presence of two panch-witnesses by preparing seizure panchanama, Exhibit 36. During the course of investigation, PW-15 collected the postmortem notes from the Medical Officer of Rural Hospital, Dattawad. After receipt of the reports from the Chemical Analyzer which are Exhibits 63 to 65, he submitted the chargesheet in the Court of Judicial Magistrate First Class, Kurundwad on 9.2.2010.

(iv) As the offence u/s 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Kurundwad committed the present case to the Court of Sessions at Jaisingpur as contemplated u/s 209 of the Cr. P.C. After committal of the present case i.e. Sessions Case No. 3 of 2010, the learned Trial Court framed charge below Exhibit 5 against the appellant u/s 302 and 498A of the Indian Penal Code. The said charge was read over and explained in vernacular Marathi language to the appellant, to which he denied and claimed to be tried. The learned Trial Court after recording the evidence of the witnesses and after hearing the parties to the said Case, has convicted the appellant u/s 302 of the Indian Penal Code, as stated herein above.

We have heard Smt. Sarojini Upadhyay, learned Counsel for the appellant and Smt. V.R. Bhonsale, the learned A.P.P. for the respondent-State. The learned Counsel for the appellant has contended that the prosecution has failed to prove the motive in the present crime. She has further submitted that the weapon used in the present crime i.e. stick which was discovered at the instance of the appellant was found from the open spot which was easily accessible to the people and therefore the said discovery cannot be relied upon. She therefore submitted that in the absence of aforesaid two circumstances, there is no other evidence against the appellant which would connect him to the present crime. She therefore submitted that the appellant is entitled for the benefit of doubt. She finally submitted that the appellant may be acquitted by allowing the present appeal.

Per contra, the learned A.P.P. for the State strongly supported the impugned judgment and order passed by the Trial court and submitted that there is no error at all committed by the Trial Court while convicting the appellant. The learned APP has prayed that the present appeal may be dismissed and conviction and sentence awarded to the appellant be upheld.

With a view to effectively deal with the submissions advanced by Smt. Upadhyay, the learned Advocate for the appellant and Smt. Bhonsale, the learned APP for the State, it would be useful to refer to the evidence of prosecution witnesses in brief.

PW-1 Arvind Kamble is the panch-witness to the arrest-cum-seizure panchanama of clothes of the appellant which is Exhibit 14. PW-3 Shankar Ramgonda Patil is the panch-witness to the seizure of clothes panchanama Exhibit 25, which were on the person of the deceased Surekha @ Pinkutai at the time of her postmortem examination. PW-4 Adgonda B. Patil is the panch-witness to the scene of offence i.e. spot of incident panchanama, which is at Exhibit 27. PW-8 is Smt. Sunita Sanjay Gawarai, the wife of PW-7 Sanjay Gawarai. This witness is panch-witness to the inquest panchanama Exhibit 33 of dead body of Surekha @ Pinkutai. PW-10 is Anil Potdar, a photographer by profession. He had taken photographs of the dead body of Surekha @ Pinkutai from the spot of incident. The said photographs are at Exhibits 41 to 47. PW-14 is Police Constable Mr. Nandkishor Kumbhar then attached to Kurundwad Police Station who is a carrier of the seized articles to the forensic laboratory/Chemical Analyzer, Pune during the course of the investigation.

According to us, the aforesaid witnesses are formal witnesses who have proved the respective documents. Upon perusal of their cross-examination, it reveals that no material which is useful to the appellant or which would discredit the testimony of these witnesses has been elicited by the appellant.

PW-2 is Balasaheb Bharmu Gawarai, the landlord of the house which was let out to the father of the appellant i.e. Narendra Gatade (PW-6) on rent. PW-2 in his testimony has stated that he resides in the house situated in the field of village Abdullat. He was having one more house situated in the said village. He had let out the said house to PW-6 Nagendra. In the said house, Nagendra Gatade, his wife Malutai (PW-5), his son Shivaji i.e. the appellant and his daughter-in-law Surekha @ Pinkutai and their two children used to reside. That on the day of incident, he had gone to the village at about 9.30 to 10.30 p.m. to engage labourers. At that time he found gathering of people near his house situated in the said village. One Sanjay (PW-7) who was residing near his said house met and told him that the appellant has assaulted his wife and had ran away. PW-2 thereafter went inside the house and saw that the wife of the appellant Surekha @ Pinkutai lying dead. He thereafter went to the police station and lodged the first information report, which is at Exhibit 19.

In his cross examination, he has admitted that on the day of incident, he was working in his field up to about 7 to 7.30 p.m. and reached to the spot of the incident at about 9.30 p.m. to 10 p.m. and by the time he reached the spot, the police did not come. It appears to us that in his cross-examination, nothing has been elicited from this witness which would help the appellant in disbelieving his testimony.

PW-5 is Smt. Malutai Nagendra Gatade, the mother of the appellant. PW-5 in her testimony has stated that since last 10 years she was residing at village Abdullat and at the time of incident, she was residing in the house of PW-2 Balasaheb. In that house she herself, her husband (PW-6), the appellant, her daughter-in-law i.e. the deceased, sister of her daughter-in-law and her grand children were residing. The appellant is her son. The appellant used to consume liquor. The appellant used to quarrel with his wife Surekha @ Pinkutai, the deceased, on the ground that she cannot cook good food and used to beat her. PW-5 used to advise the appellant to behave properly and not to beat his wife. On the day of incident, the appellant returned home at about 9 p.m. in the night. He was drunk. Thereafter the appellant quarreled with his wife Surekha @ Pinkutai on the ground that she had not cooked good food. PW-5 asked them not to quarrel and go to sleep. At that time in her house, her husband (PW-6), the appellant, her daughter-in-law, her sister and grand children of PW-5 were present. Thereafter PW-5, her husband (PW-6) and both her grand children went to sleep in the middle room of her house. The appellant and his wife went to sleep in the front room of the house. The appellant shut the door between the middle and front room by putting a latch on the said door. That after about half an hour, PW-5 and her husband heard shouts of their daughter-in-law. They started asking the appellant to open the door, but the appellant did not open the same. Therefore, her husband PW-6 opened the latch of the said door by putting his hand through the gap in the door panels. After PW-5 entered in the front room, she saw that her daughter-in-law Surekha @ Pinkutai was lying dead. She saw the appellant going out of the said room with a stick in his hand. PW-7 Sanjay, his wife Sunita (PW-8) and one Mahaveer Patil and other neighbours were present in front of her house. That the said Sanjay Gawarai (PW-7) tried to catch hold her son the appellant, but the appellant ran away. The stick i.e. Article No. 13 shown to this witness has been identified by her. Article Nos. 7 to 10 i.e. Saree, peticoat, and red colour blouse which were on the person of her daughter-in-law have been identified by this witness. PW-5 has also identified Article Nos. 11 and 12 i.e. Baniyan and underwear (half pant) which were on the person of the appellant when he ran way. PW-5 has stated that while running away, the appellant had pushed Sanjay when Sanjay tried to catch hold the appellant. At that time, the appellant told to Sanjay that he has killed his wife.

In the cross-examination, except an omission to the effect that "I saw the accused running away", no other material has been elicited from this witness which would lead us to disbelieve the testimony of PW-5.

PW-6 is Nagendra Nana Gatade, is the father of the appellant and husband of PW-5 Malutai. PW-6 in his testimony has stated that the said incident occurred at about 10 p.m. in the night. At the time of incident, his son, the appellant herein and his wife the deceased were sleeping in the front room of their house and PW-6 himself and his wife and others were sleeping in the inner room. Before going to sleep, the appellant had quarrel with his wife Surekha @ Pinkutai. PW-6 asked him not to quarrel and go to sleep. At about 10 p.m., PW-6 heard the commotion and therefore he woke up. He found the door connecting the outer room was closed and latched from outside. He heard the shouts of his daughter-in-law. He opened the latch put on the door by putting the hand through the gap in the door panels and thereafter entered into the front room. The appellant thereafter ran away from the house by opening the front door. The appellant was having a stick in his hand when he ran away. He found Surekha @ Pinkutai i.e. the wife of the appellant lying dead. Surekha @ Pinkutai had sustained injuries. PW-7 Sanjay and other neighbours had gathered near his house. The people gathered there told him that the appellant had told the said persons that the appellant had killed his wife Surekha @ Pinkutai and thereafter he ran away.

In the cross-examination, nothing has been brought on record which would create a doubt in the mind of this Court about the truthfulness of his testimony.

PW-7 is Sanjay Appasaheb Gawarai, the neighbour of PW-5, PW-6 and the appellant. PW-7 in his testimony has stated that he was residing at village Abdullat along with his wife and children. The house of the appellant is situated near to his house. In the said house, the appellant, his wife Surekha @ Pinkutai, his parents and children were residing. The incident took place on 12.11.2009 between 9.30 p.m. to 10 p.m. At that time PW-7 heard a commotion from the house of the appellant and thereupon he came out of his house. He saw the appellant going out of the house having a stick in his hand. PW-7 asked the appellant as to what had happened, to which the appellant told him that he had assaulted his wife and PW-7 should not obstruct him. By saying so, the appellant ran away. The wife of PW-7 also came out of the house to see what had happened and thereafter they went inside the house of the appellant and saw the dead body of wife of the appellant in the first room of the said house. PW-7 noticed an injury over the head of the dead body. PW-7 has further stated that when the appellant had come out of his house, he was wearing only underwear and baniyan, and was holding stick in his hand. PW-7 has identified the said items which are Article Nos. 11, 12 and 13 i.e. underpant, baniyan and stick respectively. He has further stated that the appellant always used to quarrel with his wife.

PW-7 was cross-examined at length by the appellant. However, the appellant was unsuccessful in demolishing the testimony of this witness with respect to the extra judicial confession given by the appellant. No material which is of any help to the appellant has been elicited in the cross-examination.

PW-8 is Sunita Sanjay Gawarai, the wife of PW-7 Sanjay. PW-8 in her testimony has corroborated the version of PW-7 Sanjay. PW-8 has acted as panch-witness to the inquest panchanama. The said inquest panchanama is at Exhibit 33. In the lengthy cross-examination, the testimony of this witness has not been shaken at the hands of the appellant.

PW-9 is Deelip Balasaheb Bandgar. PW-9 in his testimony has stated that on 14.11.2009, he was called by the police of Kurundwad police station to act as panch-witness. In his presence, the appellant gave memorandum statement which is at Exhibit 35. In pursuance of the memorandum statement, the appellant led the police to the spot in the field. At the said spot, the appellant pointed towards tall grass. A stick was kept inside the said grass. The said tall grass was in the trench of land and stick was kept in the said trench. The police seized the said stick in his presence. The said stick came to be seized after effecting the recovery panchanama which is at Exhibit 36.

In the cross-examination, this witness has admitted that the spot in the field was easily accessible to the people. According to us, the rest of the cross-examination proceeded by giving general suggestions to this witness, to which he has denied.

PW-11 is Dr. Mrs. Varsha D. Chavan. PW-11 in her testimony has stated that in the year 2009 she was posted as a Medical Officer in the Rural Hospital, Dattawad, Taluka-Shirol, District-Kolhapur. That she had conducted the postmortem examination of the dead body of the Surekha @ Pinkutai on 13.11.2009. The said dead body was brought to the hospital by the police at about 2 a.m. The copy of the inquest panchanama was also sent along with the said dead body. She conducted the postmortem examination of the dead body between 2.05 a.m. to 3.15 a.m. on 13.11.2009. Upon external examination of the dead body of Surekha @ Pinkutai, except on head, she did not find any other external injury. She noticed the following external injuries:

Clean lacerated wound upto skin of sub-cultural tissue. Over scalp 41/2 x 21/2 x 1/2 left side of front parietal region present. Collection of blood under scalp present.

Contusion 2 cm just behind and belong left ear present. Nearby skin tissue blackish in colour. Swelling of left check present. The said injuries were ante mortem injuries.

Upon internal examination, she found the following injuries:

Head

Skull: Simple Crack fracture present underlying injuries site at left front parietal region. 3 x 0.5 x 0.5 cm Brain-Sbdural Hemorrhage. Present underlying injury site 3 x 2 cm.

Thorax-

(a) Walls, ribs, cartilages-N. No fracture rib.

(b) Pleura-N

(c) Larynx, Trachea and Bronchi Congested.

(d) Right lung Congested

(e) Left lung Congested.

(f) Pericardium N

(g) Heart with weight N contains blood.

(h) Large vessels N

(I) Addition remarks N

Abdomen

Walls-Middle vertical infrastructural scar (Tubictommy) upto about syuphyris pulris scar of operation seen.

Peritoneum N

Cavity.N

Bucal Cavity, teeth, tongue and pharynx-Teeth intact

Tongue inside mouth present.

Stomach and its contents-Contains digested food material (Rice and other).

Small intestine and its contents-Empty

Large intestine and its contents-Empty

Liver (with weight) and gall bladder-N

Pancreas and Suprarenals-N

Spleen with weight-N

Kidneys with weight-N

Bladder-N

Organ of generation-uterus normal size both fall open tubes. N Ltd.

Ovary N. Rt Ovary enlarged 4 x 3 cm.

PW-11 thereafter opined that the cause of death was due to head injury and the time of death was within 6 hours from postmortem. She has further opined that cause of injury was due to hard and blunt object. She has also opined that the injuries were fresh. PW-11 has further stated that the external injuries noticed and mentioned by her in Column No. 17 was corresponding with internal injury mentioned therein. Those injuries were sufficient in the ordinary course of nature to cause the death. That the injuries mentioned in the postmortem notes were possible by stick which is Article No. 13. She had further stated that the second injury might have been caused either by slap or as a result of collection of the blood due to fist injury. PW-11 has proved the postmortem report which is at Exhibit 51. PW-11 has been cross-examined at length by the appellant. It appears to us that the appellant has tried to contradict this witness by referring to excerpts from Modi''s book of Medical Jurisprudence and Medical Jurisprudence by Parikh. In our opinion, this witness has withstand to the searching cross-examination and appellant has failed to elicit any material which would come to his help.

13 PW-12 is Sambhaji G. Kashid, Assistant Police Inspector then attached to Kurundwad Police station who had registered the first information report given by PW-2 Balasaheb. PW-13 is Nasruddin G. Shrajbhai, Assistant Police Inspector then attached to Kurundwad police station, who visited the spot of incident as per directions of PW-15 and had conducted the inquest panchanama which is at Exhibit 33 in the presence of PW-8 Sunita. PW-15 is A.P.I. Mr. Supe then attached to Kurundwad Police station and the Investigating Officer of the present crime i.e. C.R. No. 80 of 2009. The various steps taken by PW-12, 13 and 15 from the stage of lodging of the first information report till submitting the chargesheet in the Court of competent jurisdiction have already been mentioned in brief in the forgoing paragraphs 2(i) to (iii) and the repetition of the same has been avoided here for the sake of brevity.

In the cross-examination of PW-12 Mr. Kashid, PW-13 Mr. Shirajbhai and PW-15 Mr. Supe, no material has been elicited by the appellant which would create any shadow of doubt about the truthfulness about their testimony.

After taking into consideration the entire evidence on record, we are of the firm opinion that the appellant and the appellant alone is the perpetrator of the present crime. PW-5 and PW-6, the mother and father of the appellant respectively, have in unequivocal terms stated that the commotion which took place in the adjoining room in their house between the appellant and Surekha @ Pinkutai on the date of incident. PW-5 and PW-6 have stated that when they opened the latch of the door of their room, they saw Surekha @ Pinkutai lying on the flooring with bleeding injuries on her head and the appellant was holding stick in his hand. After they open the door between the room of the appellant and their room, the appellant left the spot from the front door of the house. PW-7 Sanjay who is the neighbour of the appellant and who had immediately came out of his house after hearing the commotion, had tried to catch hold the appellant. The appellant, upon enquiry by this witness, gave an extra judicial confession to the effect that the appellant had assaulted his wife and thereafter the appellant ran away. While running away, the appellant was having stick in his hand. PW-8 Sunita wife of PW-7 Sanjay had also seen the appellant while running away from the spot.

PW-9 Deelip B. Bandgar, the panch witness to the discovery of the stick at the hands of the appellant has stated that in pursuance of memorandum statement which is at Exhibit 35 dated 14.11.2009, the stick with blood stains was discovered at the instance of the appellant from the trench covered by grass in the field. The learned Counsel for the appellant has contended that in view of the admission given by this witness that the said spot was easily accessible to the people, the said discovery cannot be believed. After perusal of the evidence of PW-9, it is clear that the stick was concealed in the trench in the field and same was not easily visible to anybody. The concealment of the said weapon by the appellant was exclusively within his own knowledge and in pursuance of memorandum statement dated 14.11.2009 which is Exhibit 35, the said stick i.e. the weapon came to be recovered at the instance of the appellant. We have therefore no hesitation to believe the discovery of the weapon at the instance of the appellant. Exhibit 36 i.e. seizure panchanama of the stick u/s 27 of the Indian Evidence Act, clearly discloses that when the said stick was recovered, it was having dried blood-stains on it.

The reports of the Chemical Analyzer which are at Exhibits 63 to 65 disclosed that the blood group of deceased Surekha @ Pinkutai was "A" group. The blood group of the appellant Shivaji @ Shivling is of "AB" group. The clothes of deceased Surekha @ Pinkutai which are at Serial Nos. 2, 8, and 10 i.e. Saree, blouse and nicker were having human blood of "A" group. The half pant of the appellant is having blood stains of human origin of "A" group. The bamboo stick which is Article No. 13 in Exhibit 63 was found with blood-stains of "A" group. As stated herein above, the blood group of Surekha @ Pinkutai was of "A" group.

Therefore it is established that the stick which was discovered at the instance of the appellant and which was having blood-stains on it, matched with the blood group of the deceased Surekha @ Pinkutai. This circumstance is also a strong incriminating circumstance against the appellant.

After scrutinizing the entire evidence on record, we are of the considered opinion that the evidence of PW-5, PW-6, PW-7 and PW-9 i.e. panch to discovery of stick is trustworthy and reliable. We find that there is no error at all in the impugned judgment and order passed by the learned Trial Court dated 17th March 2012 thereby convicting and sentencing the appellant u/s 302 of the Indian Penal Code. We are of the further opinion that the present appeal lacs any merit and the same is hereby dismissed by confirming the conviction and sentence of the appellant.

Before parting with judgment, we may place our appreciation for Smt. Upadhyay who was appointed by the Legal Services Committee to represent the appellant nos. 1 and 2 in this appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs. 5000/-.

Since the appellant is in jail, the Registry is directed to communicate this order to him through the concerned jail authority.