1999 ALL MR (Cri) 1640
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

J.A. PATIL AND B.B. VAGYANI, JJ.

Nana S/O Bhima Bhujang Vs. The State Of Maharashtra

Cri. Appeal No. 183 of 1994

20th July, 1999

Petitioner Counsel: Shri L.V.SANGIT, Advocate holding for Shri V.J.DIXIT
Respondent Counsel: Shri K.M. BABHULGAONKAR, APP

(A) Evidence Act (1872), Ss.3, 27 - Recovery of blood stained axe - At the instance of accused - Axe was concealed under garbage in the shrubs - Held though place was accessible to all, axe was concealed and accused alone knew where it was and hence evidence did not suffer from any infirmity.

AIR 1999 SC 1293 Rel. on. (Para 12)

(B) Penal Code (1860), S.84 - Insanity - Plea of - No evidence to show that immediately after the incident behaviour of accused was abnormal - Accused is not entitled to get benefit of S.84. (Para 15)

(C) Evidence Act (1872), S.3 - Motive - Murder case - Direct evidence of eye witness available - Motive is immaterial.

1972 Cri. L.J. 1523 Rel. on. (Para 16)

Cases Cited:
State of Himachal Pradesh Vs. Jeet Singh, AIR 1999 SC 1293 [Para 11]
Dahyabhai Chhaganbhai Thakkar Vs. State of Gujrat, AIR 1964 SC 1563 [Para 15]
Sheralli Wali Mohammed Vs. State of Maharashtra, 1972 Cri. L.J. 1523 [Para 16]


JUDGMENT

VAGYANI, J.:- Heard Shri. Sangit, learned Advocate for the appellant and Shri K.M.Babhulgaonkar learned APP for the respondent State.

2. This Criminal Appeal filed by the original accused has been directed against the order of conviction and sentence passed by the Additional Sessions Judge, Aurangabad. The learned Additional Sessions Judge, Aurangabad convicted the appellant accused for the offence punishable under section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs.300/- and in default to suffer rigorous imprisonment for three months.

3. In brief, the facts giving rise to the present prosecution case are as follows:

On 15-11-1992 at about 5.15 pm. prosecution witness Police Patil Bashir Khan PW 2 was sitting in the house of Kisan Netke. He was chitchating with Kisan Netke. Sukhdeo, the son of Kisan Netke, arrived there and told that the accused had committed murder of his mother and that the dead body was lying near the threshing floor of Pandit Dubile. After having heard the said communication, Bashir Khan PW 2 immediately left the place and went to the threshing floor of Pandit Dubile. On reaching there, he witnessed Bhima and his daughter Kesarbai were weeping. Kesarbai had taken the head of her deceased mother Muktabai on her lap. On being questioned, Bhima the husband of deceased Muktabai, told that the accused Nana assaulted Muktabai with an axe and killed Muktabai. He further disclosed that the said incident of assault was witnessed by Umabai and Pandit Dubile. Bashir Khan PW 2 saw the dead body of Muktabai. There were two deep injuries on her neck and there was one deep wound on her right cheek. Because of injury on the right cheek, her teeth had come out. On enquiry, Bashir Khan PW 2 also came to know that the accused fled away with an axe. Bashir Khan PW 2 then reported the matter to the police attached to Waluj Police Station. The oral complaint of Bashir Khan PW 2 was reduced into writing. On the basis of said First Information Report Exh.13, Crime No. 132 of 1992 was registered under section 302 of the Indian Penal Code.

4. P.S.I. Namdeo Chaudhari, PW 9 started investigation of the crime. He visited the place of occurrence and in presence of two panchas, he prepared the spot panchanama Exh. 18. He attached the blood stained earth from the spot. He prepared inquest panchanama Exh.7 of the dead body of Muktabai. He could not arrest the accused because the accused was found absconding. On 16.12.1992, he received information from Chhaoni Police Station to the effect that the accused was arrested. He went to Chhaoni police station and took the accused in his custody.

5. On 17.12.1992 while the appellant accused was in police custody, he showed willingness to point out the place where the axe was concealed. Accordingly, the memorandum Exh.l5 was prepared. The accused took panchas and police to the said spot and produced axe from shrubs. The axe was found concealed under garbage. P.S.I. Namdeo Chaudhari PW 9 attached the axe under seizure panchanama Exh.l6. The panchas noticed blood stains on the said axe. The Police Head Constable Shaikh seized the clothes of the deceased under panchanama Exh.10. The investigating Officer despatched the attached Muddemal articles to Chemical Analyzer on 13.1.1993. The Chemical Analyser's report Exh.8 reveals that blood of "A" group was found on the clothes of deceased Muktabai. Human blood was found on the axe. However, blood group was not detected as results were inconclusive. After completion of the investigation, charge sheet came to be filed in the Court of Judicial Magistrate, First Class, Gangapur. The learned Judicial Magistrate, First Class, Gangapur committed the case to the Court of Sessions, Aurangabad.

6. In the Sessions Court, the accused pleaded not guilty. n order to prove the guilt of the accused, prosecution has led oral evidence and produced documentary evidence. The learned Additional Sessions Judge accepted the evidence brought by the prosecution and has held that the accused has committed an offence punishable under section 302 of the Indian Penal Code. The learned Sessions Judge, therefore, convicted and sentenced the appellant accused as above. This order of conviction and sentence passed by the learned Additional Sessions Judge, Aurangabad is challenged by the original accused in the present Criminal Appeal.

7. The learned Advocate Shri Sangit vehemently submitted before us that the oral testimony of eye witness Umabai PW 1 is not trustworthy. According to him, there were standing trees around the place of occurrence and, therefore, Umabai PW 1 was unable to see actual commission of offence. According to Shri Sangit, learned Advocate, Umabai PW 1 is not an eye witness. We gave anxious consideration to this submission advanced by learned Advocate Shri Sangit. Umabai PW 1 has testified in her evidence that she was returning from her field at the relevant time and at that time, deceased Muktabai was ahead of her. It has come in her evidence that Muktabai was carrying bundle of fire wood on her head. The distance in between deceased Muktabai and Umabai PW 1 was hardly 40' at the material time. Umabai PW 1 has categorically made a statement in her evidence that the accused came from front side and gave a blow of an axe on her neck. On receiving axe blow, Muktabai fell on the ground. She died on the spot instantaneously. It has also come in the evidence of Umabai PW 1 that accused ran away from that place.

8. If regard is had to the oral testimony of Umabai PW 1, it is beyond doubt clear that she is an eye witness to the incident. From oral evidence of Umabai PW 1, it is clear that Umabai PW 1 was in the close proximity of deceased Muktabai when accused assaulted Muktabai. From close quarters, Umabai PW 1 had witnessed the incident. It is to be noted that the incident had occurred near the threshing floor of Pandit Dubile and near the cart track. The vision of Umabai PW1 was not at all obstructed by trees and bushes. Umabai PW 1 is an independent witness. Her presence on the road was very natural. She had opportunity to witness the incident from the close distance. She has absolutely no reason to implicate the appellant accused in the crime falsely. The oral evidence of Umabai PW 1 does not at all suffer from any infirmities. Her evidence is above doubt. We are of the clear opinion that the learned Additional Sessions Judge has rightly believed and acted upon the oral testimony of Umabai PW 1, who is an eye witness. We, therefore, reject the submissions of learned Advocate Shri Sangit.

9. The learned Advocate Shri Sangit then submits that though the name of Pandit Dubile PW 5 is shown as an eye witness, he is not an eye witness. It is true that the name of Pandit Dubile PW 5 is shown as an eye witness in the First information Report, Exh.13. However, the oral evidence of Pandit Dubile PW 5 would clearly go to show that he arrived on the spot after assault on Muktabai was over. It has come in his evidence that Umabai PW 1 told him that accused Nana assaulted his mother with an axe. After this disclosure by Umabai PW 1, witness Pandit Dubile PW 5 went to the spot and witnessed that Muktabai was lying on the ground. He also saw accused running away towards village. It is true that Pandit Dubile PW 5 had not seen commission of offence. However, he has testified in his evidence that he saw accused running away from the spot. From the evidence of Umabai PW 1 and Pandit Dubile PW 5, the prosecution has proved the presence of appellant accused on the spot at the material time. The evidence of Umabai PW 1 would clearly go to show that it was the accused who had assaulted Muktabai with an axe.

10. The learned Advocate Shri Sangit then criticized the prosecution evidence with regard to discovery of an axe. According to learned Advocate Shri Sangit, the place from where the axe was recovered, was accessible to all and, therefore, the evidence with regard to discovery of an axe cannot be relied upon. Panch witness Shankar Bhawar PW 3 and P.S.I. Namdeo Chaudhari PW 9 have unequivocally testified in their evidence that because of disclosure statement made by the appellant accused, blood stained axe was discovered. The axe was found concealed under the garbage in the shrubs. The evidence of panch witness Shankar Bhawar PW 3 and P.S.I. Namdeo Chaudhari PW 9 cannot be brushed aside easily. Prosecution has thus proved that the blood stained axe was discovered at the instance of the accused.

11. We find no force in the objection raised by the learned Advocate Shri Sangit. Only because place was open and accessible to others, the evidence tendered under section 27 of the Evidence Act cannot be disbelieved on that ground. In this behalf, we would like to refer the case of State of Himachal Pradesh Vs. Jeet Singh (AIR 1999 SC 1293). The Apex Court has observed that :

"There is nothing in Sec. 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the article was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under see. 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main road side or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

12. In the case in hand, though the place was accessible to others, the axe was found concealed. The axe was not at all visible to others. It was the accused alone who knew where the axe was concealed. Under the circumstance, we hold that the evidence with regard to discovery of an axe does not suffer from any infirmity.

13. The Chemical Analyzer's report Exh.9 would point out that human blood was found on the axe which was discovered at the instance of the accused. This is one more incriminating circumstance against the appellant accused. The presence of human blood on the axe is very much relevant. This circumstance goes against the appellant accused. The learned Advocate Shri Sangit then submits that because of land dispute, Barku Namdeo and Mohan Namdeo might have assaulted Muktabai and because of old rivalry, the appellant accused has been falsely implicated in the present crime. This defence has no legs to stand. There is a direct evidence of Umabai PW 1 against the appellant accused. The evidence of Umabai PW 1 has got high probative value. This is a clinching piece of evidence against the appellant accused. In view of the direct evidence, we reject the argument of learned Advocate Shri Sangit.

14. The learned Advocate Shri Sangit has halfheartedly argued that the appellant accused is entitled to get benefit of section 84 of the Indian Penal Code. According to him, the appellant accused was insane. In order to support his submissions, he pointed out from the record that the appellant accused was referred to Civil Surgeon, Aurangabad for observations when the appellant accused kept mum during his statement under section 313 of the Criminal Procedure Code. The Civil Surgeon, Aurangabad, by his letter dated 6.9.1993 Exh.23 informed the learned Additional Sessions Judge, Aurangabad that he did not find definite evidence of lunacy. However, he has suggested that the accused may be referred to mental hospital, Pune for expert opinion. It appears that thereafter the accused was referred to mental hospital, Yerwada, Pune. The Superintendent of Mental Hospital, Yerwada, Pune informed by his letter dated 18.1.1994 Exh.28 that because of improvement, accused was discharged from the mental Hospital. Pointing out this, circumstance, the learned Advocate Shri Sangit vehemently submitted that the appellant accused should get benefit of section 84 of the Indian Penal Code.

15. We do not agree with Shri Sangit, learned Advocate. There is nothing on record to show that at the time of commission of offence, the appellant accused was insane. No suggestion was put to any of the witnesses examined on behalf of the prosecution that the mental faculty of the appellant accused had substantially affected and, therefore, he was not in a position to understand what he was doing. The appellant accused has not taken this defence under section 313 of the Criminal Procedure Code. The evidence brought on record does not at all indicate even remotely that at the material time, the mental faculty of the appellant accused had affected adversely. In this behalf, reference with profit can be made to the case of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujrat (AIR 1964 SC 1563). The Supreme Court has observed that:

"When a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Sec. 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime."

In the given case, there is absolutely no evidence on record to show that the conduct of the accused was abnormal prior to the incident. There is nothing on record to show that immediately after commission of offence, the behavior of the appellant accused was abnormal. Under the circumstance, the appellant accused is not entitled to get benefit of sec. 84 of the Indian Penal Code.

16. Finally the learned Advocate Shri Sangit submits that the prosecution has miserably failed to prove the motive. In this case, motive plays no role. There is a direct evidence of eye witness Umabai PW 1. Under the circumstance, motive is immaterial. In this behalf, we would like to refer the case of Sheralli Wali Mohammed Vs. State of Maharashtra (1972 Cri.L.J. 1523). The Apex Court has observed that:

"The mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open, would not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence."

Even though in this case no motive is proved, it cannot be said that the appellant accused was insane at the time of commission of offence.

17. The medical evidence of Dr. Anil Jinturkar PW 8 is worth consideration. He had performed the post mortem of dead body of Muktabai. He noticed following injuries on the person of Muktabai :

1. A spindle shaped centrally placed wound seen on middle l/3rd aspect of neck size 6 X 4 inches, deep upto vertebral column, margins clean cut, with evidence of contusion at places underlying structures i.e. muscles, blood vessels trachea, esophagus showed clean cut severance. Edges of the injured structures showed infiltration staining.

2. An obliquely placed chop wound over right cheek of size 3 X 1 inches, deep upto maxillary bone, margins clean cut, contused at places on dissection, underlying bone showed depressed fracture with dislocation of both premolars and 1st and 2nd molars, edges show infiltration staining.

18. The post mortem report Exh.23 would go to show that the cause of death of Muktabai was chop wound of neck and chop wound of right cheek. Dr. Anil Jinturkar PW 8 has categorically made a statement in his evidence that injury No. 1 i.e. injury on the neck was sufficient by itself to cause the death. He further makes a statement that the cumulative effect of both the injuries i.e. injury on the neck and injury on the right cheek is sufficient in the ordinary course of nature to cause death. If regard is had to the medical evidence, it is beyond doubt clear that it was brutal murder.

19. After having scanned the entire evidence on record and after having considered the facts and circumstances of the case, we are of the clear opinion that the present Criminal Appeal filed by the appellant accused is devoid of any merit. The impugned order of conviction and sentence passed by the learned Additional Sessions Judge, Aurangabad does not suffer from any illegality.

20. In the result, the Criminal Appeal filed by the appellant accused is dismissed.

Appeal dismissed