2003 ALL MR (Cri) 2272
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.K. BATTA AND P.S. BRAHME, JJ.

Abhiman S/O Satyabhan Salve Vs. State Of Maharashtra

Criminal Appeal No.403 of 1998

1st July, 2003

Petitioner Counsel: Shri. M. R. DAGA
Respondent Counsel: Shri. T. A. MIRZA

Penal Code (1860), Ss.300, 302 - Murder - Suspicion about wife's chastity - Accused murdering suspected person - Evidence of accused's wife who witnessed incident and other eye-witnesses found reliable - Recovery of accused's shirt on his own statement - Report of Chemical analyser showing blood group on clothes supporting prosecution case - Blood stains on weapon also supporting case - Conviction of accused and sentence passed against him under S.302 is valid and has to be sustained. (Paras 11,12,13,14)

JUDGMENT

P. S. BRAHME, J. :- The appellant, Abhiman Satyabhan Salve was tried for committing murder of one Dilip More before the Sessions Judge in Sessions Case No.16 of 1998. The prosecution examined in all ten witnesses. Learned Sessions Judge by accepting the prosecution evidence, found the appellant guilty for the offence of murder and by judgment and order dated 3rd October, 1998, convicted the appellant for offence under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo further R.I. for three months. This conviction and sentence is challenged by the appellant in this appeal.

2. The incident which gave rise to the prosecution against the appellant, took place on 22.11.1997 at about 08:30 to 09:00 a.m. at Sultanpur, Taluka Mehkar in district Buldana within the jurisdiction of Police Station, Mehkar. The victim Dilip More was known to witness Nanda (PW-1) who happened to be wife of the appellant, as he was resident of Lonar, in the vicinity of the house of parents of Nanda. After marriage with the appellant, Nanda lived with him and she also lived with him at Sultanpur where he shifted. It appears that the appellant was illtreating Nanda quite often during her stay with him in the matrimonial home and she was subjected to physical harassment as the appellant was suspecting that his wife was having illicit relations with the victim Dilip More. There was reason for Nanda to leave the company of the appellant when ill treatment at the hands of the appellant became unbearable. After separation, Nanda started residing with her parents. But, it appears that their separation did not last long as the appellant approached Nanda and he gave promise to behave well and the result was that the witness Nanda resumed cohabitation with the appellant and both started living together at Sultanpur where the appellant shifted.

3. On the day of incident, in the morning when Nanda was busy in the house doing household work, the accused/appellant brought Dilip to the house and asked Nanda to prepare tea and after both i.e. the appellant and the victim Dilip More had taken tea in the house, went out of the house and immediately thereafter Nanda heard noise and so she rushed out of the house and she saw that the accused/appellant was assaulting Dilip More with knife and the appellant inflicted blows with the knife on the person of Dilip, as a result of which Dilip collapsed on the ground. This incident of assault was witnessed by neighbours including Suman Javale (PW-2) and Bajabai (PW-3). At that time, Badal Abdul Sattar (PW-4), Police Patil, like many persons, on hearing the commotion, rushed to the house of the accused/appellant. He saw the dead body of Dilip More lying in front of the house of the appellant. Nanda, who was very much present near the house, on enquiry made by Police Patil Badal Abdul Sattar, narrated the incident to him, disclosing the name of the victim. The witness Badal Abdul Sattar immediately rushed to Police Station, Mehkar and gave written report (Exh.21). On the basis of that report, offence was registered by P.S.I. Narayan Mante (PW-8), who carried out investigation in the matter. In the course of investigation, he visited the place of occurrence and in the presence of panch witness Sk. Ismail (PW-5) prepared spot panchnama (Exh.23) and also seized the clothes of the accused under seizure panchnama (Exh.24) when the accused was arrested on the same day. When the appellant was in custody on being interrogated by the Investigating Officer made a disclosure in respect of knife and also showed his willingness to produce the same. In terms of the memorandum (Exh.28) which came to be recorded in the presence of panch witness Abdul Latif (PW-6) and the knife was recovered at the instanance of the appellant which came to be seized under seizure memo (Exh.29). It was found that there were stains of blood on the knife (Article 1). Then one shirt (Article 4) came to be seized under seizure memo (Exh.32) in pursuance of the memorandum (Exh.31) recorded at the instance of the appellant in the presence of panch witness Nagesh Deshmukh (PW-7). The articles seized were sent to the Chemical Analyser. The report of Chemical Analyser (Exh.45) shows that the blood on clothes of the deceased (Articles 6 to 10) was of group 'A'. Similarly, on the clothes of the accused (Articles 2 to 4), human blood was detected with blood group 'A'. In respect of the knife (Article 1), human blood was detected. After completing the investigation, the charge-sheet was filed and the case was committed to the Court of Session.

4. At the trial, the prosecution led the evidence of witness Nanda, witness Suman and witness Bajabai giving eye witness account of the incident. The prosecution also placed reliance on medical evidence of Dr. Bhagwan Zanwar (PW-10), who conducted autopsy on the dead body of victim Dilip and also circumstantial evidence consisting of recovery of blood stained clothes and the knife at the instance of the appellant. The trial Court accepting the evidence, found the appellant guilty and he came to be convicted for offence under Section 302 of the Indian Penal Code and was sentenced as stated above.

5. We have heard Shri. Daga, the learned Counsel for the appellant and Shri. Mirza, the learned A.P.P. for the respondent/State. The sum and substance of the submissions of Shri. Daga is that the presence of witness Nanda at the time of occurrence as well as her claim to have witnessed the incident of assault by the appellant on the victim does not stand probable for the reason that admittedly as stated by witness Nanda, after divorce she was residing at her parents' house. It was also submitted that eye witness account by witnesses Suman and Bajabai is far from truth and no weight could be attached to their evidence, having regard to the attending circumstances. Referring to the fact that the victim sustained stab wounds and incised injuries, it is not probable and plausible also, having regard to the fact that the weapon of the assault was one and the same namely the knife. He, therefore, urged that the trial Court has erred in convicting the appellant for the murder of Dilip More.

6. Shri. Mirza, the learned A.P.P. supported the judgment of the trial Court. He submitted that the defence has not brought any material in cross-examination of all the three eye witnesses so as to discredit their testimony. He pointed out that the presence of witness Nanda is sufficiently established on the basis of her own evidence and further her claim in that regard is clinchingly supported by the version of other two eye witnesses and the evidence of Police Patil Badal Abdul Sattar (PW-4). He submitted that the evidence on record has been appreciated by the trial Court in correct perspective and on the basis of that evidence, offence of committing murder of victim Dilip is brought home beyond all shades of doubt. He, therefore, urged that the appeal merits no consideration and the same be dismissed.

7. It is not disputed that the victim Dilip sustained injuries at the time of incident that took place in front of the house of appellant. Medical evidence of Dr. Bhagwan Zanwar (PW-10) lends assurance to factum of injuries sustained by the victim as well as homicidal death of victim Dilip as a result of the injuries sustained by him. Dr. Bhagwan Zanwar (PW-10), who was Medical Officer in Rural Hospital, Mehkar, conducted post mortem on the dead body of Dilip and in his post mortem report (Exh.51) he has categorically mentioned in column No.17 the external injuries he noticed and internal injuries in column Nos.19 and 20. Doctor has stated in his evidence that the external injuries were ante mortem in nature. In that injury No.1 was stab injury in the form of incised injury on right inframemmory region of size 1/2 cm. x 3 cm. and it was deep through and through up to liver. The second external injury was a stab wound of size 1/2 cm. x 2 cm. in umbilical region and it was deep up to peritoneum while injury No.3 was incised wound of epigastric region of size 1/2 cm. x 3 cm. which was also deep up to peritoneum. He has also stated that on internal examination, he found that due to injury No.1, the blood had accumulated in right pelvic cavity. There was also injury to the liver. In his opinion, probable cause of death was due to profused blood loss secondary to injury to liver. He has also opined that injury Nos.1 to 8 could be caused by sharp weapon like knife (Article 1). He stated that all the eight injuries were caused due to eight different blows of the weapon. It is significant to note that this evidence of Dr. Bhagwan, so far as the factum of injuries and the cause of death is concerned, has gone unchallenged. So accepting this medical evidence it goes without saying that the deceased Dilip died homicidal death.

8. As to the incident that has taken place, the witness Nanda has given categorical evidence before the Court, wherein she has stated that the appellant brought the victim to their house in the morning and after both of them had tea, which was prepared by her, and when they went out of the house, she heard noise and when she came out of the house she saw the appellant, her husband, assaulting the victim with the knife and he inflicted blows after blows and as a result of that the victim fell down in the pool of blood. We have carefully gone though the cross-examination of witness Nanda. We have found that on material particulars, there was no cross-examination by the defence to the witness. Nothing has been brought in her cross-examination so as to discredit her testimony. Her evidence has been further corroborated by witness Suman (PW-2) who has stated that while returning home after answering the call of nature, she saw that the accused gave knife blows on the abdomen of Dilip More and Dilip More collapsed on the ground. She has also stated that at that time Nanda was raising hue and cry. This evidence of witness Suman remained unshaken on material particulars though she was subjected to cross-examination by the defence. She has stated that the accused was living in her neighbourhood since last five to six years. This fact is not challenged by the defence. As a consequence of this, presence of this witness Sumanbai at the time of occurrence as stated by her in her evidence, sounds natural. Secondly, there is no reason for her to give false evidence against the accused. Nothing has been brought in her evidence by the defence to show that the witness was either interested or any way inimical with the accused. Though the witness was throughly cross examined by the defence, nothing has been elicited in her evidence so as to make her evidence on her claim to have witnessed the incident improbable and unbelievable.

9. The third witness Bajabai (PW-3) has given evidence before the Court stating the happenings of the incident which she witnessed. This witness Bajabai is also admittedly living in the neighbourhood of the appellant. She has emphatically stated so in her evidence which has gone uncontroverted. She has stated that in the morning when she heard hue and cry of Nanda, she came out of the house and she saw that the accused gave two blows of knife on the abdomen of Dilip. There is reason to accept her claim having regard to attending circumstances. It is much more so because the witness is an independent witness. She is not related either to the victim or to the witness Nanda nor she was on inimical terms with the accused. Nothing has been brought in her cross-examination by the defence so as to make testimony improbable or unbelievable. In her cross-examination, an attempt has been made by the defence to show that the witness could not have seen the incident that took place in front of the house of the accused as the witness had a very weak eye sight. But, all efforts of the learned Counsel for the appellant have been thwarted by the clinching evidence given by the witness in the cross-examination. It is again very pertinent to note that the incident has taken place in a broad day light. The witness had opportunity to see the incident from close quarters as the witness was admittedly residing in the neighbourhood of the accused. In such circumstance, there is no reason to discard her testimony. In substance, the evidence of witnesses Suman and Bajabai, who claimed to be eye witnesses to the incident, lends assurance to the evidence of witness Nanda on the factum of incident that took place in which the appellant assaulted the victim with knife causing multiple injuries on his person.

10. The presence of witness Nanda at the time of occurrence and also in the house of the appellant on that day has been doubted by the defence. For that, the learned Counsel for the appellant heavily placed reliance on the evidence given by the witness in her cross-examination which reads. "It is true to say that after the divorce, I have been residing with my parents in Lonar and till today I am residing in the house of my parents". The learned Counsel for the appellant submitted with vehemence that after having divorce between the appellant and witness Nanda, the claim of witness Nanda that she was residing in the house of the appellant along with him and for that reason her presence on the day of occurrence does not stand probable and, therefore, the admission given by her has to be spelt out to falsify her claim in her examination in chief that she was present in the house at the time of occurrence and that she was living with appellant. We do not find that having regard to attending circumstances and the evidence of witness Nanda read as a whole, it could be inferred even that witness Nanda was not present on the day of occurrence and that she was not living with the appellant at that time. In the first place, as could be seen from her examination in chief, if has come out that because of bickering between Nanda and her husband, appellant as also ill treatment to her at the hands of the appellant, they got separated and there was divorce between them and she started living with her parents. However, she has also made it clear that during the time she was living with her parents, it was the appellant who approached her and asked her to return to the matrimonial home and he also promised her that she would not be subjected to any illtreatment henceforth, she returned to the matrimonial house and started living with the appellant in his house. This version of witness Nanda has remained undisturbed as there is no cross-examination by the defence on this material question. It is again significant to note that no specific suggestion was given to the witness that she was not living at the time of occurrence along with the appellant in his house. It was only suggested to her that she has stated falsely that she had witnessed the incident. Therefore, answer given to the trapping question put by the defence to the witness cannot be read out of contest and cannot be termed as an admission to outweigh the consistent version given by the witness in her examination in chief.

11. There is other material evidence of witnesses Suman, Bajabai and Badal, which lends assurance to the claim of witness Nanda as to her presence at the time of occurrence as also she having witnessed the incident of the assault by the appellant on the victim. So far as witness Badal is concerned, he has stated in his evidence that after hearing the noise and when he found people shouting and proceeding towards the house of the accused, he also went there and saw one person, who was murdered, lying in a pool of blood in front of the house of the accused/appellant. He saw witness Nanda standing there and he asked her about the incident and she disclosed that the accused committed murder of that person whose name was disclosed and further she has also told that the accused had suspicion against her that she was having illicit relations with that person. What is surprising is the fact that no cross-examination was there of the witness Badal on this material aspect. So his evidence clinchingly establishes the presence of witness Nanda at the time of occurrence. The fact that this witness arrived on the scene and he was informed by witness Nanda about the occurrence that took place has not been disputed. This witness has further gone to the Police Station and lodged report (Exh.21) wherein he has disclosed the fact about the occurrence on the basis of the information received from witness Nanda when he enquired with her after he went to the place of occurrence. This sounds natural. The evidence of witnesses Suman and Bajabai also lends assurance to the claim of witness Nanda as to her presence at the time of occurrence and that she had witnessed the incident. Taking into consideration, the evidence of witness Nanda and that of witness Suman and Bajabai coupled with the evidence of witness Badal, it is clinchingly established that the assault on the victim was by the accused/appellant. It was the appellant who inflicted blows with the knife on the person of victim Dilip and the victim Dilip died of the injuries which he sustained in that assault.

12. The involvement of the appellant in commission of murder of the victim Dilip is further strengthened by the circumstantial evidence. It is already pointed out that the appellant was arrested on the very day of the incident. That time, the clothes on his person were seized. Later on, at his instance, in pursuance of the statement made by him vide memorandum (Exh.31), his shirt (Article 4) came to be seized. The evidence as to recovery of the shirt at the instance of and in pursuance of the statement made by the accused on interrogation during the course of investigation has been duly established on the evidence of panch witness Nagesh Deshmukh and Investigating Officer Narayan (PW-8). Though these witnesses were subjected to cross-examination, their evidence on material particulars remained undisturbed. What is incriminating is the fact that in the report of Chemical Analyser (Exh.45) on the clothes of the accused which came to be seized, human blood was detected and it was of 'A' group. The blood of the deceased was of 'A' group. No explanation has been offered by the accused as regards the finding of blood of 'A' group on his clothes. This, therefore, is the circumstance incriminating in nature showing complicity of the appellant in commission of the crime.

13. In addition to that, as stated earlier, in pursuance of the statement made by the appellant vide memorandum (Exh.28), knife was recovered at the instance of the appellant and the same came to be seized vide panchnama (Exh.29) and as per the report of Chemical Analyser (Exh.45), human blood was detected on the knife. This again is a circumstance incriminating in nature. This lends assurance to the claim of witness that the knife (Article 1) was the weapon of the assault. The involvement of the appellant in commission of the crime is clinching because of the fact that the said knife (Article 1) came to be seized at the instance of the accused/appellant in pursuance of the statement made by him.

14. The circumstantial evidence consisting of recovery of blood stained shirt of the appellant as well as recovery of knife (Article 1) having human blood is incriminating in nature. This circumstantial evidence lends assurance to the eye witness account of the witnesses Nanda, Suman and Bajabai. The entire evidence, therefore, clinchingly establishes that the appellant was the person who committed murder of the victim Dilip. The trial Court has committed no error in accepting the evidence, direct as well as circumstantial evidence. The prosecution has established that the appellant has committed murder of victim Dilip More. The trial Court has rightly convicted the appellant for the offence under Section 302 for committing murder. The trial Court has rightly sentenced the appellant for the offence of murder under Section 302 of the Indian Penal Code. There is no reason to interfere with the judgment and order passed by the trial Court. The appeal, therefore, merits no consideration. Hence, the appeal is dismissed.

Appeal dismissed