2011 ALL MR (Cri) 40
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.D. SINHA AND A.P. BHANGALE, JJ.
Savita Jyotiba Dembalkar Vs. State Of Maharashtra
Criminal Appeal No.166 of 2005
13th December, 2010
Petitioner Counsel: Mrs. S. D. KHOT
Respondent Counsel: Mr. Y. S. SHINDE
Penal Code (1860), S.302 - Criminal P.C. (1973), S.374 - Appeal against conviction - Murder case - Ample evidence to prove beyond all reasonable doubts that deceased met with homicidal death and accused alone and none else was responsible for homicidal death of deceased - Medical and expert evidence corroborating findings - No reason to depart from the findings of fact and to take a different view than recorded by trial Court - Appeal having no merits, dismissed. (Paras 8, 9, 10)
A. P. BHANGALE, J.:- This Appeal is directed against the Judgment and order dated 20/03/2003 passed in the Sessions Case No.56 of 2001 by the learned II Additional Sessions Judge, Baramati, District Pune whereby the Appellant was found guilty of the offence punishable under section 302 of the Indian penal code and sentenced to suffer R.I. imprisonment for life and to pay fine in the sum of Rs.500/-.
Complaint was lodged by Dattatraya (PW-1) in respect of the incident which occurred on 18-12-2000 at about 6.30 p. m. after the first informant returned to his house was informed by his neighbour Mahadev Baravkar that he had seen dead body of a lady lying by the side of a pathway. PW-1 immediately took a torch and proceeded to the spot with one Rambhau. They noticed dead body of Shalan lying by the side of pathway. It appeared that she had sustained injuries on her head, neck, and on the jaw. Blood was seen lying on the ground. When Dattatraya raised shouts people from the area nearby gathered there. The Complaint was registered as FIR No.261of 2000 at the Yavat Police Station (Exh.18). It was recorded by PW 16 B. P. Khallukar on 18-12-2000, who conducted the investigation. The investigating officer proceeded to the spot and drew inquest Panchnama (Exh.2). The dead body was referred for the post-mortem examination to primary health Center, Yawat (post-mortem notes Exh.h. 30). Muddemal articles sample of earth soil, soil mixed with blood, khurpe (a sickle-agricultural implement used for to cut grass), Dorle (yellow metal pendent), napkin-a small towel were seized from the spot. PW 16, who made initial investigation tried to trace the accused on 18-12-2000, but could not trace him on that day. On the following day the accused was arrested under Panchnama(Exh.39). The accused while in police custody on 20-12-2000 had volunteered under Panchnama (Exh.36) to produce weapon concealed by him and led police and panchas to discovery of a blood stained iron strip (Article 10), which was seized (Panchanama Exh.37).
3. Muddemal articles were referred to the C.A. with letter dated 1-2-2001. C.A. reports were received as per Exh.46 indicating that the sickle, dry sweet neem leaves with sticks wrapped in paper, small towel, yellow metal pendent(Dorle), sample of earth, clothes of the deceased, seized from the scene of offence were found stained with human blood. Blood group 'A' was detected on the clothes of the deceased Shalan Bhujbal and on pyjama(Art.7) of the appellant- accused and upon Sickle seized from the scene of offence while presence of human blood stains were detected on the iron strip weapon of offence discovered and seized at the instance of the appellant. Although result as to the exact blood group found on the weapon of offence was inconclusive according to chemical analyser.
4. Upon completion of investigation the Charge-sheet was filed on 6-2-2001 in the Court of the Judicial Magistrate F.C., Daund. The case was committed to the court of Sessions at Baramati on 04/06/2001.
8. PW-1 Dr. Ashok Rasge had conducted post-mortem examination of the dead body of the victim Shalan and deposed as to correctness of the P.M. Notes written by him (Exh.30). According to him, he found following external injuries on the dead body.
a) Incised wound on mid area of head, horizontally situated size 6 inch x 1 inch x 1 inch; the injury was having depth of 1 inch extending up to brain. There was fracture to the skull at mid area.
b) Incised wound over neck at anterior aspect with size about 3 inch x 1 inch x half inch with Tricia seen. Injury was having depth of about half inch.
c) Incised wound on neck right side, size of about 3 inch x 2 inch x 1 inch with black beds on it.
d) Incised wound over neck on right side, by the angle of mandible, over the neck size of about 5 inch x 2 inch x 1 inch.
e) Incised wound over neck on right side, just near to injury no.4.
Doctor Ashok Rasge made following observations as to injuries on internal examination of dead body
1) There was laceration to brain and it was pale.
2) Both lungs were pale, Heart was pale. Indicating that before the death she had bleeding.
3) Liver was pale. Spleen was pale. Both kidneys were pale. Stomach was empty.
He opined that the cause of Shalan's death as per medical evidence was neurogenic and hemorrhagic shock due to head injuries with incised injuries over neck. Doctor further opined that all the injuries noted by him were ante mortem, which had occurred 10 to 12 hours before the Post-mortem examination. Injury no. 1 was sufficient to make person unconscious and all the injuries cumulatively caused death. All the injuries were sufficient to cause death in the ordinary course of nature. The external injuries described were possible by use of weapon like article iron strip shown to him. He denied that injuries cannot occur due to sharp side of the iron strip. In the cross-examination Doctor overruled the possibility that all injuries were possible by a fall on the Sickle. According to him, only one injury is possible at one time. The prosecution led evidence about the inquest over dead body of Shalan. PW 2 Govind Barawkar deposed about injuries observed over the dead body identified by the first informant as the body of his wife. PW 2 deposed about the blood lying on the spot as also injury noticed on the head and 3 injuries noticed on the neck of the deceased and the Panchnama is Exh.20. Blood stains were noticed on the clothes of the dead body. There is nothing to discredit the witness in his cross-examination. The prosecution examined PW 3 to prove Panchnama regarding scene of offence (Exh.22). The spot was pointed out by the first informant wherefrom blood stained articles such as sickle, small towel, Dorle, sweet-neem leaves -with sticks, samples of blood stained soil and plain soil were collected. Blood stained clothes- saree, blouse and petticoat of the deceased were collected under Panchnama (Exh.23) as deposed by PW-3. The evidence of PW-3 remained un-shattered in the cross-examination. The prosecution has thus, led ample evidence to prove beyond all reasonable doubts that the deceased Shalan Bhujbal met with homicidal death.
9. The next question is as to whether the Appellant was responsible for the death of Shalan (deceased). The prosecution examined PW-6 Shahaji as an eye witness, who deposed about the incident. He had gone to attend marriage of his relative at Someshwar by his motorbike M-80 and was returning back to Nhavra. At about 5.15 p.m. when he had stopped for urination little ahead of the Dattawadi bus stop, he saw the accused at a distance of about 200 feet, on the pathway leading from Dattawadi to Barawkar wadi, armed with iron strip in his hand and assaulting a lady on her head by iron strip, the lady fell down on the ground. PW 6 was frightened having witnessed unusual, unforgettable incident of murder of a lady. He took his bike and rushed to his house. He narrated the incident to his Mother. We have scrutinized his evidence and found it convincing. He knew deceased Shalan also, but frankly he admitted that he was unable to see her face at the time of incident. He thought that the accused may be quarreling with his wife on the path way. According to PW 6 Shahaji his brother had received telephone message that somebody had killed Shalan and then he realized that the accused had killed Shalan whose face he could not see at the time of incident of assault by the accused. PW 6 Shahaji knew the accused and Shalan also and had no reason for to falsely implicate the accused in serious crime of murder. PW-7 Dwarkabai Barawkar is another Eye witness examined. She is an illiterate witness, who had gone to collect firewood in the field. She met and had occasion to talk with Shalan while returning from the field prior to the incident when Shalan was carrying Kadhi patta (sweetneem leaves) and Khurpe (a sickle). PW 7 Dwarkabai had seen the accused, who was armed with iron strip in his hand while coming towards pathway and giving blows on the head and neck of Shalan and that Shalan had fallen on the pathway, having sustained bleeding injuries. After the assault the accused proceeded towards Supa Road. Dwarkabai, who was frightened having seen the incident had narrated about it to her husband on reaching home. Dwarkabai had no axe to grind against the accused to falsely implicate him in the offence of murder. There is nothing in her cross examination to assail her credibility as an eye witness. To corroborate direct evidence of eye witnesses the prosecution examined PW-8 Ganpati Barawkar, whose business was sale of wada-pav on a hand cart, who deposed that the Appellant-accused had met him 5 or 6 days prior to the incident and was disturbed, as he had to cook himself as his wife was not cohabiting with him and he had told him that because of Bhujbal his wife was not cohabiting with him and that he will see Bhujbal. The evidence throws light on the motive and the grudge which, the Appellant had harboured against the Deceased Shalan Bhujbal. PW-11 Waman is father-in-law of the Appellant. He deposed that the accused used to beat and ill-treat his daughter Yamuna, who left the house of the accused and was residing with him since one year prior to the incident. Sudarshan (PW-4) is son of the Appellant, who deposed that on the date of incident his father (the Appellant) had brought iron strip and had followed Shalan, by pathway towards Barawkarwadi saying that he will see Shalan. Sudarshan had requested his Father to restrain from following Shalan. Apart from this evidence the prosecution has also relied upon evidence of discovery of weapon- iron strip at the instance of the Appellant. PW-15 Maruti Kokar was examined to prove that the Appellant had made a disclosure statement that he had concealed iron strip and he will point out the place and the article. The memorandum statement was recorded under the Panchnama Exh.36. Pursuant to which the accused had led police and panchas by a Jeep to a sand stream and had taken out the iron strip concealed under the sand. Thus, weapon of offence iron strip was discovered and seized under the Panchnama drawn as per Exh.37. According to the investigating officer Khallukar (PW 16), the Appellant was not traceable after the incident on 18-12-2000, but was arrested on 19-12-2000 under Panchnama Exh.39. In his statement under section 313 of the Criminal Procedure Code, the defense of the Appellant was of bare denial of the prosecution's case. The entire evidence- direct as well as circumstantial led by the prosecution and corroborated by the medical as well as C.A. report (Exh.36) hence was consistent with hypothesis of guilt of the Appellant and proved beyond reasonable doubt that it was the Appellant accused alone and none else was responsible for the homicidal death of Shalan Bhujbal.
10. The learned Trial Judge has appreciated the evidence in details and found that entire evidence was clear, convincing and reliable to prove that the Appellant had intentionally committed Murder of helpless Shalan Bhujbal by assaulting her by means of iron strip on vital parts, head and neck of the body. Medical and expert evidence also corroborated the findings of fact that the death was homicidal and that the Appellant was responsible for the murder-homicidal death- of Shalan. We have no reason to depart from the findings of fact and to take a different view than recorded by the Trial Court, as evidence, in our opinion, was sufficient beyond reasonable doubt to bring home guilt to the Appellant. The Appeal therefore, has no merits. It is therefore, dismissed.