2011 ALL MR (Cri) 3507
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
P.V. HARDAS AND S.B. DESHMUKH, JJ.
Devanand S/O Shalikram Wankhede Vs. The State Of Maharashtra
Criminal Appeal No.135 of 2005
24th August, 2011
Petitioner Counsel: Shri S.M. Bhangde
Respondent Counsel: Shri T.A. Mirza
Evidence Act (1872), S.3 - Criminal trial - Appreciation of evidence - In respect of any variance in the depositions of the witness, i.e. between the vernacular and the English translation, the vernacular version would prevail. 1996 Cri.L.J. 673 - Rel. on. (Para 10)
The State of Maharashtra Vs. Bhaurao s/o Doma Udan and others, 1996 Cri.L.J. 673 [Para 10]
P.V. HARDAS, J. : - The appellant, who stands convicted for an offence punishable under Section 302 of Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.500/-, in default of which, to undergo rigorous imprisonment for one month, by the 1st Ad hoc Additional Sessions Judge, Nagpur, by judgment dated 7/1/2005, in Sessions Trial No. 327/2002, by this appeal questions the correctness of his conviction and sentence.
P.W.7 P.S.I. Kewat, who was attached to Sitabuldi Police Station on night duty on 12/3/2002 from 9 p.m. to 9 a.m. of 13/3/2002, received a message from P.S.I. of Police Station, Imamwada that the appellant had come to the Police Station and confessed to his having committed murder of his wife Sunita on the North Ambazari road. P.W.7 P.S.I. Kewat accordingly deputed P.S.I. Chauhan and P.S.I. Chaudhari to go to the scene of the incident. The aforesaid Police Officers had removed the injured lady to the Government Medical College and Hospital, Nagpur and P.S.I. Chauhan lodged a complaint at the Police Station. The said complaint is at Exh. 44 and on the basis of the aforesaid complaint, an offence came to be registered against the appellant. The printed copy of the First Information Report is at Exh. 45. P.W.14 Maroti Shende, P.I., who was at the relevant time attached to Police Station, Sitabuldi, received the case diary of Crime No. 144/2002, which has been registered against the appellant. He proceeded to the scene of the incident and drew the scene of the offence panchanama at Exh. 32 in the presence of panch witnesses. One handkerchief and one knife, which were lying at the scene of the incident, came to be seized. Sample of ordinary mud and blood stained mud also came to be seized. The appellant came to be formally arrested and clothes on his person, namely, Article 6 shirt and Article 7 pant came to be seized vide seizure memo at Exh. 59. The appellant was referred for medical examination and for drawing the blood sample. The aforesaid blood sample came to be seized in the presence of the panch witnesses vide seizure memo at Exh. 62. Clothes of deceased Sunita came to be seized vide seizure memo at Exh. 58. The articles were referred to the Chemical Analyser along with a requisition at Exh. 65. The arrest panchanama of the appellant is at Exh. 67. Statements of witnesses came to be recorded and further to the completion of investigation, a charge-sheet came to be filed.
3. On committal of the case to the Court of Sessions, the trial Court vide Exh. 7 framed charge against the appellant for offence punishable under Section 302 of Indian Penal Code. The appellant denied his guilt and claimed to be tried. The prosecution in support of its case, examined 14 witnesses. The defence of the appellant/accused was of denial. The trial Court accepted the prosecution evidence and convicted and sentenced the appellant as aforestated.
4. Before we advert to the submissions advanced before us by Shri S.M. Bhangde, learned Counsel for the appellant and Shri T.A. Mirza, learned Additional Public Prosecutor for the respondent State, it would be useful to refer to the evidence of the prosecution witnesses. The entire case of the prosecution revolves around the evidence of P.W.2 Tukaram, brother of the deceased, P.W.5 Nidhan, uncle of the deceased, P.W. 6 Dhyandeo, father of the deceased, and P.W. 8 Wasudeo, a Watchman at the factory where deceased Sunita was working.
5. P.W.2 Tukaram, brother of deceased Sunita, states that deceased Sunita was married to the appellant about ten years prior to the incident. The appellant was working in a factory as a Watchman while deceased Sunita was working in a Cotton Ginning Factory. Both of them used to reside in the premises of the factory where the appellant was working. Deceased Sunita had given birth to two daughters and one son, who were also residing with the appellant and deceased Sunita. The relations between the appellant and deceased were, however, strained as disputes between them had cropped up. About three days prior to the incident, deceased Sunita had come to the house of P.W.2 Tukaram and she narrated to him that she was apprehending danger to her life at the house of the appellant and, therefore, did not want to reside with the appellant. P.W.2 Tukaram, therefore, went to the house of the appellant along with his sister - deceased Sunita and brought both of them and their children to his house. All of them stayed in the house of P.W.2 Tukaram and thereafter they had informed him that they intended to reside separately. On the day of the incident, the appellant left the house of P.W.2 Tukaram along with deceased Sunita at about 8 a.m. in order to attend their respective duties. P.W.2 Tukaram further states that on the next day at about 2-2.30 a.m., he received information from the Police that his sister Sunita had been killed. In crossexamination on behalf of the appellant, an admission has been elicited that the appellant was suspecting the character of deceased Sunita and that was the cause of disputes between them. The appellant was suspecting illicit relations between deceased Sunita and the Watchman of the factory where deceased Sunita was employed. Omission has been duly proved that he had not stated in his previous statement that deceased Sunita had expressed apprehension about danger to her life and that she did not want to stay with the appellant. Apart from this, there is nothing in the cross-examination, which would in any manner affect the credibility of this witness that the relations between the appellant and deceased Sunita were strained and on the day of incident, deceased Sunita and appellant had left together at 8 a.m.
6. P.W.3 Bhalchandra, Supervisor in the Cotton Ginning Factory where deceased Sunita was employed, states that deceased Sunita was on duty on the day of the incident and the workers in the factory were working in two shifts, i.e. from 6 a.m. to 2 p.m. and from 2 p.m. to 10 p.m. He states that deceased Sunita was working in the first shift and was also at times working in the second shift, if work was available. Deceased Sunita used to work in both the shifts on some days.
7. P.W.5 Nidhan, uncle of deceased Sunita, states about the relations between deceased Sunita and appellant were strained and, therefore, he had requested the appellant to settle the dispute. He further states that he had attempted to call father of deceased Sunita in order to apprise him about the dispute between them, but he was unable to do so. Omission has been duly proved that he had not stated in his previous statement that he had attempted to call father of deceased Sunita, but was unable to do so.
8. P.W.6 Dhyandeo, father of deceased Sunita, also states that about a month prior to the incident, deceased Sunita had come to his house and had complained that the appellant was quarrelling with her. Deceased Sunita had also complained that her motherin- law used to quarrel with her whenever she used to come to their house. He states that after about a month, he had received a message from the accused to come to Nagpur immediately as the accused had some work with him. In the meantime, he received a telephone from one Shri Sardar that his daughter had died and, therefore, he came to Nagpur and learnt that Sunita had been killed.
9. P.W.7 Kewat, who was attached to Police Station, Sitabuldi as a P.S.I., states about registration of the offence and in the cross-examination, has admitted that he had taken entry in the station diary about the information received from the Police Station, Imamwada about the appellant confessing that he had injured his wife.
10. P.W.8 Wasudeo, who was employed as a Watchman in the Ginning and Pressing Factory where deceased Sunita was employed, states that on 12/3/2002, he was on duty from 4 p.m. to 12 midnight and deceased Sunita was working in the shift from 2 p.m. to 10 p.m. He further states that the appellant had come to fetch his wife at about 9.45 p.m. and had taken her at about 10.15 p.m. on a bicycle. He states that later on he learnt that Sunita had been killed. In cross-examination, he has admitted that the Ginning Factory had two gates. In cross-examination he has further admitted that a person standing outside the gate is not visible from inside, If he is sitting in his cabin, which is towards the right side of the gate. However, in the vernacular deposition of this witness, it is stated by him that the person standing outside the gate is visible from inside. In respect of any variance in the depositions of the witness, i.e. between the vernacular and the English translation, the vernacular version would prevail. A reference in this behalf may usefully be made to the Division Bench judgment of this Court in The State of Maharashtra Vs. Bhaurao s/o Doma Udan and others., (1996 Cri.L.J. 673). Thus, from the evidence of P.W. 8 Wasudeo, it clearly emerges that deceased Sunita had accompanied the appellant on his bicycle at 10.15 p.m. on the day of incident.
11. The evidence of P.W. 14 Shende, P.I., who is the Investigating Officer, is relevant. In crossexamination, it has been elicited that he had arrested the accused in the Police Station, Sitabuldi as the accused had been brought by P.S.I. Chauhan from Imamwada Police Station. This is an admission, which has been elicited in the cross-examination.
12. Shri Bhangde, learned Counsel for the appellant, has urged before us that the report lodged by the appellant has not been tendered in evidence nor any Police Officer from Imamwada Police Station was examined to substantiate that the appellant had appeared at the Police Station for confessing his guilt. The report alleged to have been lodged by the appellant, which was in the nature of confession, would be wholly inadmissible in evidence. Failure of the prosecution, therefore, to tender that report in the evidence is of no consequence. In the crossexamination of P.W.14 Shende, P.I., it has been elicited that the appellant had been brought from Imamwada Police Station by P.S.I. Chauhan and had been arrested in the Sitabuldi Police Station. The dead body of deceased Sunita was found lying on the Ambazari road having sustained innumerable injuries.
"(1) Incised wound over (R) side of face verticle of size 12 cm x 2½ cm x muscle deep gaping.
(2) Incised wound across inj. no.(1) as (R) angle of mandible, oblique of size 5½ cm x 2½ cm x muscle deep gaping present.
(3) Incised wound over (R) side mandible verticle 3 cm. from mid-line 2½ cm x ¼ cm x muscle deep.
(4) Incised wound over (Rt) ear lobe transverse 2 cm x ¼ cm part of lobe cut through and through.
(5) Incised wound 5 cm below (R) mastoid transverse 5 cm x ½ cm x muscle deep with tailing for ½ cm on left end.
(6) Incised wound over middle 3rd of (Rt.) eye brow verticle 4 cm x ½ cm x bone deep underlying frontal bone cut in outer table for 4 cm.
(7) Abrasion over (R) angle of mandible 1 cm x ½ cm reddish in colour.
(8) Incised wound over (R) supra clavicular region. Transverse, 4 cm x 2 cm x 3 cm deep.
(9) Abrasion over rt. Shoulder 1 cm x ½ cm. reddish in colour.
(10) Incised wound over lateral aspect of upper 3rd of Rt. Arm oblique 1 cm x ¼ cm x 3 cm deep.
(11) Incised wound over dorsum of (Rt) hand, transverse 2 cm x ½ cm skin deep with tailing on lateral end.
(12) Linear abrasion over middle 3rd of (Rt) forearm oblique, 3 cm in length, reddish in colour.
(13) Incised wound over anterior aspect, upper 3rd of (Rt) forearm, transverse, 3 cm x ½ cm x muscle deep.
(14) Incised wound over medial aspect of middle 3rd of (Rt) thigh, 2 cm x ½ cm x muscle deep.
(15) Incised wound over antero lateral aspect of middle 3rd of (Rt) thigh, oblique 7 cm x 3 cm x muscle deep gaping present.
(16) Incised wound, 1½ cm below injury No.15, oblique on lateral aspect, 6 cm x 3 cm x muscle deep.
(17) Incised wound over lateral aspect of lower 3rd of left thigh verticle of size 5 cm x 2½ cm x muscle deep gaping present.
(18) incised wound over dorsum of left hand transverse 4 cm x 1 cm x muscle deep.
(19) Incised wound 5 in no. present over dorsum of left wrist size varying from 3 cm x ½ cm x muscle deep to 1½ x ½ cm x muscle deep ½ cm aparl-transverse.
(20) incised wound over palmar aspect of thenac & Hypothenar region left hand, transverse, 8 cm x 1½ cm x muscle deep.
(21) Incised wound over palmar aspect of base of left middle & ring finger of size 1½ cm x ½ cm x bone deep each.
(22) Incised wound over anterior aspect of left elbow transverse of size 5½ cm x 1½ cm x muscle deep.
(23) Incised wound over lateral aspect of lower 3rd of left arm, 3½ cm x 1½ cm x muscle deep verticle.
(24) Incised wound over posterolateral aspect of middle 3rd of left arm, transverse, 7 cm x 3 cm x muscle deep.
(25) Incised wound over lateral aspect of Upper 3rd of left arm, transverse, 6 cm x 2½ cm x muscle deep.
(26) Incised wound over floor aspect of left wrist 3 cm proximal to wrist, 2½ cm x ½ cm x muscle deep transverse.
(27) Stab wound over back 4 cm left to mid-line at 3rd level of size 2½ cm x 1½ x cavity deep angles acute.
(28) Stab wound 1 cm below inj. (27) oblique of size 1 ½ cm x 1 cm x cavity deep angles acute.
(29) Incised wound over (Rt) intrascapular region, verticle of size 3 cm x ½ cm x muscle deep.
(30) Incised wound over back across midline at T 10 of size, 7 cm x 1½ cm x muscle deep.
(31) Stab would over back in (Rt) 5th intercostal space in posterior axillary fold oblique of size 5 cm x 2½ cm x cavity deep.
(32) Incised wound 8 cm medial to (Rt) shoulder tip verticle of size 2 cm x 1½ cm x muscle deep.
(33) Incised wound over dorsal aspect of proximal phalanx of left little finger, verticle 2 cm x ¼ cm x skin deep.
(34) Incised wound over vinar border of left hand, verticle 2 ½ cm x ½ cm x muscle deep.
All injuries are fresh and ante mortem."
He has opined that the injuries were sufficient in the ordinary course of nature to cause death. The post mortem report is at Exh. 48.
14. The report of the Chemical Analyser at Exh. 21 shows that the knife and clothes of the appellant were stained with blood of 'B' group. The clothes of deceased Sunita were also found stained with blood of 'B' group. However, it appears that the findings of the Chemical Analyser particularly about presence of blood of 'B' group on the knife and clothes of the appellant have not been put to the appellant in his statement under Section 313 of the Code of Criminal Procedure. Only the factum of seizure of clothes of the appellant is put to him. So, that part of the evidence that the clothes of the appellant were stained with blood of 'B' group will have to be left out of consideration. The circumstances, therefore, against the appellant are that the relations between the appellant and deceased Sunita were strained and the evidence of P.W.8 Wasudeo that deceased Sunita was last seen alive in the company of the appellant at 10.15 p.m. In respect of the first circumstance, the evidence is clear and cogent that the relations between the appellant and deceased Sunanda were strained. The evidence of P.W.2 Tukaram indicates that the appellant was suspecting the character of his wife Sunita. In respect of the second circumstance also, the evidence of P.W.8 Wasudeo after being tested in the cross-examination is that deceased Sunita had left in the company of the appellant at 10.15 p.m. Shortly thereafter, dead body of deceased Sunita was noticed on the Ambazari road having sustained innumerable injuries. The inference is irresistible that it is the appellant and the appellant alone, who had committed murder of deceased Sunita. Apart from taking the defence of denial, the appellant has not given any explanation as to what happened to Sunita after he had picked her up from the factory where she was employed.
15. From close scrutiny of the evidence of the prosecution witnesses, according to us, the prosecution has established the offence against the appellant beyond reasonable doubt. The finding recorded by the trial Court cannot be faulted with. Resultantly, there being no merit in the appeal, the same is dismissed confirming the conviction and sentence.