2012 ALL MR (Cri) 1442
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.P. LAVANDE AND S.P. DAVARE, JJ.
Bhagwant Shetiba Vitkar Vs. The State Of Maharashtra
Criminal Appeal No. 877 of 2005
29th February, 2012
Petitioner Counsel: Mr. ASHISH GIRI, M/s. JAY & CO.
Respondent Counsel: Mrs. A. S. PAI
Penal Code (1860), S.302 - Murder - Appeal against conviction - Prosecution case that accused gave knife blows on vital parts of body of deceased-wife - Testimony of eye-witness corroborated with FIR - Presence of eye-witness on spot was natural - No reason for eye-witness to falsely implicate accused - Discovery of weapon at instance of accused by itself is not sufficient to hold accused not guilty for offence charged and convicted - In view of direct evidence in a case, motive pales into insignificance - C.A. report establishes that on clothes of accused human blood of 'O' group was found - No explanation given by accused in that respect - Having regard to nature of injuries and parts of body on which they were inflicted, it could be said that accused intended to cause injuries to deceased which were sufficient to cause her death - Defence plea that offence under S.304 Part-I is alone made out against accused, not tenable - Conviction of accused under S.302 is proper - No interference. (Paras 18 to 20)
A. P. LAVANDE, J :- By this appeal the appellant ('The accused' for short) takes exception to judgment and order dated 16th March, 2004 passed by IInd Additional Sessions Judge, Baramati convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs. 3000/- and in default to undergo R.I. for two years.
The accused got married to Sarubai, daughter of PW4 Chandrabai Lashkare about eight years prior to the incident. Out of the wedlock two sons were born. Initially the accused treated Sarubai well. Thereafter the accused started consuming liquor and beating Sarubai. Sarubai, therefore, started residing with her parents intermittently. About 15 days prior to the date of incident i.e. 2nd December, 2002 Sarubai went to her mother's place which was in the same town i.e. Daund. Sarubai started working with a building contractor known as Kumar alongwith other lady workers. Sarubai Jadhav, Pamabai and Sundarbai were working with deceased for constructing a bungalow of one Baravkar at 'Samta Nagar'. Few days prior to the incident the accused went to contractor Kumar and asked him whether payments were made to the workers whereupon Kumar told him that he had made payments and asked accused why he was suspecting his wife and why he was assaulting her. On 1st December, 2002 the accused went to the house of his mother-in-law in the evening after consuming liquor and abused his wife Sarubai. On 2/12/2002 Sarubai started for work place from the house at about 8.30 a.m. alongwith Sarubai Jadhav, Sunderbai Gunjal and Pamabai. Sunderbai and Pamabai took the road going from Father High School whereas deceased and Sarubai Jadhav took the way from Deepmala. When both of them were passing from the land of one Kisan Shankar Pawar on a foot track near Deepmala, suddenly, accused came from opposite direction on bicycle, threw his bicycle aside and caught Sarubai by his hand and questioned her as to why she was attending the work. There was a scuffle between two of them. Suddenly the accused took out the knife from his waist and gave blows on the vital parts of the body of deceased Sarubai. Sarubai Jadhav requested the accused not to assault his wife. Therefore, Sarubai Jadhav gave shouts. Several persons gathered on the spot. The accused went away on the bicycle. Sarubai Vitkar died on the spot.
3. A phone call was given to police station Daund regarding the incident. Immediately PW8 Inspector Shankar Kengar proceeded to the place of occurrence and saw Sarubai Jadhav sitting there and Sarubai Vitkar was lying there. Sarubai Jadhav told him that Sarubai Vitkar was murdered by her husband by giving knife blows. Inspector Kengar sent Sarubai Jadhav to the police station with a staff member. Sarubai lodged report (Exhibit 33) in the police station pursuant to which C.R. No. 187/2002 under Section 302 of I.P.C. was registered against the accused at 9.40 a.m.. Thereafter, Sarubai Jadhav returned to the spot. Inspector Kengar drew panchnama of the scene of offence and the Inquest panchnama and thereafter body was sent for post morterm examination. The accused was arrested at 5.00p.m. on the same day under panchnama (Exhibit 30). On 5/12/2002, at the instance of the accused knife which was used by the accused was discovered and seized. Since Inspector Kengar was transferred, he handed over investigation to Inspector Survegandh. The articles seized were sent for chemical analysis. After completion of the investigation, chargesheet was filed against the accused in the Court of JMFC, Daund. As the offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions, Learned JMFC, Daund committed the case for trial to the Sessions Court at Baramati.
4. In Sessions Case No. 54/2003 charge was framed against the accused under Section 302 IPC. The accused pleaded not guilty to the charge and claimed to be tried. In order to bring home the guilt of the accused, the prosecution examined nine witnesses and produced several documents. The defence of the accused is of total denial. He claimed that after his marriage Sarubai resided with him only for one year and thereafter she did not come back although he had gone to bring her. He claimed that he was present at his house at the time of the incident and he was arrested at 10.00a.m. at his residence without any reason. The accused did not lead any defence evidence. Upon appreciation of the evidence led by the prosecution, the learned trial Court held that the offence punishable under Section 302 was proved beyond reasonable doubt against the accused and consequently sentenced him as above.
5. Mr. Giri, learned Counsel appearing for the accused submitted that the evidence led by the prosecution is not sufficient to convict the accused for offence punishable under Section 302 of IPC. Learned Counsel further submitted that the evidence of PW3 Saraswati Jadhav does not inspire confidence and there is variation in the testimony of PW3 Saraswati Jadhav and PW8 Shankar Kengar inasmuch as PW3 Saraswati claimed that she had gone to the police station and lodged the report whereas PW8 Shankar Kengar stated that he found Saraswati on the spot and thereafter she was sent to the police station alongwith police staff. Learned Counsel further submitted that discovery of knife at the instance of the accused does not inspire confidence inasmuch as there are lot of discrepancies in the evidence of panch witnesses and also on the ground that the alleged recovery was on 5th December, 2002 i.e. after a period of three days from the date of arrest of the accused. Learned Counsel further submitted that conduct of PW3, not shouting upon seeing assault by the accused on deceased, is unnatural and, therefore, her evidence does not inspire confidence. Learned Counsel further submitted that the prosecution has not examined the contractor Mr. Kumar and as such adverse inference has to be drawn against the prosecution. Learned Counsel further submitted that the alleged discovery of weapon at the instance of the accused is of no significance inasmuch as no blood has been found on the knife allegedly recovered in terms of C.A. Report (Exhibit 41). Learned Counsel further submitted that prosecution has also not got identified the blood group of the deceased and as such the presence of blood of 'O' group on the clothes of the accused does not advance the case of the prosecution. Learned Counsel further submitted that prosecution has not examined the persons who had gathered on the scene of offence soon after the alleged incident. Learned Counsel, therefore, submitted that the accused is entitled to be acquitted of the offence for which he has been convicted by giving him benefit of doubt. In the alternative, learned Counsel submitted that even if the prosecution case is accepted in toto, at the most offence under Section 304 (1) and not 302 IPC is made out against the accused. Insupport of his submissions Mr. Giri relied upon judgement of Apex Court in the case of Trimbak vs. State of M.P. AIR 1954 SC 39.
6. Per contra, Mrs. Pai learned APP supported the impugned judgment and order and submitted that evidence of PW3, being a natural witness inspires confidence and her evidence is corroborated by medical evidence which clearly proves that death of deceased Sarubai was homicidal and that the accused was the author of the crime. Learned APP further submitted that there is no variation in the testimony of PW3 Saraswati and PW8 Shankar Kengar. Learned APP further submitted that non-examination of contractor Kumar is not fatal to the prosecution case and even if the discovery of knife at the instance of the accused is not taken into consideration, the remaining evidence led by the prosecution is sufficient to hold the accused guilty of the offence for which he has been convicted. Learned APP further submitted that accused is liable to be convicted for the offence punishable under Section 302 and not 304 of IPC inasmuch as there was absolutely no provocation given by the deceased nor there is any other justification to bring down the offence from Section 302 to 304(I) IPC. Learned APP, therefore, submitted that the appeal be dismissed.
(i) Homicidal death of deceased Sarubai
(ii) Motive for commission of the crime.
(iii) Discovery of weapon at the instance of the accused.
(iv) Conduct of the accused after the commission of the crime.
(v) Presence of blood on knife discovered at the instance of the accused and also on the clothes and the articles found on the deceased.
8. As stated above the prosecution relied upon the eye witness account of PW3 Saraswati Jadhav. She deposed that she was residing at Vadar Gali and she knew deceased Sarubai Vitkar who was residing in her neighborhood. Both of them were going for labour work together. At the time of the incident both of them were working with one contractor known as Kumar who had undertaken construction of bungalow of one Baravkar at 'Samta Nagar'. Two masons and other labourers Pamabai and Sunderbai were working with them. Deceased Sarubai and she used to return home together. She further deposed that incident had occurred on Monday about an year prior to date of her deposition. She further deposed that prior to the incident the accused had come to the site at about 1.00 p.m. and had asked Kumar whether the payments were made to the workers. Kumar told him that he had made payments and asked the accused why he suspected Sarubai and why he was assaulting her. The accused went away. Sarubai had told her that she had to work in order to feed her children. She further deposed that on the day of the incident which was a Monday she alongwith Sarubai started to go for work at about 8.30 a.m. They reached Deepmala in the property of Kisan Shankar Pawar. The accused came there on a bicycle and threw the bicycle aside and caught Sarubai. There was a scuffle between two of them. She requested the accused to spare Sarubai. The accused took out the knife from his waist and gave the blows on the neck, chest and stomach of Sarubai. She requested the accused not to assault Sarubai. Thereafter, she started shouting. Several persons gathered there. The accused left the place. She thereafter went to the police station and lodged the report Exhibit 33. She confirmed the contents of the report as correct. She identified her thumb impression on the report. Thereafter, police came to the spot. She showed the spot of incident to the police. Police attached earth, bangles and chappal having blood. She identified the Saree articles seized, that is, blue blouse (Article 7) and chappal (Article 5) before the Court as those of Sarubai. She further deposed that Sarubai died on the spot. In cross-examination she stated that both of them were working at the bungalow of Baravkar for about 2-3 months and Sarubai, Pamabai and Sundarbai were going together for work and returning back home. She denied the suggestion that on 2nd December, 2002 all four of them had started together. She denied the suggestion that accused had not approached Kumar or that Kumar had not asked the accused as to why he was suspecting his wife. She further denied that Sarubai had never stated that she had no alternative but to work. She further denied the suggestion that she had not witnessed the incident or that the accused did not flee from the scene of offence. She denied the suggestion that after holding discussion she had gone to the police station.
9. A close scrutiny of the evidence of this witness who claimed to be an eye witness to the assault by the accused discloses that her version that it was the accused who assaulted the deceased Sarubai has not been shaken on material aspects in the cross-examination. Her presence on the spot alongwith the deceased was quite natural and there is absolutely no reason as to why she would falsely implicate the accused. Mere fact that she and deceased used to go to work and also return back from the work together, by itself would not be sufficient to hold that she has falsely implicated the accused as the person who assaulted deceased with a knife on her vital parts. Moreover, her evidence stand corroborated by First Information Report (Exhibit 33), which was promptly lodged at 9.40 a.m. on the same day. Promptness in lodging of report gives further credence to the testimony of PW3. We have absolutely no hesitation to place implicit reliance on the testimony of PW3 whose evidence is wholly reliable. Mere fact that other persons who were gathered on the spot after the incident, have not been examined is not sufficient to discredit the cogent testimony of PW3. There is absolutely nothing on record to suggest that the incident of assault was witnessed by other persons and as such the question of examining them does not arise.
10. Morever, the evidence of PW3 Saraswati stands corroborated by the testimony of PW9 Dr. Laxmikant P. Raut, the Medical Officer attached to Public Health Centre, Daund. He deposed that on 2nd December, 2002 he conducted post morterm on dead body of Sarubai Vitkar from 12.30 p.m. to 1.30 p.m. He found the following external injuries on her person.
1. Incision between chin and Lt. Ear Over left mandible oblique in shape 6" in length into muscle deep edges sharp.
2. Incision on Lt. Side of neck/in shape 8 c.m. X 1 c.m. carotid artery ruptured (lt) muscle deep, edges are sharp.
3. Incised wound over chest, pirosing sternum/oblique over to 4 cm X 1 cm edges sharp.
4. Incision over Lt. Hypochondriail region (near the shoulder) skin deep 5 X 1/4th cm oblique in shape edges sharp.
5. Incision over Lt. flexar aspect joint (interior side) 4 X ½ c.m., edges sharp muscle deep.
6. Injury over left X thing lower one third medically 2 X 1 cm edges sharp muscle deep (Inner side).
7. Injury over left thigh lower third laterally oblique 2 X 1 c.m. edges sharp, muscle deep.
All the injuries found were antemortem and were caused by sharp weapon. He further deposed that injuries could have been caused by knife (Article 5). On internal examination he found the injuries over pericardium. Left atrium and ventricle of the heart were ruptured. Dr. Udgirkar was with him while conducting postmortem. He identified his signature and that of Dr. Udgirkar on the postmortem report Exhibit 21. He opined that cause of death was cardiogenic shock due to injury to heart and left carotid artery. He further deposed that external injury nos. 2 and 3 were sufficient in ordinary course of nature to cause death. In cross-examination the witness denied that the injuries no. 1-4 were possible by sword.
11. The evidence of PW9 Dr. Laxmikant Raut has not been challenged in the cross-examination. Moreover, the accused has admitted postmortem report Exhibit 21. The evidence of PW9 Dr. Laxmikant Raut stands corroborated by postmortem report Exhibit 21 and also by inquest panchnama. Therefore, we have no hesitation to hold that the evidence of PW3 Saraswati Jadhav stands corroborated by medical evidence which establishes beyond doubt that death of deceased Sarubai Vitkar was homicidal.
12. We do not find any variation in the testimonies of PW3 and PW8 inasmuch as PW3 stated that at about 9.00 a.m. she went to the police station and lodged report whereas PW8 Shankar deposed that he saw PW3 Sarubai near the scene of offence and thereafter he sent her to the police station with a staff member. Thus, it cannot be said that there is a variation in the testimonies of PW3 and PW8.
13. In order to prove motive on the part of the accused the prosecution has relied upon the evidence of PW3 Saraswati. Her evidence clearly discloses that on 1/12/2002 the accused had come to site in the afternoon and had asked Kumar-the contractor whether he had made payments. Kumar told him that they had made payments and asked him as to why he was suspecting Sarubai and why he was assaulting her. The evidence of PW4 Chandrabai-the mother of the deceased also discloses that accused was consuming liquor and had come to her house where deceased was staying and assaulted her few days prior to the incident. Her evidence further establishes that just before the incident deceased Sarubai was staying with her. Thus evidence led by the prosecution clearly establishes that accused was ill treating deceased Sarubai and for this reason deceased was staying at her mother's place. She was working as a labourer with contractor Kumar which was not liked by the accused. Moreover, the accused was unemployed and was habituated to drink.
14. Therefore, in our considered opinion, the accused had motive to do away with the deceased. Having regard to the strata of the society to which the accused belongs, the motive alleged against the prosecution cannot be said to be far fetched. Morever, even if it is held that the prosecution has not been able to establish motive, having regard to the impugned evidence of PW3, we have no hesitation to hold that it was the accused who was the author of the crime. It is well settled by catena of decisions of the Apex Court that when there is a direct evidence in a case, motive pales into insignificance.
15. Insofar as alleged discovery of weapon at the instance of the accused is concerned, the prosecution has relied upon the evidence of PW6 Vishwanath Lashkare who claimed that on 5/12/2002 at the instance of the accused, a knife was recovered from a pipe under the road pursuant to Memorandum Exhibit 37 and recovery panchnama (Exhibit 38). Insofar as alleged discovery of the weapon at the instance of the accused is concerned, in our considered opinion, no much credence can be given inasmuch as neither PW6 Vishwanath nor recovery panchnama (Exhibit 38) mentions that there was blood on the knife (Article 15). Nodoubt C.A. Report Exhibit 41 discloses that blood of 'O' group was found on the knife but in the absence of any reference to the presence of blood in the evidence of PW6 Vishwanath or in the panchnama Exhibit 38, we find it difficult to place reliance on the alleged discovery of weapon at the instance of the accused. However, this fact by itself is not sufficient to hold the accused not guilty for the offence for which he has been charged and convicted.
16. Insofar as the conduct of the accused after commission of the crime is concerned, the evidence of PW3 Saraswati which has not been shaken in crossexamination establishes that after the assault on his wife Sarubai on vital parts, the accused left the spot. The evidence of PW2 Ashok further establishes that he was arrested at 5.00 p.m. on the same day. Therefore, the conduct of the accused clearly proves his complicity in the commission of the crime. The accused after assaulting his wife Sarubai and causing her serious injuries on vital parts chose to be away from her till he was arrested on the same day in the evening. This conduct of the accused also incriminates him in the commission of the crime.
17. Insofar as judgment in the case of Trimbak (supra) relied upon by learned Counsel for the appellant is concerned, we do not deem it necessary to refer to it since no reliance has been placed by us on the alleged discovery of the knife at the instance of the accused.
18. The next circumstance against the accused is the presence of knife and the clothes of the accused and the deceased. Insofar as presence of blood on the knife is concerned, since we have not accepted the discovery of knife at the instance of the accused, the same does not advance the case of the prosecution. Insofar as the presence of blood on the clothes of the accused is concerned, the evidence of PW2 Ashok Mane who was a panch for the arrest panchnama (Exhibit 30) and Seizure Panchnama of the clothes of the accused (Exhibit 31) clearly establishes that the accused was arrested on 2/12/2002 at Daund police station and his pant and shirt with blood stains were attached. C.A. Report (Exhibit 41) establishes that on the clothes of the accused human blood of 'O' group was found. In the absence of any explanation from the accused, this circumstance also connects the accused in the commission of the crime. C.A. Report Exhibit 41 also establishes that articles which were found on the deceased which were seized pursuant to panchnama Exhibit 27 were having blood and some of articles seized had human blood of 'O' group. The seizure of articles which are found on the body of deceased Sarubai has been proved by the prosecution through the evidence of PW1 Ramesh Suryawanshi. Therefore, the prosecution has been able to establish the presence of blood on the clothes and articles found on the person of the deceased. Thus, the evidence of PW3 Saraswati Jadhav who was an eye witness to the incident is corroborative by the circumstantial evidence referred to herein above. We, therefore, have no hesitation to hold that it was the accused and accused alone who assaulted deceased Sarubai with knife causing her injuries on vital parts.
19. The next question which arises for consideration is whether offence punishable under Section 302 or 304 of IPC is made out against the accused. Having regard to the nature of the injuries, the parts of the body on which they were inflicted, we are of the considered opinion that the accused intended to cause injuries to deceased Sarubai which were sufficient to cause her death. Therefore, the offence under Section 302 and not 304(I) of IPC as contended by learned Advocate for the accused, is made out against the accused. Therefore, the conviction of the accused and the sentence imposed on him does not deserve any interference.