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2009 DIGILAW 1571 (BOM)

State of Maharashtra v. Jangu Kishtu Kotnake

2009-11-21

A.P.LAVANDE, PRASANNA B.VARALE

body2009
Judgment : Both these appeals are being disposed of by common judgment since both these appeals arise out of judgment and order dated 12th December, 2003 passed by 1st Adhoc Additional Sessions Judge, Chandrapur in Sessions Case No.27/2003. By the said judgment and order, the appellant in Criminal Appeal No.255/2004 (hereinafter referred to the accused) has been convicted for offence punishable under Section 302 of the Indian Penal Code for committing murder of Smt. Chandrakala Rupchand Pawar and her daughter Puja Rupchand Pawar. Criminal Appeal No.255/2004 has been filed by the accused challenging his conviction and sentence whereas Criminal Appeal No.110/2004 has been filed by the State challenging inadequacy of the sentence imposed on the accused. According to the prosecution, learned Additional Sessions Judge ought to have imposed death sentence on the accused for double murder. 2.Briefly, the prosecution case is as under: The informant Rupchand Pawar, resident of Titvi, had been to mouza Naiknagar to meet his parents on 13.12.2002 at about 4.30 p. m. He reached at Patan bus stand so as to board bus leaving to village Titvi. At that time Dada Parchake (PW 4) a teacher from his village and two other villagers namely Lingu Uikey (PW 3) and Manku Kulsunge met him and informed him that his wife and daughter were assaulted by an axe by the accused and that they were in serious condition. The informant immediately went to the Police Station, Patan and lodged report against the accused, pursuant to which Crime No.8/2002 under Section 307of the Indian Penal Code was registered against the accused. Pursuant to the F.I.R., investigation was taken up and various steps in the course of investigation such as spot panchanama, inquest panchanama, sending body for postmortem, recording of statements of witnesses, sending seized articles for chemical analysis etc., were undertaken and after completion of the investigation, the charge-sheet for offence punishable under Section 302 of the Indian Penal Code was filed against the accused. The prosecution alleged that the accused had committed murder of Chandrakala and her daughter Puja by assaulting them with an axe. Since the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. In Sessions Case No.27/2003 before the Additional Sessions Judge, Chandrapur, the prosecution examined ten witnesses and produced several documents to prove the case against the accused. Since the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. In Sessions Case No.27/2003 before the Additional Sessions Judge, Chandrapur, the prosecution examined ten witnesses and produced several documents to prove the case against the accused. Defence of the accused was of total denial. In his statement under Section 313 of the Code of Criminal Procedure he took defence of alibi. The accused did not lead any defence evidence. The learned Additional Sessions Judge, upon appreciation of oral evidence led by the prosecution, held the accused guilty of committing murder of Chandrakala and Puja and consequently convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentence him to life imprisonment and pay fine of Rs. 1000/-and in default to undergo R.I. for one month. 3.Mr. Mardikar, learned counsel for the appellant, at the outset, submitted that the accused has not been properly defended in the course of the trial, as is evident from the nature of cross-examination of the important witnesses examined by the prosecution. He further submitted that Sangubai Aade (PW 6) is not an eye witness to the incident of assault on Chandrakala by the accused and her evidence regarding assault by the accused on Puja does not deserve any credence. He further submitted that the prosecution has not been able to establish motive and, therefore, the accused is liable to be acquitted. He further submitted that the record discloses that the statement of Sangubai Aade (PW 6) was recorded under Section 164 of the Code of Criminal Procedure and, therefore, her testimony must be accepted with caution. According to Mr. Mardikar, the prosecution evidence is not sufficient to prove complicity of the accused in the commission of offence, for which he has been convicted. 4.Per contra, Mr. Jichkar, learned APP appearing on behalf of the State supported the impugned judgment and order to the extent it convicts the accused for the offence punishable under Section 302 of the Indian Penal Code. He submitted that having regard to the fact that the accused brutally assaulted Chandrakala and Puja with an axe causing them injuries, which resulted in their death, the sentence of life imprisonment imposed on the accused is inadequate. He submitted that having regard to the fact that the accused brutally assaulted Chandrakala and Puja with an axe causing them injuries, which resulted in their death, the sentence of life imprisonment imposed on the accused is inadequate. Learned APP submitted that having regard to the brutal nature of the crime committed by the accused, appropriate sentence would be death sentence and, therefore, to this extent, the impugned judgment and order is liable to be modified. In the alternative, learned APP submitted that in the event this Court is not inclined to award death sentence, the accused be ordered to undergo imprisonment for a minimum period of 20 years. 5.In rejoinder, Mr. Mardikar submitted that since no motive on the part of the accused has been proved by the prosecution, this is not a fit case in which the accused deserves death sentence. He further submitted that since the accused is aged about 45 years and considering the circumstances of the case, this is not a fit case in which minimum sentence of 20 years deserves to be imposed on the accused in the event the sentence of imprisonment for life is maintained by this Court. 6.We have carefully considered rival submissions and perused the record. 7.In order to prove the complicity of the accused in the commission of the crime, the prosecution has not only relied upon ocular testimony of Sangubai Aade (PW 6) but also relied upon the following circumstances:- (i) evidence of witnesses who had seen the accused with an axe outside the house of the informant. (ii) the death of Chandrakala and Puja was homicidal; (iii)spot panchanama, inquest panchanama, Chemical Analysers' report etc. 8.Since Sangubai Aade (PW 6) claims to be an eye witness, it would be appropriate to analyse her evidence first. She deposed that she knew deceased Chandrakala and deceased Puja who were staying in the neighbourhood. She further deposed that the incident took place 5-6 months' back. On that day there was Tervi programme at the residence of one Ambadas Uikey. She had gone to the house of Ambadas Uikey at about 4.00 p.m. While she was returning, she saw the accused standing in front of the house of deceased Chandrakala with an axe in his hand. After she reached her house she heard some commotion coming from the house of Chandrakala. She had gone to the house of Ambadas Uikey at about 4.00 p.m. While she was returning, she saw the accused standing in front of the house of deceased Chandrakala with an axe in his hand. After she reached her house she heard some commotion coming from the house of Chandrakala. She came out of the house and saw that the accused was assaulting Puja by means of an axe. When the accused tried to run, the people caught him and tied him around a pole. She thereafter went inside the house of Chandrakala and noticed that Chandrakala was lying on the ground with injuries on her head. Puja was lying in the courtyard. She further deposed that Puja was assaulted by the accused on her head by an axe. She further deposed that deceased Chandrakala and the accused were not on speaking terms on account of quarrel. She identified the axe shown to her as the weapon which was used by the accused. In cross-examination she has stated that the accused was wearing dhoti and banian. She denied suggestion that she was on enemical terms with the accused. She denied suggestion that she was not present at the site or that she had deposed falsely against the accused as she was not in good terms with the accused. The evidence of this witness has not been absolutely shaken in the cross-examination. Mr. Mardikar is right in submitting that there is no searching cross-examination of this witness. But the fact remains that advocate, who was represented the accused, was appointed by him and, as such, this aspect of the matter is not of much help to the accused. We find it difficult to set aside the conviction of the accused on the sole ground that the cross-examination on behalf of the accused has not been searching. 9.Upon a close scrutiny of the evidence of this witness, we have no hesitation to accept the testimony of Sangubai Aade (PW 6). At this stage, we would like to deal with the submission of Mr. Mardikar that this witness is not an eye witness to the assault by the accused on Chandrakala. No doubt, the witness has not stated about the assault by the accused on Chandrakala. This fact, in our considered opinion, lends assurance to her testimony inasmuch as the witness saw only the assault made by the accused on Puja. Mardikar that this witness is not an eye witness to the assault by the accused on Chandrakala. No doubt, the witness has not stated about the assault by the accused on Chandrakala. This fact, in our considered opinion, lends assurance to her testimony inasmuch as the witness saw only the assault made by the accused on Puja. But her evidence proves beyond reasonable doubt the assault by the accused on Chandrakala inasmuch as the witness deposed that before she saw the accused assaulting Puja by an axe she heard some commotion from the house of Chandrakala. She also deposed that after she saw Puja lying in the courtyard, she entered house and saw Chandrakala lying with injuries on her head and neck. In this factual back ground, although the witness does not depose about the assault by the accused on Chandrakala, the only legitimate inference which can be drawn from the circumstances is that it was the accused who assaulted Chandrakala before assaulting Puja in the courtyard. Therefore, mere fact that the witness does not claim to be eye witness to the assault on Chandrakala does not advance the case of the accused. 10.The prosecution case is also corroborated by the evidence of Laxmibai Tangadpalliwar (PW 2) the mother of deceased Chandrakala, who deposed that on the date of incident she was informed by one boy by name Lalshah that her daughter was assaulted. Thereafter she went to the house of her daughter where she noticed that her grand-daughter lying outside the house and her daughter lying inside the house in the pool of blood. She further deposed that both of them were taken to Chandrapur hospital. The evidence of this witness has also not been shaken in cross-examination except her statement in examination-in-chief to the effect that the accused was caught by Yashwanta Uikey and others while he was trying to run away, which is an omission vis-a-vis her police statement. The evidence of Rupchand Pawar (PW 1) also corroborates the prosecution case. He deposed that on the date of incident he was informed about assault on his wife and his daughter at Patan and thereafter he went to the Police Station, Patan and lodged report. The witness has proved F.I.R. (Ex. 8) and printed F.I.R. (Ex. 9). The evidence of Rupchand Pawar (PW 1) also corroborates the prosecution case. He deposed that on the date of incident he was informed about assault on his wife and his daughter at Patan and thereafter he went to the Police Station, Patan and lodged report. The witness has proved F.I.R. (Ex. 8) and printed F.I.R. (Ex. 9). He further deposed that thereafter he went to his house where he found his wife and daughter in the pool of blood. Thereafter they were taken to the hospital at Gadchandur and thereafter to General hospital, Chandrapur. He deposed that his wife died on the way to Chandrapur and his daughter died after one hour of admission in hospital at Chandrapur. He further deposed that the accused who was staying in neighbourhood used to quarrel with them. His wife was President of Mahila Bachat Gat and wife of the accused was a member. The accused always demand money from his wife and his wife did not give the amount and the accused on this count always used to quarrel with them. Nothing tangible has been brought in cross-examination of this witness. The evidence of this witness lends assurance to the prosecution case. 11.The evidence of Lingu Uikey (PW 3) proves that on the date of incident he along with others reached at the house of Rupchand after his wife of the accused cried that Chandrakala was being assaulted by the accused. He saw Chandrakala and her daughter were lying in a pool of blood. He along with others tried to catch the accused. The accused tried to run away. However, he and Laxman and Yashwant caught the accused and brought him in front of the house of Rupchand Pawar and tied him around an electric pole. Thereafter they went to the house of Dada Parchake (PW 4) and requested him to drop them at the police station. He along with Manku went to Patan police station on the motorcycle. On the way they met Rupchand whom they informed about the incident and he also accompanied them. The evidence of this witness also has not been shaken in the cross-examination. The evidence of this witness also stands corroborated by the evidence of Dada Parchake (PW 4) who has deposed about taking Lingu Uikey (PW 3) to the Police Station along with Rupchand Pawar (PW 1). The evidence of this witness also has not been shaken in the cross-examination. The evidence of this witness also stands corroborated by the evidence of Dada Parchake (PW 4) who has deposed about taking Lingu Uikey (PW 3) to the Police Station along with Rupchand Pawar (PW 1). Thus, the evidence of above witnesses lends corroboration to the evidence of eye witness Sangubai Aade (PW 6). 12.In order to prove homicidal death of Chandrakala and Puja, the prosecution has examined Dr. Wasudha Zade (PW 5) who conducted post-mortem examination on the dead bodies of Chandrakala and Puja on 14.12.2002. She found following external injuries on the body of Puja Pawar: Swelling and fullness over temporal region on right side. She also found depressed fracture over right frontal bone. On internal examination, she found blood clot over right front parietal and temporal region. She found 200 cc of blood clot which was present over right front parietal and temporal region. She also found fracture of 8 cm. x 8 cm. on right front parietal region with one fracture 6 cm long extending arterial deep towards left. She also found comminuted fracture in large gaps in bone of 4 cm x 9 cm in dimension running diagonally backward over right and left parietal bones. Brain tissue was seen from the gap. Brain tissue was lacerated in right frontal region and right and left parietal regions. She opined that cause of death was head injury with injury to vital structure of the brain with hypovolemic shock. She identified her signature on the post-mortem report (Ex. 19) and confirmed its contents as correct. 13.She further deposed that on the same day she conducted post-mortem on the dead body of Chandrakala Pawar. Upon external examination, she found two large lacerated wounds over skull with underlying brain tissue fracture of forearm bone on left between middle third and lowered third. Upon internal examination she found two lacerated wounds over scalp. First wound was present at cortex which was triangular in shape 4 cm in length and 2.5 cm. in width and brain deep. Underlying skull bone shown comminuted fracture and brain tissue was seen from the fractured area. Two lacerated wounds were present on left temporal parietal region around 5 cm. x 3 cm. x 7 cm. with fracture of underlying bone. in width and brain deep. Underlying skull bone shown comminuted fracture and brain tissue was seen from the fractured area. Two lacerated wounds were present on left temporal parietal region around 5 cm. x 3 cm. x 7 cm. with fracture of underlying bone. Comminuted fracture of left temporal bone left half of occipital bone and posterior 5 cm x 3 cm x 7 cm with fracture of underlying bone. Comminuted fracture of left temporal bone was found with fracture piece in brain tissue. Clot of blood was found overlying left temporal bone left half of occipital bone and posterior half of left parietal bone. The cause of death was head injury with injury to the vital structure of the brain with hypovolemic shock. She identified signature on the post-mortem and confirmed its contents as correct. She further deposed that on 19.12.2002 an axe was sent for her opinion and she had given report (Ex. 21) stating that the injuries found on the dead bodies could have been caused by the said weapon. She identified the axe as the weapon which was sent to her. In cross-examination she admitted that injuries noted by her in Ex. 19 were not possible by hard and sharp weapon. She admitted that there would be cut injury if weapon used is hard and sharp. She further deposed that the injuries mentioned by her in Exhibit 19 would have been caused by hard and sharp weapon. She further deposed that minimum two blows from the blunt side were required to produce the injuries mentioned in Exhibit 19. She further deposed that injuries were possible, if a child of three years falls from cradle on a stony surface. She further deposed that injuries noted in Exhibit 20 would have been caused by sharp weapon. She denied suggestion that the injuries were possible by hard and blunt object. 14.The evidence of above witnesses clearly establishes that the death of Chandrakala as well as her daughter was homicidal on account of the injuries to vital organs including head. 15.The ocular evidence and medical evidence also stand corroborated by spot panchanama, which clearly proves presence of blood on the spot and axe. C.A. report also lends corroboration to the prosecution case inasmuch as blood is found on the axe as well as on the dhoti which was seized from the person of the accused. 15.The ocular evidence and medical evidence also stand corroborated by spot panchanama, which clearly proves presence of blood on the spot and axe. C.A. report also lends corroboration to the prosecution case inasmuch as blood is found on the axe as well as on the dhoti which was seized from the person of the accused. 16.Thus, the prosecution evidence to which we have made reference here in above clearly proves the complicity of the accused in the commission of ghastly murder of Chandrakala and Puja. We find no merit in the submission of Mr. Mardikar that there was no motive to commit murder on the part of the accused. Rupchand Pawar (PW 1) has deposed that the accused used to quarrel with his wife Chandrakala since she was not acceding to the request of the accused to give money to him from the account of his wife. The statement made by Rupchand Pawar (PW 1) that his wife was President of Mahila Bachat Gat and wife of the accused was a member has not denied in the cross-examination. Therefore, there is no reason to disbelieve the version of this witness that the accused always used to demand money from the account of his wife. Moreover, in a criminal case where there is direct ocular evidence, motive assumes less importance. It is extremely difficult for the prosecution to prove exact motive of the accused for the commission of the crime inasmuch the same is locked in the mind of the accused. 17.The next question, which arises for consideration, is whether the sentence of life imprisonment awarded by learned Additional Sessions Judge deserves interference. No doubt, the accused has committed murder of Chandrakala and her helpless child Puja aged about three years by assaulting them brutally with an axe. No doubt, crime is ghastly. But, at the same time, the prosecution has not been able to prove any criminal antecedent of the accused or that he is menace to the society. The accused is aged about 45 years and appears to have committed offence of double murder since he had grudge against Chandrakala for refusing to give money on account of his wife. But, at the same time, the prosecution has not been able to prove any criminal antecedent of the accused or that he is menace to the society. The accused is aged about 45 years and appears to have committed offence of double murder since he had grudge against Chandrakala for refusing to give money on account of his wife. 18.Considering the circumstances and the manner in which the accused has committed double murder, we are of the considered opinion that interest of justice would be served, if the sentence of imprisonment for life and fine imposed on him is maintained with rider that the accused should not be released till he completes actual period of imprisonment of 20 years excluding remission. The Division Bench of this Court in the case of Deepak s/o Vasant Kale Vs. State of Maharashtra : 2006 AlL MR (Cri) 686 to which one of us (A.P. Lavande, J.) was a party, after referring to various judgments of the Apex Court and considering the circumstances in which the offence was committed by the accused in that case, maintained the sentence of imprisonment for life with rider that the accused would not be released before completing the actual term of twenty years. In our considered opinion, the interest of justice would be served by passing similar order in the present case. Although we are of the opinion that this is not a "rarest of rare" case and the accused does not deserve death sentence, the facts and circumstances proved against the accused in the present case, compel us to pass an order that the accused shall not be released until he undergoes the actual imprisonment of twenty years. 19.For the reasons aforesaid, Criminal Appeal No.255/2004 filed by the accused is dismissed. Criminal Appeal No.110/2004 filed by the State is also dismissed. It is ordered that the accused shall not be released unless he undergoes actual imprisonment of twenty years. Both the appeals are disposed of in the aforesaid terms.