Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 1475 (BOM)

Balu Gena Mahajan v. State of Maharashtra

2012-08-07

P.D.KODE, V.M.KANADE

body2012
Judgment : Oral Judgment: (V.M. Kanade, J.) 1. The Appellant is original Accused. He has filed the present Appeal, challenging the judgment and order dated 15th December, 2005, passed by the District & Sessions Judge, Solapur, who was pleased to convict the accused for the offence punishable under Section 302 of the Indian Penal Code, and sentenced him to undergo life imprisonment and to pay fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for two years. 2. The brief facts are as under The case of the prosecution is that Appellant had married the deceased Draupadabai about 20 years prior to the incident and out of the said marriage, three daughters and one son were born. The case of the prosecution is that initially after the marriage, Appellant was working as a servant on the farm of Mr. Patil. However, for about 4-5 years prior to the incident, the Appellant was residing at Akluj with his mother and also used to stay with wife in a tin-shed at Tembhurni. The prosecution case is that Appellant used to assault his wife after consuming liquor and he used to quarrel with her and also used to assault his son. The Appellant's son and one daughter were kept in the Remand Home, and his wife Draupadabai used to earn livelihood by selling footwares in various bazars. 3. The case of the prosecution is that incident took place in the night between 28-12-2004 and 29-12-2004. The prosecution case is that the Appellant as usual after consuming liquor had quarrel with his wife Draupadabai and assaulted her and then he went to the tinshed where his wife was residing, and the quarrel between the husband and wife continued till late at night. Thereafter in the morning the father and mother of the deceased, who were residing in a hut at about 100 ft. away from the tin-shed saw the door of the tinshed was open and when they went inside, they found that her daughter was lying in a pool of blood and there was a big stone near her head, which was lying beside her dead body. 4. The prosecution examined 11 witnesses. away from the tin-shed saw the door of the tinshed was open and when they went inside, they found that her daughter was lying in a pool of blood and there was a big stone near her head, which was lying beside her dead body. 4. The prosecution examined 11 witnesses. The trial court, on the basis of the evidence adduced by the prosecution, was pleased to convict the appellant for the offence punishable under S. 302 of the I. P. Code and sentenced him to suffer life imprisonment and to pay fine of Rs. 3000/-, in default to suffer R.I. for two years. 5. Being aggrieved by the said judgment and order of the trial court, the Appellant/accused has preferred this appeal. We have heard the learned counsel appearing on behalf of the Appellant and the learned APP appearing on behalf of the Respondent-State. 6. The leaned counsel for the Appellant has taken us to the judgment and order of the trial court and notes of evidence of all the witnesses, which are examined by the prosecution. It was submitted that presence of the accused on the scene of offence has not been conclusively established by the prosecution. It is submitted that the blood group of the accused was found to be inconclusive. It was submitted that, therefore, the material on record showing the blood group of the deceased on the clothes of the accused could not be relied upon, as a circumstance to show the involvement of the Appellant, in view of inconclusive report given by the Chemical Analyser, in respect of the blood group of the Accused. It is further submitted that the prosecution had examined the close relatives of the deceased, who were interested, and as such, their testimony was not reliable. It is further submitted that there were number of missing links in the prosecution case, and therefore, the chain of circumstances was not complete, and therefore, the Appellant was entitled to be given benefit of doubt. It is further submitted that motive for committing the murder was not established. It was submitted that all the witnesses have stated that the Appellant used to quarrel with his wife and used to beat her after consuming liquor and this had happened during the marital life of the Appellant and the deceased. It is further submitted that motive for committing the murder was not established. It was submitted that all the witnesses have stated that the Appellant used to quarrel with his wife and used to beat her after consuming liquor and this had happened during the marital life of the Appellant and the deceased. It is submitted that there was no motive of the Appellant to have committed murder of the deceased 20 years after the marriage. It was submitted that, this was a vital circumstance which was not established by the prosecution. Therefore, on that ground, the Appellant was entitled to be acquitted of the offence of murder. 7. The learned APP, on the other hand, submitted that the trial court has taken into consideration each and every circumstance and had given cogent reasons for accepting the testimony of the witnesses. It is submitted that no case is made out for interference with the judgment and order of the trial court. 8. After having heard both the counsel at length, we have given our anxious consideration to the submissions made by the learned counsel for the Appellant/Accused and the learned APP for the State. 9. Prosecution has examined in all 11 witnesses. PW 1 Balu Waghmare is brother of the deceased, who has lodged the complaint dated 29-12-2004; PW 2 Bhamabai Laxman Waghmare is mother of the deceased; PW 3 Pandurang Laxman Waghmare is brother of the deceased; PW 4 Ganesh Laxman Barve is friend of PW 3 Pandurang Waghmare; PW 5-Suresh Mahajan is son of the deceased; PW 6-Shankar Abhiman Londhe is the neighbour, residing in the said locality; PW 7-Ashok Dattu Londhe is panch witness in respect of the spot panchanama; PW 8-Saudagar Vitthal Waghmare is panch in respect of seizure of clothes of the accused; PW 9-Mukund Bhagwan Kulkarni is the carrier of muddemal; PW 10-Dr. Avinash Pandharinath Patil who performed the post mortem on the dead body of the deceased; PW 11-Prashant Pandurang Sampate is the investigating officer. 10. From the evidence of PW 1, 2, 3, 4 and 5, it is established that the Appellant was alcoholic and used to drink liquor everyday, and thereafter used to assault the deceased. Avinash Pandharinath Patil who performed the post mortem on the dead body of the deceased; PW 11-Prashant Pandurang Sampate is the investigating officer. 10. From the evidence of PW 1, 2, 3, 4 and 5, it is established that the Appellant was alcoholic and used to drink liquor everyday, and thereafter used to assault the deceased. The son of the deceased PW 5 Suresh has also stated in his evidence that the Appellant used to tell him that one day he would commit murder of his wife i.e. mother of PW 5 Suresh. He has also stated that he had informed this fact to his mother deceased Draupadabai. One independent witness PW 4 Ganesh Barve, who was friend of PW 3 Pandurang, has corroborated the fact of accused consuming liquor and assaulting his wife. The prosecution, therefore, in our view, has established that the Appellant was habitually assaulting his wife after consuming liquor. 11. PW 1, 2 and 3 have stated in their evidence that on the date of incidence, there was a quarrel between the Appellant and his wife Draupadabai and he had assaulted her, and that the quarrel had continued at night when they had gone to sleep in their respective houses. It is further stated by the mother and father of the deceased that in the morning they found that door of the tin-shed of their daughter was open and when the father and mother went inside the tin-shed, they found that their daughter Draupadabai was lying in the pool of blood, and there was a blood stained stone lying near the dead body of their daughter. Both these witnesses have, therefore, deposed the presence of the Appellant with the deceased at night in the tinshed and have stated that in the morning the Accused was not found in that place, but the dead body of deceased Draupadabai was found with an injury on her head. The prosecution has further relied on the recovery of blood stained clothes at the instance of the Appellant. The clothes and stone, however, were sent to the Chemical Analyser and in the C.A. report it is mentioned that blood of “B” group was found on the blood stained stone & on the clothes of the accused. The fact of blood stained clothes at the instance of the accused was established by the panch witness PW 8-Saudagar Vithal Waghmare. The clothes and stone, however, were sent to the Chemical Analyser and in the C.A. report it is mentioned that blood of “B” group was found on the blood stained stone & on the clothes of the accused. The fact of blood stained clothes at the instance of the accused was established by the panch witness PW 8-Saudagar Vithal Waghmare. Though it is proved that blood of the accused was found to be inconclusive, that by itself cannot be a circumstance which would assist the Appellant. Since no explanation has been given by the Appellant about the blood, which was found on his clothes in his statement under S. 313 Cr. P. C. This is, therefore, an additional circumstance which unerringly points to the guilt of the Accused/Appellant herein. Even the son of the Accused PW 5 Suresh Mahajan has supported the prosecution case and he has reiterated the fact of assault by the Appellant on the deceased, and on him. 12. The learned counsel appearing on behalf of the Appellant submitted that there were certain improvements made by the witnesses regarding the quarrel which took place in the tin-shed. It is submitted that these witnesses have admitted that though they had stated about the quarrel to the police, the said fact is not mentioned in the statement which was recorded by the police. It is not expected that witnesses when they gave their statement to the police, would give the details of each and every instance, and therefore, merely not mentioning the said instance about quarrel to the police cannot be of any assistance to the Appellant. PW 10 – Dr. Avinash Patil, who has performed post mortem on the dead body of the deceased has stated in his evidence that death of Draupadabai was homicidal and unnatural. He has further stated that the injury which was found on the head of the deceased could be caused by the stone, which was lying near the dead body of the deceased. Further it has come in the evidence that the blood which was found on the stone was of “B” group i.e. blood group of the deceased. He has further stated that the injury which was found on the head of the deceased could be caused by the stone, which was lying near the dead body of the deceased. Further it has come in the evidence that the blood which was found on the stone was of “B” group i.e. blood group of the deceased. From the facts and circumstances which have been brought on record, it does not appear that the Appellant had assaulted the deceased in a premeditated manner and the incident must have taken place in a spur of a moment, after the quarrel had taken place between the Appellant and the deceased. The prosecution, therefore, in our view, has established beyond reasonable doubt that the Appellant was the author of the injury which was found on the person of the deceased. The trial court has given cogent reasons while recording the finding for convicting the Accused. We do not find any reason to interfere with the finding recorded by the trial court. Appeal is, therefore, dismissed. 13. We must express our gratitude for the assistance given by the learned Amicus Curiae in this case. We deem it fit and proper to fix her fee, which is quantified at Rs. 3,500/-.