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2013 DIGILAW 2022 (BOM)

Ganpat Shankar Pawar v. State of Maharashtra

2013-09-27

A.R.JOSHI, V.K.TAHILRAMANI

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JUDGMENT : SMT. V. K. TAHILRAMANI, J.: The appellant-original accused has preferred this appeal against the judgment and Order dated 04.09.2010 passed by the Additional Sessions Judge, Pune in Sessions Case No. 175 of 2007. By the said judgment and order, the learned Sessions Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life. 2. The prosecution case briefly stated, is as under: (a) Deceased Fulabai was married to the appellant. They had two sons and one daughter. Fulabai was residing at the locality of Katkari Tribals at Karandole, Tal. Maval, Dist. Pune. PW 4 Kisan was the neighbour of the appellant and the deceased. There used to be frequent quarrels between the appellant and his wife Fulabai. During the said quarrels, the appellant used to beat his wife. (b) PW 1 Shanu who is the complainant in the present case is the brother of deceased Fulabai. Fulabai used to tell her brother PW 1 Shanu that her husband used to beat hear. Her husband had beaten her severely on two occasions. The last occasion that Fulabai met her brother Shanu was at the time of Rakhi Paurnima. On that day in the evening, a quarrel took place between the appellant and his wife Fulabai. The appellant was beating Fulabai, hence, PW 4 Kisan who was the neighbour of the appellant and the deceased went to the hut of the appellant, however, the appellant did not open the door. On the next day in the morning, when PW 4 Kisan went to the hut of the appellant, he saw Fulabai was lying on the floor and she was dead. She had injuries on her body. The appellant was also present there. When PW 4 Kisan questioned the appellant, the appellant told him that he slapped Fulabai, hence, she fell on the floor resulting in her death. Then, PW 4 Kisan informed the police. PW 1 Shanu, the brother of Fulabai, was also informed, hence, he and his wife came to the house of Fulabai. He saw injuries on her head and other parts of the body. Then, PW 1 Shaml lodged the FIR (Exh. 13). Thereafter investigation commenced. (c) The dead body of Fulabai was sent for postmortem. PW 7 Dr. Gawade performed the postmortem on the dead body of Fulabai. He saw injuries on her head and other parts of the body. Then, PW 1 Shaml lodged the FIR (Exh. 13). Thereafter investigation commenced. (c) The dead body of Fulabai was sent for postmortem. PW 7 Dr. Gawade performed the postmortem on the dead body of Fulabai. He noticed nine injuries on the dead body of Fulabai. According to him, the cause of death was cardio respiratory failure due to shock and hemorrhage due to multiple injuries with multiple fracture due to sharp and blunt weapon. It is the prosecution case that the appel1ant assaulted his wife Fulabai with a tile as well as sickle. The appellant was arrested on 10.08.2006. During the course of investigation, a sickle and a tile came to be recovered at the instance of the appellant. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph I above, hence, this appeal. 4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that appellant assaulted his wife with a tile as well as sickle and caused her death. 5. Analysis of the evidence available on record demonstrates that there is no eye witness to the incident which occurred on 09.08.2006. The case is totally based on the circumstantial evidence. The circumstances are:- I. Dead body of the deceased was found in the hut of the appellant; II. Panchnama shows that there were blood stains in the hut of the appellant; III. Sickle and tile used by the appellant to assault his wife Fulabai were recovered at the instance of the appellant; IV. The circumstances are:- I. Dead body of the deceased was found in the hut of the appellant; II. Panchnama shows that there were blood stains in the hut of the appellant; III. Sickle and tile used by the appellant to assault his wife Fulabai were recovered at the instance of the appellant; IV. Blood stained shirt and blood stained pant which were on the person of the appellant at the time of his arrest were seized under panchnama (Exh. 28). 6. We would first like to advert to the medical evidence. PW 7 Dr. Gawade performed the postmortem on the dead body of Fulabai. He noticed the following injuries on the dead body of Fulabai: I. Incised wound on left side of forehead, Size 2 cm x 1/2 cm x 1/2 cm, above the left eye brow. 2. Incised wound on frontal area of the head, Size 1-1/2 cm x 1/2 cm x 1/2 cm; 3. Lacerated wound on right temporal region of the head; 4. Lacerated wound on lower lip 1/2 em x 0.01 em x 0.1 em; 5. Fracture with dislocation of left hip joint; 6. Lacerated wound on right leg, size 1/2 em x 0.01 cm. Below the right knee joint; 7. Fracture right temporal bone, size 3 cm x 0.01 cm; 8. Fracture of occipital bone, size 4 cm x 0.012 cm; 9. Fracture left frontal bone of the skull, size 2 cm x 0.01 cm In the opinion of Dr. Gawade, all the aforesaid injuries were ante-mortem. The following internal injuries were noticed:- 1. Fracture contusion and lacerated wound on scalp; 2. Intra-cranial hemorrhage. The probable cause of death according to Dr. Gawade was cardio respiratory failure due to shock and hemorrhage due to multiple injuries with multiple fracture due to sharp and blunt weapon. The injuries which are mentioned above were sufficient to cause the death of the deceased in normal course of nature. In the opinion of Dr. Gawade, incised wounds can be caused by the sickle (Article 8) and the fracture on the person of the deceased can be caused by the tile (Article 7). Dr. Gawade has categorically stated that a patient suffering from the injuries as stated by him in the postmortem notes will not survive. In the opinion of Dr. Gawade, incised wounds can be caused by the sickle (Article 8) and the fracture on the person of the deceased can be caused by the tile (Article 7). Dr. Gawade has categorically stated that a patient suffering from the injuries as stated by him in the postmortem notes will not survive. He has clearly stated that the injuries might have been caused with the use of more than one weapon which substantiate the prosecution case that the deceased was assaulted by the appellant with a tile and sickle. The defence of the appellant is that he gave one slap to his wife Fulabai and she fell down and sustained injuries. This defence is not compatible with the injuries seen on the body of Fulabai. Fulabai has sustained four fractures, two incised wounds and three lacerated wounds. Most of the injuries were on her head. The evidence of PW 7 Dr. Gawade corroborates the prosecution case that the appellant assaulted his wife Fulabai with a tile and sickle. 7. PW 4 Kisan was the neighbour of the appellant and deceased Fulabai. He has stated that there used to be frequent quarrels between the appellant and his wife Fulabai. The appellant used to beat her during quarrels. When he came home in the evening, he saw that quarrel was going on between the appellant and his wife Fulabai. The appellant was beating Fulabai, hence, PW 4 Kisan went to the hut of the appellant, however, the appellant did not open the door. The next day morning when Kisan went to the hut of the appellant, he saw that Fulabai was lying on the floor and she was dead. She had injuries on her body. The appellant was present in the house. When Kisan made inquiries with the appellant, the appellant told him that he had slapped Fulabai, hence, she fell on the floor resulting in her death. We have also discussed above that there is no merit in the defence put forward by the appellant that he gave a slap to his wife due to which she fell down and died. The evidence on record clearly shows that Fulabai was assaulted with blunt and sharp edged weapon. 8. The evidence of PW 4 Kisan shows that the appellant and his wife Fulabai were the only two persons in the house. The evidence on record clearly shows that Fulabai was assaulted with blunt and sharp edged weapon. 8. The evidence of PW 4 Kisan shows that the appellant and his wife Fulabai were the only two persons in the house. The appellant was found beating his wife Fulabai on 09.08.2006 and on. 10.08.2006, the dead body of Fulabai was found in the house and the appellant was found present in the house. In such case, the appellant-accused has to explain how the deceased sustained injuries and died. In such case, Section 106 of the Evidence Act would come into play. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlies Section 106 of the Evidence Act can be applied in such cases. In the case of State of Rajasthan Vs. Kashi Ram, (2006)12 SCC 254 : AIR 2007 SC 144: [2007 ALL MR(Cri) 525 (S.C.)], the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain. 9. PW 2 Ganesh is the panch witness whose testimony shows that a sickle and a tile were recovered at the instance of the appellant. This witness has stated that in his presence, the appellant made a statement that he would produce Shahabadi tile and sickle. The appellant directed them to take the vehicle towards Karandoli. The appellant led them to a hut in which there was unused bathroom (mori). This witness has stated that in his presence, the appellant made a statement that he would produce Shahabadi tile and sickle. The appellant directed them to take the vehicle towards Karandoli. The appellant led them to a hut in which there was unused bathroom (mori). In the said bathroom, some scrap material was kept. The appellant went to the mori and took out the tile and sickle which were hidden below the scrap material. The said Shahabadi tile (Article 7) and sickle (Article 8) came to be seized under panchnama. The memorandum and panchnamas to the sickle and Shahabadi tiles are at Exh. 20 and Exh. 21. These articles were sent to C.A. As per C.A. report, the tile had human blood on it. 10. Learned APP has also placed reliance on the circumstance of seizure of blood stained clothes which were on the person of the appellant at the time of his arrest. She has placed reliance on the evidence of PW 5 Pratap Jadhav who was the panch witness in relation to seizure of blood stained clothes which were on the person of the appellant at the time of his arrest. We are not inclined to rely on this circumstance because it is seen that the appellant was arrested on 10.08.2006. At that time, the blood stained clothes were on his person, however, the Investigating Officer has not seized the said clothes on 10.08.2006. They were seized only on 12.08.2006. It is unnatural that though the blood stained clothes were found on the person of the appellant on 10.08.2006, they would not have been seized under panchnama on that very day. No Investigating Officer would wait for two days to seize the blood stained clothes. This delay in seizing the clothes of the appellant in the facts and circumstances of the present case casts grave doubt on this circumstance, hence, we are not inclined to rely on the same. 11. Ms. Kuttikrishnan, learned Advocate for the appellant submitted that the incident occurred during the course of sudden quarrel, hence, the case would be covered by Exception 4 to Section 300 of IPC. She submitted that in such case, the case would not fall under Section 302 of IPC but it would fall under Section 304-II of IPC or at the most Section 304-I of IPC. She submitted that in such case, the case would not fall under Section 302 of IPC but it would fall under Section 304-II of IPC or at the most Section 304-I of IPC. We may have accepted this submission made by the learned Advocate for the appellant if the appellant had given just one blow on the head of his wife Fulabai, however, from the evidence on record, it is seen that the appellant caused nine injuries to Fulabai out of which four are fractures. Out of four fractures, three are fractures to the skull. There were two incised wounds on the head and one lacerated wound on the head. Besides these, there was fracture of left hip joint and other regions. The deceased was a lady and she was helpless and unarmed. The appellant has caused a large number of serious and grave injuries to his wife Fulabai on vital parts of the body by means of deadly weapon. Looking to the injuries sustained by Fulabai, we are of the opinion that the appellant has taken undue advantage and due to this conduct of the appellant, the case would not be covered by Exception 4 to Section 300 of IPC which states that to claim the benefit of Exception 4 to Section 300 of IPC, it must further be shown that the offender had not taken any undue advantage or acted in a cruel or unusual manner, hence, we are unable to accept the submissions made by Ms. Kuttikrishnan. 12. On going through the record, we find that there is sufficient evidence to connect the appellant with the crime. Thus, we find no merit in the appeal. The appeal is dismissed. 13. Office to communicate this order to the concerned prison Authorities and to the appellant who is in jail. 14. At this stage, we must record our appreciation for Advocate Ms. Ameeta Kuttikrishnan who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs.2500. Appeal dismissed.