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2013 DIGILAW 2645 (BOM)

Kanu Shankar Kharvi v. State of Maharashtra

2013-12-20

P.V.HARDAS, SADHANA S.JADHAV

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Judgment : P.V. BARDAS, J. ;- The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.2000/-. in default of which to undergo further RI for two months, by the Additional Sessions Judge, Brihan Mumbai, by judgment dated 05/11/2004, in Sessions Case No. 254 of 2004, by this appeal questions the correctness of his conviction and sentence. 2. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus :- PW 6 - PSI Sadashiv Pawar, who, on 30/12/2003, was attached to Kasturba Police Station, was informed about receipt of message from the Bhagwati Hospital about admission of injured Rajashree, wife of the appellant, in the hospital. The information further conveyed that Rajashree was declared dead on admission. Accordingly, a note was taken in the station diary and PW 6 -PSI Pawar proceeded to the Bhagwati Hospital. In the presence of panch as, he drew the inquest panchanama of the dead body of deceased Rajashree at Exh. 8. The report of PW 1 - Santosh, brother of deceased Rajashree, was recorded at Exh. 16. On the basis of the report at Exh. 16, an offence vide Crime No. 266 of 2004 was registered under Section 302 of the IPC. PW 6 - PSI Pawar thereafter visited the scene of the incident and in the presence of panchas drew the spot panchanama at Exh. 9. From the scene of the incident, he seized samples of blood stains, the blood stained pestle and the grinding stone. He also collected samples of blood stains and samples of blood mixed mud. The appellant was arrested in the presence of panch as under an arrest panchanama at Exh. 10. The clothes on the person of the appellant were also seized. PW 7 - PSI Jadhav, who was also attached to the Kasturba Police Station, recorded the statements of witnesses and seized the clothes of PW 1 - Santosh under seizure memo at Exh. 11. The seized articles were thereafter referred to the Chemical Analyzer under requisition at Exh. 12. The reports of the Chemical Analyzer are at Exhs. 13 and 14. Further to the completion of investigation, he submitted a charge-sheet against the appellant. Postmortem on the dead body of deceased Rajashree was conducted by PW 5 - Dr. 11. The seized articles were thereafter referred to the Chemical Analyzer under requisition at Exh. 12. The reports of the Chemical Analyzer are at Exhs. 13 and 14. Further to the completion of investigation, he submitted a charge-sheet against the appellant. Postmortem on the dead body of deceased Rajashree was conducted by PW 5 - Dr. Baban Shinde. PW 5 - Dr. Shinde noticed the following external injuries : (i) C.L.W. 4 cm. x 1.5 cm. x bone deep over right side of forehead. 1 cm. above eyebrow, horizontal, red in colour. (ii) C.L.W. 0.8 cm. x 0.5 cm. x muscle deep above injury no.1, lateral aspect, oblique in direction 0.5 cm. away from injury no.1, red in colour. (iii) Abrasion 3 cm x 1 cm over right side of forehead, 1 cm. above injury no. 1, at medial side of injury no. 1, red in colour. (iv) C.L.W. 2 cm x 0.8 cm. x muscle deep lateral to left eye, oblique in direction, blood oozing present. (v) Abrasion 4 cm x 2 cm over left zygoma, oblique and upper end anteriorly - reddish in colour. (vi) C.L.W. 3 cm x 1 cm x 0.6 cm over lateral aspect of pinna of ear, anterior aspect, vertical. (vii) C.L.W. 1 cm x 0.8 cm x muscle deep over lower 1/3 of pinna of right ear, oblique, anterior aspect, red in colour. (viii) Abrasion 2 cm x 1 cm over middle 1/3 of nose red in colour. (ix) Abrasion 3 cm x 2 cm over right cheek oblique, red in colour. (x) Contusion 4 cm x 1 cm over upper lip (middle 1/3) red in colour. He opined that death of deceased was instantaneous and deceased had died due to hemorrhage and shock due to head injury. He has further opined that the injuries could be caused by the pestle (Article 1) and the grind stone (Article 2). The postmortem report is at Exh.21. 3. On committal of the case to Court of Sessions, trial court vide Exh. 2 framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant denied is guilt and claimed to be tried. Prosecution, in support of its case, examined seven witnesses. The entire prosecution case revolves around the testimony of PW 3 - Arun Vaidya and PW 4 - Arun Sayaji, the neighbours of the appellant. 4. 2 framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant denied is guilt and claimed to be tried. Prosecution, in support of its case, examined seven witnesses. The entire prosecution case revolves around the testimony of PW 3 - Arun Vaidya and PW 4 - Arun Sayaji, the neighbours of the appellant. 4. PW 3 - Arun Vaidya, a neighbour of the appellant, states that on the day of the incident i.e. 31/12/2003, in the morning, he had heard the shouts from the house of the appellant. Residents of the locality had gathered in front of the house of the appellant and they were called upon the appellant to open the door. On opening the door, PW 3-Arun Vaiday claims to have seen a woman lying in the house ion a pool of blood and had also noticed the appellant sitting on a cot. Arun Vaidya had also noticed a small boy crying, saying that his father had assaulted his mother, That boy started to go to the house of his maternal uncle and, therefore, PW 3 - Arun Vaidya accompanied that small boy to the house of his maternal uncle. In cross-examination, he was confronted with portions marked "A" and "B". He has admitted that he had not spoken to the maternal uncle of the small boy. 5. PW 4 - Arun Sayaji also states that on the day of the incident, he had noticed the residents of the locality gathered in front of the house of the appellant. PW 4 -Arun Sayaji states that he knocked the door of the house of the appellant and on the door being opened, he had noticed the appellant sitting on the cot, while his wife was lying on the ground in a pool of blood. He further states that he along with PW 2 -Aakash and PW 3 -Arun Vaidya had gone to the house of the maternal uncle of PW 2 Aakash i.e. PW 1 - Santosh. PW 4 - Arun Sayaji states that on the way he had enquired from Aakash as to what had happened and Aakash had disclosed that the deceased, his mother, had been assaulted by the appellant, his father, by the pestle. Aakash narrated the same thing to PW 1 - Santosh. PW 4 - Arun Sayaji states that on the way he had enquired from Aakash as to what had happened and Aakash had disclosed that the deceased, his mother, had been assaulted by the appellant, his father, by the pestle. Aakash narrated the same thing to PW 1 - Santosh. In cross-examination, he has admitted that when he had gone to the house of the appellant, the door was closed and within five minutes, the door was opened. He has admitted that he had nor noticed if the appellant went to the hospital along with deceased. He has further admitted that his statement was recorded on the next day of the incident. 6. Prosecution has examined PW 2 - Aakash, who was a minor at the time of the incident. According to PW 2 - Aakash, he was awakened on hearing the cries of his mother and had noticed blood stains and on seeing that, he ran to his maternal uncle along with neighbours. He had informed his maternal uncle - PW 1 - Santosh that the appellant had assaulted deceased Rajashree. 7. Mr. Arfan Sait, learned counsel for the appellant has urged before us that the chain of circumstances is not complete and thus the appellant is entitled to be acquitted. It is also urged before us that the offence would be one punishable under Section 304 of the IPC and not an offence punishable under Section 302 of the IPC, as apparently there was a quarrel between the deceased and the appellant and the appellant had no intention to kill when he inflicted the injuries. The learned APP has supported the findings arrived at by the trial court. 8. In the statement under Section 313 of Cr.P.C. appellant was asked question about the evidence of PW 2 - Aakash and particularly about Aakash stating that the appellant had assaulted deceased Rajashree. The appellant has claimed that the said evidence is false. Similarly, the evidence of PW 3 -Arun Vaidya and PW 4 - Arun Sayaji was put to the appellant in his 313 statement that when the door of the house was opened, the appellant was seen sitting inside, while his wife was lying on the ground in a pool of blood. Appellant has admitted that he was present in the house. 9. Appellant has admitted that he was present in the house. 9. The prosecution, therefore, relies on the following circumstances: (i) That the relations between the appellant and deceased Rajashree were strained as the appellant was suspecting the character of Rajashree. (ii) Deceased Rajashree had died homicidal death on the morning of 31/12/2003. (iii) Cries of Rajashree were heard and on hearing the cries, the neighbours had assembled in front of the house and had forced the appellant to open the door and on opening the door, the appellant was found sitting on the cot, while his wife was lying on the ground in a pool of blood. (iv) The pestle and the grinding stone were stained with blood of "O" group, which was the same blood group with which the clothes of deceased Rajashree were found stained. (v) The additional circumstance being that the appellant has not offered any explanation and thus has taken a false defence. 10. The evidence of PW 3 - Arun Vaidya and evidence of PW 4 - Arun Sayaji reveals that on hearing the cries, the neighbours had assembled in front of the house of the appellant and had forced the appellant to open the door. On opening the door, the appellant was found sitting on a cot, while the dead body of Rajashree was seen lying on the ground in a pool of blood. The medical evidence, therefore, indicates that death of Rajashree was a homicidal death. The presence of the appellant in the house has been established and his presence is also not denied by the appellant. No explanation is offered by the appellant as to how his wife had sustained the injuries and had died. Apart from the appellant, no other person could have committed the crime and the appellant has also not taken the defence of any intruder committing the crime. The chain of the circumstances, therefore, is so complete that the circumstances point unquestionably to the appellant and no other hypothesis is possible, save and except the hypothesis that it is the appellant and the appellant alone who has committed the crime. According to us, therefore, the finding of guilt arrived at by the trial court needs no interference. 11. The chain of the circumstances, therefore, is so complete that the circumstances point unquestionably to the appellant and no other hypothesis is possible, save and except the hypothesis that it is the appellant and the appellant alone who has committed the crime. According to us, therefore, the finding of guilt arrived at by the trial court needs no interference. 11. The submission of the learned counsel for the appellant is that the appellant had no intention to commit murder of deceased Rajashree and the incident was sparked because of a quarrel between the appellant and deceased Rajashree. The evidence of PW 5 - Dr. Shinde indicates that deceased Rajashree was mercilessly battered by the pestle and the grinding stone. Deceased Rajashree had sustained as many as ten injuries, out of which six injuries are on account of the battering by the pestle or the grinding stone. The other injuries are abrasions, which would reflect the attempt of Rajashree to save herself or extricate herself from the clutches of the appellant. The continuous assault and the battering received by Rajashree certainly indicates the intention of the appellant. In any event, the appellant had caused the injuries and the injuries sustained by Rajashree were sufficient in ordinary course of nature to cause death and, in fact, Rajashree had died instantaneously and in that background, therefore, the intention of the appellant is clearly discernible. The appellant, according to us, therefore, has been rightly convicted for an offence punishable under Section 302 of the IPC. The appeal filed by the appellant, therefore, being devoid of any merit, is dismissed. 12. Accordingly, Criminal Appeal No. 623 of 2005 is dismissed, confirming the conviction and sentence of the appellant. 13. Fees payable to the learned counsel appointed for the appellant quantified at Rs.5000/-. 14. Copy of this judgment be sent to the appellant, who is undergoing his sentence in jail. Appeal dismissed.