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2014 DIGILAW 373 (BOM)

Sanjay Ramesh Ghodake v. State of Maharashtra

2014-02-12

P.N.DESHMUKH, V.K.TAHILRAMANI

body2014
JUDGMENT SMT. V.K. TAHILRAMANI, J.:- This appeal is preferred by the appellant - original accused against the judgment and order dated 29.01.2008 passed by the 1st Ad-hoc Additional Sessions Judge, Palghar in Sessions Case No. 140 of 2006. By the said judgment and order, the learned Session Judge convicted and sentenced the appellant as under:- Convicted u/S. Sentenced to 302, IPC Imprisonment for life and fine of Rs. 1,000/- I.D.R.I. for 1 Month 201, IPC R.I. for 3 Years & fine of Rs.1,000/-I.D.R.I. for 1 Month 452, IPC R.I. for 3 Years & fine of Rs.1,000/- I.D.R.I. for 1 Month 506, IPC R.I. for 3 Months. The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently. 2. The prosecution case briefly stated, is as under: (a) Deceased Narmada was the wife of PW 2 Bachu and the mother of PW 1 Vijay. Narmada was residing along with her husband and son at Savarepada in Thane. The appellant used to reside adjacent to the house of Narmada and her family. The appellant used to assault his wife, hence, his wife used to take shelter in the house of the villagers. The appellant was suspecting that Narmada was instigating his wife. Due to this, the appellant had pelted stones on the house of Narmada. (b) The incident occurred in the night between 03.07.2006 and 04.07.2006 at 2.35 a.m. The appellant entered into the house of Narmada armed with a wooden plank. He inflicted blows with wooden plank on the head of Narmada and caused injury to her. When PW 2 Bachu intervened, the appellant threatened to kill him and Vijay, hence, Vijay and Bachu ran away. After sometime, they returned back to the house, however, they saw that Narmada was not in the house. They searched for Narmada but were unable to find her. Vijay and Baehu then went to the police station and came back to the house along with police. Then they went into the house of the appellant with police. On entering the house, they saw dead body of Narmada in the house of the appellant. At that time, the appellant was in the house. The police took the appellant into the custody. PW1 Vijay lodged FIR. Thereafter, investigation commenced. (c) The dead body of Narmada was sent for postmortem. On entering the house, they saw dead body of Narmada in the house of the appellant. At that time, the appellant was in the house. The police took the appellant into the custody. PW1 Vijay lodged FIR. Thereafter, investigation commenced. (c) The dead body of Narmada was sent for postmortem. In the opinion of the Doctor, the probable cause of death was due to fracture of skull with injury to brain. After completion of investigation, 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 Sections 452, 506, 302, and 201 of IPC. He pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. Alter going through the evidence adduced in this case, the learned Sessions Judge convicted the appellant as stated in paragraph 1 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 the appellant assaulted Narmada with a wooden plank and caused her death. 5. The conviction of the appellant is mainly based on the evidence of PW 1 Vijay - son of deceased Narmada and PW 2 Bachu - husband of deceased Narmada. PW 2 Bachu has stated that the appellant resided adjacent to their house. On the night between 3 and 4th July 2006, the appellant entered into his house holding a wooden plank in hand. The appellant inflicted blows with wooden plank on the head of Narmada and caused bleeding injuries. When they intervened, the appellant threatened to kill them, hence, Bachu and Vijay ran away from the house. When they came back to the house, they saw that Narmada was not inside the house, hence, he and Vijay went to police station. They came back with the police. They then went to the house of the appellant. The dead body of Narmada was seen lying in the house of the appellant. The appellant was present in his house. When they came back to the house, they saw that Narmada was not inside the house, hence, he and Vijay went to police station. They came back with the police. They then went to the house of the appellant. The dead body of Narmada was seen lying in the house of the appellant. The appellant was present in his house. The evidence of PW1 Vijay who is the son of Narmada is on similar lines as that of PW 2 Bachu. The evidence of these witnesses establishes that at about 02.00 a.m., the appellant came into the house of Narmada and inflicted blows with wooden plank on the head of Narmada. During the said incident, he also threatened the witnesses that he would kill them. 6. The evidence of PW1 Vijay and PW2 Bachu shows that the appellant assaulted Narmada with a wooden plank. The evidence of these two witnesses is corroborated by the medical evidence. PW 5 Dr. Kelkar performed the postmortem on the dead body of Narmada. He found following external injuries on her person:- i. C.L.W. over forehead left side, frontal bone, adm 2" x 1" bone deep. On palpation, he noticed crack; ii. C.L.W. over vertex adm. 4" x 1", bone deep with crack in bone; iii. C.L.W. over occipital region, 2" x 1", bone deep, fracture to skull; iv. C.L.W. nasal root 1" x 1/2", fracture nasal bone; v. Contusion over left eye, black eye; vi. C.L.W. upper limb, 2" x 1", bone deep, fracture maxilla; vii. abrasion over left shoulder, 2 cm x 2 cm: viii. Abrasion over both knees, 4 x 2 cm superficial. According to Dr. Ketkar, all the above injuries were antemortem and on internal examination, he noticed fractured skull. He also noticed brain laceration with extra dural hematoma with hemorrhage. In his opinion, probable cause of death was due to fractured skull with injury to brain and the injuries noticed by him are possible by wooden plank. 7. The prosecution has also proved the motive for the appellant to commit the crime. The motive is brought out through the evidence of PW 1 Vijay. PW 1 Vijay has stated that the appellant was residing adjacent to his house. The appellant used to assault his wife, hence, his wife used to take shelter in the house of the villagers. The appellant was suspecting that Narmada was instigating his wife. The motive is brought out through the evidence of PW 1 Vijay. PW 1 Vijay has stated that the appellant was residing adjacent to his house. The appellant used to assault his wife, hence, his wife used to take shelter in the house of the villagers. The appellant was suspecting that Narmada was instigating his wife. The shows the motive for the appellant to commit the offence. 8. No doubt, PW 1 Vijay and PW 2 Bachu have not seen the appellant assaulting Narmada till she expired, however, their evidence shows that the appellant inflicted 2-3 blows with a plank on the head of Narmada. When last seen, the appellant and the deceased were the only two persons in the house, thereafter Narmada was found dead in the house of the appellant. In this connection, we may refer to Section 106 of the Evidence Act. 9. 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. 10. 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. 10. It is further the prosecution case that when PW 2 Bachu-and PW 1 Vijay came back to their house, they did not find Narmada in the house. They searched for her but she could not be found, hence, they went to the police station and returned back with the police. PW 2 Bachu, PW 1 Vijay and the police then went into the house of the appellant. They found the dead body of Narmada in the house of the appellant and the appellant was present in the house. The appellant was taken into custody. The blood stained clothes on his person came to be seized under panchnama Exh. 14. These blood stained clothes were sent to C.A. The C.A. report shows that the blood of the deceased was of "B" group and the blood of "B" group was found on the shirt of the appellant. It is pertinent to note that blood of the appellant is of "A" group. 11. Ms. Dandekar, learned Advocate for the appellant submitted that the panchwitness to the arrest panchnama under which blood stained clothes on the person of the appellant came to be seized has turned hostile and he has not supported the prosecution, She submitted that in such case, the circumstance of finding of blood stained clothes on the person of the appellant and seizure of the said clothes and the C.A. report cannot be taken into consideration. In this connection, useful reference may be made to a decision of the Supreme Court in the case of State of Kerala Vs. M.M. Mathew, (1978) 4 SCC 65 : 1978 SCC (Cri) 503 wherein it has observed that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on his intrinsic worth and cannot be discarded merely on the ground that being public servants, they are interested in the success of their case. 12. In the case of Modan Singh Vs. 12. In the case of Modan Singh Vs. State of Rajasthan, (1978) 4 SCC 435 : 1979 SCC (Cri) 56, the Supreme Court has observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed by the Supreme Court in the case of Mohd. Aslam Vs. State of Maharashtra, (2001) 9 SCC 362 : 2002 SCC (Cri) 1024. 13. In relation to panchwitness turned hostile, the Supreme Court in the case of Anter Singh Vs. State of Rajasthan, (2004) 10 SCC 657 : 2005 SCC (Cri) 597 has observed that even if panch witness turned hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. The Supreme Court in the case of Rameshbhai Mohanbhai Koli & Ors Vs. State of Gujarat, (2011) 11 Supreme Court Cases 111 : [2010 ALLMR (Cri) 3968 (S.C.)] observed that merely because panchwitnesses turned hostile, is no ground to reject evidence, if the same is based on testimony of investigating officer alone. 14. In the present case, the I.O. PW 6 PSI Kudale has clearly stated that he arrested the appellant in this crime vide panchanama Exh. 14 and seized his clothes. The seized property was then sent to C.A. Nothing has been elicited in cross-examination of this witness so as to discredit his testimony or to cause any suspicion about his testimony, hence, we have no hesitation in relying on his testimony. 15. Ms. Dandekar submitted that the evidence of PW 1 Vijay and PW 2 Bachu that they witnessed the appellant assaulting Narmada on the head with wooden plank cannot be believed because there was no electricity in the house which has been categorically admitted by PW 1 Vijay and PW 2 Bachu. She submitted that in such case the eye-witnesses could not have identified the assailant. Even assuming that there was no electricity in the house, it is noted that the appellant was the neighbour of Vijay and Bachu. She submitted that in such case the eye-witnesses could not have identified the assailant. Even assuming that there was no electricity in the house, it is noted that the appellant was the neighbour of Vijay and Bachu. His house was just adjacent to that of Vijay and Bachu, hence, at 02.00 a.m. when they saw the appellant assaulting Narmada, their eyes would be used to the dark and there would be no difficulty for them to identify the appellant who was their neighbour. Thus, we find no merit in this submission. 16. On going through the record, we find that there is sufficient evidence to prove that the appellant has committed house trespass by entering the house of Narmada in order to assault her, assaulted her and during the assault, he threatened Vijay and Bachu that he would kill them. There is also evidence to show that the appellant moved the dead body from the house of Narmada to his own house in order to cause disappearance of evidence of the offence. Thus, we do not find any merit in this appeal. The appeal is dismissed. 17. At this stage, we must record our appreciation for Advocate Ms. Rohini M. Dandekar who is on the panel of Advocates of High Court Legal Services Committee and who was appointed by us 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.3000/-. Appeal dismissed.