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2017 DIGILAW 13 (BOM)

Omprakash Devandas Khanna v. State of Maharashtra

2017-01-04

REVATI MOHITE DERE, V.K.TAHILRAMANI

body2017
JUDGMENT : Smt. V.K. Tahilramani, J. 1. This appeal is preferred by the appellant-original accused against the judgment and order dated 05.02.2011 passed by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 24 of 2008. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of I.P.C. and sentenced him to suffer imprisonment for life and fine of Rs. 5000/-, in default R.I. for six months. 2. The prosecution case briefly stated, is as under: (a) Deceased Pooja was the wife of the appellant. They had one son i.e PW 6 Tushar. Pooja along with her son was working in Shringar Hair Pin Factory at Ulhasnagar. The appellant was not doing any work and he was addicted to liquor. He used to constantly ask his wife Pooja for money. There used to be quarrel between the appellant and his wife Pooja on account of money. On account of this, Pooja along with her son was residing separately from the appellant since few months prior to the incident. (b) The incident occurred on 9.11.2007. On that day, there was Laxmi Pujan in Shringar Hair Pin Factory where Pooja and her son Tushar were working. The appellant came to the factory at about 4.00 p.m. He called his wife Pooja outside the factory. Pooja returned back to the factory after five minutes. PW 4 Suresh asked Pooja what had happened. Pooja told him that the appellant i.e her husband was demanding money for consuming liquor but she did not give any amount to her husband. After puja, all the workers left the factory, however, PW 3 Amarlal, PW 4 Suresh, Pooja and her son Tushar were in the factory. The appellant then came in the factory. PW 4 Suresh told the appellant that Sheth is not allowing him to come into the factory. Thereupon, the appellant told Suresh that he wants to speak to Pooja for two minutes. Pooja then went to the kitchen of the factory. The appellant followed her. There was red colour bag in his hand. The appellant took out a bottle from the bag and broke it in the kitchen. The appellant then assaulted Pooja with the broken bottle. The appellant then came out of the kitchen. Tushar started giving fist blows on the chest of the appellant saying that why the appellant killed his mother. There was red colour bag in his hand. The appellant took out a bottle from the bag and broke it in the kitchen. The appellant then assaulted Pooja with the broken bottle. The appellant then came out of the kitchen. Tushar started giving fist blows on the chest of the appellant saying that why the appellant killed his mother. The appellant then pushed Tushar and left the factory. Tushar then lodged FIR. Thereafter, investigation commenced. (c) The dead body of Pooja was sent for postmortem. PW 7 Dr. Rathod conducted the postmortem on the dead body of Pooja. Dr. Rathod found two injuries on the body of Pooja, one on the neck and one behind the left ear. In the opinion of Dr. Rathod, the cause of death was due to hemorrhagic shock. 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-accused under Section 302 of I.P.C. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. It is the further defence of the appellant that some unknown persons committed the murder of his wife in the factory and ran away. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal preferred by the appellant against his conviction and sentence. 4. We have heard the learned counsel 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 counsel 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 his wife Pooja with a broken bottle and caused her death. 5. Though PW 6 Tushar was working with his mother Pooja in Shringar Hair Pin Factory and Tushar was an eye witness to the incident, he has turned hostile and did not support the prosecution. This is obviously on account of his relation with the appellant i.e the appellant was his father, hence, he wanted to protect his father. 5. Though PW 6 Tushar was working with his mother Pooja in Shringar Hair Pin Factory and Tushar was an eye witness to the incident, he has turned hostile and did not support the prosecution. This is obviously on account of his relation with the appellant i.e the appellant was his father, hence, he wanted to protect his father. However, even otherwise, we are of the opinion that there is sufficient evidence on record to show that the appellant committed the murder of his wife Pooja. 6. The appellant had motive to commit the murder of his wife Pooja. This is brought out in the evidence of PW 3 Amarlal and PW 4 Suresh. PW 3 Amarlal has stated that the appellant used to come to their factory after consuming liquor. He used to quarrel with his wife Pooja on account of money. PW 4 Suresh has stated that on the day of the incident, there was puja in the factory on account of Diwali. Appellant Omprakash came to the factory at about 4.00 p.m. He called his wife Pooja outside the factory. She returned after five minutes. Suresh asked Pooja what had happened. Thereupon, Pooja told him that the appellant was demanding money but she did not give him the money. 7. Both PW 3 Amarlal and PW 4 Suresh knew the appellant which is clear from their evidence. In addition, the evidence of both these witnesses shows the presence of the appellant at the relevant time in the factory where Pooja was working. PW 3 Amarlal has stated that on 9.11.2007, there was Laxmi Pujan in their factory. Tushar and Pooja had come to the factory. Workers left the factory after taking bonus and sweets. At that time, appellant Omprakash came there and went in another room where Tushar and Pooja were sitting. After sometime, the appellant came out of the room followed by his son Tushar. Tushar started giving fist blows on the chest of the appellant saying why he killed his mother. The appellant then pushed Tushar and left the factory. 8. The evidence of PW 4 Suresh shows that on the day of the incident, the appellant came into the factory. Suresh told the appellant that his Sheth is not allowing the appellant to come into the factory. The appellant then told Suresh that he wants to speak to his wife Pooja for two minutes. 8. The evidence of PW 4 Suresh shows that on the day of the incident, the appellant came into the factory. Suresh told the appellant that his Sheth is not allowing the appellant to come into the factory. The appellant then told Suresh that he wants to speak to his wife Pooja for two minutes. Pooja went into the kitchen of the factory. The appellant followed her. There was a red colour bag in the hand of the appellant. The appellant took out a bottle from the bag and broke it in the kitchen. The appellant started assaulting Pooja with the broken bottle. Suresh has stated that he came to know about this from Tushar when Tushar came running out of the kitchen. Tushar was saying "Mummy ko mar dala". The appellant then came out of the room. His son Tushar was trying to catch him, however, Tushar could not catch the appellant. The appellant then ran away throwing the bag in the factory. 9. No doubt that PW 6 Tushar, the son of the appellant and the deceased has not supported the prosecution case, however, the sequence of events as narrated by PW 3 Amarlal and PW 4 Suresh shows that the appellant went into the room where Pooja was and thereafter when the appellant came out of the room, Pooja was found dead in the room. Moreover, Tushar started giving fist blows to the appellant stating why he had killed his mother. The appellant then gave a push to Tushar and ran away. If the wife of the appellant had sustained serious injuries, in normal course, the appellant could have stayed back and seen that his wife gets immediate medical aid, however, instead, the appellant ran away from the spot. This further shows his mens rea. 10. PW 6 Tushar, the son of the appellant and the deceased tried to support the appellant by stating that some unknown persons killed his mother. Tushar has stated that after the function was over, he and PW 4 Suresh were standing outside the factory. His mother was inside the factory. He heard shouts of his mother, hence, he rushed into the factory. He saw blood oozing from the face of his mother and two persons running away from the back door of the factory. Tushar has stated that after the function was over, he and PW 4 Suresh were standing outside the factory. His mother was inside the factory. He heard shouts of his mother, hence, he rushed into the factory. He saw blood oozing from the face of his mother and two persons running away from the back door of the factory. However, this is a totally false stand taken by Tushar which is seen from the fact that PW 3 Amarlal who was working in Shringar Hair Pin Factory since 20 years stated that there was no exit to the back side of the place where the incident took place. In any event, the evidence of PW 3 Amarlal and PW 4 Suresh shows that the appellant came into the factory, he entered the room where deceased Pooja was. Thereafter, the appellant came out of the room and Pooja was found dead in the room. 11. We would like to advert to one another circumstance which goes against the appellant that is when the appellant was arrested, the clothes on his person came to be seized. They were seized by PW 10 ACP Hemade. These clothes were sent to Chemical Analyzer. The chemical analysis report Exh. 61 shows that the shirt and pant of the appellant were washed, however, human blood stains were detected on both these clothes. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 , wherein it has been observed as under : "In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507 ) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant." Similar view has been taken by the Supreme Court in the cases of R. Shaji v. State of Kerala, (2013) 14 SCC 266 , Molai & Anr. v. State of Madhya Pradesh, 1999(9) SCC 581 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 . It is pertinent to note that the appellant has not given any explanation for the presence of bloodstains on his clothes. 12. On going through the record, we are of the opinion that there is sufficient evidence to prove beyond reasonable doubt that the appellant committed the murder of his wife Pooja, hence, we find no merit in the appeal. The appeal is dismissed. 13. Fees to be paid to the appointed Advocate is quantified at Rs. 5000/-.