BANDU SANTU KUMBAR Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant is the original accused who has been convicted under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life with a direction that the detention that he has undergone from the date of his arrest on 29-1-1989 till the date of the judgment should be set off in terms of Section 428 Cr. P. C. The case of the prosecution is that on 25th January, 1989 between 10-30 and 17 hours at Ambede, Nagargao, the appellant assaulted his wife Banabai Kumbar with stones and fist blows on her chest and forehead killing her on the spot on the suspicion that she was having illicit relations and thereby committed offence of murder punishable under section 302 I. P. C. On behalf of the prosecution, the evidence of P. W. 3 Rayappa Siddhappa Sar has been recorded who has stated that he knows the appellant who was working along with him in the property of one Harmalkar at Maloli Valpoi for about one year. He was known as Shivaji. He also knew his wife who was working for the said Harmaikar. Some 5 months prior to his deposition on 27th June 1989, the police took him to ajungle at Maloli and showed a dead body which he recognised to be of the appellant's wife. About 4 days prior to that day he had not seen the appellant working for Harmalkar. He also said that the appellant was staying in his neighbourhood in a room provided by Harmalkar and a few days prior LO the day he saw the dead body he also did not see the accused in his room. P. W. 4 Rajaram Pokle has also stated that sometime in December 1988 he engaged the deceased Banabai to do the work in his property to remove weeds in the coconut plantation. He employed her at the request of one woman working in the neighbourhood for one Nanda Kanekar. The said woman told her that Banabai had left her husband as they could not pull on well and that she had filed a case with the police. She requested him to give her some employment as Banabai had no source of income. Banabai worked with him for about a month and on 21st January 1989 or so she told him that she would go to the police station to finalise the case of snapping relations with the appellant. The son of Banabai was also staying with her. After the day Banabai left him telling that she was going to finalise the case, she did not return. At that time she left with her son and the appellant. He saw all of them boarding a bus. P. W. 6 Sitabai Gawas has also stated that she stays at Nagargao and that her house is close to the bus stop. They have a cashew grove at Nagargao wherein the dead body of a female was found. That stop is known as Ambedem. She used to fetch water from across the road from a well. In January 1989 at about 10 a. m. she saw the appellant forcibly dragging a woman away from her house on the road. The woman was refusing to go with him. There was one boy about 11 years old along with that woman. Some 2 or 4 days thereafter the dead body of a woman was found in that cashew grove. The appellant appears to be like the man whom she had seen on that day pulling the woman. P. W. 8 Narayan Harwalekar has also stated that he is running a tea shop at Nagargao and he knows the appellant who was working with one Harmalkar at Nagargao. He remembers that the appellant passed in front of his tea-shop on 26-1-1989 at about 10 a. m. He was at that time accompanied by a woman and a boy of 10 years of age. They were proceeding towards Maloti. P. W. 9 Ladu Gauthankar has also deposed that some 7 months prior to his deposition in August 1989, on 25th of that month, he saw the appellant at Nagargao along with a woman and a boy of about 8 years of age. The accused was asking them to follow him. P. W. 10 Ramkrishna N. Parab has stated that he is working as conductor in Kadamba bus bearing No. GDX 89 plying from Panaji to Nanora. On 25-1-1989, at about 5. 30 p. m. , the bus started its return journey from Nanora to Panaji and the appellant boarded the bus at about 5. 35 p. m. at the Bambar stop which is a little after Nanoda. Along with the appellant one boy about 8 to 10 years of age also boarded the bus. The appellant and the boy got down from the bus at Mapusa. P. W. 12 Mahadev Rane has stated that he was working in the farm of one Harmalkar at Maloli where the accused was also working at the relevant time. The last time he saw him was 25-1-1989, at about 5. 30 p. m. , when he along with his son boarded Kadamba bus from near the farm and the bus was from Nanoda to Panaji. The appellant was having a bag in his hands. P. W. 13 Sumathi Harmalkar has also stated that she knows the appellant who was known as Shivaji and he was working in the farm of one Bharat Harmalkar at Maloli. He used to stay there in a room along with his wife and son. For about 3 months prior to January 1989 neither the appellants wife nor his son were with him in the room. Last time he saw the appellant was along with his son on 25-1-1989, at about 5. 30 p. m. At that time the said son who was known as Pintia was crying. When she asked him as to why he was crying and offered him milk he told her that Dadane Aila marie. She thought that the appellant had simply assaulted his wife. She did not see the appellant or his son neither has she seen his wife after 25-1-1989. P. W. 14 Bharat Harmalkar stated that he is having a farm at Maloli and the appellant whom he used to call Shivaji was working for him. He used to live in a room in his farm with his wife and a young son. Of late he had started assaulting his wife after drinking and therefore the appellants wife left him. On 25-1-1989 he went to the farm late in the evening and he was told by another labourer Madev Rane that the appellant had come and left for good along with his son and had taken his baggage. About 2 days prior to that he was not regular at work and had not met him. On the day he left he did not make any payment to him. On 26-1-1989 he lodged a complaint in the police saying that the appellant had left the work. P. W. 18 Chandrakant Kumbar said that the appellant was his father. He was living with his grand-parents for the last about 10 months and before that he was living in another place along with his mother. She was known as Banabai. They were living together alone and his mother use to water some coconut plants. His mother was killed by the appellant. His father called his mother from the place where she was working. They went by bus and got down at Valpoi. Thereafter they went walking oil a tarred road. The appellant thereafter killed his mother with a stone. The stone was by the side of the tarred road. The appellant threw the stone on her mother's forehead and on her right and left shoulders. The incident occurred in the jungle. There were trees at the scene of offence on both sides. When the appellant assaulted his mother she took her tongue out. She was assaulted when she was lying on the ground. The stones with which she was hit were about 5 inches in diameter. The appellant picked the stones on the way. The appellant hit the stones on his mother thrice. Thereafter she died when she was flat on the ground. After his mother died the appellant took him to one Bharat. They went to Bharat's place walking. One Sumati gave him some food to eat. He told Sumati that the appellant had assaulted his mother (Dadane Aila marli ). After they had food they left from there to village Kisrud to their own house. The police came to Kisrud and took away the appellant. He also admitted the suggestion that on the way the appellant pushed his mother and she fell down on the ground. P. W. 21 Dr. Anjani Borkar has stated that he was working as Medical Officer at Primary Health Centre, Curtorim from 28-12-1986 upto 1989 when she was posted at Curtorim. On 20-10-1987, at 5. 45 p. m. , one Banabai Kumbar was referred to her by Valpoi police for examination and at that time she found an incise wound on the skull about 5 inches in length. The patient gave a story of assault as beating by her husband. She also said that her husband used to beat her often. The hurt certificate duly signed was produced by her and marked as Exhibit P. W. 21/a. On 30-1-1989 P. S. I. Valpoi referred to her the appellant Bandu Santu Kumbhar for examination. When she examined him she did not find any evidence of internal or external injuries. He told her before she started examining him that he had committed murder of his own wife Banabai Kumbhar 5 days ago. Certificate of the examination of the appellant signed by the medical officer was produced and marked as Exhibit P. W. 21/b.

(2.) FROM a bare perusal of the impugned judgment it is seen that the learned Sessiojis Judge has based the conviction of the appellant not only on the testimony of the lone eye witness who is hisyoung minor son P. W. 18 Chandrakant, but also on the medical evidence as well as other circumstantial evidence including the extra-judicial confession purportedly made by the appellant to P. W. 21 Dr. Anjani Borkar.

(3.) AS far as the evidence of the eye witness is concerned, we have seen that P. W. 18 Chandrakant has clearly deposed that on the day of the incident the accused came to the place where his deceased mother was staying along with him in the farm of one Rajaram Pokle and took them in his company. Accordingly they boarded a bus which dropped them at Valpoi. From there they went walking to a place in the jungle off the tarred road where there were trees. Once at the site his father assaulted the deceased, who was lying on the ground, with stones which he hit on her head and on the region of her chest (right and left shoulders ). When she was being assaulted she took her tongue out. The stones were about 5 inches in diametre and after the assault her mother died. This evidence given by Chandrakant, inspite of being a minor of about 7 to 8 years of age, is perfectly consistent with his earlier statement recorded by the Judicial Magistrate, First Class, Bichalim, P. W. 16 Divekar Kenkre under Section 164 Cr. P. C. He has testified about the contents of the narration given by Chandrakant to him of the incident occurred on 25-1-1989, after being satisfied that he was in a position to understand the questions put by him and to give them proper replies and on ascertaining that he was doing so without any pressure or influence either from the police or from any member of his deceased mother's family. In this statement which has been produced by the Magistrate and marked Exhibit P. W. 16/a. Chandrakant deposes that the accused took him and his mother, about 4 days prior to his deposition given on 31-1-1989, from the house of their owner in a vehicle which was stuck on the way and from there they went walking into a property where there were cashew trees. His mother was unwilling to go but his father dragged her from the road into the property where she was pushed down and she fell facing the sky. Then his father kept one leg on her neck and with the help or a stone, about 5 inches in diameter, hit her on her forehead and chest. When one stone slipped from his hand he picked up anothers tone from the ground with which he continued to hammer her head and chest a number of times. His mother was bleeding profusely and pleading with his father not to assault her. Then he also asked the appellant not to beat his mother and started crying. His father then gave two slaps on his face. Thereupon they returned to the house of the owner from where they took a Kadamba bus to Mapusa.