NAMDEO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for the murder of his wife under Section 302 of the Indian Penal Code. Prosecution had, in all, examined fifteen witnesses in support of the charge. Many of the prosecution witnesses did not support the prosecution case. The prosecution case rested on recovery of the stick on which the Chemical Analyser found blood stains. This recovery was made from the accused appellant under Section 27 of the Indian evidence Act. Besides this to some extent, some of the hostile witnesses had supported the prosecution case. The Trial Court, upon appreciation of the evidence, found that the charge of murder had been proved. The theory of fall propounded by the accused appellant was not accepted by the trial Court. The appellant has been sentenced to suffer life imprisonment and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for nine months for the offence under Section 302 of the Indian Penal Code. The conviction and sentence imposed on the appellant is challenged in this appeal.

(2.) MR. M. R. Daga, the learned Advocate for the appellant, submitted before us that no prosecution witness has supported the charge as against the appellant and that there is no direct evidence on the record to connect, the appellant with the crime and the only circumstance of recovery of stick at the instance of the appellant-accused, upon which the blood stains/of B group were found, which is the blood group of the deceased, is not sufficient to sustain the conviction. Alternatively, it is argued by the learned Advocate that it is a case of single blow and in the facts and circumstances of the case, the case of the appellant would at the most fall under Section 304-II of the Indian Penal Code. It was further submitted by him that the appellant had been in Jail in connection with this offence from 9/4/1997 and he has already undergone more than six years of imprisonment and as such, the imprisonment already undergone by the appellant be treated as sufficient punishment.

(3.) WE shall first briefly refer to the evidence on the record. Gana (P. W. 1) who lodged the FIR is not the eye-witness of the incident. He is brother of deceased Jayawantabai. According to him. Mohan Shende (P. W. 5), son of the deceased, informed him about death of Jayawantabai. Though in the FIR lodged by him, on the basis of the information given by Mohan, it was stated that Mohan had informed him that Namdeo Shende had assaulted the deceased on her head with Khatwa yet in his deposition in the Court he has stated that the information received by him was that the deceased fell down and she received injury to her head. In the light of what was stated in the FIR, what the learned APP was doing when he examined this witness is not understandable. Be that as it may. Mohan, who was examined as P. W. 5, did not support the prosecution case. Manisha (P. W. 2), daughter of the deceased and the appellant, also did not support the prosecution case. However, when she was permitted to be cross-examined by the learned APP, she denied to have stated before the police t hat her father Namdeo came with a stick and beat her mother on her back and head and as such, her mother was lying and blood was oozing out from her head. Mother of this witness namely Jayawantabai, the deceased, has already died and the appellant is her father due to which she did not support the prosecution case. Likewise, Ishwar (P. W. 3) also did not support the prosecution case. Parvatabai (P. W. 4), who is wife of brother of the appellant, has stated that she saw the deceased lying on the ground with bleeding injury on her fore head. At that time, the accused was standing with the stick in his house. This tick has been recovered by the police under Section 27 of the Evidence Act, upon which blood stains of "b" group were found by the Chemical Analysel, which is the blood group of the deceased. She has also not supported the prosecution case and during the cross-examination by the learned APP. she admitted that Manisha (P. W. 2) had informed that the deceased was beaten by her husband with the stick. Of course, again in the cross-examination by the learned Advocate for the accused, she stated that Manisha told her that her mother fell in the Chapari and received injury. The theory of Jail has been totally ruled out by Dr. Sudhakar Lanjewar (P. W. 6), the Medical Officer who found lacerated wound over the left parietal region of scalp 7 cm. in length and 2 cm in breadth, skin deep, blood clot adherent to wound edges. On internal examination, he found haematoma present under scalp over left parietal region 9 cm. x 3 cm. fracture of left parietal bone of skull. Subdural haematoma present under brain matter. The death was caused probably due to cardio respiratory arrest secondary to head injury. According to Dr. Lanjewar (P. W. 6) the injuries by the stick were sufficient to cause death under normal circumstances. He further stated that the injuries are possible due to stick (Article 4) shown to him. In the cross-examination, he stated that there was fracture and therefore, there could not be injury due to fall. He further stated that even if a person falls by pressure still the injury could not be possible. Thus, he totally rules out the cause or injury due to fall. Thus the prosecution witnesses, who are closely related to the appellant and deceased, had suppressed the exact cause of injury since their case is that the injury was on account of fall, but the said possibility had been totally ruled out by Dr. Lanjewar (P. W. 6 ). The appellant even went to the extent of denying the injury, which is clear from the question No. 6 in his statement under Section 313 of the Code of Criminal Procedure. The plea taken by the appellant is that he was not present, whereas Parabatabai Shende (P. W. 4) has stated that the accused was sitting with a stick in his house.