TANAJI BHIKAJI DALVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant challenges in this appeal the judgment and order rendered by the Additional Sessions Judge, Thane dated 19th October, 1994 convicting and sentencing him for Rigorous imprisonment for life under section 302 I. P. C. Though the counsel for the appellant Shri. S. S. Kadam was absent at the time of hearing, the appeal could not have been dismissed on default in view of the judgment of Supreme Court reported in AIR 1996 S. C. 2439 in Rani Singh & Ors Versus State of U. P. THErefore, we proceed with the hearing of the appeal with the assistance of learned A. P. P. Ms. Usha Kejriwal for the State.

(2.) THE case of the prosecution is that deceased Gulabbai was wife of the appellant and they have got four children out of their wedlock. All of them are staying in the house having four rooms. On 9.11.1992 at night after taking meals, Vansu P. W. 1 daughter of the appellant and his son P. W. 2 Eknath were in one room and the appellant and his wife deceased Gulabbai were as usual taking meals in another adjacent room. At about11. 00 p. m. while appellant was taking meal he demanded a glass of water to deceased Gulabbai who refused to serve the same. THEre upon quarrel started between the appellant and the deceased and in a heat of anger he gave blows on the face of deceased Gulabbai with an axe. THE deceased Gulabbai was lying in a pool of blood. Vansu P. W. 1 rushed to the house of her aunt (her father's sister) and Eknath P. W. 2 went to the place of Vasant Vajti P. W. 3 the sarpanch of village Gokhivare, Boipada. When Vansu P. W. 1 returned to the house the appellant was not seen there and Gulabbai was lying dead. Immediately Vansu P. W. 1 along with neighbours went to Outpost Achole of Manikpur police station. She narrated the incident to Baburao Khetmalse P. W. 4 He reduced her complaint into writing and obtained her thumb impression and proceeded to Manikpur Police Station along with the complaint. THE said complaint was registered at Manikpur Police Station as C. R. No. I-334/92 under Section 302 of I. P. C. at 5. 30 a. m on 10.11.1992. THEre upon investigation was carried out by P. W. 7 Ranjan Gaikwad, Assistant Police Inspector. He visited the spot and drew the inquest panchanama of the dead body of Gulabbai under the presence of panchas. He also recorded having collected two 'chadars' smeared with blood, axe having blood stains, earth with blood and without blood. THE dead body was sent for post mortem. Medical Officer, Dr. Shivputra, P. W. 6 who conducted post mortem handed over the clothes of deceased Gulabbai to police constable Gokhale who attached the same under panchanama Exh. 11 Along with these articles ear Lops, black beaded chain were also attached in the same panchanama and the doctor who conducted post mortem noticed on the corpse of deceased Gulabbai following seven injuries which were ante mortem. 1. Cut incised wound over right cheek and right side of neck, extending form medial angle of right eye to upper third of right side of neck. Size is 6" x 1" x bony and visceral deep, fracture bones of cheek with hard pelate and jugular vessels and carotid vessels are cut. Oblique in direction and bewelling downwards and left side. Blood clot present. 2.Cut incised wound over right cheek, 2" posterior to the right angle of mouth transverse in direction 1" x 1/4" x body deep. 3.Cut, incised wound over right side of mandible and upper part of right side of neck extending from chin to middle of neck on right side 4" x 1" x bony and visceral deep, slightly oblique in direction bewelling downwards and left side fracture to mandible ramus is present. 4.Cut incised wound over right side of neck on its lower third roughly transverse in direction.1.1/2" x 1/2" x muscle deep, elliptical in shape, bewelling downwards and left side. 5.Cut incised wound over right side of neck on its lower just below the injury No. 4, roughly transverse in direction 1" x 1/2" x muscle deep, bewelling downward and left side. 6.Cut incised wound just above the middle part of right clavicle transversee in direction 1/4" x 5 mm x muscle deep. 7.Fracture right clavicle bone in the middle part. P. W. 6 opined that these injuries in the ordinary course of nature are sufficient to cause death. THE death was caused according to him due to cardio respiratory failure due to neurogenic and hemorrhage shock due to the injury to the right cheek bones, hard pallet, mandible jugular and oarotid vessels due to hard and sharp object. He also opined that the injuries can be possible to cause by article No. 1 axe. Going back, P. W. 7 Shri Gaikwad recorded the statement of witnesses. THE appellant was also arrested on 10.11.1992 at about14. 30 hours and arrested as per arrest panchanama Exh. 15 During his arrest his underpant article No. 5 which was found to be stained with blood also attached under Panchanama. P. W. 4 is the attesting witness to the attachment of under pant. All the muddemal articles attached under panchanama Exh. 8 and 15 were sent to the Chemical Analyzer and his report Exh. 27 was produced before the court and admitted in the evidence on admission of the parties. P. W. 7 referred to Eknath P. W. 1 to the Special Judicial Magistrate for recording his statement. After the necessary investigation P. S. I. Kadam of Manikpur Police Station filed chargsheet to the Judicial Magistrate, First Class, Vasai who in turn committed the case to the learned Sessions Judge for trial. Before the trial court, the appellant pleaded not guilty and claimed to be tried. On recording the evidence and after hearing parties, the learned Sessions Judge passed order of conviction and sentence as indicated in the opening paragraph of this judgment.

(3.) SIMILARLY P. W. 2 appellant's son says in his examination-in-chief that his parents used to take meals after they finish their meals. Their parents were in the next room. He was sleeping in the front of the house in the courtyard. He got up from a sleep when his sister Vansu was weeping. It was around 11 p. m. When he went inside the room he saw his mother was killed and from the injuries the blood was oozing. She had injuries on her throat. His father was not in the house at that time. A very important contradiction was noted by the court below in his evidence. Contradiction (A) is with regard to the statement to the police that his sister Vansu was weeping and telling to the neighbours that their mother was killed by their father and his father was going out of the house after abandoning an axe in the house which was taken note by the court below. The Contradiction (B) in short goes to show that when he got up and went inside the house his father was running away after abandoning the axe in the corner of the house and in that process P. W. 2 tried to catch hold of him but his father pushed him away. These two important material contradictions has been proved by P. W. 7 Investigating Officer and the trial court has rightly taken that circumstance in incriminating the appellant. The evidence of P. W. 3 though he was treated hostile was also useful for the prosecution to prove their case. He admits in his evidence that he was Sarpanch of the locality and the appellant is resident of his village Gokhivare. The appellant and deceased Gulabbai has been staying just half furlong from his house. He admits that there used to be quarrels between appellant and his wife on trivial reasons. On the night of incident he was asleep in his house. At around 12. 45 or 1. 00 a. m. son of appellant came to his house. He told him that, there was quarrel between his father and mother. He advised him to lodge a complaint with police. He then came to know that, daughter of appellant by name Vansu lodged complaint with police. He also admitted in his cross examination that on the following morning he went to the house of appellant and saw that appellant's wife was lying dead in his house having injuries on her person and an axe was lying by the side of dead body which was stained with blood. Therefore, it is clear from this evidence that he saw the dead body and the axe in the house of the appellant. In this circumstances, although it is the burden of the prosecution to prove the guilt of the appellant in view of Section 105 of the Evidence Act, the appellant is under legal obligation having found his wife along with him in the previous night and it is seen in the next morning that her dead body was lying in his house with an axe near the dead body, it is incumbent upon the appellant to have convincing explanation in view of the provisions of Section 106 of the Evidence Act. As indicated above, neither in Section 313 statement nor by way of suggestion to the appellant, the appellant tendered any explanation to the circumstances, even his children who were declared hostile stated that the deceased was last seen with appellant in their room, therefore, an explanation is quite natural from him for the death of his wife.