Haridas Navnath Satpute vs State of Maharashtra

P.D. Kode, J.—The appeal is preferred against the judgment and order dated 30th November, 2007 passed by the learned Ad hoc Addl. Sessions Judge, Solapur, convicting the appellant for committing murder of his wife Kusum by assaulting her with sickle/khurpe on 16th July, 2006 and causing her injuries at neck resulting in her death on 23rd July, 2006 beneath the Tamarind tree in field of Ramling Shinde and on said count sentencing him to suffer imprisonment for life. According to the prosecution, victim the daughter of PW1 Gajrabai, about 6-7 years prior to the occurring of the incident on 16th July, 2006 had married the appellant. Since marriage she was residing along with the appellant, father-in-law Navnath, brother-in-law Govind and others at village Tadsoundane, Tal. Barshi, Dist. Solapur. The couple had two daughters out of said wedlock. Kusum visiting house of parents on festivals, used to complain regarding ill-treatment from the appellant upon suspicion of her fidelity. PW1 in a hope of improving behaviour of the appellant, after pacifying Kusum was sending her to matrimonial house.

1.1 According to the prosecution on the day of incident at about 12.30 hrs, the appellant went to the field of one Balu Shinde at which Kusum had been for work and appraised that her sister and brother-in-law had been to the house. The appellant, returning along with the victim while beneath the Tamarind tree in field of Ramling Shinde, expressing his suspicion of Kusum keeping illicit relations with somebody by leaving house on the pretext of the work, assaulted her with sickle and went away. One Hanumant Satpute brought her to the hospital of Jagdale Mama at Barshi.

1.2 PW6 PHC Uttam Palkar, attached with Barshi Town Police Station upon receipt of information about admission of injured Kusum rushed to the hospital and after PW9 Dr. Balaskar on duty at hospital certifying that she was fit and was in a condition to give a statement, recorded her statement-cum-dying declaration Exh. 21. PW9 has accordingly certified below Exh. 21. PW8 Prakash Pawar after receiving Exh. 21 brought by PW6 to Pangri Police Station treated it as F.I.R. and registered the crime No. 59 of 2006 at 12.35 hours against the appellant for the offences under Sections 326, 504 and 506 of I.P.C.

1.3 PW12 PHC Chandrakant Gholve attached with Pangri Police Station took up the investigation of crime registered and visited the spot of incident and recording situation prevailing by drawing spot panchanama Exh. 11 seized bloodstained earth, plain earth, broken pieces of bangles and Mangalsutra comprised of black colour and yellow colour beads smeared with blood found at spot. He arrested the appellant and drew arrest panchanama (Exh. 34) in presence of PW7 Waman Kakde and one another regarding the injury noticed on right palm of the appellant and so also seized bloodstained shirt, brown colour pant, red colour sando bainyan and underwear then on the person of the appellant. He referred the appellant to Rural Hospital at Pangri at which PW10 Dr. Jivan Shelar examined him and collected his blood sample. PW10 to the query made by the police vide Exh. 28 whether injury sustained by the appellant was possible by sickle/khurpe gave positive opinion Exh. 29. PW12, on 18th July, 2006, by drawing panchanama Exh. 35 in presence of panchas seized bloodstained clothes of victim Kusum produced by her brother-in-law Dattatray. He has received said clothes from doctor at Solapur City Hospital at which she was under treatment. PW12 on 21st July, 2006 as a sequel to the statement leading to the discovery of weapon made by appellant, seized bloodstained sickle/khurpe, Art. A concealed by the appellant within the grass in the field of Ramling Shinde, to which the appellant had led them, by drawing memorandum and discovery panchanama Exhs.23 and 24 respectively in presence of PW7 Waman and one another.

1.4 According to the prosecution, PW5 Dr. Lokhande treating victim at Jagdale Mama Hospital referred her to Solapur Hospital on 17th July, 2006. She was brought back to Jagdale Mama Hospital on 19th July, 2006. She succumbed to the death on 23rd July, 2006. After receiving the information about her death, PW12 drew inquest panchanama Exh. 12 and referred her corpse for postmortem examination at Rural Hospital, Barshi. PW11 Dr. Patel Abid Annis conducted postmortem examination along with Dr. Mrs. Bopalkar and gave post-mortem Notes Exh. 32, amongst other giving probable cause of death as "shock due to injury to vital organs and blood vessels of neck". PW12 also added the offence u/s 302 of I.P.C. to the crime registered. He sent seized mudemaal articles to C.A., Pune for examination. PW.12 also recorded statements of the witnesses including that of eye-witnesses PW2 Sambhaji Satpute and PW3 Laxman Satpute and neighbour PW4 Mandakini Satpute. P.S.I. Jagdale thereafter took the charge of the investigation and at the conclusion of investigation, he submitted charge-sheet against the appellant in the Court of J.M.F.C. Barshi for the offences under Sections 302, 326, 504 and 506 of I.P.C.

The appellant pleaded not guilty to the charge (Exh. 3) framed against him for the offence u/ss. 302, 504 and 506 of I.P.C. by the Court of Sessions, after the case was committed to said Court. The prosecution at trial examined abovereferred ''12'' witnesses and also relied upon documentary evidence prepared during the course of investigation. The defence of the appellant was that of total denial and false implication.

The trial Court after appreciation of the prosecution evidence came to the conclusion that the prosecution has established that Kusum met with homicidal death and the appellant was responsible for causing injuries which has led to her death. In consonance with such conclusion arrived, the trial Court convicted and sentenced the appellant as narrated hereinabove. However, the trial Court acquitted the appellant from the charge of having committed the offence under Sections 504 and 506 of I.P.C.

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 and the evidence on record, for the reasons stated below, we are of the opinion that the appellant caused death of his wife Kusum by inflicting the sickle blow on her neck.

The conviction is based mainly upon the evidence of eye-witnesses PW2 Sambhaji and PW3 Laxman and dying declaration of the deceased Exh. 21 recorded by PW6 and then endorsed by PW9 Dr. Balaskar regarding fitness of the victim in making statement. Additionally, the reliance is also placed upon the evidence of PW4 Mandakini supporting the prosecution case that the incident occurred at about 12.00 noon while victim was returning along with the appellant from the field to Ramling Shinde. The reliance is also placed upon the other circumstantial evidence of finding of human bloodstains on sickle discovered and seized as a sequel to the statement leading to discovery made by the appellant as established by the evidence of PW7 Waman and the Investigating Officer PW12, PHC Gholave.

Now considering the aspect of the deceased having met with homicidal death, apart from no serious dispute being made on behalf of the appellant, the same is duly established by the prosecution from the evidence of PW5, who had examined the victim after she was admitted in Jagdale Mama Hospital. The evidence of PW5 amongst other reveal that while treating her, he found the following injuries on her person

(1) Small multiple puncture wound with stab wound all over neck from all sides with sharp edges and deep;

(2) Pneumomediastinitis with surgical emphysema;

PW5 noticed largest wound was 1 cm in length and smallest wound was 0.5 to 0.3 cm. length. The depth of the wound was from 1 to 2 cms. His evidence reveals that the said injuries were fresh, and caused within 24 hours and were possible by sharp and pointed weapon. PW5 in response to specific query made by Investigating Officer vide Exh. 28 opined that the said injuries were possible by sickle. After careful scrutiny of the evidence of PW5, we do not find that his such evidence was shattered muchless even challenged during the cross-examination. We further find that the evidence of PW5 is well corroborated by the medical certificate Exh. 19 issued by him.

Furthermore the reference to the evidence of PW11 Dr. Patel, who had performed postmortem examination upon the corpse of deceased Kusum also does not reveal any different picture. The scrutiny of his evidence does not reveal that except bringing the fact on record that multiple blows were necessary for causing the injuries as noticed by him during the post-mortem and noted in column No. 17 and the said injuries were possible by a sharp edged weapon and Article-A seized and shown to him is iron rusty weapon, anything else was brought on record during the cross-examination rendering the cause of death given by him as "shock due to injury to vital organs and blood vessels of neck" unbelievable and unacceptable. Though, the learned counsel foe the appellant tried to canvass that the said evidence gives a blow to the prosecution case, we are unable to give any undue importance to the evidence of PW11 of Art. A being the rusty weapon. We are of such a view as the incident in question occurred in 2006 and his evidence was recorded about a year back in month of August 2007 denotes every possibility of iron article, i.e., Art. A getting rusted by the time of recording of evidence. The evidence of PW11 also does not rule out the possibility of injuries being caused by said weapon. Hence, we find it difficult to accept the submission that his such opinion had given any blow to the prosecution case that injury was caused to deceased by Art. A. Now even de hors of the evidence of eye-witnesses or the evidence in shape of dying declaration in light of the aforesaid medical evidence of two doctors considered alongwith the situation noticed by Investigating Officer PW12 while drawing spot panchanama (Exh. 1l) admitted by defence, it can be safely said that the said injuries were received by the deceased due to violence made with her. Thus aforesaid evidence in clear terms reveals that the deceased has succumbed to death due to the injuries sustained by her. Now considering the place at which she had sustained the said injuries, the same militates against sustaining of such injuries for a cause other than violence. Hence such injuries resulting into her death itself establishing her death being homicidal. In the said premises, we are unable to find any fault with such a finding arrived by the trial Court on the basis of the above referred evidence.

Now considering the evidence of two eye-witnesses, namely PW2 and PW3, the evidence of PW2 reveals that on the day of incident at about 12.30 p.m. while carrying the bullocks from Saundane to Shelgaon, he had seen the quarrel going on in between the appellant and deceased. It reveals that he had seen the same from the distance of 50 feet. He claimed of having seen the appellant beating Kusum by sickle. It reveals mat when he reached nearby them, he told the appellant not to beat her, yet the appellant gave sickle blow on her neck and she fell on the ground. It reveals that the appellant then ran away.

Similarly, the evidence of PW3 Laxman reveals that on the day in question when he was returning to his, house from the field, he had seen quarrel going on in between the appellant and his wife and they were going ahead of him at a distance of 50 feet. It reveals that near the field of Ramling Shinde deceased raised shout loudly. The appellant assaulted her with sickle on the neck. He rushed to the said place, but the appellant ran away.

Now independent scrutiny of the evidence of each of the witness, qua the evidence of PW2, we find that though certain omissions and contradictions were brought on record during the cross-examination, still the same fails to shatter his claim of having witnessed the incident and during incident the appellant having given a blow on the neck of Kusum. Even after taking most charitable view regarding submission canvassed regarding the said omission and contradiction, which as rightly observed by the trial Court were in the nature of eliciting the details about the incident witnessed by PW2, it can be definitely said that he had seen the deceased and appellant quarrelling, deceased falling down and the appellant running away. Hence, we do not find any force in the submission canvassed that the said contradictions and omissions brought on record during the evidence of PW2 are having the effect of discarding his testimony. Though it was tried to be canvassed by the learned counsel for the appellant that the same gives an impression that he had not witnessed the incident, we are unable to find any substance in the said submission canvassed considering the nature of said omissions and contradictions.

Now with regard to the evidence of PW3 recited hereinabove, we find that practically no where his core of said testimony of having witnessed the incident and during the same the appellant after giving a blow of sickle upon neck of the deceased having ran away has been shattered in any manner. The learned counsel for the appellant as canvass before the trial Court also tried to canvassed before us by drawing attention to the fact of the statement of PW2 being recorded on 19th July, and that of PW3 on 21st July in spite of incident having occurred on 16th July that the said delay in recording the statement of said witnesses leads to the conclusion that both of them were got-up witnesses. The said submission was buttressed with the further submission that such a conclusion is apparent in view of the even first information report being recorded on 18th July. We find that the trial Court has duly dealt the said submission and so also decisions relied in said respect on behalf of the appellant before the trial Court, and for elaborate reasons recorded in paragraph Nos. 16 to 19 rejected such submissions. After carefully considering the said logical reasoning recorded by the trial Court, we are unable to find any fault in said reasoning.

Without unnecessarily repeating the said reasoning, we only add that the said reasoning reveals that delay had occurred in registering the F.I.R. in view of the crime being firstly registered as 0/2006 at Barshi Police Station to which PW6 was attached. The said first information report was transferred to Pangari Police Station as the incident had occurred in an area under the jurisdiction of said Police Station and thereon the crime No. 59/2006 was registered. The same is self evident even at a glance to Exh. 21. Similarly, statement-cum-dying declaration Exh. 21 having not given a clue regarding the persons present at the time of incident, the witnesses who had observed the incident having not approached the police and the police having approached them after receiving the clue takes away the sting of the submission canvassed of there being delay in recording their statements. In the same context, we further observe that we are unable to find a fault with the trial Court in taking into account the reluctancy of the people to approach the police in present days and such a facet is not affecting their testimony. In the same context, we further add that delay in recording the statement or non-approaching of the witness to the police by itself cannot be considered as ground to discard their testimony unless their evidence considered as a whole reveals that they are not telling the truth and/or the same is not inspiring the confidence. Considering the evidence of both witnesses from the said angle, we do not find any such embellishment in their evidence, nor anything brought on record of themselves entertaining any animus or grudge against the appellant for falsely implicating him. On the contrary, we find that during cross-examination of PW3, it was brought on record that he has brotherly relations with the appellant. We further add that considering the deposition of PW3 as a whole we find that the same is cogent, convincing and inspiring the confidence and no error was committed by the trial Court in accepting his evidence and relying upon the same.

Now considering another piece of evidence relied by the prosecution, i.e., Exh. 21 the dying declaration of deceased recorded by PW6. In the said context after considering the evidence of PW6, we find that he has taken necessary care of obtaining opinion of PW9, who was on duty at Jagdale Mama Hospital. The evidence of PW6 reveals that after satisfying himself that deceased was in a position to make statement, he had recorded her statement as per her say. His evidence reveals that after recording he had read over the contents to her and thereafter obtained her signature. Even after careful perusal of the answers elicited during the cross-examination, we do not find any circumstance brought on record for not accepting the said claim staked by him of Exh. 21 being dying declaration of the deceased recorded by him as per her say. We further find that the evidence of PW6 is further corroborated by the evidence of PW9, who had given corroborative account of PW6 having approached him and after himself opining about the fitness of deceased to make statement having recorded the dying declaration and PW9 having given certificate. The evidence of both the witnesses is also corroborated by the matters, accordingly found endorsed upon Exh. 21 dying declaration.

The learned counsel for the appellant tried to assail the evidence pertaining to the recording Exh. 21 by urging that the same being recorded by the policeman and no efforts being made for getting dying declaration of deceased recorded through the Executive Magistrate creates a lacuna in the prosecution case. We are unable to accept said submission with a favour as though it is preferable to get the dying declaration recorded through independent agency rather than the investigating officer, still the law does not debar the investigating agency from recording the dying declaration. Further more in the instant case, the dying declaration was recorded by the policeman of Barshi Police Station, i.e., not by the police who were to investigate the said case also takes away the sting of the said submission and further PW6 being never questioned during the cross-examination or even the Investigating Officer whether any efforts was made for getting dying declaration of deceased recorded through Executive Magistrate, we are unable to give any undue significance to said submission canvassed and by and large connected with the conduct of the Investigating Officer. At any rate, we do not find any circumstance surfaced on record indicating that there was a deliberate attempt on part of the investigating agency for not getting recorded the dying declaration of the deceased through Executive Magistrate. Hence, we find criticism devoid of merit.

In the context of the earlier discussion and so also regarding the appellant possessing the motive we further find that the prosecution through the evidence of PW1 Gajrabai had brought on record bi-fold aspect, i.e., after the birth of first daughter, the appellant having started suspecting the fidelity of the deceased and on said count ill-treating and beating her and herself having persuaded to Kusum to wait and watch for improving the situation in future. Needless to add such unshattered evidence clearly reveals that the appellant was having motive for assaulting his wife. Similarly, the evidence of PW1 also reveals that while she had been to Jagdale Mama Hospital at Barshi, after receipt of information regarding the incident, at the said hospital, deceased Kusum having made oral dying declaration to her that she was assaulted by the appellant with sickle.

In addition to the aforesaid, the reference to the evidence of PW4 neighbour of the appellant reveals that on the relevant day along with the deceased she had been for the work. Her evidence further reveals that the appellant had been to said field at about 12.00 noon and called deceased and taken her away. The unshattered evidence of PW4 to such effect not only corroborates the evidence of eye-witnesses and so also the evidence pertaining to the dying declaration, but also assures the truthfulness of the prosecution case.

In addition to the aforesaid, considering the other circumstances established by the prosecution, reference to the evidence of PW7 and PW12 reveals that through their evidence the prosecution has duly established that bloodstained sickle concealed by the appellant was discovered and seized by the police by drawing memorandum and discovery panchanama Exh. 23 and Exh. 24. After perusal of the evidence of both the witnesses, we find that except error made by PW7 in telling the date on which the statement leading to the discovery was made by the appellant, any other disparity was brought on record. After having due regard to the fact that PW7 had also acted as a panch witness at the time of arrest of the appellant, and the evidence of PW12 being convincing and cogent regarding the date on which the appellant had made the said statement, the trial Court has not given due importance to the said disparity for the cogent reasons recorded. We are unable to find any fault with the said reasoning given by the trial Court. Similarly, the prosecution through evidence of investigating officer has also brought on record that at the time of arrest, he had seized bloodstained shirt and other clothes on the person of the appellant. After considering the C.A. Report placed on record regarding seized articles sent by the investigating officer to the C.A., we find that though group of human blood found on shirt of the appellant and sickle recovered at his behest could not be determined, still by said evidence the prosecution has established that human blood was found on both said articles. Failure on part of the appellant to explain the said incriminating circumstance leads to the conclusion of the said blood being that of deceased. In addition to the aforesaid we also find that other findings of Chemical Analyser regarding finding of human blood upon the clothes of the deceased and the place at which the incident had taken place also corroborates the evidence of eyewitnesses and so also the matters stated in the dying declaration, which in turn is also corroborated by the evidence of eye-witnesses.

In the premises aforesaid, we are unable to find any fault with the finding arrived by the trial Court of the appellant being guilty for the causing the injuries to deceased which has ultimately resulted in her death as established by the said evidence.

The learned defence counsel submitted that even accepting the said evidence as it is and the same establishing that he has assaulted his wife by means of sickle, still the case would not fall u/s 302 of I.P.C. as erroneously concluded by the trial Court. It was urged that considering all relevant facets connected with the act occurred on said day on part of the appellant reveals that it would be covered within four corners of the Section 304 of I.P.C. It was rightly urged that the evidence on record and particularly that PW2 and PW3 and to some extent the matters stated in the dying declaration reveals that the quarrel had ensued in between the couple. It was urged that in all probability the quarrel had occurred on said day in view of the appellant having suspected his wife coming out of the house to have illicit relationship with somebody. It was urged that the evidence clearly denotes that during the sudden quarrel occurred in between the husband and wife in the heat of moment, the appellant had given a blow of sickle/khurpe in his hand upon the neck of his wife. It was urged that merely because the appellant had carried sickle with him would be unable to lead to conclusion that the incident was out come of any plan made by the appellant, as carrying of such weapon by the agriculturist is common feature in the villages. It was urged that though the appellant had an opportunity to give multiple blows after giving a blow he had ran away speaks volume regarding his ''intent''. It was urged that not giving a multiple blows and fleeing away and even the deceased not succumbing to the death on the spot and being alive for seven days clearly denotes that the appellant was not entertaining any intention to cause the death or cause any injury to his wife likely to cause her death. It was urged that since the case of the appellant would be covered by Exception 4 of the Section 300 of I.P.C. the offence occurred at his hand would be covered u/s 304 of I.P.C.

After careful considering the evidence of PW2 and PW3 and matters from dying declaration Exh. 21, we find the substance in the submission canvassed that on the day of incident the quarrel was in progress in between the said couple. Similarly, considering the injuries noted by PW5 and so also account of incident as revealed from the evidence of both the eye-witnesses as well as matters stated in the dying declaration, we find that the appellant has not indulged in giving the multiple blows to the deceased. Thus considering the nature of the injuries sustained by the deceased, herself being alive for about 7 days are clearly militates against the appellant entertaining the intention of causing the death of his wife and/or causing her such injury likely to cause her death. However, considering the nature of weapon used by the appellant and the place at which the blow was given by him, the knowledge can be attributed to him, of his such act likely to cause the death of his wife. In view of same, we find force in the submission that offence occurred at the hands of the appellant would not transcend beyond the offence u/s 304, Part-II of I.P.C. in the premises of aforesaid, we partly allow the appeal and quash and set aside the conviction of the appellant for the offence u/s 302 of I.P.C. and sentence imposed, by altering the conviction of the appellant u/s 304, Part-II of I.P.C. and sentencing him to suffer R.I. for seven years and to pay fine of Rs. 1000/-, and in default of payment of fine, to suffer further R.I. for two months. The appeal stands disposed of in aforesaid terms.