Mahesh vs State of Maharashtra

A.B. Chaudhari, J—Being aggrieved by the Judgment and Order dated 04th June, 2012, passed by learned District Judge -6 and Additional Sessions Judge, Nagpur, in Sessions Trial No. 346 of 2011 convicting the appellant-accused of offence punishable under Section 302, Indian Penal Code, and sentencing him to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 1,000/-, in default, to suffer Simple Imprisonment for three months, the present appeal was filed by the appellant -Mahesh.

Facts:

The appellant-accused had married deceased Sonu following the love affair, as they were nearby neighbourers residing at Takiya, Dhantoli, Nagpur, though they belonged to different castes. Hardly, after two months of the marriage, there used to be quarrels between them and Sonu went to her parents'' house, which is just near the house of the accused. The accused used to suspect her. In fact, she had lodged a complaint with Police Station about the assault on her by him and offence under Section 324, Indian Penal Code, was registered against him.

On the fateful day, namely on 20th May, 2011, when Sonu was at her parents'' house, appellant went to the house of her father and threatened younger daughter of complainant Narayan, her father, that he would kill Sonu. At about 11.35 in the night, appellant came in front of the house of Sonu and assaulted her on her head by means of a concrete stone and, thus, committed her murder. The incident was witnessed by her parents and younger sister of Sonu. The matter was reported to Dhantoli Police who arrested the accused on the next day, i.e., on 21st May, 2011. Discovery was made. Investigation was completed. Charge-sheet was filed. Trial was held. Trial Court heard the evidence and thereafter convicted the appellant as above. Hence this appeal.

Arguments:

In support of the appeal, learned Advs. Mr. A.K. Bhangde and Mr. Daruwal for the appellant submitted that the learned Trial Judge relied upon the testimony of interested witnesses, i.e., father, mother and sister of deceased Sonu. They being the interested witnesses, their evidence should have been rejected, apart from the fact that the same did not inspire confidence. The counsel for the appellant then submitted that the prosecution completely failed to prove its case, as it was impossible to see the alleged murder at the night time and there was no evidence about any electric illumination on the spot. In the alternative, the counsel for the appellant then submitted that no offence under Section 302 for murder was proved, and at the most, the case would fall under Section 304 Part II, Indian Penal Code. In support of the arguments, the counsel cited the following Supreme Court judgments:-

[a] K. Ravi Kumar Vs. State of Karnataka, (2014) 4 CCR 578 : (2015) 1 Crimes 7 : (2015) 1 DMC 159 : (2015) 1 JCC 430 : (2015) 1 RCR(Criminal) 189 : (2015) 1 SCJ 514 ,

[b] Sanjeev Vs. State of Haryana [(2015) 2 SCC (Cri) 630], and

[c] Kusha Laxman Waghmare Vs. State of Maharashtra, (2014) AIRSCW 4991 : (2014) 10 SCALE 49 .

Per contra, learned APP supported the impugned Judgment and Order, and submitted that the case is one of clear evidence and there is direct evidence, since the murder was committed in front of the house of eye-witnesses and that too of their daughter. There is no rule that the interested testimony should be rejected merely because the witnesses are related. Learned APP, therefore, prayed for dismissal of the appeal.

Consideration:

We have heard learned counsel for the rival parties at length. We have seen the impugned Judgment and Order and the reasons recorded by Trial Court for recording conviction. We have examined the nature of injuries inflicted on the deceased.

Upon seeing the entire evidence in a proper perspective, at the outset we find that there is ocular evidence of witnesses in this case, fully corroborated by the FIR. The ocular evidence is in the form of evidence of Narayan Netam [PW 1], Sunita Netam [PW 2], his wife, and Poonam Netam [PW 5], younger daughter and sister of the deceased. We have carefully perused the evidence of the witnesses and cross-examination of all eye-witnesses. Instead of repeating the evidence of these eye-witnesses, we find, the following paragraph nos. 3 and 4 from the evidence of Narayan [PW 1] would be relevant:-

"3. On 20.05.2011 deceased Sonu went to distribute the invitation card of her friend''s marriage. At about 2.30 p.m., accused had been to my house. My three daughters were inside the house. He threatened for our life to my daughters. My daughter told me this incidence on phone. Therefore, I returned to the home at about 3.00 p.m. Sonu had gone to distribute the invitation cards. I tried to search her. But I could not found her. Therefore, I returned to home. In the evening we took dinner and after seeing TV we went to sleep. I heard noise of stone on my door. Therefore, I opened the door. I saw Sonu was lying on earth outside the door. Accused was sitting on her chest. Accused was assaulting on the head of Sonu by a stone. He assaulted on her head for four times. I cried and tried to save her. Accused ran away from the spot and I found Sonu was dead.

Sonu was lying in pool of blood. Therefore, I went to Dhantoli police station and lodged the report. Sonu was having injuries over her head. Accused used to doubt on her chastity. Therefore, accused murdered Sonu..."

Similar is the evidence of PW 1''s wife and daughter, which we need not quote to avoid repetition.

The above evidence of the eye-witness clearly shows that upon hearing the noise of stone outside the house, Narayan [PW 1] opened the door to see that his daughter Sonu was lying on the ground outside the door. Appellant was sitting on her chest, and was assaulting on her head by means of a stone in his presence. On his crying to save her, the accused ran away, leaving her dead. The cross-examination of this witness does not show any damage to his evidence. The FIR that is seen by us fully corroborates his evidence. We have seen the injuries caused to the deceased and we are fully satisfied that the injuries are of serious nature. The appellant caused brutal murder of a young girl in his own whims and caprice for no reasons. In fact, he himself married the deceased by making love marriage and within two months, started suspecting her for which there was no justification and, in fact, the appellant had no justification. The injuries caused to deceased show how brutally she was murdered. We then agree with the learned Trial Judge, who, on the basis of the evidence of the above witness, held that the prosecution proved its case beyond any doubt.

Then there is evidence of discovery which has been believed by the Trial Judge. The discussion in that respect is in para 18 of the judgment which we quote hereunder:-

"18. Though the panch to the spot panchanama has not supported, but the spot of incident is near the house of complainant, PW 1 Narayan Netam. The version of PW 1 Narayan Suryabhan Netam, PW 2 Smt. Sunita Narayan Netam and PW 5 Punam Narayan Netam that blood was lying on the spot and police seized blood from the concrete stone and stone from the spot, this version is not challenged by the accused, which is also corroborated by the spot panchanama and version of PW 9 Amar Surenshrao Chore, the investigating Officer. Hence, the version of DW 1 Pundlik cannot be believed. Not only this though the panch witnesses have not supported the memorandum and recovery at the instance of accused, but there is specific version of PW 9 Amar Surenshrao Chore, the investigating Officer that on 23.5.2011 the accused made voluntary statement with regards to concealment of clothes, which he wore at the time of commission of crime. Further version of PW 9 Amar Surenshrao Chore goes to show that the accused took them to his house and took out on Sando Baniyan and the same was seized by police under panchanama, why the police officer would depose against the accused. The clothes Article 6 & 7 were blood stained clothes and as per C.A. Report Exh.18, the blood group of said blood stains were of A B group. It reveals from the C.A. Report Exh.18 that the blood collected from the spot, rather near from the dead body and blood on the clothes of the deceased, is of A B Group. Though, no blood sample of deceased was taken, but the fact that blood collected from the spot of incident in bottle, rather with the help of cotton swab, as well as the blood appearing on the clothes of the deceased is of A B group. So in these proved facts and circumstances, it can safely be presumed that the blood group of deceased was AB Group. Not only this C.A. Report Exh.18 further reveals that the blood appearing on concrete stone is also appearing of A B Group. Therefore, the version of PW 1 Narayan Suryabhan Netam, PW 2 Smt. Sunita Narayan Netam and PW 5 Punam Narayan Netam are also corroborated by C.A. Report. Though, the attempt was made to doubt over presence of PW 5 Punam, as her version goes to show that she used to stay at Hostel, but further version in the month of May after examination is over, she was at her parents'' house, therefore, on 20th May, 2011 she was at her parents'' house."

The appellant examined the defence witnesses. We have seen the evidence of the defence witnesses. The defence is liable to be rejected, since the defence of accidental death was taken, so also the plea of alibi was set up by the appellant. We have read the defence evidence and we think it is not necessary for us to repeat the evidence of the defence witnesses and instead we quote paras 13 and 15 from the judgment of Trial Court in that behalf, which read thus:-

"13. Before evaluating the evidence which are brought on record by the prosecution, let me deal with the defence of the accused. It appears from the version of defence witnesses that the defence of accused is of two fold. Firstly, it is accidental death, secondly the plea of alibi. Let us deal with first defence. According to accused, there is public tap in front of house of Narayan and people used to gather there and there used to quarrel amongst the neighbours on the count of fetching water. The accused has come with a specific defence that quarrel took place near the public tap in front of the house of Narayan Netam between the family members of Netam and neighbour on the count of fetching water. The defence could brought in cross examination of all the eye witnesses that there is public tap in front of the house of Narayan Netam and there used to be noise for fetching water from public tap and sometimes there used to quarrel on that count. It is also brought on record that people used to accumulate in front of house of Narayan Netam. On this background, the defence has examined DW 1 Laxmi Raju Soni, who is neighbour of Narayan Netam. She deposed that Narayan Netam resided 4 to 5 houses away from her house; Near the house of Netam there is public water tap; in summer days, water in the said tap use to be supplied at late night; and There used to que of neighbors for fetching water. She has further deposed that in the month of May, on one night there was quarrel between mother of deceased and another lady; and The quarrel might be on the count of taking water. It is further deposed by this witness that Netam and her daughter, Bali @ Sonu might have come there; lateron I came to know that Bali might have fallen and would have received injury."

"15. Now let us turn second defence of accused. It appears from the version of the DW 4 Mukesh Choudhary that accused also took defence of alibi. For that purpose, the accused has examined DW 4 Mukesh Choudhary. According to his version, the accused was working with him and in summer there used to good order of food. Further version of this witness goes to show that in last week of May, 2011, the accused was working with him; This witness sent the accused to Ladies Club for catering work after 20th May for 3 days; and according to this witness in the working of caters, it takes 2.00 a.m., to complete the work. The version of this witness is denied by the learned APP in cross-examination. Taking help of the version of this witness, the learned advocate for the accused vehemently submits that this witness was working with accused and is an independent witness, therefore, his version should be believed that the accused was on work at the time of alleged incident. Let me state that bare perusal of this witness, goes to show that, he sent the accused in Ladies Club for catering work after 20th May for 3 days. In this way, this witness deposed that after 20.5.2011 i.e., from 21.5.2011 he sent the accused to ladies Club for work. But bare perusal of arrest from Exh.8 which is rather admitted by the accused, goes to show that accused was arrested on 21.5.2011. If the accused was in custody from 21.5.2011, how it is possible for this witness to send the accused to Ladies Club for catering work on 21.5.2011. Even otherwise, this witness did not speak about 20th May, on which date, according to the prosecution, the alleged incident happened. So, even the version of this witness is believed, the accused could not establish plea of alibi..."

Having, thus, rejected the evidence of defence witnesses and having found that the prosecution proved its case with the help of eye-witnesses, we do not think, the Trial Court committed any error.

The next question is about interestedness of the witnesses, i.e., close relations of deceased Sonu. There is no rule that the testimony of the interested witnesses should always be rejected outright. On the contrary, the rule is that their evidence should be cautiously analyzed and should not be infirm. On reading of the evidence of these three eye-witnesses, including the cross-examination, we absolutely find no infirmity and on the contrary, we find consistency in their evidence. We have closely seen their evidence and do not find any reason to reject their evidence only because they are related to the deceased.

The decisions cited by the learned counsel for the appellant do not apply in the case at hand, since we have already found that the appellant committed brutal murder of a young girl for no reason and he repeatedly crushed her head by means of a concrete brick, that too after giving an open threat to her parents that he would commit her murder. Thus, he had already planned to commit murder and with that he had given the threat and thereafter having found Sonu in the Galli or lane, he suddenly attacked her and sat on her chest and committed her murder. The submission that the offence was not of culpable homicide amounting to murder does not at all appeal to us. That being so, we make the following order:-

ORDER

[a] Criminal Appeal No. 27 of 2013 is dismissed.

[b] Fees payable to learned Adv. [appointed] for the appellant are quantified in a sum of Rs. 5,000-00 [rupees five thousand only].