IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1103 OF 2012
KASHINATH TANAJI PAWAR )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Ms.N.S.Ayubi, Advocate for the Appellant.
Mr.Vinod Chate, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 31st AUGUST 2017
ORAL JUDGMENT :
1 By this appeal, the appellant / convicted accused is
challenging the judgment and order dated 7 th May 2012 passed by
the learned Additional Sessions Judge, Karad, in Sessions Case
No.31 of 2010, thereby convicting him for offences punishable
under Sections 340 (Part I) and 323 of the Indian Penal Code
(IPC). For the offence punishable under Section 304 (Part I) the
appellant / accused is sentenced to suffer rigorous imprisonment
for 10 years apart from directing him to pay fine of Rs.100/-. For
the offence punishable under Section 323 of the IPC, he is
sentenced to suffer rigorous imprisonment for 6 months apart
from directing him to pay fine of Rs.50/-. The appellant / accused
is, however, acquitted of the offence punishable under Section
498A of the IPC.
2 Briefly stated, facts leading to the institution of the
present appeal can be summarized thus :
(a) The appellant / accused married Swati in the year 2007. Out
of this wedlock, he has begotten two children. At the time of the
incident in question, his elder son was two years old whereas his
young daughter was just three months old. The appellant /
accused was working at Dubai for earning his livelihood. He had
returned to his native place village Karad just two months prior to
the incident in question.
(b) On 19th March 2010, the incident in question took place. On
that day, son of the appellant / accused was ailing and therefore,
PW6 Shobha Kanwar – cousin of Swati Pawar (since deceased)
came to her house for enquiring about the health of son of Swati
Pawar. In presence of PW6 Shobha Kanwar, the appellant /
accused abused and beat his wife Swati Pawar. PW6 Shobha
Kanwar returned to village Natoshi where PW1 Santosh Kawar-
brother of deceased Swati Pawar used to reside. She narrated the
incident to PW1 Santosh Kawar. As village Kusrund and Natoshi
were situated at short distance, PW1 Santosh Kawar decided to go
to the house of his sister Swati Pawar, who had suffered beating at
the hands of her husband i.e. the appellant / accused.
(c) According to prosecution case, when PW1 Santosh Kawar
reached the house of his sister Swati Pawar, the appellant /
accused asked him as to why he has come there. PW1 Santosh
Kawar informed the appellant / accused that he came to meet his
sister. Then the appellant / accused gave abuses to PW1 Santosh
Kawar. When Swati Pawar tried to intervene, the appellant /
accused slapped her in presence of her brother PW1 Santosh
Kawar. Hence, Swati Pawar left the house of the appellant /
accused for proceeding to her paternal house with PW1 Santosh
Kawar.
(d) When PW1 Santosh Kawar and his sister Swati Pawar were
proceeding to village Natoshi, near a streamlet called as ‘Molaicha
Odha’, the appellant / accused came from behind them armed
with an axe and gave a blow thereof on head of Swati Pawar.
Then he immediately assaulted PW1 Santosh Kawar from blunt
side of the axe and fled from the spot.
(e) People from the vicinity gathered on the spot and took Swati
Pawar as well as PW1 Santosh Kawar to Rural hospital, Patan.
Swati Pawar succumbed to the injuries on the way to hospital.
Report of the incident in question came to be recorded by PW7
Dayanand Dhome, P.I. of Patan Police Station, by making inquiry
about the incident from PW1 Santosh Kawar, who was taking
medical treatment at the said hospital. Accordingly, Crime No.19
of 2010 came to be registered against the appellant / accused for
offences punishable under Sections 302, 323 and 498A of the IPC.
The spot of the incident came to be inspected and incriminating
articles were seized from the spot. On 20 th March 2010 itself, the
appellant / accused came to be arrested and on the basis of his
voluntary disclosure statement recorded on 23 rd March 2010,
blood stained axe came to be seized. Clothes of informant PW1
Santosh Kawar and that of the appellant / accused came to be
seized. Clothes of the deceased were also seized. Statement of
witnesses came to be recorded and on completion of investigation,
the appellant / accused was charge-sheeted.
(f) The appellant / accused abjured his guilt when charge for
offences punishable under Sections 302, 323 and 498A of the IPC
were explained to him. He claimed trial by taking defence of total
denial. In order to bring home the guilt to the appellant /
accused, prosecution has examined in all seven witnesses.
Informant Santosh Kawar is examined as PW1 and the First
Information Report (FIR) lodged by him on 19th March 2010 is at
Exhibit 21. Dr.Dattatraya Dongare from Rural hospital, Patan, is
examined as PW2. He had conducted autopsy on dead body of
Swati Pawar. The report of postmortem examination is at Exhibit
28. This witness has also examined injured PW1 Santosh Kawar
whose report of medical examination is at Exhibit 30. Suresh
Shirke, a panch witness to the spot panchnama is examined as
PW3. The spot panchnama is at Exhibit 32. PW4 Ramchandra
Kadam is a panch witness to the arrest panchnama and seizure of
clothes from the appellant / accused on 20 th March 2010.
Dyanadeo Kanwar, a panch witness to the disclosure statement
and the resultant recovery at the instance of the appellant /
accused is examined as PW5. He, however, turned hostile to the
prosecution. Shobha Kanwar, cousin of deceased Swati Pawar, is
examined as PW6. Investigating Officer P.I. Dayanand Dhome is
examined as PW7.
(g) Upon hearing the parties, after conclusion of the trial, the
learned trial court by the impugned judgment and order dated 7 th
May 2012 was pleased to convict the appellant / accused for
offences punishable under Sections 304 (Part I) and 323 of the
IPC. The appellant / accused was then sentenced as indicated in
the opening paragraph of the judgment.
3 I have heard Ms.N.S.Ayubi, the learned advocate
appearing for the appellant / accused at sufficient length. By
taking me through the entire record and proceeding, the learned
advocate argued that evidence of the prosecution suffers from
serious infirmity. Except interested witnesses, nobody else is
examined by the prosecution. She further argued that evidence of
PW1 Santosh Kawar shows that on the way to village Kusrund, he
met one Nathuram Pawar and told him the cause of going to
village Kusrund. However, this Nathuram Pawar is not examined
by the prosecution. The learned advocate further argued that, as
stated by PW1 Santosh Kawar, soon after the incident, many
people had gathered on the spot. However, none of them is
examined by the prosecution. The learned advocate further
argued that evidence of PW1 Santosh Kawar shows that Swati
Pawar was assaulted by one assailant. Description of this assailant
is not reflected from cross-examination of PW1 Santosh Kawar,
and therefore, his evidence is unreliable. The learned advocate
further argued that statement of neighbours of the appellant /
accused are not recorded by the Investigator in order to show that
PW6 Shobha Kanwar had visited the house of the appellant /
accused and deceased Swati Pawar on the day of the incident.
Similarly, statements of neighbours are also not recorded to point
out that deceased Swati Pawar had left the house along with PW1
Santosh Kawar. This creates infirmity in the prosecution case, and
therefore, the appellant / accused deserves acquittal.
4 I have also heard the learned APP, who vehemently
argued that evidence of injured witness i.e. PW1 Santosh Kawar is
sufficient to uphold the conviction. His evidence is corroborated
by other evidence adduced by the prosecution on record.
5 I have carefully considered the rival submissions and
also perused the record and proceedings including deposition of
witnesses.
6 Factum of homicidal death of Swati Kashinath Pawar is
not in challenge. Evidence of autopsy surgeon PW2 Dr.Dattatraya
Dongare from Rural hospital, Patan, is sufficient to hold that Swati
Kashinath Pawar died homicidal death on 19th March 2010.
Evidence of this autopsy surgeon coupled with contemporaneous
report of postmortem examination (Exhibit 28) of dead body of
Swati Pawar shows that deceased Swati Pawar had suffered
incised wound over fronto parietal region admeasuring 12 cm x 3
cm x cavity deep. This external injury was corresponding to
fracture of fronto parietal bone. In the opinion of autopsy
surgeon, deceased Swati Pawar died because of asphyxia caused
due to head injury which was ante mortem in nature. With this
evidence, coupled with undisputed inquest panchnama at Exhibit
11, the fact that Swati Kashinath Pawar died homicidal death on
19th March 2010 is proved by the prosecution.
7 Now let us examine whether evidence of the
prosecution establishes the fact that the appellant / accused, on
19th March 2010 gave blow of an axe on head of his wife-deceased
Swati Pawar with intention of causing her death, making his act
an offence punishable under Section 304 (Part I) of the IPC. For
proving this fact, case of the prosecution is primarily based on
evidence of PW1 Santosh Kawar – brother of deceased Swati
Pawar and to some extent on evidence of her cousin PW6 Shobha
Kanwar.
8 The episode commenced with the visit of PW6 Shobha
Kanwar to the house of the appellant / accused and his wife Swati
Pawar (since deceased). As seen from version of PW6 Shobha
Kanwar, she had been to the house of the appellant / accused for
enquiring about health of their elder son Yash. At that time, the
appellant / accused picked up a quarrel and slapped his wife
Swati Pawar in presence of this witness. PW6 Shobha Kanwar, as
deposed by her, then returned back to village Natoshi and
disclosed this fact to PW1 Santosh Kawar – brother of Swati
Pawar.
9 Evidence on record indicates that matrimonial life of
deceased Swati Pawar had seen rough weather and therefore, her
brother PW1 Santosh Kawar decided to visit Swati Pawar
immediately on the very same day. Accordingly, as seen from his
evidence, he left his house and went to the house of his deceased
sister Swati Pawar at village Kusrund. No doubt, on the way, PW1
Santosh Kawar met Nathuram Pawar, but this meeting cannot be
given undue importance. What happened when he actually visited
the house of his deceased sister Swati Pawar and her husband
Kashinath Pawar i.e. the appellant / accused is more material. In
the words of PW1 Santosh Kawar, this is what, which had
happened when he visited house of the appellant / accused and
Swati Pawar :
“Thereafter, I went to house of my sister Swati. My
sister and husband were present at the house.
Accused asked me why I had come there. I told him to
have come to see my sister. On that accused started
abusing me. My sister asked the accused why he was
abusing me. On that accused dealt two to three slaps
below Swati’s ear. I said to the accused I would take
Swati to my house and that he should look after the
children. Thereafter, I and Swati started for my house
at Natoshi by the Kusarund Shindewadi road.
We came to a water stream which is known as Malai-
Devi Odha. At that time, it was about 8.00 in the
evening. The accused came running with an axe in his
hand. He came in front of us and he dealt a blow to
the head of Swati by the sharp side of the axe. Swati
suffered bleeding injury and fell down. I went near
Swati. On that the accused dealt blows by the blunt
side of the axe to my forehead and arm. I shouted
loudly. The people from the vicinity gathered there.”
10 The eye witness account of the incident coming on
record from PW1 Santosh Kawar as such shows that when he saw
his sister was subjected to beating by the appellant / accused, he
asked his sister Swati Pawar to accompany him to her parental
house at village Natoshi by telling the appellant / accused to look
after his children. Cross-examination of PW1 Santosh Kawar
shows that, at that time, elder son of the appellant / accused and
deceased Swati Pawar was aged about 2 years, whereas younger
child was just 3 months old. PW1 Santosh Kawar denied the
suggestion that he uttered that the appellant / accused would be
compelled to come to his residence when children became hungry.
This suggestion was denied by PW1 Santosh Kawar but the fact
remains that undisputedly Swati Pawar – wife of the appellant /
accused accompanied her brother PW1 Santosh Kawar to leave
her matrimonial house, leaving her tiny tots at the mercy of the
appellant / accused. This had infuriated the appellant / accused
and by chasing PW1 Santosh Kawar and his wife Swati Pawar, he
had assaulted both of them and the assault on his wife Swati
Pawar proved to be fatal.
11 So far as actual assault on Swati Pawar and PW1
Santosh Kawar is concerned, cross-examination of PW1 Santosh
Kawar does not reflect any material to disbelieve his version about
the incident. Ultimately, PW1 Santosh Kawar had also suffered
blows from blunt side of the axe, given by the appellant / accused.
Evidence of PW2 Dr.Dattatraya Dongare on this aspect is very
clear. PW1 Santosh Kawar has suffered two contused lacerated
wounds – one admeasuring 1 cm x ½ cm x ½ cm over forehead
and another on the right forearm admeasuring 1½ cm x ½ cm x ½
cm. There was dislocation to his right shoulder as seen from
evidence of PW2 Dr.Dattatraya Dongare and the contemporaneous
medical certificate at Exhibit 30 issued by the doctor. It is well
settled that evidence of an injured witness carries great weight. In
the case in hand, PW1 Santosh Kawar, apart from being an injured
witness, is also brother of deceased Swati Pawar. Being the
nearest relative of deceased Swati Pawar, it is hard to believe that
he will leave the real culprit and would falsely implicate the
appellant / accused in the crime in question. There is no reason
for PW1 Santosh Kawar to shield the real culprit and to rope in an
innocent person.
12 Though evidence of PW1 Santosh Kawar about the
incident in question is found to be cogent and trustworthy,
without placing explicit reliance on it, let us see whether his
evidence is gaining corroboration from other material on record.
As seen from evidence of PW1 Santosh Kawar, the appellant /
accused had left the spot immediately after the incident along
with the weapon of the offence. The appellant / accused came to
be arrested on the next day i.e. on 20th March 2010. At that time,
as seen from evidence of PW4 Ramchandra Kadam – a panch
witness, so also from evidence of PW7 P.I. Dayanand Dhome,
Investigator, clothes of the appellant / accused were stained with
dried blood. Evidence of PW7 P.I. Dayanand Dhome shows that,
while in custody, the appellant / accused had given a voluntary
disclosure statement, which ultimately resulted in recovery of a
blood stained axe. Memorandum statement Exhibit 37A and the
resultant recovery panchnama Exhibit 38A is duly proved by PW7
P.I. Dayanand Dhome. In the matter of Modan Singh Vs. State of
Rajasthan 1, it is held by the Hon’ble Apex Court that if evidence
of Investigating Officer is found to be trustworthy, then hostility of
panch witnesses to the Memorandum statement and resultant
recovery panchnama is of no consequence. Careful scrutiny of
evidence of PW7 P.I. Dayanand Dhome does not show any material
to conclude that his evidence on the aspect of disclosure statement
and resultant recovery of an axe at the instance of the appellant /
accused is doubtful. Ultimately, during chemical analysis, the said
axe was found to be stained with human blood.
13 In presence of PW4 Ramchandra Kadam, PW7 P.I.
Dayanand Dhome seized clothes of the appellant / accused after
his arrest. Exhibit 34 is the panchnama to seizure of clothes of the
appellant / accused. There is slight misdescription about the
clothes, but ultimately, those clothes were found to be containing
human blood. Baniyan seized from the appellant / accused was
stained with blood of “A” group. Though postmortem blood of
deceased Swati Pawar was not sent for chemical analysis, the fact
remains that the only person who profusely bled in the incident
was Swati Pawar, who ultimately succumbed to the head injury.
Her seized clothes were found to be stained with blood of “A”
group. This fact indicates that deceased Swati Pawar was having
blood of “A” group, which was ultimately found on clothes of the
appellant / accused.
14 This evidence adduced by the prosecution is sufficient
to show that it was the appellant / accused who had inflicted a
blow of an axe on head of the deceased Swati Pawar causing her
death. Now the question which remains for consideration is what
offence is made out by the prosecution. As stated in foregoing
paragraphs, evidence of PW1 Santosh Kawar reflects that the
deceased Swati Pawar had left her matrimonial house leaving her
two children with the appellant / accused. Out of those two
children, one was just a sucking child aged about 3 months. The
learned trial court, in this fact situation, came to the conclusion
that the appellant / accused was deprived of his power of self
control and was overwhelmed by passion, which ultimately
resulted in commission of the crime in question by him. Careful
scrutiny of evidence on record unerringly points out that the
appellant / accused hit Swati Pawar by the sharp side of axe
causing her death with requisite intention. However, surrounding
circumstances, as disclosed earlier, does not show that this act
amounts to an offence of murder punishable under Section 302 of
the IPC. The prosecution has made out the offence punishable
under Section 304 (Part I) of the IPC and the trial court has rightly
convicted the appellant / accused on this count.
15 Medical evidence coming from mouth of PW2
Dr.Dattatraya Dongare fully corroborates version of PW1 Santosh
Kawar regarding the offence punishable under Section 323 of the
IPC. Hence, conviction of the appellant / accused on this count
cannot be faulted with.
16 The appellant / accused is sentenced to suffer rigorous
imprisonment for 10 years for the offence punishable under
Section 304 (Part I) of the IPC and for the offence punishable
under Section 323 of the IPC, he is sentenced to suffer rigorous
imprisonment for 6 months. Considering the circumstances in
which the crime in question was committed, I see no reason to
interfere with the sentence awarded to the appellant / accused for
offences proved against him, as the same is appropriate.
17 In the result, the appeal fails, and therefore the order:
ORDER
The appeal is dismissed.
(A. M. BADAR, J.)