Kashinath Tanaji Pawar vs The State Of Maharashtra on 31 August, 2017

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.)

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