Dismissed

Namdeo Chhabu Pawar v. the State of Maharashtra

Bombay HC6 Aug 2013APEAL/253/2010

Case brief

AI extract

What is this about?

The High Court dismissed an appeal and held the criminal application infructuous. Upholding the lower court's conviction of the appellant under Sections 302, 324, and 309 IPC, the court found the trial court correctly appreciated the evidence of the sole eyewitness and medical experts in a murder case.

What did the court decide?

Appeal dismissed; criminal application disposed of as infructuous.

Namdeo Chhabu Pawar Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 253 OF 2010

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WITH

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CRIMINAL APPLICATION NO. 906 OF 2013 IN

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CRIMINAL APPEAL NO. 253 OF 2010

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Namdeo Chhabu Pawar

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.. Appellant

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(Org. Accused)

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State of Maharashtra .. Respondent

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Mr. Arfan Sait, Advocate appointed for the Appellant

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Mrs. V.R. Bhonsale, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ

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DATE : AUGUST 6, 2013.

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ORAL JUDGMENT [PER MRS. MRIDULA BHATKAR, J.] :-

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The appellant-original accused has preferred this appeal

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against the judgment and order dated 31.03.2009 passed by the

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Additional Sessions Judge - 2, Nasik in Sessions Case No. 155 of

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By the said judgment and order, the learned Sessions

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Judge convicted the appellant for the offence punishable under

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Section 302 of IPC and sentenced to suffer imprisonment for life

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Pg 1 of 13

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and fine of Rs. 5000/- in default R.I. for three months. The appellant was also convicted for the offence punishable under Section 324 of IPC and sentenced to suffer rigorous imprisonment for six months and fine of Rs. 500/-, in default SI for 15 days. Further the appellant was convicted for the offence punishable under Section 309 of IPC and sentenced to suffer simple imprisonment for six months and fine of Rs. 500/-, in default SI for 15 days. The learned Sessions Judge directed that all the sentences awarded to the appellant shall run concurrently.

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It is the case of the prosecution that the appellant has

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committed murder of his wife Aruna on 02.11.2005 at the residence of his father-in-law. Deceased Aruna had come to her father's house at Khadak-Tale, Dist. Nasik for delivery. She was pregnant of 8 months. Her husband i.e the appellant had come to stay at the house of his father-in-law 15 days prior to the incident.

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It was a Diwali day. After dinner they all slept. PW 4 Sushila who

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was sleeping beside deceased Aruna, got up after sometime and

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she saw the appellant sitting on the chest of Aruna and giving

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Pg 2 of 13

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blows of the knife on the person of Aruna. PW 4 Sushila gave call

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for help. Her grandfather Arjun rushed to the spot. The appellant also stabbed himself and caused injuries. Arjun i.e the grandfather of Sushila went to his master's house i.e PW 1 Pandurang Pawar and narrated the incident. PW 1 Pandurang Pawar went to the hut of Arjun which was in his field and found Aruna was in dead condition inside the hut and by her side the appellant was also lying but he was conscious. PW 1 Pandurang Pawar went to Kalwan Police Station and gave a complaint. The Police registered the offence as C.R. No. 86 of 2005 against the appellant.

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2.1 Aruna was taken to Kalwan Cottage Hospital. There she was

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declared dead. Her body was sent for postmortem. Police came to the spot. They drew the spot panchnama (Exh. 26). The Police seized the clothes of the deceased on 03.11.2005 under panchnama (Exh. 22) in presence of panch witness PW 2 Bacchav. Inquest panchnama was conducted (Exh. 24) in presence of PW 3

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Dattu Pawar. PW 5 Dr. Smita Malpure who conducted the

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Pg 3 of 13

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postmortem on the dead body of Aruna opined that the cause of death was hemorrhagic shock and haemopnuemothorax due to multiple wounds. The postmortem notes were produced at Exh. 29.

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2.2 The appellant being injured was sent for medical

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examination at Kalwan Cottage Hospital and PW 8 Dr. Avinash Mavachi examined and treated the appellant on 03.11.2005. PW 4 Sushila, the sister of the deceased who was an eye witness to the incident, also injured in the incident. She was also given treatment at Kalwan Cottage Hospital. PW 7 Dr. Parag Pagar examined Sushila and found incised wound on left side of her neck. The police recorded the statements of the witnesses. They sent clothes of the appellant and the deceased to C.A. Blood group of the deceased was found "O" and the blood group of the deceased was found "B". After completion of the investigation, police submitted the charge sheet in the Court of Magistrate. The learned Magistrate committed the case to the Court of Sessions.

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Pg 4 of 13

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It is a full proof case against the appellant. The complainant

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PW 1 Pandurang Pawar was the landlord of a field at Village Khadak-Tale, Tal. Deola, Dist. Nashik. Ashok Arjun Gaikwad and Arjun Gaikwad were his labourers. Ashok and Arjun were residing

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in a hut in the field of PW 1 Pandurang Pawar which was half a kilometer away from his house. Ashok and Arjun used to cultivate

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and work in the field and reside in the said hut. On 02.11.2005 at around 11.00 p.m., Arjun Gaikwad came to him. Arjun was weeping at that time. Arjun told his master i.e PW 1 Pandurang Pawar that his daughter Aruna was killed by her husband i.e the appellant and the appellant also tried to commit suicide by self infliction. PW 1 Pandurang Pawar, therefore, immediately went to the house of Arjun Gaikwad. He found deceased Aruna was dead inside the hut and beside her, the appellant was also lying but he was conscious. PW 1 Pandurang Pawar immediately went to the Police Station and lodged the FIR. Thus, this witness has reached the spot immediately after the incident and seen Aruna was lying

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dead in the hut and beside her, the appellant was lying but he was

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conscious. Arrival of PW 1 on the spot of the incident and his

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Pg 5 of 13

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action of going to the Police Station for lodging the complaint appears very natural as he was the owner of the field where the

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hut of Arjun Gaikwad was situate and in which the offence was taken place.

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Thereafter, the evidence of PW 4 Sushila Gaikwad who is the

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sole eye witness is very important. The case of the prosecution stands mainly on the evidence of this witness. The incident has taken place in November 2005 and her evidence was recorded on 06.01.2009 i.e 3 & 1/2 years after the incident. At the time of her deposition, her age was 20. Thus, at the time of the incident, she was nearly 16 & 1/2 years old. Hence, it can be said that she was matured to understand and her memory also cannot be doubted.

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The evidence of PW 4 Sushila corroborates the evidence of PW 1 Pandurang Pawar on the point of their residence in the field of PW

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1 Pawar, occurrence of the incident on 02.11.2005 during Diwali

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days and her grandfather reporting about the incident to PW 1

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Pandurang Pawar.

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Pg 6 of 13

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PW 4 Sushila has stated in her evidence that deceased

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Aruna had come to reside her paternal house for delivery purpose.

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The appellant had come to stay with them 15 days prior to the incident. Her sister i.e deceased Aruna was on family way and she was expecting in the next week. She has stated that on that night, she was sleeping by the side of deceased Aruna. The appellant was sleeping on the other side of Aruna. The hut was divided by wooden partition. Her grandfather Arjun Gaikwad was sleeping in other portion of the hut. PW 4 Sushila has further stated that she got up from the sleep as the leg of deceased Aruna touched her body. She saw the appellant was sitting on

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the chest of Aruna and stabbing her with a knife. PW 4 Sushila gave call to her grandfather who came there through the partition

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of the hut. She further deposed that she tried to caught hold of the appellant but he stabbed her on her neck from right side with the knife. She saw that the appellant also inflicted injuries on his

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own person. Her grandfather i.e Arjun Gaikwad snatched the knife from the hand of the appellant and went to the house of PW 1

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Pandurang Pawar for reporting the incident. In cross-examination

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Pg 7 of 13

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of this witness, nothing much has been elicited except some admissions.

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In cross-examination, PW 4 Sushila has stated that when she

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awaken, Aruna was lying dead and the appellant was in injured condition. On the basis of this submission, Mr. Sait, learned Advocate for the appellant tried to dislodge the evidence of PW 4 Sushila, however, this admission cannot be read in isolation. This is a sweeping statement made by the witness in crossexamination. Her evidence, if read in totality, it inspires confidence and found completely trustworthy. In crossexamination also, this witness remained consistent with her evidence in examination-in-chief. She denied that the appellant

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was sleeping outside the hut. She denied that there was no darkness but she maintained that in the hut, there was semidarkness. The efforts of Mr. Sait to create doubt that the assault might have been by some other person who came there by taking advantage of darkness and after assault, ran away, have failed

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due to consistency and truthfulness in the evidence of PW 4

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Pg 8 of 13

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Sushila. PW 4 Sushila has deposed that there was some darkness.

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She is very specific about the sleeping position of the family members. She had slept just by the side of deceased Aruna. It appears that she was fast asleep. She got up because of the movement of her sister and when she opened her eyes, she saw the appellant was sitting on the chest of Aruna and stabbing her with a knife. It was not possible to accept that there is a possibility of error in identification by PW 4 Sushila due to darkness. She knew the appellant very well. Even in the darkness, if the person is fully acquainted with, only on the basis of gait posture, one can easily identify the person. She has also categorically denied that deceased Aruna was killed by somebody else.

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The medical evidence speaks in volume the brutality in the

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assault. 29 injuries were found on the different portions of the body of Aruna. The injuries were on the chest, stomach, forehead and back. This shows how cruel the assault was. The cause of

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death was hemorrhagic shock and haemopnuemothorax due to

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Pg 9 of 13

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multiple wounds. In cross-examination, PW 5 Dr. Smita Malpure

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has stated that back injuries are possible if a person slept on

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one side . Though in the evidence of PW 4 Sushila, she has stated that the deceased being eight months pregnant used to sleep on the back, the injuries on the back are explained through the evidence of PW 5 Dr. Smita Malpure. It is to be noted that the

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Clause No. 21 in postmortem notes reveals the full term uterus with dead male fetus and fundus punctured, stab wound over sacrum of fetus. Thus, the fetus was dead due to this assault.

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It appears that the prosecution did not examine other

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witnesses i.e father or grandfather of the deceased. Reasons are not stated by the I.O. PW 6 Damodhar Nimkar for not examining these witnesses. The evidence of these witnesses would have useful for the corroboration of the evidence of PW 4 Sushila and would have cemented the case of the prosecution. The evidence of PW 5 Dr. Smita Malpure is found totally credit worthy and we do

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not find any reason to disbelieve the same. The evidence of the

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sole eye witness i.e PW 4 Sushila is sufficient to prove the guilt of

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Pg 10 of 13

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the appellant. The evidence of PW 1 Pandurang Pawar along with other circumstances that the assault took place in the hut at night and immediately it was reported by Arjun Gaikwad - the grandfather of the deceased to PW 1 Pandurang Pawar are also the aggravating circumstances.

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In the course of the assault, the appellant inflicted injuries

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on himself and also he gave blow of the knife on the neck of PW 4 Sushila. PW 4 Sushila has stated that she wanted to stop the appellant from assaulting Aruna but the appellant gave blow of the knife on her neck and thereafter, her grandfather took away the knife from the hand of the appellant. PW 4 Sushila has also stated that the appellant also inflicted injuries on himself by the

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knife. PW 7 Dr. Parag Pagar has treated PW 4 Sushila on 03.11.2005 at Cottage Hospital and found incised wound on left side of neck having dimension 3 x 2 x 1 cm. The injury was simple in nature but it was within 24 hours. PW 8 Dr. Avinash has examined the appellant on 03.11.2005 in Cottage Hospital. He found two stab injuries 4 x 4 inch and 3 x 4 inch on anterior

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Pg 11 of 13

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abdomen. He has opined that the injuries were possible by self infliction. The evidence of PW 8 Dr. Avinash corroborates the evidence of PW 4 Sushila .

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We are of the view that the appreciation of the evidence by

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the learned Sessions Judge of all these witnesses, and the circumstances, is legal. The appellant has committed murder of his wife Aruna who was eight months pregnant, he also inflicted injuries on PW 4 Sushila i.e his sister-in-law and by inflicting two injuries on his stomach, he tried to commit the suicide. Thus, the conviction of the appellant on on the three counts is fully justified. No interference is required. Appeal is dismissed.

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In view of disposal of the appeal, nothing survives in

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Criminal Application No. 906 of 2013. The Criminal Application is disposed of as infructuous.

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Office to communicate this order to the concerned prison

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Authorities and to the appellant who is in jail.

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At this stage, we must record our appreciation for Advocate

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Mr. Arfan Sait, who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the

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High Court Legal Services Committee at ` 2500.

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[MRS. MRIDULA BHATKAR, J ] [SMT. V.K. TAHILRAMANI,J ]

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jfoanz vkacsjdj

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Namdeo Chhabu Pawar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Namdeo Chhabu Pawar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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