Dismissed

Dhanaji Shantaram Bajage v. the State of Maharashtra

Bombay HC2 Aug 2013APEAL/578/2005

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal and confirmed the conviction of the appellant for murder and furnishing false information. holding that the cumulative injuries and the accused’s subsequent act of abandoning the dying victim established the intention required for murder under Section 302 IPC.

What did the court decide?

The criminal appeal was dismissed, confirming the conviction and sentence of life imprisonment and fine.

Dhanaji Shantaram Bajage Vs the State of… — Murder and Culpable Homicide | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.578 OF 2005

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Dhanaji Shantaram Bajage, Age. 33 years, Occupation Agriculture, R/o. Kiravali, Post Lonad, Taluka Bhiwandi, District – Thane. (At present in Kolhapur prison)

... Appellant.

(Orig. Accused)

v/s.

The State of Maharashtra. (through Padagha Police Station)

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...Respondent.

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Ms.A.M.Z. Ansari, Advocate appointed for the appellant. Mrs.M.M.Deshmukh, APP for the State.

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CORAM: P. V. HARDAS & REVATI MOHITE DERE, JJ.

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AUGUST 2, 2013.

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ORAL JUDGMENT (Per P. V. Hardas ,J.)

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The appellant, who stands convicted for an offence

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punishable under Section 302 and 201 of the Indian Penal

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Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo further imprisonment for six months and R.I. for three years and to pay a fine of Rs.1,000/-, in default of which to undergo further imprisonment for six months, by the Additional Sessions Judge, Thane, by Judgment dated 28th February, 2005, in Sessions Case no.225 of 2004, by this appeal questions the correctness of his conviction and sentence.

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Facts, as are necessary for the decision of this appeal, may briefly be stated thus :-

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PW.6 – P.S.I. Vilas Shivaji Jadhav, who in April, 2003

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was attached to Padgha Police Station conducted the investigation of Crime No.27 of 2004 which was registered on 11th March, 2004 on the basis of the report of the PW.1 – Sadanand Yashwant Patil at Exhibit-20. Initially, Accidental Death No.4 was registered by the Mahatma Phule Chowk Police Station, Kalyan. The enquiry of the Accidental Death was entrusted to PW.6 – P.S.I. Vilas Shivaji Jadhav. He

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accordingly proceeded to the scene of the incident and in the presence of PW.2 – Arun Krishna Patil, drew the scene of the incident panchanama at Exhibit-22. The

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appellant/accused was arrested on the same day and thereafter the clothes of the deceased were seized. The seized articles were referred to the Chemical Analyzer. The appellant/accused had submitted a report which was exculpatory in nature and explained that the deceased had sustained the injuries on account of fall from the ladder. The said report is at Exhibit-32. Further to the completion of the investigation, a charge-sheet against the appellant came to be filed.

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On committal of the case to the Court of Sessions, Trial Court vide Exhibit-2 framed charge against the appellant for the offence punishable under Section 498-A, 302, 201 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined six witnesses. The Trial Court placed implicit reliance on the evidence of PW.5 – Suraj Dhanaji

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Bajage, who was an eye witness to the incident and accordingly convicted the appellant as afore-stated while acquitting him of the offence punishable under Section 498-A of the Indian Penal Code. In order to effectively deal with the submissions advanced before us by the learned counsel appointed for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.

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The prosecution has examined PW.1 – Sadanand brother of the deceased Sangeeta, PW.1 – Sadanand states about the marriage of Sangeeta with the Appellant and behaviour of the appellant towards Sangeeta. PW.1 – Sadanand further states about the various demands of the appellant being fulfilled by PW.1 – Sadanand. The aforesaid demands related to providing a tractor, auto-rickshaw etc. to the appellant. PW.1 – Sadanand further states that on 18th March, 2004 at about 6.00 a.m. one Gagaram Thakare had received a telephone call from his daughter at Kiravali that Sangeeta had died during a quarrel with the appellant.

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On being informed about the incident PW.1 – Sadanand immediately proceeded to the house of the appellant. On reaching the house of the appellant. PW.5 – Suraj, informed him that on an earlier day there was a quarrel between the appellant and Sangeeta. The appellant had assaulted Sangeeta by a iron chair on her head. PW.1 - Sadanand made inquiry with the neighbour and accordingly lodged on report at Exhibit-20. He states that he had seen blood stains on the floor and had also seen blood stains on the wall, on the bed etc. He had also noticed a wooden log. In cross-examination he had admitted that PW.5 - Suraj was residing with him.

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The prosecution has also examined PW.4 – Barku Dhondu Thakre, uncle of the deceased Sangeeta in respect of the alleged ill-treatment. However, since the appellant has been acquitted of the offence punishable under Section 498-A of the Indian Penal Code, we refrain from making any reference to the evidence of PW.4 – Barku.

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The prosecution has examined PW.3 – Dr. Raju

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Dhondiram Lavangare, who had conducted the postmortem examination. PW.3 – Dr. Lavangare, noticed the following external injuries :-

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1. C.L.W. over left parietal region (on dome of head 5 cm X 3 cm blood coming, external skull, no Fracture seen clinically. Blood collection present beneath scalp. After opening skull-subdural haemorrhage at left parietal region and contusion on left parietal lobe of brain matter present.

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1. Swelling left frontal head and left eye with darkening of eyelid and red dye. Size 4 cm X 4 cm.

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1. Abrasion over nose 3 cm X brownish colour.

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1. Abrasion over lower chin 2 cm X 2 cm brownish colour.

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1. Abrasion, nail scratch medial to left breast over chest 3 cm X 1 cm X dark colour.

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1. Nail scratch marks around nose over face 3 to 4 in

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number. No bleeding X dark colour ½ cm.

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1. Abrasion over right side and lower aspect of neck 2 cm X 1 cm dark colour.

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1. Diffuse swelling with coloured brownish skin skin over right chest, medially and just above right breast 6 cm X 6 cm.

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Diffuse swelling (contusion) lateral aspect of right shoulder, right arm upto elbow with dark (brownish) colouration of skin 20 cm X 10 cm. After cut open injury blood collection seen in Subcutaneous fatty layer of skin and underlying tissue.

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1. Diffuse swelling over right forearm, brownish colour skin 18 cm X 10 cm upto wrist region and palm.

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1. Diffuse swelling (contusion) lateral aspect of lift shoulder upto elbow region with dark brownish skin, 20 cm X 10 cm.

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1. Diffuse swelling over whole left fore arm 18 X 7 cm dark colour skin.

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1. Contusion over frontal medial and lateral aspect of right thigh from upper thigh upto knee region 30 cm X 16-18 cm dark bluish brownish skin, after opening injury subcutaneous blood collection seen underlying tissue.

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1. Diffuse swelling with dark colour skin over left thigh near knee region 10 cm X 8 cm brownish and reddish colour.

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1. Abrasions present on back of left forearm 4 to 5 in number, 2 to 4 cm in size reddish colour.

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1. Finger nails of left and left palm slightly bluish colour.

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1. Swelling and dark coloured skin. Lateral aspect and just below left knee 8 X 4 cm.

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1. Swelling and dark coloured skin right lower leg 6 cm below right knee, 6 cm X 5 cm.

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On internal examination, he had noticed subdural

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haemorrage and had also noticed damage of parietal lobe of brain. The internal injury corresponds to the External

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injury no.1. He has further opined that the cause of the death was neurohaemorrhagic shock due to the head injury and multiple blunt injury on the body. The postmortem report is at Exhibit-12. The evidence of the PW.3 – Dr. Lavangare, further indicates that the External injury nos.3 to 7, 9, 10, 12, 15 could be caused if the victim tried to defend herself in an assault. He had opined that the injuries which were sustained by the deceased Sangeeta could be possible by the chair – Article No.1 and wooden log, Article No.2.

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The prosecution has placed reliance on PW.5 - Suraj, son of the deceased Sangeeta and the appellant. PW.5 - Suraj was a minor at the time of the incident and when he was examined by the Trial Court, the Trial Court

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had put the initial questions to PW.5 - Suraj in order to ascertain, if PW.5 - Suraj had sufficient understanding and was competent to testify. On the Court being satisfied that PW.5 - Suraj was of mature understanding, the Court recorded the evidence of PW.5 – Suraj. PW.5 - Suraj in his

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evidence has clearly stated that the appellant had closed the door of the room and assaulted the deceased Sangeeta by a chair and wooden log. In cross-examination a question was asked to him whether “did it occur that Suraj had learnt afterwards about the incident”. Suraj had answered in the affirmative to the question. Subsequently in the crossexamination again a question was put to Suraj as to “whether he witness the incident of beating”, which was also answered in the affirmative by PW.5 - Suraj. PW.5 - Suraj has stated as correct that PW.1 - Sadanand had told him to "make statement about the incident". He has also admitted that he was residing at the house of PW.1 – Sadanand, who was his maternal uncle.

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Learned Counsel for the Appellant has urged before us that PW.5 - Suraj is a child witness and the Court would be extremely slow in accepting an evidence of the child witness unless a child witness is corroborated. It is true that the evidence of a child witness normally is not accepted by the Court unless it is corroborated, as children

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are susceptible being tutored. In the present case,

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however, we find that PW.5 - Suraj is not a tutored witness. PW.1 - Sadanand on being informed about the incident had immediately gone to the house of the appellant and was informed about the incident immediately by PW.5 - Suraj. PW.1 - Sadanand lodged on report at Exhibit-20 and in the report at Exhibit-20 there is reference to what PW.5 - Suraj had informed him. Thus the disclosure which was made by PW.5 - Suraj to PW.1 - Sadanand was an immediate and spontaneous disclosure. Thus there is no element of tutoring of PW.5 - Suraj by PW.1 - Sadanand. The admission elicited in the cross examination that Suraj was told to give a statement was in reference to the statement recorded by the police. PW.5 - Suraj has not admitted that the statement which he was asked to give was a falsehood. In these circumstances therefore we find that the testimony of PW.5 – Suraj is amply corroborated by the immediate disclosure which was made by PW.5 - Suraj to PW.1 – Sadanand and the disclosure therefore a strong circumstance substantiating that PW.5 is a truthful witness.

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Learned Counsel for the appellant has further urged before us that independent witness from the locality had not been examined. We do not find that nonexamination of any independent witness has vitiated the conviction. The conviction is based on an eye witness and therefore absence of any other witness would not materially affect to the outcome of the trial.

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The learned counsel for the appellant has further urged before us that the appellant had no intention of committing murder of deceased Sangeeta and he had only inflicted one fatal blow. Learned Counsel for the appellant has placed reliance on the Judgment of the learned Single Judge in the case of Shivaji s/o.Kashinath Kakde v/s.

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State of Maharashtra¹ . In the aforesaid case there was a quarrel between the husband and wife in respect of the fact that the deceased had not prepared the food. The appellant therein had been convicted for the offence

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1 2012, BOMCR (Cri.) 827.

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punishable under Section 304 (Part-I) and the learned Single Judge of this Court in the facts of the case had altered the conviction from 304 (Part-I) to 304 (Part-II). The ratio therefore is restricted to the facts of that case and would not be applicable to the facts of the present case.

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Learned Counsel for the Appellant has further placed reliance on the Judgment of the Supreme Court in Keshar Singh and Another v/s. State of Haryana² . In this case the appellant before the Supreme Court who was digging foundation had assaulted the deceased from the reverse side of the spade on the head. The appellant therein had not given any other blow. In the background of the fact, the Supreme Court came to the conclusion that he appellant had committed an offence punishable under Section 304 and not an offence punishable under Section 302 of the Indian Penal Code. In the light of the fact that the facts of the present case are different from the facts of the Judgment of the Supreme Court the ratio laid down

2 2008 ALL SCR 2570

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therein would not be applicable to the facts of the present case.

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Reliance is also placed on the unreported Judgment of the Division Bench of this Court in case of Vilas Shankar Mhatre v/s. State of Maharashtra³ . In that case, the accused therein had thrown a burning kerosene lamp on his wife. The lamp was placed in a glass bottle filled with kerosene and the bottle broke as a result of which the deceased therein had sustained injuries and had died. In the fact of that case, therefore, the Division Bench came to the conclusion that the accused therein had not intended to commit murder of his wife. In the present case the appellant had closed the door of the room and had assaulted his wife. The medical evidence of PW.3 – Dr. Raju Dhondiram Lavangare indicates that there were as many as 7 to 8 defence injuries i.e. injuries sustained by the deceased in trying to protect herself. The accused had mercilessly assaulted the deceased inflicting as many as 18

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3 Criminal Appeal No.306 of 2009 dated 14^th June, 2013

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external injuries. The blow on the head of the deceased had proved to be a fatal injury. Since the accused had caused internal injuries and the injury which was caused by the accused was sufficient in the ordinary course of nature to cause the death and the deceased had died on account of the injury, the act would fall within clause third of the definition of the culpable homicide amounting to murder. In these set of facts, therefore, the ratio of the Supreme Court in the case of Virsa Singh v/s. State of Punjab, 1958⁴ therefore clearly apply to the facts of the present case, since the accused had intentionally caused an injury which was sufficient in the ordinary course of nature to cause the death, the question of intention of the appellant to commit death of the deceased Sangeeta would not arise. The appellant had taken the deceased to the hospital, however, that conduct would not in any manner come to the rescue of the appellant as a circumstance for bringing the case out of the folds of Section 300 of the Indian Penal Code.

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4 AIR 1958 SC 465 : (2007) ALL SCR (O.C.C.) 33

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Thus after considering the rival submissions advanced before us by the learned counsel for the parties, according to us, the prosecution had proved the offence against the appellant beyond reasonable doubt.

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The appellant had falsely lodged a report knowing that the report which he was lodging was a false report and therefore had been rightly convicted for the offence punishable under Section 302 and 201 of the Indian Penal Code.

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Thus there is no merit in the present Appeal and the Appeal is therefore dismissed confirming the conviction and sentence. Fees payable to the learned counsel appointed for the appellant quantified at Rs.3,000/-.

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(REVATI MOHITE DERE,J.) (P. V. HARDAS,J.)

Dhanaji Shantaram Bajage v. the State of Maharashtra

Case brief

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Dhanaji Shantaram Bajage v. the State of Maharashtra

Case brief

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