Dismissed

Mahadeo Mainaji Chole v. the State of Maharashtra

Bombay HC22 Aug 2014APEAL/1025/2012

Case brief

AI extract

What is this about?

Appeal against conviction for murder and unlawful detention. High Court held that despite gaps in seizure procedure and conflicting weapon descriptions, consistent eyewitness testimony establishes guilt against the accused beyond reasonable doubt.

What did the court decide?

Criminal Appeal No. 1025 of 2012 dismissed; Conviction and sentences under Section 302 IPC and Section 342 IPC upheld.

Mahadeo Mainaji Chole Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2014)

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Ladda(PA)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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CRIMINAL APPEAL No. 1025 of 2012.

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Mahadeo Mainaji Chole, ] age 53 yrs, Occupation nil, ] presently lodged at Yerwada ] Central Prison, Pune ].. .. Appellant. (Original Accused)

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versus

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The State of Maharashtra ] Through : Vishrantwadi Police ] Station CR No.89 of 2009 ] SC No. 866/2009. ] .. Respondent.

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Mr Arfan Sait, Advocate appointed for the Appellant. Smt. V.R.Bhonsale, A.P.P. for the State.

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CORAM :- SMT. V.K. TAHILRAMANI AND

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A.R. JOSHI, JJ. DATED :- 22^nd August, 2014.

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JUDGMENT (PER A.R. JOSHI, J )

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Heard learned appointed Advocate Shri Arfan Sait

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for the appellant-accused. Also heard the learned Additional

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Public Prosecutor for the State.

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Present appeal is preferred by the sole accused challenging the judgment and order of conviction in Sessions Case No.866 of 2009 passed on 24^th May,2012 by the Additional Sessions Judge, Pune. By the impugned judgment and order, the appellant-accused was convicted for the offences punishable under Section 302 and Section 342 of IPC. For the first offence, he was sentenced to undergo imprisonment for life with fine of Rs.1000/-, in default to undergo RI for three months. For the later offence, he was sentenced to undergo RI for one year and to pay fine of Rs.500/-, in default to undergo R.I. for one month. Both the substantive sentences were directed to run concurrently.

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The facts of the prosecution case are as under :

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The incident of killing the victim woman, the paramour of

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the present appellant-accused, occurred at early hours of 19^th June, 2009 in front of their residential hut at Alandi, District Pune where the appellant and his paramour were residing for many years along with the children of the victim woman. Said children were from the first husband of the victim woman. Though there was no formal marriage between the appellant

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and the victim woman, they were living in the same hut along with the children, as husband and wife and they were so preferred by PW-1 one Chandrakant Wadgaonkar who was the landlord/owner of the brick kiln on which for some time the victim woman was working. The victim woman was also working as an agriculture labour and was earning meagre amount of Rs.150/- to 250/- per day. As such the family of the appellant and the victim woman was living hand to mouth and though allegedly the appellant was for sometime working as a mason and was earning amount of Rs.300/- to Rs. 400/- per day had no such fixed avocation. It is also the case of the prosecution that at times the appellant accused used to demand money from the victim woman for consuming liquor and on that count there used to be quarrel between them and it was so witnessed and stated before the Court during the evidence of PW-2 and PW-3. PW-2 is the married daughter of the victim woman and PW-3 Santosh is minor son of the victim. Both these children were born out of the marriage of the victim woman with her first husband and they were not children from the present appellant who was subsequently staying with her.

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As mentioned earlier, the incident of assault on the

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woman occurred at about 3:00 a.m. or so in front of the house where the couple was sleeping along with the children. Also, according to the case of the prosecution, the married daughter of the victim woman i.e. PW-2 by name Anita Munde, then aged about 25 years, was also residing with the said family for about a week prior to the incident and as such she happens to be at the house and also happens to be the witness of the assault on her mother. On the earlier day prior to 19^th June, 2009 there was some quarrel between the victim woman and the present appellant-accused on account the appellant asking for money for consuming liquor and denial by the victim. On that night after meal initially all the family members including the couple and the children and also the married daughter PW-2 Anita Munde slept in the room which was made of tin sheets having a wooden planks door. As it was not comfortable inside the room, the present appellant took the victim woman for sleeping outside the room and in front of the door in a open space. This happened at late night of 18^th June, 2009. This incident was witnessed by the children who were still continuing to remain

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inside the room and also witnessed by PW-2 Anita Munde and PW-3 Santosh. Thereafter, according to PW-2 intermittently for two occasions the appellant -accused came inside the room for drinking water and again went out. It happened till mid-night of 18^th and 19^th June, 2009. Thereafter, at the early hours of 19^th June, 2009 i.e. at about 3:00 a.m. or so there was big noise and shouts raised by the victim woman and as such the children woke up including PW-2 and PW-3 and then tried to come out of the room but they could not succeed as the door of the room was bolted from outside. In fact, according to PW-2 Anita Munde she had witnessed at the mid-night of the incident that the appellant-accused after taking the victim woman out of the room had bolted the door from outside. According to PW-3 another eye-witness again similar evidence is given by him as to the door of the room was bolted from outside. However, he has not specifically stated as to who bolted the door. After hearing the hue and cry raised by the victim woman as she was being assaulted by the accused by sitting on her chest and hitting on her head by something like weapon, the eye-witnesses tried to come out. Due to bolting from outside they could not come out.

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They could see the said incident from the slit in the wooden planks of the door of the room. By that time, after the assault the appellant-accused ran away from the spot but in the meantime one neighbouring woman by name Kondabai came near the spot on noticing neighbour's commotion and she unbolted the door and thereby the children of the victim woman could come out. They rushed to the victim their mother. However, there was no response and it was ascertained that the victim woman had already died due to severe injuries on her head by means of a heavy object. At this juncture itself the severity of the injuries can be mentioned as apparent from the contents of the postmortem report in column No.17 which are reproduced below:

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1. Contused lascerated wound over left side

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forehead, vertical, irregular shape, margins sharp cum lascerated underlying bone fracture, size: 5 cm x 2 cm x bone deep.

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1. Three lacerated wounds over mid forehead,

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one below other in single line, 3.5 cms adjacent to injury no.1 right side and 2 cm above right eye brow, size:

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i) 1 cm x 0.5 cm, ii) 1 cm x 0.5 cm, iii) 0.5 cm

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x 0.5 cm, all injuries bone deep underlying bone fracture, margins sharp cum lacerated.

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Needless to mention that the said injuries reported in the postmortem report were of such a nature to cause instantaneous death of the victim woman. The said incident of assault on the victim woman by the present appellant was witnessed by PW-2 and PW-3 and also by other children. However, other children including one tender aged girl by name Alka were not examined by the prosecution.

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According to the case of the prosecution, the intimation was given to PW-1 one Chandrakant Wadgaonkar who is the owner of the said room in which the victim and the appellant along with their children were staying. At this juncture, it must be mentioned that by pointing towards the substantive evidence of said PW-1 it is brought to the notice of the Court by the learned appointed Advocate for the appellant that he was informed by Alka regarding the incident. However, said Alka has not been examined by the prosecution. As against this, our attention is drawn towards the substantive evidence of

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PW-2 Anita Munde that she herself informed the said incident to PW-1 and brought him to the spot. Whatever it might be, the

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fact remains that said PW-1 was brought on the spot and he had appraised himself of the factual position and then the intimation was given to the police.

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Police arrived at the spot and after enquiry recorded the statement of PW-2 Anita Munde and treated it as the First Information Report as Exh.21. The offence was registered against the present appellant-accused as his name was specifically mentioned in the FIR as to PW-2 witnessing the incident of assault. During the investigation the spot panchnama was conducted by calling a panch witness including panch witness PW-4. The inquest panchnama was also conducted on the dead body of the victim. Thereafter, the dead body was sent for postmortem which was conducted by PW-5 Dr Milind Sonawane. Said postmortem report is at Exh.29. It is specifically mentioned in the postmortem report that injury Nos. 1 and 2 mentioned in column No.17 were in ordinary course sufficient to cause death of the victim. As such the homicidal

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death of the victim woman is not in dispute. However, the only

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question raised on behalf of the appellant is that there is no cognate material to connect him with the offence of murder and for this various points were raised before us.

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These points are summarized in order to have proper perspective of the matter and the scope of the arguments advanced on behalf of the defence. The said points are :

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(1) Alka was not examined by the

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prosecution;

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(2) The neighbours of the couple were also not

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examined by the prosecution;

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(3) As per PW-1 Chandrakant Wadgaonkar

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he was told regarding the incident by Alka but as per PW 2 she informed PW-1 and brought him to the spot;

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(4) According to PW-2 there was something like weapon in the hands of the appellant when she could see from the slit in between the planks of the door and could see that the appellant-accused was sitting on the chest of her mother i.e. the victim woman and

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assaulting on the head of the victim. According to said PW-2 in her cross-

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examination she had also answered that the said weapon in the hand of the appellant was glowing;

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(5) The clothes which were allegedly taken charge of from the appellant-accused on the evening of 19^th June, 2009 were not sealed as in the panchnama there is only mention of label having the signatures of panchas affixed on the clothes i.e. shirt and pant seized under the panchnama;

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(6) The stone which was allegedly recovered at the instance of the appellant on 22^nd June, 2009 under the memorandum and recovery panchnamas Exhs.38 and 39 was also not taken charge of by sealing it;

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(7) The panchnama of spot of offence did not mention that there was any wall clock inside the house where the couple was residing

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where as according to the substantive evidence

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of PW-3 in his cross-examination he has admitted that there was wall clock on the wall of the room;

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(8) Though allegedly during the arrest panchnama Exh.42 clothes of the appellant were taken charge of, according to the panch witness PW-8 the said clothes were not on the person of the accused and they were taken charge of from the Police Station.

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By pointing out the above referred points, it is strongly submitted on behalf of the appellant-accused that concoction of the story as to the clothes and the stone recovered at the instance of the present appellant, cannot be ruled out. In other words, it is submitted that for want of sealing of these seized clothes a reasonable doubt is required to be entertained by the Court as to whether the same articles were seized at the instance of the appellant and whether they were sent for chemical analysis. Again, on this aspect it is submitted on behalf

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of the appellant that the CA report is not clinching evidence so far as pointing towards the present appellant inasmuch as the blood group of the appellant is “B” and the clothes of the victim woman and the clothes allegedly recovered at the instance of the appellant also having the blood stains which are of “B” group. By pointing out this, it is submitted on behalf of the appellant that in the absence of the conclusive proof as to the blood group of the victim woman, it cannot be said that this material piece of evidence is incriminating against the accused. On this count, learned A.P.P. for the State submitted that factually clothes of the victim are having blood of “B” group and though the blood group of the accused is also of “B” group, there is no probable explanation from the appellant as to how blood of “B” group can occur on his own clothes when there is nothing brought before the Court that he had sustained any injury so as to having his own blood appearing on his clothes. Counter to this argument the learned counsel for the appellant stated that though there is no such explanation given by the appellant accused and even in answers given under Section 313 of Cr.P.C., it is still for the prosecution to establish that these are

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the clothes recovered at the instance of the appellant and that they were the same clothes sent for the chemical analysis. On this aspect, again it is brought to our notice that the clothes were admittedly not sealed though allegedly the labels bearing signatures of the panchas were affixed on them.

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So far as the recovery of stone at the instance of the present appellant is concerned, much is argued on behalf of the appellant that the stone which is allegedly recovered cannot be equated with a weapon which is specifically mentioned by PW-2 while giving her statement and as mentioned in her FIR. On this aspect, the factual position as narrated by both the eyewitnesses is required to be construed by us. Definitely the entire incident of assault and murder of the woman occurred at wee hours i.e. at 3:00 a.m. i.e. on 19^th June,2009 and these two witnesses could only see the said incident from the slit in the wooden planks of the door and they could see only after the hue and cry was raised by the victim woman after she was assaulted in front of the house. Moreover, we cannot lost sight of the fact that, only in the cross-examination, said PW-2 had answered that the said weapon was glowing. Much is argued on this

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specific answer given by PW-2 that the weapon which was glowing on that night and which was held by the accused by no stretch of imagination can be treated as a stone. In our considered opinion, considering the circumstance and the time at which the said incident had occurred and considering the consistent evidence of PW-2 and PW-3, the allowance is required to be given while the said witness PW-2 described the weapon in the hands of the appellant and who according to her was the appellant-accused and to whom she was knowing very well being paramour of her mother. In any event, still if it is considered that the said recovery of stone at the instance of the appellant-accused cannot be accepted including the clothes of the appellant-accused, still the question remains as to the authenticity or otherwise of the substantive evidence of PW-2 and PW-3.

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Definitely the factual position still remains that no independent witnesses are examined in the present case and more so the neighbouring woman by name Kondabai who unbolted the door. In spite of this it is to be seen whether the evidence of PW-2 and PW-3 inspires confidence as it was also

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weighed with the trial Court while accepting their evidence as trust worthy. Again the factual position and the conduct of the party is required to be seen. The appellant-accused though not married, husband of the victim woman was staying in the same family for number of years and apparently he was accepted as the husband of the said woman and as such there was apparently nothing against the said appellant for the witnesses to settle in a score. Otherwise also it is a consistent evidence of PW-2 and PW-3 regarding the conduct of the appellant in asking money for his vices and revealed by the victim woman and on that count occurrence of the quarrel at occasions. Definitely both these eye-witnesses are consistent in saying that they had witnessed the incident from the slit in the wooden plank of the door of room and they are consistent that on that night though earlier the couple was sleeping inside, went out and then at wee hours of 19^th June, 2009 the incident of assault started. Both these witnesses are again consistent on the aspect as to bolting of the door of the room from outside. Again on this aspect much is argued by learned appointed Advocate for the appellant that according to PW-2 the bolting was done by the present

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appellant, whereas PW3 has not given the name of anybody as to bolting the room from outside. Needless to mention that in order to establish a particular fact leading to the commission of offence, 100% proof of guilt is not required by law. What is necessary is the proof of the circumstances leading to the offence and that also beyond reasonable doubt. From case to case the test for requirement of such proof may defer and it is to be seen whether in a particular given case the material adduced by the prosecution is sufficient to establish the guilt of the accused beyond reasonable doubt. In dealing with this aspect, in our considered view each and every case is required to be dealt on the backdrop of the facts of that case and the ratios propounded by any authority on different fact situation may not be considered in favour of the party taking shelter of the ratios.

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During the arguments the following authorities are cited on behalf of the appellant-accused.

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(I) [2014 CRI.L.J. (NOC)315 (Bom Balasaheb Sukhdev Navlikar (Kamble) Vs. State of Maharashtra.

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By pointing out towards the contents of paragraph

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Nos. 13 and 14 of this authority, it is argued on behalf of the appellant that certain circumstances as alleged against the present appellant as to finding of the stone at his instance and finding of the blood stains cannot be considered as implicating the appellant. The observation made in paragraph Nos. 13 and 14 of the authority cited before us are in the case which was solely based on circumstantial evidence. In this matter at hands there are two eye-witnesses and both of them have categorically given events as seen by them and both of them are taking the name of the present appellant-accused as the assailant.

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Another authority is :-

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(II) 2006 CRI.L.J.310 Pratap Singh and Anr V. State of M.P.

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Again, on the facts of the present case, the ratio propounded by the said authority cannot be taken shelter of in favour of the appellant, inasmuch as in this matter at hand there are two eye-witnesses and they have reasonably corroborated with each other and gave the same factual position. Though there are certain variances between their evidence, in our considered view, it will not go to the route of the matter more so

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considering the case of the prosecution for establishing of the guilt beyond reasonable doubt.

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In summing up it must be said that the substantive evidence of PW-2 and PW-3 is so overwhelming as pointing towards the appellant as the assailant and also pointing towards the appellant as the person who had bolted the room from outside, thus causing wrongful confinement of the witnesses during the incident. On this aspect, definitely there is a positive evidence of PW-2 mentioning that the appellant had bolted the door from outside. Though there is no evidence produced by the prosecution as to unbolting was done by the neighbouring woman, this may not have much impact on the establishment of the fact that the inmates of the house were wrongfully confined as according to PW 2 the bolting was done by the appellant and also according to PW-3 the room was bolted from outside during the incident. As such though certain allowance can be given as argued on behalf of the appellant-accused as to the recovery of stone and seizure of clothes from his person, still in our considered view the substantive evidence of PW-2 and PW-3 is required to be accepted mentioning towards the present

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appellant as the assailant and thus causing death of the victim woman. In the result, the appeal must fail and same is accordingly dismissed and disposed of.

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Before parting with judgment, we wish to place on record our appreciation for Mr Arfan Sait Advocate who was appointed by the Legal Services Committee to represent the appellant in this appeal. He has very ably conducted the matter. We quantify legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.5,000/.

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Since the appellant is in jail, the Registry is directed

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to communicate this judgment and order to him through the Central Prison Pune.

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Ladda RS (PA)

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Mahadeo Mainaji Chole v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mahadeo Mainaji Chole 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

Cases cited

Statutes considered

Parties & counsel

Coram

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