JUDGMENT
D.D. Sinha, J.
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1. Heard Shri Daga, learned Counsel for the appellant, and Shri Jichkar, learned Additional Public Prosecutor for the respondent.
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2. The appeal is directed against the judgment and order dated 6.2.2001 passed by the Additional Sessions Judge, Khamgaon in Sessions Case No. 6/2000 whereby appellant/accused is convicted for the offence punishable under Section 302 of Indian Penal Code for committing murder of his wife Mathurabai and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine, to suffer further rigorous imprisonment for six months. Similarly, appellant is convicted for the offence punishable under Section 307 of Indian Penal Code for attempting to commit murder of PW 2 Dropadabai and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 500/-, in default of payment of fine to suffer rigorous imprisonment for three months. The appellant is also convicted for the offence punishable under Section 307 of Indian Penal Code for attempting to commit murder of PW 3 Sukdeo and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 500/-, in default of payment of fine, to suffer further rigorous imprisonment for three months. All the substantive sentences were directed to run concurrently.
3. The case of the prosecution, in nutshell, is as follows:
On 5.11.1999 at about 7 p.m. at village Jamod deceased Mathurabai (wife of the appellant) went to bring some medicines for her mother PW 2 Dropadabai. When Mathurabai was returning from house of one Durgabai, appellant started quarrelling with her and assaulted Mathurabai by means of suri (knife). On hearing cry of Mathurabai, PW 2 Dropadabai and PW 3 Sukdeo came there. At that time, appellant assaulted them by means of suri (knife). The incident is witnessed by PW 1 Durgabai, PW 5 Mohanlal and PW 6 Ramesh. PW 2 Dropadabai and PW 3 Sukdeo are victims of assault. After assaulting Mathurabai, PW 2 Dropadabai and PW 3 Sukdeo, accused ran away with knife in his hand towards Police Chowki, Jamod. Head Constable Andhale was present there and he asked the accused as to what had happened. At that time, accused told him that he assaulted his wife and in-laws by a knife. Head Constable Andhale seized knife from the accused in the presence of panchas. Deceased Mathurabai and injured Dropadabai as well as Sukdeo were taken to the Primary Health Centre, Jalgaon Jamod.
4. The Special Judicial Magistrate recorded dying declaration of Mathurabai on 6.11.1999 at about 8.15 p.m. (Exh. 36). He also recorded statements of injured PW 2 Dropadabai and PW 3 Sukdeo. Another dying declaration of Mathurabai was recorded by the Executive Magistrate (Exh. 32). PW 17 API Bijwe recorded statement of Mathurabai (Exh. 63). On the basis of statement of Mathurabai, Crime No. 110/1999 came to be registered on 5.11.1999 in the Police Station at about 9 p.m.
5. On 6.11.1999 spot panchanama (Exh. 24) was drawn in the presence of panchas, PW 17 API Bijwe recorded statements of some prosecution witnesses. PW 16 ASI Satpute seized clothes of the accused in the presence of panchas. On 9.11.1999 at about 2.10 a.m. Mathurabai died in the District Hospital, Akola. Inquest panchanama was drawn, which is Exh. 21. PW 18 Dr. Fadke performed post mortem examination on the dead body of Mathurabai on 9.11.1999 and post mortem Page 1494 report is at Exh. 58. The clothes of the deceased and injured persons were seized by Head Constable Andhale as per seizure memo (Exh. 14). After completing investigation, PW 17 API Bijwe forwarded charge -sheet against the appellant. The charges for the offences punishable under Section 302 and 307 of Indian Penal Code were framed against the appellant. The accused pleaded not guilty and claimed to be tried.
6. Shri Daga, learned Counsel for the appellant, submits that in the instant case, prosecution has examined as many as eighteen witnesses to prove charges against the appellant, however, evidence of prosecution witnesses is not consistent with the material particulars of the prosecution case and there are inter se inconsistencies in the testimonies of eye witnesses, which create doubt about authenticity of their version. It is contended that testimonies of PW 2 Dropadabai and PW 3 Sukdeo are that of interested persons since they are mother and father respectively of deceased Mathurabai and, therefore, reliance cannot be placed on the testimonies of such interested witnesses. It is submitted that dying declaration (Exh. 32) recorded by PW 10 Shrikant, Executive Magistrate as well as another dying declaration (Exh. 36) recorded by PW 11 Mukhtyar Ahamad, Special Judicial Magistrate are not only inconsistent with each other, but also with material particulars of the prosecution case and, therefore cannot be relied on.
7. Learned Counsel Shri Daga submits that in the instant case, though the defence taken by the appellant/accused in his additional statement dated 18.1.2001 shows that appellant has admitted the quarrel, which had taken place between appellant, deceased Mathurabai and PW 2 Dropadabai and PW 3 Sukdeo, but that does not mean that prosecution does not have to independently prove its case against the accused. It is contended that prosecution cannot take support from the defence of the accused to prove its case and is required to establish its case beyond all reasonable doubt by adducing independent convincing evidence. It is submitted that taking into consideration evidence adduced by the prosecution, the prosecution failed to establish the case against the appellant for the offences charged and, therefore, findings of conviction and sentence recorded by the trial Court are unsustainable in law.
8. Shri Jichkar, learned Additional Public Prosecutor for the respondent, states that in the instant case, there are two dying declarations, i.e. Exhs. 32 and 36 recorded by the Executive Magistrate and Special Judicial Magistrate respectively, which are consistent with each other and also corroborated by the medical evidence. It is contended that apart from the evidence of dying declaration of deceased Mathurabai, prosecution has examined PW 2 Dropadabai, who is not only eye witness to the incident, but also a person injured in the incident. Similar is the case with PW 3 Sukdeo. Their testimonies are consistent with material particulars of the prosecution case. Similarly, PW 5 Mohanlal is another eye witness whose testimony corroborates the case of the prosecution and same is also corroborated by the medical evidence. The evidence of PW 6 Ramesh is relevant to establish assault committed by the appellant on PW 3 Sukdeo.
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9. It is further contended by learned Additional Public Prosecutor Shri Jichkar that testimony of PW 4 Ratanlal reveals that immediately after the incident, he had seen the appellant with blood stained clothes and knife in his hand, which also lends corroboration to the case of the prosecution unfolded by other prosecution witnesses. It is submitted that evidence adduced by the prosecution coupled with the defence of the accused clearly proves prosecution case for the offences charged against the appellant and, therefore, conviction recorded by the trial Court is just and proper.
10. We have given our anxious thought to the various contentions canvassed by the respective Counsel for the parties and carefully scrutinized the evidence of prosecution. In the instant case, evidence of prosecution can be categorized in three parts. The first set of evidence consists of dying declaration (Exh. 32) recorded by PW 10 Shrikant, Executive Magistrate as well as another dying declaration (Exh. 36) recorded by PW 11 Mukhtyar Ahamad, Special Judicial Magistrate. The other set of evidence consists of PW 2 Dropadabai, victim of the assault, PW 3 Sukdeo, another victim of the assault, PW 5 Mohanlal, eye witness to the incident and PW 6 Ramesh. The third set of evidence adduced by the prosecution is of PW 14 Dr. Rane, who has issued injury certificate (Exh. 47) in respect of deceased Mathurabai, injury certificate of Dropadabai (Exh. 48), and injury certificate of Sukdeo (Exh. 46), PW 15 Dr. Chaudhari, who has issued fitness certificate in respect of deceased Mathurabai (Exhs. 58-A and 58-B) before recording her dying declaration (Exh. 36) by PW 11 Mukhtyar Ahmed and PW 18 Dr. Fadke, who has conducted post mortem examination and issued post mortem report (Exh. 68).
11. In the instant case, in order to prove assault committed by the appellant on deceased Mathurabai, evidence of dying declaration – Exh. 32 recorded by the Executive Magistrate and Exh. 36 recorded by the Special Judicial Magistrate is available on record and it will be proper to carefully scrutinize the same in order to find out whether these dying declarations are truthful and inspire confidence.
12. It is the case of the prosecution that on 6.11.1999 PW 11 Ahamad, Special Judicial Magistrate went to the District Hospital, Akola for recording dying declaration of deceased Mathurabai. The testimony of PW 11 Ahamad reveals that when he went to the District Hospital, Akola, PW 15 Dr. Chaudhari Medical Officer was on duty in the Hospital. Both of them went in the room where patient Mathurabai was admitted. PW 11 Ahamad gave requisition to the Medical Officer to certify whether patient was in a fit condition to give statement. PW 15 Dr. Chaudhari, Medical Officer examined the patient and certified that she was fit to give statement, which is Exh. 58-A. The testimony of PW 11 Dr. Ahamad further reveals that after obtaining fitness certificate, he started recording statement of deceased Mathurabai on 6.11.1999 at about 7 a.m. Deceased Mathurabai told him that on 5.11.1999 her husband assaulted him by suri (knife) and she was admitted in the Main Hospital Akola. She told this witness that her husband Shalikram Page 1496 Hinge is responsible for the incident. The statement was read over to her. She admitted it to be correct and her thumb impression was obtained on the dying declaration by this witness. This witness also signed the same. The evidence of this witness further reveals that after recording of dying declaration, PW 15 Dr. Chaudhari again examined the patient and issued certificate Exh. 58-B wherein it is stated that deceased Mathurabai was conscious while recording dying declaration and same was recorded in his presence. The said dying declaration is Exh. 36. After going through the cross-examination of PW 11 Dr. Ahamad, we find that no adverse circumstance is brought on record by the defence in order to affect his ocular testimony. On the other hand, careful scrutiny of dying declaration (Exh. 36) shows that all the material particulars mentioned by deceased Mathurabai in her dying declaration are completely corroborated by the testimony of PW 11 Dr. Ahamad. In the instant case, we cannot lose sight of the fact that deceased Mathurabai was wife of the appellant and was married to the appellant more than twenty years prior to the incident. There is nothing on record to show that there was any kind of animosity between deceased Mathurabai and appellant and in absence thereof, there is absolutely no reason for deceased Mathurabai to falsely implicate her own husband in the crime in question. The dying declaration (Exh. 36), in our considered view, is consistent and inspires confidence and, therefore, is acceptable.
13. The prosecution has examined PW 18 Dr. Fadke to prove contents of post mortem notes. The evidence of PW 18 Dr. Fadke demonstrates that he had conducted post mortem examination on the dead body of Mathurabai on 9.11.1999 and found following injuries:
i) Stab injury over anterior abdominal wall to the right of mid line 3″ away 1 1/2″ x 1/2″ by muscle deep,
ii) stab injury over anterior iliac crest 1 1/2 x 1 1/2″ x muscle deep,
iii) stab injury over right thumb palmer aspect 2″ x 1/2 x muscle deep,
iv) stab injury over right pubic region 1 1/2 x 1/2 x muscle deep,
v) stab injury left anterior abdominal wall 3″ away from midline 1 1/2 x 1/2″ x visceral deep,
vi) stab injury 6″ away from the midline left anterior abdominal wall peritoneum deep,
vii) stab injury left hypochonorium 1 1/2″ x 1/2″ x muscle deep,
viii) stab injury over left hypochonorium parallel to injury No. 7, 3 cm away and having size 1 1/2″ x 1/2″ x muscle deep,
ix) stab injury over left infranthoracic region 1 1/2″ x 1/2″ x muscle deep,
x) laparatomy wound extending from xiphistermum to symphysic pubic 8″ in length,
xi) on internal examination of abdomen, perforation of mid-ileum 2″ in size septic focci and purulent-yellowish fluid – 100 c.c. seen.
14. PW 18 Dr. Fadke has opined that cause of death of Mathurabai was septicaemic shock due to stab injuries over abdomen. Injury No. 5 shown in column No. 17 in the post mortem report was sufficient in the ordinary course Page 1497 of nature to cause death of Mathurabai. The injuries No. 1 to 9 cumulatively were also sufficient to cause death in the ordinary course of nature. The Doctor has also opined that injuries Nos. 1 to 9 could have been caused by a sharp cutting object like suri (knife), which is weapon of offence. Perusal of the cross-examination of PW 18 Dr. Fadke, in our considered view, does not affect his ocular testimony and therefore, we are of the view that medical evidence completely corroborates all the material particulars of the prosecution case mentioned in the dying declarations.
15. Another dying declaration of deceased Mathurabai (Exh. 32) was recorded by PW 10 Shrikant, who at the relevant time, was Executive Magistrate (Tahsildar). The testimony of this witness reveals that he went to the Hospital, i.e. Primary Health Centre, Jalgaon Jamod on 5.11.1999 for recording dying declaration of deceased Mathurabai. This witness obtained fitness certificate from PW 14 Dr. Rane of injured Mathurabai and when Doctor certified that injured Mathurabai was physically and mentally in a fit condition to give dying declaration, recorded her dying declaration (Exh. 32). The evidence of PW 10 Shrikant corroborates all the material particulars of the statement given by deceased Mathurabai in her dying declaration (Exh. 32) wherein she has stated that appellant assaulted her with knife on her abdomen and hand. She tried to catch hold of knife by which she was assaulted, as a result of which she sustained injury on her hand. She has also stated that appellant assaulted with knife on her right hand and abdomen since she did not give money as demanded by the appellant. The dying declaration (Exh. 32), in our considered view, is also consistent with the material particulars of the prosecution case and also inspires confidence. The recitals in the dying declaration (Exh. 32) are also corroborated by the medical evidence of PW 18 Dr. Fadke. In the instant case, we are of the view that dying declarations (Exhs. 32 and 36), which are truthful, consistent and corroborated by the medical evidence are sufficient to prove beyond all reasonable doubts the charge of murder of Mathurabai against the appellant and, therefore, finding of conviction recorded by the trial Court against the appellant for the offence punishable under Section 302 of Indian Penal Code is just and proper and sustainable in law.
16. In the instant case, appellant is also charged under Section 307 of Indian Penal Code for attempting to commit murder of PW 2 Dropadabai and PW 3 Sukdeo. It is, therefore, proper to consider evidence of these two witnesses coupled with other witnesses examined by the prosecution to prove the assault committed by the appellant on these witnesses. PW 2 Dropadabai has stated in her examination-in-chief that on the day of incident, she was ill and had asked deceased Mathurabai (daughter) to go to the Medical Store and bring some medicines for her. Deceased Mathurabai went to the house of PW 1 Durgabai. In the meanwhile, PW 12 Dropadabai heard cry of deceased Mathurabai for help and, therefore, this witness and her husband PW 3 Sukdeo came on the road from their house to find out what was happening. They saw that appellant was assaulting deceased Mathurabai by means of knife. Mathurabai was injured by the appellant on her abdomen by a knife. The testimony of this witness further reveals that this witness and her husband PW 3 Sukdeo went to intervene. However, appellant fell her on the Page 1498 ground and assaulted her by knife on abdomen. The appellant assaulted her husband PW 3 Sukdeo by knife. The appellant ran away from the spot after causing injuries to this witness, her husband Sukdeo and deceased Mathurabai. While going through the cross-examination of this witness, it is evident that some of the material particulars of the prosecution case are reaffirmed. It has come in the cross-examination of this witness that this witness had suffered three injuries on abdomen caused by the appellant by means of a knife. It has also come in the cross-examination of this witness that she had stated before the Police that she was assaulted by the appellant by means of suri on stomach and chest. Perusal of the cross-examination of this witness, in our considered view, does not affect substantive evidence of this witness.
17. PW 3 Sukdeo is father of deceased Mathurabai and his evidence is more or less similar to that of PW 2 Dropadabai. He has stated in his examination-in-chief that on the day of incident, his wife Dropadabai was ill and he was also present in the house. His daughter Mathurabai went to the house of Durgabai, in the meanwhile, he heard shouts of Mathurabai for help. This witness thereafter went towards the direction from where he heard shouts of his daughter Mathurabai to find out what was happening and saw that appellant was assaulting his daughter Mathurabai with knife. PW 3 Sukdeo further stated in his examination-in-chief that appellant assaulted his wife Dropadabai with knife and be also assaulted this witness on stomach by means of knife. The appellant ran away from the spot thereafter with knife in his hand. The cross-examination of this witness demonstrates that defence could not bring out anything in order to adversely affect substantive testimony of this witness. On the other hand, this witness has stated in his cross-examination that appellant had assaulted this witness and twisted knife in his abdomen and, therefore, cross-examination of this witness is of no help to the defence.
18. The testimonies of PW 2 Dropadabai and PW 3 Sukdeo do not suffer from any material omissions or contradictions and are also corroborated by the evidence of PW 14 Dr. Rane, who had examined PW 2 Dropadabai and issued injury certificate (Exh. 48). PW 14 Dr. Rane also examined PW 3 Sukdeo and issued injury certificate (Exh. 46). The above referred injury certificates reveals that PW 2 Dropadabai sustained incised penetrating wound on the right middle liver region of size 4 x 3 x 2″. Wound showed peritoneum and profuse bleeding came from the wound. Abdominal distension was present due to internal haemorrage. The age of the injury was about one hour. Similarly, evidence of PW 14 Dr. Rane shows that he also examined PW 3 Sukdeo and found incised penetrating on the left stomach region to umbelical region in oblique direction from upward to downward showing fat peretonium, large intestine with showing fical matter. The size of the injury was 15″ x 2 x 4″. The age of injury was about one hour. It is, therefore, evident that evidence of PW 2 Dropadabai and PW 3 Sukdeo is corroborated by the medical evidence of PW 14 Dr. Rane. The evidence of these two witnesses also corroborate material particulars of the dying declarations. In the instant case, weapon used by the appellant is a deadly weapon and placement of the injuries was on the vital part of the body, i.e. stomach and looking to the nature of injuries and force used, we are of the view that the assault committed by the appellant by means of knife and proved by the prosecution on PW 2 Dropadabai and PW 3 Sukdeo is punishable under Section 307 of Indian Penal Code Page 1499 and therefore, conviction awarded by the trial Court in this regard is sustainable in law.
19. Apart from the above referred evidence adduced by the prosecution, evidence of PW 5 Mohanlal is also consistent with the dying declaration of deceased Mathurabai as well as PW 2 Dropadabai and PW 3 Sukdeo. This witness has stated in examination-in-chief that on the day of incident at about 7 p.m. while he was coming towards his house after purchasing bidi from kirana shop of his grandson, he saw appellant with knife in his hand and he was chasing his wife deceased Mathurabai and thereafter assaulted her by means of knife. This witness has further deposed that the appellant thereafter assaulted PW 2 Dropadabai and PW 3 Sukdeo by means of knife. Nothing worthwhile has come in the cross-examination to destroy ocular testimony of this witness. It is, therefore, evident that evidence of this witness completely corroborates material particulars of the prosecution case, which is also corroborated by the medical evidence.
20. Similarly, evidence of PW 4 Ratanlal and PW 6 Ramesh demonstrates that immediately after the incident in question they had seen the appellant with the knife near the place of incident. PW 4 Ratanlal has deposed that clothes of the appellant were stained with blood and there was also blood on the blade of the knife. The blood detected on the blade of the knife is of ‘B’ group. The blood was also detected on the clothes of the appellant. The evidence of PW 4 Ratanlal and PW 6 Ramesh, in our considered view, supports the material particulars of the prosecution case.
21. Taking into consideration entire prosecution evidence we have no hesitation to hold that prosecution has succeeded in proving the case beyond all reasonable doubts against the appellant for committing murder of Mathurabai and, therefore findings of conviction and sentence recorded by the trial Court against the appellant for the offence punishable under Section 302 of Indian Penal Code are sustainable in law. Similarly, prosecution has also succeeded in proving beyond all reasonable doubts the assault committed by the appellant by means of knife on PW 2 Dropadabai and PW 3 Sukdeo and, therefore, findings of conviction and sentence recorded by the trial Court against the appellant for the offence punishable under Section 307 of Indian Penal Code are also just and proper. In the instant case, we cannot ignore the defence of the appellant stated in his additional statement wherein he has admitted that at the relevant time quarrel took place between him, deceased Mathurabai and her parents, i.e. PW 2 Dropadabai and PW 3 Sukdeo. However, further defence of the appellant that PW 2 Dropadabai was having knife in her hand and attempted to assault appellant, in view of substantive evidence adduced by the prosecution referred to hereinabove, is improbable and needs to be rejected.
22. For the reasons stated hereinabove appeal suffers from lack of merit and hence, same is dismissed.