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2008 DIGILAW 174 (BOM)

Subhash S/o Ballu Rathod v. State of Maharashta

2008-02-05

A.B.CHAUDHARI, A.P.LAVANDE

body2008
JUDGMENT : Per A.P. Lavande, J. 1. By this appeal, the appellant takes exception to the judgment and order of conviction dated 27/9/2002 passed by Adhoc Additional Sessions Judge, Yavatmal in Sessions Trial No. 6/2001 convicting the appellant for having committed offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code. The appellant was accused no.1 in Sessions Trial No. 6/2001 along with Vilas Rathod (accused no.2) and Ballu Rathod (accused no.3). The appellant has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/- and in default to suffer R. I. for two months for offence punishable under Section 302 of the Indian Penal Code. The appellant and other two accused have been found guilty for offence punishable under Section 323 read with Section 34 of the Indian Penal Code and sentenced to suffer R.I. for 7 days each and to pay fine of Rs. 500/- each in default to suffer R.I. for 7 days each. 2. Briefly, the case of prosecution is as under:- Ramesh Rathod (PW 2) was residing along with his parents, brother, wife and children at village Gondgawahan. All the three accused were residing in the neighbourhood of Ramesh. On 14.11.2000 at about 9.00 p. m. the appellant along with Vilas came to the house of Ramesh with a Koyata and a cycle chain respectively. Accused no.3 also came there and started claiming that they were paying tax of the house and, therefore, Ramesh and his family members should vacate the house. Ballu also threatened them with dire consequences in case they fail to vacate the house, whereupon Ramesh told them that said house was belonging to him. Thereafter all the three accused started throwing their utensils and domestic articles and Ballu started pelting stones and instigating Vilas to beat them. Shravan, the younger brother of Ramesh, his mother Sonabai and his daughter Kavita tried to intervene, whereupon Vilas assaulted Shravan by cycle chain. The appellant assaulted Sonabai with knife and caused injuries on her neck. Ballu assaulted Ramesh and his daughter Kavita with stones on account of which Ramesh sustained injuries on his head and Kavita also suffered injuries. Ramesh, on account of fear, went to the house of his cousin brother Govinda as family members went to the house of Nandu Rathod to escape from assault by the accused. Ballu assaulted Ramesh and his daughter Kavita with stones on account of which Ramesh sustained injuries on his head and Kavita also suffered injuries. Ramesh, on account of fear, went to the house of his cousin brother Govinda as family members went to the house of Nandu Rathod to escape from assault by the accused. On account of serious injuries suffered by Sonabai and Shravan, they remained in the house. Kasandas, the father of Ramesh being an aged person was sitting in one corner of the house. At about 6.00 a. m. on the next day i. e. 15/11/2000 Ramesh came to house and came to know from his brother Shravan that his mother Sonabai had died. Ramesh went to the house of police patil and narrated the incident. Thereafter Ramesh lodged report in Police Station, Ner whereupon offence under Section 302 of the Indian Penal Code was registered. The investigation was taken up by Officer-in-Charge of Ner Police Station. After completion of the investigation, charge-sheet was filed against all the three accused in the Court of Judicial Magistrate First Class, Ner. The case was committed to the Court of Sessions. Charge under Sections 302 and 323 read with Section 34 of the Indian Penal Code was framed against all the three accused. The accused claimed to be tried. 3. During the trial, the prosecution examined seven witnesses and produced several documents. The accused did not adduce any defence evidence. After hearing both sides, the Trial Court convicted and sentenced the accused, as stated above. 4. Mr. Daga, learned counsel for the appellant submitted that there is no eye witness to the incident of murder and conduct of the three witnesses namely PW 2 Ramesh Rathod, PW 3 Shravan Rathod and PW 5 Kavita Rathod is unnatural and as such their evidence does not inspire confidence. He further submitted that PW 2 Ramesh did not depose in respect of injuries suffered by him in the assault but the prosecution has relied upon the medical evidence to prove injuries on Ramesh. According to Mr. Daga, the evidence of the above three witnesses is full of contradictions and omissions and, therefore, the same does not inspire confidence. Mr. Daga, therefore, submitted that the prosecution has not been able to prove offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code beyond reasonable doubt against the appellant. According to Mr. Daga, the evidence of the above three witnesses is full of contradictions and omissions and, therefore, the same does not inspire confidence. Mr. Daga, therefore, submitted that the prosecution has not been able to prove offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code beyond reasonable doubt against the appellant. In the alternative, Mr. Daga submitted that even if the prosecution story is accepted in toto, at the most, offence punishable under Section 304 Part II of the Indian Penal Code and no offence punishable under Section 302 of the Indian Penal Code is made out. He submitted that alleged assault was without any pre-meditation but was upon a sudden quarrel. There was no enmity between the accused and deceased Sonabai and moreover, according to the prosecution, the appellant gave only one blow on deceased Sonabai and, therefore, offence punishable under Section 302 of the Indian Penal Code is not made out against the appellant. 5. Per contra, Mrs. Joshi, learned Additional Public Prosecutor submitted that evidence of PW 2 Ramesh, PW 3 Shravan and PW 5 Kavita is consistent on material aspects and certain variations have crept in their evidence, they being rustic witnesses. She further submitted that human blood has been found on the weapon as well as on the spot and, therefore, offences for which the appellant has been convicted are clearly made out against the accused. Mrs. Joshi, submitted that Ramesh being an injured witness, his testimony deserves credence and there is absolutely no reason to discard his testimony. She further submitted that offence under Section 302 of the Indian Penal Code is clearly made out against the accused having regard to the nature of the injuries suffered by deceased Sonabai. She further submitted that merely because single blow has been given on deceased Sonabai by the appellant, by itself, does not bring down offence punishable under Section 304 Part I of the Indian Penal code and the prosecution has been able to establish beyond reasonable doubt offence punishable under Section 302 of the Indian Penal Code against the appellant. In support of her submissions, Mrs. Joshi relied upon the following authorities:- (i) AIR 1979 SC 1006 Bakhtawar and another Vs. The State of Haryana; (ii) AIR 2006 SC 3010 Pulicherla Nagaraju alias Nagaraja Reddy Vs. In support of her submissions, Mrs. Joshi relied upon the following authorities:- (i) AIR 1979 SC 1006 Bakhtawar and another Vs. The State of Haryana; (ii) AIR 2006 SC 3010 Pulicherla Nagaraju alias Nagaraja Reddy Vs. State of Andhra Pradesh; and (iii) (2005) 12 SCC 657 Bishna Alias Bhiswadeb Mahato and others Vs. State of W.B. 6. We have considered the submissions made by the rival parties and perused the records. 7. In order to prove homicidal death of Sonabai, the prosecution has examined PW 4 Dr. Sanjay Jadhao, who conducted post-mortem examination on dead body of Sonabai. He deposed that he found the following injuries on deceased Sonabai:- Stab wound over left chest in supra clavicular region just above middle 1/3 of shaft of Clavicle, size 1. in length x ½ penetrating parietal pleura and apex of lung. He further deposed that the said injury was ante-mortem. He observed that petechiae haemorrhage over peritoneum and pericardium. The cause of death was due to perital pleura and left apex of lung which resulted in the death of deceased Sonabai. The witness identified his signature on the post-mortem report (Ex.50). He further deposed that the injury mentioned in column 17 could have been caused by weapon i. e. Koyata (Article 5) which was shown to him. In cross-examination of this witness, nothing tangible has been brought on record to discredit his testimony. Thus, the evidence of this witness clearly proves that death of Sonabai was homicidal. P.W. 4 Sanjay Jadhao has also deposed that on 15.11.2000 he examined Kavita Rathod (PW 5), Shravan Rathod (PW 3) and Ramesh Rathod (PW 2). His evidence discloses that all the three witnesses, who were referred by the police, had simple injuries. The evidence of doctor stands corroborated by certificates (Ex.46, 47 and 48). In cross-examination, nothing tangible has been brought on record to discredit the testimony of this witness. Thus, evidence of the doctor clearly proves that Sonabai died homicidal death and the above three witnesses had simple injuries when they were examined on 15.11.2000. 8. The prosecution claims that PW 2 Ramesh, PW 3 Shravan and PW 5 Kavita are eye witnesses to the incident of assault on Sonabai. Ramesh (PW 2) has stated in his evidence that deceased Sonabai was his mother and Kavita is his daughter and Shravan is his younger brother and accused nos. 8. The prosecution claims that PW 2 Ramesh, PW 3 Shravan and PW 5 Kavita are eye witnesses to the incident of assault on Sonabai. Ramesh (PW 2) has stated in his evidence that deceased Sonabai was his mother and Kavita is his daughter and Shravan is his younger brother and accused nos. 1 and 2 are his cousin brothers and accused no.3 Ballu is his uncle. He deposed that on the date of the incident at about 9.00 p. m. Ballu came to his house and started abusing by saying that they did not have money to go to hospital although his father was sick. Ramesh told him that they would be going to the hospital on the next day and he should go to his house and rest. At that time Ballu asked him as to why they were beating him and asked his sons to come there. At that time his mother was there and also accused Subhash and Vilas reached there. They assaulted his mother, who was on the step of the house, with Koyata (sickle). Vilas assaulted his brother with cycle chain and thereafter all the three accused started pelting stones and because of that they had to sleep in the house of Nandu Rathod. The next day morning when he came back to his house he saw that his mother was lying dead. He informed the police patil and narrated the incident. Thereafter police patil came to his house and thereafter he went to the police and lodged report. He stated that he knew that Subhash had assaulted his mother because his mother went inside the house by covering her shoulder portion with her hand. He further deposed that accused beat his mother because of dispute of house and premises. At that time accused were saying that they were having tax receipt. The witness identified his signature on report (Ex.42) and printed F. I. R. (Ex. 43). In his cross-examination certain omissions vis-a-vis police statement have been brought on record. In cross-examination he denied that quarrel took place between his mother and wife of his brother, Shravan who was insane and in that quarrel his mother received injuries. He also denied that on 14.11.2000 he along with his brother Shravan and father Kasandas went to the house of the accused and assaulted them. Printed F. I.R. (Ex. In cross-examination he denied that quarrel took place between his mother and wife of his brother, Shravan who was insane and in that quarrel his mother received injuries. He also denied that on 14.11.2000 he along with his brother Shravan and father Kasandas went to the house of the accused and assaulted them. Printed F. I.R. (Ex. 43) discloses that the reported was lodged at Ner Police Station on 15.11.2000 at 9.50 hours. 9. PW 3 Shravan Rathod deposed that accused nos.1 and 2 are his cousin brothers and accused no.3 is his uncle. Ramesh is his brother. Kavita is his niece. Kasandas is his father and deceased Sonabai was his mother. On 15th of the month before 17/18 months at about 8.00 p. m., he was having meal along with brother Ramesh and Kavita in his house and his mother was also taking meal and the father was sitting on cot. At that time Ballu came to their house and started saying that house tax is much and asked whether Kasandas was ready to pay house tax whereupon Kasandas told him that he was ready to pay tax later since he was short of money. To that, the accused started saying that he would not pay the tax and asked Subhash and Vilas who were there in the house that they should drive them out of house. Thereafter all the accused came in the house and started beating him and his brother Ramesh. He was assaulted by Vilas by cycle chain and accused Subhash assaulted with stick and accused Ballu started pelting stones. He and his brother became unconscious. His mother went outside the house to see whether the accused persons had gone. Accused Subhash and Vilas were hiding themselves near door. His mother tried to poke outside the house from the door at that time accused assaulted with Koyata whereupon she started shouting .Meli Meli. and she fell down. She received injuries near neck. At the time of assault by Subhash, Sonabai, his brother Ramesh w/o Ramesh and Kavita were not in the house because they had been to the house of Nandu Rathod. He further stated that he came to know that Subhash assaulted his mother. He further stated that on the next day he and Ramesh were examined by doctor since they were having injuries. He further stated that he came to know that Subhash assaulted his mother. He further stated that on the next day he and Ramesh were examined by doctor since they were having injuries. According to witness, the quarrel took place on account of dispute of the house. The witness identified Koyata and cycle chain (Articles 5 and 6) as the weapons which were with the accused. In cross-examination of this witness, certain contradictions have been brought on record which have been duly proved. The witness stated that though his wife is insane she was not present in the house at the time of the incident. The witness denied that the accused was assaulted by his wife and that he was falsely implicated the accused. He further denied that on 14.11.2000 he along with his brother and father attacked accused by visiting their house. 10. PW 5 Kavita deposed that on the date of the incident Ballu started pelting stones. When she was standing at the door, her grandmother came on the door and at that time Subhash assaulted her with Koyata. She saw the assault by accused Subhash because she followed Sonabai. Thereafter Sonabai came in the house and fell down. Again the accused pelted stones. Vilas assaulted her uncle by chain. She identified Koyata and chain (Articles 5 and 6). In her cross-examination she has been confronted with her police statement wherein she has not stated that her grandmother was assaulted at door by Subhash. 11. The scrutiny of the evidence of the above three witnesses who are injured witnesses leaves no manner of doubt that all three of them were assaulted by the accused. This is corroborated by the evidence of Dr. Sanjay Jadhao, who has confirmed about the presence of simple injuries on the person of these witnesses when examined on 15.11.2000. No doubt, there are certain contradictions in the testimonies of these witnesses. However, upon over all analysis of the evidence of the three witnesses, we are satisfied that the prosecution has been able to prove the assault by the appellant (accused no.1) by Koyata on deceased Sonabai on her neck causing her injury which resulted in her death. Similarly, the prosecution has been able to prove that all the accused caused simple injuries to PW 2 Ramesh, PW 3 Shravan and PW 5 Kavita. Similarly, the prosecution has been able to prove that all the accused caused simple injuries to PW 2 Ramesh, PW 3 Shravan and PW 5 Kavita. Moreover, the evidence of the above three witnesses and the medical evidence stands corroborated by recovery of weapons i.e. Koyata (sickle) and cycle chain at the instance of the appellant on 18.11.2000 from the house of the appellant. The evidence of PW 1 Pravin Kale insofar as the recovery of the weapon at the instance of the accused is concerned, stands corroborated by memorandum of admission of the appellant (Ex. 39) and recovery panchanama (Ex.40) and also by the evidence of the Investigating Officer PW 7 Devanand Vantarum. 12. In view of the submission made by Mr. Daga regarding nature of the offence committed by the appellant, the next question which arises for consideration is what offence is made out against the appellant. 13. The prosecution evidence establishes that there was dispute regarding the house in which Ramesh Rathod was staying along with Kasandas, his wife and children and other family members and accused no.3 Ballu wanted Kasandas to pay house tax in respect of the said house. The prosecution evidence also discloses that relations between the accused and family of Kasandas were strained. However, the prosecution evidence does not establish that the appellant or other accused had any specific grievance or personal enmity against deceased Sonabai. No doubt, the assault by the appellant on Sonabai was on her vital part but the fact remains that the appellant gave only one blow to deceased Sonabai when she tried to poke outside the door. 14. No doubt, mere fact that the appellant gave only one blow on deceased Sonabai would, by itself, be not relevant for the purpose of deciding whether Section 302 or 304 of the Indian Penal Code is made out against the appellant. However, the fact remains that in the present case, as stated above, the assault on Sonabai by the appellant with Koyata (sickle) was after quarrel that took place between the accused and Ramesh. There was no personal enmity between the appellant and deceased Sonabai. Appellant assaulted deceased Sonabai when she tried to poke out of the door. However, the fact remains that in the present case, as stated above, the assault on Sonabai by the appellant with Koyata (sickle) was after quarrel that took place between the accused and Ramesh. There was no personal enmity between the appellant and deceased Sonabai. Appellant assaulted deceased Sonabai when she tried to poke out of the door. Therefore, we are of the considered opinion that the prosecution evidence does not establish that the appellant intended to cause murder of Sonabai but the prosecution evidence clearly establishes that the appellant caused injury to deceased Sonabai on vital part which was likely to cause her death. In our opinion, therefore, offence under Section 304 Part I of the Indian Penal Code is made out against the appellant. 15. Having regard to the facts and circumstances of the case, we are of the opinion that interest of justice would be met, if the substantive sentence of 10 years and fine of Rs. 1000/-, in default to undergo R.I. for three months is imposed on the appellant. 16. For the reasons aforesaid, the appeal is partly allowed. The conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code is quashed and set aside and the appellant is convicted for offence punishable under Section 304 Part I of the Indian Penal and sentenced to undergo R.I. for 10 years and to pay fine of Rs.1000/- and in default to undergo R.I for three months. The conviction recorded and sentence imposed by the Trial Court upon the appellant by the impugned judgment for offence under Section 323 read with Section 34 of the Indian Penal Code is maintained. Both the sentences shall run concurrently. Needless to mention that the appellant is entitled to set off in terms of Section 428 of the Code of Criminal Procedure. The appeal is disposed of in the aforesaid terms.