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2012 DIGILAW 133 (BOM)

Kakdya Pattu Kakara v. State of Maharashtra

2012-01-19

M.L.TAHALIYANI, V.M.KANADE

body2012
Judgment M.L. Tahaliyani, J. Heard Mr. Sait, learned Advocate appointed for the Applicant and Mr. Hingorani, learned A.P.P. appears for the respondent-State. 2. The appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay fine of Rs.800/-, in default, to suffer R.I. for 20 days. 3. The appellant had allegedly assaulted his wife Laxmi which had resulted into her death. It is alleged by the prosecution that the appellant had intention to kill the deceased or he had intention to cause bodily injuries to the deceased which sufficient to cause death in ordinary course of nature. The incident had occurred on 4.2.2004 at the house of the appellant. The appellant was aged about 62 years on the date of incident. The age of the deceased was 60 years. They had a daughter by name Mrs. Janaki S. Dambale. It appears that she was in the house at the time of alleged incident. Her name appears in the list of witnesses. Her statement has not been recorded by the Police. 4. It is alleged that on 5.2.2004, at about 12.00 noon there was a quarrel between the deceased and the appellant. The appellant had demanded money from the deceased. The deceased had refused to oblige him because deceased apprehended that the appellant would drink liquor if he was given money. The appellant, therefore, had allegedly assaulted the deceased. The complainant Bhikar Vitthal Kakara who was staying near the house of the appellant had visited the house of the appellant on hearing the noise. He tried to impress upon the appellant that the appellant should not assault his wife. However, there was no response from the appellant. The complainant, therefore, left the house of the appellant and called the Police Patil. The Police Patil also tried to intervene. However, there was no effect on the appellant. It is alleged that thereafter the appellant had assaulted the deceased by means of stick. Mrs. Janaki the daughter of the appellant and the deceased, therefore, rushed to the complainant's house and informed him that her mother was being assaulted by her father. By the time the complainant reached the house of the appellant and the deceased, deceased had already succumbed to injuries. The matter was reported to the Police. Mrs. Janaki the daughter of the appellant and the deceased, therefore, rushed to the complainant's house and informed him that her mother was being assaulted by her father. By the time the complainant reached the house of the appellant and the deceased, deceased had already succumbed to injuries. The matter was reported to the Police. An offence u/s 302 of the I.P.C. was registered and investigation continued. During the course of investigation, the dead body of the deceased was sent for postmortem examination. Spot panchanama was drawn. Statements of the witnesses were recorded. The Medical Officer, after examining the dead body of the deceased, had opined that the deceased had died due to cardio-respiratory failure due to haemorrhagic shock secondary to trauma to back of thoracic cage. 5. After completion of the investigation, a charge-sheet was filed. In due course the case was committed to the Court of Sessions. A charge was framed against the appellant. The appellant had pleaded not guilty and had claimed to be tried. 6. During the trial, the prosecution had examined in all seven witnesses. Mrs. Janaki, daughter of the deceased and the appellant was not examined for which there does not appear to be any reasonable explanation on the record. The learned Trial Court, however, believed the evidence of the complainant and the Police Patil, and had come to the conclusion that the deceased had committed murder of his wife. 7. During the course of trial, spot panchanam, inquest panchnama and panchanama in respect of seizure of the clothes of the deceased and arrest panchanama were admitted by the appellant. 8. It is submitted by Mr. Sait, learned counsel appearing on behalf of the appellant that the appellant is in the custody from the date of arrest i.e. from 5.2.2004. It is submitted that he was 62 years old at the time of incident. He must be now 75 years of old. On merits, it is submitted that the prime witness Mrs. Janaki has not been examined. It is, therefore, not clear as to how and in what manner the alleged assault took place. Mr. Sait has submitted that the evidence of the complainant does not disclose in what manner and by which weapon the deceased was assaulted by the appellant. The evidence of P.W.2 is also of the similar nature. P.W-4 Lalita Kakara is not an eye witness to the incident. Mr. Sait has submitted that the evidence of the complainant does not disclose in what manner and by which weapon the deceased was assaulted by the appellant. The evidence of P.W.2 is also of the similar nature. P.W-4 Lalita Kakara is not an eye witness to the incident. She had reached the spot after the assault was over and the deceased was dead. PW 6 Police Patil Gajanan Patil has stated that he had called the accused outside his house and he had asked him to stop quarrel with his wife. Thereafter, he went home. He learnt about the death of the deceased at about 9.30 p.m. 9. None of the witnesses had seen the appellant assaulting deceased,. The daughter of the deceased has not been examined. Despite this weakness in the prosecution case, the finding of the trial court that the deceased was assaulted by the appellant cannot be rejected. On the basis of the evidence adduced before the trial court, it could have been said that the circumstances strongly indicated that the deceased was assaulted by the appellant and none else. However, at the same time evidence also discloses that quarrel between the appellant and the deceased was going on for a quite a long time since morning. The death of the deceased was caused due to multiple fractures of ribs. Since Mrs. Janaki, the daughter of the deceased and appellant, has not been examined, it is difficult to ascertain the description of the stick which was allegedly used by the appellant. It is also difficult to say as to how many stick blows were given by the appellant. However, it is clear from the evidence of the complainant and PW 6 Police Patil that they have seen the appellant assaulting the deceased. PW 6 Police Patil had also seen that the deceased was lying inside the house. She was writhing in pain. It, therefore, appears that though no weapon was used by the appellant in the initial stage of quarrel, he was assaulting the deceased continuously. 10. From the evidence on record, it is difficult to say that there was intention on the part of the appellant to kill his wife. No finding can be given that the appellant had intention to cause injuries and that injuries were sufficient to cause death in the ordinary course of nature. 10. From the evidence on record, it is difficult to say that there was intention on the part of the appellant to kill his wife. No finding can be given that the appellant had intention to cause injuries and that injuries were sufficient to cause death in the ordinary course of nature. However, one thing is established by the evidence that the appellant either by fist blows or by kick blows had been assaulting the deceased continuously on the day of the incident. Thereafter, he had used a stick also. 11. Therefore, it is clear that there was no intention on the part of the appellant to kill his wife. There was also no intention to cause bodily injuries of the description sufficient to cause death in the ordinary course of the nature. However, there was intention to cause bodily injuries as were likely to cause death. Therefore, the case of the appellant would fall u/s. 299 of IPC. and his conviction u/s.302 of IPC does not appear to be correct. He, in fact, should have been convicted for the offence punishable u/s. 304-II of the IPC. 12. Hence, the following order is passed: (i) The appeal is partly allowed. (ii) The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. However, his conviction is converted into conviction for the offence punishable under Section 304 Part-II and he is sentenced to suffer R.I. for 10 years. Sentence of fine amount is, however, maintained. (iii) Appellant be released forthwith if he has undergone the entire sentence, unless he is required in any other case. (iv) In view of disposal of the criminal appeal, the criminal application for bail does not survive and the same is accordingly disposed of. (v) Office to serve copy of this order to the Appellant who is in Kolhapur Central jail through the Superintendent of the said Jail.