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2013 DIGILAW 634 (BOM)

Dhanaji Digambar Gaikwad v. State of Maharashtra

2013-03-13

P.D.KODE, V.K.TAHILRAMANI

body2013
JUDGMENT SMT. Y.K. TAHILRAMANI, J. :- This appeal is directed by the appellant-original accused against the judgment and order dated 31.8.2005 passed by the learned 4th Ad-hoc Additional Sessions Judge, Gr. Bombay at Seweree in Sessions Case No. 250 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay a fine of Rs.1000/- in default RI for six months. 2. The prosecution case briefly stated, is as under: The appellant was married to Sakharabai (deceased). The appellant and Sakharabai were residing on the road near Kaju Pada Junction, Link Road, Jogeshwari, Mumbai. PW-1 Sugandha was residing across the road from where the appellant and deceased were residing. The appellant and his wife used to make 'Gajaras' from flowers and earn their livelihood. At the time of the incident, Sakharabai was eight months' pregnant. On 11.9.2003 at about 5.30 a.m. the appellant assaulted his wife with stone on her head. He again assaulted her on her head with stone. Thereafter, he ran away. This incident was witnessed by PW-1 Sugandha who was residing opposite the place where the appellant resided. This incident was also witnessed by PW-2 Shaikh. F.I.R. came to be lodged by PW-6 Sambhaji the maternal uncle of the appellant. Thereafter investigation commenced. The appellant came to be arrested on the very same day. The dead body of Sakharabai was sent for post-mortem. PW-11 Dr. Shivsharan conducted the post-mortem on the dead body of Sakharabai. As far as the external injuries are concerned, he noticed the following injuries : "(1) There was ear, nose and throat bleeding; (2) There was crushing of cranium (head portion) laterally with facial part on cheek by laterally. (3) C.L.W. on right eye brow - 5 cm x 2 cm x bone deep; (4) Second C.L.W. at frontalli left side 5 cm x 4 cm x brain deep with contusion; (5) C.L.W. at occipital region 10 cm x 6 cm x brain deep; (6) There was abraded contusion over back of nape of neck; (7) Right ear pinna torn out 5 cm x 2 cm x muscle deep. (8) C.L.W. at right shin 2 cm x 1 cm x muscle deep. (8) C.L.W. at right shin 2 cm x 1 cm x muscle deep. (9) E.N.T. Bleeding." Internal injuries noticed by Doctor are as under: "(1) There was bleeding under C.L.Ws., full thickness of scalp; (2) Fracture of almost all the bones of cranial cavity with anterior, middle and posterior fossa fractures; (3) Face of cranial cavity was also fractured; (4) There was all membrane layer bleeding with crushing and meshing of brain matter;" After completion of investigation, the chargesheet came to be filed against the appellant under Section 302 of the IPC. In due course, the case was committed to the Court of Sessions for trial. 3. Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned counsel for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, we are of the opinion that the appellant assaulted his wife Sakharabai with stone on her head and caused her death. 5. The conviction is mainly based on the evidence of two eye witnesses i.e. PW-1 Sugandha and PW-2 Shaikh. PW-1 Sugandha has stated that she and the appellant were residing on the road at Kaju Pada, Link Road, Jogeshwari, Mumbai. The appellant was residing on the opposite food path. This witness has stated that on 11.9.2003 at about 5.30 a.m. the appellant assaulted his wife with stone on her head. He again assaulted on her head with stone. Thereafter, he ran away. This incident was witnessed by PW-1 Sugandha who was residing opposite the place where the appellant resided. This incident was also witnessed by PW-2 Shaikh. The evidence of PW-2 Shaikh is on similar lines as that of PW-1 Sugandha. Nothing has been elicited in the cross-examination of any of these two eye witnesses so as to disbelieve their testimony. As far as the evidence of PW-1 Sugandha is concerned, Mr. This incident was also witnessed by PW-2 Shaikh. The evidence of PW-2 Shaikh is on similar lines as that of PW-1 Sugandha. Nothing has been elicited in the cross-examination of any of these two eye witnesses so as to disbelieve their testimony. As far as the evidence of PW-1 Sugandha is concerned, Mr. Sait submitted that her evidence cannot be relied on because her statement was recorded belatedly. He submitted that the incident occurred on 11.9.2003 and her statement was recorded on 24.9.2003. He submitted that thus as her statement was recorded belatedly, it throws doubt on the veracity of her evidence. He submitted that delay in recording her statement shows that she has implicated the appellant by way of an after thought. As far as this contention is concerned, it is noticed that PW-2 Shaikh is also an eye witness to the incident. His statement has been recorded promptly. In his statement, he has stated that the appellant assaulted his wife twice on the head with stone. Thus, even though the statement of PW-1 Sugandha was recorded belatedly, it would not affect the prosecution case. 6. Thereafter, Mr. Sait submitted that the case would not fall under Section 302 of IPC but it would fall under Section 304-II of IPC or at the most under Section 304-I of IPC. He submitted that the incident took place during a sudden quarrel and therefore, the benefit ought to be given to the appellant. As far as this submission is concerned, on perusal of the evidence, it is seen that there is no evidence to show that any sudden quarrel took place. In our view, even assuming that a quarrel took place, this case would not fall under Exception 4 to Section 300 of IPC which covers cases of death caused during a sudden quarrel. 7. To bring the case within Exception 4 of Section 300 of IPC, all the ingredients mentioned in it, must be found. It is pertinent to note that for the application of Exception 4 to Section 300 of IPC, It is not sufficient to show that there was a sudden quarrel. It must further show that offender had not taken any undue advantage or acted in a cruel or unusual manner. In the present case, the appellant gave two blows with a huge stone on the face and head of his wife Sakharabai. It must further show that offender had not taken any undue advantage or acted in a cruel or unusual manner. In the present case, the appellant gave two blows with a huge stone on the face and head of his wife Sakharabai. Blows have caused extensive injuries which are seen from the injuries reproduced in paragraph 2 above. There was fracture of almost of all the bones of the cranial cavity with anterior, middle and posterior fossa fractures. Face of cranial cavity was also fractured. There was extensive crushing of the brain matter. 8. Looking to the injuries and the fact that Sakharabai was eight months pregnant at the time of the incident, we are of the opinion that the appellant had taken undue advantage of the condition of the deceased and acted in a cruel manner. Hence, in the facts and circumstances of the case, we are not prepared to accede to the submission of Mr. Sait that the case would fall under Section 304-II of IPC or 304-I of IPC. In our view, the case would clearly fall under Section 302 of IPC. Thus, we find no merit in the appeal. Appeal is dismissed. 9. At this stage, we must record our appreciation for Mr. Arfan Sait appointed from the High Court Legal Services Committee Bombay to represent the appellant. We find that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs. 2200/-. The said fees be paid to advocate Mr. Arfan Sait, within three months from today. Appeal dismissed.