Research › Search › Judgment

Bombay High Court · body

2015 DIGILAW 826 (BOM)

Ravi v. State of Maharashtra

2015-03-24

A.B.CHAUDHARI, P.N.DESHMUKH

body2015
JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by the Judgment and Order dated 12th September, 2012, passed by learned Additional Sessions Judge-2, Amravati, in Sessions Trial No. 169 of 2009, convicting the appellant - Ravi Vitthalrao Rokade and sentencing him for offences under Sections:- "[a] 302, Indian Penal Code [Rigorous Imprisonment for Life and payment of fine of Rs. 500-00, in default, further Rigorous Imprisonment for two months], and [b] 506, Indian Penal Code [Rigorous Imprisonment for seven years and fine of Rs. 500/-, in default, Rigorous Imprisonment for two months], the present appeal has been filed by the appellant." Facts: Briefly stated, the case of the prosecution is that the complainant - Vimlabai Gajbhiye has a daughter Lalita, whose husband went missing, not to return, and hence Lalita used to reside in her house in the village of her father, namely Bhilli. The appellant-accused Ravi Rokade residing in the same village fell in love with her and Lalita started residing with him in his house. Appellant Ravi was addicted to liquor and used to give threats to the complainant and her husband. Two-three months before the date of incident, complainant's husband Bapurao and son Kisna fed up with the harassment by appellant - Ravi assaulted him by sticks on his legs. But still he did not improve. 2. On 12th June, 2009, at about 8.00 p.m., a boy informed the complainant that Ravi was assaulting her husband Bapurao and, therefore, she rushed towards the place near bus stop on the road going towards old Bhilli village where she saw Ravi assaulting her husband by means of a stick. She tried to restrain him with a request not to assault, but to no use, and threatened to beat her also. The appellant caught hold of the feet of Bapurao, dragged him on the road and assaulted him with a stick. Deceased Bapurao lay unconscious. The stick was broken into two pieces. Bapurao died. Offence was registered with Police Station on the report lodged by Vimalabai vide Crime No. 50/2009 under Sections 302 and 506 of Indian Penal Code. Police visited the spot and arrested the appellant. Thereafter, seizures were made, spot Panchanama was conducted and dead body was sent for post mortem examination. Investigation was completed and charge-sheet was filed. 3. The prosecution examined as many as eight witnesses and closed the case. Police visited the spot and arrested the appellant. Thereafter, seizures were made, spot Panchanama was conducted and dead body was sent for post mortem examination. Investigation was completed and charge-sheet was filed. 3. The prosecution examined as many as eight witnesses and closed the case. The Trial Court convicted the appellant as above. Hence this appeal. 4. In support of the appeal, learned counsel [appointed] for the appellant submitted that the evidence of the informant -complainant-Vimalabai [PW 1] is unreliable and, as a matter of fact, the evidence of other witnesses, if compared to her evidence, clearly shows that she had arrived at the spot after the incident was over and when the appellant was not there on the spot. According to him, Vimal [PW 1], therefore, could not be called as an eye-witness and, therefore, her evidence has wrongly been relied by learned Trial Judge. He then submitted that Vimal claimed to have been informed by Nilu Meshram, a child, but Nilu Meshram was not examined before the Court and that is another reason why she should be disbelieved. 5. Learned counsel then invited our attention to the evidence of Devrao [PW 2] relied upon by the Trial Judge, and submitted that similar is the evidence of Devrao which is totally in the form of omissions amounting to contradictions on material particulars. The evidence of Devrao [PW 2] is also required to be rejected, since there is total improvement in the prosecution case. 6. Commenting on the evidence of Sunil Borkar [PW 4], appellant's counsel submitted that the evidence of Sunil is contradictory and he does not corroborate any other witness and on the contrary, stated in his cross-examination that Vimal [PW 1] had arrived at the spot after the incident and, therefore, the court below should have drawn an inference that Vimal was not an eye-witness. Thus, the alleged direct evidence relied upon by the Trial Judge could not have been relied upon by the Trial Judge, and was required to be rejected. 7. The case was, therefore, without any eye-witness. In the alternative, Mr. Joshi, learned counsel, contended that no offence under Section 302 of Indian Penal Code was made out, since the injuries, if seen, are not on the vital parts of the body, except for one injury, that too is superficial. 7. The case was, therefore, without any eye-witness. In the alternative, Mr. Joshi, learned counsel, contended that no offence under Section 302 of Indian Penal Code was made out, since the injuries, if seen, are not on the vital parts of the body, except for one injury, that too is superficial. The motive, if seen, is not such that the appellant could be convicted or any inference would be drawn that the appellant had an intention to commit murder. He, therefore, submitted that at the most, the offence would fall in the category of Section 304Part-II, Indian Penal Code. 8. Per contra, learned APP for the respondent-State supported the impugned Judgment and Order and prayed for dismissal of the appeal. 9. We have heard learned counsel for the rival parties. We have gone through the entire evidence of the eyewitnesses. We are satisfied from the evidence of Vimalabai [PW 1] that evidence of Deorao [PW 2] and Sunil [PW 4] on material particulars about the assault by the appellant is not at all shaken and on the contrary, her evidence corroborates each other. To say that Vimalabai must have come on the spot after the incident of assault was over and, therefore, she had no occasion to see the assault by appellant is not correct, since more than hundred people had gathered on the spot and it was not possible for Sunil [PW4] to specifically locate Vimalabai as to when she came on the spot. At any rate, Sunil [PW 4] might not have noticed her and that must be his impression that she came after the incident, but that does not mean that she arrived after the incident. In this context, the evidence of Vimalabai [PW 1] is consistent and cannot be disbelieved. The submission that Nilu Meshram, the child, was not examined who had informed the complainant about the incident taking place equally does not appeal to us. It was not necessary for the prosecution to examine the child who had informed the complainant, since she somehow came to know of the incident and immediately proceeded towards the spot to enquire why her husband was being assaulted. Not only that, her evidence is corroborated by the FIR [Exh. 22] lodged by her which clearly depicts a story as stated by her before the Trial Court. Her evidence is also corroborated by Deorao [PW 2] and Sunil [PW 4]. Not only that, her evidence is corroborated by the FIR [Exh. 22] lodged by her which clearly depicts a story as stated by her before the Trial Court. Her evidence is also corroborated by Deorao [PW 2] and Sunil [PW 4]. We have no reason to discard the evidence of eye-witnesses who are three in numbers and, therefore, we are inclined to hold that it was the appellant-accused who thrashed the deceased with a stick. The next question is about the offence that is made out or proved. What we find is that there used to be quarrels in a routine course between the deceased Bapurao and Ravi, and Bapurao was also a drunkard, so also the appellant Ravi. There is an admission given by the witness that Bapurao used to drink and abuse the persons in the locality and used to raise quarrels and that is a fact admitted by Vimalabai [PW 1]. Daughter of the deceased was residing with the appellant Ravi and that was another reason that the quarrels used to take place between them. Two children of his daughter were living along with Lalita and they were being looked after by appellant Ravi. Looking to the injuries to deceased Bapurao, we find that they are on waist and on the parts which are not vital. There is only one injury on the head which caused a fracture and the haemorrhage. Looking to the entire background in which the incident took place, as stated by us above, we think, there was no intention on the part of the appellant to commit the murder of Bapurao. We, therefore, think that the offence committed by the appellant would fall in the category of culpable homicide not amounting to murder under Section 304 Part-I, Indian Penal Code. We, are, therefore, satisfied that this is not a case where the appellant could be convicted under Section 302, Indian Penal Code. There is evidence about the appellant's conviction under Section 506, Indian Penal Code, and Trial Court has convicted and sentenced him to undergo Rigorous Imprisonment for seven years, which is, in our opinion, quite high. We, therefore, confirm the conviction for offence under Section 506, Indian Penal Code, but reduce the sentence to two years' Simple Imprisonment. In the result, we make the following order:- ORDER "[a] Criminal Appeal No. 5 of 2013 is partly allowed. We, therefore, confirm the conviction for offence under Section 506, Indian Penal Code, but reduce the sentence to two years' Simple Imprisonment. In the result, we make the following order:- ORDER "[a] Criminal Appeal No. 5 of 2013 is partly allowed. [b] The impugned Judgment and Order dated 12th September, 2012 passed by the learned Additional Sessions Judge, Amravati, in Sessions Trial No. 169/2009 convicting and sentencing appellant Ravi Vitthalrao Rokade for the offence punishable under Section 302 of Indian Penal Code is modified and instead appellant Ravi Vitthalrao Rokade is held guilty for the offence punishable under Section 304Part-I of Indian Penal Code and is sentenced to undergo rigorous imprisonment for seven years and to pay fine in the sum of rupees five thousand and in default, to suffer rigorous imprisonment for one month. [c] Conviction of the appellant for the offence punishable under Section 506, Indian Penal Code, is confirmed. However, the sentence on that count is reduced to two years' Simple Imprisonment. [d] Rest of impugned order is maintained. [e] The appellant be given set off under Section 428 of Code of Criminal Procedure. [f] The fee payable to the learned Counsel appointed for the appellant is quantified as rupees five thousand."