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2017 DIGILAW 31 (BOM)

Raghunath Jiroji Dhurve v. State of Maharashtra

2017-01-05

B.R.GAVAI, INDIRA JAIN

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JUDGMENT : B.R. Gavai, J. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Amravati dated 20.1.2015 in Sessions Trial No. 118/13, thereby convicting the appellant for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5,000/- and in default, to suffer R.I. for six months, the appellant has approached this Court. 2. The prosecution case as could be gathered from the material placed on record, in brief, is thus : PW.2 Bhimrao Fagana Dhurve who at the relevant time was the Sarpanch of the village Mothi Bhemadi lodged a report with the Police Station Warud informing that the accused Raghunath Jiroji Dhurve had come to him in the morning and told him that yesterday evening, i.e. on 4.2.2012 his wife Chandrakala had gone to Warud with son Radheshyam to get the Aadhar Card. The accused further informed that when the deceased Chandrakala and her son had returned in the evening Chandrakala was under the influence of liquor. He further informed him that when he was tying the cows, the deceased Chandrakala started murmuring and, therefore, he gave 24 blows of stick to her. He further informed that she fell down near the Nali in front of his house and became unconscious and, therefore, he lifted her and put on the bed in the house. After taking meal, he and his son slept and in the morning when he tried to wake her up, she was not awaking and, therefore, he came to him and informed him about the incident. It is further stated in the FIR that on such information being given by the accused, PW.2 Bhimrao was going to the house of the accused along with the accused. At that time, they met one Hariram Bakaram Warkhade. On reaching the house of accused, they saw Chandrakala in a dead condition. 3. On the basis of oral report of PW.2 Bhimrao, the First Information Report came to be lodged below Exh. 20 for the offence punishable under Section 302 of the Indian Penal Code. Investigation was set into motion. The postmortem of the deceased was conducted. The accused was arrested and his blood stained clothes were also seized. 3. On the basis of oral report of PW.2 Bhimrao, the First Information Report came to be lodged below Exh. 20 for the offence punishable under Section 302 of the Indian Penal Code. Investigation was set into motion. The postmortem of the deceased was conducted. The accused was arrested and his blood stained clothes were also seized. At the conclusion of investigation, a charge-sheet came to be filed against the accused in the Court of learned J.M.F.C., Warud for the offence punishable under Section 302 of the Indian Penal Code. However, since the case was exclusively triable by the Court of Sessions, the same came to be committed to the learned Sessions Judge, Amravati. The learned trial Judge framed the Charge below Exh. 7. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeal has been filed. 4. Shri Rahul Dhande, learned Counsel appointed for the appellant, submits that the evidence of PW.2 Bhimrao Dhurve and PW.3 Parwat Iwanate cannot be taken into consideration, inasmuch both the witnesses have admitted that there were inimical relations between the appellant and the said witnesses. The learned Counsel further submits that in any case assuming that the evidence of these witnesses is acceptable, even then a case for offence punishable under Section 302 of the Indian Penal Code would not be made out. 5. Shri M.K. Pathan, the learned Additional Public Prosecutor for the respondent State, on the contrary submits that PW.3 Parwat Iwanate is an eyewitness. He submits that his testimony is trustworthy and reliable. He further submits that apart from the eyewitness account of PW.3 Parwat, there is an extrajudicial confession made by the accused to PW.2 Bhimrao Dhurve which is voluntary and as such, the order of conviction and sentence warrants no interference. 6. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinized the entire evidence on record. 7. From the evidence of PW.1 Dr. Jagdish Kalbhor and the postmortem report below Exh. 11, it is clear that the death of the deceased Chandrakala is homicidal. 6. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinized the entire evidence on record. 7. From the evidence of PW.1 Dr. Jagdish Kalbhor and the postmortem report below Exh. 11, it is clear that the death of the deceased Chandrakala is homicidal. We would, therefore, be called upon to consider as to whether the prosecution has proved that the present appellant is the author of the crime and as to whether the offence would fall under Section 302 of the Indian Penal Code or not. 8. The perusal of the material placed on record would reveal that the PW.3 Parwat who is a neighbour of the deceased has stated that on the day of the incident at around 9 p.m. in the night he heard the noise of quarrel between the accused and his wife. He and his wife came out of the house. He had seen Raghunath beating his wife by stick. His wife was abusing him. He has further stated that the quarrel was usual and he went inside his house and slept. He further states that on the next day, he saw that people had gathered near the house of the accused. Police came and made panchnama. He acted as a panch on the panchnamas. Police also seized the blood stained clothes of the accused in the Police Station. Though a suggestion was given to this witness that there was a quarrel between him and the appellant, the same is denied. We find that the testimony of this witness that there was a quarrel between the accused and the deceased and on account of that quarrel the accused assaulted the deceased is trustworthy and reliable. 9. PW.2 Bhimrao, who was at the relevant time the Sarpanch of the village, in his deposition has stated thus : "At about 8:00 AM on 5th accused Raghunath came to my house. He told me that on 4th his wife and son had gone to take Addhar kard. He told me that they returned in evening. He told me that his wife Chandrakala was under influence of liquor. He was tieing the cattles and she was making noise. He told that he bet her by stick blows; and due to that she felled near Nali. He told me that he lifted her and brought in house; and put her on bed. He told me that his wife Chandrakala was under influence of liquor. He was tieing the cattles and she was making noise. He told that he bet her by stick blows; and due to that she felled near Nali. He told me that he lifted her and brought in house; and put her on bed. He also told that she was unconscious due to drinking of liquor and he lifted her and brought in house. He told me that thereafter he and his son took meal and slept. He also told me that in morning he tried to wake up her but she had not woken up. He came to me and asked me to come to his and see her." 10. The Division Bench of this Court in the case of Rameshwar s/o Dinaji Dhawde v. The State of Maharashtra reported in 2016 AllMR(Cri) 3864, after considering various pronouncements of Their Lordships of the Apex Court, has observed thus : "12. It could thus be seen that after surveying the earlier position of law, Their Lordships of the Apex Court came to the conclusion that the extrajudicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. It has further reiterated that the extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extrajudicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it." 11. It could be seen that in the present case, a person to whom extrajudicial confession is given is the Sarpanch of the village. It is quite natural that a villager after committing a crime would go to the Sarpanch or the Police Patil of the village to give the information. From the perusal of the evidence of PW.2 Bhimrao, it is clear that the extrajudicial confession was voluntary and in a fit state of mind. The words are clear, unambiguous and clearly convey that the accused is a perpetrator of the crime. In any case, in the present case, we are using the aforesaid extrajudicial confession only for the purpose of corroborating the testimony of PW.3 Parwat. The words are clear, unambiguous and clearly convey that the accused is a perpetrator of the crime. In any case, in the present case, we are using the aforesaid extrajudicial confession only for the purpose of corroborating the testimony of PW.3 Parwat. In that view of the matter, in view of the eyewitness account of PW.3 Parwat and extrajudicial confession given to PW.2 Bhimrao, we are of the considered view that the prosecution has proved beyond reasonable doubt that it is the present appellant who has committed the crime. 12. That would lead us to the next question as to whether the offence would fall under Section 302 of the Indian Penal Code or not. From the evidence of PW.3 Parwat, it could be seen that when he has returned to the home he had heard the quarrel between the present appellant and his wife at around 9 p.m. When they came outside their house, they saw accused beating his wife by stick. He further states that the wife of the accused was abusing to him. He has further stated that quarrel was usual and he went in his house and slept. In cross-examination, he has clearly admitted that the deceased was under the influence of liquor. He has further stated that he had seen her lying near the Nali near the house of Raghunath. He has further stated that he did not pay attention to her and as she was used to consume liquor and make noise and murmuring. 13. The perusal of the extrajudicial confession would also reveal that the accused informed PW.2 Bhimrao that when his wife returned from Warud in the evening of the day of incident, she was under the influence of liquor. She was making noise and, therefore, he beat her by stick blows and due to that she fell near Nali. He, therefore, lifted her and brought to his house and put her on bed. He thought that she was unconscious due to drinking of liquor. However, since he did not wake up in the morning he informed the Police Patil about the same. It could thus be clearly seen that the accused had no intention to cause death of the deceased. He thought that she was unconscious due to drinking of liquor. However, since he did not wake up in the morning he informed the Police Patil about the same. It could thus be clearly seen that the accused had no intention to cause death of the deceased. In a quarrel which took on account of the deceased abusing the appellant, under the influence of liquor, it appears that the appellant has assaulted her with stick, which is commonly found in the village. It is not as if he has used dangerous weapon. Therefore, we find that the case would not fall under Section 302 but rather under Part II of Section 304 of the Indian Penal Code. 14. In the result, the Criminal Appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 of Indian Penal Code are set aside and altered to one under Part II of Section 304 of the Indian Penal Code. The appellant/accused is sentenced to undergo R.I. for six years for the said offence. Rest of the order including in respect of fine, etc. is maintained. Fees payable to the learned Advocate, who was appointed to appear on behalf of the appellant, are quantified at Rs.5000/- (Rupees Five thousand)." Appeal partly allowed.