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2019 DIGILAW 1503 (BOM)

Deepak v. State Of Maharashtra

2019-06-28

K.K.SONAWANE, T.V.NALAWADE

body2019
JUDGMENT K.K. Sonawane, J. - The appellant convict calls-in-question the legality and validity of impugned judgment and order of conviction and resultant sentence of imprisonment of life and to pay fine of Rs. 5000/- in default to suffer rigorous imprisonment of six month for the offence punishable under section 302 of the Indian Penal Code (IPC), rendered by the learned Additional Sessions Judge, Jalna in Sessions Case No. 125 of 2011 dated 10-12-2013, in this appeal to redress his grievance. 2. The prosecution case sans unnecessary details in nutshell is that the ill-fated victim Balabai was the wife of accused Deepak s/o Namdeo Zate, resident of Pimpalwadi, Tq. Malegaon, District Washim. The spouses and their children, namely, son Dnyneshwar 7 years old and son Mangesh 5 years old, were residing by erecting tin shed in the agriculture land Gut No. 321, owned by first informant Sk. Majjid Shaikh Moinuddin, located within the vicinity of village Pimpalgaon. The accused Deepak was eking livelihood by doing agricultural labour work in the field of first informant. The another labourer Shri Rambhau Jadhav was also doing the agricultural work with the accused Deepak in the same field of first informant. 3. According to prosecution, on the unfortunate day of incident i.e. 18- 05-2011, the first informant-owner visited to his agricultural land in the morning hours and gave directions to both his labourer for watering the sugar cane crop. It was the day of weekly Bazar and therefore, he returned to home. In the noon hours at about 3.00 p.m. the accused Deepak, his wife and children came to him and took Rs.400/- for Bazar purpose. At about 8.00 p.m. the another labourer Shri Rambhau Jadhav brought the milky cow from the field and informed that the accused under influence of liquor beating his wife with wooden log and in frightened condition she went running towards cattle shed of Asaram in adjoining land. The first informant immediately passed on information to the in-laws of accused Deepak in the village and rushed to the field. The first informant saw the deceased Balabai w/o accused Deepak lying withered in a pool of blood. She was no more. The land owner-first informant made enquiry about the incident with the elder son Dnyneshwar of the accused. The first informant immediately passed on information to the in-laws of accused Deepak in the village and rushed to the field. The first informant saw the deceased Balabai w/o accused Deepak lying withered in a pool of blood. She was no more. The land owner-first informant made enquiry about the incident with the elder son Dnyneshwar of the accused. He divulged that his mother was assaulted by the father under influence of liquor and she was beaten up by wooden handle of axe, sticks etc. The first informant has also asked about the incident to other labourers residing in the adjoining agricultural land. According to prosecution, the first informant and his associate Javed Qureshi, while returning to village from spot of incident, saw the accused Deepak attempting to hide himself behind the tree. They picked up the accused. There were blood stains on his cloths. He was in a inebriated state. The first informant and his associate Javed Queshi caught hold the accused and took him to Pimpalgaon outpost Police Chowky. The Police personnel at the outpost Police Chowky get verified the occurrence of incident on visiting to the spot. Thereafter, the first informant filed the report about the incident to the Police authority of Ghansavangi Police Station, District Jalna. 4. Pursuant to FIR, Police of Ghansavangi Police Station registered the Crime No. 43 of 2011 under section 302 of the IPC and set the penal law in motion. The accused Deepak came to be apprehended for the sake of investigation. The investigating Officer visited to the spot and drawn the spot panchnama, as well as Inquest Panchnama on the dead body of deceased Balabai. The mortal remains was referred to Government Hospital for autopsy to ascertain cause of death. The blood stains cloths of accused and deceased were seized under panchnama. Investigating Officer recorded statement of witnesses acquainted with the facts of the case. He recovered the weapon of crime wooden handle of axe at the behest of accused under section 27 of the Evidence Act. Investigating Officer collected the relevant documents of P.M. report, C.A report etc. After completion of investigation, IO filed the charge-sheet before the learned Magistrate, Ghansawangi, Jalna and later on it was committed to Sessions Court for trial of the appellant-accused within ambit of law. The proceeding came to be registered as Sessions Case No. 125 of 2011 for further process. 5. After completion of investigation, IO filed the charge-sheet before the learned Magistrate, Ghansawangi, Jalna and later on it was committed to Sessions Court for trial of the appellant-accused within ambit of law. The proceeding came to be registered as Sessions Case No. 125 of 2011 for further process. 5. The learned Sessions Judge framed the charge against the accused. But , he pleaded not guilty and claimed for trial. In order to bring home guilt of the accused-appellant, prosecution examined in all eleven (11) witnesses in this case. The learned Sessions Judge also recorded statement of accused under section 313 of the Code of Criminal Procedure. After hearing both sides, the learned Sessions Judge appreciated the evidence of prosecution witnesses adduced on record and held the appellant-accused guilty for the offence of committing murder of wife Balabai punishable under Section 302 of the IPC. Accordingly, the learned Sessions Judge passed the judgment of conviction and imposed the sentence as indicated above. The impugned Judgment and order of conviction and resultant sentence is under challenged in this appeal. 6. The learned counsel Shri Salunke for the appellant vehemently submits that the evidence adduced on record is not credible and cogent. The entire prosecution case is rest on circumstantial evidence. The minor son of the appellant-accused was prompted and tutored by the grand parents i.e. parents of deceased Balabai. The evidence of minor son found suspicious and not inspire confidence. The appellant -accused was under the influence of liquor at the time of alleged incident. He had no intention to kill the wife. But, in a fit of rage he assaulted the wife. According to learned counsel in any circumstances the offence under section 302 of the IPC is not made out. The learned APP raised objection and submits that no case is made out for interference at the instance of appellant-accused. 7. The PW-8 Dr. Sunil Diwase conducted the post mortem on the dead body of victim Balabai. The post mortem report is at (Exhibit-43). According to Medical Experts, there were multiple bruises on the face, shoulders, chest, abdomen, legs, thighs and buttocks as well as haematoma was seen developed under the skin of these injuries. All the external injuries were ante-mortem in nature. The P.W.8 Dr. Diwase also noticed multiple bruises of variable sizes on the scalp and also sub-dural frontal intra-cranial haematoma of size 5x7x10 cm. All the external injuries were ante-mortem in nature. The P.W.8 Dr. Diwase also noticed multiple bruises of variable sizes on the scalp and also sub-dural frontal intra-cranial haematoma of size 5x7x10 cm. According to Medical Experts, the death of deceased Balabai must have been occurred due to cardio respiratory arrest secondary to haemorrhagic shock following head injury. He opined that the injuries seen on the mortal remains of deceased Balabai during autopsy were sufficient to cause death of victim in ordinary course of nature. Obviously, the medical evidence on record and injuries received to victim Balabai, categorically adumbrates that the death of deceased Balabai was homicidal in nature. There was absolutely no possibility of suicidal or accidental death of deceased Balabai. 8. The PW1- Shaikh Majid S/o Shaikh Moinuddin deposed that on the day of incident i.e. 18-05-2011, in the morning hours, he had visited to his field and gave instructions to both labourers i.e. accused Deepak and one Rambhau for watering the Sugar-cane crop. It was the day of weekly bazar, and therefore, in the noon hours, the accused Deepak accompanied with his wife and children came to him and took the amount of Rs. 400/- for bazar purpose. However, in the night at about 8.00 p.m. the labour Rambhau informed him that the accused Deepak was beating to his wife. He was in drunken condition and his wife went running towards houses of labourers residing in adjoining land. The PW-1 Shaikh Majid and his associate, after communicating about the incident to in-laws of accused, rushed to field and saw the deceased in pool of blood. She was no more. The first informant made enquiry with elder son of accused as well as other labourers residing in the adjoining land. They all disclosed to the PW1 Shaikh Majid that accused-appellant beaten up his wife Balabai severally by Bamboo stick handle of axe, stone etc. Thereafter, while returning from the field, the PW1-Shaikh Majid saw the accused attempting to hide himself behind the tree. The PW-1 Sk Majid caught hold the accused. There were blood stains on his cloths. Thereafter, the accused was handed over to the Police for further process. In the following morning the PW-1 Shaikh Majid filed the FIR(Exhibit-14) of the incident to Police. 9. The PW-1 Sk Majid caught hold the accused. There were blood stains on his cloths. Thereafter, the accused was handed over to the Police for further process. In the following morning the PW-1 Shaikh Majid filed the FIR(Exhibit-14) of the incident to Police. 9. The PW7- Dnyneshwar, the minor son of the accused stepped into the witness box and testified that on the day of incident, his father i.e. accused was in an inebriated state and asked his mother i.e. deceased Balabai to prepare a fish for meal as one person has brought the fish on that day. According to PW-7 Dnyaneshwar, his mother Balabai did not budge for cooking the fish, and on that count the accused became furious and starting assaulting the mother on head, forehead, limbs etc. The accused attacked the wife with handle of axe, bamboo stick etc. The other incriminating circumstances on record ruled out the possibility of tutoring or prompting the child witness by his grant-parents, who are rustic and illiterate one. 10. Pw-6 Shankar More father of deceased Balabai stated that his sonin-law accused-Deepak was addicted to liquor. After receipt of information about the incident, he immediately rushed to the spot and saw the dead body of daughter Balabai. The PW2- Shaikh Moin was the son of land owner PW1- Majid. He has also stated that accused was addicted to liquor and he always used to harass wife under influence of liquor. The PW-10 Gangubai Kale testified that on the day of incident in the evening hours at about 6.00 p.m. the deceased Balabai in a frighten condition came running to her and disclosed that her husband is beating to her and thereafter she went towards field of Banana tree to hide herself. The accused Deepak in search of wife came there and caught hold the hand of wife-Balabai and took her by dragging towards his house in the field of PW-1 Shaikh Majid. 11. It is seen from the record that prosecution recovered the blood stains cloths of the deceased and accused under panchnamas (Exhibits-26 and 29). The PW 11- Investigating officer Mr. Pathan collected the articles lying on the spot under panchnama (Exhibit-24) including the blood stain stone, Bamboo stick etc. The weapon Axe with broken handle was impounded under section 27 of the Evidence Act at the behest of accused under memorandum and recovery panchnamas (Exhibits-31 and 32). The PW 11- Investigating officer Mr. Pathan collected the articles lying on the spot under panchnama (Exhibit-24) including the blood stain stone, Bamboo stick etc. The weapon Axe with broken handle was impounded under section 27 of the Evidence Act at the behest of accused under memorandum and recovery panchnamas (Exhibits-31 and 32). The CA report (Exhibit-68) reflects that all these articles were stained with human blood. Surprisingly, no blood was detected on the Article No. 14- Axe blade or on broken handle of the Axe. These circumstances indicate that the Axe was not used as prime weapon for assaulting the deceased Balabai. However, there were blood stain on Bamboo stick. 12. In view of aforesaid discussion, it is evident that on the day of incident i.e. 18-05-2011 in the wee hours of night there was quarrel in between appellant-accused and his wife deceased Balabai on account of cooking the fish for meal. The appellant-accused was under the influence of liquor during the relevant period. The deceased Balabai did not budge in favour of husband-appellant-accused for cooking fish in the meal. The appellant-accused became furious on refusal of wife for preparing fish. The prosecution succeeded to prove that accused, in fit of rage started assaulting wife Balabai and fearing the severe beating she went running towards huts of labourers residing in the adjoining agricultural land. She disclosed about the assault by appellant-accused to PW 10- Ganguabai and requested her to allow herself to hide in the field of Banana trees. Thereafter, hapless wife Balabai attempted to conceal herself in the field of Banana trees, but the appellant-accused came there and caught hold hand of wife Balabai. He took Balabai by dragging towards his shanty. According to prosecution, thereafter, she was severely beaten up by husband-accused resulted into her death. 13. It would be reiterated that the prosecution succeeded to prove presence of the deceased and accused as well as PW 7-Dnyneshwar, son of the spouses at the scene of occurrence during relevant period. PW 10- Gangubai divulged about the quarrel between the spouses on the day of incident and aggressive demeanour of the husband which made the wife Balabai to escape from his clutches and rushed towards houses of labours of adjoining lands to take shelter. But, she did not succeed and the appellant - accused bring her back to their residence and assaulted her severely. But, she did not succeed and the appellant - accused bring her back to their residence and assaulted her severely. The post mortem report is produced on record. The evidence of PW 8-Dr. Sunil Diwase categorically demonstrate that the deceased Balabai died due to cardio respiratory arrest secondary to haemorrhagic shock owing to head injury. There were multiple bruises upon the face, shoulder, chest, abdomen, legs, thighs and buttocks of the deceased. During internal examination, Medical Expert came across with sub-dural, frontal intera-cranial haematoma present of size 5 X 7 X 10 cm. Obviously, these injuries were according to Medical Expert are sufficient to cause death of deceased in ordinary course of nature. In view of medical evidence on record, there is no doubt that death of deceased Balabai was homicidal in nature and accused-husband was responsible for the alleged homicidal death of the wife-deceased Balabai. 14. Moreover, as referred above, the blood stains cloths were seized during the course of investigation. The weapon recovered from the spot as well as weapon Axe at the behest of accused under Section 27 of the Cr.P.C. were referred for CA examination. There were blood stains detected on the Bamboo stick and stones recovered from the scene of offence under spot panchnama (Exhibit-24), but no blood stains were seen on the blade of the Axe or its handle. But, there were blood stains detected on the cloths of the accused. These circumstances available on record are sufficient to draw adverse inference against accused that he has an nexus and proximity with the alleged cause of death of deceased Balabai. Therefore, the conclusion drawn by the learned trial Court about guilt of the appellant-accused for the death of deceased Balabai appears to be justifiable and reasonable one. The prosecution has proved that appellant-accused was author of injuries sustained to his wife - deceased Balabai. 15. But, question is remained to be ponder over as to whether learned trial Court was right in convicting the appellant-accused under Section 302 of IPC. At this juncture, learned counsel Mr. Salunke for the appellantaccused harped on the circumstances that the appellant-accused was under the influence of liquor at the relevant time of incident. The appellant-accused was insisting the wife deceased-Balabai for cooking fish in the meal, but she refused for the same. The drunken appellant-accused became furious and started assaulting wife with Bamboo stick, stones etc. Salunke for the appellantaccused harped on the circumstances that the appellant-accused was under the influence of liquor at the relevant time of incident. The appellant-accused was insisting the wife deceased-Balabai for cooking fish in the meal, but she refused for the same. The drunken appellant-accused became furious and started assaulting wife with Bamboo stick, stones etc. The learned counsel Mr. Salunke gave much more emphasis on the circumstances that as there was no blood detected on the blade of weapon Axe or its handle, the inference can be drawn that weapon Axe was not used by accused for assaulting wife on vital part of the head. There was no intention of the appellant-accused to kill the wife Balabai, but in a fit of rage, he attacked wife and inflicted injuries, which resulted into her death. Therefore, Mr. Salunke, learned counsel submits that liability of the appellant-accused would not travel beyond the scope of section 304 (II) of the IPC. 16. In our opinion, there is considerable merit in the contentions propounded on behalf of learned counsel Mr. Salunke for the appellant. We have discussed as above the attending circumstances on record in detail, in which death of deceased Balabai occurred following head injury. Obviously, it cannot be said that the accused used the weapon Axe during incident for inflicting serious injuries to the victim Balabai. But, there are circumstances for inference that she was being attacked by weapon Bamboo stick and not by weapon Axe. Therefore, the nature of weapon used by the accused for attacking wife Balabai during the course of incident, the inebriated state of the accused during relevant period and commission of the alleged act of assault in fit of rage, after refusal of wife for cooking fish in the meal, all these circumstances would constrained to persuade ourselves that the alleged act of appellant-accused will not fall within the ambit of Section 300 of the IPC, but it would come under Part-II of Section 304 of the IPC. We are of the considered opinion that the provisions of Section 304 Part II of IPC would attract to the act of appellant-accused, which amounts to culpable homicide not amounting to murder. The factual aspect of the matter referred above reflects that the appellant-accused in an inebriated state ventured to attack the wife with Bamboo stick etc. We are of the considered opinion that the provisions of Section 304 Part II of IPC would attract to the act of appellant-accused, which amounts to culpable homicide not amounting to murder. The factual aspect of the matter referred above reflects that the appellant-accused in an inebriated state ventured to attack the wife with Bamboo stick etc. and inflicted multiple injuries like bruise on most of the part of body. It can be inferred that he had an knowledge that by his act he could cause death of wife - Balabai despite the same he continued to attack wife Balabai. Therefore, we proposed that the conviction of the appellant/accused under Section 302 of the IPC awarded by learned trial Court is required to be set aside and quashed and appellant- accused is to be convicted under Section 304(II) of the IPC instead of Section 302 of the IPC. Definitely, it would sub-serve the purpose in the interest of justice. Accordingly, the appeal deserves to be allowed. Hence, we proceed to pass following order: :: ORDER :: (i) The Criminal Appeal is partly allowed. (ii) Judgment and order dated 10-12-2013 passed by the learned Additional Sessions Judge-1 Jalna, in Sessions Case No. 125 of 2011 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside. (iii) The appellant-accused stands acquitted for the offence punishable under Section 302 of the Indian Penal Code, but he is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and he is sentenced to suffer imprisonment for the period already undergone, which is more than eight (08) years and to pay a fine of Rs. 5000/-, in default of making payment of fine amount, he shall suffer Rigorous Imprisonment for two months. (iv) The bond under Section 437-A of Code of Criminal Procedure, 1973 is to be obtained from him for period of six months. In case, State challenging the decision in Supreme Court, accused to appear in the matter. (v) Writ of this order be sent to the Jail authority concerned, as appellant-accused is in jail, for his release forthwith, on obtaining bond as provided in Section 437-A of the Code of Criminal Procedure, 1973 of Rs. 15,000/- (Rupees Fifteen Thousand) with one surety of like amount for a period of six months. (v) Writ of this order be sent to the Jail authority concerned, as appellant-accused is in jail, for his release forthwith, on obtaining bond as provided in Section 437-A of the Code of Criminal Procedure, 1973 of Rs. 15,000/- (Rupees Fifteen Thousand) with one surety of like amount for a period of six months. (vi) The order regarding muddemal property is maintained as it is. (vii) Operative part of this order be sent to Jail Authority immediately for compliance.