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2022 DIGILAW 617 (BOM)

Rakesh Zagaru Paswan v. State Of Maharashtra

2022-03-03

N.R.BORKAR, S.S.SHINDE

body2022
JUDGMENT N.R. Borkar, J. - This appeal takes an exception to the judgment and order dated 15.04.2013 passed by the additional Sessions Judge, Greater Bombay in Sessions Case No. 205 of 2012. By the impugned judgment and order, the appellant, who was accused before the trial court, has been convicted for the ofence punishable under section 302 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to sufer life imprisonment. 2] The deceased Poonam Paswan was the wife of the accused. It is the case of the prosecution that the accused was working as a Labourer at the construction site of one Harish Borath. The accused and the other Laborers were staying at the construction site itself at andheri (E), Mumbai. 3] according to the prosecution, the wife of the accused came to reside with him in april 2011. The accused used to suspect the character of the deceased and thus used to beat her under the infuence of liquor. as the accused used to quarrel with the deceased, in June 2011 the accused was sent to another construction site at Kalwa. There also he used to quarrel and beat the deceased under the infuence of liquor. The accused was, therefore, again called back at the construction site at andheri. 4] The incident took place on 16.11.2011. according to the prosecution, on the day of incident at about 8.00 p.m., the accused assaulted the deceased by wooden plank and committed her murder. 5] The report was lodged in relation to the incident with andheri Police Station. On the basis of said report, crime vide Crime No. 415 of 2011 was registered for the ofence punishable under section 302 of the IPC. On completion of investigation, the charge-sheet was fled against the accused for the said ofence. 6] The accused was charged and tried for the abovesaid ofence. The trial court, by the impugned judgement and order, convicted the accused. 7] We have heard the learned counsel for the appellant/accused and learned aPP for the respondent / State. 8] The learned counsel for the appellant/accused submits that the trial court to convict the accused has relied upon the evidence of PW-2 Shailendra Bharti and PW-3 Misrilal Yadav. It is submitted that they cannot be termed as eye-witnesses to the alleged incident. 8] The learned counsel for the appellant/accused submits that the trial court to convict the accused has relied upon the evidence of PW-2 Shailendra Bharti and PW-3 Misrilal Yadav. It is submitted that they cannot be termed as eye-witnesses to the alleged incident. It is submitted that the trial court erred in rejecting the defence of the accused of accidental death of the deceased which in the facts and circumstances of the case was more probable. It is submitted that the trial court was not justifed in convicting the accused for the ofence punishable under section 302 of the IPC and thus the impugned judgment and order needs to be set aside and the appellant/accused needs to be acquitted of the alleged charge. 9] On the other hand, the learned aPP for the respondent / State supported the judgement of the trial court. It is submitted that the trial court on the basis of evidence on record was justifed in convicting the accused for the ofence alleged against him. It is submitted that the appeal, thus, needs to be dismissed. 10] We have perused the evidence on record. according to PW-2 Shailendra Bharti, at the relevant time, he and the accused were working as labourers at the construction site of Divine Child High School, andheri. 11] according to PW-2 the accused used to suspect the character of the deceased. He used to quarrel with her and beat her. On 16.11.2011, the accused came back from his work and started beating his wife (deceased). at that time, their Supervisor PW-3 Mishrilal Yadav was there. The Supervisor told the accused that he will have to leave the job, if he continues to quarrel with his wife. at that time, the accused asked him to give Rs.3000/- so that he can drop his wife (deceased) at his native place. according to PW-2, the Supervisor gave him Rs.2000/-. Thereafter, accused went to market. 12] according to PW-2, the the accused again assaulted the deceased. The accused then requested one Kalicharan to take the deceased to the hospital by stating that the deceased fell down from stairs. Kalicharan asked the accused to come with him to hospital, however, the accused said to him that he will come by another auto. 13] In the cross-examination, PW-2 has admitted that he came to know about the incident in between 7.00 to 9.00 p.m. from others. Kalicharan asked the accused to come with him to hospital, however, the accused said to him that he will come by another auto. 13] In the cross-examination, PW-2 has admitted that he came to know about the incident in between 7.00 to 9.00 p.m. from others. He has further admitted that he was standing outside the hospital and no talks took place between him and the persons from hospital or police in the hospital in relation to the incident. 14] PW-2 has further admitted that he did not feel it necessary to go to the police station. PW-2 has denied the suggestion that the police took them at police station and told them that the accused has committed murder of his wife. 15] PW-3 Mishrilal Yadav has stated in his evidence that at the relevant time, he was working as Supervisor at the construction sites of one Harish Borath. He has stated that the accused, Kayyum Khan, Dharmendra Bharti and Shailendra Bharti (PW-2), Mahendra Paswan, Kalicharan Paswan were the workers working under him and they all were staying at the construction site of Devine Child High School, andheri. 16] according to PW-3, the accused used to quarrel with his wife. The accused used to beat his wife and was in habit of consuming liquor. as the accused used to quarrel with his wife, he was sent to construction site at Kalwa. There also, the accused used to quarrel and beat his wife under the infuence of liquor. Thus, the accused was called back at andheri site. 17] according to PW-3, on the day of incident, i.e. 16.11.2011, he was sitting on the bench which was outside the hut of accused. according to him, somebody was crying in the house of accused and thus he asked PW-2 Shailendra to call the accused. PW-3 has stated that the accused was abusing his wife on her character. 18] according to PW-3, he tried to pacify the accused, but he was in no mood to listen. He thus, told the deceased to go to house of Kayum Khan. after 10 minutes, the accused went there to the house of Kayum Khan and again started beating her. 19] according to PW-3, he then told the accused to drop his wife (deceased) to native place. He asked the accused to leave the work. He thus, told the deceased to go to house of Kayum Khan. after 10 minutes, the accused went there to the house of Kayum Khan and again started beating her. 19] according to PW-3, he then told the accused to drop his wife (deceased) to native place. He asked the accused to leave the work. The accused asked him to give Rs.3000/- to drop his wife (deceased) at native place. as he did not have Rs.3000/-, he gave Rs.2000/- to the accused. He then left the construction site at about 7.00 to 7.15 p.m and went to his house. 20] In the cross-examination, PW-3 has admitted that he had not gone inside the hut of the accused. He has stated that when he left the spot, at that time everything was peaceful and the accused also left the spot to bring the stitched clothes and his wife (deceased) was at home. 21] The testimony of PW-2 and PW-3 to the extent that on the date of incident they were present at the place of incident has not been challenged. On the contrary, the accused in his statement under section 313 of Cr.P.C. has admitted that on 16.11.2011, the Supervisor PW-3 Mishrilal Yadav came to the construction site for giving salary. He has further admitted that PW-3 told him that he will have to leave the job if he continues to quarrel with his wife and at that time he asked PW-3 to give him Rs.3000/- as he wanted to drop the deceased at his native place. He has further admitted that PW-3 told him that he did not have Rs.3000/- and gave him Rs.2000/-. There is nothing in the cross-examination to doubt the testimony of PW-2 and PW-3. However, PW-2 and PW-3 do not appear to be witness to the main incident in which according to the prosecution accused had assaulted the deceased by wooden plank. 22] according to the accused, the deceased died due to accidental injuries. To examine the said issue, we have perused the medical evidence on record. 23] according to PW-8 Dr.abhijeet Kondar, who conducted the postmortem on the dead body of deceased, on 17.11.2011, he was working as Medical Ofcer at Cooper Hospital. On that day, the dead body of Poonam Paswan was brought for postmortem examination and he conducted the postmortem along with Dr. V.N. Tasgaonkar. 23] according to PW-8 Dr.abhijeet Kondar, who conducted the postmortem on the dead body of deceased, on 17.11.2011, he was working as Medical Ofcer at Cooper Hospital. On that day, the dead body of Poonam Paswan was brought for postmortem examination and he conducted the postmortem along with Dr. V.N. Tasgaonkar. 24] On external examination, he found the following injuries: 1] CLW anteroposterior right parital region of size 4 x 1 cm x bone deep. 2] CLW 0.5 cm. lateral to injury No.1, of size 1 x 0.5 cm x scalp deep. 3] Lacerated wound occipital region centrally, vertically oblique 4 x 0.5 cm x Scalp deep. 4] Lacerated wound left parito temporal region vertical of size 2.5 x 1 cm x scalp deep. 5] Contusion left temporal region red colour of size 5 cm x 3 cm. 6] abrasion left cheek 1 cm above mandible size 1.5 cm x 1 cm. 7] abrasion right side of nose, dark coloured of size 0.5 cm x cm. 8] abrasion right maxillary region size 2 cm x 1.5 cm red. 9] abrasion right clavicular region 1 cm x 0.5 cm red. 10] Small multiple abrasions on left side of chest over area 6 cm x 3 cm red colour. 11] abrasion red coloured on right lateral aspect of chest 8th and 9th rib region size 5 cm x 3 cm. 12] abrasion right renal region laterally red size 1.5 cm x 1 cm. 13] abrasion multiple on right knee red colour over area 3 cm x 2 cm. 14] Multiple abrasions on right ankle region red colour over area 2 cm x 3 cm. 15] Multiple abrasions on left side laterally ankle region over area 1 cm x 1 cm. 16] Linear abrasions on right dorsum of hand red colour. 17] Linear abrasions on left dorsum of hand red colour. 18] Blackish coloured discolouration circular in nature seen over neck, defcient anteriorly of size 24 cm x 1.5 cm. 25] On internal examination, he found the following injuries: 1] Contusion left fronto parietal region red colour over area 11 cm x 10 cm 2] Contusion right frontal region red colour size 7 cm x 5 cm. 3] Contusion occipital region red colour size 5 cm x 3 cm. 4] Contusion right parieto occipital region red size 6 cm x 3 cm. No fracture of the skull seen. Meninges intact. 3] Contusion occipital region red colour size 5 cm x 3 cm. 4] Contusion right parieto occipital region red size 6 cm x 3 cm. No fracture of the skull seen. Meninges intact. Brain Subdural thin flm of blood clot seen on left lobe superior and lateral aspect. Brain substance pale, oedamatous. Contusion on right 8th and 9th intercostal space seen laterally red colour size 6 cm x 5 cm. Liver lacerated on right lobe laterally due to external injury No.11. Right kidney capsule contused haemorrhageic substance pale. according to PW-8, the cause of death was haemmorrhage and shock due to liver rupture. 26] In the cross-examination conducted on behalf of the accused, PW-8 has admitted that according to the inquest panchanama, there were no injuries on stomach, chest and back. He has further admitted that injury no.11 in column No.17 of the postmortem is liver injury. He has admitted that the inquest panchanama is silent about the injury No.11 in column No.17. It was suggested to PW-8 that injury No.11 in column No.17 was caused at the time of shifting of dead body. PW-8 has however, denied the suggestion and he has stated that all the injuries were ante-mortem. 27] PW-8 has admitted that except injury at Sr.No.11, other injuries were not sufcient to cause the death. He has admitted that injury Nos. 5 to 18 except injury No.11 are possible in case of fall from staircase. The court question was put to PW-8 and he has stated that all the injuries are not possible due to fall only. 28] Considering the evidence of PW-8, it is difcult to hold that injury No.11 mentioned by him in column No. 17 of postmortem report, which caused the death of the deceased was accidental injury. Non mentioning of the said injury in inquest panchanama, in our view, would not enure to the beneft of the accused as PW-8 has specifcally stated that it was ante-mortem injury. 29] apart from above, we have perused the evidence of PW-4 Sayyed ali Sherfuddin Sayyed, the panch witness on place of incident. according to PW-4, the ear tops and pieces of bangles were lying at the place of incident. There was wooden plank stained with blood. all these circumstances would show that the deceased was assaulted. 29] apart from above, we have perused the evidence of PW-4 Sayyed ali Sherfuddin Sayyed, the panch witness on place of incident. according to PW-4, the ear tops and pieces of bangles were lying at the place of incident. There was wooden plank stained with blood. all these circumstances would show that the deceased was assaulted. No material is elicited in the cross-examination which would corroborate or probablize the defence of the accused of accidental injuries. 30] In the alternative, the learned counsel for the appellant/ accused submits that there is no evidence to show that the act of the accused was premeditated. The accused appears to have assaulted the deceased in a heat of passion. It is submitted that there is no evidence that the accused acted in a cruel manner. It is submitted that beneft of exception 4 to section 300 of the IPC needs to be granted to the accused and conviction needs to be altered to section 304 of the IPC. 31] The evidence of PW-2 and PW-3 would show that prior to the main incident, twice the accused had assaulted to the deceased. In all there are eighteen external injuries. Considering these facts, we are of the opinion that the requirements of exception 4 to section 300 of the IPC are not satisfed in the present case. In our view, the trial court was justifed in convicting the appellant for the ofence punishable under section 302 of the IPC. Hence, no interference is called for in the impugned judgment and order. In the result, the following order is passed. ORDER Criminal appeal stands dismissed.