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APEAL.931-05JUDGMENT.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.931 OF 2005
Tanaji Rambhau Shinde, ]
convict No.C/- 14349, ]
presently lodged at Yerawada ]
Central Prison, Yerawada, ]
Pune - 411 006. ] ..APPELLANT
Versus
ig [Orig. Accused]
The State of Maharashtra
through Khed Police Station ] ..Respondent
....
Mr. Arfan Sait, Advocate (appointed) for the Appellant.
Mrs. P.P. Bhosale, APP for the Respondent - State.
....
CORAM : SMT. V. K. TAHILRAMANI, &
A. R. JOSHI, JJ.
DATE : 22nd NOVEMBER, 2012 JUDGMENT: [PER A. R. JOSHI, J.]
1. Heard rival arguments on this Criminal Appeal preferred by the appellant/orig.accused challenging the judgment and order dated 27.4.2005 passed by the 1 st Adhoc 1 / 7 ::: Downloaded on - 09/06/2013 19:25:06 ::: 2 APEAL.931-05JUDGMENT.doc Additional Sessions Judge, Pune. The appellant/accused was convicted in Sessions Case No.225 of 2004 for the offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer RI for life and to pay fine of Rs.500/- in default to suffer RI for two months.
2. The case of the prosecution in nutshell is as under :-
The appellant/accused then a young person of 25 years of age was having avocation as agriculturist and was also maintaining cattle. He was staying in a joint family with his parents and also the family of paternal uncle one Namdeo. Said Namdeo was assaulted on the relevant night of 21.12.2003 in the court-yard where the appellant was sleeping outside the common house of the family and where the victim Namdeo was also sleeping. Though the appellant/accused was a young person of 25 years and doing agriculture work and maintaining cattle etc., his marriage prospects were not good on account of physical defect in his eyes as he was suffering from squatting. On that ground, there used to be quarrel between him and his paternal 2 / 7 ::: Downloaded on - 09/06/2013 19:25:06 ::: 3 APEAL.931-05JUDGMENT.doc uncle deceased Namdeo. Very often the appellant used to quarrel with Namdeo saying that Namdeo was not taking steps for getting the appellant married with suitable bride. According to the prosecution, about two months prior to the said incident of causing death of Namdeo, the appellant had expressed his desire to kill Namdeo for his inaction in arranging the marriage. Such threat was expressed by him to one Kantabai - wife of the victim.
Said Kantabai is one of the prosecution witnesses.
3. The fateful incident happened on the night between 20.12.2003 and 21.12.2003 probably at midnight. On the night of 20.12.2003 at about 10:00 p.m. after the meals, all the family members went to sleep. Parents and other family members of the appellant slept inside the house, whereas the appellant, victim and one another paternal uncle Dinkar slept outside the house in the court-yard. Apparently electric light was on on that entire night at the court-yard. At about 11:00 p.m. some noise was heard by PW-1 Shantabai and she came out of the house and noticed the appellant/accused standing in the court-yard and also noticed that the victim Namdeo had sustained bleeding 3 / 7 ::: Downloaded on - 09/06/2013 19:25:06 ::: 4 APEAL.931-05JUDGMENT.doc injury and blood was oozing from his mouth and one big stone was lying by his side. She raised shouts and as such father of the appellant came out. Even by that time, another uncle Dinkar also woke up from sleep. Various other neighbours also gathered on the spot. They noticed that Namdeo was lying on the ground in an injured condition having severe bleeding injuries on his face and appellant/accused was standing by the side and afterwards ran away from the spot. The injured was taken to nearby dispensary for medical help. However, he was already dead. On 21.12.2003 complaint was lodged against the appellant/accused by PW-1 Shantabai. Investigation was conducted. The appellant/accused was put under arrest.
Statements of the witnesses, relatives of the appellant including his father Rambhau (PW-2) were recorded. On completion of investigation, charge-sheet was filed and after the trial the matter ended in conviction, which is challenged in the present appeal.
4. Here it is a case in which almost all the witnesses are the relatives of the appellant/accused even his father Rambhau 4 / 7 ::: Downloaded on - 09/06/2013 19:25:06 ::: 5 APEAL.931-05JUDGMENT.doc and his other close relatives had given evidence against him specifically mentioning his presence on the spot and finding the victim Namdeo in injured condition. We have found out that there is overwhelming substantive evidence of the prosecution witnesses against the present appellant/accused whereas only the defence of the accused is that of total denial and false implication and while recording his statement under Section 313 of Cr.P.C. he had answered to question No.36 that the witnesses were deposing falsely in order to avoid giving of share in the agricultural land to the appellant. Even on preponderance of probabilities such defence cannot be accepted when the allegations are made against him by his very close relatives and also none other than his own father. Considering the material available against the appellant/accused, at the end of the argument, learned Advocate Shri Arfan Sait submitted that the present case may be brought down from Section 302 of IPC to Section 304 of IPC. However to substantiate this argument the learned Advocate could not point out any ground on which the offence can be diluted. Apparently this is a case not coming 5 / 7 ::: Downloaded on - 09/06/2013 19:25:06 ::: 6 APEAL.931-05JUDGMENT.doc under grave and sudden provocation or the act committed in sudden fight. Factually the assault on the victim Namdeo was when he was sleeping by the side of the appellant, his nephew.
5. Inspite of such factual position, the learned Advocate for the appellant placed reliance on the observations and final findings recorded by the another Division Bench in unreported Criminal Appeal No.294 of 2007 (Savita Bistur Bhoir Vs. Stat of Maharashtra) decided on 16.3.2012. We have gone through the facts of the cited decision. In that matter, just prior to the incident of the assault by the woman accused on her husband, on that night the husband came home in drunk condition and suspected fidelity of the wife and started quarreling with her.
Apparently as there was no cognate evidence about the illicit relationship between the accused and one PW-6, accused took objection and in a heat of passion she had assaulted her husband causing his death. Under those circumstances, another Bench of this Court in the matter diluted the penal Section 302 of IPC to Section 304 (Part I) of IPC. In our considered view, considering the specific circumstances in the present matter as discussed 6 / 7 ::: Downloaded on - 09/06/2013 19:25:06 ::: 7 APEAL.931-05JUDGMENT.doc above, the said ratio cannot be applied in the present matter as that has been applied in the cited decision. In any event, there is no merit in the present appeal and the same is accordingly dismissed.
6. This judgment and order be communicated to the appellant who is presently lodged in jail, through concerned jail authorities.
(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.) 7 / 7 ::: Downloaded on - 09/06/2013 19:25:06 :::