1 apeal.568.13.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.568 OF 2013
Appellant : Atul s/o Dadarao Buradkar,
Aged about 26 years,
R/o Subhannagar, Nagpur
(Presently in Central Prison at Nagpur)
ig -- Versus --
Respondent : The State of Maharashtra,
Through Police Station Officer,
Police Station, Kalmana,
District Nagpur.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri C.R. Thakur, Advocate for the Appellant
Shri M.J. Khan, A.P.P. for the Respondent
=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=
CORAM : B.R. GAVAI & A.S. CHANDURKAR, JJ.
DATE : 22
nd MARCH, 2016.
ORAL JUDGMENT :- (Per A.S. Chandurkar, J.)
01] The appellant herein has taken exception to his conviction
by the learned Additional Sessions Judge-8, Nagpur in Sesions Trial No.492/2012 for the offence punishable under Section 302 of the Indian Penal Code (for short 'the Penal Code').
::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 ::: 2 apeal.568.13.jud
02] The case of the prosecution as can be gathered from the
material on record is that the appellant was married with one Sandhya in the year 2011. The appellant was in the habit of consuming liquor and shortly after their marriage, the appellant and his parents used to make a demand of money from her. In January, 2012, the appellant had driven away his wife from the matrimonial home. However, the matter was thereafter compromised between the parties after which said Sandhya started residing in the matrimonial home. On 04/08/2012, the brother of said Sandhya viz. Sunil received a phone call that the appellant had murdered his sister. On that basis, a report came to be lodged against the appellant and his parents.
03] After carrying out investigation, charge-sheet came to be filed against the appellant and his parents for the offences punishable under Section 498-A of the Penal Code. The appellant was also charged for the offence punishable under Section 302 of the Penal Code. As the accused did not plead guilty, they were tried and on conclusion of the trial, the appellant was convicted for the offence punishable under Section 302 of the Penal Code. However, the appellant and his parents are acquitted of the offence punishable under Section 498-A read with Section 34 of the Penal Code. Hence, this appeal by the accused No.1.
::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 ::: 3 apeal.568.13.jud
04] Shri C.R. Thakur, the learned Counsel for the appellant
submitted that the trial Court was not justified in convicting the appellant. It was submitted that there was no evidence whatsoever on record to conclude that it was the appellant who had killed his wife with a knife. According to the learned Counsel, the appellant was doing the work of carpentry and had kept various implements in the house. It was likely that his wife had sustained an injury due to fall on said implements. The injury as caused was on her waist and it had been admitted by PW-8, who was the Medical Officer, that the death was likely to have been caused due to heavy blood loss. He, therefore, submitted that the prosecution had failed to prove its case beyond reasonable doubt and the appellant was entitled to be acquitted of the said offence.
Without prejudice to the aforesaid submissions, it was submitted in the alternate that a single blow was alleged to have been inflicted on the deceased near the waist. The spot-panchnama indicated that there was a scuffle between the appellant and the deceased and, therefore, the conviction of the appellant deserves to be altered to one under Part-I of Section 304 of the Penal Code.
::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 ::: 4 apeal.568.13.jud
05] Shri M.J. Khan, the learned Additional Public Prosecutor for
the respondent, on the other hand, supported the judgment of conviction. It was submitted that the appellant being the husband of the deceased and the incident having taken place inside the house, it was for the appellant to explain as to how the injuries were sustained by Sandhya resulting in her death. It was submitted that in absence of any such explanation, the appellant would not be absolved from the said offence. It was, therefore, submitted that considering the entire nature of evidence on record, it was clear that the prosecution had proved the case beyond reasonable doubt and, therefore, there was no scope to interfere.
06] With the assistance of the learned Counsel for the parties, we have perused the entire material on record and we have also gone through the impugned judgment. The deposition of PW-8 Dr. Praveen Tayde below Exh.33 reveals that he had conducted the postmortem and had submitted his report at Exh.34. The cause of death, according to the said witness, was on account of hemorrhagic shock due to stab injury. It was suggested to this witness that the injury as caused was possible, if a person fell on a sharp and pointed object, but the said ::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 ::: 5 apeal.568.13.jud suggestion was denied. It will, therefore, have to be held that the prosecution has succeeded in proving the homicidal death of Sandhya.
07] To bring home the guilt of the appellant, the prosecution has examined the brother of the deceased viz. Sunil as PW-1 below Exh.18. This witness has stated that he lodged the report on the basis of the information received by him on telephone. He has admitted that prior to the incident in question, he had not lodged any report as regards illtreatment against the appellant. The spot-panchnama at Exh.32 was proved in the deposition of PW-7 Leeladhar. He has stated that the accused No.2-Dadarao had opened the lock of his house where the appellant and his wife were residing. He had seen a blood stained bed-sheet in the room along with one bead of earring there. He also saw a weapon like knife on the cooler. Nothing much has been extracted in his cross-examination. The spot-panchnama at Exh.32 refers to presence of a knife inside the said room. A bed with a mattress was also seen having blood stains. There is reference to the presence of a bead of earring on the bed-sheet and it has been mentioned that there were indications of a scuffle.
This version of PW-7 is corroborated by the deposition of PW-10 Pradeep Lambat below Exh.37. This witness has stated that the ::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 ::: 6 apeal.568.13.jud accused No.2 had opened room in question from where the knife, blood stained bed-sheet as well as a bead of earring were seized. This witness has not been cross-examined by the appellant. It is, therefore, clear that the prosecution has succeeded in proving the seizure of blood stained knife, blood stained bed-sheet as well as one bead of earring from the house where the appellant was residing.
08] The reports of the Chemical Analyzer at Exh.49 to Exh.52 indicate the presence of blood on the knife. Similarly, blood on the bed-
sheet, saree, knicker and banian were stained with blood of Blood Group-AB.
09] The evidence on record, therefore, clearly indicates that Sandhya was assaulted with a knife inside the house where she was residing along with the appellant. The spot-panchnama at Exh.32 further proves that there was a scuffle between the appellant and the deceased in which Sandhya suffered injuries on her waist. The medical evidence indicates that loss of excess blood from the stab wound resulted in her death. It is, therefore, clear that the prosecution has succeeded in proving the guilt of the appellant. The finding in that regard recorded by the learned Sessions Judge, therefore does not deserve to be interfered with.
::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 ::: 7 apeal.568.13.jud
10] Insofar as the question of conviction of the appellant is
concerned, the trial Court has convicted him under Section 302 of the Penal Code. It is, however, to be noted that the spot-panchnama [Exh.32] indicates a scuffle having taken place at the site. However, there does not appear to be any premeditation on the part of the appellant in assaulting the deceased. There was no previous report lodged against the appellant. It appears that in a sudden fight between the appellant and his wife, in the heat of passion, a blow of knife was inflicted. This single blow was inflicted near the waist of Sandhya and her death was caused due to excess blood loss. There is no evidence on record or any other material to indicate that the appellant had taken undue advantage of the situation or had acted in cruel or unusual manner. The present case would, therefore, fall under Exception-4 of Section 300 of the Penal Code. Consequently, the appellant would be liable for being punished for culpable homicide not amounting to murder under Part I of Section 304 of the Penal Code. The sentence of rigorous imprisonment for a period of seven years would serve the ends of justice.
::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 ::: 8 apeal.568.13.jud
11] In view of the aforesaid, the following order is passed :
i. The appeal is partly allowed.
ii. The order of conviction under Section 302 of I.P.C. is altered to Part I of Section 304 of I.P.C. and the appellant-
accused is sentenced to suffer rigorous imprisonment for seven years.
iii. Rest of the order regarding fine etc. is maintained.
JUDGE JUDGE
*sdw
::: Uploaded on - 28/03/2016 ::: Downloaded on - 31/07/2016 09:57:03 :::