Cr.Apeal85.15
Judgment
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.85 OF 2015
Maruti Haribhau Kadam,
Aged 46 Years, Occupation Agriculturist,
R/o Loni Gavli, Taluka : Mehkar,
District : Buldana (Convict No.4449). ..... Appellant.
:: VERSUS ::
State of Maharashtra, through Police
Station Officer, Dongaon, Taluka :
Mehkar, District Buldana. ..... Respondent.
================================================================
Shri S.M. Puranik, Counsel for the Appellant (Appointed).
Shri P.S. Tembhare, Addll.P.P. for the Respondent/State.
================================================================
CORAM : P.N. DESHMUKH, J.
DATE : APRIL 3, 2017.
ORAL JUDGMENT.
1. This appeal takes exception to judgment in Sessions Case No.30 of 2013, passed by learned Sessions Judge, Buldana, whereby accused/appellant (hereinafter referred to as "accused") came to be convicted for the offence punishable under section 304 .....2/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:07 ::: Cr.Apeal85.15 Judgment 2 Part-II of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 8 years and to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for one year.
2. It is the case of prosecution that deceased Indubai was wife of accused and mother of PW1 Ajinkya. Accused admittedly was addicted to consuming Ganja for which deceased was objecting and, therefore, there used to be frequent quarrels between them on this count. On 20.12.2012, accused along with his sons Ajinkya, the complainant, and Vijay went to their field. Vijay and accused returned back in the noon hours at around 1:00 p.m., and in short time, Vijay left house when accused was with deceased who at around 3:15 p.m. assaulted her by an axe. It is further case of prosecution that after arrival of Vijay back to his home, he found his mother lying in pool of blood and accused present there. He, therefore, informed this fact to Ajinkya who was in the field. Ajinkya reached home immediately and .....3/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:07 ::: Cr.Apeal85.15 Judgment 3 informed the police, vide his report Exhibit 10, on the basis of which offence came to be registered vide Crime No.70 of 2012. During the course of investigation of this crime, PW5 visited spot of incident, which was house of accused, situated at village Loni Gavli and found deceased lying dead in the house. Inquest panchanama is drawn vide Exhibit 27 and dead body was sent for autopsy. Spot panchanama came to be drawn and one axe, which was found on the spot, came to be seized under panchanama Exhibit 26.
3. During the course of investigation, sample of earth and earth mixed with blood were seized from spot. Similarly, blood samples of deceased were collected. On recording statements of witnesses, accused came to be arrested on 24.12.2012 and his clothes were seized under seizure panchanama Exhibit 24. All seized Muddemal articles were forwarded to chemical analyzer for its analysis. On completion of .....4/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:07 ::: Cr.Apeal85.15 Judgment 4 investigation, charge-sheet was filed before learned Judicial Magistrate First Class, Mehkar, District Buldana.
In the course of time, case came to be committed for Trial before learned Sessions Judge. Charge is framed against accused for the offence punishable under Section 302 of the Indian Penal Code vide Exhibit 5 to which he denied and claimed to be tried. The defence of accused is of total denial and of false implication. Accused did not lead any evidence in support of his case nor examined himself. Learned Trial Court on considering evidence on record convicted accused for the offence under Section 304 Part-II of the Indian Penal code. Hence, this appeal.
4. Heard learned counsel for the appellant and learned Additional Public Prosecutor.
5. It is submitted that admittedly there is no eyewitness to incident of assault by accused and though prosecution has .....5/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:07 ::: Cr.Apeal85.15 Judgment 5 miserably failed to establish involvement of accused in the present crime, he came to be convicted on surmises and conjectures and thus it is prayed that appeal be allowed.
6. Learned Additional Public Prosecutor has supported impugned judgment and prayed that appeal be dismissed as there is sufficient evidence establishing involvement of accused.
7. In view of submissions advanced as aforesaid, on scrutinizing the evidence on record it is noted that as per evidence of PW1 Ajinkya, on the day of incident at about 2:00 p.m. when he was in the filed, he received telephone message from his brother, PW2 Vijay that accused had assaulted their mother and thus he reached home and found that his mother was lying in an injured condition in pool of blood in the house having sustained blow of axe on her head and neck. He has further deposed that accused was present in the house who too had .....6/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:07 ::: Cr.Apeal85.15 Judgment 6 sustained bleeding injuries on his head and thus gave information to police as per his report Exhibit 10.
It has also come in the evidence of complainant that at the time of incident he was residing along with his brother Vijay, deceased mother, and accused and that relation between accused and deceased were not cordial and there used to be frequent quarrels amongst them as accused was addicted to smoking Ganja which was objected by deceased and has also deposed that as accused used to quarrel with his mother frequently, he had suspected accused to have committed fatal assault on his mother. Nothing material to doubt evidence of complainant is brought on record in his cross examination. In fact, complainant admitted that even his relationships with his father were not cordial and has denied that for this reason he has lodged false report against accused.
Evidence of Ajinkya, complainant materially corroborates with contents of report Exhibit 10 and also on the .....7/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 7 aspect of accused committing murderous assault on deceased by indulging into quarrel with her.
8. Evidence of PW2 Vijay, brother of complainant, corroborates version of complainant when he was stated that on the day of incident he along with complainant and accused went to their field in the morning, when at around 1:00 in noon, he returned back to his house who was followed by accused while complainant remained in the field. He has stated that after staying in the house for 15 minutes, he left and returned back at around 3:00 p.m. and found that house was locked from inside and on knocking door, accused opened the same when Vijay noticed that deceased was lying in pool of blood having injuries on her neck, head, and was dead, and, therefore, he gave intimation to complainant on phone, who arrived in short time.
9. In the cross-examination of Vijay, it is suggested that .....8/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 8 at the time of incident their house was robbed and since demand for parting away with ornaments and money was not satisfied, accused as well as deceased were assaulted by axe, which suggestion is duly denied by him.
10. On considering evidence of above two material witnesses, it has come on record that at the time of incident relation between accused and deceased were not cordial and they used to indulge into quarrels frequently, as accused was addicted to consuming Ganja.
Evidence of PW1 Ajinkya and PW2 Vijay on the point of accused indulging into quarrel with deceased is further found corroborated from evidence PW6 R.V. Sahane, Assistant Police Inspector, the investigating officer, who has admitted that during the course of investigation it revealed that accused and deceased used to quarrel on account of his habit of consuming Ganja and has further admitted that there was rivalry between deceased .....9/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 9 and her two sons on one side and accused on the other side. In view of above evidence, fact of frequent quarrels between accused and deceased has come on record beyond reasonable doubt.
In the background of above evidence, on considering evidence of PW4 Dr. Shailaja Boralkar, who has performed postmortem and issued postmortem note Exhibit 16, has stated that she noted following surface injuries, as referred in column No.17 of postmortem report:
Injury No.1 : On neck 15 cm in length trachea fractured and major vessels cut.
Injury No.2 : On right chick 4 to 5 cm deep.
Injury No.3 : On temporal area 4 to 5 cm and 3 to 4 cm deep.
Injury No.4 : On temporal region 5 to 6 cm, 3 to 4 cm deep.
Injury No.5 : On forehead 3 to 4 cm.
She has deposed that all injuries were antemortem and during internal examination noticed following internal .....10/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 10 injuries corresponding to surface injuries mentioned in column No.17 as trachea fracture and major vessels cut, fracture of temporal bone, frontal bone and cause of death was due to multiple injuries sustained by deceased. She has also certified that injuries were possible by axe which weapon was confronted to her and has opined that injuries sustained are possible by said weapon. As per her opinion on record Exhibit 17, it is stated that injuries were sufficient to cause death in ordinary course of nature.
In her cross examination, PW4 admitted that injury No.1 sustained on neck of deceased was possible by axe in a scuffle between two persons if attempt is made to snatch axe and has further admitted that fracture of skull bone is possible if deceased comes in contact with wall by force. Thus, according to expert, injuries sustained by deceased are possible even for above two reasons.
.....11/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 11
11. From above discussed evidence, though prosecution has established involvement of accused as an assailant of deceased Indubai, in view of evidence, particularly with regard to fact of strained relation between accused and deceased as well as of accused on one side while PWs Ajinkya, Vijay, his sons, and deceased on the other, together with fact of accused quarreling with deceased frequently coupled with the possibility as admitted by medical officer of deceased sustaining injuries on her neck and head in a scuffle, it is necessary to consider whether the case of accused falls under Section 302 of the Indian Penal Code or for lesser offence. For that purpose, evidence of PW4 Dr. Shailaja Boralkar is already discussed who has admitted that injury sustained by deceased on her neck by axe is possible, in a scuffle if deceased attempted to snatch the same and has further admitted that fracture of skull bone is possible if victim comes in contact with a wall forcefully. In view of evidence of complainant and Vijay as well as of investigating .....12/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 12 officer of accused entering into quarrel with deceased frequently, coupled with evidence of Dr. Shailaja Boralkar as aforesaid, possible inference that can be drawn is that accused caused injuries to deceased with a knowledge that he was thereby likely to cause her death. Moreover, evidence on record shows that there was no pre-meditation on the part of accused. It is noted that for application of exception to 4 of Section 300 of the Indian Penal Code, it is not sufficient to show that act is committed in a sudden quarrel and that there was no pre-meditation, but it is further necessary to show that accused had not taken any undue advantage or acted in a cruel or an unusual manner. For that purpose, perusal of evidence of PW4 Dr. Shailaja Boralkar, therefore, established that injuries sustained by deceased on her neck as well as on her head are otherwise possible accidentally if deceased in a quarrel attempts to snatch the axe or if in a quarrel forcefully comes in contact with stone wall and such wall is found in existence at the spot as revealed from spot .....13/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 13 panchanama. According to medical evidence, deceased is certified to have sustained as many as 5 injuries on her person being on her neck and head, possibility of sustaining such injuries as deposed by medical officer accidentally, in a scuffle cannot be ruled out and thus it cannot be said that accused had acted in a cruel or an unusual manner. In that view of the matter, present case falls within exception 4 to Section 300 of the Indian Penal Code.
12. With reference to facts involved in the appeal in hand, it would be useful to refer to decision of the Apex Court in the case of Selvam ..vs.. The State of Tamil Nadu, reported at 2013 ALL MR (Cri) 379 wherein from the evidence led on behalf of prosecution it was established beyond reasonable doubt that accused no.1 used the aruval to strike on the head of the deceased. The Apex Court further held that it was also established beyond reasonable doubt that accused no.6 snatched .....14/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 14 aruval from accused no.1 and struck on the head of the deceased and further found that accused no.7 struck the head of the deceased by a stick. It is further found that the result of the acts of all the accused nos.1, 6 and 7 caused death of deceased. However, while considering the question as to whether the case would fall under Section 302 of the Indian Penal Code or 304 Part I of the Indian Penal Code, the Apex court observed thus :
12. The next question which we have to decide is whether the criminal act committed by accused nos. 1, 6 and 7 amounts to murder under Section 300, IPC, or some other offence. The medical evidence of PW 11 is clear that all the injuries of the deceased were most probably as a result of an assault by a blunt weapon and in the opinion of PW 11, the deceased appears to have died due to head injuries. PW 11 has also admitted in her cross-examination that she did not see any incised injuries during the post mortem examination and had a sickle been used it would have caused incised wounds. Thus, it appears that accused no. 1 and accused no. 6 had used not the sharp side but the blunt side of the aruval and accused no. 7 had used the stick in the assault on the deceased. The fact .....15/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 :::
Cr.Apeal85.15 Judgment 15 that the blunt side of the aruval and a stick was used in the assault on the deceased would go to show that accused nos. 1, 6 and 7 did not have any intention to cause the death of the deceased. Nonetheless, the injuries caused by accused nos. 1, 6 and 7 were all on the head of the deceased, including his parietal and temporal regions. Accused nos. 1, 6 and 7, thus, had the intention of causing bodily injury as is likely to cause death and were liable for punishment for culpable homicide not amount to murder under Section 304 Part I, IPC."
13. Another aspect which is found attracted in the present appeal is with regard to application of provisions of Section 106 of the Indian Evidence Act as in the evidence of PW1 Ajinkya, it has come on record that on receiving information from his brother Vijay, he immediately reached home and saw that his mother was lying in pool of blood having injuries sustained by her on her head and neck and that accused was also present in the house. Evidence of PW2 Vijay is that after he returned back to the house from field and at around in the noon had left it, .....16/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 16 accused and his deceased mother were present in the house. He has further deposed that when he returned back at about 3:00 p.m., he noticed that door was latched from inside and thus on knocking the same, it was open by accused and noticed that mother was lying in the house in pool of blood. Thus, it is a specific case as established by prosecution that at the time of incident it is only accused and deceased who were in the house and when PW2 Vijay knocked door, it was open by accused, while dead body of his deceased mother was lying in the house of which no explanation is offered by accused in his statement recorded under Section 313 of the Code of Criminal Procedure except for his simple denial.
14. Thus, from evidence on record it is established that at the time of incident accused and deceased were alone in the house. As such, provisions of Section 106 of the Indian Evidence Act would come into play which provide that when any fact is .....17/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 17 especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlie Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan ..vs.. Kashi Ram, the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or .....18/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 18 hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.
15. Lastly, with regard to case of prosecution of extra- judicial confession of accused, evidence of PW2 Vijay established this fact when he has deposed that on his reaching back home, when he knocked door, same was opened by accused and when he noticed that his deceased mother was lying in pool of blood, enquired accused, when he confessed that he has killed his mother by axe. There is no challenge to above piece of evidence of Vijay and in fact, it is noted that learned Trial Judge while considering above evidence of confessional statement of accused in paragraph No.14 of its judgment had not appreciated it in its correct perspective by keeping in mind ample other evidence on record and held that word "killing" implies two meanings, (i) to have killed, and (ii) to have beaten and had held that as per .....19/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 19 settled principle of law, when there are two meanings, one which is in favour of accused since is required to be accepted, wrongly relied upon meaning of word "killing" as accused to have "beaten" the deceased, however such reasonings do not stand for any reason in view of specific evidence of PW2 Vijay who in clear terms had deposed that on his reaching home when he saw his mother lying in the pool of blood, on enquiring with the accused he has confessed that he has killed his mother. As such, appears no reason for learned Trial Judge to refer two meanings of word "killing" as aforesaid, more particularly when deceased was lying on the spot in the pool of blood, sustaining injuries on her person.
16. Law on subject of extra-judicial confession is by now well settled that extra-judicial confession is a weak piece of evidence and thus, whenever Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that same inspires .....20/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 ::: Cr.Apeal85.15 Judgment 20 confidence and is corroborated by other prosecution evidence. However, if the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
In view of settled principle as aforesaid, extra-judicial confession involved in this case appears to be true as well as voluntarily made by accused in a fit state of mind. Similarly, evidence of PW2 Vijay on this aspect is clear unambiguous and clearly conveyed that accused is maker of crime and as such extra-judicial confession in this case can reasonably be accepted to form the basis of conviction as said piece of evidence is otherwise corroborated with ample other evidence.
17. On considering above discussed evidence, thus it is .....21/-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 :::
Cr.Apeal85.15 Judgment 21 held that there is a sufficient evidence to prove involvement of appellant in the present crime. I, therefore, do not find merit in appeal. Appeal is, therefore, liable to be dismissed, hence the following order:
Appeal is dismissed.
18. At this stage, I must record my appreciation for learned counsel Shri S.M. Puranik appointed by the High Court Legal Services Sub Committee, Nagpur to represent appellant who has effectively assisted the Court. I, therefore, quantify legal fees to be paid to learned counsel Shri S.M. Puranik by the High Court Legal Services Sub Committee, Nagpur at Rs.5,000/-.
Learned counsel Shri S.M. Puranik has graciously submitted that legal fees, quantified as aforesaid, be paid to the High Court Bar Library, Nagpur. In that view of the matter, concerned to act upon.
JUDGE !! BRW !! ...../-
::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 22:00:08 :::