1 APPEAL466.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 466 OF 2016
APPELLANT : Siddhu Gariba Verma,
C-9373 detained in Central Prison, Nagpur.
Aged about 32 years, Occu. Labour,
R/o Pailani, Tah. Pailani,
District : Banda (U.P.)
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Khaparkheda,
Nagpur.
----------------------------------------------------------------------------------------------
Mr. R. M. Daruwala, Advocate appointed for the appellant.
Mrs. S.S. Jachak, A.P.P. for the non-applicant State.
----------------------------------------------------------------------------------------------
CORAM : PRASANNA B. VARALE and
ARUN D. UPADHYE, JJ.
DATE : NOVEMBER 01, 2017. ORAL JUDGMENT (Per Arun D. Upadhye, J.) 1] Being aggrieved by the judgment and order dated
29.03.2016 passed by the learned Additional Sessions Judge-4, Nagpur in Sessions Trial No.217/2015, the appellant is before this Court by filing this appeal. The appellant is convicted for the offences punishable under Section 302 and 324 of the Indian Penal ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 ::: 2 APPEAL466.16.odt Code. He is sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 2000/-, in default to undergo simple imprisonment for six months for offence under section 302 of IPC and rigorous imprisonment for six months and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month for the offence under Section 324 of IPC. Both the sentences are directed to run concurrently. Since, the accused is in jail from 20.2.2015 till the date of judgment, set off has been given to him under Section 428 of Cr.P.C. for the imprisonment already undergone.
2] The prosecution story in brief is as under :
Deceased Suryapal Faguni Suryawanshi was resident of village Chankapur and was residing in joint family. Deceased Suryapal was tailor by profession. His two sons were serving at Chennai. His daughter is married and residing at Pailani, Dist. Banda (State of Uttar Pradesh). Accused Siddhu Verma is resident of village Pailani, District Banda (U.P.). He had been to Sillewada to the house of his father-in-law Dagru Suryawanshi to attend marriage on 12.02.2015. It is the case of the prosecution that due to some incident at Sillewada in the marriage, the accused was in frightened condition and therefore, came to the house of deceased Suryapal. ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 :::
3 APPEAL466.16.odt 3] On 16.2.2015, there was an engagement ceremony of
the son of deceased Suryapal and in the night after engagement ceremony, when all the family members were in the house and they were about to sleep at about 11.15 p.m, at that time, according to the prosecution, deceased Suryapal and other family members were asking accused Siddhu to return to his village. However, he became angry and picked up a scissor and assaulted Suryapal on abdomen. Suryapal sustained bleeding injury. Rohit Suryawanshi and Rajesh Suryawanshi, nephew of deceased, tried to intervene, but accused Siddhu assaulted them on their hand by scissor. Suryapal was taken to the hospital of Dr. Pawar at Khaparkhede and thereafter, he was referred to Kunal Hospital at Nagpur and in the morning while taking treatment, Suryapal succumbed to the injuries. 4] Thereafter, informant Anil Ramkumar Suryawanshi, nephew of deceased Suryapal, lodged report at Police Station, Khaparkheda on 17.2.2015. On the basis of said report/complaint, offence was registered against accused Siddhu. The investigating agency was set in motion and during the course of investigation spot panchanama and inquest panchanam were prepared. The agency also seized blood stained scissor, blood mixed soil from the wall and ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 ::: 4 APPEAL466.16.odt house and simple soil in presence of panchas by preparing panchanamas. The dead body of deceased Surpayal was referred for post mortem. During the course of investigation, accused Siddhu was arrested and his blood stained clothes were seized. Police also seized blood stained clothes of injurred Rajesh Suryawanshi and Rohit Suryawanshi under the panchanamas. The blood samples of injured Rajsh and Rohit so also the accused were taken and seizure memo were prepared. Blood stained clothes of deceased were seized from Arvind Surwanshi under the seizure panchama. Police referred the scissor for query report. The injury certificate of injured Rohit and Rajesh Surwanshi were collected. Seized muddemal was sent to the Chemical Analyzer. During the course of investigation, police recorded the statements of witnesses. After completing necessary formalities of investigation, the agency filed the charge-sheet before the learned Judicial Magistrate, First Class, Saoner. Since, the offence punishable under Section 302 is exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, Nagpur.
5] The accused appeared in the trial. A charge was framed against him for the offences punishable under Sections 302 and 324 ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 ::: 5 APPEAL466.16.odt of the Indian Penal Code and read over and explained to him in vernacular. He pleaded not guilty for the same and claimed to be tried. The learned Sessions Judge has recorded evidence in the case by examining as many as 10 witnesses. Statement of accused under Section 313 of Cr.P.C. came to be recorded at Exh.115. In the statement, the accused admitted that daughter of deceased Surpayal namely Rajani is married at village Pailani, District Banda, (U.P.) and he is also resident of said village and he had been to Sillewada on 12.2.2015 to attend marriage, however, he denied all the incriminating circumstances referred to him in the statement. His defence is nothing, but of total denial.
6] After hearing both the sides, the learned Sessions Judge by his judgment and order, dated 29.3.2016, convicted and sentenced accused Siddhu as aforesaid. Feeling aggrieved by the said judgment and order, the accused is before this Court by way of present appeal.
7] We have heard Shri R.M. Daruwala, learned counsel appointed for the appellant and Mrs. Jachak, the learned Additional Public Prosecutor for the State at length.
::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 :::
6 APPEAL466.16.odt 8] Mr. Daruwala, learned counsel for the appellant has
made the only submission that the offence under Section 302 is not made out by the prosecution. According to him, at the most an offence punishable under Section 304 Part I of the Indian Penal Code is made out against the accused. He vehemently submitted that there was no enmity of the accused with the deceased. There was no pre-meditation or pre-determination to commit the crime on the part of accused. He submitted that there is one stroke of scissor given in the heat of passion. The learned counsel, therefore, submitted that the accused be given benefit of proviso 4 of Section 300 of the Indian Penal Code and to alter the sentence passed under Section 302 into Section 304 Part I of Indian Penal Code and minimum sentence may be awarded.
9] Mrs. Jachak, the learned Additional Public Prosecutor for the State strongly objected the submissions put forth on behalf of the accused. She has submitted that weapon Scissor is sharp one used by the accused on vital part of the body i.e. abdomen. She further submitted that there was an intention to commit murder of the deceased. In this case, two injured witnesses are also examined by the prosecution. They also sustained injuries of scissor and ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 ::: 7 APPEAL466.16.odt therefore, no benefit of exception 4 of Section 300 of IPC could be extended to the accused. She submitted that the learned Sessions Judge has rightly convicted and sentenced the accused for the offences punishable under sections 302 and 324 of the Indian Penal Code. The learned APP, therefore, prayed for dismissal of the appeal.
10] Considering the submissions of both the sides, with the help of learned counsel for the parties, we have perused the evidence on record. So far as homicidal death of deceased Suryapal is concerned, the accused has not disputed the same. The post mortem report (Exh.100) is admitted by the accused. Therefore, the prosecution has not examined the doctor, who performed the autopsy. As per the post mortem report (Exh.100), the injuries mentioned in column 17 of autopsy report are as under :
1] Sutured wound present over abdomen in midline extending from epigasture region to public region of length 26 cm with 34 stitches in situ. As per wound present over umbilicus of size 04 cm which is extended as laporotomy wound for repair of damage of intestine and mesentry. On opening stitches wound is cavity deep. Stitched wound over transverse colon and over jejunum 1"::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 :::
8 APPEAL466.16.odt distal ducodeno jejunual layer.
2] Therapautic drainage would present over left lumbar region of abdomen of size 01 x 0.5 cm2.
3] Theropautic drainage wound present over right lumber region of abdomen of size 01 x 0.5 cm2 Further in column no.21 of autopsy report (Exh.100) following internal injuries were noticed :-
Small intestine and its contents - sutured wound present over jejunum with 18 stitches in situ on opening stitches rent of size 4 cm present. Sutured wound present over transverse colon with 5 stitches in situ on opening stitches rent of size 3.5 cm present. Multiple sutured wound present over posterior mesentry.
Further the cause of death is "Haemorrhage and shock due to stab injury to intestines."
11] Moreover, the inquest panchanama (Exh.33) is on record. It shows that dead body of Suryapal had injury of size 4 x 3 cm on his abdomen and said injury was sutured. In this case, the prosecution has examined two injured witnesses namely Rohit Suryawanshi (PW-3) and Rajesh Suryawanshi (PW-4) and they categorically deposed the injuries sustained by the deceased on abdomen. The evidence on record clearly suggest that death of ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 ::: 9 APPEAL466.16.odt deceased Suryapal was homicidal. The learned Sessions Judge was right in arriving at conclusion that the prosecution has successfully established the death of deceased as homicidal death. 12] Informant Anil Ramkumar Suryawanshi is nephew of deceased Suryapal, who lodged the report (Exh.29). Printed FIR is at Exh.30. The prosecution has examined P.W.8 HC Ashok Shukla at Exh.106, who registered the complaint. He deposed that on 16.2.2015 at 9.00 p.m. to 17.2.2015 till 9.00 a.m., he was on Station Diary duty at Police Station, Khaparkheda. Complainant Anil came to police station at 23.15 hours and lodged the complaint. He registered the offence. This witness has proved Exh.29 and 30. In the cross-examination, it was suggested to him that he has not recorded the complaint as per the say of the complainant, to which he denied.
13] the prosecution has strongly relied upon the evidence of injured witnesses P.W.3 Rohit Suryawanshi (Exh.42) and P.W.4 Rajesh Suryawanshi (Exh.47). P.W.3 Rohit deposed that the deceased was residing in joint family and was doing the work of tailoring. He also deposed that daughter of deceased namely Rajani ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 ::: 10 APPEAL466.16.odt is married and residing at Pailani (U.P.). He further deposed that accused Siddhu is also resident of Pailani. He further deposed that accused Siddhu came to Sillewada to attend the marriage and due to quarrel in marriage at Sillewada, the accused came to Chankapur on 15.2.2015. It has come on record that on 16.2.2015, there was engagement of son of Suryapal and after engagement ceremony at about 11 p.m., deceased as well as family members told Siddhu to return to his village Pailani. He became angry and picked up scissor and assaulted the deceased on his stomach. He further deposed that he was present there along with Rajesh. They tried to catch hold the accused, but he assaulted to him and Rajesh by scissor. He sustained injury of scissor on left hand and Rajesh sustained injury of scissor on right hand. Thereafter, they took Siddhu outside and people from mohalla were gathered. He deposed that deceased was firstly taken to the hospital of Dr. Pawar at Khaparkheda and thereafter, referred to Kunal Hospital, Nagpur. He identified his shirt as well as article scissor. He was cross-examined at length by the accused. In his cross-examination, it was suggested to this witness that he did not sustain injury on left hand by scissor and also rajesh did not sustain injury on right hand, to which he denied. In the cross-examination, ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:16 ::: 11 APPEAL466.16.odt he stated that there were two scissors. One of mine and one of deceased and both the seizures were kept in the hall. It was suggested to him that the deceased did not tell to the accused to return to his village and accused has not assaulted him by scissor due to anger, however, he denied the same. It was also suggested to him that when he was carrying deceased to the hospital, his night pant was blood stained, but he denied the same.
14] Considering the evidence of P.W.3 Rohit Suryawanshi, his presence is not doubted. This witness is the family member of the deceased and considering the fact that there was engagement of son of the deceased, presence of this witness is established by the prosecution. Moreover, he is a injured witness. The incriminating circumstances put to the accused in the statement under Section 313 of Cr.P.C. are not answered by the accused. Further, the evidence of this witness is corroborated by P.W.4 Rajesh Suryawansi. 15] Evidence of P.W.4 Rajesh Suryawanshi is similar to the evidence of P.W.3 Rohit Suryawanshi. He is also an injured witness. In the cross-examination, nothing is brought on record to disbelieve him. The only suggestion put to him was that deceased Suryapal ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 ::: 12 APPEAL466.16.odt being elder brother of his father, is deposing falsely, however, he denied the same.
16] PW-3 Rohit Suryawanshi and PW-4 Rajesh Suryawanshi are the injured witnesses. The injury certificate of PW-4 Rajesh is at Exh.60. Dr. Shishir Shrivastava is examined by the prosecution at Exh.55, who has proved the injury certificate. According to this witness, patient Rajesh had sustained injuries over right palm of size 3 x 1 x 1 cm and Dr. Singh provided treatment to him. This witness also gave opinion of weapon to the query made by the police vide Exh.62. He opined the kind of weapon scissor i.e. 24 cm in length out of which brass handle was 13 cm and sharp end of iron scissor is 11 cm and width of handle is about 8.5 c.m. The witness also stated that middle portion is of about 2.2 cm and front sharp end is of about ½ cm. In the cross-examination, this witness has stated that he is controlling the entire hospital. It was suggested to him that the scissor was not brought before him and he had issued false report on the say of subordinate, however, he denied the same. 17] Considering the evidence of both the injured witnesses together with Dr. Shrivastava, who issued the injury certificate and ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 ::: 13 APPEAL466.16.odt examined the weapon, the prosecution has established that the accused was the person, who assaulted the deceased by means of weapon scissor and caused bleeding injury.
18] P.W.1 Anil Suryawanshi, examined by the prosecution is the witness who had lodged the report. He is nephew of the deceased. He deposed that he resides in a joint family with his father, elder brother of his father, Rajesh, Rohit and ladies etc. in one house at Chankapur. He was present at his home at the relevant time. He saw injured Suryapal as well as accused and two eye- witnesses Rohit and Rajesh. P.W.6 Arvind Suryawanshi is the son of deceased. He also came on the spot when Anil knocked his door loudly and told about the incident that Siddhu assaulted to his father by scissor and come soon. He immediately went to the spot and seen his father sustained bleeding injury on abdomen and blood was oozing. He also deposed that his father told him that the accused assaulted him by means of scissor on abdomen and when Rajesh and Rohit intervened, accused also assaulted to them. No doubt, the accused has suggested that the deceased has not stated anything to him about the assault, but he denied. The prosecution also not much relied upon the oral dying declaration made before this witness. ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 :::
14 APPEAL466.16.odt Nevertheless he has seen the accused on the spot and injured father. Testimony of this witness is supporting the prosecution theory. 19] The prosecution has also relied upon circumstantial evidence. P.W.2 Shambhau Verma, panch witness is examined by the prosecution at Exh.31. He has proved the seizure memo of blood stained shirt of Rajesh Suryawanshi (Exh.34) and blood stained pant of Rohit Suryawanshi vide seizure memo (Exh.35). He has also proved seizure of white full pant, one golden kurta and grey nicker of deceased Suryapal vide seizure memo (Exh.37). He deposed that the police had seized cream colour shirt and white pant from Ramkumar Suryawanshi vide seizure memo (Exh.38) and also blood sample of Rohit and Rajesh Suryawanshi vide Exhs.40 and 41. He further deposed that police had seized blood stained shirt, full pant, sandow banian and sweater from accused Siddhu under seizure memo Exh.36. He deposed that police also seized blood sample of the accused under seizure memo Exh.39. This witness was cross- examined at length, but nothing is brought on record to disbelieve him. It was suggested to him that police did not prepare the panchanamas in his presence and only obtained his signatures on it, to which he denied.
::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 :::
15 APPEAL466.16.odt 20] The prosecution has also relied upon the CA report at
Exhs.20 to 25 and at Exh.105. From perusal of CA reports, it appears that except exhibits 1, 3 and 5, all the articles were having considerable number of blood stains on it. The blood found on it is of human. This circumstance is certainly incriminating against the accused. Moreover, these circumstances were put to the accused in the statement under Section 313, however, he has not explained the same. The accused is bound to explain at least the blood stains found on his clothes. Deceased Suryapal and eye-witnesses P.W.3 Rohit and P.W.4 Rajesh had also sustained the injuries and therefore, their clothes were blood stained.
21] The prosecution has examined P.W.5 Mohd. Arif Wahid Hassan at Exh.48. He has proved the spot panchanama Exh.50. He deposed that scissor was found on the spot and was seized vide seizure panchama Exh.51. Though, the prosecution came with a case that as per disclosure statement made by the accused vide Exh.52 the accused shown the spot and thereafter spot panchanama Exh.53 was made, it is to be noted that already spot panchanama was prepared vide Exh.50 and scissors were seized vide Exh.51, therefore, not much importance is attached to the disclosure ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 ::: 16 APPEAL466.16.odt statement by the accused Exh.52 and subsequent spot panchanama Exh.53.
22] The prosecution has relied on evidence of P.W.9 Rahul Singpure (Exh.107). As per the version of this witness, he heard shout from the house of Arvind and therefore, he went there. He saw Suryapal in injured condition and accused Siddhu was there. His evidence is not much helpful to the prosecution. However, he reached the spot immediately and supports the prosecution theory. 23] PW-10 Suchita Deshmukh, PSI, Khaparkheda, examined by the prosecution at Exh.109, is the Investigating officer. Her evidence discloses that she has investigated the case. In her evidence, it has come on record that PI Tede drawn spot panchanama Exh.50 and seized the articles found on the spot vide Exh.51. According to her, she prepared the inquest panchanama (Exh.33) and seized the blood sample of witness Rohit and Rajesh vide Exhs.40 and 41, respectively. She further deposed that she seized the clothes of injured witnesses, accused and deceased vide seizure pachanamas. The seized muddemal was referred for ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 ::: 17 APPEAL466.16.odt analysis. She recorded the statements of the witnesses and after completion of the investigation, filed charge-sheet. She was cross- examined by the accused. It was suggested to her that she has not recorded the statements of the witnesses as per their say and the matter is not investigated properly and filed false charge-sheet, to which she denied.
24] Considering the oral as well as documentary evidence on record, particularly version of eye-witnesses, we are of the opinion that the prosecution has established the guilt of accused beyond any reasonable doubt. The learned Sessions Judge has rightly hold the accused guilty for the offences charged.
25] The only submission put forth on behalf of the learned counsel for the appellant is that offence punishable under Section 302 of IPC is not made out and at the most, offence under Section 304 Part I is made out by the prosecution against the accused. The learned Additional Public Prosecutor has strongly objected the submission put forth by the learned counsel for the appellant. ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 :::
18 APPEAL466.16.odt 26] We have considered the evidence on record carefully
and inclined to accept the submission put forth on behalf of the appellant. There is no evidence on record to show that the appellant had any pre-determined motive or enmity to commit offence like murder. There is no evidence on record to show that there was pre- meditation in commission of crime. The accused is not related to the deceased. The evidence on record clearly shows that he is resident of village Pailani, District Banda (U.P.), where the daughter of deceased is given in marriage and residing there. It has come on record that accused came to Sillewada for marriage purpose and due to some quarrel or incident in the marriage, he was in frightened condition and came to the house of the deceased and resided there. It has come on record that on the day of the incident, there was engagement ceremony in the house of the deceased and at night time at about 11.15 pm., the incident took place. According to the prosecution, deceased Suryapal as well as family members were asking the accused Siddhu to go to his village. The accused when got annoyed and took the scissor and assaulted to deceased Suryapal. There is only one blow given by him to deceased Suryapal. These circumstances clearly indicate that the accused had not acted pre - determined and assaulted to the deceased.
::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 :::
19 APPEAL466.16.odt 27] Considering the above facts and circumstances of the
case, we are of the considered view that the offence is of culpable homicide not amounting to murder as specified in Exception 4 to Section 300 of the Indian Penal Code and hence, punishable under Section 304 Part I of IPC and not under Section 302 of IPC. 28] In support of his submission, the learned counsel for the appellant has relied upon the judgment of this Court in Criminal Appeal No. 267 of 2015 (Laxman Akaram Ingole .vs. State of Maharashtra), decided on 31.1.2017 and submitted that this Court in the similar circumstances, has altered the sentence awarded under section 302 of IPC and the appellant/ accused to one under Section 304 Part I and was sentenced to undergo rigorous imprisonment for seven years. The learned counsel also submitted that in the said case several blows of sickle were given by the accused to the deceased. 29] We have perused the judgment and order in Criminal Appeal No. 267 of 2015. In the facts and circumstances of the case at hand, we are of the view that said judgment is squarely applicable to the present case. We are inclined to give benefit of Exception 4 to Section 300 of the IPC to the appellant/accused by altering ::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 ::: 20 APPEAL466.16.odt conviction from under Section 302 of IPC into one under Section 304 Part I of IPC and by altering sentence from rigorous imprisonment for life to rigorous imprisonment for seven years. 30] In the result, the Criminal Appeal is partly allowed"
The conviction and sentence awarded to the appellant for the offence punishable under Section 302 of the Indian Penal Code are set aside and altered to one under Part I of Section 304 of the Indian Penal Code. The appellant is sentenced to undergo rigorous imprisonment for a period of seven years for the said offence.
Rest of the order including conviction and sentence for the offence punishable under Section 324 of the Indian Penal Code, payment of fine, etc. is maintained.
Fees payable to the learned Counsel, who was appointed to appear on behalf of the appellant, are quantified at Rs.5,000/- (Rupees Five thousand only).
The criminal appeal is disposed of in the aforesaid terms.
JUDGE JUDGE
Diwale
::: Uploaded on - 06/11/2017 ::: Downloaded on - 08/11/2017 01:10:17 :::