Paneer Selvam vs The State Of Maharashtra
2012 Latest Caselaw 473 Bom

                                            judgment in appeal 756-05.doc

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           APPELLATE SIDE




                                                                                  
                      CRIMINAL APPEAL NO. 756 of 2005.




                                                         
    Paneer Selvam
    Subramanyam Pille, 25 years,
    Occupation labour, resident




                                                        
    at Bhim Colony, Near Ambedkar
    Putla, Ulhasnagar-4 resident of
    Piryavari Estate, Lower Division
    taluka Monar District Telikulam
    State of Kerla, at present lodged




                                            
    at Nasik Road, Central Prison.                                .. Appellant.
                              ig                           (Original Accused.)


                 Versus
                            
    The State of Maharashtra                                         ..Respondent.
       

    Shri A.L.Mookhtiar, Advocate, for the Appellant.
    Shri S.A. Shaikh, Additional Public Prosecutor, for the State.
    



                 CORAM :- SMT. V.K. TAHILRAMANI AND
                          A.R. JOSHI, JJ.

DATED :- 11th DECEMBER, 2012.

JUDGMENT (PER A.R.JOSHI,J):-

1. Heard rival submissions on this criminal appeal preferred by the

appellant-accused challenging the judgment and order of conviction dated

11.3.2005 passed by 2nd Ad hoc Additional Sessions Judge, Kalyan.

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2. By the impugned judgment and order, the appellant-accused was

convicted for the offence under section 302 of IPC and was sentenced to

suffer life imprisonment and to pay a fine of Rs.2,000/-in default to suffer

SI for three months. The appellant-accused was also convicted for the

offence under Section 309 of IPC. However, no separate sentence was

imposed on him. The appellant-accused was also directed to pay

compensation of Rs.20,000/- to the legal heirs of victim i.e. PWs 2 and 3.

3. The case of the prosecution, in nut shell, is as under :-

The appellant-accused and his family members, victim and her

family members are residents of the same locality i.e. Madrasipada. The

appellant- accused had love affair with the victim Saida who was married to

one Suresh PW-3. Said Suresh had later on converted to Islam as victim

Saida was of Muslim religion. Victim Saida had her daughter, aged about

10 years, PW-2 Nimira was staying with her. The incident took place at

about 7:00 pm on 5.2.2003. When victim and her daughter PW-2 were

alone at home, the appellant-accused raised quarrel with the victim and told

her to accompany him wherever he wanted to go. Victim declined and on

this there was altercation between the two. It was noticed by PW-2 Nimira,

daughter of the victim. The news of such quarrel reached to PW-1

Saraswatibai Naidu. She was a social worker of the said area. She visited

the house of the victim and tried to pacify situation. However, without any

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success. During the said quarrel which was witnessed by PW 1 and 2, the

appellant/accused took out a knife and gave blows on the chest and other

parts of body of the victim and also on her legs and hands. There were

about nine incised wounds and two abrasions. The incised wounds were on

vital parts of the body. Due to the assault, victim collapsed on the person of

the appellant-accused. Probably she died on the spot. Various people

gathered on the spot. It is also the case of the prosecution that immediately

after the assault on the victim, the appellant-accused got self inflicted

injuries on his person with the help of some knife. He also sustained severe

injuries on his abdomen. Injured appellant-accused was removed to Central

Hospital, Ulhasnagar along with the victim. Intimation was given to the

police. PW-1 Saraswatibai Naidu lodged complaint to the police. It was

treated as FIR Exh.6. Offence was registered against the appellant-accused

for Sections 302 and 309 of IPC.

4. During the investigation, scene of offence panchnama was drawn.

Blood samples were taken. Clothes of the victim were taken charge of. That

time broken pieces of bangles were found, so also blood stained knife

which was used by the appellant-accused for assault was also taken charge

of from the scene of offence. Dead body of victim was sent for postmortem.

Initially, the appellant-accused was in hospital under treatment. He was

treated by PW-10 Dr Salve at Ulhasnagar Central Hospital. Subsequently,

on 8.2.2003, the appellant-accused was put under arrest and the clothes

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from his person were taken charge of. Seized articles were sent for chemical

analysis. After obtaining reports and on completion of investigation charge-

sheet was filed. Matter was committed to the court of Sessions and it was

tried ending in conviction of the appellant for offence u/s 302 and 309 of

IPC.

5. Prior to appreciating the arguments advanced on behalf of the

appellant-accused, certain admitted position is required to be mentioned in

order to crystallize the circumstances. The said admitted facts are as

under :-

(1) There was love affair between the appellant and victim.

(2) On the night of the incident, the accused had visited the

house of victim.

(3) There was quarrel between the accused and victim during

which there was assault on the victim and accused also

sustained stab injuries due to self-inflicted wounds.

(4) The appellant-accused and also the victim were

immediately taken to Central Hospital, Ulhasnagar for

treatment wherein victim died and accused survived.

6. Apart from the above admitted position, it is also required to be

mentioned that the complainant PW-1 did not support the case of the

prosecution, though allegedly she witnessed the assault and lodged the

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complaint. She was declared hostile and questions were put to her in the

nature of cross-examination by learned A.P.P. PW No.2 Nimira was present

at the house during the incident of assault and at the time of the incident she

was ten years of age. Entire case of the prosecution is based on testimony

of PW-2 Nimira coupled with factual circumstance that accused was also

found in injured condition on the spot and he was also taken to the hospital

for medical treatment along with the victim.

7. Now, coming to the defence raised on behalf of the appellant-

accused, the following are the points which are brought to our notice on

behalf of the appellant-accused.

(a) When the appellant-accused has visited the house of

the victim, other three four persons arrived there and they

caught hold of the appellant-accused and victim and one

of them assaulted the appellant-accused and victim by

means of knife and then ran away from the spot.

(b) Alternatively, it was the case of accidental injuries

sustained by the victim, if it is accepted that the appellant

accused had assaulted the victim with the help of knife.

This is more so, when according to the case of the

prosecution, after the assault victim fell on the person of

the appellant-accused and in that process probably

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sustained the injury to the vital parts of the body.

(c) There was no intention on the part of the appellant-

accused to kill the victim, if it is accepted that the

appellant-accused had assaulted the victim with the knife,

initially, assault was on the legs and hands and then the

victim fell on his person and received injuries to her chest

and other parts of body. More so, the matter may be

brought down from section 302 to 304 (Part I) or (Part II)

of IPC, inasmuch as there was a sudden quarrel between

the parties in which in a heat of anger the appellant-

accused assaulted the victim and he had no intention to

kill.

8. In order to substantiate the defence raised above, appellant-accused

had examined himself as defence witness No.1 and also examined his

brother-in-law, one Vijayan Pille as defence witness No.2. In the

substantiate evidence of both these defence witnesses, the first defence is

spelt out. Now, it is to be ascertained whether such defence is brought

before the court as after thought or whether the circumstances did happen

as mentioned by the appellant-accused and his defence witnesses. On this

aspect we have seen that such defence of some three four unknown persons

coming to the house of victim and assaulting the appellant-accused and also

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the victim with knife, is coming before the court only for the first time

when accused gave his evidence as DW-1 and examined DW-2 Vijayan

Pille as his defence witness. Even said defence is not put to any of the

prosecution witnesses much less to PW-2, an eye-witness, Nimira, daughter

of the victim. We have also seen that even this defence is not put to PW-1

complainant Saraswatibai Naidu. This witness did not support the case of

the prosecution and had turned as hostile. Even she was not put to this story

of the accused. Even this defence was not put to PW-4 Hamadali Pirmal

Shetty, who is a neighbour of the victim. He also allegedly witnessed the

incident of assault. However, he also turned hostile to the case of the

prosecution. According to DW No.2 Vijayan Pille, he was present at the

time of the incident outside the house of victim and when he heard the

noise from the house of victim he went there and saw that one person had

caught hold of the appellant and he also saw that the appellant had

sustained some injuries, so also the victim Saida had fallen down on the

person of the appellant. Thereafter, he went to police station and brought

police to the spot and then took the appellant-accused to the hospital.

During the cross-examination of this DW No.2 Vijayan Pille, it is brought

on record that he had not given any complaint in writing to the police. He

further stated that he did not try to catch hold of said alleged assailants and

did not come forward to rescue the appellant-accused.

9. Considering the effect of substantiate evidence of PW No.2 Nimira

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and effect of the defence witnesses, in our considered view there is nothing

to accept the first defence as to assault by some unknown four persons,

even on preponderance of probabilities.

10. So far as second defence is concerned regarding accidental injuries,

it is highly improbable that a victim would suffer such deep incised wounds

on her chest and other vital parts of the body due to accident. On this

aspect, reference is required to be made to the description of injuries which

are observed by PW No.11 Dr Ramesh Deshmukh who performed the

postmortem on the dead body of the victim. On this aspect, the relevant

evidence of PW No.11 is reproduced hereunder with advantage.

"Upon my examination, I found the following

external injuries as under and they are noted at

column no.17.

(1) Incised wound over chest left side 1 ½ " x 1".

(2) I.W.below left breast 1"x 1 ½ x cavity deep.

(3) I.W. Near injury no.2, ½" x ½" cavity

deep.

(4) I.W. Near injury No.3, 1 ½ " x 1" cavity deep.

(5) I.W. Near umbilicus 3" x 4" x cavity deep.

(6) I.W. Over left arm 2" x 2" x 1" deep. (7) I.W. Over left elbow 2" x 1" x ½ " deep. (8) I.W. Over left wrist 1" x 1" x ½ " deep. (9) I.W. Over left thigh 1" x 1" x 1" deep. (10) Abrasion over right forearm 2 x 2 cm. (11) Abrasion over left forearm 2x 2 cms.

All injuries are antimortem. Internal injuries are mentioned in column no.21.

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Pericardium torn below injury no. 5 of column no.17 with evidence of hemo peritoneum around 2-3 liters with

evidence of tear of abdominal aorta just above the bifurcation. There was tear on the ileum. There was evidence of tear of left

lobe of liver. The column no. 20, the injuries are mentioned as in the column No.

17. I came to the conclusion that the patient died due to hemorrhagic shock due to injury

to liver and abdominal aorta."

11. Gravity of the injuries sustained by the victim speak regarding the

forceful attack on the victim and that also on her vital parts of the body.

Moreover, there is evidence of another doctor, PW-10 Dr Vilas Salve, who

had observed the injuries on the appellant-accused and treated him in the

evening of the date of the incident at Central Hospital, Ulhasnagar. At this

juncture, the injuries observed by Dr Salve on the person of the appellant-

accused can be mentioned with advantage as under :-

"On 5.2.2003 I have examined patient Paneer Subramanium Shelman brought by his relative Vijayan Pille. Alleged history of suicidal attempt today at home at about 7:30 pm. Patient had self inflicted injury himself as

history given by relative. On examination I noticed following injuries on his person. (1) Stab injury in right pyrimidine region near the umbilicus 1 cm x 1 cm paramedical region. (2) 4 stab wounds right side of the abdominal wall right

side 2 cm apart from injury no.1. The injuries are grievous in nature. The injuries are possible by hard and sharp object. The injury was fresh within six hours. Accordingly, I issued injury certificate, now shown to me, bears my signature, contents are correct. It is at Exh.19. The identification mark of the patient are not noted. The injuries are possible by muddemal property, now shown to me. It is Art.No.3.

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12. The substantive evidence of doctor, as mentioned above, indicate

regarding the bringing of the appellant accused for treatment by his one

relative by name Vijayan Pille. Admittedly, said Vijayan Pille is defence

witness No.2 as mentioned above. It is significant to note that according to

the evidence of Dr Salve said Vijayan Pille had given the history that the

patient had self inflicted injuries. This is quite contrary to the defence taken

by the accused as to assault by some unknown persons.

13. Now, coming to the third and fourth defence as to no intention to

kill and the case can come under Exception 4 to section 300 of IPC, the

substantive evidence of Dr Deshmukh PW-11 coupled with the contents of

postmortem report speak volumes. In other words, the evidence on record

definitely point out that the assault on the victim was deadly and definitely

there was intention and knowledge of the appellant-accused to kill the

victim. There is nothing brought on record that there was such a quarrel

between the appellant accused and the victim on that evening so as to cause

the appellant-accused to loose his balance and inflict injuries on the person

of the victim. Apparently, from the case of the prosecution it transpires that

the appellant-accused was armed with the knife when he entered the house

of the victim on that evening and he asked the victim to follow him.

However, on declining by the victim he assaulted her on vital parts of her

body and killed her on the spot and then inflicted injuries on his person

himself, hence by no stretch of imagination the matter can be covered

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under Exception 4 to section 300 of IPC which reads as under :-

Exception 4 to Section 33:-

Exception 4 :

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of

passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation:- It is immaterial in such cases which

party offers the provocation or commits the first assault".

14. In our considered view, the appellant accused had definitely

intended to kill the victim and otherwise also used the knife and inflicted

grave injuries on the person of the victim and thus he is not entitled for the

dilution of the offence as claimed.

15. Considering the above material on record, in our considered

view, there is nothing to interfere with the impugned judgment and order of

conviction for the offence charged. In the result, there is no merit in the

present appeal and same is accordingly dismissed and disposed of. The

present order be communicated to the appellant-accused who is in jail,

through the concerned jail authorities, where he is presently lodged.

            (A.R. JOSHI, J)               (SMT. V.K. TAHILRAMANI,J)
    Ladda




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