Bombay High Court
Waman Laxman Mirka vs The State Of Maharashtra on 20 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
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rpa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 970 OF 2005
Waman Laxman Mirka ... Appellant
Versus
The State of Maharashtra ... Respondent
...
Mrs. Sarojini Upadhyay, Advocate appointed for the Appellant.
Mr. S. A. Shaikh, APP for the Respondent - State.
ig ...
CORAM : MRS. V.K. TAHILRAMANI &
A. R. JOSHI, JJ.
DATED : DECEMBER 20, 2012.
ORAL JUDGMENT : [PER A. R. JOSHI, J.]
Heard rival arguments on this criminal Appeal preferred by
the Appellant-Accused challenging the Judgment and order of
conviction dated 10th May, 2005, passed by III Additional Sessions
Judge, Thane in Sessions Case No.244 of 2004.
2 By the impugned Judgment and order, the Appellant-Accused
was convicted for the offence punishable under Section 302 of the
Indian Penal Code (IPC) and was sentenced to suffer imprisonment
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for life and to pay fine of Rs.2,000/- in default to suffer further R.I.
for thirty days.
3 The case of the prosecution, in nutshell, is as under :
The Appellant-Accused and his wife victim Barkabai were
residing at village Kambagaon, Taluka Bhiwandi, District Thane.
They were residing in a hut like structure having two rooms. Both
were addicted to consume liquor and there were frequent quarrels
between them on various counts. At times they used to go to the
village Police Patil one Arun Gaikar P.W.1 for consultation etc. The
incident occurred on 27th April, 2004. That time the Appellant-
Accused came to P.W.1 Arun Gaikar and asked him to come to his
house. That time the Appellant-Accused was drunk and he had
consumed liquor. P.W.1 enquired with him as to what was the
matter. However, the Appellant-Accused answered that when he
would reach home, he will come to know. Accordingly, both went
to the house of Appellant-Accused. There inside the house P.W.1
saw the wife of the Appellant lying on the ground and her body was
covered by some cloth. Apparently, said Barkabai, wife of the
Appellant-Accused was not alive. P.W.1 Police Patil called the
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neighbouring lady and with her help he removed the cloth and
found that said Barkabai had bleeding injury to her throat and also
there were some injuries on her hand and fingers. She was found
dead. On this, P.W.1 enquired with the Appellant-Accused as to how
it had happened? On this enquiry, according to case of prosecution,
Appellant-Accused gave extra judicial confession before P.W.1
stating that in that afternoon he came back home with some
articles. At that time, his wife who was also apparently drunk,
raised a quarrel with him saying that he should not live in the house
and he should live with his one sister by name Indubai Waghe.
There were hot exchange of words and in a fit of rage, Appellant-
Accused took one wooden handle of the axe/wooden log and hit on
the head of his wife Barkabai, causing severely bleeding injury and
apparently causing in her death. On this revelation from the
Appellant-Accused, P.W.1 took him to the police station where his
complaint was taken down by police officer Sudhakar Jadhav P.W.3.
Offence was registered against the Appellant-Accused under Section
302 of the Indian Penal Code. On visiting the scene of offence, spot
panchanama was drawn. The Appellant-Accused was put under
arrest on the same day afternoon. His blood stained clothes were
taken charge of. On the same day, Appellant-Accused made a
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voluntary statement to produce the wooden log of the axe. It was
then recovered from the house of the Appellant-Accused under
panchanama. During investigation, dead body of the victim was
sent for post-mortem and post-mortem report was obtained. Seized
articles were sent for C.A. and C.A. report was obtained. On
completion of investigation, charge-sheet was filed. The matter was
committed to the Court of Sessions and it ended in conviction vide
Judgment and order which is impugned in the present Appeal.
3 At the threshold, it must be mentioned that the learned
Advocate for the Appellant-Accused had virtually accepted the case
of the prosecution in as much as the presence of the Appellant-
Accused on the spot and finding of dead body of his wife.
Admittedly, it is a case of custodial death and, there is no probable
explanation coming from the Appellant-Accused as to how she has
died. In fact, the homicidal death of the victim has been admitted
by the Appellant-Accused and only point raised before us is whether
the facts and circumstances of the case would attract punishment
under Section 302 of the Indian Penal Code or whether the said
case can be considered as punishable under Section 304 Part-II of
Indian Penal Code.
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4 On the only submission as mentioned above, it is pointed out
to us the substantive evidence of P.W.1 Police Patil and P.W.3 Police
officer Sudhakar Jadhav, so also emphasis was placed on the
substantive evidence of Dr. Babasaheb Sorate, P.W.5 and contents of
the post-mortem report. During the arguments, it is also brought to
our notice that admittedly according to the case of prosecution,
there was sudden fight between the Appellant-Accused and his wife
and in fact the said quarrel was initiated by the victim herself when
the Appellant-Accused came back to the house after purchasing
some articles from the market. She raised the quarrel on the count
that Appellant should not stay in the house and he should stay with
his sister who is very close to him. On this, Appellant -Accused
become infuriated and in a fit of anger he lifted the wooden log and
gave apparently only one blow on the head of the victim. At that
time the Appellant-Accused was under the influence of liquor. It is
also argued that the Appellant-Accused did not intend to kill his
wife, however, his act of assaulting his wife on her head with a
wooden log, at the most can bring him under the clutches of Part -
II of Section 304 of the Indian Penal Code i.e. having knowledge
that his act would cause the death though he had not intended to
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kill his wife. It is further argued that said intention not to kill his
wife can be gathered by the weapon which is used by him. It is
pointed out that the Appellant-Accused had not used any deadly
weapon or sharp cutting instrument or even the cutting blade of the
axe, but, only used the wooden log to hit his wife and that also only
under the influence of liquor.
5 We have carefully gone through the substantive evidence of
Dr. Babasaheb Sorate, P.W.5 and also the substantive evidence of the
Police Officer P.W.3 Sudhakar Jadhav and of the Police Patil, P.W.1
Arun Gaikar. Also we have seen the contents of the post-mortem
report and noticed the injuries sustained by the victim. Only one
major injury was on the head causing fracture of the skull bone.
There are no other vital injuries on the body. So also we have
observed that according to the case of the prosecution, there was
quarrel which was raised by the victim and in which the Appellant-
Accused had assaulted his wife. Considering this circumstance, in
our opinion, the arguments advanced on behalf of the Appellant-
Accused can be accepted to dilute the said offence from Section 302
of Indian Penal Code to Section 304-II of the Indian Penal Code and
in that event the present Appeal is partly allowed, hence, the order:
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:: O R D E R ::
i. Criminal Appeal No.970 of 2005, is partly allowed.
ii. The conviction of the Appellant-Accused under
Section 302 of Indian Penal Code, is set aside, instead,
the Appellant-Accused is convicted under Section 304-
Part II of Indian Penal Code and he is sentenced to suffer
R.I. for 10 years and to pay fine of Rs.3,000/- in default,
R.I. for one month.
iii. The present Judgment and order be communicated
to the Appellant-original Accused through the concerned
jail authorities where he is presently lodged.
(A. R. JOSHI, J) (V.K. TAHILRAMANI, J.)
