Tanaji Rambhau Shinde vs The State Of Maharashtra
2012 Latest Caselaw 384 Bom

PPD

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                                                                 APEAL.931-05JUDGMENT.doc




                                                                                
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION




                                                        
                         CRIMINAL APPEAL NO.931 OF 2005

      Tanaji Rambhau Shinde,                        ]




                                                       
      convict No.C/- 14349,                         ]
      presently lodged at Yerawada                  ]
      Central Prison, Yerawada,                     ]




                                         
      Pune - 411 006.                               ] ..APPELLANT


                Versus
                            ig                      [Orig. Accused]
                          
      The State of Maharashtra 
      through Khed Police Station                   ] ..Respondent
                                         ....
        


      Mr. Arfan Sait, Advocate (appointed) for the Appellant.
     



      Mrs. P.P. Bhosale, APP for the Respondent - State.
                                         ....
                              CORAM :   SMT. V. K. TAHILRAMANI, &  
 




                                         A. R.  JOSHI,  JJ. 

DATE : 22nd NOVEMBER, 2012

JUDGMENT: [PER A. R. JOSHI, J.]

1. Heard rival arguments on this Criminal Appeal

preferred by the appellant/orig.accused challenging the

judgment and order dated 27.4.2005 passed by the 1 st Adhoc

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Additional Sessions Judge, Pune. The appellant/accused was

convicted in Sessions Case No.225 of 2004 for the offence

punishable under Section 302 of Indian Penal Code and was

sentenced to suffer RI for life and to pay fine of Rs.500/- in

default to suffer RI for two months.

2. The case of the prosecution in nutshell is as under :-

The appellant/accused then a young person of 25

years of age was having avocation as agriculturist and was also

maintaining cattle. He was staying in a joint family with his

parents and also the family of paternal uncle one Namdeo. Said

Namdeo was assaulted on the relevant night of 21.12.2003 in the

court-yard where the appellant was sleeping outside the common

house of the family and where the victim Namdeo was also

sleeping. Though the appellant/accused was a young person of

25 years and doing agriculture work and maintaining cattle etc.,

his marriage prospects were not good on account of physical

defect in his eyes as he was suffering from squatting. On that

ground, there used to be quarrel between him and his paternal

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uncle deceased Namdeo. Very often the appellant used to

quarrel with Namdeo saying that Namdeo was not taking steps

for getting the appellant married with suitable bride. According

to the prosecution, about two months prior to the said incident of

causing death of Namdeo, the appellant had expressed his desire

to kill Namdeo for his inaction in arranging the marriage. Such

threat was expressed by him to one Kantabai - wife of the victim.

Said Kantabai is one of the prosecution witnesses.

3. The fateful incident happened on the night between

20.12.2003 and 21.12.2003 probably at midnight. On the night

of 20.12.2003 at about 10:00 p.m. after the meals, all the family

members went to sleep. Parents and other family members of

the appellant slept inside the house, whereas the appellant,

victim and one another paternal uncle Dinkar slept outside the

house in the court-yard. Apparently electric light was on on that

entire night at the court-yard. At about 11:00 p.m. some noise

was heard by PW-1 Shantabai and she came out of the house and

noticed the appellant/accused standing in the court-yard and

also noticed that the victim Namdeo had sustained bleeding

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injury and blood was oozing from his mouth and one big stone

was lying by his side. She raised shouts and as such father of the

appellant came out. Even by that time, another uncle Dinkar

also woke up from sleep. Various other neighbours also

gathered on the spot. They noticed that Namdeo was lying on

the ground in an injured condition having severe bleeding

injuries on his face and appellant/accused was standing by the

side and afterwards ran away from the spot. The injured was

taken to nearby dispensary for medical help. However, he was

already dead. On 21.12.2003 complaint was lodged against the

appellant/accused by PW-1 Shantabai. Investigation was

conducted. The appellant/accused was put under arrest.

Statements of the witnesses, relatives of the appellant including

his father Rambhau (PW-2) were recorded. On completion of

investigation, charge-sheet was filed and after the trial the

matter ended in conviction, which is challenged in the present

appeal.

4. Here it is a case in which almost all the witnesses are

the relatives of the appellant/accused even his father Rambhau

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and his other close relatives had given evidence against him

specifically mentioning his presence on the spot and finding the

victim Namdeo in injured condition. We have found out that

there is overwhelming substantive evidence of the prosecution

witnesses against the present appellant/accused whereas only

the defence of the accused is that of total denial and false

implication and while recording his statement under Section

313 of Cr.P.C. he had answered to question No.36 that the

witnesses were deposing falsely in order to avoid giving of share

in the agricultural land to the appellant. Even on preponderance

of probabilities such defence cannot be accepted when the

allegations are made against him by his very close relatives and

also none other than his own father. Considering the material

available against the appellant/accused, at the end of the

argument, learned Advocate Shri Arfan Sait submitted that the

present case may be brought down from Section 302 of IPC to

Section 304 of IPC. However to substantiate this argument the

learned Advocate could not point out any ground on which the

offence can be diluted. Apparently this is a case not coming

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under grave and sudden provocation or the act committed in

sudden fight. Factually the assault on the victim Namdeo was

when he was sleeping by the side of the appellant, his nephew.

5. Inspite of such factual position, the learned Advocate

for the appellant placed reliance on the observations and final

findings recorded by the another Division Bench in unreported

Criminal Appeal No.294 of 2007 (Savita Bistur Bhoir Vs. Stat of

Maharashtra) decided on 16.3.2012. We have gone through

the facts of the cited decision. In that matter, just prior to the

incident of the assault by the woman accused on her husband,

on that night the husband came home in drunk condition and

suspected fidelity of the wife and started quarreling with her.

Apparently as there was no cognate evidence about the illicit

relationship between the accused and one PW-6, accused took

objection and in a heat of passion she had assaulted her husband

causing his death. Under those circumstances, another Bench of

this Court in the matter diluted the penal Section 302 of IPC to

Section 304 (Part I) of IPC. In our considered view, considering

the specific circumstances in the present matter as discussed

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above, the said ratio cannot be applied in the present matter as

that has been applied in the cited decision. In any event, there is

no merit in the present appeal and the same is accordingly

dismissed.

6. This judgment and order be communicated to the

appellant who is presently lodged in jail, through concerned jail

authorities.

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

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