Bombay High Court
Prakash Suryakant Lad vs The State Of Maharashtra on 1 December, 2016
Bench: V.K. Tahilramani
APPEAL-89-2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.89 OF 2013
PRAKASH SURYAKANT LAD )
Age : 30 years, Occupation - Nil )
R/o. Lingdal, Taluka - Deogad, )
District - Sindhudurg. )
(Confined as Convict No.C-5329 )
Kolhapur Central Prison, )
Kalamba, Kolhapur )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mrs.Pranali Kakade, Advocate Appointed for the Appellant.
Mr.H.J.Dedhia, APP for the Respondent - State.
CORAM : V.K.TAHILRAMANI &
A. M. BADAR, JJ.
DATE : 1st DECEMBER 2016.
JUDGMENT : (PER A.M.BADAR, J.)
1 By this appeal, appellant / convicted accused is
challenging the judgment and order dated 15th March 2012 passed
by the learned Sessions Judge, Sindhudurg, Oros, convicting him
of the offence punishable under Sections 302 and 506 of the IPC.
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For the offence punishable under Section 302 of the IPC, the
appellant / accused is sentenced to suffer life imprisonment and
for the offence punishable under Section 506 of the IPC, he is
sentenced to pay fine of Rs.100/-, in default, to undergo simple
imprisonment for seven days.
2 Shorn off unnecessary details, case of the prosecution
as reflected from the police report is thus :
Appellant / accused Prakash Suryakant Lad started residing
in the house of Sadhana Prakash Ahir (since deceased) at Village
Lingdal, Taluka Devgad, after death of her husband in the year
2001. He established sexual relations with deceased Sadhana
during his stay at her house. Deceased Sadhana was residing with
her daughter / informant Pratiksha Prakash Lad (PW1) and her
son Prasad. The appellant / accused then established physical
relations with PW1 Pratiksha also and therefore, deceased
Sadhana married her daughter PW1 Pratiksha with the appellant /
accused, and as such, he continued to stay at the house of
deceased Sadhana.
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3 According to the prosecution case, on 23rd February
2011, after finishing her work with the bank, deceased Sadhana
returned to her house at Lingdal at about 2.00 p.m. The appellant
/ accused who was present in the house then started quarreling
with her and assaulting her with stick. When informant PW1
Pratiksha attempted to intervene for saving her mother Sadhana
from the assault, the appellant / accused threatened to beat her
and therefore she was compelled to go out of the house with her
small child. The episode of assault and quarrel lasted upto 8 p.m.
The accused then came out of the house and therefore PW1
Pratiksha entered in the house to find her mother Sadhana lying
on the ground. She made her to sleep on the bed after changing
her clothes. In the next morning, when PW1 Pratiksha attempted
to wake up her mother Sadhana, she found that Sadhana is not
responding to her calls. Therefore, she called her neighbours
including her uncle PW5 Shantaram. They all found Sadhana
dead and as such police were called. On the spot itself PW6
Jaysing Yadav, P.I. Devgad Police Station, recorded FIR of PW1
Pratiksha and sent it to the police station for registration of the
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offence. Accordingly, Crime No.7 of 2011 for the offence punishable
under Sections 302 and 506 of IPC came to be registered against the
appellant / accused and the wheels of investigation were set in
motion. Ultimately, charge-sheet came to be filed and after due trial,
the appellant / accused was found guilty and therefore he was
convicted and sentenced as stated in the opening paragraph of this
judgment.
4 Heard the learned counsel appearing for the appellant /
accused. By taking us through the evidence of the prosecution, and
particularly, through that of PW1 Pratiksha, the learned counsel
vehemently argued that evidence of PW1 Pratiksha is totally
unreliable because of her abnormal conduct as PW1 Pratiksha had
not called her neighbours for providing medical help to her mother
Sadhana. Timely medical help could have averted death of Sadhana.
Hence, the offence punishable under Section 302 of the IPC is not
made out. The learned counsel in the alternative, submitted that,
weapon of assault is alleged to be a stick and as such, the offence
would not travel beyond Part (II) of Section 304 of the IPC. The
learned counsel further argued that evidence on record shows that
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the deceased was addicted to liquor and therefore possibility of
her accidental death because of a fall due to intoxication is not
ruled out by the prosecution. Therefore, the appellant / accused,
in submission of the learned counsel for the appellant / accused, is
entitled for the benefit of doubt. The learned counsel further
argued that there is no corroboration to the evidence of PW1
Pratiksha in such serious offence of murder. Panch witnesses to
the spot panchnama seizure of sticks and clothes of the deceased
have turned hostile and therefore the recovery of stick and seizure
of clothes of the deceased is not proved by the prosecution.
5 The learned APP supported the impugned judgment
and order by contending that the impugned judgment and order
of conviction is based on the evidence on record and there are no
compelling or substantial reasons for interfering with the
impugned judgment and order of conviction and sentence. The
learned APP argued that clothes of the accused were found to be
stained with the blood of the blood group of the deceased and
even forensic evidence supports the case of the prosecution.
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6 We have carefully considered the rival submissions
and also perused the record and proceedings. According to
the prosecution case, the incident in question took place in
the house of the deceased, shared by him with his wife
PW1 Pratiksha, who happens to be the daughter of deceased
Sadhana. As such, fate of the prosecution case to a large extent
hinges on the evidence of PW1 Pratiksha, who claims to be an eye
witness to the crime in question. As the offence alleged is
punishable under Section 302 of the IPC, at the first place, it is
incumbent on the part of the prosecution to prove that deceased
Sadhana died homicidal death. It is defence of the accused, as
seen from his statement under Section 313 of the Code of
Criminal Procedure as well as from cross-examination of the
prosecution witnesses, that the deceased who was addicted
to liquor died because of liver serosys and alcohol addiction.
The defence is also propounding the theory of accidental death
of Sadhana because of her fall in the state of intoxication from the
ota as well as her fall on head after taking a bath.
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7 It is seen from the evidence of PW6 Jaysing Yadav,
Investigating Officer, that he reached on the spot of the incident at
about 10.30 a.m. on 24 th February 2011 upon getting information
regarding the incident from the police patil. This witness, then
took inquest notes after inspecting the dead body. This inquest
panchnama which is a document not disputed by the defence is at
Exhibit 27. The inquest panchnama at Exhibit 27 shows that dead
body of Sadhana was having blunt trauma all over apart from
swollen face. The dead body was then sent for autopsy and PW4
Dr.Siddharth Patil conducted postmortem examination thereon.
He also proved contemporaneous documents i.e. report of
postmortem examination on dead body of Sadhana which is at
Exhibit 29. Testimony of Dr.Siddharth and report of postmortem
examination on the dead body of Sadhana shows that the
deceased had suffered following injuries apart from internal
bleeding :
i) Multiple contusions present over the chest, back, arms, legs and face.
ii) Lacerated wound on lower lip, measuring 1 cm x 3 cm
iii) Lacerated wound measuring 3 cm x 5 cm x 1 cm on lateral surface
of liver
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iv) Lacerated wound measuring 1cm x 5 cm over spleen
v) Fracture of 8th, 9th and 10th rib of the right side in axilla
vi) Fracture of 9th and 10th rib in posterior axillary line on left side
vii) Blood and blood clots in abdominal cavity
viii) Blood collection at axilla over 8 th and 9th rib in abdominal walls
and peritoneum.
Autopsy surgeon opined that death of Sadhana was due to
haemorrhagic shock due to internal bleeding in abdomen caused
by lacerated wounds to liver and spleen. There is positive
evidence of Autopsy Surgeon that the injuries found on the dead
body of Sadhana cannot be caused by a single fall. Autopsy
Surgeon PW4 Dr.Siddharth has categorically stated in his evidence
that injuries found on the dead body of Sadhana were possible
because of fists and kick blows as well as by sticks. Even othewise,
there is no suggestion to this Autopsy Surgeon that injuries on the
dead body could have been caused because of fall of a person in
the state of intoxication. What was tried to be suggested to the
Autopsy Surgeon was that liver serosys could cause deformation
of size of liver and addiction to alcohol causes swelling of the liver.
However, the Autopsy Surgeon denied the suggestions that liver
can be burst by swelling.
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8 At this juncture, it also needs to be noted that stomach
of the dead body was found to be empty. It is not elicited from the
Autopsy Surgeon that the fluid in the small intestine of the dead
body was having smell of alcohol. Contemporaneous notings in
the postmortem report Exhibit 29 shows that small intestine was
containing some fluid but it is not stated that the said fluid was
having any abnormal smell or smell of alcohol. There are no
suggestions to the Autopsy Surgeon that findings in the
postmortem report are suggestive of consumption of alcohol by
the deceased. This evidence, as such, unerringly, points out that
deceased Sadhana died homicidal death because of injuries
suffered by her which were sufficient in the ordinary course of
nature to cause death.
9 Now let us examine whether evidence on record
establishes that it was the appellant / accused who caused
injuries to deceased Sadhana with requisite intention and
knowledge for causing her death. Evidence of PW1 Pratiksha
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- wife of the appellant / accused and daughter of deceased
Sadhana categorically shows that initially the appellant /
accused had love affair with her deceased mother, and then,
her mother i.e. deceased Sadhana was compelled to marry her
with the appellant / accused because of sexual relations of
the appellant / accused with her. It is elicited from her cross-
examination that PW1 Pratiksha married the appellant in
the year 2006 and a son was born because of this wedlock
in June 2006 itself. The evidence of PW1 Pratiksha also shows
that after death of her biological father in the year 2001, the
appellant started residing with them in the house with her mother
i.e. deceased Sadhana. Though PW1 Pratiksha has stated that her
brother Prasad used to stay in the same house, cross-examination
of PW5 Shantaram - cousin brother-in-law of deceased
Sadhana shows that subsequently, Prasad started residing with
this witness. Thus, a fact is established that the appellant was
residing with deceased Sadhana and her daughter PW1 Pratiksha
at their house at Village Lingdal.
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10 So far as the incident of murderous assault is
concerned, PW1 Pratiksha has stated that at about 2.00 p.m. on
23rd February 2011, her mother Sadhana returned from the bank
and then the appellant started quarreling with her and assaulting
her by means of stick. PW1 Pratiksha further stated that she
attempted to intervene in order to save her mother Sadhana but
the appellant / accused threatened to beat her and therefore
taking her child with her, she went outside the house. Evidence of
PW1 Pratiksha makes it clear that episode of quarrel and assault
by the appellant lasted till 8.00 p.m. and then the appellant came
out of the house, thereby allowing PW1 Pratiksha to enter into the
house. PW1 Pratiksha further stated that she found her mother
Sadhana lying on the ground. She changed clothes of her mother
and put her on the bed. It is in evidence of PW1 Pratiksha that in
the next morning despite her calls, her mother did not wake up
and therefore she called neighbours including her uncle PW5
Shantaram. They found her mother Sadhana died and then police
came on the spot and her report was recorded. This witness
further identified muddemal article nos.1 and 2 sticks and states
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that those are the sticks by which her deceased mother was
assaulted. She further identified muddemal article nos.3 and 4
saree and blouse of her deceased mother, apart from articles nos.6
and 7 Shirt and pant of the appellant i.e. her husband, worn by
him on the day of the incident.
11 Careful scrutiny of cross-examination of this witness
makes it clear that the defence could not elicit anything in order
to doubt her version in the chief examination. On the contrary,
the cross-examination reflects that the appellant started residing
in the house of mother of this witness since prior to her marriage
with this witness PW1 Pratiksha. The motive for committing
crime is also coming on record from cross-examination of PW1
Pratiksha. It is elicited from her cross-examination that appellant
was insisting that the ancestral property of the family be
transferred in the name of Prasad instead of selling it out.
12 Though it was suggested to PW1 Pratiksha that her
deceased mother Sadhana was addicted to liquor, and because of
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intoxication, lost balance and suffered a fall, all such suggestions are
denied by PW1 Pratiksha. No such suggestions were made to PW4
Dr.Siddharth Patil, Autopsy Surgeon, in order to bring on record the
fact that injuries suffered by deceased Sadhana are possible because
of fall of a person. It is, thus, clear that evidence of PW1 Pratiksha
unerringly points out that it was the appellant / accused who had
assaulted her deceased mother in their house from 2.30 p.m. to 8.30
p.m. on 23rd February 2011. It is worthwhile to mention that PW1
Pratiksha is closely related to deceased Sadhana and appellant
Prakash. She is natural witness to the incident of murderous assault
on her mother by her husband which took place in their house.
Being daughter of deceased Sadhana, she is not likely to screen the
real culprit to falsely implicate her own husband. Ultimately, she is a
mother of a son born from the appellant. Therefore, there is no
reason to doubt version of PW1 Pratiksha in respect of the incident
of assault.
13 It is seen from the evidence of PW6 Jaysing Yadav,
Investigating Officer, that he reached the spot at Village Lingdal,
after getting information from the police patil at about 10.30 a.m.
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on 24th February 2011, and then, he recorded the FIR lodged by
PW1 Pratiksha. It is, thus, clear that the FIR at Exhibit 23 was
lodged with promptitude and it was recorded at the spot of the
incident itself. Version of PW1 Pratiksha is consistent with her FIR
lodged immediately after the incident in question. The FIR lodged
with promptitude corroborates her version regarding assault on
the deceased by the appellant.
14 Evidence of PW1 Pratiksha further gains corroboration
from evidence of PW5 Shantaram - brother-in-law of the deceased
who was residing in the neighbourhood. PW5 Shantaram has
stated in his evidence that on 23rd February 2011 in the afternoon
he noticed the appellant standing at the door of his house armed
with a stick and threatening deceased Sadhana. After seeing PW5
Shantaram, they both went inside the house. Evidence of PW5
Shantaram further shows that the episode of quarrel between the
appellant and the deceased lasted up to 8 p.m., and on the next
day, at the instance of PW1 Pratiksha, he went to her house and
saw dead body of Sadhana with marks of injuries.
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15 Evidence of PW5 Shantaram about presence of
appellant in company of the deceased on 23 rd February 2011,
threatening by the appellant to deceased Sadhana and lasting the
episode of quarrel up to 8 p.m. of that day, is not challenged in
cross-examination. Similarly is the case in respect of the evidence
of PW1 Pratiksha. Her evidence regarding presence of appellant in
their house along with presence of her mother Sadhana in the
house at the time of the incident in question, went unchallenged.
Thus, evidence of PW1 Pratiksha and PW5 Shantaram is
consistent with each other and evidence of PW5 Shantaram fully
corroborates the version of PW1 Pratiksha.
16 Inquest panchnama at Exhibit 27 is a document which
is admitted by the defence. It shows that the dead body of
Sadhana was having marks of blunt trauma all over the body
apart from swollen face. This indicates violence and corroborates
the testimony of PW1 Pratiksha on the aspect of assault on
deceased Sadhana by the appellant / accused.
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17 Though, PW2 Dasharath Loke and PW3 Suryakant
Fatak - panch witnesses to spot panchnama and seizure effected
from the spot have turned hostile, the spot panchnama at Exhibit
32 which has resulted in seizure of two sticks as well as saree and
blouse of the deceased is proved by PW6 Jaysing Yadav. His
evidence shows that after visiting the spot of the incident, he
inspected the spot and seized two sticks from the spot, apart from
saree and blouse worn by the deceased at the time of the incident.
There is nothing in cross-examination of this witness to doubt his
version regarding seizure effected by him from the spot by
showing the spot cum seizure panchnama at Exhibit 32. One
cannot nurture fallacious impression that such panchnama can be
said to be proved only if panchas support the factum of inspection
of the spot and seizure. Official acts of police are regularly done is
wise presumption of law recognized by the legislature in terms of
provisions of Section 114 of the Evidence Act. There is nothing in
cross-examination of PW6 Jaysing Yadav, Investigating Officer, to
disbelieve his version in that regard. Similarly, the arrest cum
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seizure panchnama at Exhibit 26 by which the appellant was
arrested and his clothes were seized is a document admitted by
the defence. Evidence of PW6 Jaysingh Yadav shows that seized
articles including sticks, saree and seized clothes of the appellant
were sent for forensic examination. Report of Chemical Analysis
of sample of postmortem blood of deceased Sadhana as well as
those of seized articles are at Exhibit 33 / 1 -3. This forensic
evidence supports the case of the prosecution and fully
corroborates the testimony of informant PW1 Pratiksha. Blood of
deceased Sadhana was found to be of A Group. Blood of A
group was found on pant and shirt of the appellant as well as on
seized wooden stick and saree of deceased Sadhana. With this
evidence on record, we are unable to find any infirmity in the
judgment of the learned trial court, whereby, it held that the
appellant / accused had assaulted deceased Sadhana with
requisite intention and knowledge of causing her death.
18 This now requires us to consider the next submission
of the learned counsel for the appellant to the effect that if timely
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medical treatment was provided to the deceased, her death could
have been averted and therefore no offence punishable under
Section 302 of the IPC is made out. This is, a wholly irrelevant
submission. The deceased and her daughter PW1 Pratiksha were
residing in a remote village Lingdal in Devgad Taluka. There is no
cross-examination of prosecution witnesses to suggest that
provision of medical treatment was available in the vicinity.
Moreover, the submission so advanced is not legally tenable in
view of explanation 2 to Section 299 of the IPC which defines
culpable homicide. This explanation 2 reads thus :
Explanation 2.--Where death is caused by bodily
injury, the person who causes such bodily injury
shall be deemed to have caused the death,
although by resorting to proper remedies and
skilful treatment the death might have been
prevented.
Thus, what is relevant is determination as to whether injuries are
sufficient in the ordinary course of nature to cause death and the
argument that by providing skillful sufficient medical treatment,
the death might have been averted is wholly irrelevant.
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19 Lastly, we do not find any infirmity in the judgment
and order of convicting the appellant / accused for the offence
punishable under Section 506 of the IPC as the evidence of PW1
Pratiksha clearly establishes that the appellant / accused had
intimidated her by giving threats when she attempted to intervene
during the course of assault by the appellant for saving her mother
Sadhana.
20 In the result, we hold that the prosecution had
established commission of offences punishable under Sections 302
and 506 of the IPC by the appellant / accused.
21 To conclude, the appeal is devoid of merits and
therefore the same is dismissed.
(A. M. BADAR, J.) (V.K.TAHILRAMANI, J.)
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