Sau. Panchfula Ramkusan Ukey (In ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3543 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                   
                                   NAGPUR BENCH, NAGPUR




                                         
                             CRIMINAL APPEAL NO.49 OF 2014
                             
                            
      Sau. Panchfula Ramkusan Ukey,
      Aged about 40 years, Occ. Agrilst.,
      r/o. Tekepar (Madgi), Tq. and 
      District Bhandara. (In Jail).                   ..........      APPELLANT
      
   



              // VERSUS //





      State of Maharashtra,
      Through P.S.O., Police Station,
      Adayl,  District Bhandara.                         ..........       RESPONDENT





      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
            Mr.D.V.Chauhan, Adv. (appointed) for the Appellant.
                Mrs.S.S.Jachak, A.P.P. for respondent/State.
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=




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                                         CORAM     :  B. R. GAVAI &
                                                              V. M. DESHPANDE, JJ.

DATE : 1.7.2016.

ORAL JUDGMENT (Per B.R.Gavai, J) :

1. The appellant has approached this Court being aggrieved

by the Judgment and Order passed by the learned Additional

Sessions Judge, Bhandra, dt.7.1.2013 in Sessions Trial Case No.26 of

2011 thereby convicting the present appellant for the offence

punishable under Section 302 r/w. 34 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay a fine of

Rs.5,000/-; in default to suffer rigorous imprisonment for six

months.

2. The prosecution case, in brief, as could be gathered from

the material placed on record, is thus :

Lata Yograj Kayate (PW-1) had lodged oral report below

Exh.30, on the basis of which the First Information Report came to

be lodged below Exh.31. It is stated in the F.I.R. by the first

informant Lata (PW-1) that her father-in-law deceased Yadaorao

Badhuji Kayate was assaulted with sticks by Original accused no.2

3 apeal49.14.odt

i.e. present appellant as well as her husband Ramkusan. It is the case

of prosecution that, on the day of incident i.e. on 22.1.2011, at

around 8.30 p.m., deceased Yadaorao after having meals went out of

the house. Deceased had quarreled with accused no.1 Ramkusan s/o.

Sadashiv Ukey asking as to why he was storing firewood near his

house. Upon hearing the said quarrel, the complainant came out of

the house and asked her father-in-law Yadaorao and accused no.1

not to quarrel with each other. It is the prosecution case that, at that

time, accused nos. 1 and 2 brought sticks from the house and

assaulted the deceased on his hand on the road. The deceased fell

down, but the accused continued to assault him by sticks. At that

time, complainant's daughter Ashwita Yograj Kayate (PW-2) shouted

as "Ajoba mele, Ajoba mele". Both the accused went to the house of

Police Patil. On the basis of this allegation, Crime No.6 of 2011 came

to be registered. Investigation was carried out. At the conclusion of

investigation, charge sheet came to be filed in the Court of Judicial

Magistrate, First Class, Pauni. Since the case was exclusively triable

by the learned Sessions Judge, Bhandara, the same came to be

committed to the learned Sessions Judge, Bhandara. The learned

Judge framed charge from the offence punishable under Section 302

r/w. 34 of the Indian Penal Code below Exh.23. The accused pleaded

4 apeal49.14.odt

not guilty and claimed to be tried. At the conclusion of the trial, the

learned trial Judge passed the order of conviction and sentence as

aforesaid. Being aggrieved thereby, the present appeal.

3. Mr.D.V.Chauhan, learned Counsel for the appellant

submits that the learned trial Judge has grossly erred in convicting

the appellant. The learned Counsel submits that the witnesses are

interested witnesses and not only that, their evidence is also contrary

to each other. The learned Counsel for the appellant further submits

that, in any case, the case for the offence punishable under Section

302 of the Indian Penal Code would not be made out, inasmuch as

from the evidence of prosecution witnesses itself, it would reveal that

there was no intention on the part of the accused to commit murder

of the deceased.

4. The learned A.P.P., on the contrary, submits that merely

because the witnesses are interested, it cannot be a ground to discard

their testimonies. It is submitted that the evidence of Lata w/o.

Yograj Kayate (PW-1) and Aswita d/o. Yograj Kayate (PW-2) is

consistent and as such, no interference is warranted in the present

appeal.

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5. With the assistance of the learned A.P.P. as well as the

learned Counsel for the appellant, we have scrutinized the evidence

on record. From the evidence of Dr. Abhay s/o. Bhanudas Thul (PW-

9), we find that no interference is warranted with the finding that

the death of deceased is homicidal.

6. In her evidence, Lata Kayate (PW-1), who is the first

informant, has stated that, on the night of incident, after having

meals, her father-in-law Yadaorao went out. She was inside the

house. At that time, her elder daughter Ashwita came to her and

stated that fighting is taking place between her father-in-law

Yadaorao Kayate on one hand and accused nos. 1 and 2 on the other

hand. She states that thereafter she went out. At that time, she saw

that both the accused persons were beating her father-in-law with

sticks. She asked the accused persons not to beat her father-in-law

with sticks. She further states that her father-in-law had sustained

injuries on head and fell down. Though there are certain

contradictions and omissions in her evidence, the vital part of her

evidence, insofar as assault on the deceased is concerned, has gone

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unchallenged. Not only that, but her testimony is corroborated by the

First Information Report which was lodged immediately.

7. Aswita d/o. Yograj Kayate (PW-2) is daughter of Lata Kayate

(PW-1). She also states in her evidence that, on 22.1.2011, she was

outside the house. She saw that both the accused persons were

beating her grandfather with sticks. She further states that, due to

assault made by accused persons with sticks, her grandfather

sustained bleeding injuries on his head and fell down on the road.

Her evidence insofar as material aspect of assault is concerned has

remained unshakened.

8. Mahadeo Bhiku Chetule (PW-3) is Police Patil of village

Tekepar Madagi. He states that, on the day of incident, in the night

at around 8.30 p.m., both the accused persons came to his house.

They told him that a quarrel took place between them and Yadaorao

Kayate and they assaulted him with sticks and Yadaorao died. It

could thus be seen that the ocular testimonies of Lata Kayate (PW-1)

and Mahadeo Bhika Chetule (PW-3) are also corroborated by the

extra-judicial confession given by the accused persons to Mahadeo

Chetule (PW-3). Though Mahadeo Chetule (PW-3) has been

7 apeal49.14.odt

thoroughly cross-examined, his testimony, insofar as extra-judicial

confession is concerned, has remained unshakened. From the

evidence of this witness, it would reveal that the extra-judicial

confession is voluntary, without any coercion or force.

9. In view of the ocular testimonies of Lata Kayate (PW-1) and

Aswita Kayate (PW-2), corroborated by the extra-judicial confession

given to Mahadeo Chetule (PW-3), we find that the prosecution has

proved beyond reasonable doubt that the original accused are the

authors of the assault which lead to death of deceased.

10. That leads us to consider the next question as to whether the

conviction u/s.302 of the Indian Penal Code has to be maintained or

altered to lesser offence. Perusal of evidence of Lata Kayate (PW-1)

as well as Mahadeo Chetule (PW-3) would reveal that both the

witnesses have stated that there was quarrel between the deceased

on one hand and the accused persons on the other hand. Not only

that, Lata Kayate (PW-1) has clearly admitted that her father-in-law

was of quarrelsome nature and he used to abuse anybody. She

further admitted that some villagers had lodged complaint against

her father-in-law with Tanta Mukti Samiti as well as in Adyal Police

8 apeal49.14.odt

Station. She has further admitted that it is true that because of

quarrelsome nature of her father-in-law, many villagers were against

him. She has further admitted that, in the year 2006, a police case

was filed against her father-in-law for beating accused no.1

Ramkusan Ukey and that case is pending in Pauni Court. Taking into

consideration the testimonies of Lata Kayate (PW-1) and Aswita

Kayate (PW-2) itself, it could be seen that the incident has arisen out

of quarrel between the accused and the deceased. Lata Kayate (PW-

1) has herself admitted that the deceased was of quarrelsome nature

and was in a habit of abusing anybody. In that view of the matter,

we find that the possibility of the accused persons being abused by

the deceased and as a result of this, the accused persons getting

provoked and assaulting the deceased with bamboo sticks cannot be

ruled out. It is to be noted that the bamboo sticks are available in

most of the households in the villages. It is not the prosecution case

that the accused have used any dangerous weapon to assault the

deceased. We, therefore, find that the prosecution has failed to prove

that the accused had an intention to cause death of the deceased. In

that view of the matter, we find that the conviction under Section

302 of the Indian Penal Code would not be sustainable. The case

9 apeal49.14.odt

would rather fall under Part II of Section 304 of the Indian Penal

Code. The Criminal Appeal is, therefore, partly allowed.

The order of conviction under Section 302 of the Indian Penal

Code is altered to one under Part II of Section 304 of the Indian

Penal Code. For the said offence, the appellant is sentenced to suffer

rigorous imprisonment for five years.

Rest of the order including the order in relation to payment of

fine is maintained.

Fees of the learned Counsel appointed for the appellant are

quantified at Rs.5,000/-.

Mr.D.V.Chauhan, learned Counsel graciously states that the

fees be not paid to him and instead, it be deposited with the High

Court Bar Library as a donation on his behalf. The High Court Legal

Services Sub-Committee, Nagpur shall deposit an amount of

Rs.5,000/- with the High Court Bar Library and the receipt be placed

on record.

                                    JUDGE                          JUDGE

       
      jaiswal