Bombay High Court
Prakash S/O Amrarsingh Turi vs State Of Maharashtra, Through ... on 8 July, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.294/2014
Prakash s/o Amarsingh Turi,
aged Major, r/o Kinhi,
Tq. And Dist. Yavatmal. .....APPELLANT
...V E R S U S...
State of Maharashtra through
PSO P. S. Yavatmal. ...RESPONDENT
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Ms S. H. Bhatia, Advocate (appointed) for appellant.
Mrs. Geeta Tiwari, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- JULY 8, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. Being aggrieved by the judgment and order of conviction
dated 14.08.2013 passed by the learned Sessions Judge, Yavatmal in
Sessions Trial No.123/2012, by which the appellant stood convicted
for the offence punishable under Section 302 of the IPC and was
directed to suffer imprisonment for life and to pay a fine of Rs.500/-
and in default of payment of fine to undergo further rigorous
imprisonment for six months, the appellant is before this Court.
2. We have heard Ms Bhatia, learned counsel appointed by
the Legal Aid Committee to provide legal assistance to the appellant
and Mrs. Tiwari, learned A.P.P. for the State. With the assistance of
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these two learned advocates, we have gone through the record of the
sessions trial.
3. The appellant, who was charged by the learned Sessions
Judge for committing the murder of Sau. Jijabai Tukaram Pawar is
her son in law.
4. The first information report was lodged Tukaram Piraji
Pawar (PW1), the father in law of the present appellant. Oral report
is at Exh.-11. The said oral report was registered as FIR vide Crime
No.108/2012 (Exh.-12) by Bapu Gaigole, Police Inspector, who was
attached to Yavatmal Rural Police Station. He handed over further
investigation to Dy. S. P. Rupali Darekar (PW7).
5. According to the FIR, the marriage of his daughter Renuka
was solemnized with the appellant and the couple was residing since
last 10 years in the village Bhamb Raja whereat the first informant
resides. According to the FIR, Renuka, his daughter was ill treated
by the appellant. It is further reported that on 08.07.2012, due to
apprehension of beating, Renuka left her matrimonial house along
with her children and came to the house of the first informant.
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The FIR further recites that on the date of incident, i.e. on
09.07.2012, the first informant returned from his agricultural field at
2.00 p.m. and was taking rest in the "Chhapari". That time, Jijabai,
the deceased was inside the house. His two grand daughters Seema
and Payal were playing in the courtyard. That time, the appellant
came and went inside the house. Thereupon, the first informant
heard the voice of his wife "Meli". Therefore, the first informant
went inside the house and noticed that his wife was lying and there
was a blood stained knife in the hand of the appellant. He caught
hold of his knife and dragged him outside. He further reported in the
FIR that his son in law, due to domestic reason assaulted his wife.
6. After having entrusted with Crime No.108/2012, Rupali
Darekar (PW7) proceeded to village Bhamb Raja. She carried the
spot panchanama (Exh.-14). She also collected the soil, both simple
as well as smeared with blood in presence of pancha under seizure
memo Exh.-15. She also conducted the inquest over the dead body.
The inquest panchanama is at Exh.-26. The investigating officer also
seized clothes of the appellant under seizure memo Exh.-19. They
were duly sealed and handed over to Malkhana incharge.
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The appellant when was under police custody, made
disclosure statement. Thereby he agreed to show the place where he
concealed the knife. Admissible portion of the said memorandum
statement is at Exh.-53. The consequent seizure is under seizure
memo Exh.-54. After completion of investigation, charge-sheet was
filed.
7.
Dr. Trishul Padole (PW5) conducted the post mortem over
the dead body with his colleague Dr. R. R. Khetre and Dr. Manish
Shrirangiwar. Autopsy surgeon found following injuries which are
mentioned in the column no.17 of the post mortem report, which he
has proved and it is at Exh.-40. The injuries as noticed are as under:
"1) Old healed wound over left cheek of size
1 cm X 1 cm with fybroids.
2) Stab injury over left upper side of the chest
above left breast anteriorly, obliquely placed, medial angle
was 3.3 cm. from midline, 8.8 cm from left nipple and 10.2
cm. from left sternaclavicular joint of size 6.5 X 1.9 cm. X
cavity deep, on approximation 6.7 cm in length. Both
angles were acute and margins were clean cut, blood
infiltrated, reddish with beveled lower margin with
contusion around lateral angle of stab injury of size 2 X 2
cm. reddish with bluish hue. On cut section blood
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infiltration present in underline tissue. This stab injury
was corresponding to cut mark over the Choli."
The Doctor has also opined that muddemal property
namely the knife which was sent to him is a weapon which could
cause the aforesaid injuries.
8. There is no eye witness to the actual assault. Since
Tukaram Pawar (PW1) the first informant has stated in his evidence
that after hearing the shout "Meli", he entered into the room which is
in consonance with his FIR and statement. Payal (PW6) niece of the
appellant, though was examined as eye witness, from her quality of
evidence, it is clear that she cannot be the eye witness for the reason
that she was playing in front of the Oota near the door along with the
deceased.
9. However, the fact remains that there is sufficient evidence
to establish that the appellant entered into the house of the deceased
in view of the consistent evidence of Tukaram (PW1) and Payal
(PW6). Further, the evidence of Bhaurao Rathod (PW2) an
independent witness shows that when he reached to the house of
Tukaram, he found knife in the hand of the appellant and it was
stained with blood.
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10. From the FIR it is clear that the wife of the appellant left
her matrimonial house and came to the house of the deceased. It is
also stated in the FIR that on account of domestic quarrel, he
committed murder of Jijabai. Now, from the post mortem report and
the evidence of Dr.Trishul Padole (PW5), it is clear that the appellant
has given a single blow. Further, when Tukaram (PW1) entered
inside the house, that time he did not make any assault on his father
in law. These two facts show that the appellant has not taken any
undue advantage of the situation. Therefore, in our view, the offence
can be scaled down from Section 302 to Section 304 Part-I of the
Indian Penal Code since the part of the body shows that causing of
such bodily injury would have caused death. Hence, we propose to
pass the following order.
The Criminal Appeal is partly allowed.
The conviction and sentence awarded to the
appellant/accused for the offence punishable under Section 302 of
the Indian Penal Code is altered to the one under Section 304 Part-I
of the Indian Penal Code. For the said offence, the appellant is
sentenced to suffer R.I. for a period of ten years.
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Rest of the order, including that of fine, etc. is maintained.
Fees payable to the learned counsel appointed for the
appellant are quantified at Rs.5,000/-
(V. M. Deshpande) (B. R. Gavai)
kahale
