Prakash S/O Parshu Uikey (In Jail) vs State Of Maharashtra (Through ...
2016 Latest Caselaw 3707 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                              
                                     NAGPUR BENCH, NAGPUR




                                                             
                            CRIMINAL APPEAL NO.401 OF 2014




                                                
      Prakash s/o. Parshu Uikey,
      Aged 40 years, Occ. Labour,
                             
      r/o. Tq. Parshioni, District
      Nagpur (Appellant is in 
      Central Jail, Nagpur).                            ..........      APPELLANT
                            
              // VERSUS //
      


      The State of Maharashtra,
   



      Through P.S.O. Parshioni,
      Nagpur.                                              ..........       RESPONDENT





      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                         None for the Appellant.
                 Mr.T.A.Mirza, A.P.P. for the Respondent/State.
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=





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

                                          DATE        :  11.7.2016.





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




                                                                                  

1. Being aggrieved by the Judgment and Order passed by

the learned Sessions Judge, Nagpur in Sessions Trial No.31 of 2012,

dt.4.2.2013 thereby convicting the appellant for the offence

punishable under Section 302 of the Indian Penal Code and

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

Rs.1,000/-; in default to suffer rigorous imprisonment for one

month, the appellant has approached this Court.

2. The prosecution case, as could be gathered from the

material placed on record, is thus :

The appellant is husband of deceased Seeta. They were

blessed with one son and one daughter who are taking education in

Ashram School. It is the prosecution case that, initially the relations

between the appellant and deceased Seeta were cordial. However,

subsequently, there used to be differences between them on trivial

grounds. It the prosecution case that the appellant used to ill-treat

the deceased. However, the deceased, with the hope that the

behavior of the appellant would improve and in the interest of

children, continued with the relationship with the appellant. On

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8.10.2011, a quarrel took place between the deceased and the

appellant on the ground that the deceased had not cooked the food

properly and hence, the accused assaulted her. Some villagers tried

to rescue the deceased. However, the accused tried to assault them.

In the morning, on 9.10.2011, the villagers came to know about

death of deceased and the matter was reported to Police Patil. As

such, Dhondba Ramaji Kangali (PW-1), Police Patil of village

Kolitmara lodged oral report below Exh.17 with Police Station,

Parshioni. On the basis of said oral report, Crime No.109 of 2011

came to be registered vide First Information Report below Exh.18.

After registration of the F.I.R., investigation was set into motion. At

the conclusion of investigation, the charge sheet came to be filed in

the Court of learned Judicial Magistrate, First Class, Parshioni. Since

the case was exclusively triable by the learned Sessions Judge, the

same came to be committed to the Sessions Court. The learned

Sessions Judge framed the Charge below Exh.3. The accused

pleaded 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.

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3. Since none appeared for the appellant, in view of the

following observations of the Hon'ble Apex Court in the case of

K.S.Panduranga .vs. State of Karnataka reported in 2013 ALL MR

(Cri) 1485 (S.C.), we have taken up the appeal for hearing.

" It is not obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal

to argue on behalf of the accused failing which the judgment rendered by the High Court would be absolutely

unsustainable. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to

say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he

deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. Thus, the

contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits

without the presence of the counsel does not deserve acceptance. "

4. We have scrutinized the evidence on record with the

assistance of the learned A.P.P.

5. Mr.T.A.Mirza, learned A.P.P. submits that the learned

trial Judge, upon appreciation of evidence, rightly recorded the

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finding of fact as against the present appellant. The learned A.P.P.

submits that the view taken by the learned trial Judge warrants no

interference and as such, the appeal is liable to be dismissed.

6. Dhondba Ramaji Kangali (PW-1) was the Police Patil of

village Kolitmara at the relevant time. He states in his evidence that,

in the morning of 9.10.2011, female members of the village were

chit chatting that Seeta died on account of beating by her husband.

He visited the spot where dead body of Seeta was lying. He also

witnessed that dead body of Seeta was lying on cot and bleeding

injury was there on her head and her left hand was broken. On his

query with the accused, who was standing near Seeta, he replied that

as Seeta did not cook the food properly nor serve them, he made an

attack upon her by means of a stick. He further states that he

reported the matter on phone to Police Station, Parshioni as well as

parents of Seeta. The witness has been thoroughly cross-examined.

However, nothing damaging has come in his evidence. His evidence

is corroborated by oral report below Exh.17.

7. From the evidence of Dhondba Ramaji Kangali (PW-1)

thus, it could be seen that voluntary extra-judicial confession has

6 apeal401.14.odt

been given to the said witness by the appellant that he had attacked

the deceased by means of stick since she did not cook food nor serve

them. It could be seen that there was no coercion or compulsion

made to the accused to make extra-judicial confession to this witness.

However, we find that it will be appropriate to find corroboration to

the evidence of extra-judicial confession.

8. Meerabai Wasudeo Kodwate (PW-3) is the mother of

deceased. She states that, on the day of incident, she received a

telephonic call from Dhondba Kangali (PW-1) stating that their

daughter had died and they were called to the house of accused. She

also states regarding extra-judicial confession given by the

accused/appellant that since Seeta had not cooked the food nor

served them, he made an attack upon her.

9. Devidas Harilal Uikey (PW-4) states in his evidence that

he had gone to purchase grocery items at village Kolitmara. While

returning, he witnessed that there was a quarrel going on amongst

Seeta and the accused in their house. He also witnessed that the

accused had made an attack upon Seeta on her head and hand by

means of stick. He and Suka went to pacify the accused, but instead

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of considering their request, he followed them along with stick for

making an attack upon them. The said witness is an independent

witness. It could thus be seen that the extra-judicial confession given

to Dhondba Kangali (PW-1) and Meerabai Kodwate (PW-3) is

corroborated by the evidence of Devidas Ukey (PW-4).

10. It could further be seen from the evidence of Vitthal

Govindrao Dakhane (PW-2) that the clothes worn by the accused

were seized from his person. It is further to be noted that the stick

which was used was also recovered and seized on the memorandum

of the accused under Section 27 of the Indian Evidence Act. The

clothes seized from the accused and the weapon i.e. stick have been

found to have blood on them. The said circumstance which is against

the appellant has not been explained by him.

11. In that view of the matter, we find that no interference is

warranted with the finding of the learned trial Judge that it is the

present appellant who is an author of the crime in question.

12. That leaves us with the consideration of the next

question as to whether conviction u/s.302 of the Indian Penal Code

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needs to be maintained or altered to lower offence. From the

evidence of eye witnesses as well as the extra-judicial confession

given to Dhondba Kangali (PW-1) and Meerabai Kodwate (PW-3), it

would reveal that the incident is an outcome of a quarrel between

the accused and the deceased on account of the deceased not

preparing food properly and serving them. It is to be noted that the

weapon in commission of the crime used was a stick which is

normally available in every house in the village. It could thus be seen

that the possibility of the accused beating the deceased with stick,

which is readily available, as an outcome of the quarrel between

them on account of the deceased not cooking the food properly

cannot be ruled out. From the nature of injuries and the weapon

used, it cannot be said that the deceased had an intention to cause

death of the deceased.

13. In that view of the matter, we find that the accused

would be entitled to benefit of doubt. The present case would not fall

under Section 302 of the Indian Penal Code and it would rather fall

under Part II of Section 304 of the Indian Penal Code. The appeal is,

therefore, partly allowed.

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Conviction of the appellant herein for an offence

punishable under Section 302 of the Indian Penal Code is altered to

one punishable under Section 304 Part II of the Indian Penal Code.

For the said offence, the appellant is sentenced to suffer rigorous

imprisonment for seven years.

Rest of the order including the fine amount is

maintained.

                              ig    JUDGE                           JUDGE
       
                            
      
   







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