Bombay High Court
Sonya @ Sonba Chandrabhan Watkar ... vs State Of Maharashtra, Through ... on 10 June, 2016
Bench: B.R. Gavai
1 APEAL567-14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.567/2014
...
Sonya @ Sonba Chandrabhan Watkar,
Aged about 36 years, R/o Waghapur,
P.S. Ladkhed, Distt. Yavatmal,
(Presently in Central Prison, Amravati,
C-4596) .. APPELLANT
ig .. Versus ..
State of Maharashtra,
through P.S.O., P.S. Ladkhed,
Tah. Darwha, Dist. Yavatmal. .. RESPONDENT
Mr. Shriniwas Deshpande, Advocate (Appointed) for Appellant.
Mrs.M.N.Hiwase, Additional Public Prosecutor for Respondent.
....
CORAM : B.R. Gavai & V.M. Deshpande, JJ.
DATED : June 10, 2016.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. Being aggrieved by the judgment and order passed by
the learned Additional Sessions Judge, Darwha in Sessions Trial
No.35 of 2006 dated 31.07.2014 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
fine of Rs.5,000/- and in default of payment of fine to suffer
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rigorous imprisonment for 6 months, the appellant has approached
this Court.
2. The prosecution story as could be gathered from the
material placed on record is thus:-
Deceased Subhash is the son of PW1 Shewantabai and
was aged about 24 years. The deceased and the first informant
were the neighbours and were having common courtyard. The
appellant was residing with his wife and children. He was having
doubt on the character of his wife. He was having doubt that she
was having illicit relations with the deceased.
3. It is the prosecution case that on 5.2.2006 at around 7
p.m. there was quarrel between the accused and his wife. He was
quarreling with his wife and telling her that she was having illicit
relationship with another person. At that time the deceased
Subhash came along his friend PW2 Deepak. Subhash told the
accused that "don't blame any person unless you catch him by raid
hand". After the deceased uttered the same, the accused took an
axe in his hand and assaulted Subhash by it on his head. The
deceased sustained injuries and fell down. The accused ran away
from the spot by throwing the said axe. The deceased was taken
to the Medical College, Yavatmal wherein he was declared dead.
The A.D. came to be registered at Yavatmal Police Station on the
intimation of the doctor of the said hospital. On the next day, i.e.
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on 6.2.2006 at around 11 p.m., the first information report came to
be lodged below Exh.42 on the basis of the oral statement of PW1
Shewantabai below Exh.30. At the conclusion of the investigation,
the charge sheet came to be filed in the Court of Judicial Magistrate
First Class, Darwha. As the offence was exclusively triable by the
Court of Session, the same came to be committed to the learned
Sessions Judge, Darwha.
4. Charge was framed against the accused below Exh.18.
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 sentenced the appellant as aforesaid. Being
aggrieved thereby, the present appeal.
5. The learned counsel for the appellant submits that the
learned trial Judge has grossly erred in convicting the appellant. He
submits that both the alleged eyewitnesses are interested
witnesses and as such the conviction on the basis of their
testimony would not be sustainable.
6. The learned APP submits that the learned trial Judge has
given sound and cogent reasons in support of the finding of guilt.
It is, therefore, submitted that no interference is warranted in the
present appeal.
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7. With the assistance of the learned Additional Public
Prosecutor and the learned counsel for the appellant, we have
scrutinised the entire evidence.
8. No doubt that the eyewitnesses to the incident are
interested witnesses inasmuch as one of the witness is the mother
of the deceased and the other one is friend. However, merely
because the witnesses are interested, cannot be a ground to
discard their testimony in toto. The only requirement would be to
scrutinise their evidence with greater caution. The conviction on
the basis of the testimony of such witnesses would be tenable if the
Court finds their testimony to be cogent, trustworthy and reliable.
9. PW1 Shewantabai states that the accused Sonya is her
neighbour. They are having a common courtyard. At that time her
son had gone for work in the village. The quarrel in between the
accused and his wife was going on. He was abusing his wife and
alleging that she is having having illicit relationship with others. At
that time her son came there with his friend Deepak Sasane. He
said to the accused Sonya that why he is alleging another and he
should catch such person. At that time accused Sonya caught hold
axe in his hand and assaulted her son. Her son sustained injury to
his head by axe. Her son fell down. Accused Sonya then ran away
from the village. Though this witness is thoroughly cross-
examined, her testimony insofar as the incident is concerned has
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remained unshattered. Not only that the first information report
duly corroborates her version.
10. PW2 Deepak is the friend of the deceased. He states
that at the time of the incident he was with Subhash. Both of them
came to the house of Subhash from Bhayya tailor. When they
reached the courtyard, he heard accused Sonya saying to his wife
that "you are attending others", by looking towards Subhash.
Subhash said to accused Sonya that "you see it by your own eyes,
catch and then allege". Accused Sonya picked up axe and
assaulted Subhash with it on his head. Subhash fell down.
Thereafter accused threw the axe and ran away.
11. We find that in view of the ocular testimony of the
eyewitnesses whose evidence is found to be trustworthy, reliable
and cogent, it can safely be held that the present appellant was
the author of the crime.
12. That leaves us with the question as to whether the
conviction under Section 302 of the Indian Penal Code needs to be
confirmed or altered to some other offence. It is to be noted that
when the deceased went to the spot i.e. the courtyard between his
house and the house of the appellant, already quarrel was going on
between accused and his wife. From the evidence of PW2 Deepak,
it is clear that the appellant was having suspicion with regard to
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the illicit relationship with the deceased and the wife of the
appellant. It further appears from the evidence that when the
quarrel was going between the appellant and his wife, it is the
deceased who told the appellant that he should not blame any
person and catch that person raid handed. It could thus be seen
that there was no premeditation on the part of the appellant to
commit the murder of the deceased. It appears that when the
quarrel was going between the appellant and his wife, enraged with
the interference by the deceased upon he had suspicion with illicit
relationship with his wife, he has picked up the axe which is
commonly available in the village and assaulted the deceased. It is
to be noted from the post mortem report and the evidence of PW8
Dr. Hemant that the appellant gave a single blow and after noticing
that the deceased had fallen down, ran away from the spot. We,
therefore, find that though the appellant can be attributed with the
knowledge that the injury may cause death, from the evidence on
record it cannot be said that he had an intention to cause death of
the deceased. In that view of the matter, we are of the considered
view that the case would not fall under Section 302 of the Indian
Penal Code but would rather fall under Part II of Section 304 of the
Indian Penal Code.
13. In the result, the appeal is 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
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said offence, the appellant is sentenced to suffer R.I. for 7 years.
Rest of the order regarding fine etc. is maintained.
14. The fees for the appointed counsel are quantified at
Rs.5000/-.
(V.M. Deshpande, J. ) (B.R. Gavai, J.)
...
halwai/p.s.
