Bombay High Court
Suryabhan S/O Wamanrao Jamunkar vs The State Of Maharashtra, Through ... on 16 June, 2016
Bench: B.R. Gavai
1 apeal256.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.256/2014
Suryabhan s/o Wamanrao Jamunkar,
aged 48 years, r/o Lasanpur,
Tq. Samudrapur, Dist. Wardha. .....APPELLANT
...V E R S U S...
The State of Maharashtra through PSO
P. S. Samudrapur, Tq. Samudrapur,
Dist. Wardha ...RESPONDENT
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Mr. V. A. Thakare, A.P.P. for respondent.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
JUNE 16, 2016
ORAL JUDGMENT (Per : V. M. Deshpande, J.)
1. Being aggrieved by judgment and order of conviction
passed by the learned Ad hoc Sessions Judge-2, Wardha, dated
05.01.2007, convicting the appellant for an offence punishable under
Section 302 of the IPC and sentencing him to suffer life imprisonment,
the appellant is before this Court.
2. Though, the conviction is of the year 2007 the appeal was
filed in the year 2014 which was barred by limitation. This Court,
vide order dated 07.04.2014 was pleased to condone the delay and
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was pleased to call for the record and proceedings after admission of
the appeal.
3. When the writ was sent and record and proceedings were
called from the Court below, the Registry of this Court received the
report from the trial Court that files "C" and "D" are eliminated. It
appears that the files were eliminated in view of the guidelines in the
Criminal Manual under the head "Maintenance and Destruction of
Records (Part-I)"
When this was intimated to this Court on 06.06.2016 at the
time of hearing, this Court requested Mrs. Singalkar, learned counsel
for the appellant and Mr. Thakare, learned A.P.P. for the respondent
to provide the record. The learned counsel for the appellant shown
her inability, however Mr. Thakare the learned A.P.P. assured that the
case papers from the record of the DGP office at Wardha will be
called.
4. Today, we have heard the learned A.P.P. for the
respondent-State. Counsel for the appellant was absent.
The deceased is one Shobha. The appellant is her husband.
Shobha was done to death on 04.06.2006 at her house. The incident
in question was intimated to the Police Patil Babarao Jamunkar (PW1)
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by Subhash, son of the appellant aged 13 years. Accordingly, Babarao
Jamunkar reported the matter to Police (Exh.10). The Investigating
Officer visited the spot and prepared spot panchanama Exh.-13. He
also seized Sabbal lying on the spot under seizure memo Exh.-16. It
was stained with blood. Inquest was also done on the dead body.
Ramesh Nitone (PW7), the Investigating Officer also sent the dead
body for post mortem and the Post Mortem Report is available at Exh.-
37. After completion of the usual investigation, charge-sheet was filed
in the Court of J.M.F.C., Hinganghatwho found that the case is
exclusively triable by the Court of Sessions and, therefore, committal
order was passed. Thereafter case was registered as Sessions Trial No.
120/2006. The charge was framed and explained to the
appellant/accused. He denied the charge. In order to bring home the
guilt of the accused in all seven witnesses were examined by the
prosecution and after appreciation of their evidence, the Court below
convicted the appellant for the offence punishable under Section 302
of the IPC and directed him to suffer rigorous imprisonment for life.
5. Police Patil Babarao Jamunkar (PW1) has set criminal law
into motion after getting information to him from Subhash (PW4) son
of the appellant and the deceased.
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6. Raju (PW2) is pancha of the spot, inquest panchanama and
other seizure memos. Atul Patil (PW3) is also another pancha,
Subhash (PW4) has not supported the prosecution. Dr. Mahenra
(PW5) who has carried out the post mortem and proved the Post
Mortem Report (Exh.-37). The Post Mortem Report shows that the
deceased was having one injury on the head. Internal examination
shows that there was a fracture on the head. In our view, the learned
Judge of the Court below was right in reaching to the conclusion that
Shobha met with homicidal death.
7. The next question is whether the appellant is author of the
injury and whether the appellant could be convicted for any other
offence than Section 302 of the IPC.
8. There is no eye witness to the incident. Subhash (PW4)
has resiled from his previous statement recorded by police under
Section 161 of the Cr. P. C. and has not supported the prosecution.
However, perusal of the impugned judgment shows that in paragraph
15, the learned Judge has considered while convicting the appellant
the statement of the witness Subhash recorded by police under
Section 161 of the Cr. P. C. which was clearly erroneous.
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There is no eye witness account and though Subhash has
turned hostile the fact remains that the dead body was found inside
the house of the appellant and the appellant has failed to give any
explanation for the same. Though, the learned trial Judge found that
there is corroborative piece of evidence in the nature of report of the
Chemical Analyser about the existence of blood stains, however, at the
same time there is nothing available on record that the articles were
duly "sealed" and were reached to the Chemical Analyser in
appropriate condition.
9. The record shows that the appellant is in jail since
05.06.2006. From the evidence as it is brought on record, the
prosecution case is completely silent about the motive. From the
nature of the evidence, we can safely gather that the incident must
have occurred in spur of the moment. The appellant has not taken
any undue advantage of the situation. Therefore, we are of the
considered view that the conviction of the appellant can be altered to
the one under Section 304-I of the Indian Penal Code. Hence, the
following order.
ORDER
(i) The Criminal Appeal is partly allowed.
(ii) The conviction and sentence awarded to the
appellant/accused for the offence punishable under Section
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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 Rigorous
Imprisonment for a period already undergone.
(iii) The appellant is ordered to be released and set at
liberty forthwith if not required in any other case.
(V. M. Deshpande) (B. R. Gavai)
kahale
