Bombay High Court
Ramesh S/O Namdeo Rewale (In Jail) vs The State Of Maharashtra, Through ... on 17 March, 2016
Bench: B.R. Gavai
APEAL.545.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 545 OF 2013
Ramesh s/o Namdeo Rewale,
Aged about 50 years, Occ. Labour,
R/o Jaspura, Kholapur, Tq. Bhatkuli,
Dist. Amravati.
(Presently in Jail). .... APPELLANT.
// VERSUS //
The State of Maharashtra,
through its Police Station
Officer, Police Station
Kholapur, Tq. Bhatkuli,
Dist. Amravati. .... RESPONDENT.
Ms. F.N. Haidari, Advocate for appellant,
Mrs. M.H. Deshmukh, Additional Public Prosecutor for respondent.
CORAM : B.R. GAVAI & A.S. CHANDURKAR, JJ.
DATED : MARCH 17, 2016.
JUDGMENT (PER B.R. GAVAI, J.)
1] Being aggrieved by the judgment and order passed by the
learned Additional Sessions Judge, Amravati dated 23.9.2013 in
Sessions Case No. 28/12, thereby convicting the appellant for the
offence punishable under Sections 302 of the Indian Penal Code and
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sentencing him to suffer imprisonment for life and to pay a fine of
Rs.5000/- and in default, to suffer further S.I. for one year, the
appellant has approached this Court.
2] The prosecution case, in brief, as could be gathered from
the material placed on record is as under :-
The accused Ramesh and victim Rajendra are cousin
brothers. They used to reside in the vicinity of each other at village
Kholapur. There was a dispute amongst them about partition of land.
It appears that a civil dispute was also pending between them with
regard to that matter. On 26.10.2011 at around 5.30 p.m. the
accused gave abuses to the victim leading to an altercation between
them in front of their house. The accused thereafter went to his
house and brought one axe from his house and gave blow of it on the
head of victim Rajendra. Victim fell down and became unconscious.
He was initially taken to P.H.C. Kholapur and since no doctor was
available he was taken to Civil Hospital, Amravati. Since he was
serious, he was taken to hospital of one Dr. Sawdekar and thereafter
again taken to Civil Hospital, Amravati where he died on the next day
in morning. On the day of the incident itself, an oral report came to
be lodged by PW.2 Meena, the wife of the deceased below Exh. 26.
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On the basis of the said oral report, an FIR came to be registered
vide Crime No. 66/11 for the offence punishable under Section 307
of the Indian Penal Code. After the death of the deceased, the same
was converted into offence punishable under Section 302 of the
Indian Penal Code. The investigation was set in motion. Upon
completion of investigation, the charge-sheet came to be filed in the
Court of learned J.M.F.C., Bhatkuli. However, since the case was
exclusively triable by the Court of Sessions, the same came to the
committed to the Court of learned Sessions Judge, Amravati.
3] The learned trial Judge framed the charges below Exh. 3
against the accused for the offence punishable under Section 302 of
the Indian Penal Code. The accused pleaded "not guilty" and
claimed to be tried. At the conclusion of the trial, the learned trial
Judge recorded the order of conviction and sentence against the
present appellant as aforesaid. Being aggrieved by the order of
conviction and sentence, the present appeal has been filed by the
appellant.
4] Ms. F.N. Haidari, the learned Counsel appearing on behalf
of the appellant, submits that all the witnesses are related to the
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deceased and as such, are interested witnesses. She further
submits that there are various discrepancies in the evidence of the
witnesses. She further submits that from the evidence of PW.5
Mohit, the very presence of the first informant PW.2 Meena on the
spot is doubtful. She further submits that the testimony of PW.6
Vikas is recorded after six days and as such, the deposition of this
witness is not free from doubt. The learned Counsel submits that in
so far as the finding of the blood stains on the accused is concerned,
the perusal of the seizure panchnama would reveal that there is no
evidence regarding sealing of the said article and as such, the said
circumstance cannot be used against the appellant. She, therefore,
submits that the appellant is entitled to be acquitted and the appeal
deserves to be allowed.
5] Mrs. M.H. Deshmukh, the learned Additional Public
Prosecutor appearing on behalf of respondent, submits that in the
present case there is a direct evidence of eye-witness available. She
submits that there is nothing to disbelieve the testimony of these
witnesses. It is further submitted that the ocular testimony of the eye-
witnesses is supported by the circumstantial evidence of the blood
group 'O', i.e. of the deceased being found on the clothes and axe of
APEAL.545.13
the appellant. She, therefore, submits that no interference is
warranted in the present appeal and as such, the appeal deserves to
be dismissed.
6] With the assistance of the learned A.P.P. and the learned
Counsel for the appellant, we have scrutinized the entire evidence.
7]
Since the factum regarding the death of the deceased
being homicidal is not seriously in dispute, it will not be necessary for
us to consider the evidence in that regard. The present case is a
case of direct evidence. There are four eye-witnesses available.
PW.2 Meena - the wife of the deceased is the first informant. She
states in her evidence that at the time of the incident, her father-in-
law was sitting in front of the entrance door of the house and her
husband was standing there. Mohit was playing there in front of the
house. There was dispute between her husband and the accused on
the point of land of their house. The accused started giving abuses
to her husband. Her husband told him that as it was Diwali day, he
should not give abuses. Thereafter the accused went to his house
which was beside the house of first informant and brought the axe.
He then gave a blow of axe on the head of her husband. Her
APEAL.545.13
husband fell with bleeding injuries. She was standing near the door
of her house. As the incident occurred, her father-in-law rushed on
the spot, her brother-in-law Vikas also came there. Neighbourers
also rushed there. She wrapped towel and shawl on the head of her
husband. Thereafter, they took her husband on a cart to Primary
Health Centre, Kholapur. Since the doctor was not there, Ashok
Raut and Vinod Somwanshi took her husband in jeep to General
Hospital, Amravati. She along with her brother-in-law Vikas went to
Kholapur Police Station and reported about the incident. On the next
day of the incident, her husband was taken to private dispensary of
Dr. Sawdekar at Amravati. Dr. Sawdekar again sent her husband to
the Civil Hospital at Amravati. At the Civil Hospital, her husband was
declared dead. Though she has been vigorously cross-examined,
nothing damaging has come in her evidence. Though in her
evidence, she states that her husband was not taking liquor, this has
been contradicted in the evidence of her son PW.5 Mohit, who has
admitted that his father used to drink liquor. However, we do not find
that such a minor contradiction would be sufficient enough to
disbelieve her evidence and moreover so when it is duly corroborated
by the other evidence. It is further to be noted that the First
Information Report is lodged within a short period of about an hour.
APEAL.545.13
In the First Information Report, she has named the appellant and as
such, we find that the FIR also corroborates the ocular testimony of
this witness.
8] PW.3 Wasudeo is the father of the deceased. He states in
his evidence that he was sitting in front of his house. Ramesh came
there and gave abuses to Rajendra. Then the accused Ramesh
gave blow of axe on the head of Rajendra and so Rajendra fell down.
Though in his cross-examination, he has given certain answers which
may be useful to the defence, it will have to be remembered that the
witness was 80 years old and some sort of discrepancies in his
evidence would be natural because of his age.
9] PW.6 Vikas is the brother of the deceased. He states that
his house is also near the house of the accused and the deceased.
He saw from his window that the accused was giving abuses to the
deceased Rajendra. Then he came out of house. He found that
accused went to his house and returned there with one axe in his
hand. Accused then gave one blow of axe on the head of Rajendra.
Therefore, Rajendra fell down. He rushed there. Accused was seen
standing there with an axe. He thereafter narrates the version
APEAL.545.13
regarding the deceased being taken to hospital and he going to
Police Station to lodge FIR with PW.2 Meena. Though this witness
has also been vigorously cross-examined, nothing damaging has
come in his evidence. It could thus be seen that the evidence of this
witness also corroborates the version given by PW.2 Meena.
10] The evidence of PW.5 Mohit, who is the son of the
deceased would be vital. He states in his evidence that at the time of
the incident he was sitting in front of his house. He further states that
at that time his grandfather was also present there. He states that
incident took place in front of his house. The accused gave abuses
to his father. His father told accused to keep quiet. The accused
thereafter went to his house and brought one axe. Accused gave
one blow of axe on the head of his father. Then blood came out of
the head of his father from the injured portion and his father fell down
unconscious. This witness has also been thoroughly cross-
examined. However, in so far as the incident of assault by the
accused on the head of the deceased is concerned, his testimony
has remained unshaken. It could thus be seen that all these four
witnesses corroborate the version of one another. Not only that, but
the presence of each other is also brought on record in their
APEAL.545.13
respective testimonies. We are, therefore, of the considered view
that no error could be found in the finding of the learned trial Judge
that it is the present appellant who is author of the crime.
11] In view of the availability of direct evidence which we find
to be trustworthy, reliable and cogent, it will not be necessary for us
to deal with the other contentions with regard to circumstances of
recovery of axe, clothes of the appellant and the finding of the blood
of 'O' group thereon.
12] That leaves us with the question as to whether the
conviction under Section 302 of the Indian Penal Code needs to be
maintained or altered to some other offence. It has come in the
evidence of all the witnesses that there was a previous enmity
between the deceased and the appellant. As held, previous enmity is
a double-edged weapon. On account of previous enmity, false
implication or exaggeration cannot be ruled out. As already
discussed hereinabove, the evidence of PW.5 Mohit is vital in the
present case. Though this witness has stuck up to the version
regarding assault on the deceased by the appellant, he has admitted
in his cross-examination that both the accused and his father had
APEAL.545.13
quarrelled after drinking liquor. He has further admitted that since on
the day of the incident his mother had gone out of the house, due to
anger, his father had drunk much liquor. It could thus be seen that
the possibility of the appellant in a sudden fight in a heat of passion
upon a sudden quarrel making the assault cannot be ruled out. It is
to be noted that though PW.5 Mohit has admitted that his father had
consumed liquor, the same is denied by PW.2 Meena and PW.6
Vikas. It could thus be seen that these witnesses have not disclosed
the entire version. However, it appears that PW.5 Mohit who is a
teenager of 13 years has spoken the truth. From the perusal of his
evidence, it would reveal that both the accused and the deceased
had consumed alcohol and after that there was a fight between them.
It is to be noted that even the other witnesses also state that there
was a quarrel and after the quarrel the accused went in his house
which was adjacent to the house of the deceased, brought the axe
and assaulted the deceased on his head.
13] It is further to be noted that the accused has given only a
single blow. It is not as if after the deceased falling down, he has
taken undue advantage or acted in a cruel or unusual manner. It is
further to be noted that it is only after the quarrel he went to his
APEAL.545.13
house and brought the axe, which was very much available in the
house. It is thus clear that the prosecution has failed to prove a case
of premeditation to cause the death of the deceased. We may
gainfully refer to the judgment of the Hon'ble Apex Court in the case
of Ravindra Shalik Naik and others .vs. State of Maharashtra
reported in 2009 ALL MR (Cri) 1798 (S.C.). Their Lordships
observed in paragraph no. 6 as under :-
".......The help of Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in a sudden fight, (c)
without the offender's having taken undue advantage or
acting in a cruel or unusual manner, and (d) the fight must
have been with the person killed. To bring a case within
Exception 4 all the ingredients mentioned in it must be
found. It is to be noted that the 'fight' occurring in
Exception 4 to Section 300 IPC is not defined in the IPC. It
takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and in
this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A
fight is a combat between two and more persons whether
with or without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved
facts or each case. For the application of Exception 4, it is
APEAL.545.13
not sufficient to show that there was a sudden quarrel and
there was no premeditation."
It could thus be seen that in the present case, all the four ingredients
that the act was done without premeditation, it was done in a sudden
fight, that it was without the offender having taken undue advantage
or acting in a cruel or unusual manner and that the fight of the
accused was with the deceased are clearly made out. It could thus
be seen that there was no time for the passions to cool down,
inasmuch as immediately after the quarrel the deceased went inside
his house which was just adjacent, brought the axe and assaulted
him. We are, therefore, of the considered view that the offence
would not come within the ambit of Section 302 but under Part I of
Section 304 of the Indian Penal Code.
14] In the result, the appeal is partly allowed. The order of
conviction under Section 302 of I.P.C. is altered to one under Part I of
Section 304 of the Indian Penal Code. For the said offence, the
accused shall suffer rigorous imprisonment for a period of seven
years. Rest of the order regarding fine, etc. is maintained.
J. JUDGE
JUDGE .
