Bombay High Court
Atul S/O Dadarao Buradkar (In ... vs The State Of Maharashtra, Through ... on 22 March, 2016
Bench: B.R. Gavai
1 apeal.568.13.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.568 OF 2013
Appellant : Atul s/o Dadarao Buradkar,
Aged about 26 years,
R/o Subhannagar, Nagpur
(Presently in Central Prison at Nagpur)
ig -- Versus --
Respondent : The State of Maharashtra,
Through Police Station Officer,
Police Station, Kalmana,
District Nagpur.
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Shri C.R. Thakur, Advocate for the Appellant
Shri M.J. Khan, A.P.P. for the Respondent
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CORAM : B.R. GAVAI & A.S. CHANDURKAR, JJ.
DATE : 22
nd MARCH, 2016.
ORAL JUDGMENT :- (Per A.S. Chandurkar, J.)
01] The appellant herein has taken exception to his conviction
by the learned Additional Sessions Judge-8, Nagpur in Sesions Trial
No.492/2012 for the offence punishable under Section 302 of the Indian
Penal Code (for short 'the Penal Code').
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02] The case of the prosecution as can be gathered from the
material on record is that the appellant was married with one Sandhya
in the year 2011. The appellant was in the habit of consuming liquor
and shortly after their marriage, the appellant and his parents used to
make a demand of money from her. In January, 2012, the appellant
had driven away his wife from the matrimonial home. However, the
matter was thereafter compromised between the parties after which said
Sandhya started residing in the matrimonial home. On 04/08/2012, the
brother of said Sandhya viz. Sunil received a phone call that the
appellant had murdered his sister. On that basis, a report came to be
lodged against the appellant and his parents.
03] After carrying out investigation, charge-sheet came to be
filed against the appellant and his parents for the offences punishable
under Section 498-A of the Penal Code. The appellant was also charged
for the offence punishable under Section 302 of the Penal Code. As the
accused did not plead guilty, they were tried and on conclusion of the
trial, the appellant was convicted for the offence punishable under
Section 302 of the Penal Code. However, the appellant and his parents
are acquitted of the offence punishable under Section 498-A read with
Section 34 of the Penal Code. Hence, this appeal by the accused No.1.
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04] Shri C.R. Thakur, the learned Counsel for the appellant
submitted that the trial Court was not justified in convicting the
appellant. It was submitted that there was no evidence whatsoever on
record to conclude that it was the appellant who had killed his wife with
a knife. According to the learned Counsel, the appellant was doing the
work of carpentry and had kept various implements in the house. It was
likely that his wife had sustained an injury due to fall on said
implements. The injury as caused was on her waist and it had been
admitted by PW-8, who was the Medical Officer, that the death was
likely to have been caused due to heavy blood loss. He, therefore,
submitted that the prosecution had failed to prove its case beyond
reasonable doubt and the appellant was entitled to be acquitted of the
said offence.
Without prejudice to the aforesaid submissions, it was
submitted in the alternate that a single blow was alleged to have been
inflicted on the deceased near the waist. The spot-panchnama indicated
that there was a scuffle between the appellant and the deceased and,
therefore, the conviction of the appellant deserves to be altered to one
under Part-I of Section 304 of the Penal Code.
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05] Shri M.J. Khan, the learned Additional Public Prosecutor for
the respondent, on the other hand, supported the judgment of
conviction. It was submitted that the appellant being the husband of the
deceased and the incident having taken place inside the house, it was for
the appellant to explain as to how the injuries were sustained by
Sandhya resulting in her death. It was submitted that in absence of any
such explanation, the appellant would not be absolved from the said
offence. It was, therefore, submitted that considering the entire nature
of evidence on record, it was clear that the prosecution had proved the
case beyond reasonable doubt and, therefore, there was no scope to
interfere.
06] With the assistance of the learned Counsel for the parties,
we have perused the entire material on record and we have also gone
through the impugned judgment. The deposition of PW-8 Dr. Praveen
Tayde below Exh.33 reveals that he had conducted the postmortem and
had submitted his report at Exh.34. The cause of death, according to
the said witness, was on account of hemorrhagic shock due to stab
injury. It was suggested to this witness that the injury as caused was
possible, if a person fell on a sharp and pointed object, but the said
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suggestion was denied. It will, therefore, have to be held that the
prosecution has succeeded in proving the homicidal death of Sandhya.
07] To bring home the guilt of the appellant, the prosecution
has examined the brother of the deceased viz. Sunil as PW-1 below
Exh.18. This witness has stated that he lodged the report on the basis of
the information received by him on telephone. He has admitted that
prior to the incident in question, he had not lodged any report as
regards illtreatment against the appellant. The spot-panchnama at
Exh.32 was proved in the deposition of PW-7 Leeladhar. He has stated
that the accused No.2-Dadarao had opened the lock of his house where
the appellant and his wife were residing. He had seen a blood stained
bed-sheet in the room along with one bead of earring there. He also
saw a weapon like knife on the cooler. Nothing much has been
extracted in his cross-examination. The spot-panchnama at Exh.32
refers to presence of a knife inside the said room. A bed with a mattress
was also seen having blood stains. There is reference to the presence of
a bead of earring on the bed-sheet and it has been mentioned that there
were indications of a scuffle.
This version of PW-7 is corroborated by the deposition of
PW-10 Pradeep Lambat below Exh.37. This witness has stated that the
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accused No.2 had opened room in question from where the knife, blood
stained bed-sheet as well as a bead of earring were seized. This witness
has not been cross-examined by the appellant. It is, therefore, clear that
the prosecution has succeeded in proving the seizure of blood stained
knife, blood stained bed-sheet as well as one bead of earring from the
house where the appellant was residing.
08]
The reports of the Chemical Analyzer at Exh.49 to Exh.52
indicate the presence of blood on the knife. Similarly, blood on the bed-
sheet, saree, knicker and banian were stained with blood of Blood
Group-AB.
09] The evidence on record, therefore, clearly indicates that
Sandhya was assaulted with a knife inside the house where she was
residing along with the appellant. The spot-panchnama at Exh.32
further proves that there was a scuffle between the appellant and the
deceased in which Sandhya suffered injuries on her waist. The medical
evidence indicates that loss of excess blood from the stab wound
resulted in her death. It is, therefore, clear that the prosecution has
succeeded in proving the guilt of the appellant. The finding in that
regard recorded by the learned Sessions Judge, therefore does not
deserve to be interfered with.
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10] Insofar as the question of conviction of the appellant is
concerned, the trial Court has convicted him under Section 302 of the
Penal Code. It is, however, to be noted that the spot-panchnama
[Exh.32] indicates a scuffle having taken place at the site. However,
there does not appear to be any premeditation on the part of the
appellant in assaulting the deceased. There was no previous report
lodged against the appellant. It appears that in a sudden fight between
the appellant and his wife, in the heat of passion, a blow of knife was
inflicted. This single blow was inflicted near the waist of Sandhya and
her death was caused due to excess blood loss. There is no evidence on
record or any other material to indicate that the appellant had taken
undue advantage of the situation or had acted in cruel or unusual
manner. The present case would, therefore, fall under Exception-4 of
Section 300 of the Penal Code. Consequently, the appellant would be
liable for being punished for culpable homicide not amounting to
murder under Part I of Section 304 of the Penal Code. The sentence of
rigorous imprisonment for a period of seven years would serve the ends
of justice.
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11] In view of the aforesaid, the following order is passed :
i. The appeal is partly allowed.
ii. The order of conviction under Section 302 of I.P.C. is
altered to Part I of Section 304 of I.P.C. and the appellant-
accused is sentenced to suffer rigorous imprisonment for
seven years.
iii. Rest of the order regarding fine etc. is maintained.
JUDGE JUDGE
*sdw
