Bombay High Court
Manisha Ravindra Humbe And ... vs The State Of Maharashtra on 1 September, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 140 OF 2013
WITH
CRIMINAL APPEAL NO. 177 OF 2013
* * * * *
CRIMINAL APPEAL NO. 140 OF 2013
1. Manisha w/o. Ravindra Humbe .. Appellants
Age. 25 years, Occ. Agri., [original
R/o. Tambe Mala, Mandavgan, accused
Tq. Shrigonda, Dist. Ahmednagar. Nos.1 & 3]
2. Nitin Baban Shinde
Age. 30 years, Occ. Agri.,
R/o. Rashin, Tq. Karjat,
Dist. Ahmednagar
(At present are in jail)
Versus
The State of Maharashtra .. Respondent
Mr. R.N. Dhorde, Sr. Counsel i/b. Mr. V.R. Dhorde,
Advocate for the appellants.
Mr. M.M. Nerlikar, A.P.P. for respondent/State.
::: Uploaded on - 01/09/2016 ::: Downloaded on - 03/09/2016 00:44:58 :::
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WITH
CRIMINAL APPEAL NO. 177 OF 2013
Sanjay s/o. Bhagwan Shinde .. Appellant
Age. 45 years, Occ. Retired from Military [original
R/o. Mandavgan, Tq. Shrigonda, accused
Dist. Ahmednagar No.2]
(At present lodged at Yerawada Central
Prison, Pune, District Pune).
ig Versus
The State of Maharashtra .. Respondent
Through Police Station Officer,
Police Station, Shrigonda,
Tq. Shrigonda, Dist. Ahmednagar.
Mr. V.D. Sapkal, Advocate for the appellant.
Mr. M.M. Nerlikar, A.P.P. for respondent/State.
CORAM : A.V.NIRGUDE &
V.L.ACHLIYA,JJ.
RESERVED ON : 15.06.2016
PRONOUNCED ON : 01.09.2016
ORAL JUDGMENT [PER : A.V. NIRGUDE,J.] :-
1. Both these appeals arise from judgment and order
in Sessions Case No.286 of 2010 delivered by the learned
Additional Sessions Judge, Ahmednagar on 25.02.2013. The
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appellants in both the appeals were convicted for offence
punishable under section 302 read with section 34 of the
Indian Penal Code and were sentenced to suffer
imprisonment for life and to pay a fine of Rs.5000/- each
with default clause of three months' rigorous
imprisonment. For the sake of convenience, the appellants
would be referred to by their designation in the lower
Court as accused Nos.1,2 & 3.
2. Criminal Appeal No.140 of 2013 is filed by
accused Nos.1 & 3, whereas Criminal appeal No.177 of 2013
is filed by accused No.2. All the three accused were
charged for committing murder of Ravindra, who happened
to be husband of accused No.1-Manisha. Accused Nos.2 and
3 are cousins of accused No.1.
3. The prosecution case in short is that Ravindra -
the victim owned 19 acres land but the same was sold
about one year prior to the incident with the help of the
accused. The amount of consideration was kept in the
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names of the accused. Ravindra-the victim kept demanding
the amount for his daily needs and there used to be
quarrel between accused on one side and Ravindra on the
other over such demand. Because of this dispute on 17th
October, 2010, the accused went to the house of Ravindra
by about 7 p.m., assaulted him with sticks and caused his
death.
4. The prosecution depended on 12 witnesses, out of
which P.W.4-Santosh Gadhve, P.W.5-Navnath Raskar, P.W.6-
Rajendra Raskar and P.W.9-Kshitija Humbe are the eye
witnesses. P.W.10-Dr.Vikas Somwanshi is the Medical
Officer, who conducted post-mortem and his deposition has
significance, which would be discussed later-on in the
judgment.
5. P.W.1-Hirabai is mother of Ravindra, who lodged
complaint of the incident on the same day at 11.30 p.m.
P.W.1-Hirabai stated that victim Ravindra was her son and
was staying in a house consisting of three rooms at Tambe
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Mala, which is a land admeasuring 5 acres. Ravindra was
staying with his wife accused No.1-Manisha and their
children. Accused No.3-Nitin is accused No.1-Manisha's
brother and accused No.2-Sanjay is their cousin. Victim
Ravindra was a naive person. Accused sold his land to
one person from Pune and received a sum of Rs.19 lakhs.
They did not give this amount to Ravindra, but kept is
with them. Ravindra was demanding the amount from them.
On account of this, frequent quarrel took place between
Ravindra on one side and the accused on the other. On
the day of incident, she went to village Mandavgan, where
she received a phone call of one Rajiv Raskar (P.W.6),
from which she learnt about the accused had killed her
son Ravindra. She went to Ravindra's house. She found in
the house chili powder scattered, four sticks and some
household articles in broken condition. She also noticed
injuries on Ravindra's person. Ravindra was dead. She
then went to Shrigonda police station for lodging report.
Her report was written down and was read over to her. In
her deposition, it is also mentioned that Tambe Mala,
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where the incident took place is at about one mile
distance from village Mandavgan. She admitted in her
cross-examination that after the transaction of sale of
19 acres land, she had lodged complaint to police station
against her son Ravindra and also against purchaser who
resided at Pune alleging that the land was sold without
her permission. She also admitted that the purchasers
had filed Civil Suit for possession of the land in Civil
Court.
6. P.W.4-Santosh stated that Ravindra's house was
adjacent to his house. Ravindra and his wife (accused
No.1) and their children were staying in his house in
neighbourhood. He also indicated that he was aware that
Ravindra had sold land for about Rs.19-20 lakhs and that
the amount was kept with the accused. He was aware that
Ravindra was demanding the amount for his expenses and
yet the accused were not giving him the amount. He added
that Ravindra used to tell him that the accused had not
given him the amount. On 16th October, 2010, at about
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5.30 p.m. he was present in his house. At that time he
saw accused riding on motor-cycle came to Ravindra's
house. He then heard quarrel. He, therefore, went to
Ravindra's house. He noticed that his villagers Navnath,
Raju and Gorakh were already standing outside Ravindra's
house. He saw that all the accused were beating Ravindra
using sticks. Navnath (P.W.5) tried to intervene but one
of the accused hurled bottle towards him and prevented
his entry in the house. At that time accused No.1 said
that no one should intervene, it was their private
dispute and she wanted to become widow. Accused
continued to beat. Ravindra was trying to come out of
the house. Accused threw chili power in his eyes.
Ravindra was shouting and seeking help. He was also
begging for water. Ravindra lastly came out of the house
and fell down in Veranda of the house. Even at that time
he was shouting for water. Thereafter, he did not stand
up. Seeing this, Raju Raskar (P.W.6) made phone call to
one Sunil and asked him to bring Ravindra's mother.
Sunil and Ravindra's mother came there. By that time
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accused left the spot riding the motor-cycle. One son
and daughter of Ravindra were present in the house at the
time of incident. In the cross-examination, this witness
admitted that he saw this incident from about 50 feet
distance. Many other persons had gathered there.
7. P.W.5 is Navnath. He stated that on the day of
incident about 6.00 p.m. when he heard noise of quarrel
coming from Ravindra's house, he went there. Other
witnesses were also present there. He heard noise of
beating coming from the house. He saw all the accused
beating Ravindra by means of wooden sticks. He asked
accused No.2-Sanjay not to assault Ravindra. At that
time accused No.1-Manisha said to him that it was their
personal dispute and they should not intervene. Accused
No.3-Nitin pelted a bottle towards him. P.W.6-Raju Raskar
then made a phone call to Sunil. Ravindra came out of
the house in injured condition near door on his knees and
fell down. Ravindra was crying and was seeking help.
Accused then left the spot on motor-cycle.
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8. P.W.6-Rajendra Raskar stated that victim
Ravindra was his neighbour. On the day of incident he
was present in the house. He heard shouts from Ravindra's
house. He went there. All the three accused were
present there. He saw that they were beating Ravindra by
means of wooden stick. He asked accused not to assault
Ravindra. He informed about this incident to Sunil on
phone. All the accused at the time of incident were
telling others that they should not interfere as that was
their personal dispute. Lastly Ravindra came out of the
house and fell down in Veranda. Thereafter, accused left
riding motor-cycle.
9. P.W.10-Dr.Vikas Somvanshi was the Autopsy
Surgeon. He stated that on 18th October, 2016, he
examined Ravindra's dead body at about 9.30 a.m. He
found following injuries on his person.
(1) CLW over left eye brow 2.5 cm x 1 cm x
1 cm blood clot seen.
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(2) CLW over fronto parietal joint region
left 3 cm x 2 cm.
(3) Linear contusion over back right
scapular region obliquely placed of size 15 cm x
2 cm.
(4) Linear contusion over back left
scapular region transversely placed of size 10
cm x 3 cm.
(5) Cris cross shaped contusion seen over
back lumber region of back averagely measuring
10 to 15 cm in length and 2 to 3 cm in width.
(6) Imprint injury below left ear lobule
of triangular shape, apex facing each other of
size 2 cm x 1 cm.
(7) Bluish black disconsolation with
swollen of left and right upper limbs and
shoulder to wrist joint.
(8) Abrasion over right knee just below
pattela 2 cm x 2 cm.
(9) Abrasion over left knee just below
pattela 2 cm x 2 cm.
(10) Contusion over face leftcheek 3cmx2 cm
(11) Contusion over chest right side
hypochondriac of size 5 cm x 3 cm.
(12) Linear contusion over abdomen left
side of sixe 10 cm x 2 cm.
(13) Swelling and fracture of right wrist
joint.
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. He added that he also found internal injury on
head corresponding to injury No.2. This was a hematoma
under scalp measuring 7 cm x 3 cm. There was no fracture
to skull. He, however, noticed intra cranial hemorrhage
over left side of parietal region measuring 7 cm x 2 cm.
He also found substance like chili power near eye of
body. Probable cause of death was due to shock due to
intra cranial hemorrhage. He, however, did not add that
external injury No.2 and corresponding internal intra
cranial hemorrhage was sufficient in ordinary course of
nature to cause death. In the cross-examination he added
that injury No.1,2 to 12 were simple in nature. Injury
No.13 was grievous in nature because it was a fracture.
10. Learned Judge of the Trial Court believed the
prosecution case and held that the accused committed
Ravindra's murder.
11. Learned Counsel for the accused initially argued
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that P.W.4-Santosh, P.W.5-Navnath and P.W.6-Rajendra are
not worthy of reliance and should be disbelieved. We
are, however, not accepting this submission at all.
Presence of these three witnesses appears to us quite
natural. They were staying in neighbourhood and they
went to the spot because of noise of the quarrel. They
did not exaggerate while describing the incident which
they saw from outside. They admitted that most of the
incident took place inside the house. No one could go
inside the house and notice details of the incident. All
the three witnesses did not attribute specific role to
the accused save and except what is stated above, namely,
accused No.3-Nitin hurled bottle and accused No.1-Manisha
challenged all the outsiders and told them that she was
ready to become a widow. So, it is clear from their
depositions that the incident mostly took place inside
the house. The prosecution could not bring on record as
to who delivered blows of sticks on what part of the
body. As noticed above, there were as many as 13
injuries. All injuries apparently were caused by the
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stick blows. When the victim came out, he was crying for
help. He fell down and died after few minutes.
Depositions of P.W.4-Santosh, P.W.5-Navnath and P.W.5-
Rajendra are believable and trustworthy. We have no
doubt in our mind that the author of the injuries
suffered by the victim were the accused. They had common
intention to assault the deceased by entering inside his
house. So, we hold that all the three accused shared
common intention to commit this offence of trespass and
assault.
12. The moot question is - what was the common
intention of the accused? Whether they wanted to simply
assault and cause hurt to the victim or whether they were
intending to cause his murder? We have noticed the
nature of the injuries suffered by the victim. Except
injury No.1 & 2, all the injuries are located on non-
vital parts of the body. It, therefore, indicates that
the accused intended to strike the victim mostly on his
back, arms and legs. Injury Nos.1,2,6 and 10 are found on
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head and face, out of which except injury No.2, other
injuries are simple in nature. Having regard to these
injuries, it can be said that the intention of the
assailants was to cause simple or at the most grievous
injury like fracture to the hand. Only injury that
proved fatal was a hit on left fronto parietal region of
the victim's head. External size of this injury was 3 cm
x 2 cm, internal hematoma measured 7 cm x 3 cm and intra
cranial hemorrhage measured 7 cm x 2 cm. The injury
though looked squarish from outside, internally it was
found to be a elongated one having length of 7 cm. We
have no doubt in our mind that this injury was caused by
stick like weapon. The assailants landed one blow on
victim's left fronto parietal region of the head so as to
cause this injury, which proved fatal. But as indicated
above, the Medical Officer did not state that this injury
though caused death, was also sufficient in ordinary
course of nature to cause death. We have no doubt in our
mind that, had this injury not been caused to the victim,
he would not have died. The question, therefore, is
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whether while causing this injury the accused intended to
cause death of the victim? Whether they knew that in
ordinary course of nature the injury was sufficient to
cause death? We find answer to this question in the
medical officers deposition. He did not say that the
injury was sufficient to cause death. So the answer is in
the negative.
13. We are aware that death has occurred in this
case. So we have to see the provisions of Sections 299
and 300 of the Indian Penal Code which define terms
"Culpable Homicide and Murder".
14. Sections 299 and 300 of the Indian Penal Code
are as under :-
"Section 299 - Culpable homicide - Whoever
causes death by doing an act with the intention
of causing death, or with the intention of
causing such bodily injury as it likely to cause
death, or with the knowledge that he is likely
by such act to cause death, commits the offence
of culpable homicide."
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"Section 300 - Murder - Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused
is done with the intention of causing death, or
-
2ndly - If it is done with the intention of
causing such bodily injury as the offender knows
to be likely to cause the death of the person to
whom the harm is caused, or -
3rdly - If it is done with the intention of
causing bodily injury to any person and the
bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to
cause death, or -
4thly - If the person committing the act
knows that it so imminently dangerous that it
must, in all probability, cause death or such
bodily injury as it likely to cause death, and
commits such act without any excuse or incurring
the risk of causing death or such injury as
aforesaid."
15. We must read, section 299 and section 300 of the
Indian Penal Code keeping them in juxtaposition.
Following table puts them in such juxtaposition.
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which culpable homicide is murder
the death is caused is done- if the act by which the death
is caused is done-
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INTENTION
(a) with the intention of (1) with the intention of
causing death; or causing death; or
(b) with the intention of (2) with the intention of
causing such bodily injury as causing such bodily injury as
is likely to cause death; or the offender knows to be
likely to cause the death of
the person to whom the harm
is caused; or
(3) with the intention of
causing bodily injury to any
person and the bodily injury
ig intended to be inflicted is
sufficient in the ordinary
course of nature to cause
death; or
KNOWLEDGE
(c) with the knowledge that (4) with the knowledge that
the act is likely to cause the act is so imminently
death. dangerous that it must in all
probability cause death or
such bodily injury as is
likely to cause death, and
without any excuse or
incurring the risk of causing
death or such injury as is
mentioned above"
16. First question that is required to be answered
is - whether the assailants intended to causing death?
The answer is in negative because most of the injuries
were not fatal. It was only one injury that proved
fatal. The second question is whether the assailants
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intended of causing such bodily injury as was likely to
cause death. The answer to this is also in negative
because the head injury was not even found sufficient in
ordinary course of nature to cause death. It must be
noted that the blow presumably of stick did not cause
fracture of skull bone. From outside the size of the
injury was small but inside it was bigger. It can,
therefore, be said that the blow on the head was not
intended to cause such bodily injury that was likely to
cause death. The assailants cannot even be attributed to
knowledge that the injury which they caused on victim's
head was likely to cause his death. The offence of
culpable homicide as defined in section 299 has following
ingredients:-
1. Causing of death of a human being.
2. Such death must have been caused by doing
an act
(i) with the intention of causing death;
or
(ii) with the intention of causing such
bodily injury as is likely to cause death; or
(iii) with the knowledge that the doer is
likely by such act to cause death.
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17. Causing death of human being is not sufficient
to constitute offence of culpable homicide unless one of
the mental status mentioned above is present. The
accused, thus, should not be convicted for offence of
culpable homicide. They should be convicted for causing
grievous injury.
18.
We are inclined to accept suggestion of the
prosecution that this could be at least a case of causing
grievous hurt with deadly weapon. Learned A.P.P. asserted
that all the assailants were armed with sticks and they
used the sticks quite frequently during the assault and
caused several injuries. The sticks if used in this
manner in our view would be deadly weapon. The nature of
weapon and the manner of its use could at time decide
whether it was used as deadly weapon. The question would
still arise as to whether stick is a deadly weapon or
not. The answer to such question would depend on facts
of each case. If the assailants used stick and repeatedly
delivers its blow on limbs of the victim, it was but
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natural that grievous hurt would be resulted and the
manner in which the stick was used would indicate that in
that particular incident it was a deadly weapon.
19. In the result, we pass following order :-
ig O R D E R
(i) Both the Criminal Appeals are partly
allowed.
(ii) The judgment and order passed by the
learned Additional Sessions Judge, Ahmednagar
dated 25.02.2016 in Sessions Case No.296 of 2010
is modified as per following order.
(iii) The conviction of the appellants in
both the Criminal Appeals under section 302 read
with section 34 of the Indian Penal Code is set
aside.
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(iv) The appellants in both the Criminal
Appeals are convicted for offence punishable
under section 326 read with section 34 of the
Indian Penal Code and sentenced to suffer
rigorous imprisonment for the term which they
have already undergone and to pay a fine of
Rs.5000/- (Rupees Five Thousand) each, in
default, they shall undergo simple imprisonment
of six months.
(v) Since the appellants are in jail, they
be released from custody, if they are not
required in any other case.
[V.L. ACHLIYA,J.] [A.V.NIRGUDE,J.]
snk/2016/JUN16/crap140.13
