Maruti Haribhau Kadam (In Jail) vs State Of Maharashtra, Thro. ...
2017 Latest Caselaw 1405 Bom

                                                                     Cr.Apeal85.15

Judgment

                                          1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR


                 CRIMINAL APPEAL NO.85 OF 2015

Maruti Haribhau Kadam,
Aged 46 Years, Occupation Agriculturist,
R/o Loni Gavli, Taluka : Mehkar,
District : Buldana (Convict No.4449).                 ..... Appellant.

                                   ::   VERSUS   ::

State of Maharashtra, through Police 
Station Officer, Dongaon, Taluka : 
Mehkar, District Buldana.                          ..... Respondent.
================================================================
          Shri S.M. Puranik, Counsel for the Appellant (Appointed).
          Shri P.S. Tembhare, Addll.P.P. for the Respondent/State.
================================================================


                                CORAM : P.N. DESHMUKH, J.  

DATE : APRIL 3, 2017.

ORAL JUDGMENT.

1. This appeal takes exception to judgment in Sessions

Case No.30 of 2013, passed by learned Sessions Judge, Buldana,

whereby accused/appellant (hereinafter referred to as "accused")

came to be convicted for the offence punishable under section 304

.....2/-

Cr.Apeal85.15

Judgment

Part-II of the Indian Penal Code and is sentenced to suffer

rigorous imprisonment for 8 years and to pay a fine of Rs.5,000/-,

in default, to suffer simple imprisonment for one year.

2. It is the case of prosecution that deceased Indubai

was wife of accused and mother of PW1 Ajinkya. Accused

admittedly was addicted to consuming Ganja for which deceased

was objecting and, therefore, there used to be frequent quarrels

between them on this count. On 20.12.2012, accused along with

his sons Ajinkya, the complainant, and Vijay went to their field.

Vijay and accused returned back in the noon hours at around

1:00 p.m., and in short time, Vijay left house when accused was

with deceased who at around 3:15 p.m. assaulted her by an axe.

It is further case of prosecution that after arrival of Vijay back to

his home, he found his mother lying in pool of blood and accused

present there. He, therefore, informed this fact to Ajinkya who

was in the field. Ajinkya reached home immediately and

.....3/-

Cr.Apeal85.15

Judgment

informed the police, vide his report Exhibit 10, on the basis of

which offence came to be registered vide Crime No.70 of 2012.

During the course of investigation of this crime, PW5 visited spot

of incident, which was house of accused, situated at village Loni

Gavli and found deceased lying dead in the house. Inquest

panchanama is drawn vide Exhibit 27 and dead body was sent

for autopsy. Spot panchanama came to be drawn and one axe,

which was found on the spot, came to be seized under

panchanama Exhibit 26.

3. During the course of investigation, sample of earth

and earth mixed with blood were seized from spot. Similarly,

blood samples of deceased were collected. On recording

statements of witnesses, accused came to be arrested on

24.12.2012 and his clothes were seized under seizure

panchanama Exhibit 24. All seized Muddemal articles were

forwarded to chemical analyzer for its analysis. On completion of

.....4/-

Cr.Apeal85.15

Judgment

investigation, charge-sheet was filed before learned Judicial

Magistrate First Class, Mehkar, District Buldana.

In the course of time, case came to be committed for

Trial before learned Sessions Judge. Charge is framed against

accused for the offence punishable under Section 302 of the

Indian Penal Code vide Exhibit 5 to which he denied and claimed

to be tried. The defence of accused is of total denial and of false

implication. Accused did not lead any evidence in support of his

case nor examined himself. Learned Trial Court on considering

evidence on record convicted accused for the offence under

Section 304 Part-II of the Indian Penal code. Hence, this appeal.

4. Heard learned counsel for the appellant and learned

Additional Public Prosecutor.

5. It is submitted that admittedly there is no eyewitness

to incident of assault by accused and though prosecution has

.....5/-

Cr.Apeal85.15

Judgment

miserably failed to establish involvement of accused in the

present crime, he came to be convicted on surmises and

conjectures and thus it is prayed that appeal be allowed.

6. Learned Additional Public Prosecutor has supported

impugned judgment and prayed that appeal be dismissed as

there is sufficient evidence establishing involvement of accused.

7. In view of submissions advanced as aforesaid, on

scrutinizing the evidence on record it is noted that as per

evidence of PW1 Ajinkya, on the day of incident at about 2:00

p.m. when he was in the filed, he received telephone message

from his brother, PW2 Vijay that accused had assaulted their

mother and thus he reached home and found that his mother was

lying in an injured condition in pool of blood in the house having

sustained blow of axe on her head and neck. He has further

deposed that accused was present in the house who too had

.....6/-

Cr.Apeal85.15

Judgment

sustained bleeding injuries on his head and thus gave

information to police as per his report Exhibit 10.

It has also come in the evidence of complainant that

at the time of incident he was residing along with his brother

Vijay, deceased mother, and accused and that relation between

accused and deceased were not cordial and there used to be

frequent quarrels amongst them as accused was addicted to

smoking Ganja which was objected by deceased and has also

deposed that as accused used to quarrel with his mother

frequently, he had suspected accused to have committed fatal

assault on his mother. Nothing material to doubt evidence of

complainant is brought on record in his cross examination. In

fact, complainant admitted that even his relationships with his

father were not cordial and has denied that for this reason he has

lodged false report against accused.

Evidence of Ajinkya, complainant materially

corroborates with contents of report Exhibit 10 and also on the

.....7/-

Cr.Apeal85.15

Judgment

aspect of accused committing murderous assault on deceased by

indulging into quarrel with her.

8. Evidence of PW2 Vijay, brother of complainant,

corroborates version of complainant when he was stated that on

the day of incident he along with complainant and accused went

to their field in the morning, when at around 1:00 in noon, he

returned back to his house who was followed by accused while

complainant remained in the field. He has stated that after

staying in the house for 15 minutes, he left and returned back at

around 3:00 p.m. and found that house was locked from inside

and on knocking door, accused opened the same when Vijay

noticed that deceased was lying in pool of blood having injuries

on her neck, head, and was dead, and, therefore, he gave

intimation to complainant on phone, who arrived in short time.

9. In the cross-examination of Vijay, it is suggested that

.....8/-

Cr.Apeal85.15

Judgment

at the time of incident their house was robbed and since demand

for parting away with ornaments and money was not satisfied,

accused as well as deceased were assaulted by axe, which

suggestion is duly denied by him.

10. On considering evidence of above two material

witnesses, it has come on record that at the time of incident

relation between accused and deceased were not cordial and they

used to indulge into quarrels frequently, as accused was addicted

to consuming Ganja.

Evidence of PW1 Ajinkya and PW2 Vijay on the point

of accused indulging into quarrel with deceased is further found

corroborated from evidence PW6 R.V. Sahane, Assistant Police

Inspector, the investigating officer, who has admitted that during

the course of investigation it revealed that accused and deceased

used to quarrel on account of his habit of consuming Ganja and

has further admitted that there was rivalry between deceased

.....9/-

Cr.Apeal85.15

Judgment

and her two sons on one side and accused on the other side. In

view of above evidence, fact of frequent quarrels between accused

and deceased has come on record beyond reasonable doubt.

In the background of above evidence, on considering

evidence of PW4 Dr. Shailaja Boralkar, who has performed

postmortem and issued postmortem note Exhibit 16, has stated

that she noted following surface injuries, as referred in column

No.17 of postmortem report:

Injury No.1 : On neck 15 cm in length trachea fractured and major vessels cut.

Injury No.2 : On right chick 4 to 5 cm deep.

Injury No.3 : On temporal area 4 to 5 cm and 3 to 4 cm deep.

Injury No.4 : On temporal region 5 to 6 cm, 3 to 4 cm deep.

Injury No.5 : On forehead 3 to 4 cm.

She has deposed that all injuries were antemortem

and during internal examination noticed following internal

.....10/-

Cr.Apeal85.15

Judgment

injuries corresponding to surface injuries mentioned in column

No.17 as trachea fracture and major vessels cut, fracture of

temporal bone, frontal bone and cause of death was due to

multiple injuries sustained by deceased. She has also certified

that injuries were possible by axe which weapon was confronted

to her and has opined that injuries sustained are possible by said

weapon. As per her opinion on record Exhibit 17, it is stated that

injuries were sufficient to cause death in ordinary course of

nature.

In her cross examination, PW4 admitted that injury

No.1 sustained on neck of deceased was possible by axe in a

scuffle between two persons if attempt is made to snatch axe and

has further admitted that fracture of skull bone is possible if

deceased comes in contact with wall by force. Thus, according to

expert, injuries sustained by deceased are possible even for above

two reasons.

.....11/-

Cr.Apeal85.15

Judgment

11. From above discussed evidence, though prosecution

has established involvement of accused as an assailant of

deceased Indubai, in view of evidence, particularly with regard to

fact of strained relation between accused and deceased as well as

of accused on one side while PWs Ajinkya, Vijay, his sons, and

deceased on the other, together with fact of accused

quarreling with deceased frequently coupled with the possibility

as admitted by medical officer of deceased sustaining injuries on

her neck and head in a scuffle, it is necessary to consider

whether the case of accused falls under Section 302 of the Indian

Penal Code or for lesser offence. For that purpose, evidence of

PW4 Dr. Shailaja Boralkar is already discussed who has

admitted that injury sustained by deceased on her neck by axe is

possible, in a scuffle if deceased attempted to snatch the same

and has further admitted that fracture of skull bone is possible if

victim comes in contact with a wall forcefully. In view of

evidence of complainant and Vijay as well as of investigating

.....12/-

Cr.Apeal85.15

Judgment

officer of accused entering into quarrel with deceased frequently,

coupled with evidence of Dr. Shailaja Boralkar as aforesaid,

possible inference that can be drawn is that accused caused

injuries to deceased with a knowledge that he was thereby likely

to cause her death. Moreover, evidence on record shows that

there was no pre-meditation on the part of accused. It is noted

that for application of exception to 4 of Section 300 of the Indian

Penal Code, it is not sufficient to show that act is committed in a

sudden quarrel and that there was no pre-meditation, but it is

further necessary to show that accused had not taken any undue

advantage or acted in a cruel or an unusual manner. For that

purpose, perusal of evidence of PW4 Dr. Shailaja Boralkar,

therefore, established that injuries sustained by deceased on her

neck as well as on her head are otherwise possible accidentally if

deceased in a quarrel attempts to snatch the axe or if in a

quarrel forcefully comes in contact with stone wall and such wall

is found in existence at the spot as revealed from spot

.....13/-

Cr.Apeal85.15

Judgment

panchanama. According to medical evidence, deceased is

certified to have sustained as many as 5 injuries on her person

being on her neck and head, possibility of sustaining such

injuries as deposed by medical officer accidentally, in a scuffle

cannot be ruled out and thus it cannot be said that accused had

acted in a cruel or an unusual manner. In that view of the

matter, present case falls within exception 4 to Section 300 of the

Indian Penal Code.

12. With reference to facts involved in the appeal in

hand, it would be useful to refer to decision of the Apex Court in

the case of Selvam ..vs.. The State of Tamil Nadu, reported

at 2013 ALL MR (Cri) 379 wherein from the evidence led on

behalf of prosecution it was established beyond reasonable doubt

that accused no.1 used the aruval to strike on the head of the

deceased. The Apex Court further held that it was also

established beyond reasonable doubt that accused no.6 snatched

.....14/-

Cr.Apeal85.15

Judgment

aruval from accused no.1 and struck on the head of the deceased

and further found that accused no.7 struck the head of the

deceased by a stick. It is further found that the result of the acts

of all the accused nos.1, 6 and 7 caused death of deceased.

However, while considering the question as to whether the case

would fall under Section 302 of the Indian Penal Code or 304

Part I of the Indian Penal Code, the Apex court observed thus :

12. The next question which we have to decide is whether the criminal act committed by accused nos. 1, 6 and 7 amounts to murder under Section 300, IPC, or some other offence. The medical evidence of PW 11 is clear that all the injuries of the deceased were most probably as a result of an assault by a blunt weapon and in the opinion of PW 11, the deceased appears to have died due to head injuries. PW 11 has also admitted in her cross-examination that she did not see any incised injuries during the post mortem examination and had a sickle been used it would have caused incised wounds. Thus, it appears that accused no. 1 and accused no. 6 had used not the sharp side but the blunt side of the aruval and accused no. 7 had used the stick in the assault on the deceased. The fact

.....15/-

Cr.Apeal85.15

Judgment

that the blunt side of the aruval and a stick was used in the assault on the deceased would go to show that accused nos. 1, 6 and 7 did not have any intention to cause the death of the deceased. Nonetheless, the injuries caused by accused nos. 1, 6 and 7 were all on the head of the deceased, including his parietal and temporal regions. Accused nos. 1, 6 and 7, thus, had the intention of causing bodily injury as is likely to cause death and were liable for punishment for culpable homicide not amount to murder under Section 304 Part I, IPC."

13. Another aspect which is found attracted in the

present appeal is with regard to application of provisions of

Section 106 of the Indian Evidence Act as in the evidence of PW1

Ajinkya, it has come on record that on receiving information from

his brother Vijay, he immediately reached home and saw that his

mother was lying in pool of blood having injuries sustained by

her on her head and neck and that accused was also present in

the house. Evidence of PW2 Vijay is that after he returned back

to the house from field and at around in the noon had left it,

.....16/-

Cr.Apeal85.15

Judgment

accused and his deceased mother were present in the house. He

has further deposed that when he returned back at about 3:00

p.m., he noticed that door was latched from inside and thus on

knocking the same, it was open by accused and noticed that

mother was lying in the house in pool of blood. Thus, it is a

specific case as established by prosecution that at the time of

incident it is only accused and deceased who were in the house

and when PW2 Vijay knocked door, it was open by accused,

while dead body of his deceased mother was lying in the house of

which no explanation is offered by accused in his statement

recorded under Section 313 of the Code of Criminal Procedure

except for his simple denial.

14. Thus, from evidence on record it is established that

at the time of incident accused and deceased were alone in the

house. As such, provisions of Section 106 of the Indian Evidence

Act would come into play which provide that when any fact is

.....17/-

Cr.Apeal85.15

Judgment

especially within the knowledge of any person, the burden of

proving that fact is upon him. In several recent decisions, the

Supreme Court has held that the principles which underlie

Section 106 of the Evidence Act can be applied in cases where

certain facts are especially within the knowledge of a person. In

the case of State of Rajasthan ..vs.. Kashi Ram, the Supreme

Court has observed that if the accused fails to offer an

explanation on the basis of facts within his special knowledge, he

fails to discharge the burden cast upon him by Section 106 of the

Evidence Act. In a case resting on circumstantial evidence if the

accused fails to offer a reasonable explanation in discharge of the

burden placed on him, that itself provides an additional link in

the chain of circumstances proved against him. Section 106 does

not shift the burden of proof in a criminal trial which is always

upon the prosecution. It lays down the rule that when the

accused does not throw any light upon facts which are specially

within his knowledge and which could not support any theory or

.....18/-

Cr.Apeal85.15

Judgment

hypothesis compatible with his innocence, the Court can consider

his failure to adduce any explanation as an additional link which

completes the chain.

15. Lastly, with regard to case of prosecution of extra-

judicial confession of accused, evidence of PW2 Vijay established

this fact when he has deposed that on his reaching back home,

when he knocked door, same was opened by accused and when he

noticed that his deceased mother was lying in pool of blood,

enquired accused, when he confessed that he has killed his

mother by axe. There is no challenge to above piece of evidence

of Vijay and in fact, it is noted that learned Trial Judge while

considering above evidence of confessional statement of accused

in paragraph No.14 of its judgment had not appreciated it in its

correct perspective by keeping in mind ample other evidence on

record and held that word "killing" implies two meanings, (i) to

have killed, and (ii) to have beaten and had held that as per

.....19/-

Cr.Apeal85.15

Judgment

settled principle of law, when there are two meanings, one which

is in favour of accused since is required to be accepted, wrongly

relied upon meaning of word "killing" as accused to have "beaten"

the deceased, however such reasonings do not stand for any

reason in view of specific evidence of PW2 Vijay who in clear

terms had deposed that on his reaching home when he saw his

mother lying in the pool of blood, on enquiring with the accused

he has confessed that he has killed his mother. As such, appears

no reason for learned Trial Judge to refer two meanings of word

"killing" as aforesaid, more particularly when deceased was lying

on the spot in the pool of blood, sustaining injuries on her person.

16. Law on subject of extra-judicial confession is by now

well settled that extra-judicial confession is a weak piece of

evidence and thus, whenever Court, upon due appreciation of the

entire prosecution evidence, intends to base a conviction on an

extra-judicial confession, it must ensure that same inspires

.....20/-

Cr.Apeal85.15

Judgment

confidence and is corroborated by other prosecution evidence.

However, if the extra-judicial confession suffers from material

discrepancies or inherent improbabilities and does not appear to

be cogent as per the prosecution version, it may be difficult for

the court to base a conviction on such a confession. In such

circumstances, the court would be fully justified in ruling such

evidence out of consideration.

In view of settled principle as aforesaid, extra-judicial

confession involved in this case appears to be true as well as

voluntarily made by accused in a fit state of mind. Similarly,

evidence of PW2 Vijay on this aspect is clear unambiguous and

clearly conveyed that accused is maker of crime and as such

extra-judicial confession in this case can reasonably be accepted

to form the basis of conviction as said piece of evidence is

otherwise corroborated with ample other evidence.

17. On considering above discussed evidence, thus it is

.....21/-

Cr.Apeal85.15

Judgment

held that there is a sufficient evidence to prove involvement of

appellant in the present crime. I, therefore, do not find merit in

appeal. Appeal is, therefore, liable to be dismissed, hence the

following order:

Appeal is dismissed.

18. At this stage, I must record my appreciation for

learned counsel Shri S.M. Puranik appointed by the High Court

Legal Services Sub Committee, Nagpur to represent appellant

who has effectively assisted the Court. I, therefore, quantify

legal fees to be paid to learned counsel Shri S.M. Puranik by the

High Court Legal Services Sub Committee, Nagpur at Rs.5,000/-.

Learned counsel Shri S.M. Puranik has graciously

submitted that legal fees, quantified as aforesaid, be paid to the

High Court Bar Library, Nagpur. In that view of the matter,

concerned to act upon.

JUDGE !! BRW !!

...../-