Govind Maneji Vaidya vs State Of Maharashtra
2017 Latest Caselaw 9503 Bom

                                                    Cri. Appeal No. 641/2002
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 641 OF 2002

Govind s/o. Maneji Vaidya,
Age 34 years, Occu. Agriculture,
R/o. Deshmukh Galli, Bhokar,
Dist. Nanded.                                  ....Appellant.

       Versus


The State of Maharashtra                       ....Respondent.


Mr. S.S. Choudhari, Advocate for appellant.
Mr. S.D. Ghayal, APP for respondent/State.


                                CORAM   :   T.V. NALAWADE AND
                                            ARUN M. DHAVALE, JJ.

RESERVED ON : 15/11/2017.

PRONOUNCED ON : 12/12/2017.

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against judgment and order of

Sessions Case No. 68/2000, which was pending in the court of

learned Additional Sessions Judge, Nanded. The Trial Court has

convicted and sentenced the appellant for the offence punishable

under section 302 of Indian Penal Code (hereinafter referred to as

'IPC' for short). The sentence of life imprisonment is given to him.

Heard both the sides.

2) Deceased Yamunabai was daughter of Begaji Kawane,

Cri. Appeal No. 641/2002

resident of Taroda, Tahsil Umarkhed, District Nanded. She was given

in marriage to Deoba, real brother of present appellant. The

deceased has left behind one daughter Sharayu and son, who is

younger to Sharayu. Sharayu was aged about 8 years at the relevant

time. The appellant was living in Joint Hindu Family with Deoba and

his parents at Bhokar, District Nanded. The chargesheet was filed

against the present appellant, Deoba and parents of appellant for

the offences punishable under sections 498-A, 302 r/w. 34 of IPC.

The present appellant and the other accused are acquitted of the

offence punishable under section 498-A of IPC. In view of these

circumstances, the evidence given as against the appellant only and

only for the offence punishable under section 302 of IPC needs to be

considered.

3) The incident took place on 28.2.2000 at about 8.00 a.m.

in the house where the appellant was living with the deceased,

Deoba and his parents, at Bhokar. In the morning Maneji, father of

appellant had left home for some work, but, he was present at the

station. Deoba was not at station. Accused Kewalbai, mother of

appellant, Sharayu, younger brother of Sharayu and the deceased

were at home. Sharayu was eating Bhakar (bread of Jawar) and she

was also feeding to the younger brother. After eating some Bhakar,

when Sharayu started drinking water from the container of the

Cri. Appeal No. 641/2002

house by using her hands, Kewalbai became angry. Kewalbai thought

that Sharayu ought to have used pot for taking water from the

container. Due to that, Kewalbai scolded both Sharayu and the

deceased. Due to scolding, Yamubai became angry with Sharayu as

due to conduct of Sharayu she had received scolding. The deceased

started giving slaps to Sharayu and then Kewalbai intervened to stop

deceased from giving beating to Sharayu.

4) Even after intervention of Kewalbai, the deceased

continued to give slaps to Sharayu and one slap hit Kewalbai and

due to that her bangles got broken. The appellant was in the vicinity.

The appellant felt that the deceased had given slap intentionally to

Kewalbai. He became angry and he picked up wooden pan of Chapati

(round shaped wooden article) and started giving beating to

Yamunabai with the pan. Kewalbai tried to intervene, but the

appellant gave blows of pan and one blow hit the head of the

deceased. The deceased collapsed and died on the spot.

5) Somebody informed Maneji about the incident. Maneji

returned to home, collected information from Kewalbai and then

gave report to Bhokar Police Station. The appellant left the house

after the death of Yamunabai. On the basis of report given by

Maneji, the crime for the offence punishable under section 302 of

Cri. Appeal No. 641/2002

IPC came to be registered in Bhokar Police Station.

6) During investigation, police prepared inquest

panchanama of dead body of Yamunabai and the dead body was

referred for P.M. examination. The spot panchanama was prepared.

Blood was found in the Osari portion of the house where the incident

had taken place. Beyond Osari portion, there were two rooms which

were used for sleeping etc. by this family.

7) During investigation, police recorded statements of the

relatives on parents' side and also of the neighbours of the appellant

as one lady neighbour had rushed to the spot after hearing shouting

of Yamunabai. The relatives of deceased made allegations that there

was illtreatment to the deceased right from the beginning. Due to

that the crime for the offence punishable under section 498-A of IPC

was also registered. The appellant came to be arrested. While in

custody, the appellant gave statement to police under section 27 of

the Evidence Act. He took the police to aforesaid place and from

there, he produced the pan, article used as a weapon. This article

and other articles came to be sent to C.A. office.

8) Charge was framed against the present appellant for the

offences punishable under sections 302, 498-A r/w. 34 of IPC. The

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appellant pleaded not guilty when plea was recorded. The

prosecution examined in all eleven witnesses. The appellant took the

defence of total denial. During cross examination, an attempt was

made to suggest that some stones of the construction fell on the

deceased and due to that, she sustained injuries. In the present

proceeding, it was alternatively argued that incident took place due

to grave and sudden provocation as the slap was given by the

deceased to the mother of appellant. It was also submitted

alternatively that there was no intention of murder and at the most,

the offfence committed can be punished under the provision of

section 304 Part II of IPC.

9) The main witness of prosecution is Sharayu (PW 8). She

was aged about 8 years at the relevant time. When evidence was

recorded, she had completed 10 years of age. She has deposed that

on that morning, she was taking food and she was also feeding her

younger brother. She has deposed that when she took water from

the container directly by using her hands, Kewalbai became angry

and Kewalbai abused her and also to the deceased. She has deposed

that due to abuses given by Kewalbai, her mother said to her that

she was required to listen the abuses because of her conduct and

then mother gave her slaps 2-3 times. She has deposed that at that

time, Kewalbai, grandmother was near her and she received stroke

Cri. Appeal No. 641/2002

of slap given by her mother and due to that bangles of Kewalbai got

broken.

10) Sharayu (PW 8) has given evidence that appellant was

present in the vicinity in Osari portion and after seeing this incident,

he started assaulting the deceased by using rolling pan. She has

deposed that appellant assaulted her mother on head, back, hands

and leg and her mother started shouting. She has deposed that she

started weeping and after hearing the noise, a lady from

neighbouring house came to their house. She has given the name of

lady as Vimalbai. She has deposed that Vimalbai tried to intervene in

the incident to rescue her mother, but the appellant pushed her

aside due to which Vimalbai fell on tank and she sustained injury to

her face below her eye. She has deposed that after leaving of

Vimalbai, Kewalbai closed the doors of house from inside. She has

deposed that her mother died in the Osari portion itself and she had

sustained injuries on her head, back and leg and blood was coming

out of these injuries. She has given evidence that accused left the

house and ran away. She has identified the rolling pan, Article No. 7

which was recovered and seized by police. She has deposed that she

narrated the incident to the relatives of her mother on parents' side.

11) In the cross examination of Sharayu (PW 8), some

Cri. Appeal No. 641/2002

omissions which are of very minor nature are brought to her notice

in relation to her previous statement. In the cross examination, it is

specifically brought on the record that the container utilized for

drinking water was kept in the courtyard in Osari portion. She has

given all the particulars which were asked to her by the defence

counsel during her cross examination and her evidence remained

unshattered. Her statement was recorded by police on the day of

incident and her evidence shows that police came to the place of

offence at about 9.30 a.m. The suggestion given to her that her

mother had a fall is denied by her. It is also suggested to her that

her mother had quarreled with Kewalbai and in the incident,

Kewalbai had pushed her. It is suggested to her that some stones

kept over the tin sheets fell on the head of her mother, but that

suggestion is also denied by Sharayu. Thus, the presence of Sharayu

on the spot is not disputed by the defence.

12) Vimalbai (PW 4) is close relative of Maneji as Maneji is

her cousin. Her evidence shows that on that day she was present in

the neighbouring house with her parents as she had come for

delivery. She has deposed that at about 8.00 a.m. she learnt from

Mangala, daughter of her brother that noise of Yamuna was coming

from the neighbouring house and there was shouting during quarrel

and so, she went to the house of Maneji. She has deposed that

Cri. Appeal No. 641/2002

Yamunabai was lying in Osari portion and the appellant, accused was

giving beating to her by using rolling pan. She has deposed that

during incident, accused said as "she should now be finished" ( fgpk

dkVk dk<k;pk vkgs). Vimalbai (PW 4) has given evidence on the words

used by accused Kewalbai also, but that need not be considered. She

has given evidence that when she tried to intervene, appellant

pushed her aside and she fell on barrel of the water and due to that

she sustained injury below right eye. She has deposed that her

mother also came to the spot and then her mother took her away as

she was pregnant at that time. She has deposed that only due to the

assault made on Yamunabai by the appellant, she died. She has

identified the Article No. 7, the rolling pan, which was used by

appellant as weapon. PW-8 has not given evidence on aforesaid

words used by accused.

13) The statement of Vimalbai (PW 4) was recorded by the

police on the same day. It can be said that she has not given correct

description of the rooms as she has deposed that there are four

rooms in the house of Maneji, when in the spot panchanama, only

two rooms are shown beyond Osari portion. However, this

discrepancy is not sufficient to discard the evidence of this lady. It is

suggested to her that relations of her father with Maneji were

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strained, but she has denied it. There was virtually no reason for her

to give false evidence against the appellant. She has given evidence

only against the appellant.

14) In the cross examination of Vimalbai (PW 4), some

suggestions are given to create a probability that the noise of

quarrel cannot be heard from the adjacent house, but these

suggestions are denied. The panchanama of spot shows that incident

took place in Osari portion and there is direct evidence on that. Osari

portion was towards the entrance side. There was only one wall of

the height of 7-8 ft. between the two houses and the roof of the

house of Vimalbai was of country tiles. Due to these circumstances,

this Court holds that no probability is created that Vimalbai had no

opportunity to hear the quarrel and she had no reason to go to the

neighbouring house. In ordinary course, relative like Vimalbai could

have definitely rushed to the neighbouring house. Vimalbai was aged

about 20 years and the deceased was also young. The suggestion

given by the learned counsel for defence to this lady that there was

dispute between her father and Maneji over the worship of religious

Kathi is denied by her and there is nothing on the record about this

dispute. One inconsistency with regard to the side of face where she

sustained injury is brought on the record, but that is also not that

material.

Cri. Appeal No. 641/2002

15) The suggestions given to aforesaid witness by the

learned defence counsel show that defence is not disputing that all

the injuries which were noticed on the dead body were sustained by

Yamunabai in Osari portion of the house. Spot panchanama is

proved in the evidence of Mohammad Ayub (PW 1) as Exh. 30. This

document shows that panchanama was prepared immediately at

11.35 a.m. on the same day. Blood was lying in Osari portion and

pieces of broken bangles of violet colour were also lying there. Police

collected earth sample mixed with blood and broken bangles from

this spot. Though small pieces of stones were lying near the portion

created for taking bath, the spot panchanama does not show that

Osari portion was in dilapidated condition and the stones were of the

dilapidated structure. There were two rooms on the two sides of the

Osari portion and on one side of the house, there was the house of

Narayan, father of Vimalbai (PW 4). Thus, the spot panchanama is

consistent with the oral evidence of Vimalbai (PW 4) and Sharayu

(PW 8).

16) In the evidence of Mohammad Ayub (PW 1), the inquest

panchanama is proved. The inquest panchanama at Exh. 29 shows

that it was prepared in the Osari portion where incident had taken

place. It shows that there was bleeding injury over head on right

Cri. Appeal No. 641/2002

side near ear and due to the blow, that portion was pressed by

atleast 1 inch. Bleeding had taken place through nose. There were

some other injuries on the body, but they were of abrasions in

nature. There were no bangles in the hands of dead body. There

were some marks on the back showing that there were blunt

injuries. There was blood on the clothes of the deceased. The

panchas formed opinion that the death took place due to the injury

caused on the head.

17) Dr. Mohammad Amjadulla (PW 9) is examined to prove

the P.M. report. He conducted the P.M. examination on the next day

at about 9.00 a.m. He found following injuries, surface wounds on

the dead body :-

(i) Contused lacerated wound 2 x 1 x ½ cm in size

vertically placed tringular in shape at the middle of head

with haematoma of size 6 x 4 cm ovel shape at right

temporal region above the ear.

(ii) Abrasion at right shoulder just above the lateral end

of clavicle 2 x 1 cm. ovel shape.

(iii) Abrasion at left elbow at extensor surface just above

wrist joint 1½ x 1 cm ovel in shape.

(iv) Abrasion at right forearm extensor surface just above

wrist joint 1½ x 1 cm. ovel in shape.

Cri. Appeal No. 641/2002

(v) Contusion 4 x 3 cm size at back on right scapula

vertically placed ovel shape.

(vi) Abrasion 1 x 1 cm size at right knee ovel shape.

(vii) Abrasion 1 x 1 cm size at left knee ovel shape.

(viii) Abrasion 2 x 1 cm of size at front right leg vertically

placed.

(ix) Contusion 3 x 2 cm of size at front side of left thigh

middle thigh.

Doctor has deposed that all the injuries were red in colour and they

were antemortem in nature. Doctor has deposed that on internal

examination, he noticed haemorrhage under scalp at right temporal

region, left temporal region and he also noticed fracture of skull at

left side from middle of head downwards to temporal region. There

was petacheal haemorrhage on both lobes of brain. He has deposed

that the internal injuries mentioned in column No. 19 of P.M. report

corresponds to injury No. 1.

18) Though Dr. Amjadulla (PW 9) has tried to say that injury

Nos. 1, 5 and 9 are sufficient to cause death in ordinary course of

nature, injury No. 5 found on scapula and injury No. 9 found on

thigh portion cannot be called as that grievous and it is not possible

to believe that these two injuries could have resulted in to death.

However, doctor has then specifically mentioned that injury No. 1

Cri. Appeal No. 641/2002

proved to be fatal. Doctor has given evidence that injury Nos. 1, 5

and 9 can be caused due to hard and blunt object. In the cross

examination, doctor has deposed that injury Nos. 2, 3, 4, 6, 7 and 8

which are abrasions and which were found on legs and arms can be

caused even by rough surface. The rolling pan was shown to him

and he has given evidence that injuries mentioned by him in column

No. 17 of P.M. report can be caused by such rolling pan. The P.M.

report prepared by him which is at Exh. 61, is consistent with the

evidence given by doctor on the injuries.

19) The defence has not disputed that the injuries found on

the head caused death. Dr. Amjadulla (9) was cross examined by the

defence and it is suggested to him that injury No. 1 can be caused

due to fall on stone. Doctor has given conditional admission and he

has deposed that though such injury can be caused by fall on stone,

but in the present matter injury was serious. Though directly doctor

has not deposed that force is required to be used, it needs to be

inferred that force is required to be used for inflicting injury No. 1.

This Court holds that injury No. 1 was caused by assault and it was

not caused due to fall on stone and no such probability is created by

the defence. Thus, the death took place due to assault made on

deceased and particularly, the injury was caused on the head of the

deceased. Thus, it is a case of homicide. This evidence is consistent

Cri. Appeal No. 641/2002

with the oral evidence of Sharayu (PW 8). Even if there is probability

that Vimalbai (PW 4) must have rushed to the spot after starting of

the incident and she may not have witnessed the entire incident, her

evidence can be used for corroboration as when she entered the

house of accused, accused was still there and he was holding the

pan. Though Vimalbai (PW 4) was not referred for medical

examination, this Court holds that, that circumstance cannot affect

the credibility of Vimalbai.

20) The prosecution has examined Vithal Angule (PW 10),

P.I., who was working as API at the relevant time in Bhokar Police

Station. He had recorded the report given by Maneji immediately

after the incident. As Maneji is made accused for the other offence,

this police officer is examined to prove the report given by Maneji.

The report is at Exh. 68. Though the report cannot be used as

substantive piece of evidence, it can be used as a circumstance as

on the basis of this report, the crime for the offence punishable

under section 302 of IPC was registered by police. Thus, everybody

believed that it was a murder and it was not accidental death. This

Court holds that the report can be considered under section 7 of the

Evidence Act.

21) The prosecution has examined panch witness and

Cri. Appeal No. 641/2002

Investigating Officer to prove the statement given by accused,

appellant under section 27 of the Evidence Act, on the basis of which

the aforesaid weapon, kitchen article was recovered and seized. The

rolling pan was taken over from the house where all the accused

were living. The C.A. report is not exhibited, but the C.A. report is

with the police papers and it shows that no blood was detected on

the rolling pan. In any case, when there is direct evidence, non

recovery of weapon cannot go to the root of the matter. There was

virtually no reason for giving false evidence that rolling pan was

used by the appellant. The article is made of wood. It has a round

shape and only at the edges of the two circles of pan, it is little bit

sharp, but not as sharp as knife. Ordinarily, the diameter of such

rolling pan is around 1 ft. and that is not that heavy article. The

description of the rolling pan is given in seizure panchanama at Exh.

34. But, unfortunately the diameter of the circle is not mentioned. In

any case, such articles are available in the house of almost every

family.

22) The aforesaid evidence is sufficient to prove that it is the

accused, who inflicted the fatal injury, injury on the head of the

deceased. Most of the other injuries as mentioned by the doctor in

the evidence were abrasions. Considering the description of the spot

given in the spot panchanama, it can be said that the deceased must

Cri. Appeal No. 641/2002

have either resisted or tried to save herself and in that attempt, she

sustained the abrasions. Only three injuries could have been caused

by the pan. Only one blow hit the head and that injury proved to be

fatal. In view of these circumstances, the question arises as to what

offence is committed by the appellant.

23) Considering the nature of kitchen article, pan, it can be

said that unless it hits the body from the edges of the circles, the

injury which was found on the head, could not have been caused.

The evidence on record does not show that the accused took care to

see that the said portion hits the head. If the flat portion had hit the

head, possibly the deceased would not have died. In view of nature

of evidence, it is not possible to infer that the accused intentionally

used that portion of article. However, when he gave atleast three

blows and one blow hit on the head, knowledge can be attributed

that he was likely to cause death of Yamunabai. Further, the other

evidence that the incident took place all of a sudden and due to

quarrel between mother of appellant and the deceased is a

circumstance which needs to be kept in mind.

24) In the cases following cases the Apex Court has laid

down few of the circumstances which need to be considered for

ascertaining the intention or knowledge.

Cri. Appeal No. 641/2002

(i) 1980 (Supp) SCC 408 (MD Isak Md v. State of Maharashtra);

            (ii) (2011) 15 SCC 189                  (Swapan           Kumar
            Senapati v. State of W.B.);

(iii) 1994 Supp (1) SCC 304 (B.N. Kavatakar v.

State of Karnataka);

            (iv) (2004) 9 SCC 14 (State                      of     A.P.      v.
            Naragudem Papireddy); and

            (v) 2017 SCC OnLine SC 921 (Madhavan v. The
            State of Tamil Nadu).


The circumstances quoted are as under :-

            (i)      intention.

            (ii)     nature of injuries, both external and internal.

            (iii)    nature of weapon used.

            (iv)     part of the body where injury was inflicted.

            (v)      conduct of the accused.

            (vi)     surrounding circumstances in which or the conduct

                     due to which incident took place.



25)               The learned counsel for the appellant placed reliance on

following two reported cases :-

            (i) 1988 ALL MR (Cri) 43 [The State                               of
            Maharashtra Vs. Jahur Kamruddin Khatik],

(ii) 2002 ALL MR (Cri) 2342 [Arun Kisan Madavi Vs. State of Maharashtra].

Cri. Appeal No. 641/2002

The learned APP placed reliance on following three cases of the Apex

Court.

(i) AIR 1977 (SC) 45 [State of Andhra Pradesh Vs. Rayavarapu Punnayya and Anr.]

(ii) AIR 1958 (SC) 465 [Vira Singh Vs. The State of Punjab].

(iii) Criminal Appeal No. 46/2016 [Nankaunoo Vs. State of UP] decided on 19.1.2016

The facts and circumstances of each and every case are always

different. In the present matter, due to peculiar circumstances of this

case, this Court holds that there was no intention of murder, but the

accused had knowledge that by such act, he was likely to cause

death. Thus appellant needs to be convicted for the offence

punishable under section 304 Part II of IPC. In the result, following

order.

ORDER

(I) The appeal is partly allowed. The conviction given to

the appellant Govind Maneji Vaidya for the offence

punishable under section 302 of IPC is set aside. The

accused stands convicted for the offence punishable under

section 304 Part II of IPC and he is sentenced to suffer

rigorous imprisonment for five years and to pay fine of

Rs.1,000/- (Rupees one thousand). In default of payment

of fine, the accused is to further undergo simple

Cri. Appeal No. 641/2002

imprisonment for one month.

(II) The accused is entitled to set off in respect of the

period for which he was behind bars as under trial prisoner

as provided in section 428 of Criminal Procedure Code.

(III) The accused is to surrender to bail bonds for

undergoing the sentence.

       [ARUN M. DHAVALE, J.]                [T.V. NALAWADE, J.]




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