Parashutam Shankar Kamble vs The State Of Maharashtra
2017 Latest Caselaw 5043 Bom

Reserved Jt. in Cri. Appeal-413-95.doc.

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.413 OF 1995 

Parshuram Shankar Kamble 
Circle No.I, 
Yervada Central Prison,
Pune-6.                                                               ..Appellant

         Versus 

The State of Maharashtra                                              ..Respondent

Shri. B. J. Sarwade for the Appellant.
Mrs. P. P. Shinde, APP for the Respondent.     

                                      CORAM :   R. M. SAVANT & 
                                                       SMT. SADHANA S. JADHAV, JJ 
                                                  
                                                       RESERVED ON : 05.07.2017
                                                       PRONOUNCED ON : 26.07.2017

JUDGMENT (Per R. M. Savant, J) 

1 The conviction of the accused i.e. the Appellant herein under

Section 302 of the Indian Penal Code ("IPC" for short) and his being

sentenced to life imprisonment and to pay a fine of Rs.100/- is the

subject matter of the above Criminal Appeal.

2 The Appellant would be referred as the accused and the

Respondent - State would be referred to as the prosecution. The incident

took place on 13.06.1991. It is the case of the prosecution that one Bapu

Chavan was residing in a hut at Yashodhara Chawl Committee Hutment,

BGP. 1 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

Ramabai Colony, Ghatkopar (E), Mumbai-400 075. The accused and

some others also resided in the nearby huts. It is the case of the

prosecution that on the evening of 13.06.1991 the Complainant i.e. Bapu

Chavan and his wife Sharda (deceased) were sitting outside their hut and

chitchatting. At around 10.00 p.m., the accused came there and started

abusing Sharda. The reason for that was that 4 - 5 days prior to the said

incident, Sharda told the neighbours that the accused possessed a knife.

The accused continued abusing for about 15 minutes. During the said 15

minutes the Complainant i.e. Bapu Chavan sent his wife to the room.

However the accused continued abusing.

3 Thereafter Complainant i.e. Bapu Chavan went inside his

room, but accused was still continuing with his abusing. Thereafter

Sharda came out of her room and the husband i.e. the Complainant

followed her. On being asked why he was abusing, the accused went to

his hut, came back with a knife and stabbed Sharda on her left below the

ribs and on her right side elbow. On the accused stabbing Sharda there

was a hue and cry and many persons came out of their huts. One Smt.

Surekha Laxman Shevekar who was cleaning utensils seeing the accused

stabbing Sharda, threw a Tava at him. The accused pounced upon the

said Smt. Surekha Laxman Shevekar and also assaulted her. He thereafter

ran away. On account of the stabbing by the accused, Sharda fell down

BGP. 2 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

and she was immediately removed to the hut of one Inamulla who was a

neighbour. She was laid on a chatai. Someone brought a Rikshaw. She

was brought down to the Eastern Express Highway and removed to

Rajawadi Hospital where she was declared dead before admission. It

seems that at the said time the telephone lines were out of order and

hence the Complainant was advised to go to Pant Nagar, Police Station

and lodge a complaint, which he did. In his complaint, he has named the

accused as the person who had stabbed his wife. The Police thereafter

visited the Rajawadi Hospital and inquest was carried out. The clothes on

the person of the Sharda were seized. The body of Sharda was sent for

postmortem. The Police visited the place of offence and carried out

Panchanama. The blood stained Chatai and scrapping were seized. The

blood stained clothes of the Complainant were also seized. The accused

was arrested. The accused whilst in Police custody volunteered to show

the place where the knife was concealed. The statement of the accused

was recorded as a memorandum which the two Panchas signed. The

accused led the Police and the Panchas to the spot i.e. Timber shop on the

Eastern Express Highway, Near Ramabai Colony and behind the Timber

shop he took out a knife from the gap and handed over the same to the

Police. The knife was packed, labeled, sealed and seized under the

Panchanama drawn in continuation of the memorandum earlier drawn at

BGP. 3 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

the Police Station. Both the Panchas signed it. The accused was sent to

the Police surgeon for sample of his blood and nail clippings. The articles

which were seized during the investigation were forwarded to the

Chemical Analyzer.

4 On the completion of the investigation, a charge-sheet was

filed in the Metropolitan Magistrate's 31st Court, Vikhroli and the case was

committed to the Sessions Court on 27.09.1991. The accused was

charged as under :-

"FIRSTLY :- That on or about 13th day of June 1991 at about 22.15 hrs. Opp. hut of Babu Chavan, Yashodhara Chawl Committee, Ramabai Colony, Ghatkopar (E), Bombay-75, you intentionally and/or knowingly caused death of Smt. Sharda Bapu Chavan & thereby committed offence of murder punishable U/S. 302 of IPC & within my cognizance.

SECONDLY :- That on the aforesaid date, time and place and in the course of same transaction you committed assault otherwise on grave provocation on Smt. Surekha Laxman Shevekar & thereby committed an offence punishable U/S. 352 of IPC & within my cognizance."

5 In support of its case the prosecution examined the following

witnesses.

"1) Bapu Dagdu Chavan (complainant) as PW-1

BGP. 4 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

2) Sanjay Shankar Hadwale as PW-2

3) Deepak Namdev Mane as PW-3

4) Dr. Dattu Pune Varade (C.M.O.) as PW-4

5) Shankar Bapu Renose (I.O.) as PW-5"

6 The accused did not examine any witness nor produced any

documents.

7 The prosecution also produced the following documents and

articles :-

"Documents

1) F.I.R. - Ex. 6

2) Memorandum part of the panchnama dt. 16.6.91 regarding recovery of knife - Ex.9

3) Panchnama part dt. 16.6.91 regarding recovery of knife-Ex.9-A.

4) Two labels with signatures of PW-3 pasted on the packet containing knife -Ex. 10 (colly)

5) Postmortem notes with ADR - Ex.12 (colly)

6) Inquest panchnama dt. 14.6.91 exhibited by consent u/s 294 Cr.P.C.-Ex14.

7) Place of occurrence panchnama dt. 14.6.91 exhibited u/s 294 Cr.P.C.-Ex.15

BGP. 5 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

8) Panchnama dt. 14.6.91 regarding seizure of clothes of the compltt. PW-1 exhibited u/s 294 Cr.P.C.-Ex-16

9) Copy of memo dt. 21.6.91 sending accused for sample of blood and nail clippings -Ex.17

10) Copy of the forwarding letter dt. 27.6.91 and two reports of the C.A. Both dated 7.8.91

Articles

1) A carton together with the seal -Art. 1

2) The biscuite colour pant and greed colour full shirt of the Comptt. - Art-2(colly)

3) The printed saree, the peticoat and the blouse of the decd. -Art. 3 (colly)

4) A chatai together with wrappers - Art, 4 (colly)

5) A knife - Art. 5

6) A bundle of wrappers at Art. 6

7) ('X' for identification) white half pant of the accd."

8 The Trial Court i.e. the Learned Additional Sessions Judge

framed the following issues :-

"1) Whether Smt. Sharda Bapu Chavan died homicidal death due to stab injuries ?

BGP. 6 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

2) Whether the accused stabbed Smt. Sharda Bapu Chavan with a knife being Art.5 ?

3) Whether the accused committed assault otherwise on grave provocation on Smt. Surekha Laxman Shevekar ?

4) What offence if any, is committed by the accused ?

5) What order ?"

9 In so far as the first two issues are concerned, the Trial Court

answered the said issues in the affirmative. In so far as the issue No.3 is

concerned, the Trial Court held the said issue as not proved and in so far

as the issue No.4 is concerned, the Trial Court held the accused guilty of

causing death of Sharda and hence punishable under Section 302 of the

IPC.

10 We have heard the Learned Counsel appearing for the

accused and the Learned APP for the State. We have with the assistance

of the Learned Counsel and the APP have gone through the evidence of

the witnesses produced by the prosecution. We have also taken note of

the documents and the articles which have been produced on behalf of

the prosecution and more especially the postmortem report. Having

regard to the charge that was framed against the accused the issue as

regards the cause of death of the deceased would have to be first taken

BGP. 7 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

into consideration which has been rightly done so by the Trial Court. In

so far as the cause of death is concerned, the evidence of Dr. Dattu Varde

(PW-4) who carried out the postmortem of the body of the deceased

Sharda assumes importance. It has come in the evidence of Dr. Dattu

Varde that on external examination he found the following injuries which

were anti-mortem. In so far as the internal examination is concerned, he

has deposed that the following injuries were found :-

"Stab wound coming from 4th and 5th I/C/S then permitrating into Lt. Middle Lobe of Lung through and through with Haemornorax and Lt. Side chest cavity with Lt. Lung collapse with Lt. Side mediastinal haemorrhage."

He has further stated that in his opinion the internal injury

corresponds to the external injury No.1 which was necessarily fatal and

that all the injuries were capable of being caused by a sharp cutting

instrument like a knife. The said witness was shown the knife which is

Article 5. On seeing the knife, he has stated that the external injuries as

well as internal injuries were capable of being caused by a knife like the

knife which is marked as Article 5. He has further deposed that the cause

of death according to him was the shock on account of the stab wound to

the lung followed with haemorhorax (unnatural). Through the evidence

of Dr. Dattu Varde the postmortem notes were marked as Exh.12 were

proved as having been prepared by him while conducting the

BGP. 8 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

postmortem. Since the homicidal death of Sharda is not disputed by the

defence, it would have to be held that the Sharda died of the stab injuries

which were suffered on account of the attack on her by the accused.

11 In the context of the issue as to whether the accused stabbed

the deceased Sharda with the knife i.e. Article 5 leading to her death, the

evidence led by the prosecution of the two witnesses i.e. Bapu Chavan

(PW-1) who is the complainant and husband of the deceased and the

evidence of Sanjay Shankar Hadwale who was the neighbour of the

deceased is relevant.

12 The Complainant i.e. Bapu Chavan (PW-1) has stated that on

13.06.1991 at around 10.00 p.m. he and his wife were sitting outside

their hut when the accused came there and started abusing in filthy

language. On being questioned as to why he was abusing them, the

accused started abusing all the more. It has further come in his evidence

that he sent his wife inside the room yet the accused continued abusing.

He himself thereafter went inside the room but the accused did not stop

abusing. Both of them then came out of the room but the accused was

still abusing. It has further come in his evidence that accused then went

to his hut which was nearby came back with a knife and stabbed his wife

Sharda on the left below the ribs and on her right side elbow. Upon this,

BGP. 9 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

Sharda fell down in a pool of blood. Sharda was taken to the room of one

Inamulla who was his neighbour and laid on a Chatai.

In his evidence Sanjay Hadwale (PW-2) has stated that on

13.06.1991 at around 10.15 p.m. he was in his hut and that the distance

between his hut and the hut of (PW-1) was around 10 to 12 feet. He

further deposed that on that day there was some quarrel between

deceased Sharda and the accused Parshuram Kamble, hearing which he

came out of his room and saw the accused going to his room and coming

back with a weapon and stabbing Sharda. The said Sanjay Hadwale (PW-

2) is the person who alongwith some other went for bringing an

autorikshaw. The said witness is the resident of the same locality. He has

in his evidence deposed that he is knowing the accused. There is no

allegation that there was any sort of quarrel or misunderstanding

between the said witness and the accused.

Similarly, there was no suggestion put to the (PW-1) that

there was any misunderstanding between the accused and the (PW-1) or

that something had cropped up because of their drinking. It has come in

the cross-examination of (PW-1) that the (PW-1) and the accused were

friends. A suggestion was put to the (PW-1) that Sharda dashed against

the iron sheet of her room and thus sustained injuries. A similar

BGP. 10 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

suggestion was also put to Dr. Dattu Varde but he opined that if one

dashed against an iron sheet, one will not suffer the injuries such as the

ones found on the person of the deceased. The attempt to falsify the

postmortem report also failed as the suggestion put to the (PW-1) that

prior to the incident he and his wife i.e. deceased had already taken their

meal was replied in the negative. It is required to be noted that the knife

Article 5 was recovered under Section 27 of the Evidence Act and

Panchanama to that effect was made vide Exh.9 and Exh.9A. The

evidence of one of the Panchas Deepak Namdeo Mane was led. There is

no allegation that the relations between the Pancha Deepak Namdeo

Mane and the accused were strained. Hence the evidence of the Panch

witness as rightly observed by the Trial Court appeared to be truthful. In

so far as the injuries sustained by the deceased are concerned, Dr. Dattu

Varde (PW-4) has stated that the external as well as the internal injuries

found on the person of the deceased were capable of being caused by the

knife i.e. Article 5.

13 In so far as the implication of the accused for the said crime

is concerned, there were no electric light in the area and residents were

using kerosene lamps, it is required to be noted that the Complainant

(PW-1) and the other eye witness Sanjay Hadwale (PW-2) and the

accused were residents of the same locality and were knowing each other

BGP. 11 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

hence the chances of mistaken identity have to be ruled out. It is also

required to be noted that the accused went on abusing for about 15

minutes. The distance between the (PW-1) and the accused at the time

when he stabbed his wife Sharda was only one feet. The nature of the

injuries as stated by the Complainant in the FIR also tally with the inquest

Panchanama Exh.14 and the Postmortem notes Exh.12 Colly. The Trial

Court i.e. the Learned Judge of the Sessions Court has not countenanced

the submission raised on behalf of the accused that the presence of the

Complainant i.e. the (PW-1) in the hospital from 10 p.m. on 13.06.1991

upto 7.00 p.m. of 14.06.1991 was peculiar. The Trial Court has observed

that the FIR was lodged at 00.10 hrs. of 14.06.1991. The Police thereafter

reached the hospital, conducted inquest, seized clothes of the deceased

and then went to the place of offence. To do all the aforesaid things must

have obviously taken time. The Trial Court has observed that the Learned

Counsel for the accused was not able to point out as to how either

affected the prosecution or the defence.

14 The Trial Court has also not countenanced the submission

raised on behalf of the accused that the place of offence, Panchanama

Exh.15 and the Panchanama Exh.16 i.e. seizing the clothes of the

Complainant Bapu Chavan (PW-1) in the presence of the (PW-1) is

improbable. The Trial Court has observed that Exh.15 shows that it

BGP. 12 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

commenced at 3.30 a.m. and completed at 4.30 a.m. and Exh.16 shows

that it commenced at 6.20 a.m. and completed at the same time. Hence

the Trial Court did not find any improbability in either of them. The Trial

Court also did not countenance the submission that the Complainant

Bapu Chavan was tutored by the Police which was admitted by him in the

cross-examination in the light of what the (PW-1) has stated towards the

end of his cross-examination. The Trial Court observed that if the incident

had taken place in June 1991 and the witness was giving evidence in

June 1995 and therefore if the witness had asked the police to read over

to him his complaint as and by way of refreshing his memory, there was

nothing wrong in it. The Trial Court also as indicated above has ruled out

the case of mistaken identity which was sought to be urged on behalf of

the accused on the ground that in the area there was no electricity and

the residents were using kerosene lamps and it was rainy season, the

chances of mistaken identity cannot be ruled out. The Trial Court also did

not find any contradiction in the evidence of the Sanjay Hadwale (PW-2).

The attempt of the defence to question the recovery of the weapon i.e.

knife has also proved futile. The recovery Panchanama Exh.9 is explicitly

clear. It speaks about the accused going behind the timber shop and

taking out the knife from the gap. In so far as the description of the knife

is concerned, the same is given in the Panchanama as well as by the

BGP. 13 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

Pancha witness Deepak Namdeo Mane (PW-3). The attempt of the

defence to pick holes in the prosecution on the basis of the time of death

has also failed. The Trial Court has referred to the note of postmortem

which is part of Exh.12 Colly which shows that the body of the deceased

was brought to the morgue at 4.00 a.m. on 14.06.1991. The Trial Court

has observed that taking time that may have been consumed in

completing the formalities. The Trial Court has observed that the death

may have taken place at around 10.30 or 11.00 p.m. on 13.06.1991. The

contention raised on behalf of the accused as regards the recovery

Panchanama which according to the Learned Counsel for the accused

before the Trial Court was drawn at the Police Station wherein knife

Article 5 was seized, the Trial Court has observed that the said contention

seems to have been raised with an attempt to mislead the Court as the

recovery Panchanama Exh.9A was drawn at the place of recovery and not

at the Police Station. The Trial Court has also rejected the contention

based on the fact that the person who arrested the accused has not been

examined and that the E.P.R. was not recorded by the Constable at

Rajawadi Hospital. The Trial Court has observed that the said contention

could not be sustained as no question put to the investigation officer

Renose when he was in the witness box. In so far as the second

contention about the E.P.R. is concerned, the Trial Court observed that it

BGP. 14 of 17

Reserved Jt. in Cri. Appeal-413-95.doc.

cannot be presumed that the Constable at the Rajawadi Hopsital has not

recorded the E.P.R. Pertinently, no question or suggestion was put by the

defence to the Investigation Officer Shri. Renose. Hence, taking into

consideration all the aforesaid facts, the Trial Court has held that it would

have to be held that it is the accused who has stabbed Sharda Bapu

Chavan with the knife Article 5.

15 Having regard to the fact that the accused was named in the

FIR, there was recovery of the knife Article 5 at his instance under

Section 27 of the Evidence Act, the events which are transpired prior to

the accused stabbing the deceased, namely he was abusing the (PW-1)

and his wife whilst they were sitting and chitchatting outside their hut

and the abuses of the accused continuing in spite of the fact that both the

(PW-1) and the deceased had gone back to their hut and came out after

sometime and the fact that accused went to his hut and returned back

with knife and stabbed Sharda i.e. deceased. Hence his act of going to his

hut and coming back with knife was deliberate act on the part of the

accused with an intention to cause harm to the deceased Sharda. The

prosecution has by leading evidence proved that the injuries caused by

the knife were cause for the death of the deceased.

16                It was sought to be urged on behalf of the accused was that 


BGP.                                                                                 15 of 17





 Reserved Jt. in Cri. Appeal-413-95.doc.

there was no previous enmity and that there was no motive which can be

ascribed for the accused stabbing the deceased. It was also sought to be

submitted that the instant case was covered by the part II of Section 304

of the IPC. The question that therefore arises is whether the offence

committed by the accused would fall within the ambit of part II of Section

304 of the IPC. In the said context it is required to be noted that the

accused and the deceased were neighbours, there is no motive alleged

against the accused, the act of the accused of going to his hut and coming

back with a knife and stabbing the deceased can be attributed to a fit of

rage of the accused. It cannot be said that the accused had any intention

to kill the deceased. In our view, therefore the instant case is covered by

part II of Section 304 of the IPC. Hence the conviction of the accused

under Section 302 of the IPC would have to be set aside and substituted

by the conviction under Section 304 part II of the IPC.

17 The accused is therefore convicted of the offence under

Section 304 part II of the IPC and is accordingly sentenced to 10 years of

imprisonment. The accused has already undergone imprisonment for a

period of 8 years. It is submitted at the Bar that the Appellant has in

effect undergone imprisonment for 10 years which includes remissions

and therefore he is sentenced to the period already undergone. He shall

be released forthwith, if not, required in any other offence.

BGP.                                                                                 16 of 17





 Reserved Jt. in Cri. Appeal-413-95.doc.

                                          ORDER 



           i)     Appeal is partly allowed. 



           ii)    Appellant   herein   is   acquitted   of   the   offence   under   Section 

                  302 of the IPC. 

iii) Appellant stands convicted for offence under Section 304 (II)

of the IPC and is sentenced to suffer 10 years of

imprisonment.

iv) Appellant is sentenced to the period of imprisonment already

undergone.

           v)     Sentence of fine is maintained. 



           vi) Appeal is accordingly disposed of.                     
                       



[SMT. SADHANA S. JADHAV, J]                                              [R.M.SAVANT, J]



                    




BGP.                                                                                  17 of 17