Sidhhu Gariba Verma vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 8318 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


                     CRIMINAL APPEAL NO. 466 OF 2016

 APPELLANT             : Siddhu Gariba Verma,
                         C-9373 detained in Central Prison, Nagpur.
                         Aged about 32 years, Occu. Labour,
                         R/o Pailani, Tah. Pailani,
                         District : Banda (U.P.)

                                              VERSUS

 RESPONDENT : State of Maharashtra,
              through Police Station Officer,
              Police Station, Khaparkheda,
              Nagpur.

  ----------------------------------------------------------------------------------------------
            Mr. R. M. Daruwala, Advocate appointed for the appellant.
            Mrs. S.S. Jachak, A.P.P. for the non-applicant State.
  ----------------------------------------------------------------------------------------------

                      CORAM : PRASANNA B. VARALE and
                               ARUN D. UPADHYE, JJ.

                      DATE     : NOVEMBER 01, 2017.



 ORAL JUDGMENT (Per Arun D. Upadhye, J.)


 1]                Being   aggrieved   by   the   judgment   and   order   dated

29.03.2016 passed by the learned Additional Sessions Judge-4,

Nagpur in Sessions Trial No.217/2015, the appellant is before this

Court by filing this appeal. The appellant is convicted for the

offences punishable under Section 302 and 324 of the Indian Penal

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Code. He is sentenced to undergo rigorous imprisonment for life and

to pay fine of Rs. 2000/-, in default to undergo simple imprisonment

for six months for offence under section 302 of IPC and rigorous

imprisonment for six months and to pay fine of Rs.1,000/-, in default

to undergo simple imprisonment for one month for the offence under

Section 324 of IPC. Both the sentences are directed to run

concurrently. Since, the accused is in jail from 20.2.2015 till the

date of judgment, set off has been given to him under Section 428 of

Cr.P.C. for the imprisonment already undergone.

2] The prosecution story in brief is as under :

Deceased Suryapal Faguni Suryawanshi was resident of

village Chankapur and was residing in joint family. Deceased

Suryapal was tailor by profession. His two sons were serving at

Chennai. His daughter is married and residing at Pailani, Dist.

Banda (State of Uttar Pradesh). Accused Siddhu Verma is resident of

village Pailani, District Banda (U.P.). He had been to Sillewada to

the house of his father-in-law Dagru Suryawanshi to attend marriage

on 12.02.2015. It is the case of the prosecution that due to some

incident at Sillewada in the marriage, the accused was in frightened

condition and therefore, came to the house of deceased Suryapal.

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 3]               On 16.2.2015,   there was an engagement ceremony of

the son of deceased Suryapal and in the night after engagement

ceremony, when all the family members were in the house and they

were about to sleep at about 11.15 p.m, at that time, according to

the prosecution, deceased Suryapal and other family members were

asking accused Siddhu to return to his village. However, he became

angry and picked up a scissor and assaulted Suryapal on abdomen.

Suryapal sustained bleeding injury. Rohit Suryawanshi and Rajesh

Suryawanshi, nephew of deceased, tried to intervene, but accused

Siddhu assaulted them on their hand by scissor. Suryapal was taken

to the hospital of Dr. Pawar at Khaparkhede and thereafter, he was

referred to Kunal Hospital at Nagpur and in the morning while

taking treatment, Suryapal succumbed to the injuries.

4] Thereafter, informant Anil Ramkumar Suryawanshi,

nephew of deceased Suryapal, lodged report at Police Station,

Khaparkheda on 17.2.2015. On the basis of said report/complaint,

offence was registered against accused Siddhu. The investigating

agency was set in motion and during the course of investigation spot

panchanama and inquest panchanam were prepared. The agency

also seized blood stained scissor, blood mixed soil from the wall and

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house and simple soil in presence of panchas by preparing

panchanamas. The dead body of deceased Surpayal was referred for

post mortem. During the course of investigation, accused Siddhu

was arrested and his blood stained clothes were seized. Police also

seized blood stained clothes of injurred Rajesh Suryawanshi and

Rohit Suryawanshi under the panchanamas. The blood samples of

injured Rajsh and Rohit so also the accused were taken and seizure

memo were prepared. Blood stained clothes of deceased were seized

from Arvind Surwanshi under the seizure panchama. Police referred

the scissor for query report. The injury certificate of injured Rohit

and Rajesh Surwanshi were collected. Seized muddemal was sent to

the Chemical Analyzer. During the course of investigation, police

recorded the statements of witnesses. After completing necessary

formalities of investigation, the agency filed the charge-sheet before

the learned Judicial Magistrate, First Class, Saoner. Since, the

offence punishable under Section 302 is exclusively triable by the

Court of Sessions, the learned Magistrate has committed the case to

the Court of Sessions, Nagpur.

5] The accused appeared in the trial. A charge was framed

against him for the offences punishable under Sections 302 and 324

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of the Indian Penal Code and read over and explained to him in

vernacular. He pleaded not guilty for the same and claimed to be

tried. The learned Sessions Judge has recorded evidence in the case

by examining as many as 10 witnesses. Statement of accused under

Section 313 of Cr.P.C. came to be recorded at Exh.115. In the

statement, the accused admitted that daughter of deceased Surpayal

namely Rajani is married at village Pailani, District Banda, (U.P.) and

he is also resident of said village and he had been to Sillewada on

12.2.2015 to attend marriage, however, he denied all the

incriminating circumstances referred to him in the statement. His

defence is nothing, but of total denial.

6] After hearing both the sides, the learned Sessions Judge

by his judgment and order, dated 29.3.2016, convicted and

sentenced accused Siddhu as aforesaid. Feeling aggrieved by the

said judgment and order, the accused is before this Court by way of

present appeal.

7] We have heard Shri R.M. Daruwala, learned counsel

appointed for the appellant and Mrs. Jachak, the learned Additional

Public Prosecutor for the State at length.

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 8]               Mr.   Daruwala,   learned   counsel   for   the   appellant   has

made the only submission that the offence under Section 302 is not

made out by the prosecution. According to him, at the most an

offence punishable under Section 304 Part I of the Indian Penal Code

is made out against the accused. He vehemently submitted that

there was no enmity of the accused with the deceased. There was no

pre-meditation or pre-determination to commit the crime on the part

of accused. He submitted that there is one stroke of scissor given in

the heat of passion. The learned counsel, therefore, submitted that

the accused be given benefit of proviso 4 of Section 300 of the Indian

Penal Code and to alter the sentence passed under Section 302 into

Section 304 Part I of Indian Penal Code and minimum sentence may

be awarded.

9] Mrs. Jachak, the learned Additional Public Prosecutor

for the State strongly objected the submissions put forth on behalf of

the accused. She has submitted that weapon Scissor is sharp one

used by the accused on vital part of the body i.e. abdomen. She

further submitted that there was an intention to commit murder of

the deceased. In this case, two injured witnesses are also examined

by the prosecution. They also sustained injuries of scissor and

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therefore, no benefit of exception 4 of Section 300 of IPC could be

extended to the accused. She submitted that the learned Sessions

Judge has rightly convicted and sentenced the accused for the

offences punishable under sections 302 and 324 of the Indian Penal

Code. The learned APP, therefore, prayed for dismissal of the

appeal.

10] Considering the submissions of both the sides, with the

help of learned counsel for the parties, we have perused the evidence

on record. So far as homicidal death of deceased Suryapal is

concerned, the accused has not disputed the same. The post mortem

report (Exh.100) is admitted by the accused. Therefore, the

prosecution has not examined the doctor, who performed the

autopsy. As per the post mortem report (Exh.100), the injuries

mentioned in column 17 of autopsy report are as under :

1] Sutured wound present over abdomen in midline extending from epigasture region to public region of length 26 cm with 34 stitches in situ. As per wound present over umbilicus of size 04 cm which is extended as laporotomy wound for repair of damage of intestine and mesentry. On opening stitches wound is cavity deep. Stitched wound over transverse colon and over jejunum 1"

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distal ducodeno jejunual layer.

2] Therapautic drainage would present over left lumbar region of abdomen of size 01 x 0.5 cm2.

3] Theropautic drainage wound present over right lumber region of abdomen of size 01 x 0.5 cm2

Further in column no.21 of autopsy report

(Exh.100) following internal injuries were noticed :-

Small intestine and its contents - sutured wound present over jejunum with 18 stitches in situ on opening stitches rent of size 4 cm present. Sutured wound present over transverse colon with 5 stitches in situ on opening stitches rent of size 3.5 cm present. Multiple sutured wound present over posterior mesentry.

Further the cause of death is "Haemorrhage and shock due to stab injury to intestines."

11] Moreover, the inquest panchanama (Exh.33) is on

record. It shows that dead body of Suryapal had injury of size 4 x 3

cm on his abdomen and said injury was sutured. In this case, the

prosecution has examined two injured witnesses namely Rohit

Suryawanshi (PW-3) and Rajesh Suryawanshi (PW-4) and they

categorically deposed the injuries sustained by the deceased on

abdomen. The evidence on record clearly suggest that death of

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deceased Suryapal was homicidal. The learned Sessions Judge was

right in arriving at conclusion that the prosecution has successfully

established the death of deceased as homicidal death.

12] Informant Anil Ramkumar Suryawanshi is nephew of

deceased Suryapal, who lodged the report (Exh.29). Printed FIR is

at Exh.30. The prosecution has examined P.W.8 HC Ashok Shukla at

Exh.106, who registered the complaint. He deposed that on

16.2.2015 at 9.00 p.m. to 17.2.2015 till 9.00 a.m., he was on Station

Diary duty at Police Station, Khaparkheda. Complainant Anil came

to police station at 23.15 hours and lodged the complaint. He

registered the offence. This witness has proved Exh.29 and 30. In

the cross-examination, it was suggested to him that he has not

recorded the complaint as per the say of the complainant, to which

he denied.

13] the prosecution has strongly relied upon the evidence of

injured witnesses P.W.3 Rohit Suryawanshi (Exh.42) and P.W.4

Rajesh Suryawanshi (Exh.47). P.W.3 Rohit deposed that the

deceased was residing in joint family and was doing the work of

tailoring. He also deposed that daughter of deceased namely Rajani

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is married and residing at Pailani (U.P.). He further deposed that

accused Siddhu is also resident of Pailani. He further deposed that

accused Siddhu came to Sillewada to attend the marriage and due to

quarrel in marriage at Sillewada, the accused came to Chankapur on

15.2.2015. It has come on record that on 16.2.2015, there was

engagement of son of Suryapal and after engagement ceremony at

about 11 p.m., deceased as well as family members told Siddhu to

return to his village Pailani. He became angry and picked up scissor

and assaulted the deceased on his stomach. He further deposed that

he was present there along with Rajesh. They tried to catch hold the

accused, but he assaulted to him and Rajesh by scissor. He sustained

injury of scissor on left hand and Rajesh sustained injury of scissor on

right hand. Thereafter, they took Siddhu outside and people from

mohalla were gathered. He deposed that deceased was firstly taken

to the hospital of Dr. Pawar at Khaparkheda and thereafter, referred

to Kunal Hospital, Nagpur. He identified his shirt as well as article

scissor. He was cross-examined at length by the accused. In his

cross-examination, it was suggested to this witness that he did not

sustain injury on left hand by scissor and also rajesh did not sustain

injury on right hand, to which he denied. In the cross-examination,

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he stated that there were two scissors. One of mine and one of

deceased and both the seizures were kept in the hall. It was

suggested to him that the deceased did not tell to the accused to

return to his village and accused has not assaulted him by scissor due

to anger, however, he denied the same. It was also suggested to

him that when he was carrying deceased to the hospital, his night

pant was blood stained, but he denied the same.

14] Considering the evidence of P.W.3 Rohit Suryawanshi,

his presence is not doubted. This witness is the family member of

the deceased and considering the fact that there was engagement of

son of the deceased, presence of this witness is established by the

prosecution. Moreover, he is a injured witness. The incriminating

circumstances put to the accused in the statement under Section 313

of Cr.P.C. are not answered by the accused. Further, the evidence of

this witness is corroborated by P.W.4 Rajesh Suryawansi.

15] Evidence of P.W.4 Rajesh Suryawanshi is similar to the

evidence of P.W.3 Rohit Suryawanshi. He is also an injured witness.

In the cross-examination, nothing is brought on record to disbelieve

him. The only suggestion put to him was that deceased Suryapal

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being elder brother of his father, is deposing falsely, however, he

denied the same.

16] PW-3 Rohit Suryawanshi and PW-4 Rajesh Suryawanshi

are the injured witnesses. The injury certificate of PW-4 Rajesh is at

Exh.60. Dr. Shishir Shrivastava is examined by the prosecution at

Exh.55, who has proved the injury certificate. According to this

witness, patient Rajesh had sustained injuries over right palm of size

3 x 1 x 1 cm and Dr. Singh provided treatment to him. This witness

also gave opinion of weapon to the query made by the police vide

Exh.62. He opined the kind of weapon scissor i.e. 24 cm in length

out of which brass handle was 13 cm and sharp end of iron scissor is

11 cm and width of handle is about 8.5 c.m. The witness also stated

that middle portion is of about 2.2 cm and front sharp end is of

about ½ cm. In the cross-examination, this witness has stated that

he is controlling the entire hospital. It was suggested to him that the

scissor was not brought before him and he had issued false report on

the say of subordinate, however, he denied the same.

17] Considering the evidence of both the injured witnesses

together with Dr. Shrivastava, who issued the injury certificate and

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examined the weapon, the prosecution has established that the

accused was the person, who assaulted the deceased by means of

weapon scissor and caused bleeding injury.

18] P.W.1 Anil Suryawanshi, examined by the prosecution is

the witness who had lodged the report. He is nephew of the

deceased. He deposed that he resides in a joint family with his

father, elder brother of his father, Rajesh, Rohit and ladies etc. in one

house at Chankapur. He was present at his home at the relevant

time. He saw injured Suryapal as well as accused and two eye-

witnesses Rohit and Rajesh. P.W.6 Arvind Suryawanshi is the son of

deceased. He also came on the spot when Anil knocked his door

loudly and told about the incident that Siddhu assaulted to his father

by scissor and come soon. He immediately went to the spot and seen

his father sustained bleeding injury on abdomen and blood was

oozing. He also deposed that his father told him that the accused

assaulted him by means of scissor on abdomen and when Rajesh and

Rohit intervened, accused also assaulted to them. No doubt, the

accused has suggested that the deceased has not stated anything to

him about the assault, but he denied. The prosecution also not much

relied upon the oral dying declaration made before this witness.

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Nevertheless he has seen the accused on the spot and injured father.

Testimony of this witness is supporting the prosecution theory.

19] The prosecution has also relied upon circumstantial

evidence. P.W.2 Shambhau Verma, panch witness is examined by

the prosecution at Exh.31. He has proved the seizure memo of blood

stained shirt of Rajesh Suryawanshi (Exh.34) and blood stained pant

of Rohit Suryawanshi vide seizure memo (Exh.35). He has also

proved seizure of white full pant, one golden kurta and grey nicker

of deceased Suryapal vide seizure memo (Exh.37). He deposed that

the police had seized cream colour shirt and white pant from

Ramkumar Suryawanshi vide seizure memo (Exh.38) and also blood

sample of Rohit and Rajesh Suryawanshi vide Exhs.40 and 41. He

further deposed that police had seized blood stained shirt, full pant,

sandow banian and sweater from accused Siddhu under seizure

memo Exh.36. He deposed that police also seized blood sample of

the accused under seizure memo Exh.39. This witness was cross-

examined at length, but nothing is brought on record to disbelieve

him. It was suggested to him that police did not prepare the

panchanamas in his presence and only obtained his signatures on it,

to which he denied.

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 20]              The prosecution has also relied upon the CA report at

Exhs.20 to 25 and at Exh.105. From perusal of CA reports, it appears

that except exhibits 1, 3 and 5, all the articles were having

considerable number of blood stains on it. The blood found on it is

of human. This circumstance is certainly incriminating against the

accused. Moreover, these circumstances were put to the accused in

the statement under Section 313, however, he has not explained the

same. The accused is bound to explain at least the blood stains

found on his clothes. Deceased Suryapal and eye-witnesses P.W.3

Rohit and P.W.4 Rajesh had also sustained the injuries and therefore,

their clothes were blood stained.

21] The prosecution has examined P.W.5 Mohd. Arif Wahid

Hassan at Exh.48. He has proved the spot panchanama Exh.50. He

deposed that scissor was found on the spot and was seized vide

seizure panchama Exh.51. Though, the prosecution came with a

case that as per disclosure statement made by the accused vide

Exh.52 the accused shown the spot and thereafter spot panchanama

Exh.53 was made, it is to be noted that already spot panchanama

was prepared vide Exh.50 and scissors were seized vide Exh.51,

therefore, not much importance is attached to the disclosure

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statement by the accused Exh.52 and subsequent spot panchanama

Exh.53.

22] The prosecution has relied on evidence of P.W.9 Rahul

Singpure (Exh.107). As per the version of this witness, he heard

shout from the house of Arvind and therefore, he went there. He

saw Suryapal in injured condition and accused Siddhu was there.

His evidence is not much helpful to the prosecution. However, he

reached the spot immediately and supports the prosecution theory.

23] PW-10 Suchita Deshmukh, PSI, Khaparkheda, examined

by the prosecution at Exh.109, is the Investigating officer. Her

evidence discloses that she has investigated the case. In her

evidence, it has come on record that PI Tede drawn spot

panchanama Exh.50 and seized the articles found on the spot vide

Exh.51. According to her, she prepared the inquest panchanama

(Exh.33) and seized the blood sample of witness Rohit and Rajesh

vide Exhs.40 and 41, respectively. She further deposed that she

seized the clothes of injured witnesses, accused and deceased vide

seizure pachanamas. The seized muddemal was referred for

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analysis. She recorded the statements of the witnesses and after

completion of the investigation, filed charge-sheet. She was cross-

examined by the accused. It was suggested to her that she has not

recorded the statements of the witnesses as per their say and the

matter is not investigated properly and filed false charge-sheet, to

which she denied.

24] Considering the oral as well as documentary evidence on

record, particularly version of eye-witnesses, we are of the opinion

that the prosecution has established the guilt of accused beyond any

reasonable doubt. The learned Sessions Judge has rightly hold the

accused guilty for the offences charged.

25] The only submission put forth on behalf of the learned

counsel for the appellant is that offence punishable under Section

302 of IPC is not made out and at the most, offence under Section

304 Part I is made out by the prosecution against the accused. The

learned Additional Public Prosecutor has strongly objected the

submission put forth by the learned counsel for the appellant.

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 26]              We   have   considered   the   evidence   on   record   carefully

and inclined to accept the submission put forth on behalf of the

appellant. There is no evidence on record to show that the appellant

had any pre-determined motive or enmity to commit offence like

murder. There is no evidence on record to show that there was pre-

meditation in commission of crime. The accused is not related to the

deceased. The evidence on record clearly shows that he is resident of

village Pailani, District Banda (U.P.), where the daughter of deceased

is given in marriage and residing there. It has come on record that

accused came to Sillewada for marriage purpose and due to some

quarrel or incident in the marriage, he was in frightened condition

and came to the house of the deceased and resided there. It has

come on record that on the day of the incident, there was

engagement ceremony in the house of the deceased and at night time

at about 11.15 pm., the incident took place. According to the

prosecution, deceased Suryapal as well as family members were

asking the accused Siddhu to go to his village. The accused when

got annoyed and took the scissor and assaulted to deceased Suryapal.

There is only one blow given by him to deceased Suryapal. These

circumstances clearly indicate that the accused had not acted pre -

determined and assaulted to the deceased.

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 27]              Considering   the   above   facts   and   circumstances   of   the

case, we are of the considered view that the offence is of culpable

homicide not amounting to murder as specified in Exception 4 to

Section 300 of the Indian Penal Code and hence, punishable under

Section 304 Part I of IPC and not under Section 302 of IPC.

28] In support of his submission, the learned counsel for the

appellant has relied upon the judgment of this Court in Criminal

Appeal No. 267 of 2015 (Laxman Akaram Ingole .vs. State of

Maharashtra), decided on 31.1.2017 and submitted that this Court in

the similar circumstances, has altered the sentence awarded under

section 302 of IPC and the appellant/ accused to one under Section

304 Part I and was sentenced to undergo rigorous imprisonment for

seven years. The learned counsel also submitted that in the said case

several blows of sickle were given by the accused to the deceased.

29] We have perused the judgment and order in Criminal

Appeal No. 267 of 2015. In the facts and circumstances of the case

at hand, we are of the view that said judgment is squarely applicable

to the present case. We are inclined to give benefit of Exception 4 to

Section 300 of the IPC to the appellant/accused by altering

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conviction from under Section 302 of IPC into one under Section 304

Part I of IPC and by altering sentence from rigorous imprisonment

for life to rigorous imprisonment for seven years.

30] In the result, the Criminal Appeal is partly allowed"

The conviction and sentence awarded to the appellant

for the offence punishable under Section 302 of the Indian Penal

Code are set aside and altered to one under Part I of Section 304 of

the Indian Penal Code. The appellant is sentenced to undergo

rigorous imprisonment for a period of seven years for the said

offence.

Rest of the order including conviction and sentence for

the offence punishable under Section 324 of the Indian Penal Code,

payment of fine, etc. is maintained.

Fees payable to the learned Counsel, who was appointed to

appear on behalf of the appellant, are quantified at Rs.5,000/-

(Rupees Five thousand only).

The criminal appeal is disposed of in the aforesaid terms.

                          JUDGE                            JUDGE

 Diwale