Bombay High Court
Smt.Tahnibai Bajirao Khangar vs State Of ... on 11 September, 2017
Bench: Swapna Joshi
1 Judg 110917 apeal 43.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.43 of 2003
Smt. Tahnibai Bajirao Khangar
Aged about 45 years, Occ.- Labour,
R/o-Satefal P.S. Talegaon Dasasar,
District Amravati ( M.S.) .... Appellant.
-Versus-
The State of Maharashtra,
through PSO Talegaon Dasasar, District Amravati. .... Respondent.
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Mrs. Mrinal Hiwase, Counsel (appointed) for appellant.
Mr. N.H. Joshi, Additional Public Prosecutor for State.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 11
September, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellant (hereinafter
will be referred as 'the accused') against the judgment and order passed
by the learned 2nd Additional Sessions Judge, Amravati in Sessions Trial
No.207 of 1997 delivered on 13-12-2002, thereby the learned trial Judge
had convicted the accused for the offence punishable under Section 307
of the Indian Penal Code and was sentenced to suffer rigorous
imprisonment for three years and to pay a fine of Rs.1000/-, in default, to
suffer rigorous imprisonment for three months.
2 Judg 110917 apeal 43.03.odt
2] I have heard Mrs. Mrinal Hiwase, the learned Counsel
(appointed) for the appellant and Mr. N.H. Joshi, the learned Additional
Public Prosecutor for the State. I have carefully gone through the record
of the prosecution case.
3] The facts leading to prefer this appeal can be summarised as
under :-
Complainant Kisnibai w/o Rajaram Shende (PW-1) is the
resident of Satefal, Taluka Chandur Bazar, District Amravati. On
04-04-1991 at 11.00 am, complainant Kisnibai and the accused together
started for Dangar (Musk-melon) at Chandrabhaga river. When they
were going towards Wadi from the well in the field of Daulatrao Pawar, the
accused said that she was feeling thirsty. She asked the complainant to
fetch water from the well. The complainant and the accused kept the iron
containers (Tople) carrying with them on the well. Accordingly, PW-1
started drawing water from the well with the help of tin. Immediately, at
that point of time, the accused pushed PW-1 into the well. With the result,
PW-1 fell down in the well. After falling in the well, PW-1 sank in the
water twice then she caught hold the pipe in the well and started
screaming loudly. It is the case of the prosecution that, the accused
started pelting stones on PW-1. PW-1 asked the accused as to why she
pushed her into the well. On this the accused said that, PW-1 had illicit
relations with her husband (husband of accused) and that she would kill
her. Thereafter, Shriram Rathod (PW-3) who was working as a Watchman,
caught hold of her and asked PW-1 to come out of the well. It is the case
3 Judg 110917 apeal 43.03.odt
of the prosecution that, 8 days prior to the incident, PW-1 had returned
home from he work, with the husband of the accused as it was night time.
Since then the accused used to suspect PW-1 that she had illicit relations
with her husband. When PW-1 was trying to come out of the well,
Shriram (PW-3) caught hold of her hands and helped her for coming out
of the well. After the said incident, PW-1 proceeded to Wadi and narrated
the incident to her husband. Thereafter, PW-1 along with her husband
proceeded to the Police Station and lodged the complaint against the
accused (Exhibit-17).
4] At the relevant time, Head Constable S.M. Narsude was
attached to Police Station Talegaon. He recorded the complaint of the
complainant. On the basis of the said complaint, he registered the offence
vide Crime No.54 of 1991. API -Prabhu Marbate (PW-4) visited the place
of incident and recorded the spot panchanama. He also recorded the
statement of the witnesses. After completion of investigation, he
submitted the charge sheet in the Court of JMFC. The learned JMFC
committed the case to the Court of Sessions. The learned trial Judge
framed the charge and on conducting the evidence and hearing both the
sides, the learned trial Judge convicted the accused as aforesaid. The
defence of the accused was of total denial and that it was accidental fall
of PW-1 in the well. Hence, this appeal.
5] Mrs. Mrinal Hiwase, the learned Counsel (appointed) for the
appellant vehemently argued that, the case set up by the prosecution is
false and fabricated as the facts brought forward by the prosecution lead
4 Judg 110917 apeal 43.03.odt
to the inference that there was no involvement of the accused whatsoever.
The learned Counsel for the appellant submitted that since the spot
panchanama indicates that there was no parapet wall to the well, it
clearly indicates that, it was an accidental death.
6] Mr. N.H. Joshi, learned APP vociferously canvassed that the
learned trial Judge has rightly convicted the accused by considering the
testimony of the victim, who lodged the First Information Report promptly
as well as the eye witnesses.
7] After hearing both the sides, on anxious consideration to the
facts and circumstances of the case, the arguments advanced by the
learned Counsel (appointed) for the appellant and the learned APP, the
judgment delivered by the learned trial Judge and the evidence on record,
for the reason stated below, I am of the opinion that, the accused is
involved in the crime.
8] The prosecution has heavily relied upon the testimony of
Kisnabai (PW-1) who is the victim of alleged assault. PW-1 along with
the accused were proceeding towards the field. When they reached near
the well of Daulatrao, the accused said that she wants to drink water.
The well was not constructed as such. According to PW-1, when she
was pulling rope from the well, the accused pushed her and therefore she
fell down. She caught hold the water pipe which was connected with the
motor pump installed in the well. PW-1 categorically stated that, when
she was in the well, the accused threw stones on her. At that time, one
Shriram Rathod (PW-3) was working as a watchman in the said field.
5 Judg 110917 apeal 43.03.odt
He caught hold PW-1 and asked her to come out of the well. PW-1
stated that she came out of the well with the help of the iron bar which
was inside the well. Thereafter, she lodged the complaint in the Police
Station (Exhibit-17). During the cross examination, a discrepancy was
pointed out to PW-1, that 8 days prior to the incident, she had returned
home, along with the husband of the accused, as it was dark. When the
said suggestion was given to PW-1, she denied & the said portion was
marked as 'A' for identification. PW-1 denied that on the same day there
was a quarrel with the accused and therefore she has falsely implicated
the accused in the present case. It was also suggested to PW-1 that
while she was fetching water from the well, she lost her balance and fell
down in the well. PW-1 denied the said suggestion and nothing fruitful
could be elicited in the testimony of PW-1.
9] In the cross examination it was suggested that PW-1 has
falsely implicated the accused in the present case. She denied the said
suggestion. As per the prosecution case, PW-1 and the accused were
friends and it appears that they used to proceed to the field for working
there together and as 8 days prior to the incident, PW-1 returned home
with two hours of PW-1, it appears that as the accused suspected that her
husband and PW-1 had some sort of relationship, therefore, it appears
that the accused had pushed PW-1 into the well. Significantly, the
testimony of PW-1 is in consonance with her complaint (Exhibit-17) which
was lodged promptly on the same day.
6 Judg 110917 apeal 43.03.odt
10] The testimony of PW-1 lends corroboration from the
testimony of Shriram (PW-3) who was an eye witness to the incident.
Shriram (PW-3) who was the watchman of the field of Krishnarao Pawar,
where the well is situated, deposed that on the date of incident at about
12.00 o'clock in the noon, he was sitting under a tree in the field of
Krishnarao. He specified the distance between the place where he was
sitting and the well about 10 ft. According to PW-3, two ladies came
near the well. The accused asked another lady to fetch water from the
well. Thereafter, that lady started fetching the water from the well with the
help of one tin box and suddenly the lady who was behind, pushed her
from her backside in the well and thereafter the lady started pelting
stones towards the lady who fell into that well. PW-3 stated that he asked
the accused not to throw stones in the well but she did not listen to him.
He asked the lady who was in the well, to come out of the well with the
help of the bar which was in the well. Accordingly, PW-1 came out of
the well with the help of the bar.
11] PW-3 denied in the cross examination that, as at the time of
incident, he was inside the hut, he had not seen the incident and he came
to the place of incident after hearing the shouts. It is not the case of PW-1
that she shouted and therefore PW-3 came to the place of incident. PW-3,
however, admitted that after the incident both the ladies started
proceeding towards the field. It must be because PW-1 has stated in her
evidence that she proceeded to the field to inform the incident to her
husband.
7 Judg 110917 apeal 43.03.odt
12] The testimony of PW-1 and PW-3 are supported by the
medical evidence. Dr. Ruprao (PW-5) the Medical Officer has examined
the patient on 04-04-1991. The patient was complaining about chest and
stomach muscular pain. He noticed tenderness on abdomen and chest.
According to PW-5, it was caused due to hard and blunt object and such
type of tenderness can be caused if such type body came into contact
with the hard and blunt object. PW-5 issued medical certificate of the
victim (Exhibit-36). It is significant to note that, the Medical Officer has not
specifically stated whether the injuries were simple or grievous in nature.
He did not opine that the injuries were sufficient to cause death. However,
PW-5 in unequivocally stated that due to the tenderness on abdomen &
chest, if any complication arises, there can be obsession to the intestine,
The said opinion expressed by PW-5, shows the nature of the injury. The
injury to the chest and abdomen supports the testimony of PW-1 that she
was pushed from behind and did not accidentally fell in the well.
13] The spot panchanama (Exhibit 27) indicates that the well
was 50 ft. deep and the water level was at a distance of 31 ft. from the
mouth of well and was 19 ft deep water in the well.
14] On considering the entire evidence on record, it appears
that the accused had intention to cause death of the victim as the accused
suspected illicit relations of her and husband of PW-1, the accused has
pushed the victim in the well. However, somehow the victim managed to
save herself by catching the iron pipe and with the help of said iron pipe,
she managed to come out of the well. It is worthwhile to note that the
8 Judg 110917 apeal 43.03.odt
presence of accused at the place of incident has not been shattered in
the cross examination. The testimony of PW-3 corroborates with the
testimony of PW-1 on all material aspects. PW-1 has categorically stated
that the accused had pushed her in the well from her backside and
therefore she fell down in the well. Fortunately PW-1 could save herself
as she came in contact with iron bar which was connected with the motor
which was inside the well and with the assistance of that iron bar she
could manage herself to come out of the well. The testimony of PW-3
clearly demonstrates that PW-3 had asked the accused as to why she
was pelting stones inside the well. The said fact makes amply clear that
the accused thought that in any case the victim should not come out of
the well, therefore, this was the reason for pelting stones on the person of
PW-1 in the well. It shows that the accused had clear intention to kill the
victim. It is significant to note that, if the intention is present, the overt act
of such intention is exhibited and then the offence under Section 307 of
the IPC is clearly made out. In such type of offence the bodily injury is
not necessary. The intention of the offender can also be logically deduced
from the other circumstances.
15] In case of Baleshwar Mahto and another v. State of Bihar
and another, reported in (2017) 3 SCC 152. The Hon'ble apex Court in
Clause 30 of paragraph 12 has held as under :-
"12. .......
30. The law on the point can be summarised to
the effect that the testimony of the injured witness
is accorded a special status in law. This is as a
9 Judg 110917 apeal 43.03.odt
consequence of the fact that the injury to the
witness is an inbuilt guarantee of his presence at
the scene of the crime and because the witness
will not want to let his actual assailant go
unpunished merely to falsely implicate a third party
for the commission of the offence. Thus, the
deposition of the injured witness should be relied
upon unless there are strong grounds for rejection
of his evidence on the basis of major
contradictions and discrepancies therein."
16] The testimony of PW-1 and PW-3 has clearly established
that as the accused suspected illicit relations between her husband and
PW-1, she had motive to kill PW-1 and therefore when she got opportunity
in the field, near the well, she pushed PW-1 into the well considering that
no one would come to the isolated place to save PW-1. It is pertinent to
note that injuries sufficient to cause death is not requirement to attract the
offence under Section 307 of IPC.
17] The Hon'ble apex Court in case of State of Maharashtra v
Balram Patil, reported in 1983 Cr.L.J. 331, it is observed that :-
"9..... To justify a conviction u/s 307 it is not
essential that bodily injury capable of causing death
should have been inflicted. Although the nature of injury
actually caused may often give considerable assistance
in coming to a finding as to the intention of the accused,
such intention may also be deduced from other
circumstances, and may even, in some case, be
ascertained without any reference at all to actual
wounds. The section makes a distinction between an
act of the accused and its result, if any. Such an act
may not be attended by any result so far as the person
assaulted is concerned, but still there may be the case
10 Judg 110917 apeal 43.03.odt
in which the culprit would be liable under this section. It
is not necessary that the injury actually caused to the
victim of the assault should be sufficient under ordinary
circumstances to cause the death of the person
assaulted. What the Court has to see is whether the
act, irrespective of its result, was done with the intention
or knowledge and under circumstances mentioned in
this Section. An attempt in order to be criminal need not
be the penultimate act. It is sufficient in law, if there is
present an intent coupled with some overt act in
execution thereof."
18] In my opinion, the learned trial Judge had properly
appreciated the facts brought on record by the prosecution. In view of
the fact that, the learned trial Judge has rightly appreciated the evidence
brought on record and rightly passed the order, consequently, the appeal
fails and it is liable to be dismissed. In view of the facts and
circumstances, the following order is passed:-
O r d e r
(a) Criminal Appeal No.43 of 2003 is dismissed.
(b) The judgment and order dated 13-12-2002 delivered
nd
by learned 2 Additional Sessions Judge,
Amravati in Sessions Case No.207 of 1997 stands
confirmed.
(c) The judgment and order passed by the learned 2nd
Additional Sessions Judge, Amravati in Sessions Trial
No.207 of 1997 delivered on 13-12-2002, thereby
convicting the accused for the offence punishable
11 Judg 110917 apeal 43.03.odt
under Section 307 of the Indian Penal Code and was
sentenced to suffer rigorous imprisonment for three
years and to pay a fine of Rs.1000/-, in default, to
suffer rigorous imprisonment for three months, is
maintained.
(d) The appellant/accused is on bail. Her bail bond
stands cancelled. She be directed to surrender
nd
before the learned 2 Additional Sessions Judge,
Amravati to undergo the remaining period of
sentence. If she he does not surrender within a
period of four weeks from today, the learned trial
Court is directed to take appropriate action in
accordance with law.
(e) Muddemal property be dealt with as directed by
trial Court after the appeal period is over.
(f) Fees of learned Counsel (appointed) for the appellant shall be
quantified at Rs. 5000/-.
JUDGE
Deshmukh
