Gajanan Dadarao Chavan (In Jail) vs State Of Maharashtra Thr. P.S.O. ...
2018 Latest Caselaw 529 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                         CRIMINAL APPEAL NO.69 OF 2017



  Gajanan Dadarao Chavan,
  Aged about 38 years, Occ.
  Labour, r/o. Village Palso-Badhe,
  Tq. and Distt. Akola.                   ..........      APPELLANT



          // VERSUS //



  State of Maharashtra,
  Through P.S.O., Police Station,
  Borgaonmanju, District
  Akola.                                    ..........       RESPONDENT


  ____________________________________________________________  
               Mr.A.M.Jaltare, Advocate for the Appellant.
              Ms T.H.Udeshi, A.P.P. for the Respondent/State.
  ____________________________________________________________




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                                 ***********
  Date of reserving the Judgment                            :  9.1.2018.
  Date of pronouncement of the Judgment                     :  17.1.2018.
                                 ***********



                                              CORAM     :  R.K.DESHPANDE 
                                                                   AND
                                                                   M.G.GIRATKAR, JJ.



  JUDGMENT  (Per M.G.Giratkar, J)   :

1. Appellant has assailed the Judgment of conviction

awarded by Sessions Judge, Akola in Sessions Trial No.15 of 2014 for

the offence punishable under Section 302 of the Indian Penal Code,

by which he is sentenced to suffer rigorous imprisonment for life and

to pay a fine of Rs.1,000/-, in default to suffer rigorous

imprisonment for six months.

2. The case of prosecution against the appellant, in short, is

as under :

The appellant was married with deceased Asha 15 years

prior to the date of incident. Deceased delivered two female children

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from the appellant. Appellant was always beating and ill-treating her.

On the day of incident i.e. on 24.10.2013, at about 7.00 p.m.,

appellant quarreled with his deceased wife Asha. He beat her and

pulled her in the courtyard. She was unconscious. Brother of

appellant namely Santosh informed Police Patil. He took her to

Government Hospital, Akola. She was admitted in the hospital. She

was given medical treatment. On 1.11.2013, she died.

3. Father of deceased namely Vitthal Mansing Solanke

(PW-1) came to know about admission of his daughter in the

hospital. Therefore, he went to Government hospital, Akola. She

disclosed him about beating by the appellant. Thereafter, he went to

Police Station, Borgaon Manju and lodged report. On the basis of

report, crime was registered against the appellant for the offence

punishable under Section 307 of the Indian Penal Code.

4. During medical treatment, deceased Asha died on

1.11.2013. Therefore, offence punishable under Section 302 of the

Indian Penal Code was added. PSI Vinod Trimbakrao Deshmukh

(PW-7) investigated the crime. After complete investigation, filed

charge sheet before the Court of Judicial Magistrate, First Class. As

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the offence was exclusively triable by the Court of Sessions, the case

was committed to the Court of Sessions at Akola.

5. Charge was framed by the trial Court at Exh.2. Same was

read over and explained to the appellant. He pleaded not guilty and

claimed to be tried. His defence appears to be of total denial.

6. Prosecution has examined following witnesses :-

a. Vitthal Mansing Solanke (PW-1) (Exh.9).

b. Surajsing Hirasing Verma (PW-2) (Exh.12).

c. Santosh Dadarao Chavan (PW-3) (Exh.25).

  d.               Usha Santosh Chavan (PW-4) (Exh.26).

  e.               Preeti @ Anchal Gajanan Chavan (PW-5) (Exh.29).

  f.               Syed Numan Hussaini (PW-6) (Exh.39).

  g.               Vinod Trimbakrao Deshmukh (PW-7) (Exh.,41).

  h.               Shankar Vitthal Shelke (PW-8) (Exh.56).

  I.               Santosh Ramesh Panchabhai (PW-9)(Exh.57).

7. Learned trial Court recorded statement of appellant

under Section 313 of the Code of Criminal Procedure. The trial Court

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heard prosecution and defence and came to the conclusion that the

appellant has committed murder of his wife. Therefore, the appellant

is convicted for the offence punishable under Section 302 of the

Indian Penal Code and sentence is awarded to him, as stated above.

Appellant came to be acquitted for the offence punishable under

Section 498-A of the Indian Penal Code.

8. Heard Mr.A.M.Jaltare, learned Counsel for the appellant.

He has submitted that there was quarrel between the appellant and

his deceased wife. During the quarrel, appellant could not control

himself and he beat his wife. There was no any serious injury on the

person of deceased. As per the post mortem conduct by Dr.Syed

Numan Hussaini (PW-6), cause of death was head injury and it's

complication. Learned Counsel pointed out evidence of Dr. Hussaini

and submitted that all the injuries found at the time of post mortem

were of minor nature. There was no any intention on the part of

appellant to commit murder of his wife.

9. Learned Counsel Mr.Jaltare has submitted that,

admittedly, quarrel took place in the house. If the appellant had any

intention to kill deceased Asha, he would have killed his wife by any

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sharp weapon available in the house. It appears that there was

quarrel and in the quarrel, the appellant beat her by fist. Therefore,

it is not a case of murder punishable under Section 302 of the Indian

Penal Code. Learned Counsel has submitted that, at the most, the

case is proved against the appellant for the offence punishable under

Section 304-II of the Indian Penal Code. At last, prayed to allow the

appeal.

10. Heard learned A.P.P. Ms T.H.Udeshi for the

Respondent/State. She has pointed out evidence of Santosh Dadarao

Chavan (PW-3) and Usha Santosh Chavan (PW-4) and submitted

that appellant beat deceased mercilessly. Their evidence is

corroborated by Syed Numan Hussaini (PW-6). Learned trial Court

rightly convicted the appellant for the offence punishable under

Section 302 of the Indian Penal Code. Hence, the appeal is liable to

be dismissed.

11. Perused the evidence on record. Evidence of Vitthal

Mansing Solanke (PW-1) shows that he has stated about ill-

treatment by appellant to his deceased wife. He was not present at

the time of incident. His evidence appears to be of hearsay nature.

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Appellant is acquitted by the trial Court for the offence punishable

under Section 498-A of the Indian Penal Code. Evidence of Santosh

Chavan (PW-3) and Usha Chavan (PW-4) are material. Santosh

Chavan (PW-3) is the brother of appellant and Usha Chavan (PW-4)

is wife of Santosh Chavan (PW-3). Deceased Asha was sister of Usha

Chavan (PW-4).

12. As per evidence of Santosh Chavan (PW-3) and Usha

Chavan (PW-4), on 24.10.2013, at about 7 p.m., appellant and

deceased Asha were only in their house. They heard noise of their

quarrel. Therefore, they came out. They heard noise of beating in

the house. Appellant pulled Asha and threw her out of house. She

was admitted by Santosh Chavan (PW-3) in the Government hospital

at Akola. From the perusal of City Scan Report (Exh.58), it is clear

that no any injury was found on the head of deceased. Report of City

Scan is as under :

"IMPRESSION : NECT HEAD & visualised CERVICAL SPINE STUDY REVEALS : NO SIGNIFICANT ABNORMALITY. "

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13. From the perusal of evidence of Dr.Syed Numan Hussaini

(PW-6), it is clear that, on 1.11.2013, post mortem was conducted

and he found the following eight injuries on the dead body of

deceased :

I) Brownish colour with scab formation, contused abrasion over left sub-mandibular region, of size 05 cm. X 02 cm.

II) Two abrasions over right lateral aspect of neck and middle part of neck with scab formation of brownish colour, one below another, of size 04 cm. X 01 cm. and 03 cm. X 01.2 cm. respectively.

III) Multiple scratch abrasions, crescent shaped over right sub-mandibular region, lateral aspect of neck of size varying from 01 cm. X 01 cm. to 01 cm. X 0.5 cm.

IV) Three abrasions, with brownish colour scab formation, one below another on lateral aspect of neck, of size 02 cm. X 01 cm., 01 cm. X 01 cm. and 0.5 cm. X 01 cm. respectively.

V) Abrasion with brownish scab formation over right knee, of size 02 cm. X 01 cm.

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          VI)      Abrasion of size 02.5 cm. X 01 cm., with brownish 

scab formation, over upper aspect of right leg.

VII) Brownish scab at left anterior superior iliac - spine of size 02 cm. X 02 cm.

VIII) Linear abrasion over medial and lower aspect of left thigh, of size 03 cm. X 0.5 cm., brownish colour.

These injuries were ante-mortem in nature.

14. From the perusal of City Scan Report and injuries found

on the dead body, it is clear that appellant has not caused any severe

injuries to the deceased. The incident took place on 24.10.2013 and

deceased died on 1.11.2013. All this evidence shows that it was not the

intention of the appellant to kill his wife.

15. Evidence of Santosh Chavan (PW-3) and Usha Chavan

(PW-4) clearly shows that there was quarrel between the appellant and

his wife. During the quarrel, he beat his wife and therefore, she

sustained injuries as stated in the Post Mortem Report.

15. The injuries caused by the appellant to the deceased were

not severe. If the appellant had any intention to kill the deceased, he

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could have killed her by any sharp weapon available in the house.

There is no dispute that appellant and deceased were only in the

house. Therefore, prosecution failed to establish that appellant had

intention to kill the deceased. Act of accused comes under Section 304-

II of Indian Penal Code. Learned trial Court has not taken into

consideration all these material evidence on record and wrongly

convicted the appellant for the offence punishable under Section 302

of the Indian Penal Code. He is liable for conviction under Section

304-II of Indian Penal Code. Hence, we pass the following order.

// ORDER //

The Criminal Appeal is partly allowed.

Impugned Judgment is quashed and set aside.

Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Instead, he is convicted for the offence punishable under Section 304-II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years.

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Record and proceedings be sent back to the trial Court.

                                       JUDGE                            JUDGE
   
  jaiswal