Shivpujan Harishankar Yadav vs The State Of Maharashtra
2021 Latest Caselaw 228 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 1035 OF 2015

Shivpujan Harishankar Yadav.
Age: 30 years, Occ: Service,
Residing at Bungalow No. 15,
East Street, Camp, Pune.
(At present accused lodged in
Yerwada Central Prison, Pune.)                                ..Appellant.

v/s.
1 State of Maharashtra
  (At the instance of Lashkar
  Police Station)                                             ..Respondent.

Mr. Aniket Vagal, advocate for appellant.

Mr. S.R. Agarkar, APP for State.


                                   CORAM : SMT. SADHANA S. JADHAV &
                                           N.J.JAMADAR, JJ.

                     RESERVED ON :            DECEMBER 18, 2020
                  PRONOUNCED ON :             JANUARY 6, 2021.


JUDGMENT (PER SMT. SADHANA S. JADHAV,J):

1 The appellant herein is convicted for the offence

punishable under section 302 of the Indian Penal Code and

sentenced to suffer imprisonment for life and to pay a fine of

Rs. 5,000/- I.d. to suffer six months rigorous imprisonment.

Hence, this Appeal.

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2                Such of the facts necessary for the decision of this

appeal are as follows :

On 30/12/2011 police Naik Avinash Badade(P.W.9)

received telephonic call from his friend Mr. Amarjeetsing

Aluwaliya(P.W.3), who informed him that a person residing in

his neighbourhood had killed his wife and that the police should

visit the spot immediately. Mr. Badade informed about the same to police inspector Sushama Chavan P.W. 13 and thereafter, Ms.

Chavan along with Mr. Badade and other police staff visited the

spot of incident i.e. bungalow No. 15 east street camp. The

police had taken the accused i.e. present appellant in custody.

The police had noticed that the accused had sustained bleeding

injuries. The accused had disclosed his name as Shivpujan

Yadav. The police had then taken the deceased, wife of the accused to Sassoon General Hospital. That the police had given

the said information to the brother of the deceased i.e. Jagveer

Daddi Yadav (PW.1). On the same day, Jagveer Yadav lodged

FIR at Lashkar Police Station alleging therein that his sister was

killed by the accused on the ground that the money which she

had lent to her parents and brothers was not returned back. On

the basis of the said report, Crime No. 192 of 2011 was

registered at Lashkar Police Station against the accused for the

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offence punishable under section 302 of the Indian Penal Code.

3 At the trial the prosecution examined as many as 13

witnesses to bring home the guilt of the accused. The

prosecution mainly rests on the evidence of P.W. 1 the brother

of the deceased, P.W. 2 the minor son of the deceased, P.W. 3

Amarjeetsing Alluwaliya, P.W. 6 Dr. Amol Shinde, who had

performed the autopsy on the dead body of the deceased-Tersee,

P.W. 7 Dr. Mahesh Tengle who had examined the accused, P.W.

9 Avinash Badade who was the first person to receive the

information, P.W. 10 Kaushalya Yadav, mother of the deceased

and P.W. 13 Sushama Chavan.

4 P.W. 1 Jagveer Yadav has deposed before the Court

that his sister Tersee was assaulted by the accused on trivial

grounds. He was a hot tempered person. That accused had

given Rs. 30,000/- to the deceased to seek an employment as a

teacher in Madhya Pradesh. She failed to secure a job and

therefore, she deposited the said amount in fixed deposit. The

accused was demanding return of Rs. 30,000/-. The deceased

has expressed her inability to return the same on the ground

that she had kept the said money in fixed deposit. That his

sister had offered to make a payment of Rs. 23,000 which was

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denied by the accused. And hence, there was quarrel between

the couple. On 30/12/2011 the accused had allegedly killed his

sister. When he reached the house of the accused and the

deceased, he realised that his sister had been strangulated with a

rope. His nephew Sanjeev i.e. son of the deceased, upon

enquiry, informed P.W.1 that there was a quarrel between his

mother and father and that his father had killed his mother. He

has proved the FIR. In the cross-examination, he has denied that he had any financial transaction with the accused. When he was

confronted with the FIR, he stated that in fact, he has deposed

before the Court in consonance with the FIR and that he cannot

assign any reason for the omissions of the said contention in the

FIR, as the said facts which he has deposed before the court do

not find place in the first information report. The said omissions

are proved by P.W.13 Sushma Chavan. She has categorically deposed before the court that the said facts were never disclosed

by P.W. 1 to the police at the time of recording his first

statement. In fact, the recitals of his statement under section

154 of the Code of Criminal Procedure, 1973 which is at Exh.

14, indicates that his parents had borrowed Rs. 30,000/- from

the accused. The accused was seeking return of the said amount.

That P.W. 1 had offered Rs. 7,000/- towards part payment

which the accused refused and he was insisting that they shall

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make one time payment of Rs. 30,000/-. Hence, there used to

be intermittent quarrels.

5 P.W.2 Sanjeev happens to be minor son of the accused

and deceased. According to him, his father was a gardener. On

the day of incident, the accused demanded money from his

mother. She was unable to pay and therefore, his father killed

her by strangulating her with a rope and by assaulting her with

a knife. He had denied the suggestion that the family had some

visitors on the day of the incident. It is elicited in the cross-

examination that on the day of the incident, the police had

opened the lock of the room. His attention was drawn to the

omissions in his previous statement. The said omissions are

pertaining to the cause of quarrel. P.W.13 has proved the said

omissions.

6 P.W.3 was residing in the neighbourhood of the

accused. He deposed before the court that the accused was

working as a gardener for Mrs. Poonawala who was caretaker of

the said bungalow. That there used to be quarrel between the

husband and wife. On the day of the incident he heard the son

of the accused seeking help to rescue his mother. The couple

was quarreling for about 10 to 15 minutes he therefore, called

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upon the police Mr. Badade to visit the house of the neighbour.

He had subsequently learnt that Tersee, wife of the accused had

died due to strangulation. When the police was taking the

accused, P.W. 3 had noticed that the accused had sustained stab

injuries. It is elicited in his cross-examination that he runs a

Dhaba outside the bungalow where the accused was working as

a gardener. The house of P.W. 3 and accused are adjacent to

each other. According to P.W. 3, the deceased was also working as a maid servant in the bungalow of Poonawala. That the

couple was leading a happy marital life along with their

children. In the cross examination he had further stated that

he was unable to recollect as to whether he had heard P.W. 2

raising cry for help. According to him, the safety door was

locked and therefore, he could not enter the said room. He

has also denied to have heard any cries of the accused that thieves had entered the house.

7 P.W. 5 Majid Khan was a panch to the scene of

offence panchanama which is at Exh. 27. According to him,

there were blood stains on the wood below the latch of the

grilled door. Pieces of nylon rope were tied on the grilled

door. Blood stained knife was lying near the bed inside the

room. Bloodstains were found on the bed sheet and a brownish

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colour full shirt which was torn and a white banian. There

were broken pieces of bangles lying on the ground, shirt

buttons had fallen on the ground. The police had seized all the

articles and thereafter, he had signed the panchanama at Exh.

27 He had identified the articles which were seized at the time

of recording of panchanama. In the cross-examination, he has

admitted that he has no knowledge of the recitals of the

panchanama and does not recollect as to whether household articles were scattered in the room. The recitals of the scene

of panchanama would show that the shirt of the accused was

stained with blood. The shirt was torn near the arm pit. The

buttons of the shirt at Sr. No. 5 and 6 were broken. The

banian which was worn by the accused was also stained with

blood. The knife which was seized from the scene of offence

was about 17 cm. long 2.5 cm. broad. The blade of the knife was sharp and was stained with blood.

8 P.W. 6 Dr. Amol Shinde had performed autopsy of the

deceased Tersee on 30/12/2011. He had observed a completely

encircling, horizontally directed backwards ligature mark present

over the neck above thyroid cartilage. The skin over ligature

mark was abraded, reddish brown with contusion over left side

of neck above and below ligature mark. There were abrasions

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on the forehead and the face as well as on left elbow, dorsum

of right hand, contusions over right forearm and left forearm,

left wrist, left arm and left elbow. All injuries were ante-

mortem. On internal examination P.W. 6 noticed haematoma

over left frontal region and right parietal region. Haematoma

was also noticed within thyroid and strap muscles of neck on

left side corresponding to injury No. 1 under column No. 17.

The doctor had opined that the cause of death was "due to ligature strangulation". According to P.W. 6, the nylon rope at

article A was used for causing the ligature mark on the neck of

the deceased. It is admitted by P.W. 6 that the deceased had

not sustained any bleeding injury but there were blood stains on

the ground. There was no fracture of the thyroid bone and that

the deceased had not sustained any injury by a sharp edged

weapon. It is specifically denied that the ligature mark could be caused by any saree or any cloth. That the major veins were not

cut. He has affirmed the suggestion that the possibility that the

victim was attacked by more than two persons cannot be ruled

out. However, it is further clarified that the injuries no. 2 to

12 mentioned in column No. 17 of the post mortem notes are

simple in nature and are in the form of contusions and

abrasions.

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9                P.W. 7 Dr. Mahesh Tengale, the medical officer at

Sassoon          hospital          at     Pune   had   examined       the      accused        on

30/12/2011. He has deposed before the court that on medical

examination he had found following injuries on the person of

the accused.

(1) Linear Abrasion over right side of neck 6 x 2

cms.

(2) Abrasion over 2 cms. below injury no. 1.

                 (3)               Abrasion over left elbow 3 x 2 cms.

                 (4)               Incised wound (IW) over left forearm lower

end flexer aspect laterally 2 x 0.5 cms. x 0.5

cm.

According to him, injury no. 4 was caused by sharp edged

weapon and other injuries were caused by hard and blunt weapon. The photo copy of the medical certificate tallied with

the original register maintained by the hospital and is marked at

Exh. 35. P.W. 7 has further opined as follows :

"Injury no. 1 to 3 are possible during the struggle to

save one's life. Injury No. 1 is possible by the nails of

the hand whereas injury no. 4 is possible by weapon

like knife."

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It is admitted in the cross-examination that the injured was

brought to the hospital with the history of assault. Injury No. 4

was a clean cut injury. And that it was a bleeding injury and

could be caused only by a sharp edged weapon.

10 P.W. 9 Avinash Badade was attached to cantonment

police station. According to him on 30/12/2011 his friend Mr.

Ahluwalia P.W. 3 had informed him telephonically that a person residing in his neighbourhood had killed his wife. He had

conveyed the said message to P.W. 13 who was his superior

officer. She had taken over the charge of the investigation.

When they reached the spot it was P.W. 3 who had shown the

location of the offence. It is admitted that P.W. 3 had not

disclosed the name of the accused and therefore, the identity of

the accused did not find place in his statement. That, the door of the house of the accused was already open. It is admitted

that at the time of arrest the accused had bleeding injuries, but

P.W. 9 had not taken him to the hospital. The accused had not

disclosed that 3 unknown persons had entered into his house

and mounted assault.

11 P.W. 10 Kausalya Yadav is the mother of the deceased

and according to her, the accused had demanded Rs. 30,000/-

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from them and since the demand was not fulfilled her daughter

was harassed and ill-treated by the accused.

12 P.W.13 Ms. Sushma Chavan is the investigating officer

of Crime No. 192 of 2011 registered at Lashkar Police Station,

Pune. She has deposed before the court that upon receipt of

information from constable Badade i.e. P.W. 9, she had reached

the scene of offence alongwith police staff. It was an outhouse of the bungalow. According to her accused himself had

disclosed that he had killed his wife. The wife of the accused

was lying on the cot. The body was sent to Sassoon hospital for

post mortem. She has taken all the steps in the course of

investigation i.e. she had conducted scene of offence

panchanama, seized the articles from the spot, the brother of the

deceased had lodged FIR and then she had arrested the accused. According to her, the owner of the Bungalow was Poonawala

but he was not residing in the said bungalow but one Shehanaz

Meharji was residing in the said bungalow as care taker. It is

admitted that she had not recorded statement of any witness on

the spot. That, the accused had sustained bleeding injuries on

his person and therefore, was referred for medical examination.

She has proved the omissions and contradictions in the evidence

of the witnesses more particularly P.W. 1 and P.W. 2. She has

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specifically stated that P.W. 1 had not stated before the police

that the accused had given Rs. 30,000/- to the deceased for

seeking an employment and that since, she could not secure the

job she had kept the amount of Rs. 30,000/- in fixed deposit

and that she had brought back the said amount from Madhya

Pradesh and returned it to accused and yet he was demanding

the said amount again. That P.W. 2 had not stated before the

police that his father had quarreled with his mother and assaulted her because she was not gainfully employed. And that

the accused had demanded money from her and since she

refused to pay she was killed by his father. P.W.13 has denied

that it had transpired in the course of investigation that three

unknown persons had entered the house of the accused and

assaulted the deceased and accused with an intention to commit

robbery and that Tersee had died in the said scuffle.

13 The learned Counsel for the appellant submits that the

prosecution has failed to explain the injuries sustained by the

accused. And therefore, the accused deserves to be acquitted of

all the charges.

14 Per contra learned APP submits that the cause of

death of the deceased as opined by P.W. 6 is death due to

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strangulation. And that there is clear evidence that the deceased

was strangulated with a nylon rope by none other than the

accused. The very fact, that the accused had sustained injuries

would show that he was present at the scene of offence and that

he has not given a plausible explanation for the death of his

wife in his presence. Moreover, the accused had adopted a false

defence which is uncorroborated and far from reality. And

therefore, the accused does not deserve any leniency.

15 P.W. 6 has opined that the injury no. 1 on the person

of the accused seems to be caused by nails whereas injury no. 4

is caused by a sharp edged weapons and injury no. 2 and 3 are

caused by hard and blunt object. It is therefore, clear that in the

said altercation deceased was not passive and had rather

attacked her husband with whatever weapons available in the house. The fact that the clothes of the accused were blood

stained and torn and that traces of blood were found on the

ground as well as on the nylon rope would clearly indicate that

the accused had cut the rope only after he was assaulted. The

deceased was then overpowered by the accused. The death was

instantaneous. The medical evidence clearly indicates that the

deceased had not sustained any bleeding injury. Injury no. 2 to

12 on the person of the deceased were simple injuries in the

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nature of contusions and abrasions. P.W. 2 was examined as

an eye witness to the incident. His evidence is inconsistent with

the facts on record. According to P.W. 2, his father had

assaulted his mother with a knife, however, it is clear from the

records that she had not sustained any bleeding injuries or any

superficial injuries which can be said to have been caused by

the knife, instead, it was the accused who had sustained a

bleeding injury.

16 Upon meticulous evaluation of the evidence adduced by

the prosecution and the testimony of the witnesses, the inference

that can be drawn is that there was a scuffle between husband

and wife on the day of incident. The cause of the quarrel as

deposed by P.W. 1 does not inspire confidence as the

contentions in the first information report are contrary to his substantive evidence. Irrespective of the cause of scuffle, it is

clear that the altercation between the husband and wife had

become violent. The possibility that the accused was first

assaulted by the wife with a knife due to which he had

sustained incised injuries on his forearms, and in that scuffle, he

had lost his temper and was deprived of the power of self-

control cannot be ruled out. And in the said transaction the

accused had cut the nylon rope tied to the grill and strangulated

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his wife. The Court cannot be oblivious of the fact that Tersee

had died a homicidal death at the hands of her husband and it

also cannot be overlooked that the accused had sustained

bleeding injuries in the same transaction and therefore, what

falls for determination before this Court is as to whether the act

of the accused is murder or culpable homicide not amounting

to murder.

17 There is no doubt that the defence raised by the

accused is incompatible with the evidence available on record

however, the defence of the accused under section 313 of the

Cr. P.C. is not on oath and the onus is not on the accused to

prove his case beyond reasonable doubt. The accused only has

to attempt to demonstrate the preponderance of probabilities and therefore, the contention of the learned APP that the accused is

bound by the defence taken by him cannot be taken into

consideration.

18 The Hon'ble Supreme in the case of State of U.P. V/s.

Lakhmi1 has held as follows :

The law is that burden of proving such an exception is

1AIR 1998 SC 1007.

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on the accused. But the mere fact that accused adopted

another alternative defence during his examination

under Section 313 of the IPC without referring to

Exception No. 1 of Section 300 of IPC is not enough to

deny him of the benefit of the Exception, if the Court

can cull out materials from evidence pointing to the

Existence of circumstances leading to that exception. It

is not the law that failure to set up such a defence would foreclose the right to rely on the exception once

and for all. It is axiomatic that burden on the accused

to prove any fact can be discharged either through

defence evidence or even through prosecution evidence

by showing a preponderance of probability.

19 In the above circumstances, it would have to be

determined whether the act committed by the accused would fall

under section 302 of IPC or any exception under section 300 of

IPC.

20 Exception 4 of Section 300 of the IPC reads as

follows :

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the

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offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."

21 In the case of Jayprakash v/s. State (Delhi

Administration)2 the Apex Court has held as follows :

"We may note at this stage that `intention' is different from `motive' or `ignorance' or `negligence'. It is the `knowledge' or `intention' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder.

Therefore, it is necessary to know the meaning of these expressions as used in these provisions... The `intention' and `knowledge' of the accused are subjective and invisible state of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the code designedly used the words `intention' and `knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified

2 1991 2 SCC page 32,

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harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to `knowledge', `intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."

The facts in the present case would clearly indicate that the

accused who was deprived of his self control had on spur of the

moment, achieved the desired consequences and therefore, the

case of the accused would squarely fall under section 304 Part I

of the Indian Penal Code.

22 Section 304 part I of the Indian Penal Code reads as

follows :

"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;"

23 The Hon'ble Supreme Court in the case of Kesar Sing

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and anr. v/s. State of Haryana3 has observed that -

"intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore in the case of 'intention' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact."

In the facts of the said case, the Supreme Court had set aside

the conviction of the accused for the offence punishable under

section 304 Part II of the Indian Penal Code and had held the

accused guilty of commission of the offence punishable under

section 304 part I of the Indian Penal Code.

24 Facts of the present case are also similar to the above

case which are as follows :

(i) A quarrel had ensued between the couple.

(ii) The said quarrel had taken a violent turn.

(iii) The accused has sustained one contusion, two abrasions

and an incised wound.

(iv)             He had then overpowered his wife and strangulated

3     (2008) 15 SCC 753

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her.

(iv)          The incident had occurred on the spur of the moment.

The act of the accused was not premeditated.

(v) Even according to P.W. 3 the couple was leading a

happy-married life till the date of incident.

(vi) He had silenced his wife by strangulation without any

pre-meditation.

(vii) He had not even attempted to flee from the scene of offence.

(viii) The accused had not taken undue advantage of the

situation nor acted in a cruel manner.

25 The learned counsel for the appellant submits that the

accused is in custody since 30/1/2011 and that he deserves to be

released forthwith. However, taking into consideration the gravity of the offence, we are of the opinion that a sentence of

R.I. for 10 years would meet the ends of justice.

26            Hence, following order is passed:

                                     ORDER

(i)           The appeal is partly allowed.



(ii)          The conviction of accused for the offence punishable


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under section 302 of Indian Penal Code vide Judgment and

Order passed by the Additional Sessions Judge, Pune dated

16/5/2015 in Sessions Case No. 220 of 2012 is hereby quashed

and set aside.

(iii) Accused-appellant is convicted for an offence

punishable under Section 304 Part I of Indian Penal Code and

sentenced to suffer Rigorous Imprisonment for 10 years and to

pay fine of Rs. 1000/- i.d. to suffer Rigorous Imprisonment for

one month.

(iv) The appeal is disposed of accordingly.

[N.J.JAMADAR, J] [SMT. SADHANA S. JADHAV, J.]

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