Gulab Gimblya Valvi C-9322 vs The State Of Maharashtra
2021 Latest Caselaw 13526 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD
                      CRIMINAL APPEAL NO. 439 OF 2021

   Gulab S/o Gimblya Valvi (Naik)
   Age : 50 years,
   R/o Dhekwad, Tq. Nandurbar,
   Dist. Nandurbar                                  ... Appellant
           Versus
   The State of Maharashtra                         ... Respondent

                                      ....
   Mr. A.R. Borulkar, (appointed) Advocate for the Petitioner
   Mr. Shashibhushan P. Deshmukh, APP for Respondent / State
                                      ....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

DATE : 21st SEPTEMBER, 2021

ORAL JUDGMENT (PER V. K. JADHAV, J.) :-

1. This Appeal is directed against the judgment and order

of conviction passed by the Additional Sessions Judge,

Nandurbar dated 11.03.2014 in Sessions Case No. 8 of 2008.

2. Brief facts of the prosecution case are as follows:

a. Deceased Bhamtibai was the wife of appellant-accused

Gulab. Appellant-accused Gulab used to consume liquor and

beat Bhamtibai. The incident occurred on 11.11.2007 in the

night. At about 8.30 p.m., PW-3 Anjanabai, who is the

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neighbour of the appellant-accused Gulab, heard shouts and

thus alongwith the son of the appellant-accused Fulsing went to

direction of those shouts. Beyond the stream near their house

and the construction site of a church, they saw that the

appellant-accused Gulab was beating deceased Bhamtibai on

foot-way. Appellant-accused Gulab was having axe with him. He

brought deceased Bhamtibai upto stream from construction site.

PW-3 Anjanabai and Fulsing tried to persuade the appellant-

accused Gulab, however, the appellant-accused Gulab was fully

drunk. He had axe in his hand. Appellant-accused Gulab had hit

Deceased Bhamtibai with the said axe on her head. Deceased

Bhamtibai had sustained the injury on her head. She was also

beaten up on her hands and legs. The appellant-accused then

brought deceased Bhamtibai to the house and left her there. On

the next day i.e. on 12.07.2007 at about 7.00 a.m. appellant-

accused Gulab went to the house of PW-3 Anjanabai and told

her that deceased Bhamtibai was no more.

b. On the basis of the complaint lodged by PW-3 Anjanabai

Exhibit 28, crime no.217 of 2007 for the offence punishable

under Section 302, 504 of IPC came to be registered at Taluka

Police Station, Nandurbar, District Nandurbar.

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c. During the investigation, the Investigating Officer has

drawn the inquest panchanama, spot panchanama and further

sent the dead body of deceased Bhamtibai to Civil Hospital,

Nandurbar. The Investigating Officer has seized simple soil and

soil mixed with blood as well and the other articles from the

place of incident. The Investigating Officer has also seized the

clothes of deceased Bhamtibai which were on her person at the

time of incident. Her clothes were stained with blood. The

appellant-accused came to be arrested on 12.11.2007. There

were blood stains on the clothes of the appellant accused.

During the investigation, the appellant-accused has made

disclosure statement and agreed to produce the axe used in

commission of offence from the roof tiles of his house and

accordingly in presence of panchas and police at Dhekwad took

out an axe from roof tiles of the house. The same came to be

seized by drawing panchanama under Section 27 of the Indian

Evidence Act.

d. After the investigation, the Investigating Officer has

submitted the charge-sheet in the Court. The learned Judge of

the trial court has framed charge for the offence punishable

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under Sections 302, 498-A of IPC against the appellant-accused.

The appellant-accused pleaded not guilty and claimed to be

tried.

e. The prosecution has examined in all 14 witnesses to

substantiate the charge levelled against the accused. After

completion of the prosecution evidence, the appellant-accused

has given a statement under Section 313 of Cr.P.C. The defence

of the appellant-accused is of simple denial.

f. The learned Additional Sessions Judge, Nandurbar, by

judgment and order dated 11.03.2014 in Sessions Case No. 8 of

2008, convicted the appellant-accused for the offence

punishable under Section 302 of IPC and sentenced him to

suffer imprisonment for life and to pay fine of Rs.1,000/-, in

default to suffer rigorous imprisonment for one year.

3. Being aggrieved by the same, the appellant/accused

Gulab has preferred this appeal.

4. Learned counsel for the appellant-accuse submits that

pre-incident and post incident conduct of PW-3 Anjanabai is not

natural. Even though she allegedly witnessed the incident on

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11.11.2007 at about 8.30 p.m., however, on that day, she did

not lodge any complaint in the police station. Only after

Bhamtibai was found dead in her house, PW-3 Anjanabai had

lodged the complaint Exhibit 28 on the next day i.e. on

12.11.2007. Even PW-3 Anjanabai had not tired to intervene

into the said quarrel. Learned counsel submits that the son of

the appellant-accused namely Fulsing has not supported the

prosecution case. Even the panch witnesses, on the seizure

panchanama of the clothes of the deceased, has not supported

the prosecution case in any manner.

5. Learned counsel submits that deceased Bhamtibai was

also used to consume liquor. Learned counsel submits that even

the witnesses on the inquest panchanama have deposed

contrary to the contents of the seizure panchanama. It thus

appears that the investigation is tainted one. Learned counsel

submits that it would not be safe to rely upon the evidence of

the sole eye witness when the person i.e. the son of the

appellant-accused, who accompanied her at the time of alleged

incident, had not supported the prosecution case.

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6. Learned counsel submits that PW-6 Lilabai has deposed

before the Court, particularly, in her cross-examination that the

appellant-accused had also come to her house on the day of

incident and remained there till late night and he returned to

home on next day morning. Learned counsel submits that this

witness is not declared hostile by the prosecution.

7. Learned APP submits that PW-3 Anjanabai is trustworthy

and reliable witness. Her evidence inspires confidence. She has

no reason to falsely implicate the appellant-accused in the

present crime. Learned APP submits that on the date of incident

at about 8.00 p.m. PW-3 Anjanabai had witnessed the quarrel

between deceased Bhamtibai and appellant-accused. They came

from across the river quarreling. PW-3 Anjanabai had further

deposed that appellant-accused hit deceased Bhamtibai with an

axe. She tried to persuade the appellant-accused not to beat her,

however, the appellant-accused had tried to assault her.

Learned APP submits that the prosecution has proved the

homicidal death of the deceased Bhamtibai in this case and

PW-9 Dr. Pardeshi, who conducted the postmortem on the dead

body of deceased Bhamtibai on 12.11.2007, has opined that the

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cause of death was shock due to head injury and the injuries

mentioned in column no.17.

8. Learned APP submits that deceased Bhamtibai had

sustained six external injuries out of which injury no.1 is fatal.

The postmortem examination report is at Exhibit 41. Learned

APP submits that the prosecution has proved the homicidal

death of deceased Bhamtibai in this case. The prosecution has

also proved the seizure of an axe as well as clothes of deceased

Bhamtibai also the articles seized at the time of drawing spot

panchanama through the evidence of the Investigating Officer.

The C.A. report is in favour of the prosecution. The prosecution

has thus proved the case against the appellant-accused beyond

the reasonable doubt. The appeal is liable to be dismissed.

9. Learned counsel for the appellant-accused has not

seriously disputed the homicidal death of deceased Bhamtibai.

The prosecution has examined PW-9 Dr. Pardeshi, who has

conducted the postmortem examination on the dead body of

deceased Bhamtibai. He noticed the following external injuries

on the dead body of deceased Bhamtibai :-

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1. Contused Lacerated wound on center of frontal region scalp size 5 cm x 1 cm x 3 cm deep. Bone deep with fracture of frontal bone underlying.

2. CLW on right elbow joint outer surface 2 cm x 1 cm.

3. Abrasion on left writ joint 1 cm x 1 cm.

4. Abrasion on right knee joint 2 cm x 2 cm.

5. Abrasion on left side neck 1 cm x ½ cm.

6. Abrasion on right side of neck 1 cm x ½ cm.

10. During the course of postmortem examination PW-9 Dr.

Pardeshi found that the said injuries were ante-mortem in

nature. He has also noted that the blood clots seen under injury

no.1 of column no.17 of size 3 cm x 2 cm. He has also recorded

the fracture of frontal bone seen below injury no.1 of column

no.17. Brain coverings tear below injury no.1 of column no.17,

and blood clots seen under brain coverings below injury no.1 in

column no.17 of size 2 cm x 1 cm. In her opinion the cause of

death was shock due to head injury and injuries mentioned in

column no.17. The postmortem report is at Exhibit 41. PW-9 Dr.

Pardeshi has also opined that the injuries on the person of the

deceased were possible by the axe shown to him before the

Court.

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11. PW-9 Dr. Pardeshi has stated in his cross-examination

that it is less likely that injuries as mentioned in column no.17

would be possible, particularly injury no.1, if a person comes

tumbling down in a river bed and hit by stone. However, he has

stated that other injuries are possible due to person rolling

down on the slope in river bed. There is nothing in the cross-

examination to suggest any other inference about death of

deceased Bhamtibai. The prosecution has proved beyond

reasonable doubt that deceased Bhamtibai died a homicidal

death.

12. So far as PW-3 Anjanabai is concerned, we find that she

is a trustworthy and reliable witness. She had no reason to

falsely implicate the appellant-accused in connection with the

present crime. She has not only witnessed the incident, but

when she tried to intervene in the quarrel, the appellant-

accused had tried to assault her. PW-3 Anjanabai has thereafter

rushed to inform the same to the son of the appellant-accused

namely Fulsing. Even at that time, deceased Bhamtibai informed

to PW-3 Anjanabai that the appellant-accused had severely

beaten her and she had sustained injury on her head. After the

said incident, the appellant-accused, deceased Bhamtibai and

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PW-3 Anjanabai went to their respective houses. It is very

unlikely on the part on the PW-3 Anajanabai to rush to the

police station and lodge complaint when deceased Bhamtibai

talked to her that appellant-accused extending beating to her

severely. Only in the morning, when she came to know about

the death of deceased Bhamtibai, she chooses to lodge the

complaint in the concerned police station. We do not find that

the pre-incident and post incident conduct of the PW-3

Anjanabai is unnatural.

13. Even though the witnesses on the various panchanamas

have not supported the prosecution case and even Fulsing, the

son of the appellant-accused, has also not supported the

prosecution case in order to save the appellant-accused from the

punishment, however, the prosecution has proved the contents

of the various panchanamas through the Investigating Officer.

PW-8 Dilip, who is the Sarpanch of the said village, is the panch

witness of the inquest panchanama and spot panchanama

Exhibit 37 and Exhibit 38 respectively. He has supported the

prosecution case. However, on the basis of some stray

admissions on his part as to the place where the inquest

panchanama was carried out, his evidence cannot be discarded.

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14. So far as the seizure of the weapon axe at the instance of

the appellant accused by drawing panchanama under Section 27

of the Indian Evidence Act is concerned, PW-3 Anjanabai has

stated in her cross-examination that the mother of the accused

gave axe to Fulsing and Fulsing gave it in turn to the police.

There is no doubt that an axe seized in connection with the

present crime was having blood stains and as per the C.A. report

Exhibit 56 blood was found on the axe. Blood of group 'B' was

found on the blade and handle of the axe. As per the C.A. report

Exhibit 58, the blood of the deceased is of group 'B'. Thus, it is

clear that the said weapon axe was used in the assault.

15. We have carefully gone through the evidence of PW-3

Anjanabai to find out as to whether the trial Court has correctly

recorded the conviction for the offence punishable under

Section 302 of IPC against the appellant-accused. It appears

from the evidence of PW-3 Anjanabai that at about 8.00 p.m.

deceased Bhamtibai and appellant-accused came from across

the river quarreling. During the course of said quarreling, the

appellant-accused hit deceased Bhamtibai with an axe. It

appears from the postmortem report Exhibit 41 that external

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injury no.1, which is in the form of contused lacerated wound

on center of frontal region of scalp i.e. the center of head, is the

only fatal injury. The other injuries are CLW on right elbow

joint, abrasion on left writ joint, abrasion on right knee joint,

abrasion on left side and right side of the neck. PW- 9

Dr. Pardeshi has also admitted in her cross-examination that

except injury no.1, other injuries are possible due to person

rolling down on the slop in the river bed. PW-3 Anjanabai has

also admitted in her cross-examination that grass and bushes

had grown on the side of stream. She has further stated in her

cross-examination that for descending into the stream bed, there

is only half feet wide foot-way. There was water in the stream in

that season. She has further admitted in her cross-examination

that appellant-accused dealt only one blow to deceased

Bhamtibai. It thus appears that the possibility of the sustaining

the other injuries due to rolling down on the slopy surface of the

river bed cannot be ruled out. We also find that the said injury

no.1 is the outcome of t one single blow given by the appellant-

accused on the head of the deceased Bhamtibai by using the

weapon axe. The said incident had taken place in a sudden

quarrel without any premeditation. In view of the same, in our

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opinion, the appellant-accused has committed offence of

culpable homicide not amounting to murder. PW-9 Dr. Pardeshi

has described the external injury no.1, which is on the center of

frontal region of scalp of size 5 cm x 1 cm x 3 cm deep and bone

deep with fracture of frontal bone underlying. During the course

of internal examination (column no.19), blood clots seen under

injury no.1 and also fracture of frontal bone. There was brain

coverings tear below injury no.1 and the blood clots seen under

brain coverings. It is thus clear that though the accused had

given single blow by using an axe on the head of the deceased

Bhamtibai, however, it was given with such a force that

deceased Bhamtibai had sustained the head injury in the form of

injury no.1 with corresponding internal injuries as described

above. However, we find that there was no intention to commit

the offence of murder. On the next day, in the morning, the

appellant-accused on his own went to the house of PW-3

Anjanabai and informed to her that Bhamtibai is no more. Had

it been his intention to commit murder, he would have fled

away from the spot in the night itself.

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16. Thus, considering the entire aspect of the case and

particularly the nature of the injury no.1 with corresponding

internal injuries, we are of the opinion that the appellant-

accused has committed an offence punishable under Section

304 Part-I instead of offence punishable under Section 302 of

IPC. Thus, the following order would meet the ends of justice.

ORDER

(i) Criminal appeal is hereby partly allowed.

(ii) The judgment and order of conviction passed by the Additional Sessions Judge, Nandurbar 11.03.2014 in Sessions Case No. 08 of 2008 thereby convicting the appellant-accused Gulab Gimblya Valvi (Naik) for the offence punishable under section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.1,000/- (Rs one thousand only), in default to suffer imprisonment for one year is hereby altered and instead;

the appellant-accused Gulab Gimblya Valvi (Naik) is convicted for the offence punishable under Section 304 Part-I of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years with the same amount of fine and default sentence as per the order passed by the trial Judge.

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(iv) The appellant-accused Gulab Gimblya Valvi (Naik) shall execute a P.B. Rs.15,000/- (Rupees Fifteen Thousand) with one surety of the like amount to appear before the higher court as and when the notice is issued in respect of any appeal or petition fled against the judgment of this Court. Such bail bonds shall remain in force for a period of six months from the date of its execution.

(v) Criminal appeal is accordingly disposed of.

17. Since Mr A.R. Borulkar, learned counsel is appointed to

prosecute the cause of appellant-accused, we quantify his legal

fees as Rs.10,000/- to be paid by the High Court Legal Services

Sub-Committee, Aurangabad.

    [ SHRIKANT D. KULKARNI ]                            [ V. K. JADHAV ]
            JUDGE                                             JUDGE




   S.P. Rane




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