Ankush Krishna Chavan vs The State Of Maharashtra
2021 Latest Caselaw 13644 Bom

                                                                               cr.apeal797.2016.doc



                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION
                             CRIMINAL APPEAL NO. 797 OF 2016
                                          WITH
                           INTERIM APPLICATION NO. 980 OF 2020
          Shri Ankush Krishna Chavan
          Age: 38 yrs. Occ: Nil.
          R/o. Dhamani(Chavanwadi),
          Malkapur, Taluka Karad,
          District Satara.
          (At present lodged at Sangli Jail.)                 ... Appellant.

          v/s.
          The State of Maharashtra
          (At the instance of Shirala Police
          Station, Dist. Sangli.)                             ... Respondent.

                                       -------------------
          Mr. Lokesh Zade, Court Appointed advocate for appellant.
          Ms. G.P. Mulekar, APP for State.
                                      ---------------------
          Digitally
          signed by              CORAM : SMT. SADHANA S. JADHAV &
ARUNA S
          ARUNA S
          TALWALKAR                      SARANG V. KOTWAL, JJ.
TALWALKAR Date:
          2021.09.22       RESERVED ON : SEPTEMBER 15, 2021.
          14:31:30
          +0530         PRONOUNCED ON : SEPTEMBER 22, 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 Imprisonment for Life and to pay fine of Rs. 2000/- I.d. to suffer

R.I. for one month by Additional Sessions Judge, Islampur in Sessions

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Case No. 42 of 2015 vide Judgment and Order dated 27/10/2016.

2 Such of the facts necessary for the decision of this appeal

are as follows :

(i) The appellant was married to the deceased Kamal in year

2002. The couple was residing at village Talgaon. The couple is

blessed with 3 children.

(ii) On 20/4/2015 Sangita Shedage(P.W.4), sister of Kamal

lodged a report at Kokrud Police Station alleging therein that her

sister had disclosed to her that her husband suspected her chastity

and was harassing and ill-treating her. That on 18 th April, 2015 Kamal

had visited her house and had reiterated her allegations against her

husband. That she was residing with her sister on 18th April, 2015.

(iii) On 19th April, 2015 the accused had called upon Sangita

and enquired about whereabouts of his wife. However, Sangita had

feigned ignorance about whereabouts of Kamal. The accused had filed

missing complaint at Karad Police Station which was registered as

Missing Complaint No. 46 of 2015.

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(iv)        On 20/4/2015 the accused/appellant had been to the

house of P.W. 4. That the husband and wife were discussing about

return of Kamal to her matrimonial abode. Kamal had refused to

return her matrimonial abode and thereafter, she was assaulted by the

accused with pestle.

(v) On the basis of the said report, Crime No. 13 of 2015 was

registered at Kokrud Police Station against the appellant for offence

punishable under section 302 of the Indian Penal Code.

3 At the trial, the prosecution examined in all 12 witnesses to

bring home the guilt of the accused. The material witnesses in the

present case are P.W. 4 Sangita Shedage i.e. sister of the deceased

Kamal, P.W. 5 Reshma Shedage who happens to be the relative of P.W. 4

and had seen the incident of assault and P.W. 6 Kondiba Shedage,

husband of P.W. 4.

4 According to P.W. 4 Sangita Shedage, they are 3 sisters.

Their parents had died. They have no brother. That on 18/4/2015

her sister Kamal had been to her house with a grievance against her

husband that he often suspects her character and had also threatened Talwalkar 3 of 12 cr.apeal797.2016.doc

to kill her. She had candidly informed P.W. 4 that she would not

return to her matrimonial abode until the dispute is resolved. On 19 th

April, 2015 the accused/appellant had called upon P.W. 4 on which he

was informed that whereabouts of Kamal were not known. P.W. 4 has

further stated that on 20th April, 2015 the accused/appellant had been

to her house to take Kamal back to her matrimonial abode. The

appellant had called Kamal inside the room. The room was open.

There was hot discussion between them. The accused insisted upon

her to return which she denied. In the midst of the discussion the

appellant had caught hold of her neck and he had hit with pestle on

her head. Kamal had fallen to the ground and had succumbed to the

injury instantaneously. P.W. 4 has claimed to have seen the incident.

While she was going to kitchen while preparing tea. P.W. 4 has proved

the contents of FIR and the same is marked at Exh. 29. P.W. 4 has

given topography of her house in the cross-examination and according

to her, first room is her living room. T.V., Fridge and show case is kept

in second room, whereas kitchen room is on the western side of the

living room and in one room all house hold articles are kept. It is

elicited in the cross-examination that Ankush was not suspecting her to

be in illicit relations with any particular person. It is admitted that she

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had cried loudly upon seeing her sister dead. She had not taken her

sister on her arm or lap. Therefore, there was no blood stains on her

clothes. Scene of occurrence was not shown by P.W. 4 but it was shown

by her husband. She had not informed about the incident to anybody

till lodging of FIR.

5 P.W. 5 Reshma Shedage happens to be the wife of cousin of

P.W. 6 Kondiba Shedage and hence relative of P.W. 4 and P.W. 6.

According to her, on 20/4/2015 between 11 to 11.30 a.m. she had

heard loud sound of heated discussion from the house of her

neighbours i.e. P.W. 4 and P.W. 6. She had been to their house out of

curiosity. She saw the family members i.e. P.W. 4, P.W. 6, the deceased

Kamal and her husband were in the house. After sometime, she had

heard a loud cry and therefore, returned to the house of P.W. 4 and saw

the accused holding neck of Kamal and assaulting her with pestle . It

is elicited in the cross-examination that police had reached the scene

of offence at 1 p.m. and the dead body was in the house upto 3 p.m.

and P.W. 4 was in her house till the dead body was taken by the police.

She had personally not informed the police about the incident. She

has seen Kamal in the lap of P.W. 4. According to her, deceased Kamal

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was lying in the third room. P.W. 4 and P.W. 5 have denied any illicit

intimacy between Kamal and Kondiba, husband of P.W. 4.

6 P.W.6 Kondiba Shedage happens to be the husband of P.W.

4. According to him, Kamal had disclosed on 2-3 occasions that her

husband suspected her character. His evidence corroborates that of

P.W. 4. According to him, he was also present in the house on 20 th

April, 2015 at 11 a.m. when the accused had been to his house to

fetch his wife. That accused had called his wife inside the room and

in the course of hot exchange of words had assaulted her on her head

with pestle. According to him, dead body of Kamal was in his house

upto 2.30 p.m.

7 P.W. 3 Ravindra Shedage is the panch for the seizure of

clothes of the accused. P.W. 7 Tanubai Mirukhe happens to be panch

for inquest panchanama. It appears from the evidence recorded in the

course of trial that the incident had taken in the residential house of

P.W. 4 and therefore, P.W. 4 and P.W. 6 happen to be natural witnesses.

8 The learned Counsel for the appellant submitted that there

is variance in the time when the incident has occurred as suggested by Talwalkar 6 of 12 cr.apeal797.2016.doc

the witnesses and the time when the FIR was recorded and the

investigation was set in motion. However, the said variance, if any is

immaterial in view of the evidence of P.W. 4 and P.W. 6.

9 Learned APP has submitted that the prosecution has proved

its case beyond reasonable doubt and hence, no interference is

warranted in the Judgment of the Trial Court.

10 P.W.10 Dr. Bhagyashree had performed autopsy on dead

body of deceased Kamal on 20 th April, 2015 between 5 p..m. to 6 p.m..

According to her, two injuries are noted in Column No. 17 of the post

mortem which are as follows :

1. CLW over occipital region upper part 4 x 3 x 2 cm. (oblique)

2. CLW over occipital region 2 cm x 1 cm x 1 cm. (oblique), 1 cm

lateral to injury No. 1 right side.

Internal injuries noted in Column No. 19 of the post mortem notes are

corresponding to the external injuries mentioned in Column No. 17.

The post mortem notes are on Exh. 55. It is stated in the cross-

examination that there were no struggling marks like nail marks on the

neck of the deceased. It is further admitted that in the eventuality Talwalkar 7 of 12 cr.apeal797.2016.doc

there had been forceful strokes by roller stone/pestle, then there is

possibility of multiple injuries. In the present case, there were no

multiple injuries. It is further stated that there was semi digested food

in the stomach of the deceased. There is categorical assertion that the

injuries on the head of the deceased must have been sustained 6 to 6-

1/2 hours prior to to commencement of the post mortem and

therefore, according to P.W. 10, the possibility that the incident had

occurred at about 10.30 a.m. cannot be ruled out. An opinion is also

expressed that in the eventuality that there is forcible fall on the pestle,

then, there is possibility of causing injuries, as are mentioned in

column Nos. 17 and 18.

11 Learned Counsel for the appellant has vehemently

submitted that it is a specific case of the prosecution that the accused

appellant had visited the house of P.W. 4 at about 11.30 a.m. and the

incident had occurred in the course of discussion between the couple

in the house of P.W. 4. Therefore, the prosecution has not established

the exact time when the incident had occurred and the said issue goes

to the root of the matter. It is also elaborated on the basis of the

evidence of P.W. 10 that there was no forcible assault at the behest of

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the accused. Learned Counsel submits that in fact, the very lodging of

the missing complaint would show that the accused appellant was

concerned about his wife missing from the house. He was in fact,

misled by P.W. 4. However, he had suspected that his wife would visit

her sister and therefore, had been to the house of P.W. 4 to fetch his

wife and requested her to return to her matrimonial abode. That on

denial to oblige, he was deprived of his self control and had assaulted

her in a heat of passion. The act was not premeditated and the

accused had left the pestle which was in the room where he was in

heated discussion with his wife. According to learned Counsel, the act

of the accused would therefore, fall under exception 4 to Section 300

of the Indian Penal Code, which reads as under :

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--...... Exception 4.--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 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. "

It is therefore, urged before us that the appellant be acquitted of the

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offence punishable under section 302 of the Indian Penal Code.

12 Per contra, learned APP submits that there is no reason to

disbelieve P.W. 4, 5 and 6, who happens to be natural eye witnesses to

the incident that the appellant has assaulted the deceased with a pestle

with intention and knowledge to cause her death. It is submitted that

the said defence was not taken at the stage of recording statement

under section 313 of the Code of Criminal Procedure, 1973.

13 At this stage, it would be appropriate to place reliance

upon the judgment of the Supreme Court in the case of State of U.P.

v/s. Lakhmi1 wherein it is held that -

"The law is that burden of proving such an exception is on the accused. But the mere fact that accused adopted another alternative defence during his examination under Section 313 of the Cr. P.C. 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

1 AIR 1998 SC1007.

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through defence evidence or even through prosecution evidence by showing a preponderance of probability."

14 In the present case, it is the specific case of the prosecution

that the accused was insisting upon his wife to return to her rightful

matrimonial abode with a hope that the crises would be ironed.

However, the deceased denied the offer. It was as if, there was no hope

for the accused that his beloved wife would return with him and

being enraged and deprived of self control, had assaulted his wife

with whatever available just nearby. In these circumstances, it would

be necessary to read the mind of the offender and not consider the

offence devoid of emotions.

15 In view of the above discussion, the case of the accused

would squarely fall under section 304 Part I of the Indian Penal Code

and the accused deserves to be acquitted of the offence punishable

under section 302 of the Indian Penal Code.

16 Before parting with the Judgment, this Court appreciates

the efforts taken by the learned Counsel appointed for the appellant.

He is entitled to professional fees as per rule.

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17           Hence, following order is passed :

                                  ORDER

(i)          The appeal is partly allowed.

(ii)         The conviction and sentence imposed upon the appellant

for offence punishable under section 302 of the Indian Penal Code by

Additional Sessions Judge, Islampur in Sessions Case No. 42 of 2015

vide Judgment and Order dated 27/10/2016 is set aside. The

appellant is acquitted of the offence punishable under section 302 of

the Indian Penal Code.

(iii) Instead, the appellant is convicted for offence punishable

under section 304 Part I of the Indian Penal Code and sentenced to

suffer R.I. for 8 years. Sentence of fine is maintained.

(iv) The appellant is in jail. He is entitled to the set off for the

period already undergone.

(v)          The appeal is disposed of accordingly.

(vi)         In view of disposal of the appeal, nothing survives in the

Interim Application. The same is disposed of accordingly.

       (SARANG V. KOTWAL, J)         (SMT. SADHANA S. JADHAV, J)


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