Dolu S/O. Gundi Wadde vs State Of Maharashtra Trh. P.S.O. ...
2022 Latest Caselaw 2225 Bom

                                      1                                       APL742.18.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


                    CRIMINAL APPEAL NO. 742 OF 2018


APPELLANT                   : Dolu S/o Gundi Wadde,
                              Aged about 46 years, Occu. Labour,
                              R/o Laheri, Tah. Bhamragad,
                              Dist. Gadchiroli.

                                             VERSUS

RESPONDENT                  : State of Maharashtra,
                              through Police Station Officer,
                              Police Station, Laheri
                              Dist. Gadchiroli.

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          Mr. A. A. Sambaray, Advocate for the appellant
          Mrs. M. A. Barabde, A. P .P. for the respondent/State
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             CORAM : V. M. DESHPANDE and
                     AMIT B. BORKAR, JJ.

DATE : MARCH 07, 2022.

ORAL JUDGMENT (Per : V.M.Deshpande, J.)

1. An exception is taken to the judgment and order of

conviction passed by the learned Sessions Judge, Gadchiroli, dated

15.05.2018 in Sessions Case No. 08/2016 by the appellant by filing

the present appeal under Section 374 of the Code of Criminal

Procedure. By the impugned judgment, the appellant was convicted 2 APL742.18.odt

by the learned Sessions Judge for the offence punishable under

Section 302 of the Indian Penal Code and was directed to suffer

imprisonment for life and to pay a fine of Rs.500/- with default

clause.

2. On 08.10.2015, PW10 PSI Ashishsingh Thakur was In-

charge Police Station Officer at sub Police Station, Laheri. On the

said day, Soni Dolu Vadde (PW6) came to police station and narrated

the incident to him. As per the narration of PW6 Soni, PW10 Ashish

singh registered her report into writing. As per the evidence of PSI

Ashishsingh, her narration was in Madiya and Hindi language and

since he was not knowing Madia language, he took assistance of a

police station employee Rupesh Atram as a translator.

3. As per the report (Exh.22) lodged by Soni Vadde (PW6),

the appellant is her husband and deceased Rekhu Pusu Wadaddha

was her mother. According to the report, the appellant is habituated

to liquor and he used to demand money and if the money is not

given to him, he used to take up quarrel. As per the narration in the

report, on 07.10.2015 at about 7.00 p.m., the first informant, 3 APL742.18.odt

deceased, appellant and her son were present in the house and the

appellant was drinking liquor. He demanded money to the first

informant. On her refusal, he demanded money to her mother i.e.

his mother-in-law (deceased) and when the deceased disclosed that

she is not having money, he immediately took up a wooden log lying

on the spot and assaulted on the head of his mother-in-law.

4. On the basis of the report, PSI Ashishsingh (PW10)

registered the offence against the appellant vide Crime No. 02/2015

for the offence punishable under Section 302 of the Indian Penal

Code. Printed first information report is at Exh.23. PSI Ashishsingh

(PW10) himself conducted the entire investigation. During the

course of investigation, he visited the spot of the incident and drawn

the spot panchanama (Exh.14) in presence of PW2 Sadu Doge

Kudiyami. He also seized simple as well as blood mixed earth from

the spot vide seizure panchanama (Exh.15). Inquest was also

conducted under Inquest Panchanama (Exh.17). He thereafter sent

the dead body for post mortem. He also arrested the appellant under

arrest memo (Exh.32). His clothes were also seized under seizure

panchanama (Exh.16). After conducting other usual investigation, 4 APL742.18.odt

charge-sheet was filed by the Investigating Officer. After the charge-

sheet was filed, the learned jurisdictional Magistrate, in whose Court

the charge-sheet was presented, found that the offence was

exclusively triable by the Court of Sessions. Therefore, the case was

committed to the Court of Sessions and after committal, it was

registered as Sessions Case No. 08/2016. The learned Sessions

Judge framed Charge (Exh.8) against the appellant for the offence

punishable under Section 302 of the Indian Penal Code. The

appellant denied the charge and claimed for trial. In order to bring

home the guilt of the appellant, the prosecution has examined in all

11 witnesses and also relied upon various documents proved during

the course of the trial. The appellant did not examine any witness as

defence witness. The defence of the appellant, as it could be seen

from the answers given by the appellant during his statement under

Section 313 of the Code of Criminal Procedure, is that he has been

falsely implicated. After a full fledged trial, the learned Sessions

Judge has passed the impugned judgment. Hence, this appeal.

5. We have heard Mr. Abhijeet Sambaray, learned counsel

for the appellant and Mrs. Mrunal Barabde, learned Additional Public 5 APL742.18.odt

Prosecutor for the respondent/State. With the assistance of both the

learned counsel, we have gone through the entire record and the

evidence.

6. The only submission that was advanced before this

Court by the learned counsel for the appellant was that even if the

entire case of the prosecution is accepted, the appellant cannot be

convicted for the offence punishable under Section 302 of the Indian

Penal Code and at the most the appellant can be punished for the

offence punishable under Section 304 Part-II of the Indian Penal

Code. He, therefore, prayed accordingly.

7. Per contra, the learned Additional Public Prosecutor for

the State has vehemently supported the reasoning given by the

learned Sessions Judge.

8. After the dead body was sent by the Investigating Officer

for post mortem, it reached to the hospital at Laheri where Dr. Milind

Meshram (PW11) conducted autopsy. On examination, he found

following external injuries :

6 APL742.18.odt

i] Lacerated wound on occipito temporal region measuring 4 x 3 x 2 cm.

ii] Both nostrils were bleeding.

iii] Left ear was also bleeding.

On internal examination, he found corresponding haemotoma to the

injury on occipito temporal region. However, no fracture was found

to the skull. He proved the post mortem report. It is at Exh.47.

9. From the evidence of Dr. Milind Meshram (PW11) and

the findings recorded by him in Exh.47, there cannot be any dispute

that untimely death of the deceased was homicidal one.

10. The only question that falls for consideration of this

Court is as to whether the appellant should be convicted for the

offence punishable under Section 302 or 304 Part-II of the Indian

Penal Code, as claimed by the learned counsel for the appellant ?

11. Though, during trial 11 witnesses were examined by the

prosecution, PW1 Mura Giddo Parsa does not take the prosecution

case any further inasmuch as, as per this witness, he was informed by

the first informant that her mother is killed by the appellant. PW2 7 APL742.18.odt

Sadu Doge Kudiyami is a pcnah witness. PW3 Warlu Kumma Podadi

and PW4 Sanno Devu Fodadi, both have turned hostile and their

evidence is of no use for the prosecution. PW5 Rajesh Rama Parsa

though was an eye-witness, has not supported the prosecution at all.

PW7 Mura Goga Pallo is also an eye-witness. His evidence is also on

the line of PW5 Rajesh. Therefore, nothing turned on his evidence.

PW8 Gudsa Bodadi also turned hostile. PW9 is Deu Podali.

According to the prosecution, the incident took place at around 7.00

p.m. PW9 Deu admitted in his cross-examination that last bus from

Bhamragad to Laheri goes at 7.00 p.m. and due to bad condition of

road, it takes three hours to reach Laheri from Bhamragad. He

admitted that on the day of the incident, he reached home at 9.00

p.m. and learnt about the quarrel. Though, this witness is examined

as an eye-witness, from his cross-examination his character as eye-

witness is seriously doubtful and at the most it can be said that he

reached to the spot after the incident in question had occurred.

12. Now left only is the evidence of PW6 Soni Vadde.

Evidence of this witness shows that she is the wife of the appellant

and the daughter of the deceased. From her evidence it is clear that 8 APL742.18.odt

the deceased was residing with her and the appellant demanded

money to the deceased for bringing liquor and when the money was

not given, he assaulted on her head by a wooden log resulting into

death of her mother on the spot itself.

13. From the evidence of PW6 Soni it is clear that there was

no intention on the part of the appellant to kill his mother-in-law. He

demanded money from his mother-in-law for bringing liquor.

Though, nobody can support the act on the part of the appellant of

hitting on the head of his mother-in-law for not giving money for

liquor, the question is whether the appellant has committed murder

or not inasmuch as there was no intention on the part of the

appellant and it appears that the quarrel was initiated in between the

appellant and the deceased on account of money. After the assault

was made by the appellant, he has not taken the disadvantage. It is

to be seen from the post mortem report that there was no fracture to

the skull and there was only one injury to skull.

14. The necessary ingredients of Exception 4 to Section 300

of the IPC, namely (a) sudden fight, (b) absence of premeditation 9 APL742.18.odt

and (c) no undue advantage or cruelty, are fulfilled. From the

evidence on record, it appears that the act committed by the

appellant was without premeditation in a sudden fight in the heat of

passion due to refusal on the part of wife of the appellant to pay cash

for purchase of liquor. The appellant has not taken undue advantage

and there is single blow of wooden rod. The appellant has no

criminal antecedents.

15. In that view of the matter, we are of the view that there

is force in the submission made by the learned counsel for the

appellant that the appellant should be convicted for the offence

punishable under Section 304 Part-II, in stead 302 of the IPC.

Resultantly, we pass the following order :

ORDER

1. The Criminal Appeal is partly allowed.

2. The judgment and order of conviction passed by learned

Sessions Judge, Gadchiroli, dated 15.05.2018 in

Sessions Case No. 08/2016 is hereby quashed and set

aside to the extent it convicts and sentences the

appellant for the offence punishable under Section 302 10 APL742.18.odt

of the Indian Penal Code. In stead, the appellant is

convicted for the offence punishable under Section 304

Part-II of the Indian Penal Code and for that his sentence

shall be the period which he has undergone in jail from

the date of his arrest i.e. 08.10.2015.

3. Appellant - Dolu Gundi Wadde, shall be released from

jail, if he is not wanted in any other case.

4. The appeal is disposed of in the aforesaid terms.

                                    (AMIT B. BORKAR, J.)                (V.M.DESHPANDE, J.)

                      Diwale




Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:09.03.2022
16:48