Bombay High Court
Krushna Jairam Patara vs State Of Maharashtra on 24 February, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1199 OF 2022
WITH
INTERIM APPLICATION NO.3799 OF 2022
IN
CRIMINAL APPEAL NO.1199 OF 2022
Krushna Jairam Patara
Age about 50 years, Occupation Labour
Residing at Shigaon Khutaed
Taluka and District Palghar
(presently lodged in Nasik Central Jail) .... Appellant
versus
The State of Maharashtra
(At the instance of Boisar Police Station) .... Respondent
.......
• Mr. Gautam T. Kanchanpurkar, Advocate for Appellant.
• Mr. S. R. Agarkar, APP for the State/Respondent No.1.
CORAM : SARANG V. KOTWAL, J.
DATE : 24th FEBRUARY, 2023
JUDGMENT :
1. The Appellant has challenged the Judgment and Order
Digitally
signed by
MANUSHREE
dated 22/03/2022 passed by the Additional Sessions Judge,
MANUSHREE V
V NESARIKAR
NESARIKAR Date:
2023.02.28
Palghar, in Sessions Case No.41/2018. By the impugned
14:42:29
+0530
Nesarikar
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Judgment and Order, the Appellant was convicted and sentenced
as follows ;
(a) He was convicted for commission of the offence
punishable u/s 304(II) of the Indian Penal Code and
was sentenced to suffer rigorous imprisonment for
seven years and to pay a fine of Rs.500/- and in
default of payment of fine to suffer rigorous
imprisonment for three months.
(b) He was given set off u/s 428 of Cr.P.C. for the period
he was in custody as an under-trial prisoner.
2. Heard Mr. Gautam T. Kanchanpurkar, learned counsel
for the Appellant and Mr. S. R. Agarkar, learned APP for the State.
3. The prosecution case is that, in the night of 1st and 2nd
March 2018, there was Holi celebration. The Appellant and his
wife Sangita were dancing in that celebration. In the night, both
of them went home. In the early morning, the Appellant came to
his mother, who was residing nearby and told her that the
deceased was lying in serious condition. The Appellant's mother
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informed the family members of the Appellant's wife Sangita
and others. All of them rushed to the spot. They saw that
Sangita was lying unconscious with a head injury. She was taken
to a hospital at Tarapur. She died in the hospital. Initially, an
accidental death report was given by Sangita's brother. The post-
mortem examination was conducted. Sangita's sister Kalpana
Govari lodged her FIR. Initially it was registered at Tarapur
Police Station, vide C.R.No.00/2018 and then it was transferred
to Boisar police station, where it was registered vide
C.R.No.50/2018 u/s 302 of the IPC. The investigation was
carried out. The Appellant was arrested on 03/03/2018. During
investigation, the statements of witnesses were recorded. At the
instance of the Appellant, his clothes and the murder weapons
i.e. a stone and a wooden log were recovered from his house
and from the backside of the house. The articles were sent for
chemical analysis. At the conclusion of the investigation, the
charge-sheet was filed and the case was committed to the Court
of Sessions.
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4. During trial, the prosecution examined 12 witnesses
including Sangita's brother, sister, cousin and uncle, Appellant's
mother and brother, Panchas, Medical Officer conducting the
post-mortem examination and the Investigation Officer.
5. The defence of the Appellant was of total denial.
However, some suggestions were given to some witnesses that
two unknown boys had assaulted the deceased. At some places
another suggestion was given that the deceased fell on a stone
and suffered injuries. The learned Trial Judge disbelieved the
defence of the Appellant. He referred to the police statement of
the Appellant's mother. The contradictory part from her police
statement compared to her deposition was proved by the
Investigating Officer. Learned Judge relied on those
contradictory parts. In that statement, the Appellant's mother
had referred to the confession made by the Appellant to his
mother that he had committed Sangita's murder because he had
seen two unknown boys with Sangita and one of them was
without his clothes. The learned Judge concluded that this
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description of the incident fell within Exception 4 of section 300
of the IPC and held that it was the case of culpable homicide not
amounting to murder. Though the Appellant was charged with
the offence of commission of murder u/s 302 of the IPC; instead
the Appellant was convicted for offence punishable u/s 304(II)
and was sentenced to suffer rigorous imprisonment of seven
years.
6. P.W.1 Kalpana Govari was Sangita's sister. She has
deposed that Sangita had got married with the Appellant about
15 years before the incident. According to this witness, the
Appellant used to beat Sangita and there used to be quarrel
between them. She has deposed that she had personally seen the
Appellant beating Sangita after consuming liquor. The incident
occurred during Holi festival. On the day of incident at about
08.30 a.m. P.W.1's cousin Pournima Govari (P.W.3) called P.W.1
telephonically and told her that Sangita was not feeling well and
that she should come to Sangita's house. P.W.1 then went to
Sangita's house. She was lying unconscious with injury on her
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head. P.W.1 along with others took her to Talasari Hospital. On
the same day, during treatment, she died. P.W.1 lodged her FIR.
It is produced on record at Ex.8. She has deposed that the
Appellant and Sangita were residing separately from other
family members.
In the cross-examination, she stated that the distance
between her house and Sangita's house was approximately 1 ½
km. Sangita was habituated to consuming liquor. When she saw
Sangita on that day, she was unconscious and did not talk with
her. Before the incident, she was in the house of Sangita till
10.00 p.m. and there was no quarrel. She deposed that she did
not know whether Sangita had consumed liquor and because of
that fell on the stone and died. P.W.1's FIR substantially
corroborates her evidence.
7. P.W.2 Chandrakant Govari was Sangita's uncle. On the
day of Holi, he had gone to the Appellant and Sangita's house.
At about 10.00 p.m. P.W.2 returned home. On the next day, the
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Appellant's brother and mother came to his house and told him
that Sangita had become unconscious. The Appellant's mother
told him that Sangita fell down under the influence of liquor.
P.W.2 along with others went there and saw Sangita. She had
suffered bleeding injury. There was a stone and wooden log
lying at the spot outside the house. Sangita was taken to Tarapur
Civil Hospital, where she died.
In the cross-examination, he deposed that he was
unaware whether Sangita was having love affair with two boys
from the village.
8. P.W.3 Pournima Govari was Sangita's cousin. She has
deposed that after Sangita's marriage there used to be quarrels
between her and the Appellant. She has stated that the
Appellant used to consume liquor and used to suspect Sangita's
character. Sangita used to tell this witness about it. She had told
this witness that the Appellant used to beat her. The incident
took place on 02/03/2018. She has deposed that P.W.2 i.e. her
father had gone to Sangita's house and he had returned at 10.00
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p.m. On the next day the Appellant's brother and mother came
to her house at 08.00 a.m. They informed that Sangita had
become unconscious. The Appellant's mother told her that on
the previous night there was a quarrel between Sangita and the
Appellant and in the fit of anger, he assaulted Sangita with a
wooden log. P.W.3 and others went to Sangita's house. Sangita
was injured and she was taken to Talasari hospital. This witness
had seen a stone and the wooden log lying outside the house.
She identified the Appellant before the Court. There is nothing
of much importance in her cross-examination. It mainly consists
of mere suggestions.
9. P.W.6 Kunal Govari was a villager from that village. He
has deposed that on 01/03/2018, it was a festival of Holi. At
about 09.00 p.m. he had gone to the place where Holi was
celebrated. He had seen the Appellant and Sangita present at
that time. He has deposed that he and others were dancing till
02.30 a.m. Then he went back to his house. On the next day, he
came to know that Sangita was murdered.
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In the cross-examination, he deposed that on
01/03/2018, there wasn't any quarrel between the Appellant
and Sangita.
10. P.W.7 Nitesh Govari was a Rikshaw driver, in whose
Rikshaw, Sangita was taken to hospital.
11. P.W.9 Rajesh Kadu, was Sangita's brother. He was
informed by P.W.1. He went to Sangita's house and saw her lying
unconscious. She was taken to hospital. During treatment she
died. He gave information to the police. It was registered as the
accidental death report and it was produced on record at Ex.36.
His house was barely 200 ft away from Sangita's house.
In the cross-examination he has admitted that Sangita
was addicted to liquor.
12. P.W.10 Sanjay Patara was the Appellant's brother. He
has deposed that his mother Hiru was residing with him and
some times with his other brother. The Appellant and Sangita
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were residing separately. His house was 100 ft. away from the
Appellant's house. The Appellant and Sangita did not have
children. The incident took place on the day of Holi. He deposed
that at about 11 to 11.30 p.m. Sangita went to her house. P.W.10
himself was present at the place where Holi was celebrated. At
04.30 a.m., the Appellant went home. He further deposed that
the Appellant told his mother that Sangita had fallen outside her
house and there were no clothes on her person. The Appellant
had further told his mother that he had seen two persons
running away from his house.
13. P.W.5 Hiru Patara is an important witness. She was the
mother of the Appellant. Though she was declared as a hostile
witness, still her evidence is important. She has deposed that she
had five sons. At the time of the incident, she was residing with
P.W.10 Sanjay Patara. The Appellant and Sangita were residing
together at a different place. Their house was at a distance of
100 to 200 ft away from Sanjay's house. On the date of Holi
festival after 12 p.m., everybody went home. On the next day, at
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about 05.00 a.m. the Appellant came to Sanjay's house and
woke up this witness and told her that Sangita had fallen
unconscious. She went there. She saw that Sangita was lying on
the ground. There were no clothes on her person. She had
suffered bleeding injury on her head. The Appellant told this
witness that Sangita fell on a stone when she was running away
from the house. He did not tell the reason why she was running.
After that, P.W.5 informed others and Sangita was taken to a
hospital.
14. After this part of her deposition, she was declared
hostile and she was cross-examined by learned APP. The contrary
portions from her police statement were marked as 'A' and 'B'.
They were formally proved through the Investigating Officer,
who had recorded her statement. Those are brought on record at
Ex.51 and 52. They read thus;
'There used to be quarrel between my son Krishna
and daughter-in-law Sangita on the ground of
Sangita's character.'
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'After I asked repeatedly, he started crying. He
took me to his house and told that he had seen
Sangita with two boys. Out of them, one boy had
not worn shirt. He did not know their names.
They ran away on seeing him. Sangita was alone
in the house. On seeing him, she started running
away. Therefore, he caught her and gave several
blows and because of that she had fallen at the
spot.'
In the cross-examination conducted on behalf of the
Appellant, she accepted that the Appellant had told her that he
had seen two boys running away from his house and that
Sangita had fallen in the backyard of the house.
15. P.W.11 Rahul Mahala was the carrier, who had carried
the articles for chemical analysis.
16. P.W.8 Subhash Lilka, was a Pancha in whose presence,
the Spot Panchanama was conducted at Ex.29. It was conducted
on 03/03/2018 between 06.15 p.m. to 07.00 p.m. He was also a
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Pancha in whose presence the Appellant had given a
memorandum statement (Ex.30) u/s 27 of the Indian Evidence
Act showing his willingness to point out the place where he had
concealed his clothes and the weapons. His clothes were
recovered at his instance from his house and the wooden log
and the stone were recovered from backside of his house, from
under a Tamarind tree. That Panchanama is produced on record
at Ex.31. It was carried out on 05/03/2018. The C.A. report
concerning those articles is produced on record. The C.A. report
shows that there was blood of 'A' group on Sangita's blouse and
on the Appellant's T shirt. Blood was also found on the stone but
the blood group was inconclusive.
17. P.W.4 Dr. Manoj Shinde, had treated Sangita, when she
was alive, but was unconscious. He conducted her post-mortem
examination after her death. On examination he found the
following injuries:
(1) Deep lacerated wound over lateral aspect of right
eye about 3 cm x 1 cm x 1 cm in dimension.
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(2) Abrasion with bruises over left lateral aspect of
left eye and chin about 2 cm in dimension each.
(3) Abrasion over right cheek about 2 cm in
dimension.
(4) Irregular abrasions over left shoulder and
anterior aspect of arm about 10 cm in length.
(5) Irregular multiple liner abrasions and bruises
involving lateral aspect of left thigh about 20 cm
x 10 cm in dimension.
(6) Abrasion over forearm and hands.
(7) Abrasion over both knees about 2.5 cm
dimension each.
(8) Contusion over anterior aspect of left thigh.
(9) Irregular abrasion over left buttocks.
(10) Contusion over left lower and right lower aspect
of upper back with minimal abrasion.
On internal examination he found that there was
fracture at the base of the skull. There was intracranial
hemorrhage. There was fracture of 5th, 6th, 7th and 8th rib. Liver had
injuries with intra abdominal bleeding. As per his opinion, the
cause of death was head injury and intracranial hemorrhage. The
injury to the head was sufficient to cause death. The injuries were
possible with a blunt object like a wooden log.
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18. P.W.12 API Kishor Shinde, was the Investigating Officer.
He had investigated C.R.No.50/2018 registered at Boisar police
station. He had seized the clothes of the deceased. He had
recorded statements of witnesses. He had conducted the Spot
Panchanama and the Recovery Panchanama. He proved the
portion marks 'A' and 'B' from P.W.5's statement, which are
produced on record at Ex.51 and 52. Sangita had died after 10-
12 hours after having been taken to the hospital. She was
unconscious till she died.
This, in short, is the evidence led by the prosecution.
19. Learned counsel for the Appellant submitted that there
are no eyewitnesses to the incident. There is no evidence based
on which, the conviction of the Appellant can be recorded. He
submitted that the evidence shows that there was no quarrel
between the couple on the previous night or during Holi festival.
There was no immediate reason for the Appellant to cause her
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murder. He submitted that the recovery of the articles is not
conclusive because the alleged weapons i.e. the stone and the
wooden log, were found from an open space behind the house
of the Appellant. It was accessible to all. He further submitted
that even otherwise, the C.A. report is not conclusive. The
prosecution has not proved that the Appellant's blood group was
not 'A' group. There is nothing to show that there was blood on
the wooden log. The blood was found on the stone, but the
blood group was inconclusive. In any case, since the deceased
had fallen at that spot, therefore, finding of blood stains on the
stone was not improbable. He submitted that the Learned Judge
has already held that it is not a case of murder, but it is a case of
offence punishable u/s 304-II of the IPC. He submitted that the
Applicant is in custody for almost five years continuously.
Considering the nature of offence and the circumstances,
leniency be shown to him and the sentence be reduced.
20. Learned APP opposed these submissions. According to
him, the learned Judge has given proper reasons in convicting
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the Appellant. The presumption u/s 106 of the Indian Evidence
Act is important and the Appellant has not given any
explanation whatsoever regarding injuries suffered by the
deceased. The burden was strictly on the Appellant to explain
those injuries as per section 106 of the Indian Evidence Act. He
submitted that looking at the nature of the injuries, it cannot be
said that he had no knowledge of the effect of these injuries.
Learned APP therefore supported the impugned Judgment and
Order.
21. I have considered these submissions. As rightly argued
by learned APP and as it is rightly held by learned Trial Judge,
the Appellant has not discharged his burden u/s 106 of the
Evidence Act. The incident had occurred during early hours after
02.30 a.m. on 02/03/2018. Sangita was found in the house. The
Appellant was present in the house. He had informed his
mother. Therefore, it is undisputed that the Appellant was with
the deceased during that time and therefore burden was on him
to explain the circumstances. He has not discharged that burden
through any defence evidence.
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22. Learned counsel for the Appellant however is right in
attacking the evidence regarding recovery of the articles. The
stone and the wooden log were found from an open space.
There is nothing to show that the wooden log had blood stains.
Though, the Appellant's T shirt was recovered from his house
and though it shows presence of blood of 'A' group, the
prosecution has failed to prove that it was not his own blood
group. The prosecution has not brought any evidence on record
to show what was the blood group of the Appellant. Therefore,
the evidence regarding the recovery of the weapons and the
clothes of the Appellant will not help the prosecution.
23. The main evidence against the Appellant is the fact
that the deceased was in his company during odd hours and he
had not explained the injuries.
24. In this context, the prosecution has relied on Ex.50 and
51 which are portions from police statement of P.W.5. There is
hardly any effective cross-examination of this witness on behalf
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of the Appellant regarding this portion from her police
statement. In fact, the cross-examination on behalf of the
Appellant also includes her answer that the Appellant had told
her that he had seen two boys running from his house and that
Sangita had fallen behind his house. He had also told her that
one of the boys was not having clothes on his person and that
there were no clothes on the person of Sangita. Thus, even the
prosecution's as well as the defence's case is consistent on the
point that the Appellant had seen two boys running from the
house. Out of them, one was not wearing clothes. Even Sangita
was not wearing clothes. Therefore, he got angry and then
assaulted Sangita. The learned Judge has believed this incident
based on this deposition. I do not see any reason to take a
different view. The learned Judge has observed that the incident
would fall within the Exception 4 of section 300 of the Indian
Penal Code, which reads thus,
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
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and without the offender having taken undue
advantage or acted in a cruel or unusual manner.
However, in my opinion, the incident and the
circumstance would fall within the Exception 1 of section 300 of
the Indian Penal Code, which reads thus;
Exception 1 - When culpable homicide is not
murder - Culpable homicide is not murder if the
offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes
the death of the person who gave the provocation
or causes the death of any other person by mistake
or accident.
25. It is quite clear from the evidence that the Appellant
had seen two boys and deceased in objectionable situation,
which would amount to grave and sudden provocation making
him lose his self-control causing him to assault the deceased
Sangita and thereby causing the injuries which are reflected in
the post-mortem notes. Therefore, though the conviction is
properly recorded u/s 304-II of the Indian Penal Code; in my
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opinion, the incident would fall within Exception 1 of section
300 and not within Exception 4 of section 300 of the Indian
Penal Code.
It is very significant that the prosecution is relying on
the extra-judicial confession made by the Appellant to his
mother. That confession itself shows that it was a case of grave
and sudden provocation.
26. Considering overall circumstances and the reasons for
this assault, some leniency can be shown to the Appellant. He
was sentenced to suffer rigorous imprisonment for 7 years. He is
already in custody since 03/03/2018. Therefore, the sentence
imposed on him can be reduced to a certain extent.
27. Hence, the following order :
ORDER
(i) The Appeal is partly allowed.
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(ii) The conviction of the Appellant u/s 304(II) of
the Indian Penal Code is upheld. However,
instead of rigorous imprisonment of 7 years, the
Appellant is sentenced to suffer rigorous
imprisonment for 5 years and to pay a fine of
Rs.500/- and in default of payment of fine to
suffer rigorous imprisonment for 3 months.
(iii) The Appellant is given set off u/s 428 of Cr.P.C.
(iv) With these directions, the Appeal is disposed of.
(v) With disposal of the Appeal, the connected
Interim Application is also disposed of.
(SARANG V. KOTWAL, J.)
