Bombay High Court
Shivaji Sahebrao Madke vs The State Of Maharashtra on 4 March, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:5574-DB
Cri Appeal No.706 of 2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.706 OF 2019
Shivaji Sahebrao Madke,
Age : 40 years, Occ. Nil,
r/o. Moha, Tq. Kallam,
Dist. Osmanabad ..Appellant
Vs.
The State of Maharashtra,
Through Police Station, Dhoki,
Tq. and Dist. Osmanabad ..Respondent
----
Mr.Anand V. Indrale-Patil, Advocate for appellant
Ms.V.S.Choudhary, APP for respondent
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : MARCH 04, 2024
JUDGMENT (PER R.G.AVACHAT, J):
-
The appellant was convicted for the offence of committing
murder of his wife and father-in-law and therefore, sentenced to suffer
life imprisonment which shall mean imprisonment for the remainder of
his natural life and directed to pay fine of Rs.5,000/- with default
stipulation, vide judgment and order dated 14.09.2018, passed by
learned Addl. Sessions Judge, Osmanabad, in Sessions Case No.26 of
2014.
2. The facts, giving rise to the present appeal, are as
follows:-
The appellant had married Surekha. The couple was
blessed with three children; Renuka, Amruta (PW 3 and PW 4
respectively) and a son - Sushil. Initially, the couple was staying in
Pune. Something went wrong between the two. Surekha along with
his son started residing at her parental house, at village Dhoki. As
per the case of prosecution, the appellant had transferred 12 acres
of land in the name of his wife Surekha (deceased). On the given
day, i.e. on 22.01.2013, he went to the house of his in-laws. Surekha
(deceased), her parents and both the daughters namely, Renuka and
Amruta were in the house. The appellant bolted main-door from
inside. He asked his wife - Surekha (deceased) to re-transfer the
land in his name. He also asked her to pay him money. He first
assaulted his father-in-law Limbraj with a spade. He then fished out
a knife from his bag and rained its blows on Surekha and Limbraj.
The appellant then opened the door of the house and fled. On
hearing commotion at the house, the nearby persons gathered.
Some of them tried to catch the appellant. He pelted stones at them
and made his escape good. Both Surekha and her father - Limbraj
were rushed to the hospital. Both of them, however, succumbed to
the injuries.
3. PW 1 - Rajendra, residing in the neighborhood of the
deceased - Limbraj, lodged First Information Report (Exh.17) with
Police Station, Dhoki. The crime, vide C.R. No.9 of 2013, for the
offence punishable under Section 302 of Indian Penal Code was
registered. The scene of offence panchnama (Exh.64) was drawn.
Both the dead bodies were subjected to autopsy. The appellant was
arrested. The statements of the persons acquainted with the facts
and circumstances of the case were recorded. Upon completion of
the investigation, the appellant was proceeded against by filing
charge sheet. The case was committed to the court of learned Addl.
Sessions Judge, Osmanabad, for trial. The trial Court framed Charge
(Exh.3). The appellant pleaded not guilty. His defence was of false
implication. According to him, deceased Limbraj had reared cattle.
At the relevant time, the cattle were let loose. Both Surekha and her
father Limbraj were mauled by the cattle and thereby, both of them
died.
4. The prosecution examined thirteen witnesses and
produced in evidence certain documents. On appreciation of the
evidence in the case, the trial court convicted the appellant and
consequently, sentenced as stated above.
5. Heard learned counsel for the parties.
6. Learned counsel for the appellant took us through the
evidence on record. According to him, the deceased died as a result
of the injuries suffered on account of the cattle to have mauled
them. He would further submit that PW 3 and PW 4 were child
witnesses. They are prone to tutoring. The trial court did not put
them questions to ascertain, whether they were competent to testify,
in view of Section 118 of the Evidence Act. According to him, the
evidence of PW 1 - informant is got up. The house of the deceased
Limbraj was behind the shop of PW 1. He might have reached the
house of the deceased after the incident was over. According to
learned counsel, the evidence of PW 1, therefore, cannot be acted
upon. He, ultimately, urged for allowing the appeal.
7. Learned APP would, on the other hand, reiterate the
reasons given by the trial court in support of the impugned judgment
and order.
8. Considered the submissions advanced. Perused the
evidence relied on. The case is based on circumstantial evidence.
9. The post mortem reports of both the deceased - Surekha
and Limbraj, Exhs.21 and 22, respectively, indicate both of them
died of "hemorrhagic shock due to stab injury". PW 2 - Dr.Sujit had
conducted autopsy on the mortal remains of both the deceased. He
noticed following injuries on the person of deceased Limbraj:-
(1) Stab injury on chest in third left
intercostal, anterior 6x2x9 cm.
(2) Contused laceration on frontal bone on
skull, 1 cm on left side from mid- line, 5x3
bone deep.
(3) Contused lacerated wound,
5x2xbone deep, on frontal bone of
skull, 6 cm. on left side from mid-line.
(4) Abrasion on left eye-lid, 3x2x1 cm.
There was palpable fracture, corresponding to
injury no.2. The injuries were ante-mortem
He noticed following injuries on the person of deceased Surekha :-
(1) Stab injury in left pelvic quadrant of
abdomen, 6 cm left from umbilicus
and 1 cm from 2 supra-iliac spine,
intestines, came outside from body
through the injury, size of injury was
5x3 cm. inflamed intestine.
(2) Laceration on left upper arm posterior
aspect, 20x5x4 cm.
(3) Laceration on left fore-arm, lateral aspect,
5x1x0.5 cm.
(4) Laceration on posterior border of left axila,
3x3x0.5 cm.
(5) Laceration on left breast, 3 cm. from left
areola, 4x2x0.5 cm., on upper and lower
lateral quadrant,
(6) Laceration on right thigh, 2 cm. from right
knee, on lateral aspect, 6x1x0.5 cm.,
(7) Contused laceration on head, 3x2x1 cm.,
The injuries were ante-mortem
Following internal injuries were found:-
1. Haematoma on both temporal bone,
10x6x0.3 cm.
2. Stab injury on abdomen corresponding to
external injury No.1.
3. Peritoneal breach corresponding to external
injury No.1.
4. Cavity found filled with 100 ml.,
Small intestines were outside body having inflamed
and multiple perforations on small intestinal walls,
corresponding to injury no.1.
10. The defence of the appellant is that there was cattle-
shed close by the house of Limbraj. The deceased had reared cattle.
At the relevant time, the cattle were let loose. Those cattle had
mauled both the deceased - Surekha and Limbraj.
11. PW 2 - Dr.Sujit ruled out the injuries on the person of
both of them to have been caused on account of the cattle to have
mauled both of them. It needs no mention that even a wrong
defence may fill-in the missing link.
12. It is an open-and-shut case. PW 1 - Rajendra, neighbor of
deceased Limbraj, lodged the FIR (Exh.17). His evidence is
consistent therewith. It is in his evidence that the house of deceased
Limbraj was nearby his shop. It was 06.00 p.m. of 22.01.2013. He
was present in his shop. He heard hue and cries from the house of
Limbraj. He, therefore, rushed to Limbraj's house. He saw the
appellant coming out of the house. People, gathered outside, tried
to catch the appellant. The appellant, however, pelted stones at
them. As such, the appellant made his escape good. It is further in
his evidence that he, thereafter, entered the house of Limbraj to see
both Limbraj and Surekha suffered multiple injuries. He and other
persons shifted both of them to the Government Hospital, Dhoki.
The Medical Officer there declared them dead. He, thereafter, went
to the police station and lodged the FIR (Exh.17).
During the cross-examination of PW 1, although it has
come on record that the house of deceased Limbraj was behind his
shop, his evidence indicates that he rushed to Limbraj's house on
hearing hue and cry. All other suggestions in the nature of the
appellant's defence have been replied in negative.
13. PW 3 - Renuka and PW 4 - Amruta are daughters of the
appellant. Both of them were of the age 14 and 13, respectively, at
the relevant time. Same indicates that both of them were of the age
of understanding. Learned counsel for the appellant, therefore,
could not be heard to say that the trial court did not put both these
witnesses certain questions to ascertain, whether they were
competent to depose. The evidence of both the daughters of the
appellant is to the effect that they along with their mother
(deceased) were residing with their maternal grand-parents at village
Moha. The appellant came their residence on 22.01.2013 by 06.00
p.m. Both of them were present. Their mother and grandparents
were also there. Their younger brother Sushil had gone out of house
for playing. The appellant asked her mother (deceased Surekha) to
transfer 12 acres of land back to his name. It is further in their
evidence that the appellant picked up a spade and assaulted on the
head of Limbraj. The appellant then took out a knife from his bag
and rained blows on the person of both Limbraj and Surekha. Their
evidence further indicates that the appellant, after having entered
the house, bolted the main-door from inside. Their evidence further
indicates that after assaulting both Surekha and Limbraj, the
appellant fled.
14. We have closely perused the cross-examination of both
these witnesses to find nothing useful could be elicited in defence. It
is true that PW 3, admitted, in her cross-examination, that the
appellant used to visit her school to meet her. It may appear that
the appellant might have affection towards his daughters. The fact
remains that he committed murder of his wife and the father-in-law
in the presence of his both the daughters. The daughters (PW 3 and
PW 4) had no reason to falsely implicate their father.
15. There is evidence of one more witness namely, Usha
(PW 5). She was residing in the neighborhood of the house of the
deceased Limbraj. She saw the appellant armed with knife.
16. The appellant, pursuant to the disclosure statement
(Exh.60), took out a knife and clothes on his person. Those came to
be seized under panchnama (Exh.61).
17. The other prosecution witnesses are photographers,
panchas and the police officers who played some role in the
investigation of the crime. We do not propose to advert to their
evidence since the evidence of the eye witnesses namely, PW 1, PW
3 and PW 4 brought home the charge of murder. We find no reason
to interfere with the impugned order of conviction.
18. There is, however, another aspect of the matter. The
trial court, in the operative order of conviction and consequential
sentence, directed the appellant to suffer rigorous imprisonment for
life which shall mean imprisonment for the remainder of his natural
life.
19. Section 302 of Indian Penal Code prescribed punishment
for the offence of `murder'. Section 302 reads thus:-
302. Punishment for murder -- Whoever
commits murder shall be punished with
death, or imprisonment for life, and shall
also be liable to fine.
20. According to learned counsel for the appellant, the
direction of the trial court that the appellant shall suffer
imprisonment till end of his natural life, would come in the way of the
appellant for grant of remission. According to learned counsel, the
trial court did not have jurisdiction to pass such an order, which will
curtail the State/Central Government's administrative/executive
powers under Section 433-A of the Code of Criminal Procedure.
We are in agreement with the submissions made by
learned counsel for the appellant.
21. The Apex Court, in the case of Ravinder Singh Vs.
State Government of NCT of Delhi, (2024)2 SCC 323, observed
thus:-
Penal Code, 1860 - S.53 r/w S.43 - Sentence -
Imposition of life imprisonment for a specified
minimum non-remittable term - Reiterated, can be
imposed only by High Courts and Supreme Court -
Imposition of life imprisonment for a specified
minimum non-remittable term, held, not prohibited
under IPC or CrPC, but the power to impose such a
modified punishment, held, can only be exercised by
High Court and in the event of further appeal, by
Supreme Court, and not by any other court in the
country.
22. For the aforesaid reasons, the appeal is dismissed.
However, the sentence "which shall mean imprisonment for the
remainder of his natural life", appearing in clause 2 of the operative
order of conviction and consequential sentence, stands hereby
withdrawn.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
