Shankar Kishor Salve vs The State Of Maharashtra
2024 Latest Caselaw 25641 Bom

Bombay High Court

Shankar Kishor Salve vs The State Of Maharashtra on 10 September, 2024

Author: R.G.Avachat

Bench: R.G.Avachat

2024:BHC-AUG:21940-DB



                                                                Cri Appeal No.610 of 2022.odt


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                             CRIMINAL APPEAL NO.610 OF 2022

            Shankar s/o. Kishor Salve,
            Age 21 years, occ. Driver,
            r/o. Shriramnagar, Mirajgaon,
            Tq. Karjat, Dist.Ahmednagar                             ..Appellant

                  Vs.

            The State of Maharashtra,
            Through Police Inspector,
            Karjat Police Station,
            Tq. Karjat, Dist. Ahmednagar                            ..Respondent

                                              ----
            Mr.N.R.Thorat, Advocate for appellant
            Mr.G.A.Kulkarni, APP for respondent
                                              ----

                                     CORAM       :        R.G.AVACHAT AND
                                                          NEERAJ P. DHOTE, JJ.
                                        DATE     :        SEPTEMBER 10, 2024

            JUDGMENT (Per R.G.Avachat, J.)           :

-

The challenge in this appeal is to the judgment of

conviction and order of consequential sentence dated 08.07.2022,

passed by learned Addl. Sessions Judge, Shrigonda, in Sessions Case

No.82 of 2021, whereby the appellant was convicted for committing

murder of his wife and therefore, sentenced to suffer imprisonment for

life and to pay fine of Rs.5,000/-, with default stipulation.

2. The fact, in brief, giving rise to the present appeal are as

follows:-

The appellant was 20 years of age at the material time.

He was in love with Ku. Neha (deceased). She was just 16 years of

age. Her family members were, therefore, opposed to the proposed

love marriage of the appellant. Still, they got married. Smt.Diksha

(PW 3) was sister of Neha. She was residing at Navsari, Gujarat. The

appellant was residing in the premises taken on rent at village

Mirajgaon, Tq. Karjat, Dist.Ahmednagar. He along with his wife Neha

(deceased), her brother Dnyaneshwar and sister Diksha (PW 3)

returned to Mirajgaon in his tempo. Diksha had her baby with her.

It was 17.06.2020. Neha cooked food. The appellant and her

brother took meals. He went outside the house for a while. He

immediately came back. Quarrel ensued between the appellant and

his wife Neha. He beat her up. Diksha along with her kid and her

brother Dnyaneshwar, therefore, left the house for her native village

Pothare. After about one and half hours thereafter, the appellant

made phone call to her brother Dnyaneshwar and informed Neha to

have committed suicide. Diksha along with her brother

Dnyaneshwar, therefore, came back to the house of the appellant.

They saw Neha dead. She had suffered injuries. Diksha, initially,

lodged report (Exh.16) about unnatural death. It was registered vide

No.19 of 2021 with Karjat Police Station. On post mortem, it was

realised that deceased died of head injury. Diksha, therefore, lodged

FIR (Exh.17) with Karjat Police Station, on the following day. A crime

vide C.R. No.132 of 2021 was, therefore, registered against the

appellant for the offence punishable under Section 302 of Indian

Penal Code.

3. On completion of the investigation, he was proceeded

against by filing the charge sheet. The trial court framed Charge

(Exh.4). The appellant pleaded not guilty. His defence was of false

implication.

4. The prosecution examined seven witnesses and

produced in evidence certain documents. The trial court, on

appreciation thereof, convicted and consequently, sentenced the

appellant, as stated above.

5. Heard learned counsel for the parties.

6. Learned counsel for the appellant would submit that the

case is based on the testimony of sole witness, namely Diksha

(PW 3), sister of deceased. According to him, she gave three

different statements. He then adverted our attention to the report

(Exh.16) lodged by her on 08.03.2021, pursuant to which unnatural

death case was registered. He then took us through the FIR (Exh.17)

and her statement recorded under Section 164 of the Code of

Criminal Procedure. According to him, Diksha (PW 3) did not stand

by the prosecution. There is no other evidence to indicate the

appellant to have committed any crime. He, therefore, in the first

instance, prayed for allowing the appeal in toto. In the alternative,

he urged for converting the conviction from the offence punishable

under Section 302 of Indian Penal Code to Section 304 Part II of

Indian Penal Code. According to him, the incident took place at the

spur of moment. There is no premeditation. No weapon was used.

He, therefore, prayed for sentencing the appellant for the period

already undergone by him.

7. Learned APP would, on the other hand, submit that the

appellant had mercilessly beaten up his wife. The post mortem

report would speak for the same. Although PW 3 - Diksha did not

stand by the prosecution, there is some evidence to indicate the

appellant to have had quarreled with his wife Neha (deceased) and

assaulted her. The deceased died at her matrimonial home, shared

by the appellant alone. The appellant, therefore, owe explanation.

Learned APP, ultimately, urged for dismissal of the appeal.

8. Considered the submissions advanced. Perused the

evidence on record. Let us advert thereto and appreciate the same.

9. Admittedly, the appellant was 20 years of age at the

relevant time. He married deceased Neha. It was a love marriage.

Neha had not attained the age of majority while she married the

appellant. Her parents, therefore, were opposed to their marriage. It

is not in dispute that the appellant along with Neha (deceased)

would reside in one room premises at village Mirajgaon. It was taken

on rent from PW 5 - Smt. Bai Raut. We do not propose to refer to her

evidence, since same speaks about the premises to have been lent

to the appellant at a monthly rent of Rs.1,500/-.

10. PW 1 - Ganesh is witness to the inquest panchnama

(Exh.10). PW 2 - Sham is witness to the spot panchnama (Exh.13),

while PW 4 - Sachin is witness to the disclosure statement made by

the appellant, pursuant to which a waist-belt came to be

recovered/seized under panchnama. Both memorandum statements

and seizure panchnama are Exh.24 and Exh.25, respectively. There

is nothing to indicate the appellant to have had assaulted the

deceased with the very belt. The disclosure statement, therefore,

could not be termed to be relevant under Section 27 of the Evidence

Act.

11. PW 6 - Dr.Suvarnamala conducted autopsy on the mortal

remains of the deceased. The post mortem report under her

signature is at Exh.33. She noticed the following external injuries on

the person of deceased Neha :-

(1) "C" shaped impression marks broader end at the upper part of chin, more on right side, size 7 cm x 1 cm (½ cm) variable.

(2) Bruises over both the palms.

(3) CLW 2 x 3 mm. At aural puncture site.

(4) Multiple contusions over back, size 10x15 cm., 5x3 c.m., 7x5 cm.

(5) Contusion over thigh right side size 5 cm x 3 cm (greenish colour), left side, size 6 cm. x 5 cm. (6) Tongue was inside the mouth.

She also noticed following injuries :

(1) Hematoma of size 3 cm x 5 cm beneath the parietooccipital region (scalp) 3 cm. above right ear.

(2) Extradural hematoma of size 4 cm x 6 cm over occipital region of brain (3) Intracranial bleeding of 50 cc present. (4) Meninges intact but congested.

(5) Both the lungs were congested and froth present.

(6) All the internal organs like liver, gallbladder, pancreas, spleen, both the kidneys were congested.

(7) Uterus is normal size and empty (No features of pregnancy)

However, viscera was preserved in following manner:

(A) Bottle A - Stomach and its contents in sodium chloride.

(B) Bottle B - Heart, lungs, liver, spleen, kidney in pieces kept in sodium chloride

In the opinion of PW 6 - Dr. Suvarnamala, the deceased died of

"Intracranial Hemorrhage due to head injury". Viscera was

preserved. During her evidence, she testified that if someone bangs

head of the victim against a wall, the injury like one suffered by the

deceased could occur. According to her, the other injuries noticed on

the person of the deceased are possible by hit with a belt.

12. The star-witness in the case is PW 3 - Diksha, sister of

deceased. It is in her evidence that the appellant along with his wife

Neha (deceased) had come to her place, Navsari, Gujarat, on

07.03.2021. She along with her kid, her brother Dnyaneshwar, the

appellant and his wife Neha (deceased) returned to the appellant's

house, at Mirajgaon, on 08.03.2021. Neha prepared food. It was little

past 12.30 p.m., heated arguments ensued between the appellant

and his wife Neha. Neha went outside the house. She was

pregnant. She accidentally fallen down. Still, the quarrel continued.

PW 3 - Diksha along with her brother Dnyaneshwar left the house for

village Pothare. After about one and half hours, the appellant called

his brother-in-law Dnyaneshwar and informed Neha to have

committed suicide by hanging. PW 3 - Diksha along with

Dnyaneshwar returned to the house of the appellant. They saw

nothing like the case of hanging. She, however, noticed some

injuries on the person of Neha.

13. Since PW 3 - Diksha did not stand by the prosecution,

learned APP cross-examined her at length. She admitted that there

was quarrel between the appellant and his wife Neha. She,

therefore, left the house. She was then confronted with her

statement to the police and her statement recorded under Section

164 of the Code of Criminal Procedure. While in cross-examination

undertaken by the defence, she testified that since she had washed

the clothes outside the house, the floor had become slippery. Neha

accidentally slipped and suffered injury.

14. Admittedly, PW 3 - Diksha is not witness to what she has

stated about deceased Neha to have suffered injury by sudden fall.

The Medical Officer (PW 6) ruled out the head injury to have been

caused by fall on stones. Admittedly, outside the house of the

appellant, the floor was plain. Their might be some small stones.

Since Neha died as a result of the head injury suffered by her while

in exclusive company of the appellant, it is the appellant, who owed

explanation how did she suffer the said injury and other injuries

noticed on her person. The evidence of PW 3-Diksha indicates that

the appellant tried to deflect their attention. He falsely informed

them Neha to have committed suicide. Same speaks in volumes.

15. The evidence on record indicates that Neha met with

homicidal death while she was in the company of the appellant.

There was, admittedly, quarrel between the two. The appellant,

allegedly, assaulted her with belt. No weapon like knife, axe, sword

or sickle was used. As per the case of prosecution itself, he banged

his wife's head against the wall and as a result thereof, Neha

suffered Intracranial fracture and thereby, died.

16. Appreciation of the entire evidence on record indicates

that there was no premeditation and no use of any weapon. Same

rules out the appellant to have intended to kill his wife Neha. The

incident was preceded by quarrel. The appellant hit her with belt and

might have banged her head against a wall. Since the appellant did

not offer any explanation and came with a false defence, we have to

presume the prosecution case to be true. From the facts and

circumstances of the case, the appellant could not be said to have

intended to kill his wife nor could he be presumed to have caused

injury sufficient in the ordinary course of nature.

17. Section 300 of Indian Penal Code reads thus:-

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 --

...........

3rdly. -- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

...........

18. In our view, the appellant could be attributed with the

knowledge that if he hit the head of his wife against wall with such

force, death would be the result. As such, in our view, it would be an

offence punishable under Section 304 Part II of Indian Penal Code.

Considering the age of the appellant at the relevant time and nature

of the offence, we propose to sentence him for a period of seven

years' rigorous imprisonment without alteration in the amount of fine

directed to be paid by the trial court and quantum of sentence in

default of payment of fine. With this, the appeal partly succeeds.

19. In the result, the following order:-

(i) The appeal is partly allowed.

(ii) The order dated 08.07.2022, passed by learned

Addl. Sessions Judge, Shrigonda, in Sessions Case No.82

of 2021, convicting and sentencing the appellant for the

offence punishable under Section 302 of Indian Penal

Code, is hereby set aside.

Instead, the appellant is convicted for the offence

punishable under Section 304 Part II of Indian Penal Code

and therefore, sentenced to suffer rigorous imprisonment

for a period of seven years and to pay fine of Rs.5,000/-

(Rupees Five Thousand). In default of payment of fine,

he shall suffer rigorous imprisonment for six months.

(iii) The appellant is behind the bars since 09.03.2021.

Set off under Section 428 of the Code of Criminal

Procedure be given.

[NEERAJ P. DHOTE, J.]                         [R.G. AVACHAT, J.]



KBP