High Court
Facts
APEAL-240-19.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 240 OF 2019Sunil Fulji TadaviAge: 28 years, Occu.: Agri.,R/o Umati, Tq. Akkalkuva,Dist. Nandurbar..APPELLANTVERSUS1. State of Maharashtra Through Police Station Molgi, Tq. Akkalkuva, Dist. Nanudrbar2. Mrs. Sakharabai Ugranya Tadavi Age: 40 years, Occu.L Agri., R/o Umati, Tq. Akkalkuva, Dist. Nandurbar..RESPONDENTS....Mr. S.A. Kulkarni, Advocate for appellant (appointed)Mr. B.B. Bhise, A.P.P. for respondent no.1 - State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJDATE : 22nd MARCH, 2024ORAL JUDGMENT ( R.G. AVACHAT, J. ) :1.The challenge in this appeal is to the judgment and order dated14th January, 2019 passed by Additional Sessions Judge, Shahada (‘trialCourt’), in Sessions Case No. 68 of 2013. Vide the impugned judgment andorder, the appellant has been convicted for committing murder of his wife,and therefore, sentenced him to suffer life imprisonment and to pay fine ofRs.3,000/- with default stipulation. Seven others prosecuted alongwith theappellant were acquitted. Neither State nor any family member of thedeceased has preferred appeal against acquittal.1 / 7
Legal Reasoning
APEAL-240-19.odtThe appellant took it to his heart. A quarrel took place between the two. Heall of a sudden picked up a pestle and assaulted on the head of Asmabaitherewith. Postmortem report (Exh.74) suggests Asmabai to have died ofhead injury.13.The aforesaid evidence indicates that if the appellant had reallyintended to eliminate his wife, he would have inflicted number of blows onher head, face and other vital parts of the body. The incident occurred sincethe deceased did not pay the appellant money for consumption of alcohol. Aquarrel was preceded by the incident. The appellant all of a sudden pickedup a pestle and hit on the head of deceased. Description of the article seizedindicates it is not more than two and half feet in length. No opinion of theMedical Officer was solicited as to whether the head injury was sufficient inthe ordinary course of nature to cause death of the deceased. It is reiteratedthat the incident took place in a spur of moment. There was quarrel betweenthe couple. The appellant gave a single blow on the head of the deceased,whereby she succumbed. As such, in our view, it is an offence of culpablehomicide not amounting to murder punishable under Section 304 Part II ofthe Indian Penal Code.14.It is informed that the appellant is behind the bars since the day ofhis arrest i.e. 23rd May, 2013. We propose to sentence him to imprisonmentfor the period which he has already undergone till date (i.e. 10 years, 09months 28 days). With this, appeal stands disposed of in terms of followingorder :-6 / 7 APEAL-240-19.odtORDER(I)Criminal appeal is partly allowed.(II)Judgment and order dated 14th January, 2019 passed byAdditional Sessions Judge, Shahada in Sessions Case No.68 of 2013 convicting the appellant for the offencepunishable under Section 302 of the Indian Penal Code ishereby set aside. The appellant stands acquitted thereof.(III)The appellant is convicted for offence punishable underSection 304, Part II of the Indian Penal Code andsentenced to suffer imprisonment for the period he hasalready undergone.(IV)The appellant be released forthwith, if not required in anyother case.(V)Registrar (Judicial) of this Court to ensure release of theappellant forthwith.(VI)Fees of Mr. S.A. Kulkarni, learned counsel appointed torepresent the appellant, is quantified at Rs.10,000/-(Rupees Ten Thousand) to be paid by Legal Services Sub-Committee, High Court, Aurangabad.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD7 / 7
Arguments
APEAL-240-19.odt2.Mr. S.A. Kulkarni, learned counsel, was appointed to representthe appellant.3.Facts, giving rise to the prosecution case, are as under :-P.W.2 – Sakharabai lodged the F.I.R. (Exh.55) on 22nd May, 2013with Police Station Molgi. It is her case that she was the resident of villageUmti, Tq. Akkalkuva, Dist. Nandurbar. Deceased – Asmabai (wife of theappellant) was residing at a short distance from her own residence. Theappellant was addicted to alcohol. It is further her case that she was homeby 02:00 p.m. on 22nd May, 2013. She heard an uproar from the back side ofthe house of deceased - Asmabai. She, therefore, rushed to that place. Shesaw Sila Boka Valvi and her daughter-in-law Maktibai arrived there. She sawthe appellant demanding Asmabai money for consumption of alcohol.Asmabai refused to pay him money. The appellant took it to his heart. Aquarrel ensued between him and Asmabai. The appellant was under theinfluence of alcohol. He assaulted on the head of Asmabai with a pestle(eqlG). Others (acquitted) also assaulted her with fisticuffs and stick as well.4.Based on the F.I.R., crime vide C.R. No. 31 of 2013 wasregistered. Scene of offence panchanama (Exh.67) was drawn. Autopsywas conducted. Mortal remains of Asmabai was subjected to postmortemexamination. Clothes on her person were seized. The pestle used forassaulting the deceased was seized. Statements of the persons acquaintedwith the facts and circumstances of the case were recorded. On completion2 / 7 APEAL-240-19.odtof investigation, the appellant was proceeded against by filing the charge-sheet before the Court of J.M.F.C., Akkalkuva. The case was thencommitted to the Court of Additional Sessions Judge, Shahada (‘trial Court)for trial in accordance with law.5.Trial Court framed the charge (Exh.35). The appellant pleadednot guilty. It was his defence that Asmabai fell from a mango tree. Shesuffered head injuries and died thereof. It is further his defence that oneFulji, father of the appellant, was having illicit relationship with the grand-mother of Asmabai (deceased). Therefore, with a view to take revenge, thewitnesses have deposed against him.6.To establish the charge, prosecution examined seven witnessesand produced in evidence certain documents. Investigating officer could notbe examined as he passed away.7.Learned counsel for the appellant would submit that P.W.1 –Maltibai did not stand by the prosecution. Same is the case of few otherwitnesses. According to him, it is only P.W.2 – Sakharabai, who has testifiedagainst the appellant. It is a case based on sole eye witness account. Shewas rustic and illiterate. She admitted that there were fields between thehouse of the appellant and that of herself. Those land owners viz. BijalaKhalya, Shila Khalya, Torma Vishya and Karma have not been examined.She further admitted that Police Patil of the village had given information to3 / 7 APEAL-240-19.odtthe police and the same was reduced into writing. She simply put her thumbimpression on the written paper. Thereafter she left Police Station Molgi.According to learned counsel, P.W.5 – Dr. Balkrushna, Medical Officeradmitted the head injuries suffered by the deceased might have beenpossible due to fall from a tree. According to learned counsel, when all otheraccused, who were prosecuted with the appellant have been acquitted basedon the evidence of P.W.2 – Sakharabai, same treatment ought to have beengiven to the appellant. He, therefore, urged for allowing the appeal.8.Learned A.P.P. supports the impugned judgment and order.9.P.W.5 – Dr. Balkrushna conducted the postmortem examinationon the mortal remains of Asmabai. He noticed following injuries on herperson :-i)Blunt trauma over head on parietal region contusion x 20 hr.ii)Contusion over left side orbit x 20 hr.iii)Abrasion over right hand elbow joint x 20 hriv)Abrasion over left hand elbow joint x 20 hrIn his opinion, the deceased died due to cardio-respiratory arrestdue to the head injury due to blunt trauma over head. True, he admittedhead injury could also be possible due to fall from a tree.10.It is true, P.W.1 – Maltibai, an eye witness to the incident, did notstand by prosecution. Her cross-examination indicates the appellant is heruncle. She, therefore, appears to have turned hostile.4 / 7 APEAL-240-19.odt11.P.W.2 – Sakharabai testified that deceased – Asmabai was hersister’s daughter. Asmabai had married the appellant. Both of them wereresiding together some distance away from her residence. It is further in herevidence that she heard an uproar from the back side of the house ofdeceased - Asmabai. She, therefore, rushed to that place. She saw theappellant demanding Asmabai money for consumption of alcohol. Asmabairefused to pay him money. The appellant took it to his heart. A quarrelensued between him and Asmabai. The appellant was under the influence ofalcohol. He assaulted on the head of Asmabai with a pestle (eqlG). Others(acquitted) also assaulted her with fisticuffs and stick as well. It is further inher evidence that one Malati and Sila Boka Valvi had also witnessed theincident. True, Malatibai turned hostile. Sila has not been examined. It isalso true that the others who, owned the lands between the house of theappellant and P.W.2 – Sakharabai, have not been examined. It is also truethat Sakharabai is a rustic and illiterate woman. She testified that villagePolice Patil had also been to police station with her. Both of them reportedthe matter to the police. It was reduced to writing. She simply put her thumbimpression thereon. From the said evidence, we may infer that criminal lawwas set in motion based on the F.I.R.12.The fact, however remains, we have no reason to disbelieve thetestimony of P.W.2 – Sakharabai. She was categorical to state that theappellant was an alcoholic. He was drunk at the relevant time. He made ademand of money from Asmabai for consumption of alcohol. She refused.5 / 7