High Court

Legal Reasoning

-1- Cri.Appeal.767.2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 767 OF 2005Shri Irrappa S/o. Saduram Madge, Age : 42 years, Occu. : Agril., R/o. Hipparga (Rao), Tq. Omerga,Dist. Osmanabad.… Appellant (Orig. Accused)VersusThe State of Maharashtra… Respondent…Mr. V. D. Gunale, Advocate for AppellantMr. K. K. Naik, APP for Respondent - State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 08 OCTOBER 2024PRONOUNCED ON : 14 OCTOBER, 2024JUDGMENT : 1.In instant appeal, there is challenge to the judgmentand order passed by Additional Sessions Judge, Omerga, DistrictOsmanabad dated 08.11.2005 in Sessions Case No. 14 of 2005, bywhich guilt of the appellant for commission of offence undersection 325 of Indian Penal Code was recorded.IN SHORT CASE OF PROSECUTION IS THAT 2.Sadhuram Madge had four sons including complainantBhimrao and accused Irrappa. Irrappa was insisting partition ofagricultural land and picking up quarrels on such count. -2- Cri.Appeal.767.2005Previously also, he had beaten his parents in such backdrop. On16.09.2004, when deceased Siddhammabai mother of appellantwas sitting under a tree, appellant Irrappa came and assaultedSiddhammabai with the handle of Katti (sickle) causing herbleeding injury, as a result of which she was shifted at hospital, butwhile undergoing treatment, she succumbed to death. AutopsySurgeon attributed death due to cardio respiratory arrest due tosubdural hematoma due to head injury. Consequently, BhimraoPW2 approached Omerga police station and set law into motion,resulting into registration of crime bearing No.132 of 2004. Initially crime was for offence under sections 324 and504 IPC, but subsequently after demise of Siddhammabai offencewas converted into 302 IPC and after investigation at the hands ofPW11 PSI Parihar, appellant was tried by learned AdditionalSessions Judge, Omerga vide Sessions Case No. 14 of 2005 foroffence punishable under section 302 of IPC. However, after appreciating evidence adduced byprosecution, learned trial Judge, vide its judgment and order dated08.11.2005 reached to a finding that prosecution failed to establishthe charges under section 302 IPC, but charge of 325 getsattracted and sentences appellant to suffer imprisonment for twoyears. -3- Cri.Appeal.767.2005 Feeling aggrieved by the said judgment and order ofconviction, instant appeal has been filed. STATUS AND ROLE OF PROSECUTION WITNESSES3.The prosecution has examined following 11 witnessesin support of its case. Their role, status and sum and substance ofevidence is as under : PW1 Swami Narayya, Autopsy Surgeon, who conducted postmortem and issued opinion about cause of death“due to cardiorespiratory arrest due to subdural hematoma due to head injury”. PW2 Bhimrao, younger brother of appellant, deposed thatoccurrence took place at 2:30 p.m. One Gulab Madge, his cousin,informed him about his mother Siddhammabai being beaten andshe lying unconscious and was taken to hospital. After which helodged report Exh.16.PW3 Nagabai, an acquaintance of deceased stated thatoccurrence took place in front of her door and appellant assaultedhis mother by means of handle of Katti on head. PW4 Yashodabai in her evidence at Exh.18 stated thataround 2:00 p.m. she, Nagabai and Siddhammabai were sitting inthe courtyard of Nagabai. Appellant came from back side, -4- Cri.Appeal.767.2005assaulted Siddhammabai on the head by means of handle of kattidue to which Siddhammabai fell down and thereafter carried toOmerga. PW5 Mr. Kushba Shendge, Medical Practitioner, who firstexamined Siddhammabai on history given about beaten by elderson over head by hard object Katti. He examined her. She wasunconscious. Considering the head injury, he treated her, but whileundergoing treatment, Siddhammabai expired on 18.09.2004. PW6 Gulab, cousin of appellant, did not support prosecution.PW7 Prabhawati, did not support prosecution as she deniedknowing cause of death of Siddhammabai. PW8 Jyotiba, the driver, who took Siddhammabai in hisvehicle to Omerga. PW9 Shivling, pancha to memorandum of disclosure did notsupport prosecution as he deposed that there was no recovery inhis presence and he merely signed on the request of police. PW10 Sheshrao, second pancha to memorandum also did notsupport prosecution.PW11 PSI Parihar is the Investigation Officer. -5- Cri.Appeal.767.2005SUBMISSIONSOn behalf of Appellant : - 4.Pointing to the above evidence, learned counsel forappellant submitted that, firstly there was false implication.Secondly, prosecution failed to establish the charges beyondreasonable doubt. He would submit that, initially charge was of302 IPC, but said charge has not been proved. Learned counselsubmitted that there is no convincing, cogent and reliableevidence. That, there is no evidence about dispute for partition.That, recovery pancha did not support prosecution. That, deathhas taken place after 2 to 3 days of the occurrence. Therefore, it ishis submission that evidence on behalf of prosecution is very weakand therefore, it is a fit case for extending the benefit of doubt. Inthe alternative, learned counsel submitted that appellant beingbehind the bar for a period about 81/2 months out of two yearsimprisonment, he be let off on the sentence already undergone.On behalf of Respondent – State : 5.Resisting the above relief, learned APP pointed out that,appellant has killed his own mother. That, there is clear, directand convincing independent eye witness account. That, death isdue to head injury inflicted by the article. That, testimonies of -6- Cri.Appeal.767.2005independent witnesses have remained unshaken. That, death isdue to head injury and therefore learned trial court committed noerror in convicting the appellant for offence punishable undersection 325 IPC. He submitted that, the backdrop in which incidenttook place and appellant being responsible for death of his ownmother, no leniency need to be shown on the sentence alreadyundergone.ANALYSIS6.Fundamental grounds of challenge in appeal are that,firstly, there is no convincing and cogent evidence about accusedhitting his mother. Secondly, recovery and spot is not proved.Thirdly, so called important witness Gulab and other independentwitnesses like neighbours have not supported. On the other hand, prosecution claims that there isdirect, convincing and undisturbed evidence of independentwitnesses.7.On re-appreciating the entire evidence, incident seemsto have taken place on 16.09.2004 around afternoon. FIR is at theinstance of younger brother of accused Bhimrao. He claims that,he learnt from Gulab, his cousin, about the occurrence and so herushed and saw his mother unconscious with bleeding injury fromthe nostril and ear and so she was brought to the hospital and he -7- Cri.Appeal.767.2005lodged complaint. After deposing to the above extent, he deposedthat at the time of assault by Irrappa, he was not present and thatIrrappa had already run away. After seeking permission of court,learned prosecutor cross examined informant, but he deniedseeing Irrappa abusing his mother on the ground of partition. But,to a question whether he was holding weapon, he has answered inaffirmative. He again affirmed that, blow was inflicted on the headof his mother by appellant by putting to use handle of the sickleand he admitted that it was cause of injury, due to which she alsofell down. Except admitting that, after the incident he went tohouse of Prabhakar Mule and he was in ‘Khalcha gav’ and thatIrrappa was residing at Pune and about strained relations betweenIrrappa and his wife, rest all suggestions are denial. 8.PW3 Nagabai, who is said to be an eye witness, hastestified that, Siddhammabai met to death as assaulted by a boyand on being questioned by learned APP as to who was the boy, shehas named the appellant and further deposed about occurrencetaking place in front of her door around 2:00 p.m. while deceasedand another lady Yashodabai were together. She categoricallystated that, Irrappa assaulted his mother by means of handle ofKatti on the head and she become unconscious. -8- Cri.Appeal.767.2005 While under cross, it is tried to suggest after hearinghue and cry, she came out of the house, she has answered that shewas sitting there only. The manner of cross and answer confirmsthe occurrence to be witnessed by her.9.PW4 Yashodabai, another lady in the company of PW3Nagabai and deceased, in her evidence at Exh.18 stated thatoccurrence took place at 2:00 p.m. while she, PW3 Nagabai anddeceased Siddhammabai were sitting in the courtyard of PW3Nagabai. Appellant came from back side, assaulted Siddhammabaion the head by handle of Katti, due to which Siddhammabai fell.Suggestion that she heard hue and cry goes to show that there isno serious dispute about occurrence. While answering questionno.4 put by defence, she stated that many persons assembled bythat time Siddhammabai was lying. Though to initial question sheanswered that she has deposing at the instance of Bhimrao andYashodabai. The last question suggesting that appellant did notassault, she answered that he assaulted. 10.Testimony of PW3 Nagabai and PW4 Yashodabai, whoare independent witnesses and were in the company of deceasedhave categorically stated about deceased being hit by appellantwith handle of sickle around 2:00 p.m. and she falling unconscious -9- Cri.Appeal.767.2005and taken to hospital. Though PW6 Gulab cousin of informant, PW7Prabhawati and PW8 Jyotiba have not supported, it is evident fromtheir testimonies that they were not present and they came lateron. 11.But, occurrence narrated by above two witnesses PW3Nagabai and PW4 Yashodabai are consistent and bothcorroborating each other and their testimonies are not shaken,rather occurrence is got confirmed by putting suggestions in suchmanner which clearly shows that there is no serious challenge tothe occurrence of assault. 12.Prosecution to support ocular account examined PW5Dr. Shendge, a medical practitioner and he in his evidence atExh.19, deposed about son of deceased gave history regardingbeating by elder son at 2:00 p.m. by means of object, namely Katti.He passed information to police and examined Siddhammabai andaccording to him, she was unconscious and marks of injury overhead on center part. He treated her, but her condition deterioratedwithin 24 hours and she expired on 18.09.2004. While under cross, above medical expert stated that hebrought case papers. He admitted that he did not record size of theinjury. He admitted that, head injury make over due to subdural -10- Cri.Appeal.767.2005hematoma and is possible by fall on rocky substance or possibledue to old age associated with other problems like blood pressure. However, this medical witness has given history,attention of accused and site of injury and he deposed that in spiteof treatment by him she expired. 13.PW1 Dr. Narayya, autopsy surgeon has attributeddeath due to cardio respiratory arrest due to subdural hematomadue to head injury. Consequently, medical accounts supportsocular account and therefore there is no further necessity of otherevidence to record guilt. Mere recovery panchas not supportingwould not be sufficient to doubt prosecution as PW11 PSI PariharInvestigating Officer in paragraph Nos. 8 and 9 of his evidencedeposed about receiving memorandum of disclosure and recoveryvide panchanama at Exh.29. Therefore, there is recovery ofweapon also. Resultantly, prosecution did succeed in attributingassault to present appellant and he to be the author of head injuryof his mother.14.Learned counsel in the alternative has submitted that,appellant has already undergone over 8 months incarceration.Trial Judge has held him guilty for offence under section 325 in -11- Cri.Appeal.767.2005spite of there being charge of section 302 IPC and sentenceawarded is of two years. Therefore, he prayed to let off accused forsuffering above sentence i.e. as already undergone. Learned APPhas strongly opposed the same.15.Here, there is ocular account supported by medicalaccount. In the backdrop of partition, appellant has inflicted headinjury by weapon like Katti (sickle) i.e. by handle part. Direct eyewitnesses speak of deceased falling unconscious immediately.Informant, who reached shortly spoke about noticing bleedingthrough ear and nose. Therefore, the impact on the blow wasinternal hemorrhage. This is a case of “matricide” i.e. act of killingones own mother. Therefore, this court is not in favour reducingthe sentence to already undergone as prayed. No case being madeout on merits, I proceed to pass following order :- ORDERThe criminal appeal is dismissed. (ABHAY S. WAGHWASE, J.) Tandale