High Court
Facts
Cri.Appeal No.656/2024:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.656 OF 2024 WITHCRIMINAL APPLICATION NO.2848 OF 2024Ankush Babasaheb MandalikAge 44 years, R/o Bawi, Taluka Jamkhed, District Ahmednagar… APPELLANT VERSUSThe State of Maharashtra through Police Station Officer,Jamkhed Police Station,District Ahmednagar(Copy to be be served on PublicProsecutor, High Court of Judicature of Bombay, Bench at Aurangabad) … RESPONDENT.......Mr. D.D. Choudhari, Advocate for appellant Mr. S.J. Salgare, A.P.P. for respondent ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE : 7th October, 2024.JUDGMENT (PER R.G. AVACHAT, J.) : The appellant has been convicted for the offencepunishable under Section 302 of the Indian Penal Code andtherefore, sentenced to suffer imprisonment for life and to pay Cri.Appeal No.656/2024:: 2 ::fine of Rs.500/-, by judgment and order dated 5/7/2012,passed by learned Sessions Judge, Ahmednagar (trial Court)in Sessions Case No.272/2010. The appellant has also beenconvicted for the offence punishable under Section 324 of theIndian Penal Code and sentenced to undergo rigorousimprisonment for one year. The appellant is, therefore, beforeus in this appeal.2.In short, the case of the prosecution before theTrial Court was as follows :- Shakuntala (deceased) had married the appellantfew years before the incident dated 14/9/2010. The couplewas blessed with two children. All of them would reside alongwith mother of the appellant. It was further the case of theprosecution that the appellant started harassing and ill-treatingShakuntala. She, therefore, along with her one of the children,went to stay at her parental house at village Bavi, TalukaJamkhed, District Ahmednagar. The appellant would frequentlyvisit her parent’s house to get her back to his house(matrimonial home of the deceased). The deceased would Cri.Appeal No.656/2024:: 3 ::refuse to join him. She wanted to have assurance in writingfrom the appellant that he would treat her well.3.On the fateful day i.e. 14/9/2010, by little past 1.00p.m., the appellant along with his child went to the house of hisin-laws to get back his wife Shakuntala (deceased). Sherefused to join him. He, therefore, assaulted her with knife.Shivkanya (P.W.1), brother’s wife of Shakuntala had intervenedin the quarrel. One of the knife blows fell on her person. Shetoo suffered injury thereby. The appellant thereafter left thehouse taking both his children with him.4.Somebody had informed the police. The policearrived. Shakuntala was shifted to the hospital. She wasdeclared dead. On the other hand, Shivkanya (P.W.1) lodgedthe First Information Report (F.I.R.- Exh.35), stating therein theaforesaid facts.5.A crime vide C.R. No.194/2010 was, therefore,registered for offences punishable under Sections 302 and 324of the Indian Penal Code. The crime scene panchanama(Exh.31), inquest panchanama (Exh.30), autopsy on the mortal Cri.Appeal No.656/2024:: 4 ::remains of the deceased were conducted. The appellant wasarrested. Pursuant to his disclosure statement, a knife cameto be recovered. Statements of persons acquainted with thefacts and circumstances of the case were recorded. Oncompletion of the investigation, a charge sheet was filedagainst the appellant.6.The Trial Court framed the Charge (Exh.4). Theappellant pleaded not guilty. His defence was, the incidenttook place due to grave and sudden provocation given by thedeceased. The Trial Court found the appellant in hisexamination-in-chief under Section 313 of the Cr.P.C. to havealtogether disowned the prosecution case. The Trial Courtfound the appellant to have committed murder of his wife andvoluntarily caused injury to the informant (P.W.1 Shivkanya)and, therefore, the order impugned herein was passed.7.The prosecution, to bring home the charge,examined 5 witnesses and produced in evidence certaindocuments. Cri.Appeal No.656/2024:: 5 ::8.Heard the learned Advocate for the appellant. Hetook us through the evidence on record. According to him, thecase is based on the evidence of the sole witness i.e. P.W.1Shivkanya. According to him, she was not a witness of sterlingquality. He took us through her cross-examination. Accordingto him, although P.W.1 Shivkanya testified that the deceasedhad lodged a criminal case against the appellant, the samewas not fortified by the documentary evidence. The otherwitnesses examined by the prosecution did not further theprosecution case. The appellant is behind the bars for littleover 14 years. He, therefore, urged for allowing the appeal orin the alternative, convert the conviction from the offencepunishable under Section 302 to Section 304 Part I of theIndian Penal Code. 9.The learned A.P.P. would, on the other hand,submit that, it is an open and shut case. Almost all thedocuments namely inquest panchanama, post mortem report,crime scene panchanama have been admitted by the defence.The informant (P.W.1) was an injured eye witness. Herevidence carries much weightage. Suggestions given to thewitnesses in the cross-examination indicate the appellant Cri.Appeal No.656/2024:: 6 ::admitted to have committed murder of his wife. He hadpurchased knife from a shop of one Bora. He took theinvestigating officer to the said shop. A CCTV footage in thatregard was produced on record. Moreover, the appellant gavea disclosure statement, pursuant to which the knife wielded byhim for committing murder of his wife was seized. The learnedA.P.P. therefore, urged for dismissal of the appeal.10.Let us advert to the evidence on record andappreciate the same.Admittedly, the appellant had married Shakuntala afew years before the fateful day. The couple was even blessedwith two children, a son and a daughter. At Shakuntala’s(deceased) home, her mother-in-law would reside. About fourmonths before the incident, Shakuntala left her matrimonialhome along with her one child and started residing at thehouse of her parents. The informant Shivkanya (P.W.1) is wifeof Shakuntala’s brother. At her parental house, her parents,Shivkanya and brother Baban would reside together. Theseare the facts not in dispute. Cri.Appeal No.656/2024:: 7 ::11.As stated above, the learned Advocaterepresenting the appellant has admitted the crime scenepanchanama (Exh.31) and the inquest panchanama (Exh.30)respectively. The crime scene panchanama indicate it to bethe house of the parents-in-law of the appellant. It delineatethat there were blood stains. The panchanama of seizure ofclothes of the appellant and the deceased (Exhs.32 and 33)were also admitted by the defence Advocate before the TrialCourt.12.As stated above, the case is based on the soletestimony of the informant P.W.1 Shivkanya. She testified that,she was residing along with her husband and parents-in-law atSadafule Vasti, Jamkhed, District Ahmednagar. She had twosisters-in-law. Shakuntala (deceased) was one of them.Shakuntala had married the appellant. For about four monthsbefore the incident, Shakuntala had come to her(Shakuntala’s) parental house. The grievance of Shakuntalawas that the appellant would harass and ill-treat her. She was,therefore, reluctant to resume marital relationship. She furthertestified that the appellant had many a time come to herresidence to get Shakuntala back to his house. Shakuntala Cri.Appeal No.656/2024:: 8 ::wanted the appellant to give assurance in writing that he wouldnot ill-treat her as a condition for resumption of maritalrelationship. PW.1 Shivkanya further testified that on 14September, she along with Shakuntala was present at herhouse. It was about 1.00 p.m. The appellant came to herhouse and asked Shakuntala to join him for resumption ofcohabitation. Shakuntala again asked him to give in writingthat he would not ill-treat her. Thereupon the appellant startedbeating her up. The appellant stabbed Shakuntala with knife.Shakuntala cried a loud. The appellant again assaulted on herneck. Shakuntala fell down. She (P.W.1 Shivkanya) intervened.A knife blow fell on her left thumb and cheek. She therebysuffered injuries. Her saree got torn. Shakuntala died. Theneighbours gathered. The appellant left the place taking awaywith him his both the children and the knife as well. Inresponse to somebody’s phone call, the police arrived. Policetook her to the Police Station. She lodged the F.I.R. (Exh.35)thereat. She referred to the same. Cri.Appeal No.656/2024:: 9 ::13.P.W.1 Shivkanya was subjected to a searchingcross-examination. She admitted that, about 4-5 monthsbefore the incident, an accident had taken place at the villageof the appellant. A bullock cart had run over the appellant’smother. She was, therefore, not keeping well. The appellantused to take his mother to various hospitals during the saidperiod. Shakuntala and her two children would stay backhome. She denied that, Shakuntala (deceased) would not takecare of her mother-in-law and, therefore, there used to bequarrels between the appellant and the deceased. She deniedthat Shakuntala came back to her parent’s house withoutinforming the appellant. She could not state that the appellantused to quarrel with Shakuntala only on the ground of she(Shakuntala) not taking care of her mother-in-law. She deniedthat Shakuntala had come to her parent’s house leavingbehind her both the children and stayed for three weeks. Shefurther denied that, two persons on the side of the appellanthad come to convince her father-in-law and requested to sendShakuntala back to her matrimonial home. She denied thatShakuntala was not ready to resume cohabitation. She furtherdenied that the appellant was ready to give an assurance inwriting, still Shakuntala did not join him. According to her, Cri.Appeal No.656/2024:: 10 ::Shakuntala had lodged one criminal complaint against theappellant. No copy thereof has been placed on record nor didthe investigating officer collect the same. On the other hand,he claimed ignorance thereof.14.P.W.1 Shivkanya further testified that, on the givenday, the appellant had come to the house of his in-laws alongwith his daughter. His one year old son was with Shakuntala.She denied that, Baban, brother of Shakuntala was at home.She admitted that the appellant told Shakuntala that there wasproblem of food and therefore, she should come back. Shedenied that in the meantime, Baban came and slapped on theappellant’s face. She admitted that the appellant andShakuntala abused each other. She admitted that Baban triedto rush on the person of the appellant but she controlledBaban. She pushed Baban towards the door. According toher, exchange of abuses took place for about 5 minutes. Shewas lame in one leg and therefore, cannot walk properly. Shetried to separate both, the appellant and Shakuntala. Shedenied that Shakuntala rushed to beat up the appellant. Shefurther denied that the appellant took up a knife lying there ashe was annoyed by the incident. She further denied that Cri.Appeal No.656/2024:: 11 ::Shakuntala had thrown away her both the children. Theappellant thereby lost his control. She further denied that, theappellant only wanted to give threat to Shakuntala so that shewould resume cohabitation. She denied that no incident tookplace as stated by her in her examination-in-chief.15.P.W.2 Sayyed Aslam is a witness to the disclosurestatement made by the appellant that he had thrown away theknife and he would take the police and panchas to that placeto take out the same. A memorandum of the appellant’sstatement was made. It is at Exh.37. The appellant then tookthe police and panchas to Tekade Vasti and asked to stop thejeep near one building of a Tailor. Then the appellant tookthem to an isolated place whereat grass had grown. Hepointed out the place whereat he had thrown the knife. Thepolice took out the knife from that place. It was placed in acarry bag. The panchanama of seizure (Exh.40) was drawn.Nothing helpful to the appellant could be elicited during thecross-examination of this witness.
Legal Reasoning
Cri.Appeal No.656/2024:: 20 ::that, intention can be proved by nature of weapon used,number of injuries and portion of body on which the injurieswere inflicted. No doubt, the injuries suffered by the deceasedindicate the appellant had inflicted those blows suggesting hisintention to eliminate her. The same intention was developedin a spur of moment. Since admittedly he had gone to thehouse of in-laws to get his wife back, there was a quarrelingprelude to the incident. The same has been referred tohereinabove. In our view, the case of the appellant may fallunder Exception 4 of Section 300 of the Indian Penal Code,which reads thus :“Exception 4 :-- Culpable homicide is not murder ifit is committed without premeditation in a suddenfight in the heat of passion upon a sudden quarreland without the offender having taken undueadvantage or acted in a cruel or unusual manner.”26.The appellant is behind the bars for little over 14years. He has his age old parents to maintain besides twochildren. We find the evidence of P.W.1 Shivkanya to be notthat of sterling quality. True, she suffered injury at the hands ofthe appellant, but in our view, the appellant had neitherintended nor did have any knowledge that P.W.1 Shivkanya
Arguments
Cri.Appeal No.656/2024:: 12 ::16.P.W.4 Trimbak was a Police Station Officer on dutyon the given day. It was he who recorded the F.I.R. (Exh.35)lodged by P.W.1 Shivkanya.17.P.W.5 Dr. Sanjeev had conducted autopsy on theperson of the deceased and noticed following injuries :(i)Incised wound over right side of neck cutting MS,vessels (carotid A) having size 15 x 3 cms. x bone deep,sharp margins;(ii)Incised wound over right side of neck below injury No.1,having size 18 x 3 cms. x bone deep, cutting MS,vessels, carotid A, sharp margins;(iii)Incised wound over left side of neck extending up tocentre of neck, having size 20 x 3 cms. x bone deep,cutting MS, vessels, carotid A, cartilages, trachea andesophagus, sharp margins.(iv)Incised wound over upper part of abdomen to right side,having size 3 x 1 x 1 cms., sharp margins;’(v)Bleeding per nose present;(vi)Incised wound over upper part of left thigh, having size 3x 1 x 1 cms., sharp margins. In his view, all the injuries were ante mortem andsufficient to cause death in ordinary course of nature. Thepost mortem report is at Exh.45. In his opinion, the cause ofdeath of the deceased was due to shock due to cardio Cri.Appeal No.656/2024:: 13 ::respiratory arrest due to cut throat and cutting of both thecarotid arteries due to incised wounds over neck. It is further in his evidence that he examinedShivkanya and noticed following injuries on her person :-(i)Abrasion over chin having size 1 x 1 cm. circular in shape;(ii)abrasion over left wrist joint having size 1 x 1 cm., circular;(iii)Abrasion over dorsum of right hand having size ½ x ½cm., circular. He issued injury certificate vide Exh.44. Theinjuries were simple in nature.18.P.W.5 Dnyaneshwar did the investigation of thecrime. His evidence discloses that he conducted inquestpanchanama. He then drawn the crime scene panchanama(Exh.31). He arrested the appellant under panchanama(Exh.33). The appellant made disclosure statement, pursuantto which he seized a knife. It is further in his evidence that, heforwarded all the seized articles namely clothes of theappellant, clothes of the deceased and the knife to C.A., Cri.Appeal No.656/2024:: 14 ::Nashik under forwarding letter (office copy at Exh.47). Heplaced on record C.A. reports (Exhs.48 to 50). He further testified that, the appellant then made astatement to have purchased a knife from the shop of oneJitendra Bora. He, therefore, went to Bora’s shop along withthe appellant, collected CCTV footage of the particular day. Itwas downloaded in a CD. It was marked Exh.52.19.In the cross-examination, he claimed ignorance asto whether Shakuntala had lodged police report against theappellant. He denied to have deliberately not recorded thestatements of independent witnesses. 20.The aforesaid is the evidence in the case. TheTrial Court convicted the appellant considering the nature ofinjuries suffered by the deceased. According to the Trial Court,the intention of the appellant is clear. The Trial Court evenrelied on the CCTV footage which was produced on recordthrough a CD. It was a secondary evidence. There are no 65-B certificates. Jitendra was not examined as a witness in proofof the appellant to have purchased knife from his shop. Even Cri.Appeal No.656/2024:: 15 ::we accept the said case, there is no evidence as regards day,date and time by which the appellant had been to the saidshop and really bought a knife. Be that as it may.21.At the cost of repetition, it is stated that the crimescene panchanama has been conducted and the same is thehouse of the parents-in-law of the appellant. Admittedly, about4-5 months before the incident, Shakuntala (deceased) hadstarted residing at her parental house along with her one yearold son. Her elder daughter was staying with the appellant.P.W.1 Shivkanya is the only eye witness in the case. She isadmittedly wife of brother of the deceased. Meaning thereby,she is the relative of the victim and interested as well. Hercross-examination would indicate that she was not a witness ofsterling quality. She admitted in her cross-examination thatexactly 4-5 months before the incident i.e. when Shakuntalahad started residing at her parental house, the mother of theappellant had met with an accident. A bullock cart had runover her person. She was therefore not keeping well. It wasthe appellant who was taking all the care of his mother. Shefurther admitted that the appellant had been to his parentalhouse 3-4 times during the period of 4 months only with a view Cri.Appeal No.656/2024:: 16 ::to get his wife back to his house. According to her, thedeceased would refuse to join him. The deceased wanted theappellant to give assurance in writing that he would treat herwell. On the given day, the appellant had come to the house ofher parents-in-law taking with him his son. It appears that, theson was also a child not more than 3-4 years. He requestedShakuntala (deceased) to join him to his house. She againrefused and insisted for assurance in writing. P.W.1 Shivkanyadenied that Baban was at home. This is a false statementmade by P.W.1 Shivkanya because in her further evidence sheadmitted that Baban had rushed on the person of theappellant. The same suggests that Baban wanted to assaultthe appellant, but it was P.W.1 Shivkanya who pushed Babantowards the door. She further testified that there was a quarrelbetween the appellant and the deceased. Both abused eachother. It lasted for 4-5 minutes. She denied that the appellantpicked up a knife from the spot and assaulted his wife becausethe wife attempted to beat him up and even thrown away hischildren. Admittedly, the appellant was alone there. Whateverhis defence or happenings could only be brought on record inthe cross-examination in the form of putting up his defencestory. In view of Section 315 of the Cr.P.C., the appellant was Cri.Appeal No.656/2024:: 17 ::not under obligation to examine himself on oath. It is true that,whatever incriminating material is there, he need to explain thesame. Since nobody was there on his side at the crime scene,and P.W.1 Shivkanya being sister-in-law of the deceased,bound to hide some facts which would help the appellant in hisdefence.22.It is true that, the deceased Shakuntala met withhomicidal death. It is also true that the appellant in hisexamination under Section 313 of theCr.P.C. altogetherdisowned his involvement in the crime. Needless to mentionthat, in a criminal case, the appellant may take as manydefences as are available to him. The defences may beinconsistent with each other.23.In case of Vijayee Singh & ors. Vs. State of U.P.,AIR 1990 SC 1459, the Apex Court has observed :“The general burden of establishing the guilt ofaccused is always on the prosecution and it nevershifts. Even in respect of the cases covered byS.105 the prosecution is not absolved of its duty ofdischarging the burden. The accused may raise aplea of exception either by pleading the samespecifically or by relying on the probabilities andcircumstances obtaining in the case. He may Cri.Appeal No.656/2024:: 18 ::adduce the evidence in support of his plea directlyor rely on the prosecution case itself or, he canindirectly introduce such circumstances by way ofcross-examination and also rely on theprobabilities and the other circumstances. Thenthe initial presumption against the accusedregarding the non-existence of the circumstances infavour of his plea gets displaced and on anexamination of the material if a reasonable doubtarises the benefit of it should go to the accused.The accused can also discharge the burden underS.105 by preponderance of probabilities in favourof his plea. In case of general exceptions, specialexceptions, provisos contained in the Penal Codeor in any law defining the offence, the Court, afterdue consideration of the evidence in the light of theabove principles, if satisfied, would state, in thefirst instance, as to which exception the accused isentitled to, then see whether he would be entitledfor a complete acquittal of the offence charged orwould be liable for a lesser offence and convicthim accordingly.”24.The aforesaid observations of the Apex Courtwould indicate that the accused can make out his defence bypreponderance of probabilities. The defence can be made outby pointing out inherent improbabilities in the prosecution caseor through certain admissions eliciting from the evidence ofprosecution witnesses or examining the defence witness.25.The admissions elicited from the cross-examinationof P.W.1 Shivkanya would indicate that the appellant had notgone to the house of his in-laws to commit murder of his wife. Cri.Appeal No.656/2024:: 19 ::He had admittedly gone to get back his wife to his house. Atthe time while the deceased left the appellant’s house andcame to her parent’s house, the appellant’s mother met with anaccident. It was the appellant who was taking all the care ofhis mother and he even informed the deceased Shakuntalaabout the same. He therefore, requested her to come back tomatrimonial home along with him. He asked her to comehome as there was no one to cook, as his mother was unwell.( ततू ममाहहररी रमाहत असाल्यमामममुह आमयह खमाण्यमापपिण्यमायह हमाल हहोतमात). He hadeven come with a very minor daughter who was residing withhim. It is his case that the deceased threw away both thechildren. True, the suggestion has been denied. As such, it isa case of words against words. P.W.1 Shivkanya, however,admitted that, before the appellant assaulted the deceased, aquarrel between the appellant and the deceased took place.Both abused each other. It lasted for about 4-5 minutes.Baban, brother-in-law of the appellant rushed on the person ofthe appellant, necessarily, to beat him up. It was P.W.1Shivkanya who pushed Baban towards the door. P.W.1Shivkanya had earlier denied presence of Baban. The samesuggests that P.W.1 Shivkanya was hiding some facts. True
Decision
Cri.Appeal No.656/2024:: 21 ::would suffer any injury. Admittedly, the appellant had notassaulted her. She suffered injuries since she intervened inthe quarrel and the blow fell on her person. We cannotattribute him with knowledge that P.W.1 Shivkanya was goingto intervene in the quarrel. As such, the injury suffered byP.W.1 Shivkanya for which the appellant has been convictedfor the offence punishable under Section 324 of the IndianPenal Code was accidental. It cannot be said that theappellant had caused the said injury voluntarily. The appellant,therefore, deserves to be acquitted of the offence punishableunder Section 324 of the Indian Penal Code.27.For all the aforesaid reasons, interference with theimpugned order of conviction and consequential sentence iswarranted. In view of the above, the appeal partly succeeds.Hence the order : O R D E R(i)The Criminal Appeal is partly allowed.(ii)Conviction of the appellant for the offence punishableunder Section 302 of the Indian Penal Code by judgment and Cri.Appeal No.656/2024:: 22 ::order dated 5/7/2012, passed by learned Sessions Judge,Ahmednagar in Sessions Case No.272/2010 is hereby setaside. The appellant is acquitted of the same. Instead, theappellant is convicted for the offence punishable under Section304 Part I of the Indian Penal Code and sentenced to sufferrigorous imprisonment for ten years and to pay fine of Rs.500/-(Rupees five hundred). The appellant appears to have servedout the said sentence. Fine amount has already been paid.The appellant be set at liberty forthwith if he has alreadyundergone the sentence of R.I. for ten years and/or onundergoing the sentence of R.I. for ten years, and if notrequired in any other case.(iii)Criminal Application No.2848/2024 stands disposed of.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-