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Cri Appeal No.610 of 2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.610 OF 2022Shankar s/o. Kishor Salve,Age 21 years, occ. Driver,r/o. Shriramnagar, Mirajgaon,Tq. Karjat, Dist.Ahmednagar..AppellantVs.The State of Maharashtra,Through Police Inspector,Karjat Police Station,Tq. Karjat, Dist. Ahmednagar..Respondent----Mr.N.R.Thorat, Advocate for appellantMr.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 ofconviction and order of consequential sentence dated 08.07.2022,passed by learned Addl. Sessions Judge, Shrigonda, in Sessions CaseNo.82 of 2021, whereby the appellant was convicted for committingmurder of his wife and therefore, sentenced to suffer imprisonment forlife and to pay fine of Rs.5,000/-, with default stipulation. 2Cri Appeal No.610 of 20222.The fact, in brief, giving rise to the present appeal are asfollows:-The appellant was 20 years of age at the material time.He was in love with Ku. Neha (deceased). She was just 16 years ofage. Her family members were, therefore, opposed to the proposedlove marriage of the appellant. Still, they got married. Smt.Diksha(PW 3) was sister of Neha. She was residing at Navsari, Gujarat. Theappellant was residing in the premises taken on rent at villageMirajgaon, 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 herbrother took meals. He went outside the house for a while. Heimmediately came back. Quarrel ensued between the appellant andhis wife Neha. He beat her up. Diksha along with her kid and herbrother Dnyaneshwar, therefore, left the house for her native villagePothare. After about one and half hours thereafter, the appellantmade phone call to her brother Dnyaneshwar and informed Neha tohave committed suicide. Diksha along with her brotherDnyaneshwar, 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 3Cri Appeal No.610 of 2022No.19 of 2021 with Karjat Police Station. On post mortem, it wasrealised that deceased died of head injury. Diksha, therefore, lodgedFIR (Exh.17) with Karjat Police Station, on the following day. A crimevide C.R. No.132 of 2021 was, therefore, registered against theappellant for the offence punishable under Section 302 of IndianPenal Code. 3.On completion of the investigation, he was proceededagainst by filing the charge sheet. The trial court framed Charge(Exh.4). The appellant pleaded not guilty. His defence was of falseimplication. 4.The prosecution examined seven witnesses andproduced in evidence certain documents. The trial court, onappreciation thereof, convicted and consequently, sentenced theappellant, as stated above. 5.Heard learned counsel for the parties.6.Learned counsel for the appellant would submit that thecase is based on the testimony of sole witness, namely Diksha(PW 3), sister of deceased. According to him, she gave threedifferent statements. He then adverted our attention to the report(Exh.16) lodged by her on 08.03.2021, pursuant to which unnatural 4Cri Appeal No.610 of 2022death case was registered. He then took us through the FIR (Exh.17)and her statement recorded under Section 164 of the Code ofCriminal Procedure. According to him, Diksha (PW 3) did not standby the prosecution. There is no other evidence to indicate theappellant to have committed any crime. He, therefore, in the firstinstance, prayed for allowing the appeal in toto. In the alternative,he urged for converting the conviction from the offence punishableunder Section 302 of Indian Penal Code to Section 304 Part II ofIndian Penal Code. According to him, the incident took place at thespur of moment. There is no premeditation. No weapon was used.He, therefore, prayed for sentencing the appellant for the periodalready undergone by him.7.Learned APP would, on the other hand, submit that theappellant had mercilessly beaten up his wife. The post mortemreport would speak for the same. Although PW 3 - Diksha did notstand by the prosecution, there is some evidence to indicate theappellant to have had quarreled with his wife Neha (deceased) andassaulted her. The deceased died at her matrimonial home, sharedby the appellant alone. The appellant, therefore, owe explanation.Learned APP, ultimately, urged for dismissal of the appeal. 5Cri Appeal No.610 of 20228.Considered the submissions advanced. Perused theevidence on record. Let us advert thereto and appreciate the same.9.Admittedly, the appellant was 20 years of age at therelevant time. He married deceased Neha. It was a love marriage.Neha had not attained the age of majority while she married theappellant. Her parents, therefore, were opposed to their marriage. Itis not in dispute that the appellant along with Neha (deceased)would reside in one room premises at village Mirajgaon. It was takenon rent from PW 5 – Smt. Bai Raut. We do not propose to refer to herevidence, since same speaks about the premises to have been lentto 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 bythe appellant, pursuant to which a waist-belt came to berecovered/seized under panchnama. Both memorandum statementsand seizure panchnama are Exh.24 and Exh.25, respectively. Thereis nothing to indicate the appellant to have had assaulted thedeceased with the very belt. The disclosure statement, therefore,could not be termed to be relevant under Section 27 of the EvidenceAct. 6Cri Appeal No.610 of 202211.PW 6 – Dr.Suvarnamala conducted autopsy on the mortalremains of the deceased. The post mortem report under hersignature is at Exh.33. She noticed the following external injuries onthe 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 rightear.(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: 7Cri Appeal No.610 of 2022(A)Bottle A – Stomach and its contents in sodium chloride.(B)Bottle B – Heart, lungs, liver, spleen, kidney in pieces kept in sodium chlorideIn the opinion of PW 6 – Dr. Suvarnamala, the deceased died of“Intracranial Hemorrhage due to head injury”. Viscera waspreserved. During her evidence, she testified that if someone bangshead of the victim against a wall, the injury like one suffered by thedeceased could occur. According to her, the other injuries noticed onthe person of the deceased are possible by hit with a belt.12.The star-witness in the case is PW 3 – Diksha, sister ofdeceased. It is in her evidence that the appellant along with his wifeNeha (deceased) had come to her place, Navsari, Gujarat, on07.03.2021. She along with her kid, her brother Dnyaneshwar, theappellant and his wife Neha (deceased) returned to the appellant’shouse, at Mirajgaon, on 08.03.2021. Neha prepared food. It was littlepast 12.30 p.m., heated arguments ensued between the appellantand his wife Neha. Neha went outside the house. She waspregnant. She accidentally fallen down. Still, the quarrel continued.PW 3 – Diksha along with her brother Dnyaneshwar left the house forvillage Pothare. After about one and half hours, the appellant called 8Cri Appeal No.610 of 2022his brother-in-law Dnyaneshwar and informed Neha to havecommitted suicide by hanging. PW 3 – Diksha along withDnyaneshwar returned to the house of the appellant. They sawnothing like the case of hanging. She, however, noticed someinjuries 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 therewas quarrel between the appellant and his wife Neha. She,therefore, left the house. She was then confronted with herstatement to the police and her statement recorded under Section164 of the Code of Criminal Procedure. While in cross-examinationundertaken by the defence, she testified that since she had washedthe clothes outside the house, the floor had become slippery. Nehaaccidentally slipped and suffered injury. 14.Admittedly, PW 3 – Diksha is not witness to what she hasstated about deceased Neha to have suffered injury by sudden fall.The Medical Officer (PW 6) ruled out the head injury to have beencaused by fall on stones. Admittedly, outside the house of theappellant, the floor was plain. Their might be some small stones.Since Neha died as a result of the head injury suffered by her whilein exclusive company of the appellant, it is the appellant, who owed 9Cri Appeal No.610 of 2022explanation how did she suffer the said injury and other injuriesnoticed on her person. The evidence of PW 3-Diksha indicates thatthe appellant tried to deflect their attention. He falsely informedthem Neha to have committed suicide. Same speaks in volumes.15.The evidence on record indicates that Neha met withhomicidal 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, swordor sickle was used. As per the case of prosecution itself, he bangedhis wife’s head against the wall and as a result thereof, Nehasuffered Intracranial fracture and thereby, died. 16.Appreciation of the entire evidence on record indicatesthat there was no premeditation and no use of any weapon. Samerules out the appellant to have intended to kill his wife Neha. Theincident was preceded by quarrel. The appellant hit her with belt andmight have banged her head against a wall. Since the appellant didnot offer any explanation and came with a false defence, we have topresume the prosecution case to be true. From the facts andcircumstances of the case, the appellant could not be said to haveintended to kill his wife nor could he be presumed to have causedinjury sufficient in the ordinary course of nature. 10Cri Appeal No.610 of 202217.Section 300 of Indian Penal Code reads thus:-300.Murder - Except in the cases hereinafterexcepted, culpable homicide is murder, if the act bywhich the death is caused is done with the intention ofcausing death, or —………..3rdly. — If it is done with the intention of causingbodily injury to any person and the bodily injuryintended to be inflicted is sufficient in the ordinarycourse of nature to cause death, or—………..18.In our view, the appellant could be attributed with theknowledge that if he hit the head of his wife against wall with suchforce, death would be the result. As such, in our view, it would be anoffence punishable under Section 304 Part II of Indian Penal Code.Considering the age of the appellant at the relevant time and natureof the offence, we propose to sentence him for a period of sevenyears’ rigorous imprisonment without alteration in the amount of finedirected to be paid by the trial court and quantum of sentence indefault 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 learnedAddl. Sessions Judge, Shrigonda, in Sessions Case No.82 11Cri Appeal No.610 of 2022of 2021, convicting and sentencing the appellant for theoffence punishable under Section 302 of Indian PenalCode, is hereby set aside.Instead, the appellant is convicted for the offencepunishable under Section 304 Part II of Indian Penal Codeand therefore, sentenced to suffer rigorous imprisonmentfor 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 CriminalProcedure be given. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP