High Court
Legal Reasoning
Criminal Appeal No.1175/2019:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1175 OF 2019Balasaheb s/o Daulatrao ShindeAge 60 years, Occu. Nil,At present in Jail R/o Plot No.81, N-2, CIDCO, Mahalaxmi Colony, AurangabadTq. & Dist. Aurangabad… APPELLANT(Orig. Accused)VERSUSThe State of Maharashtra Through Police Inspector, Mukundwadi Police Station, Aurangabad(Copy to be served on P.P.,High Court of Bombay,Bench at Aurangabad) … RESPONDENT.......Mr. S.G. Magre, Advocate for appellant Mrs. V.S. Choudhari, A.P.P. for respondent ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 8th March, 2024Date of pronouncing judgment : 13th March, 2024JUDGMENT (PER R.G. AVACHAT, J.) The appellant was convicted for the offence ofuxoricide and, therefore, sentenced to suffer imprisonment for lifeand pay a fine of Rs.10,000/- with default stipulation by learnedAdditional Sessions Judge-6, Aurangabad by judgment and order
Legal Reasoning
Criminal Appeal No.1175/2019:: 2 ::dated 24/10/2019, passed in Sessions Case No.24/2019.Therefore, he is in this appeal before this Court.2.The case of the prosecution is as follows :- The appellant married Jyoti (deceased) about 16 yearsbefore the alleged incidence. The couple was blessed with twochildren, P.W.1 Master Om (informant) and Vaibhav. All of themwere residing together at Mahalaxmi Colony, N-2, CIDCO,Aurangabad. P.W.1 Om (informant) was in 10th Standard at therelevant time. It is the case of the prosecution that the appellant wasserving with Vighnaharta Hospital. Jyoti (deceased) would serve asa private Nurse for patients at their respective residences. It was24/9/2018, both the appellant, Jyoti (deceased) and even P.W.1Master Om were present at their residence. The appellantquestioned Jyoti where did she roam on a Scooty covering distanceof 20 Kms. The appellant started abusing her. Vaibhav, the elderbrother arrived. Both, he and Master Om tried to pacify theappellant. Jyoti asked Vaibhav to leave the house. He left. It is further the case of the prosecution that at 3.30midnight, the informant heard noise of shouting of his mother. He Criminal Appeal No.1175/2019:: 3 ::woke up thereby. He saw the appellant armed with a sharp edgedknife. The appellant was seen pressing neck of Jyoti. P.W.1Master Om separated them. Appellant that time inflicted a knifeblow on stomach of Jyoti. The appellant then ran away on aScooty. Master Om (P.W.1) unsuccessfully chased him. He(Master Om) went to the house of his neighbour. The otherneighbours also arrived. The appellant, before leaving the house,pushed Jyoti in a gutter outside the residence. A police van onpatrolling duty was intercepted. Jyoti was rushed to the hospital.P.W.1 Master Om lodged F.I.R. (Exh.19). His statement underSection 164 of the Code of Criminal Procedure was also recorded.3.Based on the F.I.R. (Exh.19), a crime vide C.R.No.285/2018 was registered for offence punishable under Sections302 and 504 of the Indian Penal Code. It appears that, the sceneof offence panchanama (Exh.24) and inquest panchanama(Exh.14) were drawn even before registration of the crime. Jyotisuccumbed to the injury. Her mortal remains was subjected toautopsy. Clothes on her person were seized. The appellant wasarrested. Upon completion of the investigation, charge sheet(Exh.1) was filed in the Court of learned Judicial Magistrate, FirstClass, Aurangabad. Learned Judicial Magistrate, First Class, 12thCourt, Aurangabad committed the case to the Court of Sessions,Aurangabad. The trial Court framed the Charge Exh.6/C. The Criminal Appeal No.1175/2019:: 4 ::appellant pleaded not guilty. His defence is of false implication atthe behest of his brother-in-law (wife’s brother).4.To bring home the charge, the prosecution examined 9witnesses and produced in evidence certain documents. The TrialCourt, on appreciation of the evidence in the case, convicted theappellant and consequently sentenced as stated above.5.Heard. Learned counsel for the appellant would submitthat, there is delay in lodging of the F.I.R. The informant was achild. Since the day of the incident, he was residing at the house ofhis maternal grandparents. He was thus under the influence of hismaternal uncle and grandparents as well. He came to the Courtalong with maternal uncle. According to learned counsel, the sceneof offence panchanama (Exh.24) and inquest panchanama(Exh.14) were drawn even before registration of the F.I.R. MasterOm (informant) was very much present while those panchanamaswere drawn. He did not disclose to the police his father to havekilled his mother. Even when a police patrolling van wasintercepted, he did not disclose the police anything. The samesuggests the F.I.R. and Master Om’s evidence before the Court wasafterthought and even given under the influence of maternal uncle.The learned counsel would further submit that, only a blade ofkitchen knife was found at the scene of offence. It was not shown Criminal Appeal No.1175/2019:: 5 ::to the Medical Officer to elicite his opinion as to whether a deathcould be caused with a single blow thereof. He then adverted ourattention to C.A. report (Exh.57), which indicates that cuts on thegown on the person of the deceased could not be caused by theknife with which the appellant allegedly killed his wife. According tolearned counsel, it is a case based on sole witness account. Theevidence of Master Om does not inspire confidence. According tohim, the appellant is over 65 years of age. He is behind the bars forover 3 years. Learned counsel ultimately urged for allowing theappeal.6.The learned A.P.P. would, on the other hand, submitthat, Master Om has given graphic details of the incident. Hispresence was natural. He is none other than real son of theappellant. He has no reason to falsely implicate his father. MasterOm being just 15 – 16 years of age at the relevant time, could notreport the matter to the police while inquest or scene of offencepanchanama was drawn. Evidence of the neighbour indicate thepresence of the appellant at his residence. The appellant failed tomake out his defence of alibi. According to learned A.P.P., the knifeseized from the scene of offence was sharp and pointed. The injuryon the person of the deceased was very much possible with anassault thereof. She ultimately urged for dismissal of the appeal. Criminal Appeal No.1175/2019:: 6 ::7.Considered the submissions advanced. Perused theevidence on record. Let us advert thereto and appreciate thesame.8.P.W.5 Dr. Manohar was a Medical Officer withGovernment Medical College Hospital, Aurangabad on the givenday. He conducted autopsy on the mortal remains of Jyoti. Henoticed following injuries on her person :-i)Stab injury present over right side of abdomen, at right ilaicfossa, of size 1 cm x 0.5 cm by cavity deep, transverse,situated 5.5 cm lateral to midline and 8 cm above and medialto right anterior superior iliac spine, 9 cm below and lateral toumbilicus and 43 cm below clavicle. Margins clean, cuthaemorrhagic, fat protruding out, blood oozing out throughinjury. On dissection track passes through skinsubcutaneous tissues, fat, rectus muscle, piercingperitoneum, mesentery of small intestine, sigmoid column,perforated through and through antero-posteriorly, 1 cm slitlike on each side, termination at ilaic vessels on right sidenear sacro-iliac joint. Track haemorrhagic directedposteriorly and medially.ii)Abraded contusion present over lower lip, of size 1 cm x 1cm, situated 1 cm medial to left angle mouth, red. Criminal Appeal No.1175/2019:: 7 ::iii)Abrasion present over left thumb, dorsal aspect, of size 1 cmx 0.6 cm, red.iv)“L” shaped abrasion present on left side of abdomen,situated 8 cm above and lateral to umbilicus horizontal ofsize 3 cm x 0.2 cm and vertical of size 1 cm x 0.6 cm., red.According to P.W.5 Dr. Manohar, injury No.(i) waspossible with sharp edged pointed weapon. Injury Nos.(ii) to (iv)were possible due to impact of hard, blunt and rough surface/weapon. In his opinion, the deceased died of shock andhaemorrhage due to stab injury (Post mortem report Exh.35).9.It is true, the knife (Article B and C) seized from thescene of offence was not shown to Dr. Manohar to elicit his opinionas to whether the injury No.(i) was possible with the said weapon.It is also not in his evidence that the Injury No.(i) was sufficient inthe ordinary course of nature to cause death of Jyoti.10.The incident took place at a residential house of theappellant, which was admittedly shared by him, his wife Jyoti(deceased) and two children. It was a night time. Their presenceat their house was natural. Admittedly, the appellant was serving ina Circus. There is nothing in his evidence to indicate that he was Criminal Appeal No.1175/2019:: 8 ::not at his residence at the relevant time, although it was sosuggested to his son, Master Om (P.W.1).11.The evidence of informant Master Om (P.W.1) indicatethat, on the given day, there was quarrel between his parents. Theappellant questioned his mother where did she roam 20 Kms. onScooty. He and his brother tried to pacify the quarrel. On the sayof deceased Jyoti, elder brother Vaibhav went away. It is further inhis evidence, by 3.30 a.m., he woke up to the shouts of his mother.He saw his father (appellant) armed with a knife. The appellantpressed neck of his mother. He (Master Om) tried to separatethem. The appellant inflicted a knife blow, on the stomach of hiswife. It is further in his evidence that the appellant pushed motherin a gutter outside the house.12.The evidence of Master Om is very much consistentwith his F.I.R. (Exh.19) and statement under Section 164 of Cr.P.C.(Exh.20). True, he was confronted with his statement underSection 164 of the Cr.P.C., wherein the mother was stated to havebeen fallen in a gutter due to giddiness as a result of the injury.This much omission amounting to contradiction will not make theevidence of Master Om (P.W.1) unreliable. Criminal Appeal No.1175/2019:: 9 ::13.It is true, it was Master Om (P.W.1) who identified thebody of his mother while the inquest was drawn. He was alsopresent at the time of scene of offence panchanama. It was on hisinterception of a police patrolling van, the deceased was rushed toa hospital. During all these occasions, Master Om (P.W.1) did notrelate anything about the incident. He was just 16 years of age atthe relevant time. It is reiterated that, the appellant did not makeout a case of him to have been somewhere else and not at hisresidence at the relevant time. It is reiterated that, it was a nighttime. Presence of the appellant, deceased and their son MasterOm (P.W.1) at their residence was natural. On the demise of themother and father being behind the bars, it was but natural forMaster Om (P.W.1) to take shelter at the house of his maternalgrandparents. It, therefore, cannot be said that he gave hisevidence at the behest of his maternal uncle and grandparents,although he had come to the Court in the company of his maternaluncle.14.The evidence of other witnesses is not of muchimportance. They are the witnesses to inquest, scene of offenceand seizure of clothes panchanamas. It is true that, C.A. reportindicates that tear on the gown on person of the deceased was notpossible by the knife blade seized from the scene of offence. Wehave also inspected the said article. Admittedly, the appellant gave Criminal Appeal No.1175/2019:: 10 ::a single blow therewith. The prosecution did not elicit opinion of theMedical Officer as to whether the injury caused was sufficient in theordinary course of nature to cause death. 15.The fact, however, remains that, the appellantassaulted the deceased with a sharp and pointed weapon. Theassault was on the vital part of the body of the deceased. Thesame indicates the appellant’s intention to commit her murder.There is, however, evidence to indicate that there was quarrelbetween the appellant and the deceased. He suspected somethingamiss since he questioned her as to where did she roam ridingScooty for about 20 Kms. The quarrel was pacified by Master Om.Again in the midnight, the quarrel ensued between the two. Theweapon with which the assault was made, was a kitchen knife,easily available at home. As such, it is not that the appellant hadbrought it with an intention to eliminate his wife. The evidence ofP.W.2 Sham @ Vithal indicate that he was residing in theneighbourhood of the deceased. It is further in his evidence that,Master Om knocked on the door of his house by little past 3.30 a.m.In response thereto, he opened the door and accompanied him tothe appellant’s residence. His evidence further indicates that, by10.00 p.m. on the fateful day, he heard quarrel between theappellant and his wife. The same suggests the appellant was at hisresidence at the relevant time. There is nothing to indicate that he
Decision
Criminal Appeal No.1175/2019:: 11 ::left the house thereafter and then someone else committed thecrime.16.The Apex Court in case of Trimukh Maroti Kirkan Vs.State of Maharashtra, (2006) 10 SCC 681 observed thus -“22.Where an accused is alleged to have committed themurder of his wife and the prosecution succeeds inleading evidence to show that shortly before thecommission of crime they were seen together or theoffence takes placed in the dwelling home where thehusband also normally resided, it has been consistentlyheld that if the accused does not offer any explanationhow the wife received injuries or offers an explanationwhich is found to be false, it is a strong circumstancewhich indicates that he is responsible for commission ofthe crime.”17.The fact, however, remains, the incident was precededby a heated quarrel between the appellant and the deceased. Theappellant gave the deceased a single blow with a kitchen knifewhich was available at the residence. The facts brings out theappellant’s case within the Exception (4) of Section 300 of theIndian Penal Code. As such, it is an offence punishable underSection 304 Part I of the Indian Penal Code.18.In view of the above, the appeal partly succeeds.Hence the order :- Criminal Appeal No.1175/2019:: 12 ::O R D E R(i)The Criminal Appeal is partly allowed.(ii)The conviction of the appellant for offence punishable underSection 302 of the Indian Penal Code vide order dated24/10/2019, passed by learned Additional Sessions Judge-6,Aurangabad in Sessions Case No.24/2019 is hereby setaside. The appellant is acquitted of the offence punishableunder Section 302 of the Indian Penal Code. (iii)Instead, the appellant is hereby convicted for the offencepunishable under Section 304 Part I of the Indian Penal Codeand therefore, sentenced to suffer rigorous imprisonment forten (10) years and to pay fine of Rs.3000/- (Rupees threethousand), in default to suffer rigorous imprisonment for threemonths. (iv)The amount of fine, if paid by the appellant, be adjustedaccordingly.(v) The Criminal Appeal stands disposed of.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-