(1) CRI. APPEAL 163.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 163 OF 2010 Ashish S/o Vilas Salve, Age : 28 years, Occu.: Labour, R/o : Gandhi Nagar, Jalna (Presently is in Central Jail, Harsool, Aurangabad) .. Appellant (Ori. accused) VERSUS The State of Maharashtra, (Copy to be served on the Public Prosecutor, High Court of Bombay Bench at Aurangabad) .. Respondent ... Mr. A.S. More, Advocate (appointed) for the Appellant Mr. V.D. Godbharle, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 22ND OCTOBER, 2010 ORAL JUDGMENT:- 1. Challenge in this Appeal is to judgment rendered by learned Sessions Judge, Jalna in Sessions Case no. 46 of 2008. By that judgment, the appellant came to be convicted for offence punishable under section 307 of the Indian Penal Code and has been sentenced to suffer R.I. for term of five years and to pay fine of Rs.300/- in default to suffer rigorous imprisonment for one month. (2) CRI. APPEAL 163.2010 2. The appellant and his wife-victim Sunita were residing together. Out of the wedlock, she gave birth to four children, the youngest by name Adesh was infant at the relevant time. There was matrimonial discord between the spouses and therefore, the victim Sunita was residing separately for some period. Still, however, a few months before the incident, she had joined company of the appellant. Both of them used to earn livelihood by doing manual work as labours. He used to suspect her fidelity. 3. The prosecution case is that on 2.12.2005, PW Sunita (victim) had gone to attend the labour work alongwith the infant male child. She returned home due to pains in the abdomen, somewhere around 10.00 am. Thereafter, one Narayan, who was tractor driver of Prakashseth came to her house. She sent a message to the appellant with said Narayan for sending of the key of house as it was locked. The appellant did not return home with the key and therefore, she got the lock broke open. By about 12.30-1.00 pm. the (3) CRI. APPEAL 163.2010 appellant returned to his house. He suspected that the victim was having some illicit relations with said Narayan driver. He was holding a spade in his hand. He assaulted her by means of the spade on left hand, left leg and also assaulted the infant-Adesh. The victim-Sunita raised hue and cry. The neighbours and her brother rushed to the place. Thereafter, she was taken to the hospital in an auto-rickshaw and was admitted for medical treatment. Her FIR was recorded whilst she was under medical treatment. On basis of the material gathered during course of investigation, the appellant was chargesheeted for the offence of committing attempt to cause culpable homicide of his wife and the infant. 4. The appellant denied truth into the accusations. His defence was that of total denial. The appellant categorically denied that he assaulted the victim with intention to cause her death. 5. At the trial, the prosecution examined in all six witnesses in support of its case. The learned Sessions Judge accepted the version of the victim and the eye witnesses. The learned Sessions (4) CRI. APPEAL 163.2010 Judge held that the appellant attempted to cause death of the victim and the infant in the relevant noon. Hence, the learned Sessions Judge recorded the impugned judgment of conviction and sentence. 6. Heard learned Advocate Mr. More for the appellant and learned APP Mr. Godbharle for the State. With the assistance of the learned Advocate and learned APP, I have gone through the record and proceedings. 7. The material question involved in the present Appeal is whether the facts proved by the prosecution would constitute the offence under section 307 of the Indian Penal Code and, therefore, the impugned judgment of conviction and sentence is legal and proper? 8. Before appreciation of the testimony of the victim and other witnesses, it is important to notice that the appellant used to suspect fidelity of the victim-wife and they were not pulling on well with each other. She had resided separately for some period. She and her husband were residing separately (5) CRI. APPEAL 163.2010 from his parents and the brother. The appellant and the victim are members of the lower strata of the society. Both of them used to earn livelihood by doing manual work as labours. The relations between the spouses were strained due to the suspicion entertained by the appellant about character of the wife (victim). In this backdrop, the incident will have to be considered on basis of the evidence tendered by the victim and other witnesses. 9. Coming to the version of PW-1 Sunita, it may be gathered that at about 11.00 am, she returned home in the relevant noon from the place of work. She deposed that she was suffering from abdominal pains and, therefore, had to return home alongwith the infant-Adesh. She had not stated anything about deputing Narayan driver to inform the appellant of her returning home and sending him alongwith the key. She deposed that at about 12.30 pm, the appellant returned home and enquired with her as to why she had come early. According to her, without giving any explanation, he started beating her by means of a spade. He dealt a blow of spade on her head and, (6) CRI. APPEAL 163.2010 thereafter gave another blow on her left leg. She felt giddiness. He also dealt a blow of spade on head of the infant. Her version purports to show that her neighbour rushed to the house and also her two brothers came there after the incident. She was taken to the civil hospital where she was treated for about a week. Her version remained unshaken inspite of cross-examination. She admits that about a year or so, she was deserted by the husband. but they had joined company of each other lateron. She admits that Narayan is the tractor driver. She further admits that since about three days continuously before the day of incident, she was working alongwith the appellant as a manual labour. She corroborated the recitals of the FIR (Exh. 20). Nothing of much importance could be gathered from her cross- examination. 10. Sofar as the incident is concerned, the version of PW 3 Sunita Pawar duly corroborates the testimony of the victim. She is residing in the neighbourhood of the victim. She heard that the appellant was asking the victim as to why Narayan (7) CRI. APPEAL 163.2010 (driver) had visited the house and immediately thereafter had started assaulting the victim by means of a spade. Indeed, the testimony of PW Sunita Pawar had remained unshaken for want of any effective cross-examination. There is absolutely no reason coming forth as to why PW Sunita Pawar would speak lie. She appears to be a trustworthy and independent witness. 11. Considering the corroborative direct evidence, it will have to be said that the incident of assault mounted by the appellant is duly proved. Similarly, the version of PW 4 Vikas lends corroboration to the case of the prosecution. 12. The testimony of PW2 Dr. Ritesh Agrawal reveals that the victim was examined by him while on duty as Medical Officer in Civil Hospital, Jalna on 2.12.2005 at about 3.05 pm. He noticed following three injuries on her person:- "1. CLW on middle of scalp, anterior posterior direction. The injury was having 3 X 1 X 1/2 cm. The duration was within 2 to 3 hours. It was simple in nature. It was caused by hard and blunt object. (8) CRI. APPEAL 163.2010 2. CLW on left leg anterior aspect upper third, 2 X 1 X 1/2 cm. Superio inferior direction, injury was fresh within 2 to 3 hours. It was simple injury, might have caused by blunt object. 3. Contusion left arm middle third, 6 X 6 cm. Fresh within 2 to 3 hours. It was grievous hurt, caused by blunt object." He vaguely states that both the injuries found on the leg and hand of the victim were grievous and were sufficient to cause her death in case timely and proper medical care was not provided. This opinion of PW Dr.Ritesh Agrawal is insufficient to reach a conclusion that the injuries, in the ordinary course, were sufficient to cause the death of the victim. The grievous injuries were not on vital part of the body. There was single contused lacerated wound on the middle of the scalp but it was found to be simple in nature and was caused by hard and blunt object. In other words, the spade might not have been used from the side of edge and the injury might have been caused only by using the handle thereof. So also, considering the injuries found on person of the (9) CRI. APPEAL 163.2010 infant, as per the version of PW 5 Dr. Seema, it is difficult to infer that intention of the appellant was to case death of the infant. 13. Considering the entire evidence of the prosecution, what emerges is that the appellant did not find his wife at the place of the work in the relevant noon. He became suspicious. He immediately returned home with suspicion that she had gone back home in order to indulge in the extra-marital relations with driver Narayan. He was enraged and assaulted her on account of such suspicion. Had he any intention to cause her death, probably, he would have used the edge of the spade while mounting the assault on the head of the victim. The incident took place as an outburst of his anger due to sudden returning of the wife from the place of work without intimating him. The single injury found on the infant's scalp, as can be noticed from the medico legal certificate (Exh. 35) and version of PW Dr. Seema, was of simple nature. The size of the lacerated wound was 2 X 1 Cm. It appears that the infant sustained injury when the appellant was (10) CRI. APPEAL 163.2010 hitting the wife by means of handle of the spade. It is clear that the infant came in the midway during the course of assault and there was probably no intention of the appellant to strike any blow on the person of the infant. 14. Considering the fact situation, brought on surface of the record, it will have to be said that the offence does not come within the ambit of section 307 of the Indian Penal Code. It falls within the ambit of section 326 of the Indian Penal Code. 15. Sofar as the quantum of sentence is concerned, the appellant is behind the bars since about a couple of years, the incident occurred all of a sudden and the appellant was probably haunted due to suspicion about the extra-marital relations between the victim-Narayan driver and as such he assaulted the victim (wife). The appellant is not a hardened criminal as such. There is no past bad antecedent against him. In this view of the matter, I am inclined to hold that the period of sentence suffered by the appellant till this date would suffice the purpose. Since the appellant is a poor (11) CRI. APPEAL 163.2010 labour, lenient view is warranted in the circumstances. 16. In the result, the Appeal is partly allowed. The impugned judgment of conviction and sentence is modified. Instead of the offence punishable under section 307 of the Indian Penal Code, the appellant is held guilty of offence punishable under section 326 of the Indian Penal Code and the substantive sentence is reduced to the term already undergone by him. The order to pay fine amount, however, is maintained alongwith the sentence awarded in default of payment of the fine. 17. The Appeal is accordingly disposed of. Sd/- [V. R. KINGAONKAR, J.] arp