1 cri.appeal-186-11.doc mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.186 OF 2011 Smt.Indubai Arjun Wagh ) Age about 45 years, Occ. ) Agriculture, Residing at and ) post Kaman, Tal. Vasai, Dist. ) Thane. )..APPELLANT )(ORI.ACCUSED) Versus The State of Maharashtra )..RESPONDENT Mr. Yogesh B. Rawool and Mr. S.S. Redekar, for the appellant. Dr. F.R.Shaikh, APP for the State. CORAM: B. H. MARLAPALLE & A.M. THIPSAY, JJ. RESERVED ON: 15TH APRIL, 2011 PRONOUNCED ON: 20TH APRIL, 2011 JUDGMENT (PER B.H.MARLAPALLE, J.) This appeal filed under Section 374(2) of Cr.P.C. is directed against the order of conviction and sentence passed on 18th February, 2 cri.appeal-186-11.doc 2011 by the learned Additional Sessions Judge at Vasai in Sessions Case No.65 of 2009 and by the said order the appellant-original accused has been convicted and sentenced to suffer R.I. for life for the offence punishable under Section 302 of I.P.C. The appellant has been in jail from 13th June, 2009. 2. This aplpeal was admitted on 18th March, 2011 and when Criminal Application No.355 of 2011 filed for being released on released on bail came up for hearing, the parties agreed to hear the appeal finally. The record and proceedings has been received and private paper book has been supplied. 3. As per the prosecution case the appellant-accused along with her son Pravin are residents of village Khandicha Pada in Vasai Taluka and deceased Ganesh was their relation. He was staying with them at the relevant time. In the early morning on 13th June, 2009 the appellant and her son (juvenile accused) went to the Police Patil Smt. Shobha Virarkar of village Kaman and informed her that the deceased was their guest and in the earlier night he had misbehaved with Suvarna minor daughter of the appelant and at about 2.00 a.m., when she got up she had seen the accused sleeping near Suvarna and clinging her. He had consumed liquor and he would not release the 3 cri.appeal-186-11.doc minor daughter. The juvenile accused also got up and urged the deceased to release Suvarna, but the deceased did not pay any heed. The appellant as well as her son got angry and they assaulted the deceased with a pawada and stick. He sustained head injury and was lying in the house. The Police Patil P.W-1, therefore, went to the house of the accused and noticed that Ganesh was dead and on the basis of the information given by accused P.W.1, lodged the complaint with the police station of Manikpur (F.I.R. at Exhibit 11). 4. P.W.8-Prakash Narayan Nikam visited the spot on 13th June, 2009 and prepared the inquest panchnama at Exhibit 13. The dead body was sent for postmortem which was conducted by P.W.7-Dr.Milind Marotrao Ghuge. In the course of investgation the I.O., recorded the statements of the neighbours i.e. P.W.5-Lalji Bannu Pawar and P.W. 6-Pintu Janya Pawar. On completion of the investigation the I.O., filed the charge-sheet and the offence being triable by the trial Court the case was committed. The charge was framed on 19th June, 2010. The prosecution examined in all 8 witnesses. P.W.2-Dhaneshwar Chandar Lokhande and P.W.3-Rahul Sahebrao Bedekar, who were witnesses for inquest panchanama at Exhibit 13 had turned hostile. P.W.4-Yegesh Nagindas Tailor was the panch witness for seizure of the clothes from the person of the deceased under panchnama at 4 cri.appeal-186-11.doc Exhibit 22. No C.A. Reports were placed on record. 5. P.W.7-Dr. Milind Marotrao Ghuge stated before the trial Court that when he conducted the the autopsy he had found the following two injuries on the person of the deceased:- 1. Abrasion 3 ½ x 2 cm., over left elbow joint. 2. Deep injury measure in 1 cm., deep left surface below left eye. He also stated that there was a fracture of skull on the posterior side. He had written the postmortem notes at Exhibit 27 and the cause of death was due to cardio respiratory arrest due to haemorrhagic shock due to injury to head. This witness was cross examined to doubt the opinion of the Medical Officer that Ganesh died a homicidal death on account of the fracture of skull. 6. P.W.5-Lalji Bannu Pawar and P.W.6-Pintu Janya Pawar were neighours. Both of them stated before the trial Court that in the night of 12th June, 2009 there was a quarrel going on between the present appellant and the deceased. After 10.00 pm., they had seen the appellant and her son assaulting Ganesh. They tried to intervene but the appellant told them that it was their internal matter and they should not interfere. Hence the witnesses left the house of the 5 cri.appeal-186-11.doc accused and on the next day in the morning the neighbours gathered in the house of the accused as Ganesh was dead. This testimony in the cross examinaton of both these witnesses could not be impeached and the contradictions sought to be brought out were only in respect of the weapon used to assault the deceased. P.W.1-Shobha Ramesh Virarkar stated before the trial Court that in the morning of 13th June, 2009 the accused went to her house and intimated that Ganesh had come to their house as a guest and he had consumed liquor. Under the influence of liquor he had taken Suvarna out of the house and raped her. On that count they had assaulted Ganesh by a pawada and stone. In her statement recorded under Section 313 of Cr.P.C., the accused admitted that on 13th June, 2009 she had along with her son gone to the house of P.W.1 and informed her that Ganesh was found lying in injured condition. 7. Admittedly, Ganesh was a guest in the house of the accused and he was seen dead in the wee hours of 13th June, 2009. P.W.5 and P.W.6 were the neighbours and as per them there was a quarrel going on between the accused and Ganesh and in that quarrel the appellant and her minor son had assaulted the deceased. The incident had thus taken place in the house of the accused. The record also shows that the appellant was related to the deceased in as much as she is the aunt 6 cri.appeal-186-11.doc (father’s sister) of the wife of the deceased. She failed to furnish any explanation as to how Ganesh received head injuries and died in her house. At the same time P.W.1 clearly stated before the Court that the accused themselves had told her about the incident and on account of the alleged rape on Suvarna they had assaulted the deceased by phawada and stone. Though the weapons were seized not sent for C.A., the injury of fracture of skull was attribuited to a b lunt and hard weapon. It is in these circumstances the trial Court held that it was the appellant who with the help of her son assaulted the deceased and in the same he sustained head injury due to which his skull was fractured and thus the accused had caused the homicidal death of Ganesh in the night of 12th June, 2009. This finding of the trial Court does not suffer from any infirmities on assessment of the evidence as adduced by the prosecution. We must also note that the accused did not step into the witness box nor did she examine any witness in her defence to prove that the incident did not take place in her house. 8. The trial Court has held that the accused was guilty of causing the murder of Ganesh and, therefore, convicted her for the offence punishable under Section 302 of I.P.C. The finding of the trial Court, in our considered opinin, is not supported from the evidence on 7 cri.appeal-186-11.doc record. This story of rape of Suvarna, for the motive behind the crime has not been supported by the evidence of P.W.5 and P.W.6. However, the prosecution case itself is that the appellant and the co- accused assaulted the deceased because the deceased had misbehaved with the appellant’s seven year old daughter. The charge framed against the appellant (at Exhibit 6) also mentions that the assault on the deceased was by reason of the deceased having misbehaved with aplpellant’s daughter Suvarna. This was the case which the appellant was required to meet. There is nothing to point out that there was any pre-meditatation between the accused before the grime was comitted or there was any intention attributable to the accused to cause death or to cause bodily injury which was liekly to cause the death of Ganesh. It appears that Ganesh had been staying with the accused for some time and there was a quarrel between the appellant and Ganesh after 10.00 p.m. on 12th June, 2009. It was not preceded by any other incident and it appears that in the heat of anger, caused due to the misbehaviour with Suvarna, the accused inflicted blow on the head of Ganesh and this blow resulted in the fracture of his skull. P.W.7 Dr.Ghuge has stated before the trial Court that the external injuries noticed and mentioned in column No.17 of Exhibit 27 could be caused by a fall, but at the same time the head injury was the cause of death. The learned Counsel for the accused rightly placed 8 cri.appeal-186-11.doc reliance on the decisions of this Court in the case of Motilal Chouthiprasad Varma v. State of Maharashtra, 2007 Cri. L.J. 561, Omprakash Shardaprasad Mallah & Anr. vs. State of Maharashtra 2007 (2) Mh. L.J. (Cri.) 535 and Balu Raosaheb Navale & Anr. vs. State of Maharashtra, 2005 Cri. L.J. 366 in support of his contentions that the conviction under Section 302 of I.P.C., is required to be set aside. Having regard to the peculiar facts of this case we have no doubt in our mind that the incident had taken place in a fight in which the accused had inflicted one single blow on the head of the deceased. The injury was committed with the knowledge that it was likely to cause the death of Ganesh, but without intention to cause such death or such boadly injury as was lilely to cause death. Hence the offence committed by the accused would come within the ambit of Section 304 (Part II) of I.P.C. 9. Coming to the quantum of sentence, it is to be noted that the co-accused was about 17 years of age. The neighours P.W.5 and P.W. 6 had seen both the accused assaulting Ganesh in the night after 10.00 p.m. And the single injujry on the skull proved to be fatal. The prosecution could not prove as to which of the accused had inflicted the head injury which resulted in the death of Ganesh. The appellant is a lady and elder to the deceased by about 15 years. The deceased 9 cri.appeal-186-11.doc was her relation and staying with her. Hence the cause of justice would be served if the appellant is sentenced to suffer imprisonment for five years. 10. In the premises, this Appeal succeeds partly. The order of conviction and sentence passed in Sessions Case No.65 of 2009 for the offence punishable under Section 302 of I.P.C. is hereby quashed and set aside. Instead the accused is convicted for the offence punishable under Section 304(Part II) of I.P.C. and she is sentenced to suffer imprisonment for five years. The appellant will be entitled to set-off under Section 428 of Cr.P.C. (A.M. THIPSAY, J.) (B.H.MARLAPALLE, J.)