apeal289-05.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 289 OF 2005 Gorakh Rambahu Dokhe, ] Convict No. C/-5225, Age : 45 Years, ] Occ. : Labour, R/o. Gawlane, ] Tal. Dist. Nashik. ] Appellant Vs The State of Maharashtra ] Respondent Mr. Abhaykumar Apte for the Appellant Ms. A.S. Pai, A.P.P. For the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 16th NOVEMBER, 2010. PRONOUCNED ON : 02nd DECEMBER, 2010 JUDGMENT [ PER SMT. V.K. TAHILRAMANI,J ] 1. Through this appeal, the appellant-original accused has impugned the judgment and order dated 29.12.2004 passed by the learned Ad-hod Additional Sessions Judge, Nashik in Sessions Case No. 144 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay fine of Rs. 1000/-, in default RI for six months. 1 apeal289-05.doc 2. The prosecution case briefly stated is as under: The accused was residing in a hut near village Gaulane along with his wife Nanda, son PW 2 Suresh aged about 18 years and daughter PW 6 Rupali aged about six years. The accused and his wife were working in a brick kiln of one Supe. The hut of the accused was situated near the brick kiln. The huts of other persons working in the brick kiln were situated near his hut. The accused was habituated to liquor. He used to demand money from his wife for liquor and used to quarrel with his wife and beat and abuse her everyday. On 02.05.2004 at about 5.30 p.m., PW 6 Rupali was playing on a heap of soil near the brick kiln. She saw her parents proceeding to the foot-way. At that time, her father pushed her mother i.e Nanda. When her mother fell down, her father picked up a stone and threw it on the head of her mother and he ran away from there. Her mother sustained bleeding injury on the head. Rupali immediately informed her brother PW 2 Suresh about the incident. Her brother ran to the spot. Meanwhile, the accused came running towards the brick kiln. PW 4 Gorakhnath who was working in the brick kiln tried to stop the accused but he did not succeed. The accused ran way towards Vilholi Road. Suresh found his mother lying on the road with bleeding injury on the head. Blood was oozing from the injury. He found that 2 apeal289-05.doc his mother was dead, hence he started crying. After about 10 minutes, PW 7 Bhiva, police Patil of village Gaulane who was passing by on motorcycle noticed that one lady was lying on the foot-way and one boy was crying near the body of the lady. Bhiva found that the lady was having injury on her head. On verifying the condition of the lady, Bhiva found the lady was dead. Hence, he advised Suresh to go to Vaidvarhe Police station and inform police about the incident. Accordingly, Suresh proceeded to Vadivarhe Police station and reported the incident. On his say, the FIR Exh 18 came to be registered. Thereafter, investigation commenced. PW 7 Bhiva stayed at the place of the incident till police reached the spot. The dead body was sent for postmortem. PW 9 Dr. Shivaji Lahade conducted the postmortem on the dead body of Nanda. He found following external injuries on her person : i. CLW on right forehead vertical 5 X 2 bone deep ii.CLW on left forehead having size 6 X 2 cm bone deep with fracture to frontal bone. iii.Fracture of nasal bone with punctured wound having size 1/2 X 1/2 X 1/2 cms. On nasal bridge. iv.Contusion on left cheek 4 X 3 cms. According to Dr. Shivaji Lahade, all the injuries might have been caused by hard and blunt object. 3 apeal289-05.doc On internal examination, Dr. Shivaji found there was a fracture of frontal bone 6 cms in size oblique in nature. Brain and covering were congested and edematous. Subdural haematoma found on left frontal and parietal region having size 6 X 4 X 2 cms. In his opinion, death of Nanda was caused because of shock due to head injury. According to him, the injuries were possible by throwing a stone on the head and the injuries to Nanda were sufficient to cause her death. After completion of investigation, charge sheet came to be filed against the appellant-accused under Section 302 of IPC. 3. Charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that he and his wife were proceeding on the foot-way to demand money from his employer. As he was not ready to give money deposited with the employer, his wife was quarreling with him. His wife picked up a stone and gave him a blow with the stone, he tried to take the stone from her hand but she fell down on the said stone. As the accused was injured, he ran away to get help from a Doctor. The learned Sessions Judge considered the defence of the accused and the evidence adduced by the prosecution and convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4 apeal289-05.doc 4. We have heard the learned advocate for the appellant and learned APP for the State. We have perused the evidence as well as the judgment and order passed by the learned Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated herein below, we are of the opinion that the learned Sessions Judge was right in coming to the conclusion that it was the act of the accused which resulted in the death of Nanda. 5. In order to prove its case, the prosecution has relied on the ocular evidence of PW 6 Rupali. She is the only eye- witness to the incident. The prosecution has also relied on the evidence of PW 2 Suresh, PW 4 Gorakhnath and PW 5 Vasant to establish the presence of the accused at the spot and to show the conduct of the accused immediately after the incident. It may be stated here that the accused has not denied his presence at the spot, however, his defence is that while he was trying to snatch the stone from the hands of his wife, she fell and sustained injuries. Looking to the nature of the injuries and the evidence of PW 9 Dr. Lahade who has categorically denied that the injuries are not possible by fall, there cannot be any manner of doubt that the death of Nanda was homicidal in nature. To see if it was the accused who caused the fatal injury to Nanda, we would have to turn to the evidence of PW 6 Rupali. 5 apeal289-05.doc 6. PW 6 Rupali has stated that her father used to take liquor and beat her mother. Her parents used to quarrel with each other daily. On the day of the incident, she was playing on a heap of soil near the brick kiln. She saw her parents were proceeding to the foot-way. At that time, her father pushed her mother i.e Nanda. When her mother fell down, her father picked up a stone and threw it on the head of her mother and he ran away from the spot. Her mother sustained bleeding injury on the head. Rupali immediately informed her brother PW 2 Suresh about the incident. Thus, the evidence of Rupali establishes that the accused assaulted his wife with a stone and caused her death. Nothing has been elicited in the cross-examination of this witness so as to disbelieve her testimony. Thus, we have no hesitation in relying on the evidence of PW 6 Rupali. 7. Mr. Apte contended that it is very risky to place reliance on the evidence of PW 6 Rupali being a child witness. According to the learned counsel, evidence of a child witness is generally unworthy of credence. We do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, her evidence shall be rejected, even if it is found reliable. The law is that 6 apeal289-05.doc evidence of a child witness must be evaluated more carefully and with greater circumspection, which we have done. We find the evidence of child witness PW 6 Rupali to be reliable and truthful. Despite searching cross-examination, the child witness has withstood the test of cross-examination. The cross-examiner has not been able to make any dent in the testimony of the child witness. We, therefore, see no reason to disbelieve the testimony of Rupali. Even otherwise, we find that the evidence of Rupali is supported by a number of other circumstances which have been proved by the prosecution. Thus, After carefully evaluating the evidence of Rupali, we are of the opinion that the testimony of child witness Rupali can be safely relied upon. 8. The learned advocate for the appellant further submitted that there was a tree in between the spot where PW 6 Rupali was playing and the spot where the incident took place and on account of the tree, Rupali could not have witnessed the incident. We have perused the map relating to the scene of incident and on perusal of the same, we find that it was very much possible for Rupali to have witnessed the incident and the tree in no way would have obstructed her view of what happened at the spot. It is also pertinent to note that Rupali has specifically denied that the place where the incident took place was not visible from the place where 7 apeal289-05.doc she was playing. Thus, the evidence of Rupali establishes the fact that the accused had assaulted his wife Nanda with a stone due to which Nanda received bleeding injury on the head and died. 9. Thereafter, Mr. Apte submitted that the evidence of PW 6 Rupali cannot be believed as she is a got up witness. We are not inclined to accept this contention because in our view, if the prosecution wanted to concoct a false case against the accused, it would not have examined Rupali who was six years of age as an eye witness but the prosecution would have projected PW 2 Suresh who was 18 years of age as an eye witness to the incident and got him to depose about the incident as if he was an eye-witness. The very fact that only PW 6 Rupali was examined as an eye witness, to our mind, removes any doubt in the mind regarding credibility of this witness. 10. The learned APP has drawn my attention to the evidence of PW 2 Suresh who is the son of the accused as well as the deceased. Suresh is not an eye witness to the incident, however, on going through his testimony, we find that it is of some help to the prosecution and does in some measure, corroborate the testimony of PW 6 Rupali. PW 2 Suresh has stated that the accused is his father. The accused used to 8 apeal289-05.doc quarrel daily with his mother Nanda. The accused used to demand money for liquor and abuse and beat his mother everyday. On 02.05.2004 at about 05.30 p.m., Rupali came and told him that their father was inebriated and their father gave a blow of stone to their mother on Gaulane Road. Suresh, therefore, proceeded to the spot where he saw the accused running towards brick kiln. PW 4 Gorakh tried to stop the accused but the accused ran away towards Vilholi road. Suresh found his mother lying on the road with bleeding injury on her head. Blood was oozing from the injury. He found that his mother was dead, hence he started crying. After about 10 minutes, PW 7 Bhiva police Patil of village Gaulane was passing by on motorcycle. Suresh informed him about the incident. PW 7 Bhiva told him to go to Vadivarhe Police Station and lodge report. Accordingly, Suresh proceeded to Vadivarhe Police station and reported the incident and the FIR came to be registered. 11. PW 4 Gorakhnath was working as a labourer at the brick kiln where the accused and his wife also used to work. He is the neighbour of the accused and the deceased. Gorakhnath has stated that the accused used to quarrel with his wife after taking liquor and used to abuse his wife. He has stated that on 02.05.2004 at about 05.00 to 05.30 p.m., when he was at the brick kiln, he saw the accused and his wife 9 apeal289-05.doc were proceeding by footway towards Gaulane road. They were quarrelling with each other. After sometime, the accused came running towards brick kiln. He tried to stop the accused but the accused did not stop. The accused ran away into the woods. This witness went to the footway and he saw that the wife of the accused was lying on the footway with bleeding injury on her head. At that time, son and daughter of the accused were at the spot. The evidence of PW 5 Vasant who is a neighbour of the accused is on similar lines as that of PW 4 Gorakhnath. The evidence of both these witnesses shows that the accused and deceased were proceeding towards footway. They were both quarreling, suddenly the accused came running towards the brick kiln and at that time, the wife of the accused was found lying on the footway with injury on her head. This conduct on the part of the accused which has been deposed to by PW 2 Suresh, PW 4 Gorakhnath and PW 5 Vasant corroborates the evidence of PW 6 Rupali to a large extent. 12. PW 7 police Patil Bhiva has stated that at about 5.45 p.m., when he was proceeding home on his motorcycle, he saw one lady lying on a foot-way and one boy was crying near the body of the lady. Bhiva found that the lady had an injury on the head. On verifying the condition of the lady, Bhiva found the lady was dead. Hence, he advised the boy i.e PW 2 10 apeal289-05.doc Suresh to go to Vaidvarhe Police station and inform the police about the incident. Bhiva then stayed at the spot till the police reached the spot. The evidence of PW 7 Bhiva lends further credibility to the deposition of PW 2 Suresh. 13. It is pertinent to note that it is not the case of the accused that some other person came and assaulted his wife but in fact his case is that when he tried to take the stone from the hands of his wife, his wife fell down and hit her head on the stone due to which she sustained injury and died. The conduct of the accused is also to be noted. His wife was seriously injured on the head, yet he ran away from the spot. The accused has tried to make out a case that as he was injured, he ran to get medical help. If that was so, the accused would have come back in a short time but the evidence of PW 2 Suresh shows that in fact, the accused did not return home that night. It is the case of the accused that his wife fell down and accidentally hit her head on the stone, if that was the case, then the accused would have tried to seek help from his neighbours and he would have come back to the spot to ensure that his wife gets medical aid. The fact that the accused failed to come back home that night lends much assurance to the prosecution case that it was the accused who assaulted his wife on the head which resulted in her death. 11 apeal289-05.doc 14. Mr Apte submitted that even if it is accepted that the act of the appellant of hitting his wife with a stone resulted in her death, the case would not fall under Section 302 of IPC but it would fall under Section 302-II or at the most Section 304-I of IPC. He pointed out that the evidence on record shows that a quarrel was going on between the accused and his wife which has been deposed to by PW 4 Gorakhnath and PW 5 Vasant. Mr. Apte drew our attention to the fact that the defence of the accused is that his wife assaulted him with a stone. While he was trying to snatch the stone from the hands of his wife, she fell and sustained injury. Mr. Apte submitted that when the wife of the accused assaulted him with stone, he sustained injury on his head. The accused being provoked by this act, snatched the stone from the hands of his wife and assaulted her on the head with it. He drew our attention to the evidence of Investigating Officer who has stated that he arrested the accused on 03.05.2004, at the time of his arrest, the accused was found having injury on the crown of his head. Mr. Apte pointed out that the accused gave just one blow on the head of Nanda which is clear from the evidence of Rupali. Mr Apte submitted that this shows it was not the intention of the accused to cause death of his wife. He submitted that if the accused had intended to cause the death of his wife, he would not have stopped after giving just one blow to his wife 12 apeal289-05.doc but he would have continued to assault her. The fact that he did not do so, shows that he did not have any intention to kill his wife. He further submitted that the assault was not premeditated or preplanned but it happened on the spur of the moment in a fit of anger. Mr. Apte reiterated that the fact that the appellant stopped after giving just one blow to his wife during the course of sudden quarrel and after his wife had assaulted him would bring the case under exception 4 to Section 300 and would thus, be covered by Section 304-II of IPC. 15. It is a fact that the accused was found to have sustained injury on the head. The said injury is consistent with assault by a stone. It is pertinent to note that the prosecution has not furnished any explanation for the injury caused to the accused. It appears that the attention of Rupali was attracted only at the time when the accused assaulting his wife, hence, she has deposed only about the part of the incident witnessed by her i.e the accused assaulting her mother on the head with a stone. Looking to the evidence on record, we find the defence of the accused to be very much probable. Hence, we find much merit in the submission that the case would not fall under Section 302 of IPC but, it would fall under exception 4 to Section 300 of IPC i.e assault by accused during a sudden in the heat of 13 apeal289-05.doc passion. 16. To bring a case within Exception 4 to Section 300 of IPC, all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 of IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence shows that both the parties had worked themselves into a fury on account of verbal altercation going on between them. The accused did not come to the spot armed with a weapon but he assaulted Nanda with a stone taken from the spot. However, for the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation, it must further be shown that the offender has not taken any undue advantage or acted in cruel or unusual manner. The fact that the accused gave only one blow shows that he did not take any undue advantage or act in a cruel or unusual manner. However, we are not prepared to accede to the submission of Mr. Apte that the case would fall under Section 304-II of IPC. In our view, the case would fall under Section 304-I because we are of the opinion that the accused did not just have the knowledge that his act is likely to cause death, as contended by Mr. Apte but in fact, the accused intended to cause the death of Nanda. We say so, 14 apeal289-05.doc on the basis of the weapon used, the part of the body where the injury was inflicted, the force used while assaulting and the nature of the injury. The injuries as seen from the evidence of PW 9 Dr. Lahade are extensive in nature. Looking to all these facts, we are of the considered opinion that the case cannot fall under Section 304-II. 17. Considering the evidence on record, we are of the view that Exception 4 to Section 300 applies to the facts of the case and the appropriate conviction would be under Section 304 Part I of IPC. Hence, conviction under Section 302 of IPC is set aside, instead, the accused is convicted under Section 304-I of IPC. In our view, Custodial sentence of 10 years would meet the ends of justice. 18. The appeal is allowed to the aforesaid extent. [SMT. V.K. TAHILRAMANI, J.] [ D. D. SINHA, J ] 15 apeal289-05.doc 16