1 criminal appeal 753-2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 753 OF 2004 Babasaheb Laxman Korvi, ) C/2520, Kalamba Central Prison, ) Kalamba, ) Kolhapur – 416 007 )...Appellant (Orig.Accused) vs. The State of Maharashtra )...Respondent Mrs.Pranali Kakade, Advocate for the Appellant. Mrs.U.V. Kejriwal, APP for the State. CORAM : D.B. BHOSALE AND M.L. TAHALIYANI, JJ. AUGUST 20, 2011 ORAL JUDGMENT :- 1 The appellant has filed this appeal against the judgment and order dated 26th February, 2004 passed by the 2nd Ad-hoc Additional Sessions Judge, Kolhapur, in Sessions Case No.227/2002. The appellant has been convicted for the 2 criminal appeal 753-2004 offence punishable u/s. 302 of IPC and has been sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/-, in default, to suffer RI for one year. He has further been convicted for the offence punishable u/s. 201 of IPC and is sentenced to suffer RI for five years and to pay a fine of Rs. 2000/-, in default, to suffer RI for one year. 2 The appellant was married to the deceased Sunita and was staying at Village Takawade along with the deceased and six children. The appellant suspected that the deceased was not maintaining fidelity to the appellant. As such, he had apprehension of being defamed in the society due to unchaste character of his wife. To avoid his name being spoiled in the society, the appellant shifted to village Vadgaon where parents of the deceased were also staying. However, there was no improvement in the conduct of the deceased. She allegedly continued to have extra marital relations. The appellant suspected that the deceased was 3 criminal appeal 753-2004 maintaining extra marital relations particularly with one Sadashiv Pandurang Davari who was working as site- supervisor where the deceased was working as a labourer. The appellant tried to impress upon his wife to maintain good conduct and avoid indulging in such activities. 3 It is the case of the prosecution that on 26th August, 2002, the deceased and the appellant both had gone to cattle shed of the employer of the appellant. After providing water to the cattle, they had gone to the field of the employer of the appellant to bring bamboos. While going to the field, the appellant had an axe, sickle and the rope with him. It is at that place the altercation took place between the appellant and the deceased. The appellant was complaining that the deceased was not behaving properly. The deceased, however, threatened the appellant that if he did anything against the deceased, she would approach police and create problem for the appellant. She also expressed her view that 4 criminal appeal 753-2004 the police always help females. Thereafter, both of them had cut bamboo trees and had started returning at about 12.30 p.m. The appellant was carrying bamboos and his wife was following him. She, however, was abusing the appellant and the appellant was complaining of her bad character. The abuses and counter abuses reached to the climax and ultimately the appellant kept aside bamboos by the side of road and assaulted the deceased by means of an axe on her forehead, neck and face. The deceased died on the spot. He lifted dead body of his wife and put in a cement pipe which was used for water flow of canal. Thereafter, he decided to inform the police but could not gather courage. From Vadgaon, he went to his sister’s place at Kolhapur. Ultimately, he gathered courage to report to police and lodged a report intimating the police that he had killed his wife. The appellant was arrested. The investigation was carried out. The dead body was recovered from the spot of the incident. After investigation, the appellant had been charge-sheeted for 5 criminal appeal 753-2004 committing murder of his wife and for causing disappearance of evidence of offence of murder. After committal of case to the court of Sessions, the learned trial court framed a charge against the appellant for the abovesaid two offences. The appellant pleaded not guilty and claimed to be tried. During the course of trial, the prosecution had examined 18 witnesses in support of its case. After recording statement of the appellant under Section 313 of Cr.P.C. and after hearing both the sides, the learned trial court has passed the impugned order convicting the appellant. 4 During the course of hearing before us, the learned Advocate Mrs.Pranali Kakade initially attempted to argue on merit, however, later on, she submitted that she does not seriously dispute that the appellant had caused death of his wife by means of an axe. It was further submitted by her that the case, however, may fall under Section 304 Part I of IPC. Mrs.Pranali Kakade has submitted that if one takes 6 criminal appeal 753-2004 overall view of the evidence, it will be abundantly clear that the appellant was fed up with the conduct of his wife and there was total frustration in his life. On the date of the incident also, the appellant and deceased were together and subject of discussion between both of them was a character of the deceased. Mrs.Pranali Kakade has submitted that instead of showing any remorse or repentance for her behaviour, the deceased threatened the appellant that in the event, the appellant doing anything adverse to the deceased, the deceased might approach the police and might bring the appellant in trouble. It is under these circumstances that there was sudden fight between both of them. The appellant in a heat of passion, without taking any undue advantage of the deceased, had caused the injuries by means of weapon which he was holding due to the nature of his duties. It is also submitted that there was no premeditation and therefore, the case of the appellant may fall under Exception 4 of Section 300 of IPC. 7 criminal appeal 753-2004 5 The learned APP Mrs.Kejriwal, however, did not agree with Mrs.Kakade. Mrs.Kejriwal has brought to our notice the evidence of the Medical Officer who had examined the dead body. It was submitted that there were multiple incised wounds on various parts of dead body including incised wound on the neck. In her submission, the manner in which the deceased was assaulted by the appellant was cruel and unusual and therefore, the appellant is not entitled for claiming any relief under Exception 4 of Section 300 of IPC. 6 We have given our anxious considerations to the submissions made by learned Advocate Mrs.Kakade for the appellant and learned APP Mrs.Kejriwal for the State. No doubt, the deceased had suffered multiple incised wounds. The number of wounds by itself will not be the scale to decide as to whether the offence was committed in a cruel and unusual manner. Cruelty is ascertained not always on the 8 criminal appeal 753-2004 basis of number of injuries. Number of injuries, of course, is one of the considerations. However, it is not the only consideration to decide whether the assailant had exhibited cruelty or had committed murder in an unusual manner. In the present case, there was a sudden fight. The appellant had acted in a heat of passion. The appellant had not taken any undue advantage. There was no premeditation. The only issue which requires consideration is that whether cruelty can be decided only on the basis of the number of injuries. We are of the considered view that number of injuries is one of the considerations to decide whether the cruelty was exhibited by the murderer. However, at the same time, we are of the view that in the present case, in a sudden fight and heat of passion, the appellant might have inflicted multiple blows one after another. It is not that each and every blow was calculated to cause a particular type of injury. We are, therefore, doubtful whether the appellant had acted in a cruel manner. 9 criminal appeal 753-2004 7 Since the appellant and deceased both had gone together to the cattle shed of owner to provide water to the cattle and since the appellant and deceased thereafter had gone to cut bamboo trees, it was natural that the appellant and deceased would carry some usual equipments for cutting. Those equipments were carried by the appellant. Therefore, it cannot be said that there was premeditation. Both of them were fighting on the issue of character of the deceased. It can certainly be said that there was sudden fight. The deceased instead of showing some remorse for her alleged misconduct and for her alleged extra marital relations had threatened the appellant of police action against him and therefore, it could be said that the offence was committed in a heat of passion upon a sudden quarrel and without the appellant taking undue advantage. As far as alleged cruelty on the part of the appellant is concerned, we have already stated in detail that the number of injuries by themselves will not be decisive factor regarding cruelty. In the present case, we are of the 10 criminal appeal 753-2004 considered opinion that the appellant is entitled for benefit of Exception 4 of Section 300 of IPC. His case certainly falls under the said Exception and therefore, he could not have been convicted under Section 302 of IPC. The proper section for his conviction was 304 Part I of IPC. Hence, we pass the following order. 8 The appeal is partly allowed. The order of conviction under Section 302 of IPC is set aside and the appellant-accused is held guilty for the offence punishable under Section 304 Part I of IPC. He is sentenced to suffer imprisonment for ten years and to pay a fine of Rs.2000/- and in default, to suffer RI for three months. The conviction under Section 201 of IPC is maintained. Both the substantive sentences shall run concurrently. (M.L. TAHALIYANI, J.) (D.B. BHOSALE, J.)