1 mss APEAL.958 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 958 OF 2006 ASHOK RAJARAM SUTAR ) R/o Nhavi Budruk, Taluka Koregaon ) Dist. Satara ) .. APPELLANT Vs. THE STATE OF MAHARASHTRA ) (At the instance of Rahimatpur ) Police Station, ).. RESPONDENTS Ms. Amita Kuttikrishnan, appointed Advocate for the appellant Ms. P. H. Kantharia, APP for State. CORAM: MOHIT S. SHAH, C.J. & SMT. RANJANA DESAI,J. DATE ON WHICH THE JUDGMENT IS RESERVED : 10TH JUNE, 2011 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 17TH JUNE, 2011 JUDGMENT: (Per Smt. Ranjana Desai, J.). The appellant was tried in the Court of Additional Sessions Judge, Satara in Sessions Case No. 125 of 2004 for committing murder of his mother Shakuntala on 23/7/2004 at village Nhavi Budruk, Taluka Raigarh, 2 mss APEAL.958 District Satara. By the impugned judgment and order he has been convicted for the offence punishable under Section 302 of the Indian Penal Code (“IPC”) and sentenced to suffer RI for life and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer further RI for six months. Being aggrieved by the said judgment and order, the appellant has preferred this appeal. 2. It is necessary to begin with the facts of the case. PW 3 Rajaram Ramchandra Sutar is the father of the appellant. Deceased Shakuntala was his mother. PW 3 Rajaram Sutar was residing at village Nhavi Budruk, Taluka Koregaon, District Satara along with his wife deceased Shakuntala and the appellant. The wife of the appellant had left him due to harassment meted out to her by him. Fifteen days prior to 3/7/04 PW 3 Rajaram Sutar had gone to Wangi, Taluka Khanapur, because the appellant was subjecting him to harassment. On 23/7/04 through one Shrikrishna Vasudev Kulkarni, PW 3 Rajaram came to know that the appellant was beating Shakuntala, i.e. his wife (the mother of the appellant) in the house. Thereafter through Nurmahammad Mulani he came to know that the appellant had killed Shakuntala. PW 1 Santosh Pandurang Sutar had informed him that the appellant had dealt stick blows on the head of 3 mss APEAL.958 Shakuntala resulting in her death and that the appellant was confined in Shivaji Hall. PW 3 went to his house and found Shakuntala lying dead in pool of blood with head injury. PW 3 Rajaram Sutar with the hlep of PW 2 Sambhaji Pandharinath Salunkhe went to Rahimatpur Police Station and lodged complaint which is at Exh.-16. On the basis of the complaint investigation was started. After completion of the investigation the appellant came to be charged as aforesaid. 3. In support of its case the prosecution examined PW 1 Santosh Pandurang Sutar, cousin of the appellant, PW 2 Sambhaji Pandharinath Salunkhe, resident of village Nhavi Budruk, PW 3 Rajaram Ramchandra Sutar, the complainant, PW 4 API Vishwanath Dnyandeo Ghanwat, who was attached to Rahimatpur Police Station at the relevant time and, PW 5 Dr. Vijaykumar Babasaheb Pandhare, who had done postmortem on the deceased. Defence of the appellant was one of denial. In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant stated that the prosecution witnesses were deposing falsely against him because they wanted to grab his property. The evidence led by the prosecution found favour with learned Sessions Judge and hence he convicted the appellant as aforesaid. 4 mss APEAL.958 4. We have heard at some length Ms. Kuttikrishnan, learned counsel appearing for the appellant and Ms. Kantharia, learned APP. With the assistance of learned counsel, we have gone through the record of the case. Ms. Kuttikrishnan submitted that the evidence of none of the prosecution witnesses inspires confidence. There are several inconsistencies in their evidence and, therefore, the order of conviction and sentence be set aside. She further submitted that in case this court comes to a conclusion that the appellant is guilty, he may be convicted for culpable homicide not amounting to murder. He may be convicted under Section 304 Part-I of the IPC and not under Section 302 of the IPC as the incident took place in the heat of passion. There was no premeditation. Ms. Kantharia on the other hand submitted that the prosecution has led cogent and credible evidence. Evidence of all the witnesses is consistent. The father of the appellant has deposed against him. No father would depose against his son unless he is really guilty. She submitted that, therefore, conviction and sentence of the appellant under Section 302 of the IPC be maintained. She submitted that the appellant has brutally murdered his mother. The deceased suffered several fracture injuries. It cannot be said that the appellant had no intention to kill her. Therefore, no case is made out for convicting the appellant for a lesser offence. She submitted that the appeal, therefore, be dismissed. 5 mss APEAL.958 5. PW 5 Dr. Pandhare had done postmortem on the deceased. He has produced postmortem notes which are at Exh.-30. He has stated that during postmortem he found fracture of right humerus, fracture of tibia and fibula of right leg, fracture of the 5th to the 10th rib of right side, C.L.W on right ear 2” x 1/2” x 1/2” below the right ear, right pina torn and lacerated 2 c.m. x ½ c.m., C.L.W. on the chin right side 1 ½ c.m. X ½ C.M. X ½ C.M., lacerated injury to the right lung 3 c.m. X 2 c.m. X 2 C.M. According to Dr. Pandhare the cause of death was “Coma due to brain injury and haematoma and severe haemorrhage due to severe injuries to lungs, humerous, thigh and ribs”. It is, therefore, clear that Shakuntala’s death was homicidal. 6. PW 1 Santosh Sutar is the cousin of the appellant. His house adjoins the house of the appellant. He has stated that as the appellant is jobless, his wife is residing at her parents house. According to him the appellant used to quarrel and beat his father and mother on account of food. About 15 days prior to the incident, due to the behaviour of the appellant his father had gone to the house of his father-in-law at village Wangi. On 23/7/2004 at about 12-30 to 1 p.m. this witness was present in his house. According to him he heard sound of quarrel. The appellant and his mother were quarrelling. He went to the house of the appellant and asked him not to quarrel with his mother. At that time he saw the appellant beating his 6 mss APEAL.958 mother with a stick. When he tried to intervene the appellant rushed towards him with the stick and hence he ran away. The appellant remained inside the house. Then this witness went to PW 2 Sambhaji Salunkhe. He told Salunkhe that the appellant was beating his mother with a stick. Both of them went to the house of the appellant. He saw the appellant coming out of his house. Then they went inside the house of the appellant. He saw the mother of the appellant lying on the ground. Blood was oozing from her head injury. She was dead. Then they came out of the house. They found the appellant near Grampanchayat office. They took the appellant to Shivaji Hall and locked him from outside. People gathered there. At about 3.30 p.m. the appellant’s father came there. This witness reported the incident to him and told him that the appellant had killed his mother. The appellant’s father went to the house and found his wife dead. Thereafter Sambhaji Salunkhe and the appellant’s father went to the police station at Rahimatpur. The police came to the house of the appellant and drew panchnama. According to this witness there was a wooden stick in the hand of the appellant having seven joints. When Art. 3 the wooden stick was shown to him, he stated that it is the same stick which was in the hands of the appellant. He was cross-examined at length. He has reiterated in the cross- examination that quarrels used to take place between the appellant and his parents. He has clarified that he had no quarrel with the appellant. He has 7 mss APEAL.958 further stated that after the incident when he went to the house of the appellant and enquired with him as to why he was quarrelling with his mother, the appellant told him that it was a matter between him and his mother and asked him not to intervene. He has added that the appellant was demanding meal but his mother was saying that he was not doing any job and was taking meal without paying for it. His cross-examination has not had any adverse impact on his evidence. 7. PW 2 Sambhaji Salunkhe is a resident of village Nhavi Budruk. According to him on 23/7/04 he had gone to visit his field. At about 1 p.m. while he was returning from his field, he met PW 1 Santosh Sutar near the office of Grampanchayat. Santosh reported to him that the appellant was beating his mother with a stick hence he went to the house of the appellant. He saw the appellant coming out from his house and going towards Grampanchayat office. Then he and PW 1 Santosh Sutar went inside the house of the appellant. They saw the appellant’s mother lying on the ground with a head injury, which was bleeding. They found that she was dead. They went in the same direction in which the appellant had gone. They found the appellant near Shivaji Hall. When they inquired with the appellant about the incident, the appellant told them that as his mother had not given him meal, though he was hungry and asked him to go out, he had 8 mss APEAL.958 beaten her with a stick. According to this witness thereafter they gave the appellant biscuits to eat and locked him up in the Shivaji Hall. At about 3 p.m., the appellant’s father came and saw the dead body of his wife. Then this witness went to Rahimatpur Police Station along with the father of the appellant. Father of the appellant lodged his complaint with the police station. The police came to the spot of incident and drew spot panchnama. On the same day the appellant was arrested. This witness identified the appellant who was present in the court. Cross-examiner has not been able to elicit anything in the cross-examination of this witness which can discredit his testimony. 8. PW 3 Rajaram Sutar is the father of the appellant. He has stated that he was residing along with his wife and the appellant. Marriage of the appellant had taken place two years back, however, the appellant’s wife had gone back to her parents house due to harassment meted out to her by the appellant. He has stated that the appellant used to beat him and his wife. On 23/7/04 he had gone to village Wangi Budruk. One Krishna Kulkarni reported to him that the appellant had committed murder of his wife. Thereafter Santosh Sutar told him that the appellant had killed his wife in his house. He then went to his house and saw dead body of his wife lying on the ground with a bleeding head injury. He found that she was dead. 9 mss APEAL.958 Then he went to Rahimatpur Police Station along with Sambhaji Salunkhe and lodged his complaint which is at Exh.-16. His cross-examination does not help the defence. 9. PW 4 API Vishwanath Gharat was at the relevant time attached to Rahimatpur Police Station. According to him on 23/7/04 PW 3 Rajaram Sutar lodged a complaint which is at Exh.-16. On the basis of this complaint he registered offence and started investigation. He has given the details of the investigation conducted by him. He drew spot panchnama which is at Exh.-18. He seized stick Art. 3 from the spot of offence. He has stated that on 23/7/04 he arrested the accused and drew arrest panchnama Exh.-19. He attached bloodstained clothes of the accused. The said panchnama is at Exh.-24. He identified his signature on the said panchnama. When clothes of the appellant were shown to him, he identified them as the same clothes which were attached under panchnama Exh.-24. He stated that clothes of the deceased were seized under panchnama Exh.-25 on 23/7/04 by PHC Kamble. According to him on 27/7/04 he sent all attached articles to the Chemical Analyzer’s office. He has produced Chemical Analyzer’s reports which are at Exhibits 27,28 and 29. He has remained firm in the cross-examination. We find that evidence of all the witnesses is consistent. Cross-examiner has made no dent in their evidence 10 mss APEAL.958 by cross-examining them. PW 1 Santosh Sutar and father of the appellant PW 3 Rajaram Sutar have stated that the appellant was jobless and the wife of the appellant had left him because of the ill-treatment meted out to her by him. They have also stated that the appellant used to beat his father i.e. PW 3 and his mother i.e. the deceased. PW 1 Santosh has stated that he heard a sound of quarrel coming from the house of the appellant. He rushed there. He found the appellant quarrelling with the deceased. He saw the appellant beating the deceased with a stick. He tried to intervene but the appellant rushed towards him and hence he ran away and met PW 2 Sambhaji Salunkhe and informed him about the incident. Thereafter both of them i.e. PW 1 Santosh and PW 2 Sambhaji came to the house of the appellant. According to PW 2 Sambhaji he saw the appellant coming out of his house and going towards Grampanchayat office. These witnesses have stated that they found the appellant’s mother lying dead on the ground with a head injury. Evidence of these witnesses conclusively establishes that the appellant had beaten his mother with a stick and she succumbed to the injuries sustained by her. The prosecution has also established that the appellant was jobless and on account of harassment meted out by him to his wife, she had left him and had gone to her parents house. It appears that because the appellant was not doing any job his mother was not giving him food and, therefore, he beat her to death. The fact that the mother of the 11 mss APEAL.958 appellant was not giving him food is substantiated by the evidence of PW 2 Sambhaji Salunkhe, who has stated that after he asked the appellant as to why he had beaten his mother, he stated that as his mother had not given him meal and he was hungry, he had beaten her. This witness has further added that thereafter they gave the appellant biscuits to eat and locked him up in Shivaji Hall. PW 3 Rajaram Sutar being the father of the appellant would not falsely depose against him or involve him in a serious crime like murder. The fact that he has deposed against the appellant is a pointer to the involvement of the appellant in the offence of murder. 10. PW 5 Dr. Pandhare has stated that injuries caused by the appellant were possible by stick Art. 3. Besides Chemical Analyzer’s report also establishes the involvement of the papellant. The stick used by the appellant was found stained with human blood of ‘B’ group. The clothes of the deceased were stained with human blood of ‘B group. Thus it can be safely concluded that blood group of the deceased was ‘B’. The clothes of the appellant were found stained with human blood of ‘B’ group. This is a clinching circumstance against the appellant. It is not the case of the appellant that the appellant had suffered any injuries so there is no question of the appellant’s blood spilling over the clothes. In our opinion, therefore, the prosecution has adduced cogent evidence bringing home guilt to the 12 mss APEAL.958 appellant. 11. Learned counsel for the appellant has, however, urged that if this court comes to a conclusion that the appellant is guilty then this court may convict him for a lesser offence. She submitted that the appellant was a jobless person and, therefore, he was not contributing any money towards the expenses of the house. The evidence on record shows that the parents were not giving him food. It appears that on the day of incident his mother had not given him meal and, therefore, out of sudden fit of anger the appellant took a stick and dealt stick blows on his mother. This is evident from the fact that after the incident he had to be given biscuits to eat. Counsel submitted that, therefore, the appellant at best could be stated to be guilty of culpable homicidal not amounting to murder. His case is covered by Exception 4 of Section 300 of the IPC. In this connection she relied on the judgment of the Supreme Court in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395. 12. Learned APP on the other hand submitted that the appellant killed his mother in the most cruel manner. He dealt stick blows on the vital parts of the body of his mother. His mother suffered several fractures. There was a fracture of right humerus, fracture of tibia and fibula of right leg, fractures 13 mss APEAL.958 of the 5th to the10th rib of right side. There was also fracture of parietal bone. Thus the stick blows were dealt in such a manner that they would result in instantenuous death. Intention to murder will have to be attributed to the appellant. She submitted that no mercy be shown to the appellant. His appeal be dismissed. 13. Having held the appellant guilty, we will now examine the submission of Ms. Kuttikrishnan, learned counsel for the appellant that the appellant is at best guilty of culpable homicide not amounting to murder and hence could be convicted under Section 304 Part I of the IPC. In this connection reliance is placed on Sridhar Bhuyan (supra). In that case, the brother of the appellant Umakanta teased Jayanti, the niece of PW-1 therein. The deceased, who was the son of PW-1 complained about it to PW-1 who asked him to wait as Jayanti's father was away. After Jayanti's father came, the deceased along with him went to the house of the appellant to ascertain the reason for teasing Jayanti. As Umakanta was absent nothing could be done. On the next day, the deceased went to the house of the appellant and insisted that they should settle the matter. But, they refused. A quarrel ensued between the two. At this moment, the appellant went inside his house, came out with a knife and dealt a blow with it on the back of the deceased. The appellant also pierced the knife into his chest. On the basis of evidence of 14 mss APEAL.958 three eye-witnesses, the appellant was convicted under Section 302 of the IPC and sentenced to life imprisonment. The High Court confirmed the said sentence. The Supreme Court was of the view that the case was not covered by Section 302 of the IPC but it was covered by Exception 4 to Section 300 of the IPC. The conviction was altered to Section 304 Part I of the IPC. The Supreme Court observed that custodial sentence of 10 years would meet the ends of justice. 14. Exception 4 to Section 300 states that culpable homicide is not murder if it is committed in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. While coming to the above conclusion, the Supreme Court held that Exception 4 covers cases where heat of passion clouds men's sober reason and urges them to deeds which they would not otherwise do. The Supreme Court further observed that there is no previous deliberation or determination to fight. A fight suddenly takes place for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The Supreme Court further observed 15 mss APEAL.958 that it takes two to make a fight and heat of passion requires that there must be no time for the passions to cool down. Referring to the facts before it, the Supreme Court observed that the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. The Supreme Court clarified that it is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, observed the Supreme Court, 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 undue advantage or acted in a cruel or unusual manner. 15. It is necessary to apply these principles to the present case. There can be no doubt about the fact that the appellant dealt blows on the vital parts of his mother's body and killed her. However, admittedly, the appellant was jobless. His wife appears to have left him because he was not earning anything and he was ill-treating her. Undoubtedly, the appellant was not good to his parents. The evidence on record leads us to conclude that he was a liability to his family and, his family particularly his mother was reacting sharply to his not doing any work, his not earning any money and 16 mss APEAL.958 contributing to the family income. 16. As we have already noted, the incident in question was preceded by a quarrel between the appellant and his mother. PW-1 Santosh Sutar has stated that he heard the sound of quarrel and went to the appellant's house. According to him, the quarrel was going on for about 15 minutes. According to PW-1 Santosh Sutar, he asked the appellant as to why he was beating his mother. The appellant told him that his mother refused to give him meal because he was not paying for it. PW-2 Sambhaji has stated that when he enquired with him, why he beat his mother, the appellant told him that he beat her because though he was hungry, his mother refused to give him food and asked him to go out. It is important to note that the appellant was so hungry that after he was apprehended he had to be given biscuits to eat. Thereafter, he was locked up in the room. Thus, the offence appears to have taken place because food was denied to the appellant. Though there can be no justification for brutally attacking his mother, it is clear that the attack was launched after 15 minutes of quarrel. The appellant used a stick. There is no evidence to show that there was any premeditation. It appears that extreme hunger drove the appellant to the crime. Though the attack was cruel, the facts do not indicate that the appellant took any undue advantage. He was hungry. He wanted food. He was not given food because he was not 17 mss APEAL.958 earning. He was asked to go out of his house. Hunger and humiliation provoked the attack. 17. Having considered the above peculiar facts in the light of the aforementioned Supreme Court judgment in Sridhar Bhuyan, we are of the opinion that this is a case of culpable homicide