1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 465 OF 2007 Babasaheb s/o Rambhau Thombre, Age 30 years, Occu.Agriculture, R/o Ghungarde Hatgaon, Taluka Ambad, District Jalna .. Appellant (Orig.Accused No.1) Versus State of Maharashtra .. Respondent Shri Joydeep Chatterji, Advocate for appellant Shri S.V.Kurundkar, Additional Public Prosecutor for respondent- State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 12th November 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant who stands convicted for an offence under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.3,000/- with a default stipulation of undergoing further imprisonment for three months in the event of non-payment of fine, by the Ad-hoc Additional Sessions Judge, Jalna by judgment dated 9.8.2007, in Sessions Case No.14 of 2007, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.10 A.P.I. Kalyan Supekar was attached to the Gondi Police Station and on 12.6.2006 deceased Mangal had filed a complaint against the present appellant alleging assault at the hands of the appellant. It appears, on the basis of that complaint certain preventive action was taken against the appellant. On 25.7.2006, Sumanbai, mother of the appellant filed an application to the police station and P.W.10 A.P.I. Supekar had accordingly deputed a Head Constable to verify the contents of the application. Accordingly, P.W.10 A.P.I. Supekar had gone to the scene of the offence and seen the dead body of deceased Mangalbai in front of her house having sustained injuries. Meanwhile P.W.8 Hausabai had also reached the house of Mangalbai and accordingly, a complaint came to be lodged by P.W.8 Hausabai at Exh.48. P.W.10 A.P.I. Supekar accordingly drew the inquest panchnama of the dead body at Exh.22 in the presence of panch witnesses and referred the dead body of deceased Mangalbai for post mortem. He thereafter drew the panchnama of the scene of the offence at Exh.20 in the presence of panch witnesses. He recorded the statements of witnesses. Post mortem of the dead body of deceased Mangalbai came to be performed by P.W.11 Dr. Nomani Taher. He noticed the following external injuries on the dead body of deceased Mangalbai. 3 1. CLW on back of scalp adm.1 x 1 cm Partially healed 2. CLW on back of scalp adm. 1 x ½ cm Oval by shape 3. Contusion on right side shoulder adm. 3 x 6 cm Oblique in shape 4. Contusion over left shoulder 2 x 6 cm oblique 5. Contusion on back 2 x 4 cm Oblique 6. Contusion on back 2 x 5 cm Oblique 7. Contusion on back of right thigh, 2 x 5 cm 8. Contusion on back of left thigh, 2 x 5 cm 9. Contusion on back of lutal region, adm. 2 x 8 cm He opined that all the injuries had been sustained within 24 hours except injury No.1. He further opined that the injuries referred to above were ante mortem in nature and were possible if the victim was assaulted by a stick. On internal examination, he noticed that Mangalbai was pregnant by eight months. He accordingly opined that Mangalbai might have died due to cardio-respiratory arrest due to neurogehic shock. He further opined that Mangalbai was pregnant, malnourished, anemic weak, following beating, mental torture and threats. During custodial interrogation, the appellant accused is alleged to have expressed his willingness to point out the place where the stick was hidden by him. Accordingly, the memorandum came to be drawn at Exh.36-A. The accused then led the Police and the panchas to the place where stick was hidden and from the tin shade produced a stick which came to be seized in the presence of panchas vide seizure memo at Exh.36-B. The seized property 4 was referred to the Chemical Analyzer and the report of the Chemical Analyzer is at Exh.54. Further to the completion of the investigation a charge-sheet against the present appellant and another accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.2 framed a charge against the appellant and other accused for offence punishable under Section 302 read with 34 of the Indian Penal Code and under Section 498-A read with 34 of the Indian Penal Code. Prosecution in support of its case examined eleven witnesses. The trial Court upon consideration of the evidence of the prosecution witnesses convicted the appellant for offence punishable under Section 302 of the Indian Penal Code while acquitting other accused of the offence punishable under Section 302 of the Indian Penal Code and under Section 498-A of the Indian Penal Code including the appellant. We are informed that the appellant is in jail since the date of his arrest i.e. 25.7.2006. 4. In order to appreciate the submissions advanced before us by Shri Joydeep Chatterji, learned Counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. The witness relevant for the purpose of decision of this appeal is P.W.8 Hausabai, mother of deceased 5 Mangalbai. P.W.8 Hausabai states that deceased Mangalbai was a daughter and had been married to the appellant about 9 to 10 years prior to the incident. She states that she was informed on telephone that the appellant had committed murder of deceased Mangalbai and accordingly she had gone to the hospital at Shahagad. She states that there was a dispute between the husband and Mangalbai as the appellant was asking deceased Mangalbai to involve his father. Hausabai further states that the appellant used to assault Mangalbai while father-in-law used to abuse her. Mother-in-law of Mangalbai also used to “tease” Mangalbai. Since the evidence of this witness was wholly insufficient to establish the offence punishable under Section 498- A of the Indian Penal Code beyond reasonable doubt, the trial Court extended benefit of doubt and acquitted the accused of the offence punishable under Section 498-A and according to us rightly so. 5. In order to establish that the appellant has committed the offence punishable under Section 302 of the Indian Penal Code, the prosecution mainly relies upon the testimony of the Medical Officer who had conducted post mortem i.e. P.W.11 Dr.Taher. As pointed out by us above, P.W. 11 Dr.Taher had noticed nine injuries out of which eight were injuries which Mangalbai had sustained within 24 hours. In cross-examination, 6 P.W.11 Dr.Taher states that all the injuries were simple in nature and in the ordinary course of nature these injuries would not sufficient to cause death. He has further admitted in the cross- examination as “ It is true that the lady has not sustained death due to the injuries mentioned in Column No.17.” It would thus be appeared that deceased Mangalbai had not died as a result of injuries. The injuries inflicted by the accused were simple in nature and were not sufficient in ordinary course of nature to cause death. The nature of the weapon which was used was a stick. 6. Shri Chatterji, learned Counsel for the appellant has urged before us that on the basis of the evidence on record it is amply clear that the appellant cannot be said to have nurtured any intention of killing his deceased wife and, therefore, it would be an offence not amounting to culpable homicide and punishable under Section 304 of the Indian Penal Code and not be an offence punishable under Section 302 of the Indian Penal Code. The learned Assistant Public Prosecutor for the State has supported the judgment and has urged for dismissal of the appeal. 7. Looking to the nature of the injuries and the nature of the weapon which was used, it is apparent to us that the appellant when he inflicted the aforesaid injuries which are 7 contusions did not have the requisite intention to commit murder of his wife. The injuries which have been inflicted by the appellant to deceased Mangalbai were not sufficient in ordinary course of nature to cause death and they were simple injuries. Deceased Mangalbai had also not died on account of the injuries. In the light of that, therefore, offence punishable under Section 302 of the Indian Penal Code is certainly not made out. The offence under which the appellant would be liable to be convicted would be one punishable under Section 304 of the Indian Penal Code. Section 304 of the Indian Penal Code contemplates that where the accused has inflicted injuries with an intention of causing death or causing such bodily injury as was likely to cause death, the offence will fall in the first part. As we have already pointed out above, looking to the nature of the injuries and the nature of the weapon used, such intention cannot be attributed to the accused nor can it be said that the accused has caused such bodily injuries as was likely to cause death. The offence would be one punishable under the second part of Section 304 which states about an accused causing injuries with the knowledge that it was likely to cause death but without intention to cause death or to cause such bodily injuries as is likely to cause death. We have already pointed out that Mangalbai was a frail lady who was malnourished and anemic and on top of that she was pregnant by eight months. In such circumstances, the accused can certainly 8 be attributed with the knowledge that if he inflicted injuries, it was likely to cause death. In that light of the matter, therefore, the offence would be one punishable under the second part of Section 304 of Indian Penal Code. Section 304 Part II of the Indian Penal Code prescribes the maximum punishment which may extend to ten years, or with fine, or with both. 8. It is stated at the Bar before us that the appellant has been in jail since 25.7.2006, i.e. he has already undergone a term of three years and three months and couple of days. A fervent plea is made by the learned Counsel for the appellant for releasing the appellant on the period of imprisonment already undergone. We do not accede to the aforesaid request. According to us, a sentence of five years imprisonment with fine of Rs.2,000/- would meet the ends of justice. It is needless to state that the appellant would be entitled for set off for the period of imprisonment already undergone by the appellant. 9. Accordingly, this Criminal Appeal is partly allowed and conviction and sentence of the appellant for an offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside and instead the appellant is convicted for an offence punishable under Section 304 Part II of the Indian Penal Code and is sentenced to rigorous imprisonment for five 9 years and to pay fine of Rs.2,000/-, in default of payment of fine to undergo further rigorous imprisonment for six months. The appellant shall be entitled to the benefit of set off as is available under Section 428 of the Code of Criminal Procedure. ( A.V. NIRGUDE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal465.07) 10