1 S IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 193/2008 WITH CRIMINAL APPLICATION NO. 286/2010 Anil Keru Agavane, Age-33 years, R.o. 6/1, Century Mill Quarters, P.B.Marg, Worli, Worli,Mumbai-30 Appellant/Accused At present Central Prison,Nasik Vs. The State of Maharashtra Respondent Mr.M.K.Kocharekar,Advocate for the appellant Mr.J.P.Yagnik,APP for State CORAM : B.H. MARLAPALLE & MRS.MRIDULA BHATKAR,JJ. Reserved On : 4th May, 2010. Pronounced On :8th June,2010. J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) . At the stage of hearing of Criminal Application, the appeal is heard finally by consent . 2] This appeal is preferred against the order of conviction of the accused for the offence punishable under section 302 of the Indian Penal Code passed by II Ad Hoc Additional Sessions Judge,Sewree on 15/1/2006. 2 The incident of murder had taken place on 30/6/2006 at Worli ,Mumbai. Accused Anil Keru Agawane had committed murder of his mother Bhagirathi. At relevant time the accused was residing with his parents, wife and two children at Worli,Mumbai. The accused used to pursue his father to get a house on rent by paying deposit for himself and his family. However, his father could not arrange for the funds . So there was constant dispute between his parents and his family. On 30/6/2006 at around 2 p.m. his mother Bhagirathi and his wife Kavita quarreled therefore, his father went out of the house. Kavita telephonically communicated about the quarrel to her husband /accused and she alongwith her son left the house. Thereafter the accused at around 3.45 p.m. arrived at the house with a wooden log and he assaulted his mother on her head . She was frightened and started running towards the house of the neighbour . However, she tripped on the threshold and fell down. At that time her another daughter in law Poonam was present . The accused again assaulted his mother by wooden log on her head. However, Poonam and her 3 neighbour Suryavanshi intervened and controlled the accused. The accused pushed them and left the house . He threatened that he would kill her also. Bhagirathi was immidiately shifted to the hospital . However, she succumbed to the injuries. Her neighbour Suryavanshi lodged F.I.R.at Worli police station. Offence punishable under section 302 of the Indian Penal Code was registered against the accused at C.R.No.223/2006 . The accused was arrested on the same day by Worli police. After completion of investigation they filed chargesheet against him. 3] The case was committed to Sessions Court at Sewree . The accused was tried and the trial concluded in the conviction of the accused. The accused was sentenced to suffer imprisonment for life for the offence of murder. 4] During the pendency of this appeal the appellant/accused has filed bail application. The learned counsel appearing for the appellant submitted that since the date of the incident i.e. 30/6/2006, the accused is in 4 jail. Thus, he has completed four years. He submitted that the appellant/accused is neither challenging his presence on the spot nor the incident of assault at his hands. So the appeal is confined to a limited point . He argued that the learned Judge has erred in holding the accused guilty for the offence punishable under section 302 of the Indian Penal Code..He argued that this case comes under section 304 Part I of the Indian Penal Code. He submitted that the statement of eye witness P.W. 3 ,Poonam, was recorded three days after the incident and delay in recording the statement is not explained by the prosecution though she was available at Worli, Mumbai. He further submitted that though she has stated that the accused gave blows of wooden log on the head of his mother ,P.W.7 Dr.Kadam in the postmortem notes has shown only one external injury on the head i.e.split laceration situated 6.00 centimeter above the left eyebrow and 8.00 centimeter from the left tragus bone deep with fracture of underlying bone .He further argued that the accused in a heat of anger assaulted his mother and therefore it dilutes the gravity of his 5 intention and the act. 5] The learned A.P.P. while opposing these submission pointed out that the prosecution has in all examined 11 witnesses including eye witnesses Poonam, P.W.3 ,sister in law of the accused, and Nirmala Suryavanshi ,P.W.6, neighbour of the accused who arrived immediately on the spot when accused was assaulting his mother. The act of the accused was pre- mediated as he arrived with a wooden log and then assaulted his 65 years old mother . He further argued that as per the evidence of P.W. 3,Poonam , more blows were given by the accused on the person of the deceased. Therefore, this is not a case coming under section 304 Part-I of the Indian Penal Code but squarely falls under section 302 of the Indian Penal Code. 6] With the help of 11 witnesses the prosecution has brought consistent, concrete and reliable evidence against the accused. P.W.2, father of the accused, has deposed about the quarrel between Kavita and his wife 6 Bhagirathi at about 2 p.m. so he left the house and went to Saloon . He has deposed that his daughter in law Poonam at relevant time was in the house .P.W. 3,Poonam, is the star witness who has deposed about the quarrel between her mother in law Bhagirathi and Kavita at 3.15 p.m.to 3.45 p.m. . She deposed that after quarrel Kavita left the house and after half an hour the accused arrived with wooden log and he assaulted on the head of Bhagirathi with the wooden log. Then her mother in law started running towards the house of her neighbour Nirmala Suryavanshi and she tripped over the threshold and fell down . The accused again gave 2-3 blows of wooden log so Poonam intervened, however, he tried to assault her and told her whoever scolds his wife he would assault him or her.In between neighbour Nirmala intervened , so he went away. P.W.1 Nirmala lodged the complaint, but , she did not support the case of the prosecution and she was declared hostile. 7] The only eye witness to the prosecution case was P.W.3-Poonam Agawane, the daughter-in-law of the 7 deceased and sister-in-law (brother’s wife) of the accused. She stated in her examination-in-chief that a quarrel broke between the deceased and the wife of the accused and after hearing the quarrel P.W.2-Keru Agawane, the father-in-law , went out of the house. Inspite of her request to the deceased,she did not stop quarreling with Kavita (wife of the deceased) and Kavita also went away. After half an hour the accused came there having wooden log in his hand and at that time she was in the kitchen, whereas the deceased was in the gallery. The accused assaulted on the head of the deceased by a wooden log and the mother-in-law went towards the adjoining room of Nirmala-P.W.1. At the door of P.W.1 , the deceased fell on the ground and thereafter the accused gave 2-3 blows by the wooden log to the deceased. In her cross-examination , P.W.3 admitted that her statement was recorded by the police after 15-20 days and during that period, the police used to visit the spot daily and that the police neither asked her nor she 8 disclosed anything to them. She also admitted that after the first blow by wooden log, the mother-in-law fell down and she was 65 years of age. The mother-in-law was the sister of her father. After the first blow on the head, the deceased started bleeding and the first blow was given in the gallery. In her cross-examination, P.W.1 -Nirmala admitted that there was no gallery to the building. It is not the case of P.W.3 that the subsequent blows were given by the accused to the deceased on her head. The credibility of the testimony of P.W.3, therefore ,on the point of giving multiple blows becomes doubtful and the issue whether the accused inflicted multiple blows on the head of the deceased. On external examination he found split laceration situated 6.00 centimeter above the left eyebrow and 8.00 centimeter from the left tragus, obliquely placed spindle shape with irregular margins measuring 6 x 1 centimeter bone deep with fracture of underlying bone felt. On internal examination he found - 9 i] Subgaleal hematoma in the left temporal and parietal region. Ii] Comminated fracture of left temporal bone extending to become coronal and sagittal sutured fracture. Liner fracture of the left middle cranial fossa. Iii] Duratorn at left high parietal region. Left subarachnoid hammorhage.Left fronto-parietal contusion with contusion at the base of brain. Right parieto -occipital-temporal subarachnoid hamorrhage. Bicererebellar haematoma cut section-pain . The cause of death was haemorrhage and shock following traumatic cranio cerebral injury due to hard and blunt object (unnatural) . He has given admission in the cross examination that he has noted only one external injury. 8] Between the medical and ocular evidence considering the facts of this case, the medical evidence has to be given more weightage as it is the physical circumstance which speaks for itself. One external injury can cause more injuries internally. However, one external 10 injury is possible by one blow. In the event of more blows there would have been more external injuries like contusion or fracture either on the head or on the other parts of the body. Thus, the evidence of Poonam on the point of accused giving one blow on the head of Bhagirathi is true and acceptable. It is pertaining to the injury which is corroborated by Dr.Kadam , P.W.7 and postmortem notes Exh.22. However, it is unsafe to accept her further evidence that the accused went on giving the blows .In the given circumstances it appears exaggerated version which is possible in the case of witness. However, her evidence cannot be discarded entirely only because she has exaggerated the facts to a certain extent. We have considered the reason of the aggressive behaviour of the accused. There was quarrel between Bhagirathi and Kavita and thereafter Kavita, wife of the accused, telephoned her husband /accused and left the house. This obviously provoked the accused and he lost his temper . In anger he entered the house with a wooden log and assaulted his mother. We find substance in the submissions of the learned defence 11 counsel that the reason behind the assault reduces the gravity of the act. 9] Thus, considering all the facts and circumstances we hold the accused guilty for culpable homicide not amounting to murder under section 304 part-I of the Indian Penal Code . Hence the order. O R D E R The appeal is partly allowed. Order of conviction of the accused for the offence punishable under section 302 of the Indian Penal Code dated 15/1/2006 is hereby set aside. The accused is held guilty for the offence punishable under section 304 Part-I of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for five years . In view of the above order application for 12 bail is rejected. (MRS.MRIDULA BHATKAR, J.) (B.H. MARLAPALLE, J.)