{1} Cri. Appeal No.250/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.250 OF 2010 Prayagbai Eknath Gaikwad APPELLANT Age-62 years, R/o Banwas, Tq-Palam, Dist-Parbhani Presently in cusotdy in the Yerwada Central Prison, Yerwada, Pune VERSUS The State of Maharashtra RESPONDENT At the instance of Palam police station ....... Mr.S.S.Jadhav h/f Ms.Rebecca Gonsalvez, Advocate for appellant Mr.S.D.Kaldate, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 14 th July 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.1000/- in default of which to undergo further imprisonment for 3 months, by the Ad Hoc Additional Sessions Judge-1, Gangakhed, by judgment dated {2} Cri. Appeal No.250/2010 15.06.2007, in Sessions Trial No.1/2007, by this appeal questions the correctness of her conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal may briefly be stated thus- PW-11 PSI Rajaram Peddewad, who was attached to police station Palam, recorded complaint of PW-2 Bhausaheb Kadam at Exhibit-25. In the aforesaid complaint, PW-2 Bhausaheb had alleged that the appellant-accused had assaulted deceased Asha on the previous day and on account of the injuries sustained by the deceased, the deceased had died. On the basis of the aforesaid report, an offence, vide Crime No.58/2006, u/s 302 of the Indian Penal Code, came to be registered. The investigation of the said crime was entrusted to PW-11, PSI Paddewad. PW-11 PSI Paddewad accordingly proceeded to the scene of offence and arranged for a photographer i.e. PW-9 Rameshwar, to take photographs of the scene of offence. In the presence of PW-7 Balaji, Inquest Panchanama came to be drawn at Exhibit-32. Dead body of deceased Asha was referred for Postmortem examination and the Postmortem, on the dead body of deceased Asha, came to be performed by PW-1 Dr.Dinkar Patil. PW-1 Dr.Dinkar Patil, noticed the following external injuries - 1. Contusion 20 cms x 3 cms on left side chest- vertical shape with abrasion 8 x 5 cm. {3} Cri. Appeal No.250/2010 2. Contusion on left thigh back side hole. 3. Contusion on left forearm 10 x 10 cms with abrasion 1 x 1 cm. 4. Contusion on left whole palm. 5. Contusion over lower eyebrow 5 x ½ cm. 6. Contusion over left eye brow 1 cm x 3 cm 7. Contusion over right lower leg 3 x 3 cm 8. Contusion over back side 3 x 8 cm. 9. Fracture to radio Alana upper side (left) 10.Fracture carpal bones 11.Fracture to lower ribs PW-1 Dr.Patil opined that the cause of death was splenic rupture and various fracture pains. The postmortem report is at Exhibit-20. 3. In the presence of two Panchas, the scene of offence Panchanama at Exhibit-29, came to be drawn. From the scene of offence, a wooden log, sample of mud mixed with turmeric, sample of plain mud and one frock came to be seized. Statements of witnesses came to be recorded and on 22.06.2006, the appellant- accused came to be arrested. Further investigation was handed over to Police Inspector Badag. The clothes of the accused came to be seized in the presence of PW-6 Vilas, while the clothes of the deceased also came to be seized. The seizure memorandum of clothes of the accused is at Exhibit-30. All the seized articles were {4} Cri. Appeal No.250/2010 referred for chemical examination along with requisition at Exhibit-46. The CA reports are at Exhibit-47, Exhibit-48 and Exhibit-49. Further to the completion of the investigation, charge sheet, against the appellant, came to be filed. 4. On committal of the case to the Court of Sessions, trial Court, vide Exhibit-9, framed charge against the appellant-accused for an offence punishable u/s 302 of the Indian Penal Code. The appellant denied her guilt and claimed to be tried. Prosecution examined 11 witnesses in support of its case. Trial court accepted evidence of the eye witnesses and the medical evidence and convicted and sentenced the appellant as aforestated. 5. We have heard Shri Satej Jadhav, learned counsel for the appellant and Shri.Kaldate, learned APP for respondent State. In order to effectively deal with the submissions of learned counsel for the appellant and learned APP for the respondent, it would be appropriate to refer to the evidence of prosecution witnesses. 6. PW-2, Bhausaheb, the first informant, states that on 22.06.2006 around 6 am, the appellant-accused came to his house and informed him that Asha, daughter of PW-10 Kamalbai, had died. He has further stated that Asha was brought by the appellant about 8 days prior to the incident. Asha was the daughter of PW-10 Kamalbai, who is also the disciple of the same Guru of which the appellant is the disciple. PW-2 Bhausaheb did not support the {5} Cri. Appeal No.250/2010 prosecution thereafter and was declared hostile and was cross examined by the prosecution. He has admitted to have lodged complaint at Exhibit-25 and in the cross examination he has admitted that the appellant-accused had informed him that on her return, she had found one hen missing and had also noticed that one egg of the hen was broken and, therefore, she had assaulted Asha with the firewood. He has admitted that the appellant had told him that on the next day, the appellant woke up and noticed that Asha had died. In cross examination on behalf of the appellant-accused, he has admitted that the accused was residing in that village since last 7 to 8 years and was a labourer. He has also admitted that the accused was not of quarrelsome nature and he had not received any complaint earlier about the appellant- accused beating deceased Asha. He has admitted that he is not an eye witness to the incident. 7. PW-3 Amrata, who is an eye witness to the incident, states that the appellant-accused had brought Asha, who was aged 6 years, from Mumbai. About 8 days prior to the incident the appellant-accused had gone to Phulkalas in order to harvest the groundnut crop and during that period Asha was residing at the village in the house of the appellant-accused. PW-3 Amrata further states that Asha used to look after the hens and the neighbours were providing food to Asha. He further states that on the day of the incident, at about 7 to 7.30 pm, he was going to field and had noticed that villagers had gathered. He had heard some cries of a {6} Cri. Appeal No.250/2010 child and, therefore, went towards the house of the appellant- accused and noticed that the appellant-accused was beating Asha with a firewood. He requested the appellant-accused not to beat Asha and also told the appellant that Asha would otherwise die. The appellant told him to go away from her house else she would lodge a complaint against him that he had abused the appellant- accused on the basis of her caste. PW-3 Amrata states that he tried to convince the appellant, but the appellant was not paying any heed to his requests. He states that on the next day he noticed crowd near the house of the appellant and on going there noticed that Asha was dead. In cross examination on behalf of the appellant, he states that while he was going towards his field, Suresh and Shripati were accompanying him. He has admitted that he was watching the incident from a distance of 20 feet. He has admitted not to have made any attempts at rescuing Asha from the clutches of the appellant-accused. Omission has been duly proved that he has not stated in his previous statement that on the next day he had noticed that Asha was dead. He denied the suggestion that the appellant-accused had worked in his agricultural field about fortnight prior to the incident and he had not paid her wages and thereafter the appellant-accused had demanded her wages, which was refused to be paid by PW-3 Amrata. 8. PW-4 Santaram did not support the prosecution and was declared hostile. Evidence of PW-5 Shivaji is similar to that of {7} Cri. Appeal No.250/2010 PW-2 Amrata. In cross examination, he has admitted that his statement was recorded on the day of the incident. In cross examination presence of PW-3 Amrata is also established. He has admitted to have seen the incident from the distance of about 20 feet and has also admitted that he did not attempt to intervene and save the deceased. He has denied the suggestion that relations between him and the appellant were strained as he is related to the accused who had committed murder of father of the appellant. 9. PW-8 Manik has also been examined, who is an eye witness to the incident. PW-8 Manik also states similar as that of PW-3 Amrata and PW-5 Shivaji. In cross examination, presence of PW-3 Amrata and PW-5 Shivaji has been established. He has admitted that there was no electric supply to the house of the appellant. He has denied the suggestion that he was related to the accused who had murdered father of the appellant-accused. 10. After scrutinizing the evidence of PW-3 Amrata, PW-5 Shivaji and PW-8 Manik, it is apparent to us us that the prosecution has established that deceased Asha was assaulted by the appellant-accused. Though these three witnesses have been cross examined, nothing of substance has been elicited in their cross examinations to doubt their veracity. The three eye witnesses, at the close of their cross examination, have emerged as reliable witnesses. We, therefore, find that no fault can be found with the reasoning of the trial court in accepting evidence of these {8} Cri. Appeal No.250/2010 three eye witnesses. 11. Prosecution has also examined PW-10 Kamalbai, mother of deceased Asha. PW-10 Kamalbai states that deceased Asha was her daughter and she had given the custody of her daughter to the appellant-accused as the appellant-accused had told her that she would look after her daughter and took her to her village. Thus, Asha had left with the appellant accused about a year prior to the incident. Kamalbai states that she was in Malwani when she learnt about the incident. In cross examination she has admitted as true that Asha was treated properly by the appellant. She has also admitted that she was acquainted with the appellant- accused since about 1 to 2 years prior to sending of Asha with the appellant. She has admitted that the police had recorded her statement on the day she reached the village. 12. Mr.Jadhav, learned counsel for the appellant has urged before us that the appellant was not by nature a hot tempered and quarrelsome person. PW-10 Kamalbai had permitted her daughter Asha to reside with the appellant-accused as she was satisfied that the appellant-accused would treat her daughter well and that no harm would come to her. It is further urged before us by Shri.Jadhav, learned counsel for the appellant that there are no instances of the appellant-accused assaulting Asha during the period of one year that Asha was residing with her. It is, therefore, urged before us that on account of missing of one hen and {9} Cri. Appeal No.250/2010 breaking of one egg, the appellant-accused was provoked and, therefore, in order to chastised Asha, she had beaten her, without having any intention, whatsoever, to kill Asha. Mr.Jadhav, learned counsel for the appellant submits before us that the provocation of the appellant-accused may not be justified, yet the appellant- accused cannot be attributed with any intention and therefore, an offence punishable u/s 302 of the Indian Penal Code, is not established against the appellant-accused and the appellant- accused would be liable to be convicted for an offence punishable u/s 304 Part II of the Indian Penal Code. Learned APP has supported the findings recorded by the trial court and has urged for dismissal of the appeal. 13. That the appellant accused had no intention to kill Asha, is clear to us from the evidence of eye witnesses. The appellant-accused did not bear any animosity towards Asha. Asha had been residing with the appellant for about a year prior to the incident and the appellant-accused is never alleged to have ill- treated or beaten Asha. The appellant-accused, it appears, was infuriated on account of missing of one hen and breaking of the egg. We do not condone the act of the appellant-accused. Over such a trivial matter the appellant-accused should not have been infuriated to an extent that she caused injuries to deceased Asha. Deceased Asha, was no doubt a girl of a tender age i.e. 6 years at the time of the incident, at the same time, it cannot be lost sight of that the appellant-accused had no intention to commit murder of {10} Cri. Appeal No.250/2010 deceased Asha in that rage, which cannot be justified. The appellant accused had struck deceased Asha with a piece of a firewood, little realizing that the injuries, which she was likely to inflict, would cause death of deceased Asha. Appellant-accused had applied turmeric powder on the external injuries, without realizing that Asha had sustained fracture to her rib, which had pierced the spleen. Deceased Asha had slept in the night and her death was noticed on the next morning. In that background, according to us, an offence punishable u/s 302 of the Indian Penal Code would not be established. The appellant would be liable to be convicted for an offence punishable u/s 304 Part II of the Indian Penal Code. 14. A reference, in this behalf, may usefully be made to the judgment of the Division Bench of this Court in “Dayaram @ Jayaram Parshuram V/s State of Maharashtra” 1996 (2) Mh.L.J. 1056. In this case, prosecution had alleged that while the deceased and his brother were returning after a stroll, the brother of the deceased, inadvertently pushed the accused and the accused thereupon started abusing them and inflicted two knife blows on the deceased when the latter asked not to abuse. The Division Bench found that there was ample and reliable evidence before the trial court establishing involvement of the accused in the crime. The Division Bench further found that there was no background of any enmity or ill-will of malice between the parties to indicate any criminal intention on the part of the accused to kill {11} Cri. Appeal No.250/2010 the deceased. Division Bench further found that the incident has taken place in the heat of moment after exchange of abuses by accused with deceased occasioned by fact that brother of the deceased had inadvertently pushed the accused, which had infuriated him. The Division Bench, therefore, altered the conviction from section 302 to 304 Part II of the Indian Penal Code and sentenced the accused to RI for 5 years. 15. According to us, in the present case also there is no history at all of any enmity or ill-will between the appellant and deceased Asha. The incident of assault was result of the accused flying in rage on account of missing of a hen and breaking of an egg. The appellant-accused had been away from her village for about 8 days and on her return had noticed that one hen was missing and had also noticed that an egg of the hen had been broken. The appellant-accused had grabbed the piece of a firewood, which must have been lying near about and with the piece of firewood had assaulted the deceased not with any intention of killing the deceased, but with an intention to chastise the deceased. In such circumstances, therefore, according to us, the appellant-accused would be liable to be convicted for an offence punishable u/s 304 Part II of the Indian Penal Code. The appellant-accused has been in jail since the date of her conviction which is from 15.06.2007 and was under trial prisoner from 22.06.2006 till 11.01.2007. The appellant-accused has thus undergone 4 and half years of imprisonment. According to us the {12} Cri. Appeal No.250/2010 ends of justice would be met by convicting the appellant-accused for an offence punishable u/s 304 Part II of the Indian Penal Code and sentencing the appellant-accused to the period of imprisonment already undergone by her. 16. Accordingly, Criminal Appeal is partly allowed and the conviction and sentence of the appellant for offence punishable u/s 302 of the Indian Penal Code is hereby quashed and set aside and the appellant-accused is convicted for an offence punishable u/s 304 Part II of the Indian Penal Code and is sentenced to the period of imprisonment i.e. 4 and half years, which the appellant-accused has already undergone. Sentence of fine with default stipulation shall remain unaltered. Since the appellant accused has already served out her sentence, she be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapeal 250-10