Refusal to make tea doesn’t amount to grave and sudden provocation: Bombay High Court

19 apeal 544 2019.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 544 OF 2019 Santosh Mahadev Atkar Age: 35 years Resident of Vitthal Hospital Servant Quarter Room No. 17 Pandharpur Tal. Pandharpur District Solapur In Jail) Versus The State of Maharashtra Through City Police Station Original Accused Original Complainant Mr. Sarang Aradhye for the Appellant Mr. S. V. Gavand A.P.P for the RespondentState CORAM : REVATI MOHITE DERE J TUESDAY 2 nd FEBRUARY 2021 ORAL JUDGMENT : Heard learned counsel for the parties. The appellant has impugned the judgment and order dated 1st July 2016 passed by the learned Additional Sessions Judge Pandharpur in SQ Pathan 1 19 19 apeal 544 2019.doc Sessions Case No. 13 2014 convicting and sentencing the appellant as under : for 6 months 3 months. for the offence punishable under 304 Part II of the Indian Penal Code to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5 000 in default of payment of fine to suffer simple imprisonment for the offence punishable under Section 201 of the Indian Penal Code to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.3 000 in default of payment of fine to suffer simple imprisonment for Both the aforesaid sentences were directed to run concurrently A few facts as are necessary to decide the case are as under : The appellant is the husband who was married to Manisha deceased) on 15th December 2005. From the said wedlock the appellant and Manisha were blessed with a daughter Rohini. The appellant and Manisha were residing in the Servants’ Quarters of Vitthal Hospital at Pandharpur along with the appellant’s mother who was serving in the said Hospital. According to the prosecution the appellant was suspecting Manisha’s character as a result of which there used to be frequent quarrels SQ Pathan 2 19 19 apeal 544 2019.doc between them. The incident is stated to have taken place on 19th December 2013 at about 6:00 a.m. It is the prosecution case that Manisha was leaving the house on the said date and time without preparing tea on account of which there was exchange of words between the appellant and deceased Manisha. As the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant the appellant is alleged to have given a blow on Manisha’s head from behind with a hammer. The said incident is alleged to have been witnessed by Rohini who at the relevant time was aged 6 years. It is the prosecution case that soon after Manisha was assaulted the appellant gave her a bath wiped the blood stains from the spot and thereafter took Manisha to Vitthal Hospital. As Manisha’s condition was critical the doctor who treated Manisha asked the appellant to shift Manisha to the Civil Hospital Solapur. Pursuant thereto Manisha was shifted to the Civil Hospital Solapur. Throughout Manisha’s condition was critical and she was unable to speak and eventually on 25th December 2013 Manisha succumbed to her injury. In the meantime i.e. on 19th December 2013 Manisha’s uncle Macchindra Waghmareon learning that Manisha was admitted to the hospital immediately rushed to the hospital i.e. Vitthal Hospital where SQ Pathan 3 19 19 apeal 544 2019.doc the appellant informed Macchindra that he had assaulted Manisha Pursuant thereto Macchindra Waghmarelodged a complaint with the Pandharpur Police Station. On registration of the FIR investigation commenced statements of witnesses were recorded panchanamas were drawn and after investigation charge sheet was filed as against the appellant for the offence punishable under Section 302 and 201 of the Indian Penal Code in the Court of the learned Magistrate at Pandharpur. The said offence being Sessions triable the case was committed to the Court of Sessions at Pandharpur. Charge was framed against the appellant for the aforesaid offence to which the appellant pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 12 witnesses. Thereafter Section 313 statement of the appellant was recorded. The learned Judge after hearing the parties was pleased to convict the appellant for the offence as stated in para 2 hereinabove. Learned counsel for the appellant assailed the judgment on several counts. He submitted that the prosecution case essentially rests on extra judicial confession made by the appellant to PW 4 Macchindra Waghmare PW 6 Nandabai Waghmare and PW 7 Dr. Bajrang Dhotre. He SQ Pathan 4 19 19 apeal 544 2019.doc submitted that the said evidence is a weak piece of evidence and that the appellant cannot be convicted only on the basis of the extra judicial confession made to the said witnesses. He further submitted that as far as the child witness i.e. PW 5 Rohini is concerned the trial Court has discarded her evidence for the reasons set out in the judgment. He submits that the incident was a result of grave and sudden provocation offered by deceased Manisha when she refused to make tea for the appellant and as such the sentence of the appellant be reduced to the period already undergone by the appellant. Learned A.P.P supported the judgment and order of conviction and sentence and prayed for dismissal of the appeal. He submitted that the reasons given by the learned Judge for discarding the evidence of the child witness i.e. PW 5 Rohini are flimsy and cannot be sustained. He submitted that the evidence of PW 5 Rohini inspires confidence and that she has not buckled in her cross examination. He submits that Rohini’s evidence ought to be considered more particularly when she was a natural witness who was present at the spot and had seen the appellant assaulting her mother Manishaas well as the evidence of PW 6 Nandabaiwas also residing with them that the appellant was suspecting Manisha’s character and would quarrel with her on account of the same and that on 19th December 2013 the appellant assaulted Manisha on her head resulting in serious injuries pursuant to which the appellant admitted Manisha to Vitthal Hospital. PW 4 Macchindra has further stated that Manisha was shifted from Vitthal Hospital to Civil Hospital as she was seriously injured. He SQ Pathan 7 19 19 apeal 544 2019.doc has stated that Manisha was unconscious and had sustained injuries on her head. He has further stated that when he questioned the appellant as to what had happened the appellant disclosed to him that at 6:00 a.m he had asked Manisha to prepare tea and that when she refused to prepare tea he assaulted her with a hammer on her head pursuant to which he brought her to the Civil Hospital. PW 4 Macchindra on the basis of the said disclosure made by the appellant lodged a complaint FIR as against the appellant with the Pandharpur Police Station. The said FIR is at Exhibit 23 Although several suggestions were made to the said witness nothing is elicited in his cross examination to disbelieve the said witness. A suggestion was also made to the said witness that the deceased fell as a result of which she sustained an injury on her head which suggestion was denied by the witness. It was also brought on record that the appellant had filed a complaint against the said witness and Manisha’s parents in 2010 as a result of which they were falsely implicating him in the said case which suggestion was also denied by the said witness. The evidence of PW 6 Nandabaiis similar to the evidence of PW 4 Macchindra with respect to the ill treatment meted out by the appellant to her daughter Manisha i.e. the appellant used to suspect Manisha’s character would quarrel with her and also assault her SQ Pathan 8 19 19 apeal 544 2019.doc PW 6 Nandabai has stated that when she along with others visited the Civil Hospital Solapur they learnt that Manisha was serious that she was not opening her eyes nor could she talk. She has stated that when she asked the appellant what had happened the appellant disclosed that in the morning at 6:00 a.m as Manisha had not given him tea and as he suspected her character he hit her on her head resulting in Manisha sustaining an injury. Again nothing material is brought in the cross examination so as to disbelieve or discredit this witness. The suggestions made to the said witness i.e. PW 6 Nandabai have been categorically denied by her i.e. that Manisha was injured in an accident that no such disclosure was made by the appellant to her and that they had lodged a false complaint against him because of an earlier complaint lodged by the appellant against them in 2010. Thus from the evidence on record it is evident that the appellant would suspect Manisha’s character and that the appellant had made an extra judicial confession to PW 4 Macchindra and PW 6 Nandabai that he had assaulted Manisha. It is pertinent to note that the evidence of both the aforesaid witnesses i.e. PW 4 Macchindra and PW 6 Nandabai is duly corroborated by an independent witness i.e. PW 7 Dr. Bajrang Dhotre. PW 7 Dr Dhotre was working as a Medical Officer at Vitthal Hospital Pandharpur at SQ Pathan 9 19 19 apeal 544 2019.doc the relevant time. He has stated that on 19th December 2013 at about 7:00 a.m. Manisha was admitted in the hospital that when he examined her he found that she was in a serious condition as she had suffered heavy bleeding. He had stated that the said patient was brought by Santosh Atkar appellant). He has further stated that the appellant informed him i.e. gave history that he had hit Manisha at 6:30 a.m. in the morning with a hammer at the residential quarters of Vitthal Hospital. PW 7 Dr. Dhotre has stated that the said history given by the appellant was reduced into writing by him in the appellant’s words. PW 7 Dr. Dhotre has identified his handwriting on the case papers which are exhibited at Exhibit 28. Exhibit 28 i.e. case papers of Manisha read as under : “Patient brought by Mr. Santosh Mahadeo Aatkar c alleged history an assault he hited by hammer today morning at about 6:30 A.M. at Vitthal Hospital PW 7 Dr. Dhotre found the following injuries on Manisha i) C.L.W. measuring 4 Cms. X 3.5 Cms. oozing of blood was present. It was present at left parietal region 5 Cms. away from the midline and was placed anterio posteriorely. On clinical examination it was depressed fracture of skull C.L.W. measuring 3 X 1 Cm. was vertical in direction was muscle deep and blood mark was present. It was SQ Pathan 10 19 19 apeal 544 2019.doc situated at medial aspect of left forearm in its lower 1 3rd C.L.W. measuring 2 X 0.5 Cm. was vertical in direction and blood mark was present and was at medial to injury No.2 and it was parallel to it iv) C.L.W. measuring 1 X 0.5 Cm. was horizontal in direction and blood mark was present and was at dorsum of left little finger on its terminal part of 1st digit v) Haematoma measuring 5 X 3 Cms. was tender and was at dorsum of right hand vi) Abrasion 2 X 1 Cm. was read in colour and was at right patellor region. It is simple in nature All injuries are within 6 hours old. Injury Nos. 1 2 3 4 was caused by hard and blunt and hard and rough object Injury Nos. 5 and 6 are caused by hard and rough object.” PW 7 Dr. Dhotre advised CT Scan of the patient Manisha and asked her to be shifted to a higher center for further treatment pursuant to which Manisha was taken to the Civil Hospital at Solapur. Thus the extra judicial confession made by the appellant to PW 4 Macchindra and PW 6 Nandabai is duly corroborated by PW 7 Dr. Dhotre and is supported by Exhibit 28 i.e. the case papers. It appears that after Manisha was shifted to the Civil Hospital at Solapur efforts were made by the police to record her statement however she was not found in a condition to record her SQ Pathan 11 19 19 apeal 544 2019.doc statement. On 25th December 2013 Manisha succumbed to her injuries The cause of death was stated to be head injury. Column 19 of the post mortem report reveals the following internal injuries : “(i) Underscalp haematoma present over left side fronto parieto tempora occipital region size 13 cm x 7 cm ii) Comminuted depressed fracture of left parietal bone of size 4 cm x 3.5 cm iii) Extradural haematoma present over left parietal region about 50 gms Subdural haematoma present all over brain about 100 Subarachnoid haemorrhage present all over brain surface as think blood film Meninges torn Brain congested & ocetomatovy.” Thus it appears that the appellant assaulted Manisha on her head with a hammer from behind resulting in a grievous injury on the head and other injuries on her person. The situs of injury is consistent with the evidence on record. SQ Pathan 12 19 19 apeal 544 2019.doc As far as PW 5 Rohini is concerned the learned Judge has discarded her evidence as it was recorded belatedly i.e. after 11 12 days of the incident. It is pertinent to note that the incident had taken place on 19 th December 2013 and that Manisha succumbed to her injuries on 25th December 2013. PW 5 Rohini was aged 6 years at the relevant time and it appears that on 30th December 2013 Rohini’s statement was recorded i.e after 5 days of her mother’s demise. Rohini’s 164 statement was also recorded in the said case on 15th January 2014. A perusal of the evidence of PW 5 Rohini shows that she was present in the house at the relevant time and had witnessed the quarrel between her fatherand mother Manisha). She has stated that because of the quarrel she woke up and saw her father assaulting her mother with a hammer on her head and that there was blood on the floor. She has stated that her father after cleaning the floor bathed her mother and thereafter took her to the hospital. She has also identified the hammerwhich was seized at the instance of the appellant from the house. A perusal of the cross examination shows that Rohini has not buckled in her cross examination despite a gruelling cross and has stuck to what she has stated in her examination in chief. She has denied the suggestions given in the cross examination i.e. of not witnessing the incident. The evidence of this witness i.e. Rohini aged 6 SQ Pathan 13 19 19 apeal 544 2019.doc years inspires confidence and cannot be disbelieved. There is nothing in the cross examination of this witness to disbelieve her presence in the house at the relevant time. Delay per se of a few days in recording her statement in the facts cannot be said to be fatal. It will have to be borne in mind first the trauma of a young child aged 6 years on seeing her mother being assaulted by her father the trauma of seeing not only the assault but of seeing her mother lying there for an hour during which her father appellant) gave her mother a bath to clean the blood and also cleaned the spot. Manisha succumbed to her injuries on 25th December 2013 and Rohini’s statement was recorded on 30th December 2013 and 164 statement on 15th January 2014. The trauma of a child loosing a loved one in such a brutal way will have to be borne in mind. Having regard to the facts in these circumstances delay in recording her statement cannot be said to be fatal. Rohini’s presence cannot be doubted. Her evidence inspires confidence. She is a natural witness who woke up on hearing the quarrel between her parents and witnessed the assault on her mother by her father and saw her father cleaning the spot soon thereafter. The spot panchanama reveals that the room in which the incident took place was one room with an open kitchen and a bathroom Thus evidence on record shows that the incident took place in the room SQ Pathan 14 19 19 apeal 544 2019.doc and as such Rohini could have clearly witnessed the same. The Panch to the spot panchanama i.e. PW 2 Krishna Kale has given the description of the room and what was seen. He has stated that when he entered the room he found that blood stains had been wiped off with cloth that on entering the bathroom he saw blood stained blouse petticoat chaddar and gunny bag lying there. The said witness corroborates PW 5 Rohini with respect to the spot of incident being cleaned. Coupled with the aforesaid evidence there is evidence of recovery of a blood stained hammer at the instance of the appellant from behind the cooler in his house. The evidence of PW 3 Krushna Kale panch to the memorandum of panchanama as well as PW 12 Suresh Thorat API support the recovery of the said blood stained hammer at the instance of the appellant. It appears from the evidence of PW 8 Vilas Salunke photographer) who had taken photographs of the spot that there was no blood seen at the spot on the floor. The said photographs were taken soon after the incident. The said witness was examined to show that the appellant had wiped the blood from the spot soon after the incident so as to destroy evidence. SQ Pathan 15 19 19 apeal 544 2019.doc Learned counsel for the appellant relied on the judgment of the Apex Court in the case of Madanlal vs. State of Punjab1. He submitted that in the said case the accused was convicted for the offence under Section 304 Partof the Indian Penal Code and was sentenced to suffer imprisonment of 4 years. He submitted that as the accused’s act was a result of grave and sudden provocation his sentence was reduced to the period undergone. According to the learned counsel for the appellant since the appellant in the present case acted under grave and sudden provocation the appellant’s sentence also be reduced to the period undergone by him. A perusal of the said judgment relied upon by the learned counsel is clearly distinguishable and has no bearing on the facts in the present case. The case before the Apex Court was that the appellant therein had caused serious injury to the deceased with a handle of a pump the motive of the crime was that the accused therein was hungry for 3 days and when he asked for food from the deceased Sewadar of the `Dera’ where free food was being supplied the deceased refused and consequently the appellant in a fit of anger attacked the deceased on being deprived of the 1992 SuppSCC 233 SQ Pathan 16 19 19 apeal 544 2019.doc power of self control. Admittedly in that case the appellant and the deceased were not known to each other and the motive was hunger for 3 days. In the present case the appellant was suspecting his wife’s character and would assault her on account of the same. On the day of the incident on being refused tea the appellant assaulted Manisha with a hammer. The deceased Manisha by refusing to make tea for the appellant by no stretch of imagination can be said to have offered grave and sudden provocation for the appellant to assault her much less such a brutal assault. It would not be out of place to observe that a wife is not a chattel or an object. Marriage ideally is a partnership based on equality More often than not it is far from that. Cases such as these are not uncommon. Such cases reflect the imbalance of gender skewed patriarchy the socio cultural milieu one has grown up in which often seeps into a marital relationship. There is imbalance of gender roles where wife as a homemaker is expected to do all the household chores. Emotional labour in a marriage is also expected to be done by the wife. Coupled with these imbalances in the equation is the imbalance of expectation and subjugation. Social conditions of women also make them handover themselves to their spouses. Thus men in such cases consider themselves as primary partners and their wives `chattel’. To quote from a study ‘The SQ Pathan 17 19 19 apeal 544 2019.doc Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin “by `proprietary’ we mean first that men lay claim to particular women as songbirds lay claim to territories as lions lay claim to a kill or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has the further implication possibly peculiar to the human case of a sense of right or entitlement”. This medieval notion of the wife being the property of the husband to do as he wishes unfortunately still persists in the majority mindset. Nothing but notions of patriarchy. Thus the submission of the learned counsel for the appellant that the deceased by refusing to make tea for the appellant offered grave and sudden provocation is ludicrous clearly untenable and unsustainable and as such deserves to be rejected. In the facts the appellant not only assaulted his wife but also after assaulting her wasted precious and crucial time i.e. around one hour in covering his act by destroying evidence by wiping the blood from the spot and bathing Manisha before taking her to the hospital. If the appellant had rushed Manisha to the hospital soon after the incident possibly her life could have been saved and Rohini would not have lost her mother. SQ Pathan 18 19 19 apeal 544 2019.doc Considering the overwhelming evidence on record pointing to the complicity no infirmity can be found in the impugned judgment and order convicting and sentencing the appellant for the offences mentioned in para 2 hereinabove. The facts on record also do not warrant any reduction in the sentence awarded to the appellant. Accordingly the appeal is REVATI MOHITE DERE J. SQ Pathan 19 19

Summary: The medieval notion of the wife being the property of the husband to do as he wishes still persists in the majority mindset; which is nothing but notions of patriarchy. Refusal to make tea offered grave and sudden provocation is clearly untenable and unsustainable. Bombay High Court gave the judgment in the case of Santosh Mahadev Atkar vs. The State of Maharashtra [Criminal Appeal no.544 of 2019] and quashed the appeal of the appellant by stating the above-cited reasons; which was presided over by the single bench of Hon’ble Justice Revati Mohite Dere. In the present case, an appeal was made by the appellant challenging the order passed by the Additional Sessions Judge convicting him for the offence u/s 304 of the Indian Penal Code and to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-. According to the facts of the case, a complaint was lodged by the deceased’s uncle against the appellant for assaulting the deceased (Appellant’s wife) because of which she succumbed to her injuries. It was found that the appellant used to suspect the deceased wife’s character very often. One day, the deceased did not make tea for the appellant due to which the appellant attacked her from behind &amp; gave a blow on her head with a hammer; which was witnessed by their 6-year-old daughter. The Appellant later cleaned the blood and gave a bath to the deceased and then took her to the hospital. But she couldn’t survive the injuries and hence, died.  In the Learned Magistrate, the appellant was convicted for the offence punishable under Section 302 and 201 of the Indian Penal Code. The appellant’s counsel had argued that the incident was a result of the grave and sudden provocation offered by deceased-Manisha, when she refused to make tea for the appellant and hence, the sentence of the appellant be reduced to the period already undergone by the appellant. Whereas, the respondent’s counsel had submitted that the appellant after assaulting the deceased on the flimsy ground of refusing to make tea for him, bathed the deceased, cleaned the blood from the spot, and as such wasted valuable time in taking Manisha to the hospital, resulting in her death. In the High Court, the appellant’s daughter had given her testimony where she submitted that she saw her father attacking her mother with a hammer due to which she started bleeding and then was taken to the Hospital by the appellant himself. The court considered the appellant’s daughter’s testimony as confident which could not be disbelieved.