Bombay High Court
Balasaheb Ramrao Latkar vs State Of Maharashtra on 14 December, 1983
JUDGMENT Vaze, J.
The facts of this case are somewhat bizarre. The accused Balasaheb Ramrao Latkar ('Balasaheb') comes from a Saraswat family and his father had amassed considerable fortune, extensive agricultural properties as well as real estate in Kolhapur. The deceased Pushpa Bhosale was brought up in a dilapidated room in a chawl near the grass market beyond Parvati Talkies, by Hausabai who herself was a concubine of one Bhonsle, a motor-car driver. The parentage of Pushpa was a subject of some debate, but, be that as it may, Hausabai was, for all intents, her foster-mother. In her teens, Pushpa was apprenticed to a dancer, Manik Kalavantin, and being endowed with a pretty face, she excelled in the performing arts, with the result that she acquired some degree of eminence on Marathi stage and celluloid industry.
2. It appears that the debonair Balasaheb fell in love with Pushpa and as the lovers came from diverse social strata, the orthodox family of Balasaheb true to tradition, objected to this union, with the result that unlike other marriages of a family of the status of - Latkars which are generally celebrated with great pomp and pageantry, this marriage was solemnized in a simple manner at Narsobawadi. Members of the Latkar family did not attend. This was sometime in 1972 and Pushpa lived a happy conjugal life for some years. Initially they were blessed with a baby-boy who died within first week of his birth whereafter the stork did not visit the house. Pushpa gave up her acting and dancing career after the marriage, but lately for some inexplicable reason played a secondary role in a Marathi movie 'Bot Lavin Tithe Gudgulya'. The Latkars owned a three storeyed building at 569, E Ward, Yyapar Peth, Kolhapur, Shahupuri. After marriage, Balasaheb and his brother Dadasaheb effected partition of 569/E Ward, with the result that the northern half facing the road fell to the share of Balasaheb while the southern half was taken up by his elder brother Dadasaheb. As no love was lost between the brothers, the doors in the common wall were fastened not only by the standard method of lockrails but by iron straps securely bolted.
3. The northern portion of No. 569 was converted by Balasaheb for commercial purposes. The ground floor was utilised for running a hotel called 'Hotel Trishul' whereas, the second floor housed a lodge under a like name i.e. "Trishul Lodge". The floor had 5 rooms. Rooms Nos. 6, 7 and 8 were in a row while Room No. 9 abutted room No. 8, and was probably the best appointed room of that lodge. This room which was 15' x 12' in size, had a toilet and a bath making it a self-contained unit.
4. Two beds and two teapoys constituted the items of furniture in that room. Towards the northern end of room No. 6 was a counter where the lodge manager Sampat used to sit with a telephone by his side. Before the conversion of the second floor of the building into a lodge, Balasaheb and Pushpa used to occupy the entire second floor. However, when the lodge project materialised, the couple shifted to a bungalow in Tarabai Park, Kolhapur, situated by the side of the Government Milk Dairy campus, a distance of one and a half miles from the lodge. Balasaheb used to commute from the bungalow to the lodge every day to look after the affairs of the lodge. One Chhaya, a young girl, in her teens, was the maid in attendance for Pushpa, who was inducted into the service when the couple was residing in the lodge. Chhaya moved with the couple to Patil's bungalow in Tarabai Park.
5. Pushpa, as observed earlier, was reared in slums. As fame and fortune smiled on her, she acquired a number of ornaments with which she used to deck her person. So drawn was she to the ornaments that she would never go out without them - not even for a mundane chore like buying vegetables. The iridescence of the diamonds of her epaulettes and the glitter of the gold of her aiguillettes seem to proclaim to the world that her break with the past is total, that she has risen above the quagmire of the squalid slums of her yester years - never to return.
6. But return she did. These proclamations, as proclamations do, were soon overtaken by sinister forces. On or about 25th December, 1980, Chhaya delivered an ominous message to her master for which Pushpa never forgave her even in her last days. The message was that Patil, the landlord of the bungalow, where the couple was residing, did not countenance the behaviour of Pushpa, inasmuch as, some unknown people visited her during the absence of her husband. Apprehending that such behaviour which goes against established social norms, would adversely affect his prestige and status, Patil had requested Balasaheb to vacate the bungalow. Chhaya also reported to her master that a son of a wealthy industrialist visits Pushpa after parking his car in the milk dairy campus and that they are closeted together or often go out for a ride.
7. Predictably the news infuriated Balasaheb, who reprimanded Pushpa about the affair. Pushpa was piqued at the insinuations and after packing her bags moved to Hausa's place on 25th December.
8. The separation did not last long; both pined for each other's company. On 3rd January, 1981, a Saturday, Balasaheb visited Pushpa in Hausa's house and the next day i.e. Sunday the 4th January, 1981 Balasaheb sent Sampat the Manager of the lodge with a chit to Hausa's residence which promptly brought Pushpa back to Room No. 9 of Trishul Lodge. The couple spent their reunion in the lodge, went out for a picnic, saw a late movie and retired.
9. That brings us to 5th January, 1981, the day when the incident in question took place. On that fateful Monday the couple spent the day as usual and after lunch (about the details of which there is some difference), had an afternoon nap. They got up around 2.30 p.m. The narration of events till this point of time as put up by the prosecution and the defence runs on parallel lines.
10. As would be expected, the couple had bolted door of Room No. 9 from inside when they were having an after-noon nap, and from this time till 4.30 p.m. when the door was forcibly opened, the sequence of events will have to be reconstructed on the basis of circumstantial evidence; for - but for the mute walls - there are not any; and there could not be any, eye-witnesses.
11. A number of witnesses have been examined by the prosecution, but the relationship of the witnesses, barring the police and medical witnesses, with the deceased is such that their evidence is full of untruths and half-truths. Understandably, the Latkars, i.e. the family of Dadasaheb, though estranged from Balasaheb due to the out of caste marriage with a person brought up in slums, would be the first to come to the rescue of Balasaheb as blood is thicker than water. Sampat, a waiter, in the Trishul Hotel was promoted by Balasaheb to take the command of the newly opened lodge and owes his ascendency to Balasaheb. His salary has been increased to Rs. 300/- per month, and presently he is running the lodge profitably and rendering accounts periodically to Balasaheb. Hausa, the alleged foster-mother of Pushpa, is in a dilemma. She would fall from grace in the neighbourhood were it to appear from her deposition that she did not care enough for her daughter nor did try her utmost to save her from the clutches of Balasaheb. To subdue such criticism, Hausa has overplayed her cards and her deposition gets marred by exaggerations, - she wants to emerge as the saviour of Pushpa at every juncture. Such was the loudness and bravado of her deposition that even the learned counsel for the prosecution adopted, what the learned trial Judge calls "a lukewarm approach". The learned trial Judge also felt that her evidence need not be dealt with at great length because "the prosecution does not want to place much reliance on her evidence, stating that it is left with the Court to consider her evidence for whatever worth it is".
12. That leaves us with the evidence of Narayan Ganpat Mane (P.W. 10) and Subhash Ramchandra Kumbhar (P.W. 12) the two Police Officers, who had been summoned by Manager Sampat, who round about 4.15 p.m. concluded that the quarrel between his master and the mistress is assuming alarming proportions. Sampat's distress phone call was picked up round about 4.20 p.m. by Police Constable Ramchandra who informed wireless van Baker as well as Shahupuri Police Station to proceed to the spot. Mane and Kumbhar proceeded to the lodge on bicycles and the van followed. They found door of Room No. 9 was open; some people had assembled outside the room, a woman was lying with her face on the floor, the accused Balasaheb was sitting on her back and pulling her hair. They also found that the woman who was in a pool of blood was groaning in pain, and that broken pieces of glass were scattered all around. Mane rushed into the room, caught hold of Balasaheb by the arm and pulled him aside and brought him outside. The police officials extended due courtesy to Pushpa. Her clothes were in a disarray and therefore they asked the women-folk to arrange them properly. With the arrest of the suspect the officers were anxious to give prompt medical aid to the victim. They wrapped her in a chaddar, brought her down by the 2'.7" wide staircase on to the waiting police jeep, which had by then arrived. The accused was put into the wireless van and taken to Shahupuri Police Station. Balasaheb and Pushpa were rushed to C.P.R. Hospital, Kolhapur.
13. Dr. Mrs. Bindge (P.W. 11), Causalty Medical Officer, saw Pushpa at 4.45 p.m. when she was in a gasping condition with a feeble pulse. Before any useful medical aid could be given, Pushpa succumbed to her injuries at 5.00 p.m. Dr. Bindge conducted the post-mortem examination of Pushpa and found that she had 73 injuries on her person which she classified in 27 groups. The accused Balasaheb was also examined for his injuries and the Medical Officer also found that though Balasaheb was smelling of alcohol he was not under the influence of any intoxicating drink.
14. On these facts, Balasaheb was arraigned before the learned Sessions Judge, Kolhapur, who found Balasaheb guilty of offence punishable under S. 304, Part I of the Penal Code and sentenced him to suffer R.I. for eight years. Against this order of conviction and sentence, Criminal Appeal No. 978 of 1981 was filed by Balasaheb. This Court, on 24-11-1981, while admitting Criminal Appeal No. 978 of 1981, issued a notice to the appellant/original accused Balasaheb to show cause why the sentence imposed on him by the lower Court should not be increased. This was followed by the Criminal Appeal No. 322 of 1982 by the State for grant of leave under section 378 of the Cr.P.C., and praying that the order of acquittal passed in favour of the accused may be set aside and that he may be convicted under S. 302 of the Penal Code. Both these appeals as well as the enhancement proceedings were heard together and this judgment governs the three matters.
15. The most independent scientific evidence in this case has come from Dr. Shakuntala Bindge (P.W. 11), who has been officiating as a Medical Officer for some 10 years, and has considerable experience of post-mortem examination. Dr. Bindge noticed that the body of Pushpa had 72 injuries which she classified in 27 groups. As the injuries speak for themselves, it would be better if the catalogue, as given by the Medical Officer, is reproduced, even though it may add to the length of the judgment. The groups are :-
"Group Injury No. (1) Incised wound on the neck right side 3" x 2" x muscle deep, bleeding was present. A glass piece was extracted by me from injury No. 1. (2) An incised wound on posterior surface of neck, admeasuring 2" x 2 1/2" X 3". Bleeding was present. (3) An incised wound in front of right ear 3" x 2" x bone deep bleeding was present. (4) An incised wound at the lateral side of right eye, 2" x 2 1/2" x bone deep. Bleeding was present. (5) An incised wound at the upper lip 1" x 1/2" x 1/2" bleeding was present. (6) An incised wound on lower jaw 1" x 1/2" bone deep. Bleeding was present. (7) Two incised wounds at the angle of mouth right side each of about size of 3/4" x 1/2". Bleeding was present. (8) An incised wound on upper lip 1" x 1/2" x 1/4". Bleeding was present. (9) Four incised wounds on the bridge of nose each of about size of 1/2" x 1/2". Bleeding was present. (10) An incised wound on left temporal region of scalp 2" x 2" x bone deep. Bleeding was present. (11) An incised wound on forehead 2" x 1/2" x bong deep. Bleeding was present. (12) An incised wound at the angle of left eye 1" x 1/2" x bone deep. Bleeding was present. (13) Six minor abrasions on left cheek.
(14) An incised wound on right scapular region 1" x 1/2" x 1/2". Bleeding was present. (15) Minor abrasions 10 in number on posterior surface of the neck. (16) Twenty small incised wounds on left hand on dorsal surface each of about size of 1/2" x 1/2". Bleeding was present. (17) Three incised wounds on left each of about size of 1/2" x 1/2" x 1/2". Bleeding was present. (18) Three incised wounds on right temporal region of scalp size of each -
(i) 4" x 1/2" x bone deep.
(ii) 3" x 1/2" x bone deep.
(iii) 1/2" x 1/2" x bone deep.
Bleeding was present. These three injuries are grouped together because they were on right temporal region and near each other.
(19) An incised wound on right wrist joint dorsally 2" x 1/2" x bone deep. Bleeding was present.
(20) An incised wound at the base of right thumb dorsally 2" x 1" x bone deep. Bleeding was present.
(21) An incised wound at the base of right finger on dorsal surface of palm size 2" x 1" x bone deep. Bleeding was present.
(22) An incised wound on right thumb 1/2" x 1/2" x 1/2". Bleeding was present.
(23) Two incised wounds on right index finger each of about the size of 1/2" x 1/2". Bleeding was present.
(24) Three incised wounds on right middle finger each of about the size of -
1" x 1/2" X bone deep.
1/2" x 1/2" -do-
1/2" x 1/2" -do-
Bleeding was present.
(25) A minor abrasion on right ring finger.
(26) An incised wound on right little finger 1" x 1/2" x bone deep. Bleeding was present.
(27) An incised wound on dorsal surface of right forearm in lower 1/3rd size of 1" x 1 1/2" x muscle deep. Bleeding was present."
16. Dr. Bindge found that there were some additional injuries which she noted in Column No. 18 of the post-mortem notes. The additional injury was :
"Right common carotid artery was cut partially, and that this injury corresponds to the injury No. 1 mentioned by her earlier."
17. Shorn of anatomical language, one can see that most of the injuries were on the face and two palms and hands of the deceased. The Medical Officer found that there were in all 35 injuries on the face and neck which must have been caused by a hard and sharp object. She opined that if a person had assaulted the woman with a broken bottle by holding the broken part of the bottle such injuries might be caused. As regards the 20 injuries on the dorsal surface of the palm, the doctor explained that if the victim was being assaulted on the face with a broken bottle and if the victim held her palm in front of her face to save herself from the assault, such injuries on the surface of the palm might be caused.
18. Dr. Bindge opined that the three incised wounds on the left palm could be attributed to the attempt on the part of the victim to save herself from the assault, if she were to hold the palm in front of her face. During the post-mortem, Dr. Bindge noticed that the fifth cervical vertebra of the spine was fractured at the body of the vertebra, and that such a fracture was possible if the neck of the person is twisted. The medical opinion given in the box was that the cause of death was shock due to haemorrhage with multiple injuries. She also opined that a person might die due to the fracture of the fifth vertebra because of the shock. The doctor had also extricated two pieces of glass from the dead body one of which was extracted from the body injury No. 1 and the other had just stuck to the body.
19. As regards the accused who was also examined by the same doctor i.e. Dr. Mrs. Bindge, the following external injuries were noticed :-
"(1) An incised wound on left palm 3" x 1/2" x muscle deep.
(2) An incised wound on right palm 1/2" x 1/2" x muscle deep.
(3) An incised wound 1/2" x 1/2" on right little finger and middle phalanx. (4) An incised wound 1/2" x 1/2" muscle deep on right ring finger.
(5) A minor abrasion on tip of left thumb.
(6) A minor abrasion on tip of left index finger.
(7) A minor abrasion on tip of left of little finger.
(8) 8 nail marks on chest in between two mammary region.
(9) Two nail marks on abdomen in midline.
(10) Three nail marks on anterior surface of neck.
(11) A minor abrasion on medial surface of right arm.
(12) Two minor abrasions on left forearm on palmer surface.
(13) A minor abrasion on right knee joint on anterior aspect.
(14) Three minor abrasions on left knee joint, on anterior aspect."
20. She opined that the injuries might have been caused by a hard and sharp object. The injuries excepting the nail-marks might have been caused by a hard and sharp object and that the abrasions might have been caused by rough substance coming into contact with the skin. She found that the injuries were simple injuries and that those on the knees might be caused due to friction when a person is kneeling on the floor.
21. In the trial Court, various theories were canvassed in defence. The first was that as the accused, in the heat of quarrel, called Pushpa a whore, she felt humiliated and in a franzy picked up a soda-water bottle and charged towards the accused, who, in self-defence, picked up another bottle. The two bottles clashed and burst throwing splinters all around, and Pushpa, in a self-annihilating mood, inflicted the injuries upon herself. The second theory propounded was that Pushpa had given some sleeping tablets to Balasaheb and the concoction of the sleeping tablets with draughts of whisky which Balasaheb took had a deleterious effect on the psyche of the accused, resulting in temporary loss of control. These theories which have been rightly discounted by the trial Court, have been abandoned before us. Mr. Mistry, the learned counsel for the accused, has argued that the facts of the case fall squarely within Exception 4 to Section 300 of the Indian Penal Code, as well as Exception 1 to the same section. Counsel, after admitting that a homicide did take place in Room No. 9 of 'Trishul Lodge' where Balasaheb and Pushpa were closeted between 2.30 p.m. and 4.45 p.m., argues, that the homicide is not murder because Balasaheb wag deprived of the power of self-control by grave and sudden provocation. Mr. Mistry traces the genesis of the grave and sudden provocation to the life style of deceased Pushpa when she had amorous adventures with many a young man. Counsel points out that apart from the evidence of Chhaya who brought the message from landlord Patil that be does not approve of the goings on in the bungalow rented to Balasaheb, even S. D. P. O. Mohan Rathod (P.W. 20) admits that in their investigation, evidence was forthcoming about the infidality of Pushpa.
22. Pushpa, though brought up in slums, had tasted fame. The lure of grease paint, sashes of velvet and glaring foot-lights haunted her during her confinement in the cramped atmosphere of Room No. 9. Her come-back to the screen after a long interval in the movie 'Bot Lavin Tithe Gudgulya', must have fanned the dying embers of ambition and a successful career in the celluloid world. Mr. Mistry argues that when behind the closed doors of Room No. 9 Balasaheb tried to reason with Pushpa to mend her ways, Pushpa who was extremely proud of her beauty, retorted that many a rich admirers would gift her lodges like the one which Balasaheb proudly paraded - being enamoured of her beauty. This retort, says counsel, constituted grave and sudden provocation resulting in loss of power of self-control. To fortify his argument, Mr. Mistry relies on the statement of the accused in which he had told about Pushpa replying in the affirmative his suggestion that she was taking anybody and everybody as a partner in the bed.
23. The submission is an engagingly simple one, but it is not one by which we find ourselves able to feel persuaded. In the first place, Balasaheb knew that Pushpa was a child of slums, taught dancing by a Kalavantin, had been on tour with many a dramatic company all over Maharashtra, and had to keep late hours to fulfil her obligations for shooting dates. The interlude of the son of a wealthy industrialist visiting Pushpa in the Tarabai Park Bungalow was not of a recent occurrence. The matter was discussed sometime in the last week of December, with the result that Pushpa took umbrage and walked out of Balasaheb's house to the zopada of Hausa in the grass market. There was a reconciliation, tempers had cooled down, a rapport was established, and Pushpa came back to her matrimonial home on 4th January, 1981. Nothing had transpired in this intervening period for the grisly banner of suspicion to raise its ugly head. A person finding his wife and her paramour in flagrante delicto admittedly receives the highest provocation and many a time the benefit of exception has been given to such a person. As observed by Persons and Ranade, JJ., "It has always been recognised that no higher provocation can be given than that of finding a man's wife in actual intercourse with a paramour". Asha Gopal, (1897) Unrep Cr C 932. Such an offender is treated by the Court with special clemency and there are cases in which such offenders have been let off with short terms of imprisonments. Even a confession of adultery has been held to constitute provocation if the reaction of the accused was instantaneous (Nga Saw, AIR 1937 Rang 466). This is in contradiction, as should be expected from the different standards of morality in the two countries, from the English principle, that "as a matter of law, a confession of adultery was insufficient provocation where a husband killed his wife. In Holmes v. Director of Public Prosecutions, (1946) AC 588 : (1946) 2 All ER 124, the House of Lords held that :
"in no case words alone, save in circumstances of a most extreme and exceptional character" reduce the crime to manslaughter."
This has now been changed legislatively by Section 3 of Homicide Act, 1957 under which 'everything both done and said' shall have to be taken into account in determining whether a provocation was given.
24. Herein we may say a word about the reaction of different persons having diverse psychological propensities to a given provocation. Even though the evidence of Hausabai, so far as it relates directly to the incident of 5th January, has been discounted even by the prosecution, there is, nothing to suggest that her narrative regarding the manner in which her daughter Pushpa came over to live with her on or about 24th of December is not worthy of credence. According to Hausa, a week before the incident on one Thursday Balasaheb came to her place in a taxi, asked her to accompany him, and both of them went to his residence at Tarabai Park. Hausa saw her daughter Pushpa weeping on a cot. Upon questioning, Pushpa told her mother the point of difference between the couple, (the details of which we may defer to a latter portion of the judgment). Upon hearing the narration of complaint, Balasaheb told Hausa that she should take Pushpa with her for about four days and that "he was bad tempered and he would not predict what would follow". Hausa took the hint and took away Pushpa with her to her house at Sadar Bazaar. The sequence of events that followed thereafter has already been adumbrated earlier.
25. The question arises : if a bad tempered person warns another that he would not be responsible for consequences in case the addressee persists in giving provocation for some matter in dispute, and if the addressee does not pay heed to the warning resulting in deprivation of the power of self-control by grave and sudden provocation, could his conduct come within the ambit of Exception 1 to S. 300 of the Penal Code ? In other words, while judging reactions to provocations, is it necessary to take into account the peculiar abnormal or subnormal characteristics of the offender such as exceptional excitability, pugnacity, disposition to lose his temper readily; or should the Court look at the matter objectively and try to surmise as that would have been and should have been the reaction of a normal reasonable person placed in similar circumstances and having the normal attributes of the offender ?
26. We feel that the objective test must be applied as was done by the Privy Council in Phillips v. R, (1969) 2 AC 130 at 137 :
"...... the question ........ is not merely whether in their (i.e. Lordships') opinion the provocation would have made a reasonable man lose his self-control but also whether having lost his self-control, he would have retaliated in the same way as the person charged in fact did."
An argument was addressed at the Bar before the Privy Council that a person who has lost his self-control acts with more or less fero according to the degree of provocation which caused the loss of self-control. The Privy Council rejected the argument :
"........ that loss of self-control is not a matter of degree but is absolute; there is no intermediate stage between icy detachment and going berserk. This premise, unless the argument is purely semantic, must be based upon human experience and is, in their Lordships' view, false."
The two questions which require affirmative answers are :
(i) would a reasonable man have lost his self-control ? and
(ii) would he then have retaliated as the offender did ?
Shades of temper - from phlegmatic to vitriolic - would then become irrelevant in such an exercise.
27. Apart from a brash and shameless retort that she would take anyone as a partner in bed and a hint of infidelity thrown in good measure by Chhaya, there appears to be nothing concrete upon which a citadel of provocation could be built by the accused.
28. It is nobody's case that since 1972 till the date of the incident Balasaheb had ever ill-treated Pushpa. Coming from a wealthy Saraswat family, he chose to make a girl of unknown parentage brought up in slums, as his bride. The marriage drove a wedge between him and the members of his family particularly his mother and elder brother Dadasaheb. So complete was the estrangement that even the panels of the teak doors separating their shares of residetial house were permanently fastened so as to make communication virtually impossible. Even Hausa has given a good chit to Balasaheb and so does the maidservant Chhaya. No doubt, he had sent Pushpa to her mother's place on account of a petty quarrel over ornaments but there was a thaw in their relationship and Pushpa came back on 4th January, 1981 to Room No. 9, which, after they had left Patil's bungalow, was her matrimonial home. The two letters dated 12-10-1980 and 1-1-1981 Exhibits 34 and 35 have been produced as evidence and at least the former i.e. Ext. 34 has been accepted by the trial Court as genuine. The letter reflects the normal anxiety of an estranged wife about the health of the husband and expectancy of a re-union with proclamations that the writer will not be able to live alone without her partner.
29. On the day prior to the incident, the couple went out on scooter for picnic, saw a late night show and shared the matrimonial bed. Till about 4.00 p.m. of the next day i.e. Monday the 5th January, there was hardly anything to suggest that Balasaheb had any sinister designs on the life of his wife. With this scenario of a loving couple with an unbroken record of some eight years of normal matrimonial behaviour, argues Mr. Mistry, if anything has happened between the time that the couple was locked in Room No. 9 on that fateful day till 4.30 p.m. on that day, it must have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and hence, the case falls within Exception 4 to S. 300 of the Penal Code.
30. As only two persons were in the Room No. 9 during the relevant period and as one of them is dead, it behoves us to hear what the survivor of the two has to say about the matter. According to Balasaheb, shifting of the residence and behaviour of Pushpa figured in their quarrel on that day. Pushpa insisted that she should be lodged in a new bungalow to which Balasaheb retorted that as she had not her haved properly in Patil's bungalow in Tarabai Park, she will have to live permanently in the lodge under his surveillance. Pushpa complained that she felt suffocated in the small room, to which, Balasaheb replied that the room was better than the Zopada of her mother. Balasaheb reminded Pushpa about the vow which they had taken about marital fidelity and that she had committed a breach of the trust. The conversation picked up momentum and both of them started scandalising each other's family. Balasaheb accused Pushpa that during his absence she was taking anybody as a partner in the bed, to which Pushpa replied that she would do anything. Pushpa was proud of her beauty and told Balasaheb that many people would give her many lodges by just looking to her face. This enraged Balasaheb who called her a whore, and thereafter, Balasaheb narrates how Pushpa attacked him by a soda-water bottle, how he tried to defend himself by another bottle, how Pushpa tried to commit suicide by inflicting wounds with the bottle in hand.
31. Mr. Mistry argues that even if the theory of bottles clashing each other and a suicidal attempt on the part of Pushpa does not hold water, it is in the highest degree possible that the injuries were the result of a sudden fight in the heat of passions aroused by the wife plainly telling her husband on the face that she would take anybody as a partner in her bed. It would be a reasonable surmise, says counsel, that the flash-point was reached, when, the offender who had forsaken everything for his love, was told about the dereliction from the path of virtue by his beloved. Reliance was placed on Hari Ram v. State of Haryana, , in which, a simple incident of a pushing cart getting struck against the platform in the chowk of the village resulted in the accused thrusting the prongs of a rake into the chest of the deceased. The Supreme Court found that in the heat of altercations between the parties, the rake was thrust into the chest of the victim. It was noted that this thrusting was preceded by a remark that the victim must be beaten to make him behave.
32. The Supreme Court has underscored the fact that only one blow was struck by the accused at the victim. As already observed earlier, the evidence of Dr. Bindge shows that there were not less than 73 injuries on the person of Pushpa which fact alone and by itself distinguishes Hariram's case (1983 Cri LJ 346) (SC) from the present one.
33. As regards the injuries, defence counsel argues that the analysis made by Dr. Bindge shows that - Balasaheb never intended to inflict any injuries on the front torso of Pushpa nor tried to throttle her which he could have easily done if he so desired. The face was the target of the attack and predominant intention was to disfigure Pushpa and not to kill. This probably was as a result of bragging of Pushpa that many a man will give her many a lodge on seeing her face.
34. As regards the injury to 5th cervical vertebra, counsel argues, the fracture could have occurred when Pushpa was being taken wrapped in a chaddar down the narrow staircase of the lodge or when she was carried to the hospital in the police jeep which by no means can give the required comfort of the stretcher of the ambulance. Dr. Bindge was subjected to a thorough cross-examination with a view to ferret out a theory that the fracture of the 5th cervical vertebra could be as a result of an accidental fall. Dr. Bindge admits that as regards the fracture of 5th cervical vertebra there is no external injury, and that the fracture of the cervical vertebra may be due to many reasons, but she was emphatic that such a fracture is not possible by an accidental fall or any somersault during the fight or a scuffle. According to the medical opinion, the fracture of that type is possible during the course of a fight like Wrestling. She repeatedly denied the suggestion, that the fracture of the 5th cervical vertebra is possible by an accidental fall on the edge of the cot, or if a person gives a jerk to his neck.
35. Coming to the injuries on the person of Pushpa, it is seen that the face and two hands were the targets of the attack. As regards the injuries on the left and right hands and the wrist, Dr. Bindge has opined that the 20 injuries on the dorsal surface of the palm could be caused if the victim is being assaulted on the face with a broken bottle and if the victim holds the palm in front of her face to save herself from the assault. Similar explanation has been given by her about the three incised wounds on the left palm. To a suggestion about the injuries being caused by broken glass pieces scattered on the ground, the doctor admitted that if bands are pressed on them the cut injuries can be caused, and that most of the injuries were as a result of attack by a broken glass bottle.
36. As regards the injuries on the person of Balasaheb, Dr. Bindge opines that the nail-marks were caused when the victim was trying to save herself from the assault. The incised wounds of the accused could have been caused when he was trying to break a bottle or holding a broken bottle in the hand at the time of the assault. The medical opinion pin-pointed the injury in Col. No. 18 as the most serious injury because the carotid artery was partially cut. Though Dr. Bindge admitted that the artery can be stitched and the patient can be saved if immediately brought for treatment, she did not agree with the suggestion that injury No. 1 together with corresponding description in Col. No. 18, would not be fatal and may be dangerous only. The common carotid artery supplies blood to the brain and a person may become unconscious if the blood supply to the brain is disturbed. This may result into coma and it would be commatic death.
37. Defence counsel further argues that even the trial Court has found that the investigating machinery was remiss in collecting all the pieces of broken bottles from the scene of incident and hence it is possible that during the scuffle Pushpa fell down on a bed of broken glasses and at least some of the injuries were the result of this accidental fall. As the authorship of each and every injury will have to be proved by the prosecution - so the argument proceeds - which burden the prosecution has not discharged, the benefit of doubt should go to the accused. All the same, in paragraph 142, the learned trial Judge has also observed that "this carelessness or remissness on the part of the police makes no difference or very little difference because I have found three important pieces of bottles in the stock of the pieces of bottles (Art. 5) and these pieces of bottles shatter the defence story to a great extent."
38. The story, as developed by the prosecution is that the bickering between the couple started on two counts. In the first place, Balasaheb, having run 'Trishul Lodge' successfully, was ambitious enough to start another project. He already owned another house C.T.S. No. 2004 in 'C' Ward by the side of the Municipal Corporation Building at Kolhapur. Balasaheb had engaged an Architect Sharad Jagdale to evaluate the property. He had also received a considerable amount by way of compensation for acquisition of some portion of the building in road widening scheme. Pushpa owned some trinkets like diamond tops, neckless etc., worth about Rs. 8,000/- and according to Hausa, Balasaheb was anxious that Pushpa contributes to the kitty by giving her ornaments. Secondly, the prosecution argues, the cloud of suspicion regarding the visits of the young son of an industrialist also soured the tryst.
39. Defence has argued that the theory of Balasaheb killing his wife for the sake of a paltry sum of Rs. 8,000/- is, prima facie, absurd because the amount would not make any sizeable contribution to the project the cost of which would run into lacs. Secondly, on the basis of Ext. 34, the letter written by Pushpa, it is argued that Pushpa was willing to part with her possessions and hence it was not necessary to resort to killing when the wife was willing to handover the ornaments of her own accord.
40. It is true that the ornaments were worth about Rs. 8,000/-. But, whenever a businessman has a project in blue-print, he realises that all available sources will have to be tapped to fund the project. Viewed in this light, the contribution in the shape of ornaments could not be said to be minimal. Even the F.I. Report recorded within an hour of the incident makes a reference to ornaments being the bone of contention between the couple.
41. To reconstruct the scenario, it appears that Balasaheb, in a heat of anger, broke a bottle lying nearby and inflicted wounds on the person of Pushpa with the broken end of the bottle. Pushpa taken unawares by the paroxysm which had seized her husband tried to resist the attack by holding palms before her tormentor but to no avail. In the scuffle Balasaheb twisted the neck of Pushpa which resulted in the fracture of the 5th cervical vertebra. With the fracture of vertebra and the bleeding injury of the carotid artery, Pushpa became limp and could not offer further resistence. She fell down on the floor in the space between the two cots and Balasaheb banged her face on the floor holding her hair and sitting astride on her back with his knees on the ground. The number of injuries is so enormous that no Lexicon need be consulted to find out whether inflicting of 73 injuries would constitute a "cruel" deed. The blood gushing from these wounds spells the word in red. Balasaheb took an undue advantage of the fact that Pushpa being his wife was in his custody. Little did Pushpa imagine that Balasaheb, who had invited her from Hausa's place a couple of days back would murder her in such a cruel and unusual manner. In the seamless web of human relationship, fights between the couples do occur and these are generally under closed doors. The tell-tale marks of 73 injuries are the only witnesses, but it is clear beyond peradventure, that in spite of the last ditch efforts put up by Pushpa in trying to ward off the blows of her assaulting husband, she could not save herself. It requires no hierophant to read the meaning of injuries on her person which spell out the offence of murder as defined in Thirdly of Section 300 of the Indian Penal Code.
42. Coming to the question of sentence, we feel that in view of the peculiar circumstances of the case, the extreme penalty of death is not called for and that sentence of imprisonment for life would meet the ends of justice.
43. In the result, Appeal No. 978 of 1981 filed by Balasaheb Ramrao Latkar is dismissed. Appeal No. 322 of 1982 filed by the State is allowed, and conviction under section 304, Part I of the Penal Code and the sentence of rigorous imprisonment far 8 years are set aside and the accused Balasaheb Ramrao Latkar is convicted Under Section 302 of the Penal Code and sentenced to suffer imprisonment for life.
44. In the view that we have taken, the question of enhancement does not arise. Rule, therefore, in Criminal Revision Application No. 82 of 1982, stands discharged.
45. Order accordingly.