Bombay High Court
Prakash S/O Parshu Uikey (In Jail) vs State Of Maharashtra (Through P.S.O. ... on 11 July, 2016
Author: B.R.Gavai
Bench: B. R. Gavai, V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.401 OF 2014
Prakash s/o. Parshu Uikey,
Aged 40 years, Occ. Labour,
r/o. Tq. Parshioni, District
Nagpur (Appellant is in
Central Jail, Nagpur). .......... APPELLANT
// VERSUS //
The State of Maharashtra,
Through P.S.O. Parshioni,
Nagpur. .......... RESPONDENT
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None for the Appellant.
Mr.T.A.Mirza, A.P.P. for the Respondent/State.
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CORAM : B. R. GAVAI &
V. M. DESHPANDE, JJ.
DATE : 11.7.2016.
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ORAL JUDGMENT (Per B.R.Gavai, J) :
1. Being aggrieved by the Judgment and Order passed by the learned Sessions Judge, Nagpur in Sessions Trial No.31 of 2012, dt.4.2.2013 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/-; in default to suffer rigorous imprisonment for one month, the appellant has approached this Court.
2. The prosecution case, as could be gathered from the material placed on record, is thus :
The appellant is husband of deceased Seeta. They were blessed with one son and one daughter who are taking education in Ashram School. It is the prosecution case that, initially the relations between the appellant and deceased Seeta were cordial. However, subsequently, there used to be differences between them on trivial grounds. It the prosecution case that the appellant used to ill-treat the deceased. However, the deceased, with the hope that the behavior of the appellant would improve and in the interest of children, continued with the relationship with the appellant. On ::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 08:56:30 :::
3 apeal401.14.odt 8.10.2011, a quarrel took place between the deceased and the appellant on the ground that the deceased had not cooked the food properly and hence, the accused assaulted her. Some villagers tried to rescue the deceased. However, the accused tried to assault them.
In the morning, on 9.10.2011, the villagers came to know about death of deceased and the matter was reported to Police Patil. As such, Dhondba Ramaji Kangali (PW-1), Police Patil of village Kolitmara lodged oral report below Exh.17 with Police Station, Parshioni. On the basis of said oral report, Crime No.109 of 2011 came to be registered vide First Information Report below Exh.18.
After registration of the F.I.R., investigation was set into motion. At the conclusion of investigation, the charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Parshioni. Since the case was exclusively triable by the learned Sessions Judge, the same came to be committed to the Sessions Court. The learned Sessions Judge framed the Charge below Exh.3. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence, as aforesaid. Being aggrieved thereby, the present appeal.
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3. Since none appeared for the appellant, in view of the following observations of the Hon'ble Apex Court in the case of K.S.Panduranga .vs. State of Karnataka reported in 2013 ALL MR (Cri) 1485 (S.C.), we have taken up the appeal for hearing.
" It is not obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of the accused failing which the judgment rendered by the High Court would be absolutely unsustainable. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits without the presence of the counsel does not deserve acceptance. "
4. We have scrutinized the evidence on record with the assistance of the learned A.P.P.
5. Mr.T.A.Mirza, learned A.P.P. submits that the learned trial Judge, upon appreciation of evidence, rightly recorded the ::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 08:56:30 ::: 5 apeal401.14.odt finding of fact as against the present appellant. The learned A.P.P. submits that the view taken by the learned trial Judge warrants no interference and as such, the appeal is liable to be dismissed.
6. Dhondba Ramaji Kangali (PW-1) was the Police Patil of village Kolitmara at the relevant time. He states in his evidence that, in the morning of 9.10.2011, female members of the village were chit chatting that Seeta died on account of beating by her husband.
He visited the spot where dead body of Seeta was lying. He also witnessed that dead body of Seeta was lying on cot and bleeding injury was there on her head and her left hand was broken. On his query with the accused, who was standing near Seeta, he replied that as Seeta did not cook the food properly nor serve them, he made an attack upon her by means of a stick. He further states that he reported the matter on phone to Police Station, Parshioni as well as parents of Seeta. The witness has been thoroughly cross-examined.
However, nothing damaging has come in his evidence. His evidence is corroborated by oral report below Exh.17.
7. From the evidence of Dhondba Ramaji Kangali (PW-1) thus, it could be seen that voluntary extra-judicial confession has ::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 08:56:30 ::: 6 apeal401.14.odt been given to the said witness by the appellant that he had attacked the deceased by means of stick since she did not cook food nor serve them. It could be seen that there was no coercion or compulsion made to the accused to make extra-judicial confession to this witness.
However, we find that it will be appropriate to find corroboration to the evidence of extra-judicial confession.
8. Meerabai Wasudeo Kodwate (PW-3) is the mother of deceased. She states that, on the day of incident, she received a telephonic call from Dhondba Kangali (PW-1) stating that their daughter had died and they were called to the house of accused. She also states regarding extra-judicial confession given by the accused/appellant that since Seeta had not cooked the food nor served them, he made an attack upon her.
9. Devidas Harilal Uikey (PW-4) states in his evidence that he had gone to purchase grocery items at village Kolitmara. While returning, he witnessed that there was a quarrel going on amongst Seeta and the accused in their house. He also witnessed that the accused had made an attack upon Seeta on her head and hand by means of stick. He and Suka went to pacify the accused, but instead ::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 08:56:30 ::: 7 apeal401.14.odt of considering their request, he followed them along with stick for making an attack upon them. The said witness is an independent witness. It could thus be seen that the extra-judicial confession given to Dhondba Kangali (PW-1) and Meerabai Kodwate (PW-3) is corroborated by the evidence of Devidas Ukey (PW-4).
10. It could further be seen from the evidence of Vitthal Govindrao Dakhane (PW-2) that the clothes worn by the accused were seized from his person. It is further to be noted that the stick which was used was also recovered and seized on the memorandum of the accused under Section 27 of the Indian Evidence Act. The clothes seized from the accused and the weapon i.e. stick have been found to have blood on them. The said circumstance which is against the appellant has not been explained by him.
11. In that view of the matter, we find that no interference is warranted with the finding of the learned trial Judge that it is the present appellant who is an author of the crime in question.
12. That leaves us with the consideration of the next question as to whether conviction u/s.302 of the Indian Penal Code ::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 08:56:30 ::: 8 apeal401.14.odt needs to be maintained or altered to lower offence. From the evidence of eye witnesses as well as the extra-judicial confession given to Dhondba Kangali (PW-1) and Meerabai Kodwate (PW-3), it would reveal that the incident is an outcome of a quarrel between the accused and the deceased on account of the deceased not preparing food properly and serving them. It is to be noted that the weapon in commission of the crime used was a stick which is normally available in every house in the village. It could thus be seen that the possibility of the accused beating the deceased with stick, which is readily available, as an outcome of the quarrel between them on account of the deceased not cooking the food properly cannot be ruled out. From the nature of injuries and the weapon used, it cannot be said that the deceased had an intention to cause death of the deceased.
13. In that view of the matter, we find that the accused would be entitled to benefit of doubt. The present case would not fall under Section 302 of the Indian Penal Code and it would rather fall under Part II of Section 304 of the Indian Penal Code. The appeal is, therefore, partly allowed.
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For the said offence, the appellant is sentenced to suffer rigorous imprisonment for seven years.
Rest of the order including the fine amount is maintained.
ig JUDGE JUDGE
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CERTIFICATE
I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.
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