Bombay High Court
Ashok Ganpati Shinde vs The State Of Maharashtra on 2 April, 2013
Bench: V.K. Tahilramani, P.D. Kode
1 apeal 203.08.doc
dss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.203 OF 2008
Ashok Ganpati Shinde
Kolhapur Central Prison, Kalamba
Dist. Kolhapur ..Appellant
Vs.
The State of Maharashtra ..Respondent
(Shirala Police Station, Dist. Sangli)ig
....
Mr.Shekhar K. Jagtap a/w. Shri. Abhishek A. Patil i/b.
J.Shekhar and Co. for the Appellant.
Mrs. M.M. Deshmukh, APP for the State.
....
CORAM : SMT. V.K. TAHILRAMANI &
SHRI. P.D. KODE, JJ.
DATED : APRIL 02, 2013
ORAL JUDGMENT [PER SHRI. KODE, P.D. J.] :-
The appeal is preferred against the judgement and order dated 24th August, 2005 passed by the learned Addl. Sessions Judge, Islampur, convicting the appellant for committing the murder of his wife Sakhubai on 4th June, 2004 at about 9.00 a.m. in his house at Sujayanagar, Kapari, Tal.Shirala, Dist. Sangli by inflicting Axe blow on her head and on said count sentencing him to suffer imprisonment for life.
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2. According to prosecution, the appellant alongwith father Ganpati, mother Sonabai, wife Sakhubai and PW5 son Prasad of aged 8 years were residing at Sujayanagar, Kapari. The parents of the appellant were cultivating the lands of brother-in-law Jagannath while the appellant was doing centering work. The quarrels were ensuing in between the couple on the count of Shakubai oftenly returning and staying at the parental home at Bahirewadi without informing to the appellant.
2.1 After staying for 4-5 days at the house of the parents, Sakhubai had returned on the day of incident. At about 9.00 a.m., the father of the appellant having left for supplying milk at Shirala Dairy and mother-in-law for treatment at Government Hospital, appellant, Sakhubai and son were only persons present in the house. One Ranjeet grandson of Maruti Nikam residing at Nikam Vasti about ½ Kilometer away from the house of the appellant came and informed that a phone call was received for Sakhubai from the house of her parent. The quarrel ensued in between the appellant and Sakhubai on the count of the appellant having desisted Sakhubai from going to receive the call. Sakhubai using abusive language had told the appellant that she would be going for receiving the call. The appellant sent PW5 Prasad for attending the call. Sakhubai by making quarrel attempted to proceed for receiving the call, the appellant was enraged and he took out Axe 2 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 3 apeal 203.08.doc hanged with door frame and gave a blow, which struck Sakhubai on head near the ear and she sustained bleeding injury and fell down.
As she cried the appellant gave another blow of said Axe. Sakhubai shouted and thereafter her movements stopped. The appellant threw the Axe and came out and sat in the shadow. The appellant thereafter went to Shirala Police Station and reported the matter.
2.2 On the basis of the information received, Crime No.31/2004 for the offence of murder was registered by PW7 PI Koli of Shirala Police Station. He took up the investigation and went to the spot of offence and found corpse of Sakhubai lying dead in pool of blood in the room. He drew Inquest panchanama (Exh.11) in presence of panch PW2 Sampatrao and one another and so also prepared spot panchanam (Exh.13) and seized the articles and sealed the same at the spot in presence of panch PW3 Sanjay Gaikwad and one another. PW7 forwarded the corpse of Sakhubai to Rural Hospital at Shirala for postmortem, which was carried out by Medical Officer R.K.G. Patki attached to said Hospital. The cause of death of deceased Sakhubai was given as "death due to cardio-respiratory arrest due to haemorrhagic shock due to carotid vessel rupture and polytrauma."
2.3 PW7 arrested the appellant and seized the bloodstained clothes on his person under panchanama Exh.21 and so also seized 3 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 4 apeal 203.08.doc bloodstained clothes on the person of deceased brought by the police constable from the Hospital after postmortem examination, under panchanama Exh.22 in presence of panch PW6 Babaso Patil and in presence of panch PW1 Hambirrao Madane. PW7 after recording statements and sending mudemaal articles seized for examination to Chemical Analyser and after receipt of C.A. Reports Exh.25 and 26, submitted charge-sheet against the appellant for the commission of murder of his wife in the court of J.M.F.C. at Shirala.
3. The appellant pleaded not guilty to the charge (Exh.2) framed against him for the offence of murder of his wife in the Court of Sessions, after the case was committed to the said Court.
4. The prosecution examined in all '7' witnesses at the trial i.e., the above referred witnesses and additionally PW4 Yashwant Rane, brother of deceased. The prosecution also placed reliance upon the documentary evidence, which was prepared during the course of investigation.
5. The defence of the appellant was that of total denial and false implication. The trial Court after appreciation of the prosecution evidence came to the conclusion that the prosecution has established various circumstances forming a formidable chain 4 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 5 apeal 203.08.doc leading to sole inference of the guilt of the appellant. In consonance with said conclusion arrived, the trial Court convicted and sentenced the appellant as narrated hereinabove.
6. By drawing our attention to various facets from the evidence of each of the witnesses both the sides made elaborate submissions. The learned defence counsel canvassed that the trial Court ignoring the fact that the appellant reported the death of his wife to the police and relying upon the evidence of child witness came to the conclusion of the circumstances established by the prosecution leading to sole inference of the guilt of the appellant. It was canvassed that the trial court manifestly erred in relying upon the evidence of child witness PW5 Prasad for coming to the conclusion of the prosecution having established the circumstances relied by the prosecution. It was urged that at the first place, the trial Court should have concluded all the such circumstances were not established by the prosecution. It was further canvassed that even accepting said circumstances as it is considering the same on the backdrop of the appellant having reported death of his wife to the police, the trial Court should not have come to the conclusion that said circumstances leads to sole inference of the guilt of the appellant. It was urged that the trial Court missed the possibility of the wife of the appellant being killed by somebody else other than the appellant. It was urged that the trial Court ought to have 5 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 6 apeal 203.08.doc acquitted the appellant or atleast should have given benefit of doubt to him. It was urged that the guilt of the appellant being not established, the appellant be acquitted or atleast be given benefit of doubt by allowing the appeal.
7. The learned counsel Mr. Shekhar Jagtap for the appellant alternatively urged that even accepting the prosecution case, it is abundantly clear that the incident was outcome of a sudden quarrel ensued in between the appellant and his wife. It was urged that the evidence also denotes that the appellant was provoked by the conduct of the wife of giving not attention to the affairs at her matrimonial home. It was urged that the evidence of PW5 denotes that the appellant in a heat of anger loosing self control has assaulted deceased and caused her injuries. It was urged that same also denotes that the incident has suddenly occurred without any pre-meditation on part of the appellant. It was urged that though the death has ensued due to the injuries caused, considering the nature of the injuries sustained, the appellant cannot be said to be entertaining intention of causing of death or entertaining intention of causing such bodily injury as is likely to cause death and as such the offence occurred at his hands did not transcend beyond the offence under section 304, Part-II of I.P.C. It was urged that the appeal preferred by the appellant be atleast allowed to said extent as the evidence also does not reveal that the appellant has acted in 6 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 7 apeal 203.08.doc undue cruel manner during the incident.
8. The learned APP Mrs. Deshmukh for the State supported the judgment by urging that the evidence of PW5 does not denote that he was tutored witness. It was urged hence no error was committed by the trial Court in accepting and relying upon his evidence inspiring confidence. It was urged that the circumstances established by the prosecution leads to sole inference of the guilt of the appellant and hypothesis of somebody else having killed the wife of the appellant, sounded by learned defence counsel is far fetched fanciful hypothesis not emerging out of the circumstances established due to proximity of the time within the events which had occurred and established through the evidence of PW5 and investigating Officer PW7. It was urged that thus there being no merit in the appeal, the same be dismissed.
8. Thoughtful considerations were given to the submissions advanced by both the sides and record of the case was carefully examined in order to ascertain the merit from the same.
9. At the first blush, it can be said that since there is no eye-
witnesses for the crime in-question and the case is rested upon the circumstantial evidence as per the settled legal position regarding such type of cases, we find it necessary to assess the prosecution 7 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 8 apeal 203.08.doc evidence to ascertain whether the circumstances relied by the trial Court, i.e., (1) Deceased having met with homicidal death;
(2) The appellant possessing the motive for commission of the crime;
(3) Deceased was last seen alive in the company of the appellant before PW5 went to attend the call at the house Nikam at Nikam Vasti (4) PW5 after return from Nikam Vasti, found his mother lying dead in the house with the injuries on her neck, bloodstained Axe lying besides her and nobody else present in the house.
(5) The appellant within half an hour of the occurrence of the incident has reported the ensuing death of his wife in his house to police (6) Finding of blood of the group of the deceased on the pant of the appellant and human blood on his shirt (7) Failure of the appellant to explain incriminating circumstances appearing against him in the prosecution evidence.
were duly established by the evidence adduced and thereafter to ascertain whether the said circumstances within themselves form a formidable chain leading to sole inference of the guilt of the appellant
10. In the said process, now firstly, taking into consideration the 1st circumstance of the deceased having met with homicidal death, apart from no serious dispute having been made on part of the appellant and on the contrary the submission canvassed sounding the theory of the deceased being killed by somebody else makes it unnecessary to embark upon the detail dilation about said 8 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 9 apeal 203.08.doc aspect. It can be added that the appellant had admitted the postmortem notes Exh.18. The reference to the said postmortem notes reveals as per the prosecution case of the corpse of the deceased was referred to Rural Hospital at Shirala and at the said hospital the autopsy was performed by Medical Officer Dr.K.G Patki. The perusal of said notes reveals that during the external examination, Dr. Patki had noticed following four injuries:
(1) Deep incised wound (transvers, edges regular) (circular) over back. Anteriorly slightly on left side above thyroid region of size 6 x 6 x 5 cm till cervical spine (deep). Carotic vessel and neck muscles - ruptured completely. Bleeding (TTP) (2) Incised wound right zygonative region of size 5x 2 x 2 cm, bone deep, bleeding edges regular (3) C.L.W. Over chin of size 3 x 1 x 1 cm bone deep, bleeding.
(4) C.L.W. Of size 3 x 1 x 1.5 cm muscle deep at right supraclavicular region at sternal end, bleeding.
It further reveals that in the opinion of the Doctor, the death was caused due to "cardiorespiratory arrest due to heamorrhagic shock due to carotid vessel rupture and polytrauma".
10.1 The said evidence and particularly the cause of death 9 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 10 apeal 203.08.doc given by the Doctor within itself and in-conjunction with the evidence of inquest panch PW2 Sampatrao Nalwade for inquest panchanama Exh.11 and spot panch PW3 Sanjay for spot panchanama (Exh.13) makes it abandantly clear regarding the injuries sustained by the deceased and the situation prevailing at the spot denoting herself having received said injuries due to the violence effected with her person. The evidence of PW5 Prasad also corroborates additionally the aforesaid evidence of PW2 and PW3 regarding the situation, which was noticed by him at the house of the appellant after he returned attending the call at the house of Maruti Nikam. Upon careful scrutiny of aforesaid evidence, with regard to the injuries noticed on the person of the deceased and the situation prevailing at the spot, we do not find anything elicited during the cross-examination of either PW2 or PW3 shattering their evidence regarding the matters respectively noted by them at the time of inquest panchanama and the spot panchanama. The evidence of both the said witnesses is well supported by the matters stated in the panchanamas to which they were party. Needless to add, the said entire evidence led by the prosecution inspiring confidence within themselves establishes the deceased having sustained injuries due to the violence to which she was subjected in the house of the appellant. Resultantly, the said evidence considered alongwith the opinion given by Doctor who had performed postmortem definitely leads to the conclusion as arrived 10 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 11 apeal 203.08.doc by the trial Court of the prosecution by the said evidence having established the circumstance under consideration of deceased having met with homicidal death.
11. Now before taking up the further circumstances established by the prosecution through the evidence of PW4 and PW5, one of them, i.e., PW5 being a child witness in light of the criticism advanced by the learned counsel for the appellant, we feel it appropriate to recapitulate the legal position regarding the evidence of such a witness pronounced by the apex Court.
12. In said context, the reference to the decision in case of State of Madhya Pradesh Vs. Ramesh and another, reported in (2011) 4 Supreme Court Cases 786, rightly pointed out by the learned APP, reveals that in the said case after considering the law prevailing regarding the evidence of such witnesses in para Nos.7 to 13, the Apex Court was pleased to observe in para no.14 to the effect"
"14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been 11 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 12 apeal 203.08.doc tutored, the court can reject his statement partly or fully. However, an inference as to whether child had been tutored or not, can be drawn form the contents of his deposition."
13. Now considering the evidence of PW4 Yashwant Rane, brother of the deceased, his evidence reveals that the appellant was assaulting physically to the deceased for petty reasons and thereby subjecting her to cruelty. It reveals that he had learnt said facts from the deceased on many occasions. It reveals that he has advised the appellant to treat his sister fairly, but the same was in vain. Without dilating about the further part of the evidence of PW4 regarding the events happened on the day in-question and referring the same at appropriate stage, we find that after scrutiny except bringing on record of PW4 of having not made any complain to the police regarding ill-treatment told to him by the deceased, nothing was brought on record for discarding the said claim staked by the PW4.
14. Considering the nature of the complaint, i.e. of wife against the husband and the marriage having taken place about 8 years back to the day of incident, we do not find it extremely difficult that merely on the said count the said evidence of PW4 can be brush aside. Needless to add that in our Society such a reluctance of the wife to complain against the husband in spite of herself subjected to cruelty is not unknown. At any rate, on the 12 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 13 apeal 203.08.doc basis of said evidence, it can be definitely said that the relationship between the husband and wife were strained is established by the said evidence. Having regard to the same, we do not find that any error committed by the trial Court in coming to the conclusion that by said unshattered evidence of PW4, the prosecution has established 2nd circumstance of the appellant possessing the motive for commission of the crime. In the same context, it can be added that existence of motive and sufficiency of motive being altogether different things such a conclusion is inevitable as the said evidence clearly denotes there being no cordial relationship prevailing in between the couple.
15. We are of such opinion as support to the same is found from the matters stated in the complaint Exh.20 excluding the inadmissible portion from the same; lodged by the appellant and brought on record by the prosecution through the evidence of PW7.
The reference to the said complaint amongst other in terms reveals that quarrels were ensuing in between the couple due to the habit of the deceased repeatedly going to the house of her parents in spite of the objection of the appellant. Amongst other it reveals that even on the day of incident, deceased has returned from the house of the parent after 4-5 days and immediately she had received a call in the morning hours from the house of parents. It also reveals that thereafter quarrel had ensued in between the couple after the 13 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 14 apeal 203.08.doc appellant had objected her for going to receive the call and sent PW5 for attending the call. The said matters being against the interest of the appellant and as such in law amounting to admission and duly proved by the prosecution through the evidence of P.W.7, definitely fortifies the conclusion arrived regarding the relationship in between the couple and the same affording a motive for the appellant for commission of the crime.
16. Now considering the evidence of PW5 at the glance of his deposition reveals that he has deposed in consonance with the prosecution case as revealed from Exh.20 and narrated hereinabove and particularly the part played by him in the episode. His evidence reveals that after receipt of information from Ranjeet about a call being received from Bairewadi-parental house of the deceased for his mother, the appellant had refused for attending the said call by the deceased. It reveals that there was a quarrel in between the deceased mother and father-appellant and he was asked to attend the call. It reveals that while attending the said call given by Rahul, son of his maternal uncle he had told about the quarrel ensued and asked him to call again by 11.00 a..m. It further reveals that he has returned to the house and then found that door of the house was closed and after opening he found that his mother was lying on the ground in a pool of blood with bleeding injuries on neck and Axe lying by the side of her body. It reveals that thereafter he had 14 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 15 apeal 203.08.doc rushed to the house of Kadam at which he had received a call and after some time police had arrived at the spot.
17. Now careful scrutiny of the answers elicited during the cross-examination reveals that except himself staying in the house of maternal uncle and giving him suggestions that he is deposing false, which were duly denied by him and any other significant material was brought on the record during the cross-examination.
He also denied suggestion given to him that his father was not at the house when the incident had taken place. Thus after scrutiny, we do not find any element of tutoring reveal from his evidence and so also his evidence containing any embellishment or improvement for not inspiring confidence. Such a being test given by the Apex Court in the decision of State V/s. Ramesh (supra), we are unable to find any fault with the trial court in accepting the evidence of PW5 inspiring confidence and acting upon it. WE are of such a opinion because we do not find any unnatural thing in PW5 staying at the house of his maternal uncle after his mother had died and father was in the custody of the police due to himself being arrested by PW7 on very day. We also find that the evidence of PW5 is also corroborated to the extent of the happening on the same day as deposed by PW4 and so also situation prevailing in the said house after the incident as established by the prosecution through the evidence of PW2 and PW3. We also find that the trial Court has 15 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 16 apeal 203.08.doc recorded the evidence of PW5 after asking him questions and after taking into consideration his ability to understand the questions and replying answers to it.
18. In the premises of the aforesaid, after acceptance of the evidence of PW5, it can be definitely said that by the said evidence the prosecution has established 3rd circumstance that deceased was last seen alive in the company of the appellant before PW5 went to attend the call and so also 4th circumstance of after return PW5 had found his mother lying dead in the house with the injuries on her neck, bloodstained Axe lying besides her and nobody else present in the house.
19. Now considering the evidence of PW7 PI Koli, it reveals that on the day of incident when he was incharge at Shirala Police Station the appellant had been to the police station and reported about the death of his wife and the quarrel having been ensued in between himself and wife on account of receiving of phone call. It reveals that thereafter he had recorded complaint Exh.20 given by the appellant. The glance at the said complaint reveals that the crime was registered at about 10.05 hours. After scrutiny, we do not find his evidence regarding aforesaid aspect is shattered during cross-examination. His evidence also reveals that other farm houses are situated at a distance of ½ k.m. from the house of the appellant.
16 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 17 apeal 203.08.doc In the said context, the reference to the complaint Exh.20, the house at which phone call was received was at a distance of ½ kilometer from the house of the appellant. Thus by the said evidence, it can be safely said that the prosecution has established 5th circumstance of the appellant within half an hour of the occurrence of the incident has reported the ensuing death of his wife in his house.
20. The reference to the relevant part of the evidence of PW7 reveals that during the course of investigation after visiting the spot he arrested the appellant and then he had seized bloodstained shirt and pant from the person of the appellant in presence of panch witnesses under panchanama Exh.21. It also reveals that in a similar manner he attached the clothes on the person of deceased brought by constable Tinmare by drawing panchanama Exh.22.
Though the prosecution has examined panch witnesses PW1 and PW6 in support of said case of the prosecution, both of them had not supported the prosecution. However, during the cross-
examination effected by the learned APP after obtaining leave from the Court, it was brought on record that the signatures on panchanama Exh.21 was that of PW1 and he had not signed on blank papers. It was also brought on record that PW1 admitted no paper is signed without going through the contents of the same.
Similarly, during the cross-examination of PW6 effected by the 17 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 18 apeal 203.08.doc learned APP after obtaining the leave from the Court, it was brought on record that on panchanama Exh.22 is bearing his signature as well as the slips attached to the relevant articles are bearing his signature. Thus considering the evidence of PW7, in light of the said admission secured during the cross-examination of the said panch witnesses assures the truthfulness of the claim of PW7 of himself having attached the bloodstained clothes on the person of the appellant as well as that of deceased by drawing said panchanamas.
21. The evidence of PW7 further reveals that he had sent said articles to C.A. and Exh.25 is received C.A. Report pertaining to the same. Similarly, Exh.26 reveals that blood of the appellant and that of the deceased was sent to C.A. by Medical Officer. C.A. Report Exh.26 reveals that the appellant is having blood of group 'B' while C.A. was not able to determine blood group of deceased. However, C.A. Report Exh.25 reveals that clothes of deceased were stained with blood of group 'AB' indicating that the blood group of deceased was 'AB'. The same C.A. Report also reveals that blood of group 'AB' was found upon the pant of the appellant and human blood on his shirt. C.A. was not able to determine the group of the blood, which was found on the shirt of the appellant. All the said evidence within itself also established the nexus of the appellant with the crime in-
question due to finding of the blood of the group of the deceased on 18 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 19 apeal 203.08.doc his pant and human blood on his shirt. Thus by the said evidence prosecution has established 6th circumstance against the appellant.
22. Now considering of the aforesaid six circumstances and the same within themselves showing that the death of wife of the appellant had taken place in his presence in his house and failure of the appellant to give any cogent explanation for the same leads to the conclusion that thereby the prosecution having established 7th circumstance of failure of the appellant to explain incriminating circumstances appearing against him in the prosecution case.
23. Now considering of the aforesaid '7' circumstances, we are unable to persuade ourselves that the same within themselves does not form a formidable chain of the appellant being author of the injuries caused to the deceased on the day of incident.
We are of such view as the evidence reveals that phone call was received at about 9.00 a.m., quarrel has ensued and thereafter PW5 was sent to attend the phone call at the Vasti of Nikam about ½ k.m. away from the house of the appellant. Now considering the talks ensued while attending said call, the time required by PW5 for attending and returning to his house clearly denotes that he must have returned back within 15 to 20 minutes. The same leads to inference that within short duration after leaving the house, his 19 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 20 apeal 203.08.doc mother alive was found dead and his father was not in the house.
The said proximity of time within the events occurred leads to the most reasonable conclusion of the appellant being author of the said injuries.
24. It is indeed true that the learned defence counsel during submission sounded a possibility of even the appellant after the quarrel leaving the said house, thereafter somebody else arriving at said house and committed such a heinous act or even such a heinous act being committed during presence of the appellant in the house and thereafter himself having gone to the police station for reporting the matter. It is indeed true that academically such a possibility can be said to be existing from the evidence which has surfaced at the trial, however, in our considered opinion, the same is a far fetching possibility as rightly canvassed by the learned APP.
We are of such a view because in event of appellant having left the house before occurrence of the incident, then it is highly improbable that he would have immediately received a knowledge of the death of his wife, which was immediately reported by him to the police. Similarly, even considering other possibility of somebody else having assaulted the wife of the appellant in his presence, such a possibility also appears to be bleak as complaint Exh.20 lodged by him does not reveal any such happenings. In the same context, the reference to the decision given by the apex Court in a case Apex 20 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 21 apeal 203.08.doc Court in the decision in in the case of State of U.P., Appellant Vs. Ashok Kumar Srivastava, Respondent reported in AIR 1992, SC 840 in paragraph no.9 having observed to the effect :
"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise..........."
(emphasis supplied)
25. As a result of the aforesaid discussion, we are unable to find any fault with the trial Court in arriving at the conclusion of the appellant being author of the injuries caused to his wife and one of which has resulted into her death.
26. Now considering the moot question in light of the submission advanced by the learned counsel for the appellant regarding the offence occurred at the hands of the appellant, we 21 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 22 apeal 203.08.doc find that the said submission cannot be said to be devoid of merit.
We are of such opinion that because the evidence of PW5 as well as the matters from the complaint Exh.20 reveals that ensuing of quarrel on the day of incident after receipt of phone call from the house of the parents of the deceased, the evidence of PW5 has remained unshattered regarding occurrence of quarrels. The said evidence itself denotes that the said phone call was unexpectedly received on said day. The same denotes the quarrel having occurred not due to any premeditation or a plan made by the appellant. It is the prosecution case that during said quarrel deceased has used singular unrespected words to the appellant.
The said aspect considered on the backdrop of the relationship in between the couple clearly reveals that the appellant was fed-up with repeated occurrence of such events. It also reveals that the said phone call was received inspite of the fact that the deceased has returned to the house immediately after deceased has returned to the house of the appellant after 4-5 days of the said facts clearly denotes that the acts occurred on the relevant day was outcome of a sudden quarrel ensued in between the couple and during the said quarrel the appellant in a heat of anger used the axe for assaulting deceased. Now taking into consideration the number of injuries of the corpse of the deceased and nature of the said injuries also make it difficult to believe that the appellant had acted in a undue cruel or unusual manner. The aforesaid inference is further fortified from 22 of 24 ::: Downloaded on - 06/01/2014 03:31:34 ::: 23 apeal 203.08.doc the facts of the appellant thereafter having not fled away and reported the matters to the police. All the said facets in our opinion justifies the submission of the learned counsel for the appellant that the case of the appellant would be covered by exception No.4 of Section 300 of I.P.C. Needles to add that the same would denote that offence occurred at the hands of the appellant cannot be covered within the four clauses of Section 300 of I.P.C. and would be covered by the provisions of Section 304, Part-I of I.P.C. We are of such a opinion as we are unable to agree with the submission canvassed that the act occurred on part of the appellant would be covered by the provisions of Section 304, Part-II of I.P.C. We are of such a view as user of weapon like Axe for causing an injury on vital part like a neck would definitely reflected the intention of the appellant being of causing an injury likely to cause a death.
27. In the premises of aforesaid, we quash and set aside the conviction as well as the sentence imposed upon the appellant for the offence of murder and alter the same by holding the appellant guilty for the offence under Section 304, Part-I of I.P.C. and sentence him to suffer rigorous imprisonment for 10 years with a fine of Rs.500/- and in defualt of payment of fine, to suffer further rigorous imprisonment for one month, by partly allowing the appeal to such extent.
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28. The appellant would be entitled for set off for the period undergone by him in custody in accordance with law.
29. The appeal stands disposed of on aforesaid terms.
[ P. D. KODE, J.] [ SMT. V.K.TAHILRAMANI, J.]
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