Bombay High Court
Sangita Ramrao Rathod vs State Of Maharashtra Thr. Police ... on 11 December, 2020
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 6 OF 2017
AND
CRIMINAL APPEAL NO. 142 OF 2017
CRIMINAL APPEAL NO. 6 OF 2017
Ambadas Kisan Gadekar,
Aged about 46 years,
R/o. Jaipur, Tah. & Dist. Washim,
(In Washim Jail) . . . APPELLANT
...V E R S U S..
State of Maharashtra through
Police Station Officer, P.S. Ansing,
Dist. Washim . . . RESPONDENT
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Shri S. D. Chande, Advocate for appellant.
Shri T. A. Mirza, A.P.P. for respondent/State.
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CRIMINAL APPEAL NO. 142 OF 2017
Sangita Ramrao Rathod,
Aged about 34 years, Occ. Housewife,
R/o. Omkareshwar Vidyalaya,
At Post Jaipur, Tah. Washim,
Dist. Washim . . . APPELLANT
...V E R S U S..
1. State of Maharashtra through
its Police Station Officer,
Police Station Ansing, Dist. Washim.
2. Dutta Kisan Gadekar,
Age 39 years, Occ. Nil
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3. Sachin Shrirang Dawane,
Age about 21 years, Occ. Nil,
R/o. Nimbalwadi,
Tah. & Dist. Washim.
4. Sau. Sunita Ambadas Gadekar,
Age about 40 years, Occ. Nil,
Respondent No. 2 and 4 R/o. Jaipur,
Tah. & Dist. Washim. . . . RESPONDENTS
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Shri Gajanan Kale, Advocate h/f. Shri Jaykumar Sakharam Wankhede ,
Advocate for appellant.
Shri T. A. Mirza, A.P.P. for respondent no. 1/State.
Shri R. M. Daga, Advocate for respondent no. 2.
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CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED :- 11.12.2020
JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. Since both these appeals arise out of the same set of facts and common judgment, we are disposing them of by common judgment.
2. Through these two appeals, the appellant in Criminal Appeal No. 6/2017 challenges the judgment and order dated 15.12.2016 passed by the Sessions Judge, Washim in Sessions Case No. 9/2016, whereby the appellant has been convicted and sentenced in the manner stated hereinafter:-
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(i) Under Section 302 of the Indian Penal Code (IPC) to undergo imprisonment for life and to pay a fine of ₹ 10,000/-, in 10,000/-, in default to suffer rigorous imprisonment for 6 months.
(ii) Under Section 506 of the IPC to undergo one year rigorous imprisonment and to pay fine of ₹ 10,000/-, in 1000/-, in default to undergo 3 months rigorous imprisonment.
3. The victim (wife of the deceased) has filed Criminal Appeal No. 142/2017, challenging acquittal of the accused nos. 2 to 4 for offence punishable under Section 302 of the IPC.
4. Shortly stated the prosecution case runs as under:-
The deceased Ramrao Rathod and the accused are resident of Village Jaipur, Taluka and Dist. Washim. The accused were being prosecuted in other criminal case on the information of deceased- Ramrao. On 6.10.2015, the accused with their juvenile son, in furtherance of their common intention, went to the house of deceased- Ramrao and asked him to settle the case. Deceased-Ramrao told them that after receipt of Court notice, he will withdraw the case against the accused but, on that the accused no. 1 assaulted Ramrao and gave blow with knife, which was carried by the accused no.1. The other accused also assaulted, abused and threatened to kill the accused no. 1. The deceased was seriously injured. He was taken to Government Hospital ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 ::: 4 cr-appeal-6-142-17j.odt at Ansing and then to Washim but, he was not admitted there. His condition being serious, he was advised to be transferred to Akola Hospital and on the said advice his wife, informant, and others took him to local private hospital of Dr. Pande, where he was admitted and surgery was performed. Wife of the deceased, in the night, lodged report with Ansing police and the offence was registered. On the next day the statement of the deceased was recorded by the Police, while he was in hospital. Despite treatment and surgery, the deceased was not showing improvement therefore, doctor advised him to be shifted to Government Hospital, Yavatmal. The deceased was taken there but, in spite of treatment, he died.
5. Initially the offences were registered under Section 143, 147, 148, 149, 324, 504 and 506 of the IPC but, thereafter on the report of Dr. Pandey and based on investigation, the offences under Section 307 and 452 of the IPC where added. After the death of Ramrao, the offence under Section 307 of the IPC was altered to Section 302 of the IPC. The statement of witnesses were recorded by the Investigating Officer and the accused were arrested. On the basis of statement of the accused nos. 1 and 2, weapons used in the crime were discovered. Police recorded statement of the accused and seizure panchnama was drawn in presence of panch-witness. Police also seized clothes of the accused and the deceased. Blood samples of the accused and the deceased were ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 :::
5 cr-appeal-6-142-17j.odt taken and sent to Chemical Analyst. Police also recorded inquest of dead body and got autopsy done to know the cause of death. After completion of the investigation, Police filed charge-sheet it in the Court of Judicial Magistrate First Class, Washim. The case was thereafter committed to the Session Judge, Washim as the offence under Section 302 of the IPC is exclusively triable by the Court of Sessions.
6. Charges were framed against the accused, which were explained to them in vernacular, for which they pleaded not guilty. The defense of the accused was of denial.
7. The learned Trial Judge believed the evidence adduced by the prosecution and convicted the accused no. 1, in the manner stated in paragraph no. 2 above and acquitted rest of the accused. Hence both these appeals.
8. We have heard learned Advocate for the parties and perused entire material on the record. In our view, both these appeals deserves to be dismissed. We have no reservations in observing that the conviction and sentence of the appellant - accused no. 1 suffer from no infirmity.
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9. Shri S. D. Chande, learned Advocate for the appellant- accused no. 1 submitted that there is no corroboration of any of the witness by medical evidence. The eye-witnesses are interested witnesses, therefore their evidence is not reliable. There is no independent witness, who has seen the incident. The report of Chemical Analyst is not supporting the case of prosecution and there is reasonable doubt in respect of the case of prosecution therefore, benefit of said doubt be extended to the accused no. 1. Alternative submission is made that medical evidence shows that the deceased suffered only one blow and was alive for five days after the incident therefore, he submitted that at the most, the appellant can be punished under Part-II of Section 304 of the IPC.
10. Though the appeals were part-heard, none appeared for the victim in Criminal Appeal No. 142/2017. After we heard Shri T.A. Mirza, learned A.P.P. for the respondent No. 1/State and Shri R.M. Daga, learned Advocate for the responded no. 2/accused no. 2 and pronounced operative part that both the appeals stand dismissed, Shri Gajanan Kale, learned Advocate appeared before us and submitted that Shri Jaykumar Sakharam Wankhede, Advocate, who represents the victim in Criminal Appeal No. 142/2017 is unable to attend today. As the request was made after we pronounced the operative part of the judgment, it was not possible to consider the request for adjournment. ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 :::
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11. Shri R.M. Daga, learned Advocate appearing for accused no. 2 submitted that the knife recovered at the instance of the accused no. 2 was marked as Article-A5. Dr. Pande (PW9), in his evidence stated that the injuries on the person of deceased were not possible by the knife at Article-A5 and it must have been caused by Article-A4 -knife, which was recovered from the accused no.1. He invited our attention to cross- examination of Dr. Pande (PW9), who admitted that the knife recovered from the accused no. 2 was having blunt tip. The wound on the body of the deceased was not possible by such knife. He invited our attention to the evidence of defence witness no. 2- Vinod, defence witness no. 3- Vijaykumar and submitted that from the material placed on record by the accused no. 2, it is proved beyond doubt that the accused no. 2 was not present on the spot of incidence.
12. Shri T. A. Mirza, learned A.P.P., invited our attention to the testimony of eyewitness Sangita (PW1) and Panabai (PW5), medical evidence of Dr. Pande (PW9). He submitted that eyewitnesses have stated the incident in similar manner, which is supported by medical evidence. Therefore, the learned Trial Judge has rightly convicted the accused no. 1 for offence punishable under Section 302 and 506 of the IPC. He submitted that the evidence of the accused no. 2 to prove alibi is not sufficient to absolve the accused no. 2 and the learned Trial Judge was not justified in acquitting the accused nos. 2 to 4. ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 :::
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13. As we have mentioned earlier, two eye-witnesses namely Sangita (PW1) and Panabai (PW5) were examined by the prosecution. Both Sangita (PW1) and Panabai (PW5) gave evidence in respect of assault on the deceased. In short Sangita (PW1) and Panabai (PW5) stated that there was enmity between deceased-Ramrao and the accused, as the deceased had filed criminal complaint against the accused. The evidence of Sangita (PW1) and Panabai (PW5) shows that on the date and time of the incident, they were sitting inside their house, the accused no.1 came inside house by kicking on the half closed door and other accused followed him, accused no.1 questioned deceased as to why he was not compromising the case pending in the Court. The deceased replied that he would consider it after receipt of notice of the Court. Accused no. 2 said why he was not compromising the case and he will take life of the deceased. The accused no. 1 gave blow of knife in the abdomen of the deceased. The accused no. 2 also gave blow of knife on the abdomen itself, whereas other accused caught the deceased. Sangita (PW1) and Panabai (PW5) tried to intervene but, the accused nos. 3 and 4 fell them on the ground and beat them.
14. The evidence of Sangita (PW1) and Panabai (PW5) shows that accused no. 1 was armed with knife, before he entered house of the deceased. We have examined the evidence of both the eyewitness and find it to be implicitly truthful. The manner of assault as furnished by ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 ::: 9 cr-appeal-6-142-17j.odt Sangita (PW1) and Panabai (PW5), on the deceased is corroborated by medical evidence. Dr. Rajendra Pandey is PW9. His testimony is consistent with his certificate. He narrated details of external and internal injuries, which he found on the body of deceased- Ramrao. In his opinion, the injuries caused to the deceased where sufficient to cause his death. The injury report by Dr. Pandey (PW9) at Exh. 62 is as under :-
"External Injury :-
(i) Stab injury Epigastric Region Midline vertically placed with prolapsed of stomach- 3.5 cm in length.
(ii) Stab injury over region lateral lumber region horizontally placed 3.5 cm in length with active bleeding.
Internal Injury :-
(i) 2.5 cm. sharp cut injury lobe of liver on anterior and interior surface .
(ii) stomach perforation on 3.5 cm on anterior wall.
(iii) perforation IInd part of deuodenum 2.5 cm in length.
(iv) perforation 4th Part of deuodenum 3.5 cm in length.
(v) total transection of ascending colon."
15. It is also necessary to consider the submission of learned Advocate for the appellant that the ocular account, which is the foundation of conviction of the appellant comprises of testimony of two extremely interested witnesses, namely Sangita (PW1) and Panabai (PW5), who are wife and mother of the deceased respectively and hence, it is unworthy of acceptance. Way back in 1965 in the case of ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 :::
10 cr-appeal-6-142-17j.odt Masalti Vs. State of Uttar Pradesh, reported in (1965) AIR (SC) 202 , the Hon'ble Supreme Court has held that the mere circumstance that witnesses are interested would only make the Court to evaluate their evidence with caution, and not mechanically reject it. We have exercised the necessary caution in evaluating the testimony of two eye- witnesses and we find it implicitly truthful.
16. We find that the statements of Sangita (PW1) and Panabai (PW5) are sufficient to fix the involvement of the appellant in the crime. After all, the time honored rule of appreciation of evidence is that evidence should be judged and not counted. It should be borne in mind that Section 134 of the Indian Evidence Act, 1872 provides that "no particular number of witnesses shall in any case shall be required for proof of any fact." The provisions contained in Section 134 of the Indian Evidence Act are founded on the principle that evidence has to be weighed and not counted. It should be remembered that plurality of evidence is only a rule of prudence and not an inflexible requirement of law. In view of the provisions contained in Section 134 of the Indian Evidence Act, the testimony of a solitary witness is sufficient to convict an accused. It is true that it is not an inflexible rule of appreciation of evidence that the evidence of an independent witness has to be accepted as gospel truth but, the time-honored norm of appreciating evidence is that unless there are some intrinsic improbabilities or some ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 ::: 11 cr-appeal-6-142-17j.odt glaring infirmities in the evidence of an independent witness, which militate against the core of the prosecution case, the same should be accepted by Courts. Such an approach is founded on the principle that Courts assess evidence on common sense and probabilities and once they find the evidence of a witness to be in tune with probabilities, they are loathe to disbelieve him unless there is some patent infirmity in his evidence which to repeat, militates against the core of the prosecution case. This is not the case here.
17. For the said reasons, in our view, the Trial Court correctly recorded the finding as regards the involvement of the appellant in the incident. The conviction of the appellant therefore, does not call for any interference.
18. This leaves us with the question namely the nature of the offence. Shri Chande, learned Advocate for the appellant strenuously urged that the appellant inflicted solitary knife blow on the deceased, the offence would therefore, fall within the ambit of Section 304, Part-II of the IPC. Shri T. A. Mirza, learned A.P.P. strenuously urged that the offence would fall squarely within four corners of Third Clause of Section 300 of the IPC. Shri T. A. Mirza, learned A.P.P. submitted that this is not the case of sudden quarrel. There was one blow on the abdomen of the deceased, which was a deep incised wound on ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 ::: 12 cr-appeal-6-142-17j.odt epigastric region midline vertically placed, prolapse of stomach 3.5 cm in length and another over lateral lumbar region horizontally placed, 3.5 cm in length with active bleeding, which resulted in death of the deceased. Since both the eye-witnesses have categorically stated that the appellant was armed with knife when he forcibly entered the house of deceased and inflicted the blow on the abdomen of deceased, he had requisite intention to cause death of the deceased in terms of Third clause of Section 300 of the IPC. In Shri Mirza's contention, Third clause of Section 300 of the IPC would be attracted because the appellant inflicted the injury intentionally, which in the opinion of Dr. Pande (PW9) was sufficient in the ordinary course of nature to cause death.
19. The Hon'ble Supreme Court in the oft-referred decision of Virsa Singh Vs. State of Punjab, reported in (1958) AIR (SC) 465, has held that for the application of Third clause of Section 300 of the IPC, it is essential that there should be intention to inflict the external injury and the injury inflicted should be sufficient in ordinary course of nature to cause death.
20. The intention to cause death as contemplated by Third clause of Section 300 of the IPC can be gathered from following factors:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was
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picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was
any premeditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and
if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
21. Coming back to the facts of the present case, it can be conclusively said that act was with premeditation, as the accused was already carrying knife with him. The knife was not taken from the spot. There was no fight between the accused and the deceased before the accused assaulted the deceased. The eye-witnesses have stated that the accused had asked the deceased about pending case and thereafter had assaulted him. From the evidence on record, it cannot be said that act was committed in the heat of passion or upon sudden quarrel.
22. The other circumstances to prove intention as contemplated by Section 300 of the IPC are that the accused was carrying knife, which ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 ::: 14 cr-appeal-6-142-17j.odt at times is deadly weapon. The accused was carrying the knife before the incident. The blow was on the abdomen of the deceased, which is a vital part of the body. There is evidence of prior enmity between the accused and the deceased. There was no sudden and grave provocation. Medical Expert -Dr. Pande (PW9) has categorically stated that the said injury was sufficient in ordinary course of nature to cause death. The age of deceased was 34 years and age of the accused was 46 years on the date of incident.
23. Therefore, we cannot accede to the submission that the offence would fall within the four corners of Section 304 Part-II of the IPC.
24. The next question is whether the learned Trial Judge was justified in acquitting accused nos. 2 to 4. Sangita (PW1) and Panabai (PW5) have attributed specific role to the accused no. 2 that accused no. 2 gave knife blow in the abdomen of deceased-Ramrao. The statement of Sangita (PW1) and Panabai (PW5) are not supported by medical evidence. Dr.Pande (PW9) specifically ruled out injury by knife recovered from accused no.2. The learned Trial Judge has observed that the knife recovered from the accused no.2 i.e. Article-A5, appears to be new and not used. There were no blood stains on the knife recovered from the accused no.2. Dr. Pandey (PW9) stated that the stab wound ::: Uploaded on - 07/01/2021 ::: Downloaded on - 10/02/2021 00:06:52 ::: 15 cr-appeal-6-142-17j.odt must have been caused by the same knife. Therefore, to the extent of role of the accused no.2, the testimony of Sangita (PW1) and Panabai (PW5) does not inspire confidence. In the First Information Report, no role is attributed to the accused no. 2.
25. Having considered the circumstances mentioned above, we are of the opinion that the Trial Court, after considering entire material, has rightly acquitted the accused no.2. There are no substantial or compelling reasons to interfere in this appeal, as the view taken by the Trial Court is perfectly legal. Accordingly, we do not find any illegality or infirmity in the judgment and order of the Trial Court warranting interference to the extent of acquitting accused nos. 2 to 4 .
26. In the result, we find no merit in both the appeals and dismiss the same. The appellant in Criminal Appeal no. 6/2017 is in jail and shall undergo the sentence awarded to him.
Bail bonds of respondent/accused nos. 2 to 4 stand cancelled. Muddemal Property be disposed of as per directions of the Sessions Judge, Washim.
JUDGE JUDGE
RR Jaiswal
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