Vs. State of Maharashtra  INSC 1220 (15 July 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1233 OF 2009 (Arising out of S.L.P.
(Criminal) No. 5482 of 2007) Raj Kumar ... Appellant Versus State of
Maharashtra ... Respondent 2
The appellant has challenged judgment dated September 25, 2006,
rendered by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
Criminal Appeal No. 230 of 2002 by which decision dated February 21, 2002,
passed by the learned 2nd Additional Sessions Judge, Yavatmal in Sessions Trial
No. 108 of 1995 convicting him for the offences punishable under Sections 302
and 498A IPC and sentencing him to suffer R.I. for life and fine of Rs.500/- in
default imprisonment for one month for commission of offence punishable under
Section 302 as well as R.I. for one year and fine of Rs.500/- in default
imprisonment for one month for commission of offence punishable under Section
498A, is confirmed.
From the record of the case following facts emerge. The appellant
was married to deceased Pramila.
incident in question took place on November 12, 1994. During the subsistence of
marriage the deceased gave birth to a boy named Sangam. The appellant used to
ill-treat the deceased. Therefore, her brother Ishwar Sambhaji Kahire brought
her to Village Belora. A compromise took place and, therefore, the deceased was
sent to her matrimonial home. However, thereafter also the appellant continued
to ill-treat the deceased.
Therefore, her brother again brought her back to Village Belora.
As the deceased had no means to sustain herself and her son, she had filed
proceedings under Section 125 of the Code of Criminal Procedure, 1973 for
obtaining maintenance from the appellant. The brother of the deceased took a
room on rent for the deceased and her son at Wani belonging to one Dadaji
Shankar Ganfade. The deceased and her son aged four years were residing in the
said rented room and the boy was 4 taking education. After about one and a half
months the appellant started visiting the deceased and pressurizing her to
withdraw the proceedings initiated for getting maintenance.
November 11, 1994, the appellant went to the room of the deceased in the
evening time from his village Lalguda and asked the deceased to withdraw the
maintenance proceedings. However, as the deceased had no means to maintain herself
and her son, she refused to withdraw the proceedings. Again on November 12,
1994 at about 4.00 A.M. in the morning the appellant went to the room of the
deceased. At that time the deceased and her son Sangam were sleeping. The
appellant came there under the influence of liquor. On door being knocked by
the appellant, the deceased opened the door and that is how the appellant
entered the room occupied by the deceased. On entering the room the appellant
pressed the neck of the deceased but the deceased got herself released from the
clutches of the appellant.
Thereafter, the appellant took up an iron Polpat, i.e., Stone
Rolling Pad and inflicted a blow on the head of the deceased. Because of the
injury sustained by her, the deceased started bleeding. The appellant took some
amount lying in the room and ran away. The son of the deceased started weeping
loudly. His cries attracted the attention of the landlord Dadaji Shankar
turn woke up his wife and other tenants and rushed to the room occupied by the
deceased. On entering the room, he found that the deceased was lying injured
seriously. On enquiry being made, the deceased told him and other tenants that
as she had refused to withdraw the maintenance proceedings, her husband had
inflicted blow on her head with a stick. The landlord of the house and other
tenants immediately shifted the deceased to Wani Hospital.
Medical Officer, who was in-charge of Rural Hospital, Wani, sent an intimation
to the Police Station, Wani at about 5.00 A.M. that one woman named Pramila 6
was admitted in the hospital in an injured condition.
P.S.O., Wani Police Station, sent a requisition to the Executive Magistrate for
recording dying declaration of the deceased in the very morning itself. On
receipt of the requisition, the Executive Magistrate went to the Rural
Hospital, Wani and recorded the dying declaration of the deceased at about 6.30
A.M. The P.S.O., Wani Police Station also directed Head Constable Ashok Dudhane
to go to Rural Hospital, Wani, and record the dying declaration of the
deceased. Accordingly the Head Constable went to the hospital and recorded the
dying declaration of the deceased. After going through the contents of the
dying declaration the Head Constable himself became the first informant and
filed his complaint. On the basis of the First Information Report lodged by the
Head Constable Ashok Dudhane the P.S.O., Wani Police Station registered crime
No. 195 of 1994 for the offence punishable under Section 324 IPC against the
appellant. Head Constable Ashok Dudhane 7 issued a letter to the Medical
Officer, in-charge of Rural Hospital, Wani for medical examination of the
deceased and accordingly the deceased was examined by the Medical Officer.
However, the condition of the deceased started deteriorating. Therefore, she
was referred to Chandrapur Hospital from where she was referred to Government
Medical College and Hospital at Nagpur. On learning that her sister was
admitted to Nagpur Hospital with serious injuries, her brother Ishwar Sambhaji
Kahire went to the said hospital where the deceased made oral dying declaration
before him that the appellant had beaten her by means of stick as she had
refused to accede to his pressure tactics to withdraw the maintenance
Investigating Officer prepared spot panchnama and seized iron Polpat used in
the commission of crime.
It may be
mentioned that the deceased had referred to assault on her with stick because
she was lying on bed and could not have seen or identified the weapon when 8
assaulted. Blood stained chadar from the spot was also attached. The
Investigating Officer recorded statements of those persons, who were found to
be conversant with the facts of the case. In spite of treatment given to the
deceased at the Government Medical College and Hospital, Nagpur, she succumbed
to her injuries at 10.30 A.M. on November 19, 1994. The Medical Officer,
in-charge of the Hospital, conducted Post Mortem. The Investigating Officer was
searching for the appellant but the appellant was found absconding. Ultimately
he was arrested on November 28, 1994. The incriminating articles seized were
sent to Forensic Science Laboratory for analysis. On completion of
investigation, the appellant was charge-sheeted in the court of learned
Judicial Magistrate, First Class, Wani for commission of offences punishable
under Section 302 and 498A IPC.
offence punishable under Section 302 IPC is exclusively tried by a court of
sessions, the case was committed to Sessions Court, Yavatmal for trial. The 9
learned Sessions Judge framed charge against the appellant at Exh.-18 for
commission of offences punishable under Section 302 and Section 498A of the
IPC. The charge was read over and explained to the appellant. However, the
appellant did not plead guilty to the charge and claimed to be tried.
Therefore, the prosecution examined 11 witnesses and produced documentary
evidence to prove charge against the appellant. After examination of the
witnesses was over, the learned Judge explained to the appellant the
incriminating circumstances appearing against him in the evidence of
prosecution witnesses and recorded his statement under Section 313 of the Code
of Criminal Procedure. In the further statement, the case of the appellant was
that of total denial. However, he did not examine any witness in support of his
appreciation of evidence adduced by the prosecution the learned Judge held that
10 commission of offence punishable under Sections 302 and 498A IPC by the
appellant were proved by the prosecution beyond reasonable doubt.
the appellant and the learned Public Prosecutor were heard on the question of
hearing the appellant and the learned Public Prosecutor the learned Judge by
judgment dated February 21, 2002 imposed sentence of life imprisonment and fine
of Rs.500/- in default imprisonment for one month for commission of offence
punishable under Section 302 IPC as well as R.I. for one year and fine of
Rs.500/- in default imprisonment for one month for commission of offence
punishable under Section 498A IPC.
Feeling aggrieved, the appellant preferred Criminal Appeal No. 230 of 2002 in
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur.
Division Bench has dismissed the appeal by 11 judgment dated September 25, 2006
giving rise to the instant appeal.
Court has heard the learned counsel for the parties at length and in great
detail. This Court has also perused the evidence on record. It may be mentioned
that the Special Leave Petition was placed for admission hearing before this
Court on September 5, 2007. It was found that there was delay of about 199 days
in filing the special leave petition. After hearing the learned counsel for the
appellant, the delay was condoned and notice was issued confining to the nature
the notice is issued confining to the nature of offence committed by the
appellant, this Court has considered evidence on record to assure that the
conviction of the appellant is well founded.
testimony of Dr. Vinod Agrawal, who was Lecturer in Forensic Medicine,
Government Medical 12 College, Nagpur, shows that he had conducted Post Mortem
on the dead body of the deceased Pramila Patil. In his substantive evidence the
doctor has mentioned the external as well as internal injuries sustained by the
deceased. The Medical Officer in his deposition has stated that all the
injuries found on the body of the deceased were ante mortem and were sufficient
in the ordinary course of nature to cause death. The doctor had also produced
corroborative evidence in the nature of post-mortem notes prepared by him
wherein external and internal injuries sustained by the deceased are mentioned.
It is not the case of the appellant that the deceased had died because of
self-inflicted injuries or that the injuries sustained by her were accidental
or suicidal. Under the circumstances the finding recorded by the Sessions Court
and the High Court that the deceased had died a homicidal death is eminently
just and is hereby confirmed.
As noticed earlier two dying declarations of the deceased were
recorded - one by the Executive Magistrate and another by the Head Constable.
In both the dying declarations the deceased has given consistent version of the
incident in question. In both the dying declarations it was stated by her that
because she had refused to withdraw the maintenance proceedings initiated by
her against the appellant, the appellant had entered her room in the morning of
November 12, 1994 and inflicted blow on her head with a stick. This is not a
case of misidentification of the appellant as person who had mounted attack on
his wife because the wife knew the appellant very well. There was no reason for
the deceased wife to falsely implicate her husband in such a serious case and
allow the real culprit to go scot-free. The deceased had every opportunity to
identify the appellant, who was permitted to enter the room by the deceased
when 14 the door was knocked by the appellant.
it may be mentioned that the testimony of child witness Sangam recorded before
the Sessions Court also makes it more than clear that the appellant was the
person who had inflicted injury on the head of the deceased. Though this child
witness was subjected to searching cross- examination, nothing could be brought
on record so as to impeach his credibility. The defence could not even prima
facie establish that the child witness had given tutored version of the
incident before the Court. No major contradictions and/or improvements with
reference to his earlier police statement could be brought to light at all.
This Court finds no reason to discredit the evidence of the child witness. On
re-appreciation of the evidence on record, this Court finds that the finding
recorded by the Sessions Court and the High Court that the appellant was author
of the fatal injury 15 inflicted on the head of the deceased, is well founded
and no case is made out by the learned counsel for the appellant to interfere
with the same.
The learned counsel for the appellant maintained that the
appellant was deprived of the power of self control by grave and sudden
provocation offered by the deceased when the deceased refused to withdraw the
maintenance proceedings and had inflicted only one blow which ultimately
resulted into her death and as the appellant had not taken undue advantage of
the situation by inflicting another blow, the offence committed by the
appellant would fall within `Exception 1' of Section 300 IPC and, therefore,
the appellant at the best would be liable to be convicted for commission of
offence punishable either under Part I or Part II of Section 304 IPC.
The learned Public Prosecutor, however, contended that no grave
and sudden provocation was offered by the deceased at all and, therefore, it is
wrong to suggest that the appellant was deprived of the power of self control
at all and as the appellant had inflicted one blow with Stone Rolling Pad known
as Polpat on vital part of the body, namely, head with great force which resulted
into death of the deceased, both the Courts were justified in convicting the
appellant under Section 302 IPC.
Though the learned counsel for the appellant has relied on certain
reported decisions to buttress the argument that the offence committed by the
appellant would fall either under Part I or Part II of Section 304 IPC, this
Court is of the opinion that decided cases on the basis of evidence adduced
therein can hardly constitute binding precedents in 17 criminal matter. Further
there is no universal rule that whenever a single blow is inflicted resulting
into death of the victim, the case would fall either under Part I or Part II of
Section 304 IPC. Each case of single blow has to be decided on the facts and
circumstances obtaining in the case.
detailed reference to the decisions cited at the Bar, is avoided.
It is well settled that whenever a Court is confronted with the
question whether the offence is murder or culpable homicide not amounting to
murder on the facts of a case, it will be convenient for it to approach the
problem in three stages. The question to be considered at the first stage would
be whether the accused has done an act by doing which he has caused the death
of another. Proof of such causal connection between the act of the accused and
the death leads to the second stage for 18 considering whether that act of the
accused amounts to culpable homicide as defined in Section 299. If the answer
to this question is prima facie found in the affirmative, the stage for considering
the operation of Section 300 IPC is reached. This is the stage at which the
court should determine whether the facts proved by the prosecution bring the
case within the ambit of any of the four clauses of the definition of murder
contained in Section 300 IPC. If the answer to this question is in the
negative, the offence would be culpable homicide not amounting to murder
punishable under Part I or Part II of Section 304 IPC, depending, respectively,
on whether second or third clause of Section 299 IPC is applicable. If this
question is found in the positive, but the case comes within any of the
exceptions enumerated in Section 300 IPC, the offence would still be culpable
homicide not amounting to murder punishable under the First 19 Part Section 304
IPC. The above are only broad guidelines and not cast-iron imperatives.
Applying the abovementioned broad tests to the facts of the
instant case, this Court finds that it is proved beyond pale of doubt by the
prosecution that the appellant had done the act of giving Polpat blow on the
head of the deceased and by doing this act, had caused the death of the
deceased. The positive evidence of the Medical Officer, who conducted Post
Mortem on the dead body of the deceased, clinchingly establishes that the
injuries sustained by the deceased were sufficient in the ordinary course of
nature to cause her death, which would bring the instant case within the
purview of Clause `Thirdly' of Section 300 IPC, which defines and explains as
to when culpable homicide is murder.
record of the case would show that the defence of the appellant is that of
total denial. Section 105 of the Indian Evidence Act, 1872 casts burden of proof on the 20 accused to show that his
case comes within one of the exceptions provided in IPC. Section 105 of the
Evidence Act stipulates that where a person is accused of any offence, the
burden of proving the existence of circumstances bringing the case within any
of the general exceptions under the Indian Penal Code or within any special
exception or proviso contained in any other part of the same Code, or in any
law defining the offence, is upon him, and the court shall presume the absence
of such circumstances. The statutory illustration (b) appended to the said
Section explains that A, accused of murder, alleges that, by grave and sudden
provocation, he was deprived of the power of self-control; the burden of proof
is on A. When the statement of the appellant was recorded under Section 313 of
the Code of Criminal Procedure, he did not mention existence of circumstances
bringing his case within `Exception 1' to Section 300 IPC. Therefore, the court
would be justified in presuming absence of such circumstances.
the appellant failed to prove the existence of circumstances bringing his case
within `Exception 1' to Section 300, the court may look to the evidence of
prosecution to find out whether the burden cast by Section 105 of the Indian Evidence Act stands discharged by the appellant by preponderance of
probabilities. The deceased in her two dying declarations has clearly mentioned
that when she refused to accede to the demand of the appellant to withdraw the
maintenance proceedings, the appellant had inflicted blow with Stone Rolling
Pad on her head. Exception 1 to Section 300 has certain provisos. The first
proviso states that the provocation is not sought or voluntarily provoked by
the offender as an excuse for killing any person. Here in this case the wife,
who was neglected by the appellant and was not able to maintain herself and her
son, was justified in initiating maintenance proceedings against the appellant.
The appellant could not have insisted that the proceedings against him for
maintenance should be withdrawn by the deceased.
when a lady, entitled to initiate maintenance proceedings against her husband,
refuses to accede to unreasonable demand made by her husband to withdraw the
maintenance proceedings, it can hardly be said that her denial to accede to
such unreasonable demand would amount to grave and sudden provocation within
the meaning of `Exception 1' of Section 300 IPC. In any view of the matter the
facts of the case clearly indicate that the so called provocation was sought by
the appellant himself as an excuse for killing his wife and, therefore, the
appellant is not entitled to the benefit of the provisions of `Exception 1' to
Section 300 IPC.
evidence on record shows that the deceased was totally unarmed. The appellant
had inflicted blow with Polpat on the vital part of the body of the deceased,
namely, head and inflicted the blow with such a great force that it resulted
into her death. It is not the case of 23 the appellant that the injury on the
head of the deceased was accidental nor it is the case of the appellant that
the blow was aimed on some other part of the body and because of supervening
cause like sudden intervention or movement of the deceased the blow struck on
the head. On the facts and in the circumstances of the case, it will have to be
held that it was the intention of the appellant to cause that very injury which
ultimately proved fatal. As noted earlier, the medical evidence shows that the injuries
were sufficient in the ordinary course of nature to cause death and, therefore,
the offence committed by the appellant would be punishable as murder under
Section 302 IPC and his case would not fall under the first part or the second
part of Section 304 IPC.
net result of the above discussion is that there is no substance in the appeal
and the same will have to be dismissed.
Accordingly the appeal fails and is dismissed.
..............................J. [R.V. Raveendran]
..............................J. [J.M. Panchal]
July 15, 2009.