At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE B.R. GAVAI & THE HONOURABLE MR. JUSTICE V.M. DESHPANDE
For the Appellant: Shriniwas Deshpande, Advocate. For the Respondent: M.N. Hiwase, Additional Public Prosecutor.
Oral Judgment: (B.R. Gavai, J.)
1. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Darwha in Sessions Trial No.35 of 2006 dated 31.07.2014 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 fine of Rs.5,000/- and in default of payment of fine to suffer rigorous imprisonment for 6 months, the appellant has approached this Court.
2. The prosecution story as could be gathered from the material placed on record is thus:-
Deceased Subhash is the son of PW1 Shewantabai and was aged about 24 years. The deceased and the first informant were the neighbours and w
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ere having common courtyard. The appellant was residing with his wife and children. He was having doubt on the character of his wife. He was having doubt that she was having illicit relations with the deceased.
3. It is the prosecution case that on 5.2.2006 at around 7 p.m. there was quarrel between the accused and his wife. He was quarreling with his wife and telling her that she was having illicit relationship with another person. At that time the deceased Subhash came along his friend PW2 Deepak. Subhash told the accused that "don't blame any person unless you catch him by raid hand". After the deceased uttered the same, the accused took an axe in his hand and assaulted Subhash by it on his head. The deceased sustained injuries and fell down. The accused ran away from the spot by throwing the said axe. The deceased was taken to the Medical College, Yavatmal wherein he was declared dead. The A.D. came to be registered at Yavatmal Police Station on the intimation of the doctor of the said hospital. On the next day, i.e. on 6.2.2006 at around 11 p.m., the first information report came to be lodged below Exh.42 on the basis of the oral statement of PW1 Shewantabai below Exh.30. At the conclusion of the investigation, the charge sheet came to be filed in the Court of Judicial Magistrate First Class, Darwha. As the offence was exclusively triable by the Court of Session, the same came to be committed to the learned Sessions Judge, Darwha.
4. Charge was framed against the accused below Exh.18. 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 sentenced the appellant as aforesaid. Being aggrieved thereby, the present appeal.
5. The learned counsel for the appellant submits that the learned trial Judge has grossly erred in convicting the appellant. He submits that both the alleged eyewitnesses are interested witnesses and as such the conviction on the basis of their testimony would not be sustainable.
6. The learned APP submits that the learned trial Judge has given sound and cogent reasons in support of the finding of guilt. It is, therefore, submitted that no interference is warranted in the present appeal.
7. With the assistance of the learned Additional Public Prosecutor and the learned counsel for the appellant, we have scrutinised the entire evidence.
8. No doubt that the eye-witnesses to the incident are interested witnesses inasmuch as one of the witness is the mother of the deceased and the other one is friend. However, merely because the witnesses are interested, cannot be a ground to discard their testimony in toto. The only requirement would be to scrutinise their evidence with greater caution. The conviction on the basis of the testimony of such witnesses would be tenable if the Court finds their testimony to be cogent, trustworthy and reliable.
9. PW1 Shewantabai states that the accused Sonya is her neighbour. They are having a common courtyard. At that time her son had gone for work in the village. The quarrel in between the accused and his wife was going on. He was abusing his wife and alleging that she is having illicit relationship with others. At that time her son came there with his friend Deepak Sasane. He said to the accused Sonya that why he is alleging another and he should catch such person. At that time accused Sonya caught hold axe in his hand and assaulted her son. Her son sustained injury to his head by axe. Her son fell down. Accused Sonya then ran away from the village. Though this witness is thoroughly cross-examined, her testimony insofar as the incident is concerned has remained unshattered. Not only that the first information report duly corroborates her version.
10. PW2 Deepak is the friend of the deceased. He states that at the time of the incident he was with Subhash. Both of them came to the house of Subhash from Bhayya tailor. When they reached the courtyard, he heard accused Sonya saying to his wife that "you are attending others", by looking towards Subhash. Subhash said to accused Sonya that "you see it by your own eyes, catch and then allege". Accused Sonya picked up axe and assaulted Subhash with it on his head. Subhash fell down. Thereafter accused threw the axe and ran away.
11. We find that in view of the ocular testimony of the eyewitnesses whose evidence is found to be trustworthy, reliable and cogent, it can safely be held that the present appellant was the author of the crime.
12. That leaves us with the question as to whether the conviction under Section 302 of the Indian Penal Code needs to be confirmed or altered to some other offence. It is to be noted that when the deceased went to the spot i.e. the courtyard between his house and the house of the appellant, already quarrel was going on between accused and his wife. From the evidence of PW2 Deepak, it is clear that the appellant was having suspicion with regard to the illicit relationship with the deceased and the wife of the appellant. It further appears from the evidence that when the quarrel was going between the appellant and his wife, it is the deceased who told the appellant that he should not blame any person and catch that person raid handed. It could thus be seen that there was no premeditation on the part of the appellant to commit the murder of the deceased. It appears that when the quarrel was going between the appellant and his wife, enraged with the interference by the deceased upon he had suspicion with illicit relationship with his wife, he has picked up the axe which is commonly available in the village and assaulted the deceased. It is to be noted from the post mortem report and the evidence of PW8 Dr. Hemant that the appellant gave a single blow and after noticing that the deceased had fallen down, ran away from the spot. We, therefore, find that though the appellant can be attributed with the knowledge that the injury may cause death, from the evidence on record it cannot be said that he had an intention to cause death of the deceased. In that view of the matter, we are of the considered view that the case would not fall under Section 302 of the Indian Penal Code but would rather fall under Part II of Section 304 of the Indian Penal Code.
13. In the result, the appeal is partly allowed. The order of conviction under Section 302 of the Indian Penal Code is altered to one under Part II of Section 304 of the Indian Penal Code. For the said offence, the appellant is sentenced to suffer R.I. for 7 years. Rest of the order regarding fine etc. is maintained.
14. The fees for the appointed counsel are quantified at Rs.5000/-.