w w w . L a w y e r S e r v i c e s . i n

Jaiprakash Harihprasad Mishra v/s The State of Maharashtra

    Criminal Appeal No. 93 of 2021 along with Interim Application Nos. 1416 of 2021 & 1376 of 2020

    Decided On, 23 December 2021

    At, High Court of Judicature at Bombay


    For the Applicant: Lokes D. Zade a/w. Nikhil Waje, Appointed Advocates. For the Respondent: V.B. Konde-Deshmukh, APP.

Judgment Text

S.S. Shinde, J.

1. This appeal takes an exception to the impugned judgment and order dated 30th November, 2015 passed by the Additional Sessions Judge, Alibag in Sessions Case No. 126 of 2015, thereby convicting the appellant-original accused for the offences punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year.

2. The prosecution case can be summarized as under:-

The appellant and Gayatri (deceased) were married about twenty years prior to the incident, and were staying together at Kharghar. On 02.08.2015, there was a quarrel between the two and the appellant had committed the murder of Gayatri, by banging her head against the wall, thereby causing injury to her. The appellant had then phoned his brother-in-law Krishanakumar Tiwari (PW2) and confessed his guilt. The appellant then phoned for the ambulance and Dr. Kamble (PW1) had reached the spot of incident. Dr. Kamble had enquired with the accused and, accused had confessed to her that there was a quarrel between him and his wife and he has assaulted his wife by banging her head against the wall. Dr. Kamble had reported the incident to the Kharghar Police Station and lodged the FIR. The police had reached at the spot and arrested the accused. The offence was registered as C.R. No. 112/2015. It was investigated by the Police Inspector M.I Khade. During the course of investigation, the investigating officer had prepared the inquest panchnama (Exh. 11), and the post panchnama (Exh.12). He has seized the clothes of the accused and deceased. He has recorded statements of brother-in-law of the accused and the neighbour Ram Naryayan Gharat. The dead body of the deceased was sent for post-mortem. After completing the investigation the charge-sheet against the accused was fled in the Court of learned Judicial Magistrate First Class at Panvel, who in turn had committed the case to the Court of Sessions as the said offence is being exclusively triable by the Court of Sessions. The charge (Exh.4) of the offence punishable under Section 302 of the IPC was framed and the same was explained to the accused in vernacular. The accused pleaded not guilty and claimed to be tried. The accused had taken a defence that he has not killed his wife. In his statement under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), the accused has stated that his wife did not bear a child in their twenty years of married life and was therefore depressed and addicted to liquor. His wife had banged her head against the wall and thereby the injury caused to her, and consequently she died. The accused has not examined any defence witness.

3. After a full fledged trial, the trial Court convicted the appellant, hence this appeal.

4. Learned counsel appearing for the appellant submits that the appellant is not responsible for the death of Gayatri (deceased). Gayatri (deceased) herself banged her head on the wall and died. It is submitted that the entire case rests upon circumstantial evidence and there are no clinching and incriminating circumstances to convict the appellant, and therefore benefit of doubt deserves to be given to the appellant. It is submitted that the alleged extra judicial confession is a weak piece of evidence and no conviction can rests upon such evidence. It is submitted that in the case of Sharad Bhirdichand Sarda Versus State of Maharashtra (1984) 4 SCC 116)the Supreme Court held that, if two views are possible while dealing with the case based upon circumstantial evidence, in that case view which favours the accused deserves to be adopted. Learned counsel for the appellant invites attention of this court to the evidence of witnesses and submits that none of the witness has actually witnesses the incident and it is only on the basis of alleged extra judicial confession the appellant has been convicted. It is submitted that, even if the prosecution case is taken as it is, there is only one external injury caused to the head of Gayatri (deceased).

5. On the other hand, learned APP appearing for the State invites attention of this Court to the findings recorded by the Trial Court, so also evidence of witnesses and submits that the trial Court has taken a reasonable view upon appreciating entire evidence brought on record by the prosecution.

6. We have heard the learned counsel appearing for the appellant and learned APP appearing for State. With their able assistance, we have perused the entire material/evidence on record. It appears that the star witness of the prosecution case is Dr. Samta Kambale (PW1). She deposed before the Court that at the relevant time she was on duty at rural hospital, Panvel on 02.08.2015, she received a emergency call from 108 number at about 3.00 to 3.50 p.m., one Mr. Mishra informed that his wife fell down unconscious and she had suffered injuries. Thereafter, she asked him his address and the landmark where he resides. Mr. Mishra told his address and exact place of his residence. Then she and the ambulance driver Nikhil Surve started proceeded to that place. Mr. Mishra told to reach at Sector 13, New Panvel, Near Abhudya Bank where there is a blue building. They reached at the address at about 4.00 pm. After reaching there one person from first floor called them by making signal that they should reach on first foor. Accordingly, they went to the first floor. The person opened the door. After reaching there that person welcomed them by saying ‘namaskar’ and, in turn they also replied by saying ‘namaskar’. She (PW1) asked name of the accused. He told his name as Jaiprakash Mishra. Then she asked him, about an incident narrated by him on the telephone. He told her that at about 4.00 am, a quarrel took place between him and his wife. In that quarrel his wife sustained severe injuries and fell down unconscious. They asked him what had exactly happened? Thereupon he replied that a quarrel took place between them and he assaulted her. Then Mr. Mishra took them where his wife was fell. That place was between the passage of bed room and hall. Then she examined her. Her respiration was stopped and her pulse was upset. Thereafter, she examined her coraid pulse, which was also stopped. PW1 found that, her body is cold and rigor mortis has developed. Then, she called her senior Dr. Devkar. Dr. Devkar told her to inform about the incident to the nearest police station. Accordingly, PW1 reached Khandeshvar police station to inform the entire incident to PSI Suryawanshi. Then, they again returned to the spot of incident i.e. house of the accused with police officials. There they showed the spot of incident to the police. Her signatures were obtained on the papers at the spot of incident. All the facts narrated by them are typed on the laptop and the print of the said was brought and their signatures were obtained. She further stated that the accused who is present before the Court is the same who called her by making a phone call.

7. During her cross examination, she stated that she received call from the appellant and the action taken by her is mentioned in the register. She denied the suggestion that, it is not mentioned in the register that the appellant has assaulted his wife. After visiting the house of the appellant along with Nikhil Surve they went to the nearest police station to inform the police about the alleged incident. She denied that she is deposing on the say of police that the accused assaulted his wife at 4.00 am, on the relevant date.

The evidence of this witness which is brought on record by the prosecution (PW1) as an independent witness.

8. The prosecution has examined Mr. Krishnakumar Ghansham Tiwari (PW2). In his examination in chief he stated that he reside at Bhopal with his mother, wife and two children. He was having two sisters. Out of those Gayatri was wife of the accused. After marriage Gayatri was residing at Panvel, Mumbai. She was issue-less. Gayatri used to frequently visit his house. His father died on 5th September, 2013, at that time he met Gayatri and the accused. He was in the house on 02.08.2015. It was a Sunday. At that time a phone call was received on the phone of his mother at about 1.30 p.m. to 2.30 p.m. At that time he was sitting in the hall with his mother. His mother received the phone call and shouted loudly Gayatri is dead. He immediately took phone from her mother and started hearing. At that time accused was talking on phone, he said that, he killed Gayatri by banging her head on the wall. Thereafter he disconnected the phone call. Thereafter, to verify the incident he called neighbour of the accused i.e. Mr. Gharat. Mr. Gharat’s wife attended the call. He asked her to verify whether any incident had taken place with Gayatri. Second time when he called her, she told that Gayatri died as a result of beating by Jaiprakash. Then he booked fight ticket and traveled to Mumbai and landed at 6.00 pm at Mumbai airport. Thereafter, he reached at the spot at about 11.30 pm. At that time, he was told that Jaiprakash was arrested by the police, Gayatri’s dead body were handed over to him. On the second day, funeral rites was performed on her. Thereafter, he went to Khandeshvar police station. At that time, he came to know that already a complaint was lodged.

9. During his cross examination he reiterated his contention that the Jaiprakash Mishra has killed Gayatri by banging her head on the wall 7-8 times.

10. The prosecution has examined Ram Narayan Gharat (PW3), He deposed before the Court that he knows the accused- Jaiprakash Mishra because the accused was his neighbour. In the family of accused the accused and his wife were residing. They both husband and wife used to quarrel. Jaiprakash was consuming liquor. They were residing as neighbour and hence whenever there was quarrel voice was coming to his house. He stated that Jaiprakash’s wife is dead. One ambulance came on 02.08.2015 at about 3.30 pm, police also came. He went along with police in the room of accused. In the room Jaiprakash’s wife was lying and Jaiprakash was found sitting near her wife. Upon asking by the police Jaiprakash replied that he murdered his wife by banging her head on the wall. Jaiprakash’s wife was dead on the spot. The police prepared spot panchnama and he signed the said panchnama. Thereafter, police arrested Jaiprakash. He stated that he can identify the Jaiprakash if shown.

11. During his cross examination he stated that Jaiprakash and his wife both were drinking liquor. Whenever they used to quarrel, he used to hear sounds of their quarrel. However, he has no occasion to separate their quarrel.

12. The prosecution has also examined Basavraj Sagnath Lohare (PW4). He deposed that in the year 2015, he was medical officer attached to rural hospital at Panvel. On 02.05.2015, the Khandeshvar police had sent him a dead body of Gayatri Mishra for postmortem. He had noticed/observed the following external injuries.

1. C.L.W. over right eye upper eye brow 2cmX1cmx bone deep. Nature of injury simple, caused by hard and blunt object.

He had also noticed/observed following internal injury.

1. Fracture frontal bone with intracranial haemorrage. Nature of injury was grievous, leading to death.

He further stated that the internal injury can be caused if the head is banged against the wall with force. He had opined that the death was due to the head injury mentioned as internal injury No. 2. Accordingly, he prepared the postmortem notes. He had also issued the death certificate.

13. During his cross examination he stated that the internal injury stated by him in his examination in chief can be caused if a person falls down or bang head against a wall in an inebriated condition. He further stated that the death was caused approximately 12 hours before the postmortem. He further stated that except external injury mentioned in his evidence there was no even single scratch on the body of deceased. He further stated that fatty changes in liver were noticed. The cause could be some disease or consumption of alcohol.

14. The prosecution has also examined Machindra Khade (PW5), who is at the relevant time was working as Police Inspector, in the office of Police Commissioner Office, Navi Mumbai. He deposed that he was Police Inspector (Crime) at Khandeshvar Police Station from June 2013 to April 2016. C.R. No. 112/2013 was handed over to him for investigation on 03.08.2015. On 03.08.2015 he had seized the clothes of the deceased. Panchnama Exhibit 14. He had recorded the statements of witnesses. He had obtained police custody remand of accused. He had obtained call details record of the cellphone of the accused. He had also obtained the certificate of the Nodal officer. He had obtained the hair and blood samples of the accused. He had found the hairs in the clutches of the deceased the clothes of the deceased, the blood sample of accused, hair sample of the accused and blood sample of deceased forwarded for chemical analysis. He had obtained postmortem report. He stated that the investigation revealed that accused had banged the head of the deceased on the wall and had caused her death. He had informed his mother-in-law about the death of the deceased at 1.30 pm. Investigation further revealed that the deceased was insisting the accused to buy chicken and thereby the quarrel took place, and consequently the incident had happened. He had fled the chargesheet against the accused.

15. During the course of cross examination, (PW5) stated that the investigation revealed that the accused and deceased were married 20 years back. The investigation also revealed that they did not have any issue and both were addicted to liquor. He denied the suggestion made to him that the deceased was not having any kind of contact with her brother since last 3 years prior to the incident. He further stated that the witness (PW3) Krishnakumar Tiwari had stated the portion marked “A, B, C” to him, which is marked at Exhibits 39, 40 and 41. He accepted the suggestion made to him that there was no eye witness to the incident. He denied the suggestion given to him that he stated about the quarrel of chicken to be the result of incident imaginary. He also denied that the investigation revealed that injuries were caused to the deceased as she fell down.

16. If the evidence of aforesaid witnesses is considered in its entirety, an irresistible conclusion is that, on the relevant time only the appellant and Gayatri (deceased) were in their house and incident occurred 12 hours prior to the postmortem. Admittedly, in the said house only appellant and his wife were present. The appellant gave extra judicial confession to PW1 so also PW2 and he admitted before the police that he has killed his wife. Since, only the appellant and his wife was in the house and the prosecution has brought on record evidence to that effect that at the relevant time only appellant and Gayatri (deceased) were in the house. Therefore, how the wife of the accused died was within the special knowledge of the appellant. PW1 in her evidence deposed that when she visited the house of the accused and examined, she found that the respiration of the Gayatri was stopped. Her pulse was stopped. Her body was cold and rigor mortis was developed. PW1 is an independent witness and has no enmity with the appellant. It is true that the extra judicial confession is a weak piece of evidence. However, in the peculiar facts and circumstances of the case, once the prosecution has proved that the appellant and Gayatri (deceased) were only in the house, the onus would shift upon accused to explain, how the appellant’s wife died. Since said fact was within the special knowledge of the accused, said onus was on the appellant, and therefore, he was obliged to discharge the said onus. It is noteworthy to mention that though the incident had happened early in the morning at 4.00 am, the appellant informed the said incident to PW1 at about 3.00 to 3.50 pm and PW2 in between 1.30 pm to 2.30 pm. The subsequent conduct of the appellant also assumes important. Section 8 of the Evidence Act, reads as under:-

8. Motive, preparation and previous or subsequent conduct.- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

17. In the light of evidence brought on record there cannot be slightest doubt that the appellant was the author of the injuries caused to Gayatri (deceased) and as a result she died. Therefore, we hold appellant responsible for death of Gayatri and confirm the findings of the trial Court.

18. It appears that quarrel ensued on trifle ground as it is stated by the investigation officer in his cross examination that, deceased was insisting the accused to buy chicken and there was quarrel and accused banged head of Gayatri on wall. It is not the case of the prosecution that the app

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ellant used weapon to assault his wife. It appears from the evidence of Investigating Officer that the appellant and his wife consumed liquor at the relevant time. There was no pre-meditation or design to kill the Gayatri. Admittedly, the appellant had not used any weapon while assaulting his wife. It appears that in the heat of anger accused banged head of Gayatri (deceased) on the wall and as opined by the doctor C.L.W. over right eye upper eye brow 2cmX1cmx bone deep and fracture frontal bone with intracranial haemorrage injuries were caused. It is crystal clear that the appellant had knowledge that his act of causing injury to Gayatri (deceased) may cause her death. However, the said act was not pre-meditated or planed or designed or intended, in that view of the matter, we are of the considered view that the appellant’s conviction under Section 302 of IPC as ordered by the Sessions Court deserves to be altered. Hence, the following order:- ORDER i) The Appeal is partly allowed. ii) The judgment and order dated 30th November, 2017, passed by Additional Sessions Judge, Raigad-Alibag in Sessions Case No. 126 of 2015, convicting and sentencing the Appellant-Jaiprakash Harihar Prasad Mishra under Section 302 of the Indian Penal Code is set aside. Instead, we alter the conviction of the appellant-accused from under Section 302 of IPC to that under Section 304 (II) of the IPC and sentence the appellant for ten years. iii) The appeal is disposed of accordingly. iv) In view of disposal of appeal nothing survives for consideration in Interim Application No. 1416/2021 and 1376/2020. Hence, the pending applications also stand disposed of. v) We appreciate the able assistance rendered by advocate Mr. Lokesh Zade, during the course of hearing of the matter. We quantify his fees at Rs. 10,000/- to be paid by High Court Legal Services Committee, Mumbai, within four weeks from today.