M.G. Giratkar, J.
1. By way of present appeal, the appellant has challenged the judgment and order dated 06.09.2012 passed by the learned Sessions Judge, Bhandara in Sessions Trial No. 38 of 2011 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing her to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer RI for one month.
2. The case of the prosecution against the appellant (hereinafter referred as accused), in short, is as under:
Complainant Manjirabai Dahiwale was a member of Ramabai Mahila Bachat Gat. There was Dispute Free Committee (Tantamukti Samiti) at village Golewadi, Tahsil Pauni, District Bhandara. On 10.03.2011 about about 08:30 p.m., Dispute Free Committee members and members of Ramabai Mahila Bachat Gat came to know that accused Sumitra Namdeo Madavi was selling illicit liquor. Complainant Manjirabai and other lady members of Ramabai Mahila Bachat Gat, Chairman of Tantamukti Samit, Sarpanch Shri Purushottam Dahiwale, ExSarpanch Namdeo Mahadeo Patil, Vijay Moreshwar Murkute, Hivraj Ganvir and other 20 perso
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ns went to the house of Sanjay Tarachand Vaidhya.
3. Sanjay Vaidhya and accused Sumitra were standing in their courtyard. Complainant Manjirabai and deceased Meenakshi were leading the mob. They were saying that there is complete prohibition of liquor in the village and as to why they were selling liquor. Accused Sumitra thrown chili powder. Accused Sumitra caught hold hair of Meenakshi Dahiwale by one hand and pressed her neck by another hand. Meenakshi Dahiwale became unconscious and died on the spot. Incident was informed to the police. Meenakshi was taken to the hospital. She was declared brought dead.
4. Complainant Manjirabai Dahiwale lodged report (Exh.32). PW7 API Pradeep Suraskar investigated the crime. He went to the spot of incident, prepared spot panchnama. Chili powder and some blood stains were found on the spot. Those were seized in the presence of panchas. Inquest panchnama was prepared. Statements of witnesses were recorded. Clothes of deceased and accused etc., were seized. Obtained Postmortem report. After completing investigation, filed chargesheet before the JMFC, Pauni who, in turn, committed the same to the Court of Session at Bhandara.
5. Charge was framed by the trial Court at Exh.27. The same was read over and explained to accused Nos.1 and 2, to which, they pleaded not guilty and claimed to be tried. The prosecution has examined seven witnesses. At the conclusion of trial, learned trial Court acquitted accused No.2 Sanjay Vaidhya and convicted accused No.1 Sumitra for the offence punishable under Section 302 of the Indian Penal Code and sentenced her as stated above.
6. Heard Shri Khandare, learned Counsel appearing on behalf of the appellant. He has submitted that PWs1 to 4 are not the eye witnesses of the incident. Learned trial Court wrongly relied on their evidence. Learned Counsel has submitted that there was a mob of 50 persons. There was scuffle. During the scuffle, deceased fell down and died. It was an accidental death and not homicidal. Learned Counsel has submitted that the trial Court has wrongly convicted the appellant. Hence, prayed to allow the appeal and acquit the appellant/accused.
7. Heard Smt. Joshi, learned Additional Public Prosecutor appearing on behalf of the respondent/State. She has pointed out evidence of PWs1 to 3 and submitted that they are reliable witnesses. Complainant and deceased taken the lead. They were on the front side of the mob. Complainant Manjirabai (PW-1) has specifically stated that she herself and Meenakshi were ahead and other persons were behind them. She accosted accused persons saying as to why they are selling liquor in the village. She has specifically stated that accused No.1 Sumitra had thrown chili powder towards them. Sumitra caught hold hair of deceased by one hand and pressed her neck by another hand and dragged her towards door. Meenakshi became unconscious. Evidence of PW1 is well corroborated by evidence of PWs2 to 4. Homicidal death is proved by the Medical Officer (PW-6). Learned trial Court rightly convicted accused for the offence punishable under Section 302 of the Indian Penal Code. Therefore, appeal is liable to be dismissed.
8. Whether the death of Meenakshi was homicidal is to be seen from the oral evidence as well as medical evidence. Evidence of PW1 Manjirabai, PW2 Vishnu, PW3 Mangala Ramteke clearly show that accused Sumitra thrown chili powder. She caught hold hair of Meenakshi and pressed her neck and killed her. Thereafter, Meenakshi became unconscious. Meenakshi died on the spot itself. Except some minor omissions, nothing is brought on record in the cross-examination of PWs1 to 3 to disbelieve their evidence.
9. Evidence of Medical Officer (PW-6) Dr. Dipankar Meshram shows that he was on duty on 11.03.2011 in Rural Hospital, Adyal. He has conducted postmortem examination of deceased Meenakshi. As per his opinion, cause of death of deceased was due to head injury associated with compression over neck. Accordingly, he issued postmortem report (Exh.61). From the perusal of postmortem report, it is clear that he found injuries over neck. As per postmortem report, cause of death was due to head injury associated with compression over neck.
10. Evidence of PWs1 to 3 clearly show that accused caught hold hair of deceased Meenakshi, pressed her neck and dragged her towards the door. This itself shows that during scuffle, Meenakshi sustained head injury and due to pressing of neck, she died. It is clear from the evidence of PWs1 to 3 and medical evidence of Dr. Dipankar Meshram that deceased Meenakshi died homicidal death.
11. Evidence of Manjirabai (PW1) shows that they had started liquor prohibition movement in the village since 23.01.2011. Accused Nos.1 and 2 were selling liquor in the village. They came to know that accused persons were selling liquor in the village on the day of incident i.e. on 10.03.2011. Therefore, they went to the house of accused along with 15-20 villagers. Sarpanch of the village, President of Litigation Free Village Committee was also with them. They accosted accused persons saying as to why they are selling liquor in the village. She herself and Meenakshi were ahead and other persons were behind them. At that time, accused No.1 Sumitra Madavi had thrown chili powder towards them. Sumitra caught hold hair of Meenakshi and also caught hold her neck and dragged her towards door. Thereafter, Meenakshi became unconscious.
12. Evidence PW1 is well corroborated by PW2 Vishnu, who was the Sarpanch of village at the relevant time. He has stated in his evidence that on 10.03.2011, one Ganvir had informed them that accused persons are selling liquor in the village. Therefore, people of Tantamukti Samiti as well as women of Ramabai Mahila Bachat Gat went to the house of accused. Ladies went in the room of accused. They were behind the ladies. When they went in the room of accused, light was seen. At that time, accused Sumitra was standing near the door. Accused Sumitra thrown chili powder towards ladies. Thereafter ladies made cry. Sumitra caught hold hair of Meenakshi. They had tried to rescue the quarrel and at that time Meenakshi was seen unconscious. Accused Sumitra had caught hold hair by one hand and neck of Meenakshi by another hand. They informed the incident to the police.
13. Nothing is brought on record in the cross-examination of PWs1 and 2. PW2 has stated in cross-examination that he was in the courtyard. The incident took place in front room. There was only half wall to that room, as per spot panchnama. Witnesses have also stated that spot of incident was like chhappar (only roof). Therefore, it cannot be said that PWs2 and 3 could not see the incident. PW2 Mangala Ramteke was along with complainant Manjirabai and Meenakshi. She has stated that accused Sumitra thrown chili powder. Meenakshi was ahead. Accused Sumitra caught hold hair of deceased and pressed her neck and killed her on the spot.
14. Nothing is brought on record in the cross-examination of PWs1 to 3. On the other hand, it is brought on record in the evidence of these witnesses that there was no enmity of deceased with the accused.
15. Evidence of PW4 not helpful to the prosecution, because in his cross-examination, he has admitted that he could not see the incident. PW5 turned hostile, but spot panchnama and seizure panchnama etc. are proved by the Investigating Officer.
16. Evidence of Medical Officer Dr. Meshram clearly shows that death was due to head injury associated with compression over neck. Oral evidence of PWs1 to 3 is well corroborated by medical evidence of Dr. Meshram. Postmortem report (Exh.16) shows that there was injury to the neck. All the evidence clearly shows that accused Sumitra thrown chili powder towards ladies. PW1 Manjirabai and Meenakshi were ahead. Accused Sumitra caught hold hair of Meenakshi by one hand and pressed her neck by another hand. It is brought on record that Meenakshi was thin (weak personality). Accused is strong. Therefore, accused could overpower deceased Meenakshi. The evidence on record proved that accused Sumitra caught hold hair of deceased Meenakshi and pressed her neck. Therefore, Meenakshi died on the spot itself. There is no doubt that accused Sumitra killed the deceased.
17. Learned Counsel for the appellant has submitted that there was no enmity between accused and deceased. The mob of near about 50 persons came to the house of accused. Accused was frightened and, therefore, she thrown chili powder. To save herself, she caught Meenakshi. During the incident, Meenakshi died. There was no intention on the part of accused to commit murder. Hence, act of accused comes under Section 304 Part-II of the Indian Penal Code.
18. From the perusal of cross-examination of PWs1 to 3, it is clear that there was no enmity of accused with deceased. Meenakshi was leading the mob along with PW1. Near about 50 persons went to the house of accused. They were saying to accused Sumitra and Sanjay as to why they are selling liquor. There was altercation between them. Meenakshi and Manjirabai tried to enter the house. That time accused Sumitra thrown chili powder. She caught hold hair of Meenakshi by one hand and pressed her neck by another hand. Because of the mob of 50 persons, accused Sumitra was frightened and, therefore, she caught hold Meenakshi so as to deter other members of the mob. There is no evidence to show that accused Sumitra had any intention to kill the deceased. Therefore, act of accused comes under Section 304 Part-II of the Indian Penal Code.
19. Accused was in jail since 11.03.2011 till March, 2016 i.e. near about five years. Learned Counsel for the appellant has submitted that lenient view be taken and period already undergone by the accused be taken into consideration.
20. In view of the above discussion, we are inclined to allow the present appeal partly, holding that appellant/accused is guilty of offence punishable under Section 304 Part-II of the Indian Penal Code. Hence, the following order.
(i) Appeal is partly allowed.
(ii) The order of conviction under Section 302 of the Indian Penal Code is altered to one under Section 304 PartII of the Indian Penal Code and sentenced to the period already undergone by the appellant in jail.
(iii) R and P be sent back.