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2018 Supreme(Bom) 2068
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT GOA BENCH
N.M. Jamdar, Prithviraj K. Chavan, JJ.
Rushi @ Rushia Das, Presented Lodged in Central Jail Colvale Bardez Goa – Appellant
Versus
State of Goa, Bicholim P.S. – Respondent
Criminal Appeal No. 44 of 2016
Decided On : 01-09-2018
Advocate Appeared:
K. Poulekar, Prithvi Bandekar, Y. Kotkar, S.R. Rivankar.
Headnote:
Code of Criminal Procedure, 1973 – Sections 164, 313 – Indian Penal Code, 1860 – Sections 304, 302 – Offence of Murder – Order of Conviction – By this appeal, the Appellant challenges his conviction under Section 302 of Indian Penal Code, wherein he has been sentenced to undergo imprisonment for life and fine of Rs. 10,000/- in default to undergo simple imprisonment for three months by the learned Additional Sessions Judge, Mapusa, for having committed murder of his wife in the intervening night of 22 October 2012 and 23 October 2012 – Held, Counsel for the Appellant has placed reliance on the judgment of this Court in case of Mahesh Mahadev Tari vs. State of Goa, (2018) All MR (Cri) 788, wherein the conviction of the Appellant under Section 302 of IPC came to be modified to one under Section 304 Part II of IPC in view of the fact that there was sudden quarrel between the deceased and the Appellant in a bar without premeditation or preplanned. – It was not the case that accused had taken undue advantage or acted in cruel or unusual manner. – The ratio can be distinguished so as to say that in the instant case there was no sudden fight. – The Appellant had inflicted three blows of the hammer on the head of the deceased which shows that he acted in an unusual manner. – The deceased being a helpless lady and especially who was in custody of her husband is more crucial. – Counsel placed reliance on an another judgment of this court in the case of Naushad @ Jabbar Beig vs. State of Goa, (2018) All MR (Cri) 767. – In this case also conviction of the Appellant for the offence under Section 302 of IPC came to be modified to one under Section 304 part II of IPC, in view of the fact that there was a sudden fight between the wife of the deceased and the Appellant as the deceased objected the accused for shouting loudly. – It was a case of single blow and, therefore, this case can be distinguished accordingly. – In the case of Santilal Shrikisan Kutil @ Kaalia @ Mochi vs. State of Maharashtra, (2018) All MR (Cri) 908, the Supreme Court modified the conviction of the Section 302 IPC to one under Section 304 part II in view of the fact that the accused inflicted severe injuries on the deceased with stone on account of altercations between them on the issue of shouting loudly. – There was occasional altercations between them and they used to unite afterwards. – It is also a fact in the said case the victim did not immediately succumb to the injuries but died after 7 days. – As already stated herein above, this judgment can be distinguished, in view of the fact that the nature, conduct, manner and the way in which the Appellant has eliminated his wife by using a deadly weapon like hammer inflicting three forceful blows on her head would clearly indicate his intention to commit murder. – Therefore, he is not entitled to take benefit of Section 304 Part II of IPC. – Court do not find any reason to interfere with the impugned judgment and order of conviction of the Appellant under section 302 of IPC. – As such, there is no substance in the appeal which stands dismissed. – Appeal Dismissed
JUDGMENT :
Prithviraj K. Chavan, J.
1. By this appeal, the Appellant challenges his conviction under Section 302 of Indian Penal Code, wherein he has been sentenced to undergo imprisonment for life and fine of Rs. 10,000/- in default to undergo simple imprisonment for three months by the learned Additional Sessions Judge, Mapusa, for having committed murder of his wife in the intervening night of 22 October 2012 and 23 October 2012.
2. The prosecution case in brief is as follows:-
The Appellant originally is a resident of Orrisa, who had migrated to the State of Goa. He was residing at Karapur, Tisk Bicholim Goa with his wife Sabitri, the deceased, their sons: PW-5 Prashant Das and PW-1 Sushant Das. The Appellant was unemployed person, and addicted to liquor. He was in habit of demanding money from his sons Prashant and Sushant and also from his wife deceased Sabitri. Whenever his family members were unable to provide him money, he used to pick up a quarrel with them and used to abuse. It is alleged that he used to assault his wife and extend threats of dire consequences.
3. According to first informant, PW-1 Sushant Das, who works as a Painter on temporary basis at a Bus Body Building Factory, Honda, on 22 October 2012 he was on second shift duty from 15.00 hours to 23.30 hours. As usual, when left the house at about 14.30 hours, his mother and father were at home. His brother PW-5 Prashant Das was working as a Waiter in Hotel Prasad at Karapur Tisk. Around 23.00 hours, he received a call on his mobile phone from Prashant who informed him that he came to know from the owners of the house that the Appellant had assaulted Sabitri with a hammer due to which she sustained bleeding injuries to her head and was unconscious. It was also informed that an ambulance was called by dialing number 108.
4. When PW-1 Sushant Das reached home around 01.05 hours, he saw some people including the owner of the house, his daughter, wife and Prashant etc. present at the spot. Thereafter, an ambulance reached the spot, however, the person in the said vehicle after examining her informed that the lady was dead. It has been specifically alleged in the complaint by PW-1 Sushant Das that it was the Appellant, who assaulted his mother with a hammer as he was insisting for the money.
5. On the basis of said complaint, an offence came to be registered with Police Station, Bicholim, vide F.I.R. No. 171/2012 under Section 302 of IPC against the Appellant (Exh.3).
6. PW-16 PSI Razashad Ahemad Shaikh, PW-17 Ramesh Gaonkar and PW-18 Ganesh Deulkar appeared to have conducted investigation into the Crime. PW-16 PSI Shaikh, under the guidance of PW-17 Ramesh Gaonkar reached on the spot along with the investigation kit. He arrested the Appellant in the presence of two panch witnesses namely PW-8 Mugutsab Tambdi and one Sagar Chari. He had seized clothes on the person of the Appellant by drawing attachment panchanama. On the same day, he visited GMC hospital, Bambolim and conducted inquest panchanama over the dead body of the deceased Sabitri (Exh.64). He had also seized clothes of the deceased in the presence of the panch witnesses as well as collected the postmortem report, which was drawn by PW-2 Dr. Sidharth Banaulikar. Autopsy Report is at Exh.15, which indicates that the cause of the death was cranio cerebral damage by injury nos. 1, 2 and 3 which were necessarily fatal and fresh at the time of death. All the seized muddemal was forwarded to the Central Forensic Science Laboratory. PW-16 also conducted scene of occurrence panchanama as well as sketch.
He had also recorded the statement of the witnesses.
7. PW-18 Ninad Deulkar, who was on leave, reported his duties on 27 October 2012, and conducted further investigation. He wrote a letter to Judicial Magistrate First Class for recording statement of PW-1 Sushant Das and PW-5 Prashant Das under Section 164 of Cr.P.C. The call detail records of the mobile phone of the witnesses and others were collected. The Investigatin
