Pundalik vs State Of Maharashtra

Pundalik -- Appellant

VERSUS

State of Maharashtra -- Respondent

ORDER

Leave granted.

Challenge in this appeal is to the final judgment and order dated 23rd

October, 2008, delivered by the High Court of the Judicature at Bombay in

Criminal Appeal No.431 of 2003. By the impugned judgment, the High

Court has upheld the conviction of the appellant for an offence punishable

under Section 302 of the Indian Penal Code, 1860 (for short "the IPC").

The prosecution version in nutshell is as follows:

The appellant, an agricultural labourer was residing in a one room

tenement near the fields of his employer with his family, comprising his

wife Rukhmabai - the deceased; two daughters Jyoti and Deepa; son

Santosh and mother. According to the prosecution the appellant was in the 2

habit of beating his wife over petty matters after consuming liquor. On the

fateful day i.e. 2nd June, 2002, the appellant and his wife visited town

Yaolkhed in district Akola. They returned to the house in a drunken

condition. The appellant questioned his wife as to why she had consumed

liquor, which led to a verbal duel between them. The appellant got angry,

picked up an axe and assaulted her with the handle of the axe. The incident

happened in presence of the two daughters, who were present in the room.

The daughters went to inform their maternal grandparents about the

occurrence. Rukhmabai succumbed to her injuries on the same day at 5.00

p.m. The appellant went to the police station and lodged a report that his

wife had died due to intoxication on account of excessive drinking of

liquor. However, another report was lodged with the police station by a

neighbour of the parents of the deceased against the appellant for having

committed the murder of his wife.

During the course of investigation, the handle of the axe was got

recovered by the appellant along with his bloodstained shirt and a piece of

sari. On completion of investigation, charge-sheet was filed against the

appellant. The case was committed to the Sessions Court. Charge for an

offence punishable under Section 302 IPC was framed. The appellant

pleaded not guilty and claimed trial.

3

The prosecution, in order to establish the guilt of the appellant,

examined as many as 13 witnesses. One of the daughters of the appellant

was also examined as eye-witness but she did not support the case of the

prosecution. The Trial Court on the basis of circumstantial evidence, came

to the conclusion that the appellant had committed the murder of his wife

and thus, convicted him for an offence punishable under Section 302 IPC.

The appellant was sentenced to undergo rigorous imprisonment for life and

to pay a fine of Rs.500/- with default stipulation. Appellant's appeal

having been dismissed by the High Court, he is before us in this appeal.

We have heard learned counsel for the parties.

Learned counsel for the appellant submits that both the courts below

were in error in holding the appellant guilty of an offence punishable under

Section 302 IPC. It is urged that the sole eye-witness, namely, Deepa, the

daughter of the appellant, has not supported the case of the prosecution and

there is no other evidence on record to bring home an offence under

Section 302 IPC against the appellant. Learned counsel has pleaded that

even if the prosecution version is accepted in its entirety, a case under

Section 302 IPC is not made out against the appellant because the

occurrence took place in the course of a sudden quarrel in the heat of

passion and, therefore, Exception 4 to Section 300 is clearly attracted.

According to the learned counsel, at best, the case would fall either under 4 Section 302 Part II or Part I of the IPC and, therefore, the appeal deserves

to be allowed to that extent.

Learned counsel for the State, on the other hand, supported the

decisions of the court below. It was submitted that both the courts have

rightly found the appellant guilty of murdering his wife and no interference

in the case is called for.

Having heard the learned counsel and perused the material on

record, in our opinion, the appeal deserves to be partly allowed. As noted

above, even according to the prosecution, there used to be frequent quarrels

between the appellant and his deceased wife. On the date of occurrence,

finding his wife to be in an inebriated condition, he got infuriated and in the

heat of passion, assaulted her with wooden handle of the axe. According to

the medical evidence of Dr. Rehman Khan (PW-11), who had conducted

autopsy over the body of the deceased, the cause of the death was due to

haemorrhagic shock caused by haemorrhage due to fracture of left shaft

femur. In his opinion, the injury which proved to be fatal, was possible by

the handle of an axe. He admitted that other injuries sustained by the

deceased were not sufficient in the ordinary course of nature to cause death

but clarified that haemorrhagic shock was caused because of collection of

blood in thorarid cavity and fracture of shaft femur. 5

Taking into account all these factors and in view of the totality of

facts and circumstances of the case, in our opinion, the appellant has

committed an offence punishable under Section 304 Part I of the IPC and

not the offence punishable under Section 302 IPC.

For the afore-going reasons, the appeal is partly allowed; the

conviction of the appellant for an offence punishable under Section 302

IPC as recorded by the Trial Court and affirmed by the High Court is

converted to an offence punishable under Section 304 Part I of the IPC. In

our view, custodial sentence of rigorous imprisonment for a period of 8

years would meet the ends of justice. The appeal is allowed to the extent

indicated above.

........................................J. [D.K. JAIN]

........................................J. [DEEPAK VERMA] NEW DELHI;

APRIL 23, 2010.