Raj Kumar vs State Of Maharashtra

Sambhaji Kahire brought her to Village Belora. A

compromise took place and, therefore, the deceased was

sent to her matrimonial home. However, thereafter also

the appellant continued to ill-treat the deceased.

Therefore, her brother again brought her back to Village

Belora. As the deceased had no means to sustain herself

and her son, she had filed proceedings under Section

125 of the Code of Criminal Procedure, 1973 for

obtaining maintenance from the appellant. The brother

of the deceased took a room on rent for the deceased and

her son at Wani belonging to one Dadaji Shankar

Ganfade. The deceased and her son aged four years

were residing in the said rented room and the boy was 4 taking education. After about one and a half months the

appellant started visiting the deceased and pressurizing

her to withdraw the proceedings initiated for getting

maintenance.

On November 11, 1994, the appellant went to the

room of the deceased in the evening time from his village

Lalguda and asked the deceased to withdraw the

maintenance proceedings. However, as the deceased had

no means to maintain herself and her son, she refused to

withdraw the proceedings. Again on November 12, 1994

at about 4.00 A.M. in the morning the appellant went to

the room of the deceased. At that time the deceased and

her son Sangam were sleeping. The appellant came

there under the influence of liquor. On door being

knocked by the appellant, the deceased opened the door

and that is how the appellant entered the room occupied

by the deceased. On entering the room the appellant

pressed the neck of the deceased but the deceased got

herself released from the clutches of the appellant. 5 Thereafter, the appellant took up an iron Polpat, i.e.,

Stone Rolling Pad and inflicted a blow on the head of the

deceased. Because of the injury sustained by her, the

deceased started bleeding. The appellant took some

amount lying in the room and ran away. The son of the

deceased started weeping loudly. His cries attracted the

attention of the landlord Dadaji Shankar Ganfade.

Dadaji in turn woke up his wife and other tenants and

rushed to the room occupied by the deceased. On

entering the room, he found that the deceased was lying

injured seriously. On enquiry being made, the deceased

told him and other tenants that as she had refused to

withdraw the maintenance proceedings, her husband

had inflicted blow on her head with a stick. The landlord

of the house and other tenants immediately shifted the

deceased to Wani Hospital.

The Medical Officer, who was in-charge of Rural

Hospital, Wani, sent an intimation to the Police Station,

Wani at about 5.00 A.M. that one woman named Pramila 6 was admitted in the hospital in an injured condition.

The P.S.O., Wani Police Station, sent a requisition to the

Executive Magistrate for recording dying declaration of

the deceased in the very morning itself. On receipt of the

requisition, the Executive Magistrate went to the Rural

Hospital, Wani and recorded the dying declaration of the

deceased at about 6.30 A.M. The P.S.O., Wani Police

Station also directed Head Constable Ashok Dudhane to

go to Rural Hospital, Wani, and record the dying

declaration of the deceased. Accordingly the Head

Constable went to the hospital and recorded the dying

declaration of the deceased. After going through the

contents of the dying declaration the Head Constable

himself became the first informant and filed his

complaint. On the basis of the First Information Report

lodged by the Head Constable Ashok Dudhane the

P.S.O., Wani Police Station registered crime No. 195 of

1994 for the offence punishable under Section 324 IPC

against the appellant. Head Constable Ashok Dudhane 7 issued a letter to the Medical Officer, in-charge of Rural

Hospital, Wani for medical examination of the deceased

and accordingly the deceased was examined by the

Medical Officer. However, the condition of the deceased

started deteriorating. Therefore, she was referred to

Chandrapur Hospital from where she was referred to

Government Medical College and Hospital at Nagpur. On

learning that her sister was admitted to Nagpur Hospital

with serious injuries, her brother Ishwar Sambhaji

Kahire went to the said hospital where the deceased

made oral dying declaration before him that the

appellant had beaten her by means of stick as she had

refused to accede to his pressure tactics to withdraw the

maintenance proceedings.

The Investigating Officer prepared spot panchnama

and seized iron Polpat used in the commission of crime.

It may be mentioned that the deceased had referred to

assault on her with stick because she was lying on bed

and could not have seen or identified the weapon when 8 assaulted. Blood stained chadar from the spot was also

attached. The Investigating Officer recorded statements

of those persons, who were found to be conversant with

the facts of the case. In spite of treatment given to the

deceased at the Government Medical College and

Hospital, Nagpur, she succumbed to her injuries at

10.30 A.M. on November 19, 1994. The Medical Officer,

in-charge of the Hospital, conducted Post Mortem. The

Investigating Officer was searching for the appellant but

the appellant was found absconding. Ultimately he was

arrested on November 28, 1994. The incriminating

articles seized were sent to Forensic Science Laboratory

for analysis. On completion of investigation, the

appellant was charge-sheeted in the court of learned

Judicial Magistrate, First Class, Wani for commission of

offences punishable under Section 302 and 498A IPC.

As the offence punishable under Section 302 IPC is

exclusively tried by a court of sessions, the case was

committed to Sessions Court, Yavatmal for trial. The 9 learned Sessions Judge framed charge against the

appellant at Exh.-18 for commission of offences

punishable under Section 302 and Section 498A of the

IPC. The charge was read over and explained to the

appellant. However, the appellant did not plead guilty to

the charge and claimed to be tried. Therefore, the

prosecution examined 11 witnesses and produced

documentary evidence to prove charge against the

appellant. After examination of the witnesses was over,

the learned Judge explained to the appellant the

incriminating circumstances appearing against him in

the evidence of prosecution witnesses and recorded his

statement under Section 313 of the Code of Criminal

Procedure. In the further statement, the case of the

appellant was that of total denial. However, he did not

examine any witness in support of his defence.

2. On appreciation of evidence adduced by the

prosecution the learned Judge held that 10 commission of offence punishable under Sections

302 and 498A IPC by the appellant were proved by

the prosecution beyond reasonable doubt.

Thereafter, the appellant and the learned Public

Prosecutor were heard on the question of sentence.

After hearing the appellant and the learned Public

Prosecutor the learned Judge by judgment dated

February 21, 2002 imposed sentence of life

imprisonment and fine of Rs.500/- in default

imprisonment for one month for commission of

offence punishable under Section 302 IPC as well

as R.I. for one year and fine of Rs.500/- in default

imprisonment for one month for commission of

offence punishable under Section 498A IPC.

3. Feeling aggrieved, the appellant preferred

Criminal Appeal No. 230 of 2002 in the High Court

of Judicature at Bombay, Nagpur Bench, Nagpur.

The Division Bench has dismissed the appeal by 11 judgment dated September 25, 2006 giving rise to

the instant appeal.

4. This Court has heard the learned counsel for the

parties at length and in great detail. This Court has

also perused the evidence on record. It may be

mentioned that the Special Leave Petition was

placed for admission hearing before this Court on

September 5, 2007. It was found that there was

delay of about 199 days in filing the special leave

petition. After hearing the learned counsel for the

appellant, the delay was condoned and notice was

issued confining to the nature of offence.

5. Though the notice is issued confining to the

nature of offence committed by the appellant, this

Court has considered evidence on record to assure

that the conviction of the appellant is well founded.

The testimony of Dr. Vinod Agrawal, who was

Lecturer in Forensic Medicine, Government Medical 12 College, Nagpur, shows that he had conducted Post

Mortem on the dead body of the deceased Pramila

Patil. In his substantive evidence the doctor has

mentioned the external as well as internal injuries

sustained by the deceased. The Medical Officer in

his deposition has stated that all the injuries found

on the body of the deceased were ante mortem and

were sufficient in the ordinary course of nature to

cause death. The doctor had also produced

corroborative evidence in the nature of post-mortem

notes prepared by him wherein external and

internal injuries sustained by the deceased are

mentioned. It is not the case of the appellant that

the deceased had died because of self-inflicted

injuries or that the injuries sustained by her were

accidental or suicidal. Under the circumstances the

finding recorded by the Sessions Court and the

High Court that the deceased had died a homicidal

death is eminently just and is hereby confirmed. 13

6. As noticed earlier two dying declarations of the

deceased were recorded - one by the Executive

Magistrate and another by the Head Constable. In

both the dying declarations the deceased has given

consistent version of the incident in question. In

both the dying declarations it was stated by her that

because she had refused to withdraw the

maintenance proceedings initiated by her against

the appellant, the appellant had entered her room

in the morning of November 12, 1994 and inflicted

blow on her head with a stick. This is not a case of

misidentification of the appellant as person who

had mounted attack on his wife because the wife

knew the appellant very well. There was no reason

for the deceased wife to falsely implicate her

husband in such a serious case and allow the real

culprit to go scot-free. The deceased had every

opportunity to identify the appellant, who was

permitted to enter the room by the deceased when 14 the door was knocked by the appellant.

Incidentally, it may be mentioned that the

testimony of child witness Sangam recorded before

the Sessions Court also makes it more than clear

that the appellant was the person who had inflicted

injury on the head of the deceased. Though this

child witness was subjected to searching cross-

examination, nothing could be brought on record so

as to impeach his credibility. The defence could not

even prima facie establish that the child witness

had given tutored version of the incident before the

Court. No major contradictions and/or

improvements with reference to his earlier police

statement could be brought to light at all. This

Court finds no reason to discredit the evidence of

the child witness. On re-appreciation of the

evidence on record, this Court finds that the finding

recorded by the Sessions Court and the High Court

that the appellant was author of the fatal injury 15 inflicted on the head of the deceased, is well

founded and no case is made out by the learned

counsel for the appellant to interfere with the same.

7. The learned counsel for the appellant maintained

that the appellant was deprived of the power of self

control by grave and sudden provocation offered by

the deceased when the deceased refused to

withdraw the maintenance proceedings and had

inflicted only one blow which ultimately resulted

into her death and as the appellant had not taken

undue advantage of the situation by inflicting

another blow, the offence committed by the

appellant would fall within `Exception 1' of Section

300 IPC and, therefore, the appellant at the best

would be liable to be convicted for commission of

offence punishable either under Part I or Part II of

Section 304 IPC.

16

8. The learned Public Prosecutor, however,

contended that no grave and sudden provocation

was offered by the deceased at all and, therefore, it

is wrong to suggest that the appellant was deprived

of the power of self control at all and as the

appellant had inflicted one blow with Stone Rolling

Pad known as Polpat on vital part of the body,

namely, head with great force which resulted into

death of the deceased, both the Courts were

justified in convicting the appellant under Section

302 IPC.

9. Though the learned counsel for the appellant has

relied on certain reported decisions to buttress the

argument that the offence committed by the

appellant would fall either under Part I or Part II of

Section 304 IPC, this Court is of the opinion that

decided cases on the basis of evidence adduced

therein can hardly constitute binding precedents in 17 criminal matter. Further there is no universal rule

that whenever a single blow is inflicted resulting

into death of the victim, the case would fall either

under Part I or Part II of Section 304 IPC. Each

case of single blow has to be decided on the facts

and circumstances obtaining in the case.

Therefore, detailed reference to the decisions cited

at the Bar, is avoided.

10. It is well settled that whenever a Court is

confronted with the question whether the offence is

murder or culpable homicide not amounting to

murder on the facts of a case, it will be convenient

for it to approach the problem in three stages. The

question to be considered at the first stage would be

whether the accused has done an act by doing

which he has caused the death of another. Proof of

such causal connection between the act of the

accused and the death leads to the second stage for 18 considering whether that act of the accused

amounts to culpable homicide as defined in Section

299. If the answer to this question is prima facie

found in the affirmative, the stage for considering

the operation of Section 300 IPC is reached. This is

the stage at which the court should determine

whether the facts proved by the prosecution bring

the case within the ambit of any of the four clauses

of the definition of murder contained in Section 300

IPC. If the answer to this question is in the

negative, the offence would be culpable homicide

not amounting to murder punishable under Part I

or Part II of Section 304 IPC, depending,

respectively, on whether second or third clause of

Section 299 IPC is applicable. If this question is

found in the positive, but the case comes within any

of the exceptions enumerated in Section 300 IPC,

the offence would still be culpable homicide not

amounting to murder punishable under the First 19 Part Section 304 IPC. The above are only broad

guidelines and not cast-iron imperatives.

11. Applying the abovementioned broad tests to the

facts of the instant case, this Court finds that it is proved

beyond pale of doubt by the prosecution that the

appellant had done the act of giving Polpat blow on the

head of the deceased and by doing this act, had caused

the death of the deceased. The positive evidence of the

Medical Officer, who conducted Post Mortem on the dead

body of the deceased, clinchingly establishes that the

injuries sustained by the deceased were sufficient in the

ordinary course of nature to cause her death, which

would bring the instant case within the purview of

Clause `Thirdly' of Section 300 IPC, which defines and

explains as to when culpable homicide is murder.

The record of the case would show that the defence

of the appellant is that of total denial. Section 105 of the

Indian Evidence Act, 1872 casts burden of proof on the 20 accused to show that his case comes within one of the

exceptions provided in IPC. Section 105 of the Evidence

Act stipulates that where a person is accused of any

offence, the burden of proving the existence of

circumstances bringing the case within any of the

general exceptions under the Indian Penal Code or within

any special exception or proviso contained in any other

part of the same Code, or in any law defining the offence,

is upon him, and the court shall presume the absence of

such circumstances. The statutory illustration (b)

appended to the said Section explains that A, accused of

murder, alleges that, by grave and sudden provocation,

he was deprived of the power of self-control; the burden

of proof is on A. When the statement of the appellant

was recorded under Section 313 of the Code of Criminal

Procedure, he did not mention existence of

circumstances bringing his case within `Exception 1' to

Section 300 IPC. Therefore, the court would be justified

in presuming absence of such circumstances. 21

Though the appellant failed to prove the existence of

circumstances bringing his case within `Exception 1' to

Section 300, the court may look to the evidence of

prosecution to find out whether the burden cast by

Section 105 of the Indian Evidence Act stands

discharged by the appellant by preponderance of

probabilities. The deceased in her two dying declarations

has clearly mentioned that when she refused to accede to

the demand of the appellant to withdraw the

maintenance proceedings, the appellant had inflicted

blow with Stone Rolling Pad on her head. Exception 1 to

Section 300 has certain provisos. The first proviso states

that the provocation is not sought or voluntarily

provoked by the offender as an excuse for killing any

person. Here in this case the wife, who was neglected by

the appellant and was not able to maintain herself and

her son, was justified in initiating maintenance

proceedings against the appellant. The appellant could

not have insisted that the proceedings against him for 22 maintenance should be withdrawn by the deceased.

Further when a lady, entitled to initiate maintenance

proceedings against her husband, refuses to accede to

unreasonable demand made by her husband to withdraw

the maintenance proceedings, it can hardly be said that

her denial to accede to such unreasonable demand

would amount to grave and sudden provocation within

the meaning of `Exception 1' of Section 300 IPC. In any

view of the matter the facts of the case clearly indicate

that the so called provocation was sought by the

appellant himself as an excuse for killing his wife and,

therefore, the appellant is not entitled to the benefit of

the provisions of `Exception 1' to Section 300 IPC.

The evidence on record shows that the deceased

was totally unarmed. The appellant had inflicted blow

with Polpat on the vital part of the body of the deceased,

namely, head and inflicted the blow with such a great

force that it resulted into her death. It is not the case of 23 the appellant that the injury on the head of the deceased

was accidental nor it is the case of the appellant that the

blow was aimed on some other part of the body and

because of supervening cause like sudden intervention

or movement of the deceased the blow struck on the

head. On the facts and in the circumstances of the case,

it will have to be held that it was the intention of the

appellant to cause that very injury which ultimately

proved fatal. As noted earlier, the medical evidence

shows that the injuries were sufficient in the ordinary

course of nature to cause death and, therefore, the

offence committed by the appellant would be punishable

as murder under Section 302 IPC and his case would not

fall under the first part or the second part of Section 304

IPC.

2. The net result of the above discussion is that

there is no substance in the appeal and the same

will have to be dismissed.

24

3. Accordingly the appeal fails and is dismissed.

..............................J. [R.V. Raveendran]

..............................J. [J.M. Panchal]

New Delhi;

July 15, 2009.