Kishore Kanhya Ravate vs State of Maharashtra

V.K. Tahilramani, J.—The appellant-original accused has preferred this Appeal against the judgment and order dated 06.10.2005 passed by the learned 3rd Ad hoc Additional Sessions Judge, Palghar in Sessions Case No. 203 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay a fine of Rs. 10,000/- in default SI for one month.

The prosecution case briefly stated, is as under:

The deceased Sundarabai Jayram Ravate was the mother of PW-1 Kamlakar and wife of PW-6 Jayram. They used to reside at Shigaon, Tal. Palghar, Dist. Thane. PW-6 Jayram and his wife deceased Sundarabai were residing in a small house in their field at Shigaon. Their son PW-1 Kamlakar was residing in the village which was at a distance of 15 minutes from the field. The agricultural land of Jayram was situated at Shigaon and agricultural land of the appellant was situated adjacent to the agricultural land of PW-6 Jayram. There was a dispute between Jayram and his family on one side and the appellant on the other side on account of compound of cactus plants in between agricultural land of PW-6 Jayram and PW-1 Kamlakar. About ten days prior to the incident, PW-6 Jayram removed some of the cactus plants which were on the boundary between the land of PW-6 Jayram and the land of the appellant. PW-6 Jayram removed some cactus plants which formed part of the compound wall so that his bullocks could get easy access to his field. As PW-6 Jayram has removed the cactus plants forming the boundary wall, the appellant and the brother of the appellant had assaulted PW-1 Kamlakar who was son of PW-6 Jayram, and therefore, PW-6 Jayram and PW-1 Kamlakar went to the MIDC Police Station and lodged a complaint. The incident in the present case occurred eight days thereafter.

(b) The incident took place on 09.08.2004. At about 12.30 p.m., PW-1 Kamlakar went to his house in the village to have lunch. He cooked rice. Then, he thought he would have lunch with his parents. Hence, he went to the field with the cooked rice. In the field he saw his father was having lunch but his mother was not in the field. PW-1 Kamlakar, then, asked his father where his mother had gone, whereupon PW-6 Jayram replied that Sundarabai had gone to bring bullocks. Then, PW-1 Kamlakar went in search of his mother in their field. He did not find his mother. He saw their bullocks were grazing in the field. Then, PW-1 Kamlakar and his father went in search of Sundarabai. They went towards forest plot where grass had grown. There Kamlakar saw the appellant sitting on the chest of Sundarabai and pressing her throat. At that time, Sundarabai was lying on the ground. Then, PW-1 Kamlakar pulled the appellant away and gave fist blow to the appellant. The appellant then ran away. PW-1 Kamlakar noticed that his mother was dead. He saw finger marks upon the neck of his mother. PW-1 Kamlakar then went to the MIDC Police Station and lodged FIR (Exhibit-8). Thereafter, investigation commenced. The dead body of Sundarabai was sent for postmortem. PW-8 Dr Metkar conducted postmortem on the dead body of Sundarabai. In his opinion, the cause of death was due to cardio respiratory failure due to pulmonary asphyxia due to throttling. After completion of investigation, the charge sheet came to be filed.

Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal.

We have heard the learned counsel for the appellant and the learned APP for the State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the reasons stated below, we are of the opinion that the appellant strangulated Sundarabai and caused her death.

The conviction is mainly based on the evidence of two eye witnesses i.e. PW-1 Kamlakar and PW-6 Jayram. PW-1 Kamlakar was son of deceased Sundarabai and PW-6 Jayram was husband of deceased Sundarabai. PW-1 Kamlakar has stated that Sundarabai was his mother. The appellant was his cousin brother. Kamlakar stated that the agricultural field of his father PW-6 Jayaram was situated at Shigaon. The agricultural field of the appellant was situated adjacent to the agricultural field of PW-6 Jayram. There was a dispute in relation to the compound wall created by cactus plants between the agricultural field of the appellant and the agricultural field of PW-6 Jayram. Eight days prior to the incident, PW-6 Jayram has removed some part of the compound wall for easy access of his bullocks in his field. On account of removal of part of the compound wall, a dispute took place between the appellant on one side and PW-6 Jayram and PW-1 Kamlakar on the other side. The appellant then assaulted PW-1 Kamlakar with fist blows. PW-1 Kamlakar has further stated that there was a small house in their field where his mother Sundarabai and father Jayram were residing. In the afternoon, PW-1 Kamlakar went to his house in the village. There he cooked rice. Then, he came with the cooked rice to the field so that he could have food with his mother. When he reached the field, he saw his father having lunch but his mother was not seen in the field. Then, Kamlakar asked his father PW-6 Jayram where his mother Sundarabai was. His father Jayram replied that she had gone to bring bullocks. Then, PW-1 Kamlakar went in search of his mother in his field. His father also followed him. Kamlakar did not find Sundarabai in the field. He saw bullocks were grazing in the field. After crossing some distance, PW-1 Kamlakar saw the appellant sitting on the chest of his mother and pressing her throat and at that time his mother was lying on the ground. Then, Kamlakar pulled the appellant away and gave him fist blows. The appellant then ran away. PW-1 Kamlakar saw that his mother had expired on the spot.

The second eye witness is PW-6 Jayram. PW-6 Jayram has stated that deceased Sundarabai was his wife. The complainant PW-1 Kamlakar is his son. The appellant is his nephew i.e. son of his elder brother. PW-6 Jayram has stated that the appellant had made a compound of cactus plants around his field. PW-6 Jayram broke little part of that compound wall of cactus plants. Due to this, the appellant and his brother Dashrath assaulted his son PW-1 Kamlakar. Then, he and PW-1 Kamlakar went to MIDC Police Station and lodged complaint. The incident occurred 8 days thereafter.

On the day of the incident, he and his wife Sundarabai had gone to the field. At about 11.00 a.m. his son PW-1 Kamlakar went to his house in the village for taking lunch. PW-1 Kamlakar came back to the field at about 1.30 p.m. PW-1 Kamlakar asked PW-6 Jayram where his mother was. PW-6 Jayram told Kamlakar that his mother Sundarabai had gone to bring the bullocks. Jayram told Kamlakar to go and bring bullocks and also call his mother Sundarabai. Kamlakar came back in a short while and told him that the bullocks were there but his mother was not there. Then, PW-1 Kamlakar and PW-6 Jayram both went in search of Sundarabai. After some distance, there was culvert. They climbed on the said culvert and then they saw that Sundarabai was lying on the ground and the appellant was sitting on her chest and pressing her throat. Both PW-1 Kamlakar and PW-6 Jayram witnessed the said incident. Then, PW-1 Kamlakar went near the appellant and caught hold of his hair and lifted the appellant from the body of Sundarabai. PW-1 Kamlakar also gave fist blow to the appellant. Thereafter, the appellant ran away. Then, PW-6 Jayram went and informed the Police Patil of the village i.e. PW-3 Madhukar Patil. Then, PW-1 Kamlakar lodged FIR. Nothing has been elicited in the cross examination of both PW-1 Kamlakar and PW-6 Jayram to cause us to disbelieve their testimony.

The evidence of PW-6 Jayram is corroborated to some extent by the evidence of PW-3 Madhukar Patil, who was Police Patil of the village at that time. PW-3 Patil has stated that on 02.08.2004, the mother of the appellant had come to his house and informed that some portion of the cactus plants of their field was removed by PW-6 Jayram due to which quarrel took place between the appellant and PW-6 Jayram. He told the mother of the appellant to tell PW-6 Jayram that he had called him. On the next day, Sundarabai, her husband PW-6 Jayram and PW-1 Kamlakar came to his residence. At that time, he saw injury on the head of PW-1 Kamlakar, hence, he asked PW-1 Kamlakar about it. PW-1 Kamlakar replied that the appellant and his brother had assaulted him. Then, PW-1 Kamlakar told him that they will go to the Police Station at Boisor and lodge complaint. Accordingly, they went to Boisar Police Station. The evidence of PW-3 Madhukar Patil further shows that on 09.08.2004 at about 2.30 to 2.45 p.m., PW-6 Jayram came to his house. At that time, Madhukar Patil was in his field. Then, PW-6 Jayram came to his field and met him. PW-6 Jayram informed him that the appellant assaulted Sundarabai and she died. Thereafter, PW-3 Madhukar Patil told Jayram to go to the Police Station. Accordingly, Jayram and Kamlakar went to Boisar Police Station.

The evidence of PW-1 Kamlakar, PW-6 Jayram, PW-3 Madhukar Patil and PW-4 Laloo Tambade shows the motive for the appellant to commit the crime. We have already discussed the evidence of PW-1 Kamlakar and PW-6 Jayram. The evidence of PW-3 Madhukar Patil shows that there was a dispute between the appellant and the family of Sundarabai on account of removal of boundary wall of the field of the appellant and PW-6 Jayram. PW-4 Laloo Tambade has also stated about this dispute.

The learned counsel for the appellant submitted that there are only two eye witnesses in the present case i.e. PW-1 Kamlakar and PW-6 Jayram. Both these witnesses were closely related to the deceased-Sundarabai and they were interested witnesses, hence, it will be unsafe to rely upon their testimony. As far as this aspect is concerned, in the decision by four Judges of the Supreme Court, in the case of Masalti Vs. State of U.P., AIR 1965 SC 202 : (1964) 8 SCR 133 , it is observed that "it would, we think, be unreasonable to contend that evidence given by the witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses......... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice." The Supreme Court has observed in Masalti (supra) that the evidence of interested witnesses should be carefully read and scrutinized. We have carefully scrutinized and read the evidence of PW-1 Kamlakar and PW-6 Jayram and we find that their testimony inspires confidence. Hence, we have no hesitation in relying on the same. Therefore, we do not find much merit in the contention raised by the learned counsel for the appellant.

It is prosecution case that the appellant throttled Sundarabai and caused her death. This is supported by the medical evidence. PW-8 Dr. Metkar conducted postmortem on the dead body of Sundarabai. On external examination, he found the following injuries on her person:-

(1) Abrasion over right cheek 2 x .5 c.m. horizontal direction.

(2) Abrasion over chin .5 x .5 c.m.

(3) Multiple abrasion over ventral aspect of neck of size 6 x .5 cm. oblique direction.

(4) Crescentic abrasion by nail over left and right side of neck

(5) Multiple bruises over midline of neck in ventral aspect 2 x .5 c.m.

(6) Abrasion over right shoulder tip 1 x 2 c.m.

(7) Abrasion over left wrist joint 3 x 1 c.m. horizontal direction.

(8) Abrasion over tip of left little finger .5 x .5 c.m.

Dr. Metkar found following internal injuries:-

(1) Fracture laryngeal cartilage.

(2) Fracture greater cornu of hyoid bone broken ends directed inwards

According to Dr. Metkar, all the above injuries were ante-mortem. Dr. Metkar also noticed blood oozing from nostrils and blood stains on mouth. Face was cyanosed. In his opinion the probable cause of death was due to Cardio respiratory arrest due to pulmonary asphyxia due to throttling. In the opinion of Dr. Metkar injuries found on the dead body were sufficient in the ordinary course of nature to cause death. In Dr. Metkar''s opinion such injuries are possible if a person presses the neck of another person. Dr. Metkar further stated that all the abrasion injuries mentioned in the P.M. notes are possible due to scuffle.

There is one other circumstance which further supports the prosecution case though in a small measure. This circumstance is that, when the appellant was arrested, he was sent for medical examination. PW-9 Dr. Thakur examined the appellant. On examination of the appellant, he found following injuries on his person:-

(1) Contusion over right side scapular region.

(2) 3 x 3 tenderness over right side neck.

(3) Abrasion 2 x 1 x 4 right side neck horizontal region.

Dr. Metkar has stated that such injuries are possible during scuffle or if a person is pushed causing him to fall down. Obviously, when the appellant was trying to strangulate Sundarabai, she must have put up some resistance and during this scuffle the appellant must have received some injuries. Moreover, the evidence of PW-1 Kamlakar as well as PW-6 Jayram shows that PW-1 Kamlakar assaulted the appellant when he saw the appellant strangulating his mother.

The learned counsel for the appellant then relied on the decision of the Supreme Court in the case of Budhi Lal Vs. State of Uttarakhand, AIR 2009 SC 87 : (2009) CriLJ 360 : (2008) 10 JT 572 : (2008) 12 SCALE 848 . The learned counsel pointed out that in the said case the accused has strangulated his wife and the Court held that the case would fall under Section 304 Part-I of IPC. On carefully considering the decision, it is seen that in the said case the accused suspected fidelity of his wife and he suspected that she was having illicit relation with one Jaspal and on the night of the incident, Jaspal had come to the house of accused. It was in these circumstances that the incident took place. Such are not the facts in the present case. The factual scenario in the present case is entirely different. Moreover, in the case of Budhi Lal (supra), the Supreme Court has observed as under:-

"Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. it must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, Viz., that the injury found to be present was the injury that was intended to be inflicted."

The evidence of PW-8 Dr. Metkar, who conducted the postmortem clearly shows that the injuries found on the deceased were sufficient in the ordinary course of nature to cause death. Moreover, from the evidence on record, it is clear that the appellant had either intention to cause death of deceased Sundarabai or he did the act with intention of causing bodily injury which bodily injury was sufficient in the ordinary course of nature to cause death which is seen from his act of sitting on the chest of Sundarabai and throttling her. Thus, the case would not fall under Section 304 Part I of IPC but it would clearly fall under Section 302 of IPC.

On going through the record, we are of the opinion that there is sufficient evidence to prove beyond reasonable doubt that the appellant committed murder of deceased Sundarabai. Thus, we find no merit in the appeal. The appeal is dismissed.