2010 ALL MR (Cri) 789
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. LAVANDE AND P.B. VARALE, JJ.
State Of Maharashtra Vs. Tulshiram S/O. Mahu Potavi
Criminal Confirmation Case No.1 of 2009,Criminal Appeal No.87 of 2009
2nd December, 2009
Petitioner Counsel: Mrs. B. H. DANGRE
Respondent Counsel: Mr. R. M. DAGA
Penal Code (1860), S.302 - Sentence - Death penalty - Murder case - No evidence that accused is anti-social or that he is menace to the society or that he cannot be reformed - Accused young man of 27 years - Death sentence imposed by trial Court, not justified - Accused deserves sentence of imprisonment for life with minimum sentence of twenty years. (2008)2 SCC (Cri) 322, 2006 ALL MR (Cri) 686 and (2008)2 SCC (Cri) 264 - Ref. to. (Para 17, 18)
Machhi Singh Vs. State of Punjab, AIR 1983 SC 957 [Para 3,4,16]
Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 [Para 4,16]
Machhi Singh Vs. State of Punjab, AIR 1983 SC 957 [Para 4]
Aloke Nath Dutta Vs. State of West Bengal, (2008)2 SCC (Cri) 264 [Para 4]
Swamy Shraddananda Vs. State of Karnataka, (2008)2 SCC (Cri) 322 [Para 4]
Deepak Vasant Kale Vs. State of Maharashtra, 2006 ALL MR (Cri) 686 [Para 18]
Prakash Khairnar Vs. State of Maharashtra, 2002(2) SCC 35 [Para 18]
Dalbir Singh Vs. State of Punjab, (1979)3 SCC (Cri) 848 [Para 18]
Ram Anup Singh Vs. State of Bihar, (2002)6 SCC 686 [Para 18]
Shri. Bhagwan Vs. State of Rajasthan, (2001)6 SCC 296 [Para 18]
A. P. LAVANDE, J.:- Confirmation Case No.1/2009 and Criminal Appeal No.87/2009 are being disposed of by common judgment since they arise out of judgment and order dated 6th January, 2009 passed by 1st Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Case No.49/2008 convicting the appellant-accused for the offences punishable under Sections 302 and 307 of the Indian Penal Code. By the impugned judgment, the accused has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to death and to pay fine of Rs.500/-. The accused has been further convicted to suffer imprisonment for 10 years and to pay fine of Rs.500/- for offence punishable under Section 307 of the Indian Penal Code. The accused has been convicted for committing murder of deceased Ammubai Vitthal Gawade and attempting to murder her daughter Sunita on 3.2.2008.
On 3.2.2008 Vithal the husband of deceased Ammubai, who was residing with his family members in his village Gawhal Heti in Gadchiroli district had been to village Kuthegaon. His sons Madhukar, Sudhakar and Divakar had been to the dinner arranged after Kabaddi tournament held in the village. Deceased and her daughter Sunita were sleeping in the courtyard of their house on a cot. At about 9.00 p.m. the deceased raised alarm and Sunita saw the accused standing near her cot armed with axe. The accused also assaulted her and her mother by means of axe on the head. Sunita raised alarm. Thereafter the villagers rushed to the spot and took both the injured to General Hospital at Gadchiroli.
At the hospital, the statement of injured Sunita was recorded by PSI Kavthare. Ammubai had succumbed to her injuries before reaching the hospital. On the basis of the statement of Sunita, offence was registered against the accused vide F.I.R. 18/2008. The dead body of Ammubai was referred for autopsy. Further investigation was carried out by PSI Ramaghare. Spot panchanama and seizure panchanama were conducted. Thereafter the post mortem was also conducted on the dead body of deceased Ammubai. Since the accused had ran away from the spot, wireless message was issued to all the police stations. P.S.I. Dede attached to police station, Jarawandi noticed accused moving in a suspicious circumstances on 5.2.2008 at about 1.30 p.m. Therefore, he was arrested and axe stained with blood which was with the accused and his clothes which were also stained with blood were seized. On 6.2.2008 the accused was being brought from Police Station Jarawandi to police station Gadchiroli. On the way the accused was taken to Sub-Police Station Pendhari as per the practice followed by the police to ensure safe passage since the entire Gadchiroli district is naxal affected. At police sub-station, Pendhari where PSI Ramaghare took custody of the accused along with seized clothes and axe. Panchanama was accordingly prepared. On 8.2.2008 an axe was referred to medical examination for his opinion. During the investigation, injury certificate of injured along with x-ray plates came to be seized. Thereafter the statements of various witnesses were recorded by the Investigating Officer and after completion of the investigation, charge-sheet was filed in the Court of J.M.F.C. Gadchiroli. Since the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Gadchiroli. In Sessions case No.49/2008 before the 1st Ad-hoc Additional Sessions Judge, Gadchiroli, the prosecution examined 15 witnesses and produced several documents to prove the case against the accused. The accused pleaded not guilty to the charge. His defence was of total denial and false implication at the instance of Malabai Potavi (PW-1) on account of refusal by Ammubai to solemnize the marriage of her daughter with him. The learned Additional Sessions Judge accepted the prosecution version and by impugned judgment and order convicted and sentenced the accused as stated above.
3. Mr. Daga, learned counsel for the appellant submitted that the evidence brought on record by the prosecution does not prove that the accused committed murder of deceased Ammubai and that he attempted to commit murder of Sunita. He further submitted that the evidence of Sunita does not deserve acceptance because she has not come up with entire truth as is evident from her cross-examination. He further submitted that having regard to the medical evidence, it cannot be said that the assault of deceased Ammubai was barbaric or that the murder was gruesome. According to Mr. Daga, offence of murder even if it is held to be proved, it cannot be said that this is a "rarest of rare" case deserving imposition of death sentence and, therefore, death sentence imposed on the accused deserves to be set aside. According to Mr. Daga, the prosecution version that the accused was arrested with blood stained clothes and blood stained axe on 5.2.2008 is improbable since it is difficult to accept that the accused after committing murder on the night on 3.2.2008 would move with blood stained clothes and with blood stained axe on 5.2.2008. According to Mr. Daga, learned trial Judge has not taken into consideration the mitigating circumstances while considering the imposition of death sentence on the accused for the offence of murder, in terms of judgment of the Apex Court in the case of Machhi Singh and others Vs. State of Punjab : AIR 1983 SC 957. According to Mr. Daga, the following are the mitigating circumstances :
(i) the offence was not committed for money or property;
(ii) Crime was not organized;
(iii) there is no evidence that the accused is ante social;
(iv) there is no evidence that the accused is menace to the society and beyond reformation, and
(v) the accused is young man of 27 years and is capable of reformation.
4. Learned counsel further submitted that there are no special reasons in terms of Section 354(3) of the Code of Criminal Procedure for imposition of death of sentence. In support of this submission, learned counsel relied upon the following authorities :
(i) Bachan Singh Vs. State of Punjab : AIR 1980 SC 898;
(ii) Machhi Singh and others Vs. State of Punjab : AIR 1983 SC 957;
(iii) Alok Nath Dutta and others Vs. State of West Bengal : (2008)2 SCC (Cri) 264, and
(iv) Swamy Shraddananda Vs. State of Karnataka : (2008)2 SCC (Cri) 322.
Mr. Daga submitted that the sentence imposed on the accused for the offence under Section 307 of the Indian Penal Code is hard and excessive.
5. Per contra, Mrs. Dangre, Additional Public Prosecutor submitted that there is cogent evidence on record to establish the offences punishable under Sections 302 and 307 of the Indian Penal Code against the accused beyond reasonable doubt. According to learned APP, evidence of injured witness Sunita Gawade (PW-3) is convincing, cogent and corroborated by the medical evidence and as such there is absolutely no reason to disbelieve the prosecution version. According to learned APP, the prosecution evidence if taken as a whole proves beyond reasonable doubt that the accused committed murder of deceased Ammubai with an axe by assaulting her brutally and also caused serious injuries to Sunita and the said injuries were sufficient in the ordinary course of nature to cause her death. Learned APP submitted that the present case is "rarest of rare" and, therefore, the death sentence imposed on the accused by the trial Court does not deserve interference. The offence committed by the accused is pre-meditated with cruelty and brutality. According to learned APP, the victim was helpless and, therefore, considering all these circumstances, the imposition of death sentence on the accused cannot be faulted.
6. We have carefully considered the submissions made by learned counsel appearing for the accused and learned APP appearing for the State and perused the record and the authorities relied upon by Mr. Daga.
7. Since the prosecution claims that Sunita Gawade (PW 3) is an injured eye-witness, it would be appropriate to appreciate her evidence first. Sunita Gawade (PW 3) deposed that she knew the accused present before the Court, who was serving as servant at the house of her maternal aunt. She deposed that the incident took place about six months' back at about 9.00 p.m. when she and her mother was sleeping on the cot in the courtyard of their house. Their father had been to Kuthegaon and brothers also had gone for dinner arranged after the Kabaddi tournament. At the time of the incident she was sleeping. She was given two blows on her head and she saw that the accused was standing near the cot with an axe. He assaulted her and her mother on account of which she sustained bleeding injury on her head. She became unconscious but before that she raised alarm, her sister-in-law and Jogi rushed to the spot. At that time, the accused ran away from the spot. Thereafter she went to the house of Jogi and became unconscious. Thereafter the villagers took her and her mother to the hospital. Her mother died at the hospital. Her statement was recorded at the hospital, Gadchiroli. The witness further deposed that the accused wanted to marry her but she had refused and, therefore, she and her mother were assaulted. She identified her signature on the statement recorded by the police which was treated as report (Ex.17). She further deposed that she was an indoor patient at the hospital. In cross-examination the witness denied that there was love affair between her and the accused for about one and half years to two years of the incident or that the accused used to visit their house frequently. She also denied that the accused wanted to marry her and she was also ready for the marriage. She also denied that on the date of the incident the accused told her about marriage. The witness was confronted with the portion which reads thus :
"Tulshiram Potavi used to come to meet me in the absence of my family members. I was having love-affair with him since about one year. He always used to ask me for marriage. My mother and father had come to know about our love-affair. Tulshiram was not doing any work whatsoever. He used to move here and there and his village was in the jungle near Jarawandi and there was no proper road to go to his village. Hence, my mother Ammubai was against our marriage."
The witness stated that the portion marked above in her statement was not correct. She could not assign any reason as to why the statement made by her that she woke up when she was assaulted was not mentioned in her statement. She denied suggestion that at the time of the incident there was exchange of words between herself, her mother and the accused. She denied that at the time of incident her mother had asked the accused not to express his desire to marry her and because of the same, the incident had taken place.
8. Upon close scrutiny of the evidence of above witness, it is clear that the accused does not deny his presence at the time of the incident but it is the case of the accused that the incident occurred since the mother of Sunita rejected the proposal of the accused to marry Sunita. The witness has been confronted with the police statement in which she had stated that she had love affair with the accused and her mother was against their marriage. However, even the case set up by the accused is accepted, the same would not exonerate the accused and thereby would not justify the act of the accused assaulting the deceased Ammubai and Sunita with an axe on vital parts. Moreover, the evidence clearly suggests that the accused had come with an axe. If the accused had come simply to express his desire to marry Sunita there was no reason for the accused to carry with him an axe. Thus, the evidence of Sunita clearly establishes that the accused came with an axe with an intention to assault the deceased Ammubai as well as Sunita and assaulted both of them on vital parts.
9. The evidence of Sunita stands corroborated by Battabai Gawade (PW 4) the daughter-in-law of deceased Ammubai. She deposed that on the date of the incident at about 10.00 p.m. her mother in law and sister-in-law were sleeping on the cot in the courtyard of their house and fire was ignited near the cot since it was very cold. She heard alarm raised by her mother in law that she was being assaulted. At that time, she was sleeping in the house. She woke up and saw from the window that the accused was assaulting her mother in law and thereafter he also assaulted her sister-in-law. Her sister-in-law went to the house of their neighbour. She immediately came out of the house and went near mother in law and saw bleeding injuries over her head, right hand and right leg and her clothes were stained with blood. There was blood on the ground also. She gave water to mother in law. Thereafter Malabai and other villagers came there and took her mother-in-law and sister-in-law to the hospital. Her mother in law died in the same night.
10. In the cross-examination only two suggestions that she had not witnessed the incident as she was inside the house and that the accused had not assaulted her mother in law have been given to the witness which have been denied by the witness. No doubt, there is variation between the testimonies of Sunita (PW 3) and this witness as to sequence in which the accused assaulted Ammubai and Sunita. But this fact, by itself, is not fatal to the prosecution inasmuch as the evidence of Battabai, whose presence in the house at the relevant time was quite natural inspires confidence. Her evidence also corroborates the evidence of Sunita (PW 3). Thus, the evidence of above referred two witnesses considered in the light of defence taken by the accused clearly establishes that the accused assaulted deceased Ammubai and Sunita with an axe on 3.2.2008 at about 9.30 p.m., causing death of Ammubai and serious injuries to Sunita.
11. The evidence of the above referred witnesses also stands corroborated by the medical evidence. Dr. Prashant Akhade (PW 5) who conducted post-mortem examination on the dead body of Ammubai, Dr. Prashant Akhade found the following injuries on the person of the deceased :
(i) Deep lacerated penetrating injury over left side of face extending from Medical angle of left eye along left side of nose of chin across the mouth having size of 13 c.m. x 3 c.m. x 7 c.m. associated with tooth avulsion and fracture of upper and lower jaw and under line maxillary bone;
(ii) Crescent shaped lacerated wound having size of 11 c.m. x 1 c.m. over scalp on left temporal parietal region;
(iii) Penetrated wound over right elbow extensor surface having size of 6 c.m. x 3 c.m. x 5 c.m. and 4 c.m. x 2 c.m. x 2 c.m. over left forearm extensor surface;
(iv) Lacerated wound having size of 5 c.m. x 2 c.m. x 2 c.m. over left forearm extensor surface;
(v) Lacerated wound over left knee posteriorly and laterally having size of 4 c.m. x 2 c.m. x 2 c.m.;
(vi) Lacerated wound over medical aspect on left knee having size of 4 c.m. x 2 c.m. x 1 c.m.;
(vii) Abrasion on right dorsum of hand having size of 7 c.m. x 1 c.m.;
(viii) Lacerated wound over tongue having size of 3 c.m. x 2 c.m.;
(ix) Fracture of left maxillary bone over upper and lower jaw with avulsion of teeth;
(x) Dislocation of right elbow with fracture of upper end of both bone of forearm;
(xi) Fracture of upper end of left tibia; and
(xii) Fracture of right first metacarpal with avulsion of right thumb with skin tag attached.
The witness further deposed that the injuries were ante mortem and were caused within 12 hours from the examination and caused by sharp edged heavy object. The cause of death was due to injuries on account of hemorrhagic shock with neurogenic shock. She identified her signature on the post-mortem report at (Ex.20). The witness further deposed that the injuries could have been caused by multiple blows and injuries mentioned in column nos.17 and 18 of the report could have been caused by forceful blows of axe.
In cross-examination the witness denied that injuries mentioned in column nos.17 and 18 were possible on account of fall on a substance like iron rod. The post-mortem report (Ex.20) also corroborates the ocular testimony to which we have already made reference.
12. The evidence of Dr. Madhuri Uikey (PW 14) who had examined Sunita Gawade examined on 4.2.2008 at about 2.00 a.m. at General hospital, Gadchiroli discloses that she found the following injuries on the person of Sunita :
(i) Lacerated wound on head on right tempero parietal region, having size of 15 c.m. x 3 c.m. x bone deep with fracture of underline bone;
(ii) Lacerated wound on left front parietal region having size of 35 c.m. x 3 c.m. x bone deep;
(iii) Lacerated wound on right shoulder having size of 5 c.m. x 2 c.m. x 2 c.m.;
(iv) Lacerated wound over right palm admeasuring 7 c.m. x 2 c.m. x 1 c.m.;
(v) Fracture dislocation of right acromioclavicular; and
(vi) Lacerated wound over right hand on dorsal aspect at metacarpo phalangeal joint having size of about 5 c.m. x 2 c.m. x bone deep with fracture of right ring and little finger.
She further deposed that injuries sustained by Sunita could have been caused by hard and blunt object within six hours of her examination and the injuries over the skull were sufficient to cause death in normal circumstances. She identified her signature on the injury certificate (Ex.50) and stated that its contents were correct. She deposed that the injuries mentioned in Ex. 50 could have been caused by axe. She further deposed that in case medical treatment was not provided immediately, Sunita could have succumbed to her injuries. In cross-examination the witness denied the suggestion that the injuries suffered to Sunita were possible by falling on the ground. Thus the evidence of Dr. Madhuri Uikey (PW 14) clearly proves presence of serious injuries on the vital parts of Sunita and that the injuries suffered by Sunita were sufficient in the ordinary course of nature to cause death and that Sunita survived on account of prompt medical treatment. Thus, the prosecution evidence is cogent and convincing and clearly proves the complicity of the accused in the commission of offence of murder of Ammubai and attempt to commit murder of Sunita.
13. We do not deem it necessary to refer to other evidence like recovery of axe from the accused and presence of blood on the clothes of the accused etc., inasmuch the evidence referred to above is more than sufficient to establish the complicity of the accused in the commission of the offences punishable under Sections 302 and 307 of the Indian Penal Code.
14. The next question, which arises for consideration, is whether the sentences imposed on the accused for the offences punishable under Sections 302 and 307 of the Indian Penal Code are harsh. and disproportionate.
15. Insofar as Section 302 of the Indian Penal Code is concerned, the learned trial Judge in paragraph 41 of the judgment held that offence of murder was committed in a planned manner and the murder was gruesome. The learned Judge further held that considering barbaric act of the accused and considering the legal position about rarest of rare case, he was of the opinion that the accused had committed offence falling within the category of rarest of rare case and therefore, he deserved death sentence.
16. In the case of Machhi Singh (supra) the Apex Court after referring to the judgment of the Apex Court in Bachan Singh Vs. State of Punjab (supra) held that the life imprisonment is the rule and death sentence is an exception which has to be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime. The Apex Court further held that balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The Apex Court held that before sentencing the accused to death sentence, the Court must address itself to the following questions :
(A) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?
(B) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
17. In the present case, no doubt, the assault on deceased Ammubai was pre-mediated inasmuch as the accused had come to the spot with an axe and the assault was barbaric. However, the fact remains that murder was committed on account of the fact that Ammubai rejected the proposal of the accused to marry her daughter Sunita with whom the accused appeared to be in love. There is no evidence that the accused is ante social or that he is menace to the society or that he cannot be reformed. The accused is a young man of 27 years. Therefore, considering the aggravating and mitigating circumstances, we are of the considered opinion that death sentence imposed by the learned trial Judge is not justified. We are of the considered opinion that the accused does not deserve death sentence. In our considered opinion, this is a fit case in which the accused deserves sentence of imprisonment for life. Therefore, while maintaining the conviction of the accused for offence punishable under Section 302 of the Indian Penal Code and we maintain the fine imposed by the trial Judge.
18. We have already held that the accused does not deserve death sentence. However, having regard to the weapon used and the manner in which the accused assaulted deceased Ammubai and injured Sunita, the two helpless ladies while they were sleeping, we are of the considered opinion that though this is not a "rarest of rare case" the accused must undergo a minimum sentence of imprisonment of twenty years. In Deepak Vasant Kale Vs. State of Maharashtra (2006 ALL MR (Cri) 686). the Division Bench of this Court to which one of us (A. P. Lavande, J.) was a party after considering the Judgments of the Apex Court in Prakash Khairnar Vs. State of Maharashtra (2002(2) SCC 35); Dalbir Singh Vs. State of Punjab, (1979)3 SCC (Cri) 848; Ram Anup Singh Vs. State of Bihar, (2002)6 SCC 686 and Shri. Bhagwan Vs. State of Rajasthan, (2001)6 SCC 296 held that although the accused did not deserve death sentence the accused had to undergo minimum sentence of twenty years having regard to the manner in which the murder was committed.
In the present case, therefore, while converting the death sentence of the accused to life imprisonment we order that the accused shall not be released unless he undergoes the actual period of twenty years imprisonment.
19. Insofar as the sentence of imprisonment of 10 years R.I. on the accused for offence punishable under Section 307 of the Indian Penal Code is concerned, we find merit in the submission of Mr. Daga that the same is excessive. In our opinion, considering the facts and circumstances and the injuries suffered by Sunita (PW 3) interest of justice would be served if the sentence is reduced to R.I. for five years and the fine is maintained.
20. In the result, therefore, Criminal Appeal No.87/2009 is partly allowed. The conviction of appellant-accused for the offence punishable under Section 302 of the Indian Penal Code is maintained. However, the death sentence imposed on him is set aside and sentence is reduced to life imprisonment subject to the condition that the accused shall not be released unless he completes twenty years of actual imprisonment. Insofar as the offence punishable under Section 307 of the Indian Penal Code is concerned, the conviction of the appellant is maintained. However, the sentence is reduced to five years R.I.. The fine is maintained. Both the sentences are ordered to be run concurrently.