Criminal Appeal No.65 of 2015

4th January, 2017.

Petitioner Counsel: Mr. AVINASH GUPTA, Sr. Adv. with Mr. AAKASH GUPTA and Mr. V.J. GUPTA
Respondent Counsel: Mrs. M.H. DESHMUKH, A.P.P.
Other Counsel: Mr. S.P. SONWANE

Cases Cited:
State of A.P. Vs. Punati Ramulu and Ors., 1994 SCC (Cri) 734 [Para 9]
The State of Maharashtra Vs. Wafati Babu Qureshi and Ors., 1997 ALL MR (Cri) 518 [Para 9]
Ashok Raghunath Bawane and Ors. Vs. State of Maharashtra, 2007 ALL MR (Cri) 2554 [Para 9]
Mahadu Pandhari Sonar Vs. State of Maharashtra, 2011 ALL MR (Cri) 1591 [Para 9]
Laxman Bapurao Ghaiwane Vs. The State of Maharashtra, 2012 ALL MR (Cri) 3605 [Para 9]
Virsa Singh Vs. State of Punjab, 2007 ALL SCR (O.C.C.) 33=AIR 1958 SC 465 [Para 10]
Sri Rabindra Kumar Dey Vs. State of Orissa, 1976 SCC (Cri) 566 [Para 12]
Dudh Nath Pandey Vs. State of Uttar Pradesh, 2014 ALL SCR (O.C.C.) 97=1981 SCC (Cri) 379 [Para 12]
Devku Bhikha Vs. State of Gujarat, (1996) 11 SCC 641 [Para 12]
State of Goa Vs. Vaman Rama Salgaonkar, 2001 ALL MR (Cri) 1840 [Para 12]
State of Haryana Vs. Ram singh, 2001(4) ALL MR 544 (S.C.)=(2002) 2 SCC 426 [Para 12]
Munshi Prasad and Ors. Vs. State of Bihar, (2002) 1 SCC 351 [Para 12]
Shamrao Mahadu Khokale Vs. The State of Maharashtra, 2002 ALL MR (Cri) 353 [Para 12]
Mirchu Gumanmal Damnani Vs. State of Maharashtra, 1998 ALL MR (Cri) 1158 [Para 18]
Baba @ Gulam Raza Hussain Hadi Tapti Vs. State of Maharashtra and Anr., 2000 ALL MR (Cri) 423 [Para 18]
Vinod Vasant Mahadik Vs. The State of Maharashtra, 2013 ALL MR (Cri) 1363 [Para 18]
Prakash Baburao Ingale Vs. The State of Maharashtra, 2016 ALL MR (Cri) 4645 [Para 18]
Manoj s/o Onkarprasad Sisodia Vs. The State of Maharashtra, Cri. Appeal. No.268/2012, dt. 09.10.2014 [Para 18]

JUDGMENT

KUM. INDIRA JAIN, J. :- This appeal is preferred by Appellant-Accused against the judgment and order dated 29.12.2014 passed by the learned Sessions Judge, Nagpur in Sessions Trial No.237/2011. By the said judgment and order, learned Sessions Judge convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and a fine of Rs.10,000/-, in default to suffer further R.I. for two years. Accused was, however, acquitted of the offence punishable under Section 5 r/w Section 25 of the Indian Arms Act, 1959.

2. For the sake of convenience, we shall refer the Appellant in his original status as Accused as he was referred before the Trial Court.

3. Prosecution case briefly stated is as under :

i. Accused was married to Neeta in the year 1984. After marriage, Neeta started cohabiting with accused at Sakoli, District-Bhandara. Couple was blessed with son Aditya and daughter Aditi.

ii. Initially for two years, Accused and Neeta led happy married life. According to prosecution, after two years, accused started picking up quarrels with his wife on trivial reasons. She was not allowed to visit her parents. He used to beat and illtreat Neeta suspecting her chastity.

iii. In the year 1994, Neeta, Aditya and Aditi shifted to Nagpur for the education of children. Accused, a Medical Practitioner, continued his profession at Sakoli and kept on visiting Nagpur often.

iv. In September, 2010, Neeta received a message that her mother was suffering from cancer. She requested the husband to allow her to see her ailing mother. Accused severely assaulted Neeta that time and did not allow her to visit her maternal place.

v. Once Neeta received SMS on her cellphone in the form of poetry. This SMS was from unknown number. She found the message good and forwarded the same to accused. On receiving message, accused got angry and rushed to Neeta. He started searching the number of sender of SMS. By that time, Neeta had deleted the message from her cell-phone. There was exchange of hot words between the duo. Being fed up, Neeta informed her brother Prashant to come to fetch her.

vi. On 27.9.2010, Prashant Nakade visited the house of Neeta at Sakoli town. Neeta accompanied him and in the absence of accused, they left for village Morgaon to see Dr. Damodhar Sahare, friend of accused. Prashant requested Dr. Sahare to pacify the accused and treat Neeta well. He informed Dr. Sahare that Neeta is going to her parents house. Thereafter, Neeta came to village Visora and started residing with her brother and mother.

vii. Incident occurred on 12.2.2011 at about 3.45 hours on a road near Mahakalkar Sabhagruh, Kalamna, Tahsil and District- Nagpur. Prashant, accompanied by his wife Asha, came to Nagpur for attending marriage ceremony of a relative. They were accompanied by other relatives and reached the venue of marriage- Mahakalkar Sabhagruh in a Trax (Jeep). Accused was present in the marriage hall. He did not see Neeta with Prashant and other relatives. Having noticed that Neeta had not come, accused asked Bhaiyyaji Nakade, uncle of Neeta, reasons for not bringing Neeta with them. Accused threatened Bhaiyyaji and Prashant to life.

viii. At around 3-3.30 pm, Prashant entered the marriage hall. After a short while, he started proceeding towards the vehicle for returning to Visora village. Accused was in a disturbed mood as his wife did not come.

ix. Seeing Prashant returning to village Visora, he came near him and fired two bullets at Prashant from close range. Asha, wife of Prashant and other occupants of vehicle, shouted for help. Prashant was immediately shifted to Radha-Krishna Hospital. Doctors examined and declared him dead.

x. Information of the incident was passed on to Kalamna Police Station. Police rushed to the spot. Accused was present and was caught by police. Asha lodged a report. On her report, Crime No.27/2011 came to be registered.

xi. Investigation was entrusted to Police Inspector Mr. Anil Choudhary. He visited the spot and drew scene of occurrence panchanama. The vehicle was inspected. There were blood stains on the front side seat-cover. A pair of chappal, one blanket were lying. Investigating Officer seized seat-cover and other articles lying on the spot.

xii. The inquest panchanama was prepared. Dead body was sent for postmortem. Dr. Shrigiriwar, Dr. Wankhede and Dr. Chaudhari performed postmortem. Firearm injury present over lateral aspect of lower 1/3 of right arm and another injury over lateral aspect of right iliac region were found during examination. A contusion over right axilla was also noticed by the Doctors performing postmortem. Doctors opined cause of death as haemorrhagic shock due to firearm injuries to vital organs.

xiii. During custodial interrogation, a revolver was discovered at the instance of accused. Memorandum and discovery panchanama were recorded. At the time of seizure panchanama of revolver, three live cartridges and two empty caps of cartridges were found in the revolver.

xiv. The clothes on the person of accused were seized. He was sent for medical examination to Government Hospital. His blood sample was collected. The clothes of deceased were seized under a separate panchanama. Viscera of the deceased was received by the Investigating Officer from the Hospital. Seized muddemal was sent to Forensic Laboratory for analysis. Chemical Analyser's Reports were received. On completion of investigation, chargesheet was filed before the learned Magistrate at Nagpur, who in his own turn, committed the case for trial to the Court of Sessions.

4. Charge was framed against the accused vide Exh.18. He pleaded not guilty and claimed to be tried. The factum of marriage with Neeta is not in dispute. Regarding incident, defence of accused is of total denial and false implication. He raised specific defence that when he had been to Prashant with a request to send his wife Neeta to her matrimonial house, Prashant behaved arrogantly and passed filthy comments involving sister of the accused. Prashant asked the accused to send his sister as his concubine. As Prashant provoked, the accused, in fit of anger and due to deprivation of self control, he fired the bullets at Prashant. Accused submitted that he had no intention to kill Prashant.

5. Prosecution examined in all nine witnesses to substantiate the guilt of accused. Accused examined two witnesses in support of his defence. On going through the evidence adduced by the parties, learned Sessions Judge convicted the accused, as stated in para 1 above. Being aggrieved thereof, accused has preferred this appeal.

6. We have heard the learned counsel for the parties. On careful scrutiny of the facts and circumstances of the case, arguments advanced by the learned Senior Advocate for appellant and learned A.P.P. for respondent-State assisted by learned counsel for complainant, reasonings recorded by the Trial Court, for the below mentioned reasons, we are of the opinion that prosecution could prove that Prashant met with homicidal death but could not succeed in proving that accused had intention to kill the victim.

7. Prosecution case is mainly based on ocular evidence of PW-1 Asha Nakade, wife of the deceased, PW-2 Devdatta Nakade, maternal uncle of Prashant, PW-3 Nityanand Buddhe, maternal cousin of Asha, PW-5 Parashar Kapgate, sister's son of Prashant and PW-6 Sou. Kalpana Kapgate, sister of the deceased.

8. With the assistance of the learned counsel for the parties, we have gone through the evidence of eyewitnesses. It can be revealed from their testimonies that they were present on the spot. They saw the accused firing from his revolver and causing bullet injuries to Prashant. So far as presence of the witnesses on spot is concerned, nothing could be brought in the cross-examination to indicate that they were not present. They denied the suggestion that accused was provoked by Prashant by uttering filthy comments involving sister of the accused. There is denial on their part that accused lost control and fired the bullets at Prashant.

9. Commenting upon the evidence of eye witnesses, learned Senior Advocate for the appellant Shri Avinash Gupta vehemently submitted that all the witnesses are close relatives of the deceased. They are interested witnesses. Their evidence would show that there was considerable delay in recording their statements and delay has remained unexplained. The learned senior counsel submits that inordinate unexplained delay in recording statements of eye witnesses is fatal to the prosecution and the trial Court has failed to appreciate the evidence of eye witnesses in this background. On the point of inordinate unexplained delay and effect of the same, learned Senior Advocate placed strong reliance on :

[i] State of AP .vs. Punati Ramulu and others, (1994 SCC (Cri) 734).

[ii] The State of Maharashtra .vs. Wafati Babu Qureshi and others (1997 ALL MR (Cri) 518).

[iii] Ashok Raghunath Bawane and others .vs. State of Maharashtra (2007 ALL MR (Cri) 2554).

[iv] Mahadu Pandhari Sonar .vs. State of Maharashtra, (2011 ALL MR (Cri) 1591).

[v] Laxman Bapurao Ghaiwane .vs. The State of Maharashtra, (2012 ALL MR (Cri) 3605).

Referring to the above decisions, learned Senior Advocate submitted that delay would render the testimonies of eye witnesses unreliable and untrustworthy.

10. Per contra, the learned A.P.P. submitted that delay is not always fatal and in a case like the present one, where accused admits that he fired bullets from his revolver at the victim, the court can see on proper scrutiny of the other material independently assessed, whether accused is responsible for intentionally causing the death of victim. Learned A.P.P. placed reliance on the decision of the Hon'ble Supreme Court in the case of Virsa Singh .vs. State of Punjab (AIR 1958 SC 465) : [2007 ALL SCR (O.C.C.) 33] and submitted that once prosecution establishes presence of bodily injury, nature of the injury and an intention to inflict bodily injury, the offence of murder is proved and rest of the enquiry remains purely objective.

11. So far as delay is concerned, we do find that statements of eyewitnesses though available were not timely recorded by the investigating agency. PW-9 PI Choudhary did not offer any explanation for the delay in recording statements of material witnesses under Section 161 of the Code of Criminal Procedure. In this situation and in the backdrop of the settled law, we do not find that submission made on behalf of the appellant is without substance.

12. The next submission advanced by the learned senior counsel for the appellant is regarding evidence of defence witness one Sampat Kapgate. It is contended that no cogent reasons have been assigned by the trial court for rejecting the consistent and truthful testimony of defence witness Sampat Kapgate, who according to the prosecution, was present on the spot at the relevant time. Learned Senior Advocate points out that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt and once it comes to onus upon the accused, the same is not heavy as is normally upon the prosecution for the reasons that the defence has to be tested by preponderance of probabilities. Learned Senior Advocate submitted that evidence tendered by the defence cannot always be termed to be tainted and the defence witness is entitled to equal treatment as that of the prosecution. Assailing the findings recorded by the trial court in appreciating the evidence of DW-1 Sampat Kapgate, learned Senior Advocate submits that the trial court has given different treatment to the evidence of DW-1 Sampat Kapgate, which has resulted into wrong and incorrect finding. On appreciation of evidence of defence witness, learned Senior Advocate relied upon :

[i] Sri Rabindra Kumar Dey .vs. State of Orissa, 1976 SCC (Cri) 566.

[ii] Dudh Nath Pandey .vs. State of Uttar Pradesh, 1981 SCC (Cri) 379 : [2014 ALL SCR (O.C.C.) 97].

[iii] Devku Bhikha .vs. State of Gujarat, (1996) 11 SCC 641.

[iv] State of Goa .vs. Vaman Rama Salgaonkar, 2001 ALL MR (Cri) 1840.

[v] State of Haryana .vs. Ram singh, (2002) 2 SCC 426 : [2001(4) ALL MR 544 (S.C.)].

[vi] Munshi Prasad and others .vs. State of Bihar, (2002) 1 SCC 351.

[vii] Shamrao Mahadu Khokale .vs. The State of Maharashtra, 2002 ALL MR (Cri) 353.

13. We have gone through the above authorities. Needless to state that exclusive burden to prove the guilt of the accused is on the prosecution and the accused need not prove his defence with the same strictness and rigour as the prosecution is required to prove in a case on criminal charge. It is suffice for the accused to establish his defence by the standard of preponderance of probabilities. It is also a settled law that defence witness is entitled to equal treatment and respect as that of the prosecution. The issue of credibility or trustworthiness to be attributed to the defence witness needs to be on a par with the prosecution witness.

14. Keeping in view these legal parameters, we now advert to the admissibility, reliability and truthfulness of the evidence of DW-1 Sampat Kapgate.

15. He fully supports the defence raised by the accused. It is stated by Sampat Kapgate that on the day of incident, he accompanied his friend Rajendra (accused) for marriage in Mahakalkar Sabhagruh. He states that at the time of incident, accused had been to Prashant who was near vehicle and requested him to send his wife Neeta for cohabitation. The evidence of Sampat further shows that Prashant behaved in arrogant manner with the accused. There was exchange of words between accused and Prashant. Sampat intervened in the altercation, but Prashant uttered filthy remarks and asked the accused to send his sister as a concubine to him. According to Sampat, after hearing the filthy abusive comments, accused fired the bullets twice at Prashant.

16. Prashant collapsed in the vehicle and then he was taken to Hospital. He stated that accused put the weapon in the car and remained on the spot.

17. It is pertinent to note that presence of Sampat on the spot has been confirmed during investigation. In supplementary statement, complainant Asha named Sampat as one of the eyewitnesses. Even from the evidence of PW-6 Kalpana, presence of Sampat Kapgate on the spot at the time of occurrence is apparent. DW-1 Sampat Kapgate was cross-examined at length. Nothing substantial could be elicited in his piercing cross-examination to disbelieve his testimony. Merely because he is friend of the accused, his evidence cannot be thrown away, particularly when he was one of the eyewitnesses present on the spot at the time of incident. Through the evidence of Sampat Kapgate, we find that accused could prove his defence and could establish in all probabilities that due to provocation at the end of victim Prashant, accused lost his self control when filthy utterances involving his sister became intolerable to him. The evidence of Sampat creates a cloud of doubt on the reliability of evidence of the eye witnesses examined and relied upon by the prosecution.

18. However, considering the defence raised by the accused, next question arises is about the nature of offence that is proved by the prosecution. Learned Senior Advocate for the appellant fairly submitted that accused would not press for his clean acquittal, but at the same time, this would not be a case attracting offence of murder under Section 302 of the Indian Penal Code and at the most, it could be covered under Section 304 Part II of the Indian Penal Code. In this connection, learned Senior Counsel pointed out that by making filthy remarks against the sister of accused, Prashant provoked the accused and as he was deprived of his self control, he fired from his revolver. In such a situation, it is submitted that being a case of grave and sudden provocation due to the act of the deceased, case would fall under Section 304 Part II of the Indian Penal Code. In support thereof, reliance is placed on :

[i] Mirchu Gumanmal Damnani .vs. State of Maharashtra, 1998 ALL MR (Cri) 1158.

[ii] Baba @ Gulam Raza Hussain Hadi Tapti .vs. State of Maharashtra and another, 2000 ALL MR (Cri) 423.

[iii] Vinod Vasant Mahadik .vs. The State of Maharashtra, 2013 ALL MR (Cri) 1363.

[iv] Prakash Baburao Ingale .vs. The State of Maharashtra, 2016 ALL MR (Cri) 4645 and,

[v] Unreported decision of this Court, dated 09.10.2014 in Criminal Appeal No.268/2012 [Manoj s/o Onkarprasad Sisodia .vs. The State of Maharashtra].

19. It is needless to mention here that factum of grave and sudden provocation at the end of the deceased, whether established or not depends upon the facts and circumstances of each case. In the case on hand, following facts have emerged from the evidence of prosecution and defence witnesses -

[i] Matrimonial discord between accused and Neeta,

[ii] Neeta was residing with victim Prashant.

[iii] Accused was anxious to resume cohabitation and was waiting for Neeta to come for marriage.

[iv] Having noticed that Neeta did not come accused asked Prashant to send her for cohabitation.

[v] That time an altercation took place between Prashant and accused.

[vi] Accused opened his revolver and fired from the distance of about 2 ft.

[vii] Accused was a Medical Practitioner and was aware of the vital organs of the body. Still he did not choose vital organs as targets.

[viii] Three live cartridges were lying in the revolver.

[ix] Accused, though had a chance to use those live cartridges, did not use the same.

20. Based on the above facts, it is difficult to come to a conclusion that accused had any intention to cause the death of victim. The circumstances proved would, however, clearly attribute knowledge of causing the death to the accused. In this situation, in our view, Exception 4 of Section 300 of the Indian Penal Code would attract and punishment under Section 304 Part II of the Indian Penal Code would meet the ends of justice. In the result, we pass the following order :

[1] The appeal is partly allowed.

[2] The order of conviction for the offence punishable under Section 302 of the Indian Penal Code is altered to one under Part II of Section 304 of the Indian Penal Code. For the said offence, the accused/appellant is sentenced to suffer Rigorous Imprisonment for a period of six years. The rest of the order including fine etc. is maintained.

Appeal partly allowed.