Bombay High Court
Sharad S/O. Vithobaji Ganorkar vs State Of Mah. Thr. Pso Ps Kalmeshwar, … on 20 December, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:14267
52 cr.apeal no.232.23.odt..odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 232 OF 2023
Sharad S/o Vithobaji Ganorkar
Age : 34 years,
Occ : Labour,
R/o Ward No.3, Gadbardi Mohpa,
Tah. Kalmeshwar, District Nagpur .... APPELLANT
// V E R S U S //
The State of Maharashtra,
Through Police Station Officer,
Police Station - Kalmeshwar,
District Nagpur ... RESPONDENT
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Mr A.P. Tathod, Advocate (appointed) for the appellant.
Mr. Ganesh Umale, APP for the respondent/State.
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CORAM : G. A. SANAP, J.
DATE : 20/12/2024
ORAL J U D G M E N T :
1. In this appeal, challenge is to the judgment and
order dated 24.03.2023 passed by the learned Additional
Sessions Judge, Nagpur, whereby the learned Judge convicted
the appellant for the offence punishable under Section 304 Part
II of the Indian Penal Code (for short, ‘the I.P.C.’). He is
sentenced to suffer rigorous imprisonment for 5 years and to
52 cr.apeal no.232.23.odt..odt
2pay a fine of Rs.5,000/-, in default to suffer further simple
imprisonment for 12 months.
2. Background facts:
The informant is the husband of deceased Ujjwalla.
The crime was registered on his report. The prosecution case,
which can be unfolded from the report and other materials, is
that the deceased, informant and their two sons would reside at
Nagpur. The appellant and his mother were residing at Mohpa.
On 31.12.2021 the informant, his wife and his two sons went to
Mohpa for installation of a T.V and dish connection at
Sarswatibai’s house. The appellant and his wife would quarrel
with Sarswatibai, mother-in-law of the informant, because she
was not paying the share of rent of the agricultural field to the
appellant. The appellant used to quarrel and beat his mother
Sarswatibai on that count.
3. Sarswatibai, mother-in-law of PW-1, used to reside
in back side room of the house. The informant, his wife and
52 cr.apeal no.232.23.odt..odt
3
children would stay during their visit at the house of
Sarswatibai. At the time of this visit, they stayed there for two
days. On 03.01.2022 they were about to leave for Nagpur at
8.45 a.m. At that time the appellant came to the room of
Sarswatibai. The appellant took Sarswatibai in the courtyard of
the house. The deceased also followed them. The two sons of
the informant also followed their mother. After some time, his
sons came in the house and told the informant that there was a
quarrel between the appellant and Sarswatibai. The informant
accompanied them. Sarswatibai filled the soil in the pot
(kundi). When Sarswatibai was leaving that place, the deceased
Ujjwalla questioned the appellant as to why he was ill-treating
mother on the instigation of his wife. The appellant got
annoyed and told the deceased Ujjwalla not to interfere in their
personal affairs. At that time the informant PW-1 was trying to
control his mother-in-law Sarswatibai and his wife, deceased
Ujjwalla. The quarrel ensued between the appellant and the
deceased. The deceased Ujjwalla picked up a piece of brick and
pelted it at the appellant. The appellant was enraged when the
52 cr.apeal no.232.23.odt..odt
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brick hit him on the face. The appellant picked up a bamboo
stick lying in the courtyard and gave a blow on the head of the
deceased Ujjwalla. The deceased Ujjwalla fell down. The blood
started oozing from her head and she fell unconscious. The
informant, his mother-in-law Sarswatibai and the appellant
carried deceased Ujjwalla for treatment to the hospital in their
village Mohpa. Doctor advised them to take her to Saoner.
Accordingly, they took her to the hospital of Dr. Patil at Saoner,
where doctor declared her dead. The dead body was carried to
Rural Hospital, Saoner. Arpit Bhojne (PW-1) thereafter
reported the matter to Kalmeshwar Police Station. On the basis
of the report of PW-1 crime bearing No. 0002/2022 was
registered against the appellant.
4. Pravin Munde (PW-9) carried out the
investigation. He visited the spot of the incident and drew the
spot panchanama. He also prepared the inquest panchanama of
the dead body. The autopsy on the dead body was conducted at
Rural Hospital, Saoner. PW-9 recorded the statements of
52 cr.apeal no.232.23.odt..odt
5
witnesses. He arrested the accused. At the instance of the
appellant the bamboo stick was recovered. The biological
samples had been sent to R.F.S.L, Nagpur. On completion of
the investigation, PW-9 filed the charge-sheet in the Court of
Judicial Magistrate, First Class Kalmeshwar. Learned Magistrate
committed the case to the Sessions Court for trial.
5. The learned Judge framed the charge against the
appellant. The appellant pleaded not guilty. His defence is of
false implication in the crime. The prosecution examined nine
witnesses. The learned Judge, on consideration of the evidence,
held the appellant guilty of the offence punishable under
Section 304 Part II of the I.P.C. and sentenced him as above.
The appellant is before this Court in appeal against the said
judgment and order.
6. I have heard Mr. A.P. Tathod, learned (appointed)
Advocate for the appellant and Mr. Ganesh Umale, learned
APP for the respondent/State. Perused the record and
52 cr.apeal no.232.23.odt..odt
6
proceedings.
7. Learned Advocate for the appellant submitted that
the informant (PW-1) and his two sons are the only witnesses
examined by the prosecution to prove the occurrence of the
incident. All three witnesses are interested witnesses and
therefore, it is not safe to rely on their evidence without
corroboration. There are major inconsistencies in their
evidence. The inconsistencies and discrepancies are sufficient to
doubt their presence on the spot. Learned Advocate submitted
that medical officer has admitted that injury sustained by the
deceased could be possible if someone falls on the earthen
cement-potted plant. Learned Advocate submitted that the
presence of the potted plant has been admitted. The possibility
of the deceased falling on the pot and sustaining the injuries
cannot be ruled out. In short, it is submitted that the possibility
of the accidental death of the deceased cannot be ruled out.
Learned Advocate submitted that the seizure of the bamboo
stick is doubtful. Panch witnesses to the memorandum and
52 cr.apeal no.232.23.odt..odt
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discovery panchanama have stated that the recovery
panchanma was written at the police station. Learned Advocate
submitted that the doctor has admitted that there was no
external injury to the head of the deceased. It is submitted that
the blood on the clothes and the bamboo stick is therefore, a
doubtful circumstance. Learned Advocate further submitted
that the medical officer in the postmortem report has made
interpolations and corrections. It creates doubt about actual
injuries sustained by the deceased and the cause of death.
Learned Advocate submitted that the evidence adduced by the
prosecution is not sufficient to prove the guilt of the appellant
beyond reasonable doubt. The appellant is therefore, entitled
to get the benefit of the doubt.
8. Learned APP submitted that the presence of the
informant and his two sons on the spot has not been denied.
They have narrated the first hand account of the incident
before the Court. It is submitted that inconsistencies and
discrepancies are not major to doubt their very presence on the
52 cr.apeal no.232.23.odt..odt
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spot. They had no reason to falsely implicate the appellant,
who is their close relative. The mother-in-law of the informant
and the mother of the appellant died after the incident and
therefore, she could not be examined. The appellant in the
cross-examination of the informant has admitted the presence
of the informant on the spot. Learned APP submitted that the
evidence is sufficient to prove that the quarrel took place
between the appellant and the deceased Ujjwalla. In the said
quarrel, the appellant inflicted a blow with a bamboo stick on
the head of the deceased which resulted in her death. Learned
APP submitted that the presence of the blood on the clothes
and stick is sufficient to conclude that there was some bleeding
injury. Learned APP submitted that evidence of the medical
officer or the admission given by the medical officer with regard
to the absence of external injury has to be reconciled with the
other material. Learned APP submitted that the nature of the
injuries mentioned in column No.19 of the postmortem report
is sufficient to come to a conclusion that the deceased had
sustained external injuries. Learned APP submitted that every
52 cr.apeal no.232.23.odt..odt
9
correction made in the postmortem report was counter signed
by the medical officer. Learned APP submitted that the
defence of the appellant that the deceased died an accidental
death cannot be accepted. The prosecution has proved that the
deceased died a homicidal death. Learned APP submitted that
learned Judge has thoroughly appreciated the evidence and has
recorded cogent and concrete reasons in support of his finding.
9. I have minutely perused the oral and documentary
evidence. The informant (PW-1) and his two sons Virat (PW-4)
and Vedant (PW-5), are eye witnesses to the incident. Their
presence on the spot has not been challenged or denied. It is
true that there was no motive for the commission of the crime
by the appellant. The deceased Ujjwalla, being the sister of the
appellant, tried to give him an understanding that he should
not quarrel with their mother on the instigation of his wife.
There was exchange of hot words between brother and sister
and which led to the deceased Ujjwalla to pick up a piece of
brick and assault the appellant. The appellant, after sustaining
52 cr.apeal no.232.23.odt..odt
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the blow of the brick got enraged and picked up a bamboo stick
which was lying on the ground, and inflicted a blow on the
head of the deceased Ujjwalla. Learned Judge has recorded a
finding that evidence of the medical officer and other evidence
is sufficient to prove that the deceased Ujjawala died a
homicidal death.
10. Dr. Mrunali Gajbhiye (PW-8) performed the
postmortem of dead body on 03.01.2022. She found following
internal injuries:-
(i) Head : Lacerated wound present over left side of scalp.
(ii) Skull: Skull fracture of left side of temporal bone of size
2x 3 cm.
(iii) Meninges : ruptured and congested
Brain : rupture, congested, edematous and clots were
present.
PW-8 has stated that the injuries were antemortem.
On the basis of her finding, she recorded her opinion that the
cause of death of the deceased was due to head injury with
52 cr.apeal no.232.23.odt..odt
11
intraparcenchymal bleeding. Exh.67 is the postmortem report.
The bamboo stick was sent to her with query letter by
Investigating Officer. On examination of the bamboo stick, she
gave an opinion that injury sustained by the deceased could be
possible with the said weapon. PW-1, PW-4 and PW-5 have
deposed about the actual assault on the deceased by the
appellant with the bamboo stick. PW-8 medical officer has
admitted that after writing some portion in column No.17 it
was scrod off and the description of the injuries was corrected.
She has admitted that there was no external injury. In my
opinion, the defence of the appellant that the deceased fell on a
potted plant cannot be accepted. In the back drop of the
concrete evidence of the eye witnesses PW-1, PW-4 and PW-5,
with regard to the assault mounted on the deceased with a
bamboo stick by the appellant, I do not see any reason to
disturb the finding of the learned Judge that the deceased died
a homicidal death is sustainable.
52 cr.apeal no.232.23.odt..odt
12
11. The next important piece of evidence relied upon
by the prosecution is the testimony of PW-1, PW-4 and PW-5.
It is true that on account of the death of Ujjwala, they were
bound to have a grievance against the appellant. There is no
independent witness. The prosecution could have examined the
independent witness to seek corroboration to the testimony of
the PW-1, PW-4 and PW-5. In my opinion, the evidence of the
PW-1, PW-4 and PW-5 cannot be discarded only because they
are relatives of the deceased. In such a situation, the Court has
to take extra care and precaution and subject such evidence to
minute scrutiny. The presence of PW-1, PW-4 and PW-5 on
the spot has not been denied. PW-1 has reiterated the facts
stated by him in his report. He has stated that they had gone to
Mohpa for the installation of a TV and dish antena at the house
of Sarswatibai. Sarswatibai and the appellant were residing
separately. There was a dispute between them on account of
collection of the rent of the land. The appellant was demanding
the share in the rent, but the mother-in-law was not ready to
give him the share. The quarrel used to take place between
52 cr.apeal no.232.23.odt..odt
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them on that count. PW-1 has stated that the deceased Ujjwala
tried to give an understanding to the appellant that he should
not quarrel with the mother at the instigation of his wife. The
deceased in fact questioned him as to why he was quarreling
with his mother. In fact, PW-1 has stated that on account of
this, the appellant was annoyed. There was a hot exchange of
words between the brother and the sister. He has stated that
the deceased picked up a piece of brick and pelted the brick at
the face of the appellant. He got enraged. He has stated that the
appellant picked up a bamboo stick lying on the ground and
without giving them any time to intervene, inflicted a forceful
blow on the head of the deceased. The deceased fell down.
There was a bleeding. She became unconscious. PW-1 has
further stated that therefore, they carried her to the doctor in
the village. The village doctor, considering the condition of the
deceased, suggested them to take her to the hospital of Dr. Patil
at Saoner, where she was declared dead. PW-1 has stated that
the deceased became unconscious. The appellant also
accompanied them to the hospital.
52 cr.apeal no.232.23.odt..odt
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12. Perusal of his evidence would show that there was
no motive for the commission of this crime. There was a
dispute with regard to the sharing of the rent of the agricultural
land. On the date of the incident, there was no major quarrel as
such between the appellant and his mother. The appellant only
questioned his mother as to why she uprooted the plant from
the pot. PW-1 lodged the report at about 4.56 p.m. on
03.01.2022. PW-1 was subjected to searching cross-
examination. His cross-examination would show that his
presence on the spot has been admitted. In his cross-
examination he has reiterated that on account of quarrel the
deceased was also enraged. He has stated that after filling the
soil in the pot, his mother-in-law was returning back. At that
time the dispute started between the appellant and the
deceased. He has stated that he tried to control the deceased,
but she was uncontrollable and in the heat of the anger, she
pelted a brick at the appellant. In my view, perusal of his cross-
examination would show that no admission of any significance
has been elicited to shake his credibility. His presence on the
52 cr.apeal no.232.23.odt..odt
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spot has been admitted. There are no major improvements in
his evidence. His evidence is consistent with the facts stated in
the report. It is to be noted that PW-1 had no reason to falsely
implicate the appellant, who is none other than his brother in
law. Perusal of the report and his evidence would show that
PW-1 has not exaggerated and embellished the incident. He
has categorically stated that the appellant inflicted a blow of a
bamboo stick on the head of the deceased. He identified the
bamboo stick in the Court.
13. PW-4 and PW-5 are the twin sons of the informant.
PW-4, in his evidence has narrated the incident. He has stated
that there was a quarrel between the appellant and his grand
mother. Thereafter the deceased intervened and questioned the
appellant. He has stated that the appellant pushed the deceased
and she fell down. He has stated that thereafter she pelted a
stone at the appellant. He has further stated that the appellant
got annoyed and he assaulted the deceased on the head with a
wooden log. It is submitted that in his evidence he has nowhere
52 cr.apeal no.232.23.odt..odt
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stated that the bamboo stick was used by the appellant.
Similarly, he did not state that the deceased pelted a brick at the
appellant. His cross-examination would show that his presence
on the spot has not been disputed. In his cross-examination he
has reiterated the part of the incident. He has stated that in the
quarrel, his father was trying to control the grand mother and
the deceased. It is seen that the manner of narration of the
incident is not be in a sync with the informant. However,
perusal of his evidence would show that he has deposed about
the core of the incident. Perusal of his cross-examination would
show that the evidence given by him before the Court was not
out of tutoring. He has admitted that pots had been kept in
the courtyard and his mother fell down near the stone. It was
suggested to him that the deceased sustained the injury due to a
fall. He has denied the suggestion.
14. PW-5 has stated that the appellant inflicted the
bamboo stick blow on the head of his mother. She fell down.
She was taken to the hospital. She was declared dead. He has
52 cr.apeal no.232.23.odt..odt
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stated that at the time of incident he himself, his brother and
father were present on the spot. He has identified the bamboo
stick. Perusal of his cross-examination would show that no dent
has been caused to his evidence. Except minor omission
nothing has been elicited in his cross-examination. The
omission from his statement with regard to the presence of his
brother and father on the spot is insignificant inasmuch as the
appellant has not denied their presence on the spot.
15. Perusal of the evidence of PW-2, PW-4 and PW-5
in totality would show that on the main part of the incident
their evidence, is credible and trustworthy. Their presence on
the spot was natural. The appellant has not disputed their
presence on the spot. The evidence of PW-2, PW-4 and PW-5
on minute scrutiny is found to be credible and trustworthy.
Their evidence cannot be discarded and disbelieved on the
ground that they are the interested witnesses. I have carefully
perused their evidence. I do no see any reason to doubt their
credibility and trustworthiness. The death of the wife of the
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informant and the mother of the PW-4 and PW-5 is not in
dispute. The appellant has failed to probabilize his defence. In
this view of the matter, I do not see any reason to discard and
disbelieve the evidence of PW-1, PW-4 and PW-5.
16. It is submitted that recovery of the bamboo stick at
the instance of the appellant is doubtful. The bamboo stick was
recovered at the instance of the appellant. The investigating
officer has deposed that after the arrest of the appellant during
the course of the interrogation, he expressed his desire to make
a statement. Therefore, he summoned the panch witnesses.
17. Jayprakash Gangapari (PW-3) is the panch witness
to memorandum and discovery panchanama of the stick. He
has stated that on 04.01.2022 he was summoned to the police
station. He has stated that there was another panch with him. In
his presence the inquiry was made by the police with the
appellant. He has stated that in their presence the appellant
made a statement that he would show the place where he had
52 cr.apeal no.232.23.odt..odt
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concealed the bamboo stick and he would point out the said
place if they accompany him. He has stated that thereafter the
accused led them to his house and from the alley of his house
took out the bamboo stick. He has identified the said bamboo
stick. It is to be noted that the blood was detected on the
bamboo stick. It is true that medical officer has not stated that
the deceased had sustained bleeding injury. However, the
presence of the blood on the clothes of the victim indicates that
there was some bleeding. The blood detected on the clothes
was of ‘O’ group. It has come on record that blood group of
the deceased was also ‘O’. The blood group of the appellant is
also ‘O’. The medical examination report of the appellant is on
record. It does not show that the appellant had sustained any
bleeding injury. It is not the defence of the appellant put to any
witness that he had sustained a bleeding injury. In the facts and
circumstances the evidence of PW-3 assumes importance.
18. Jaiprakash Gangapari (PW-3) has stated that the
recovery panchanama was written at police station and
52 cr.apeal no.232.23.odt..odt
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thereafter they signed on the same. On this point there is a
discrepancy between the evidence of investigating officer and
this witness (PW-3). Investigating Officer has stated that
panchanama was written on the spot and there the panchas had
signed the panchanama. It is to be noted that PW-3 has acted
as a panch on the panchanama for the seizure of the clothes of
the appellant and the deceased. Similarly, he has acted as panch
for the seizure of the samples. It is undisputed that these
panchanama were prepared at the police station. In this
context, this admission given by the witnesses may not be of
any significance. On the basis of this solitary admission in the
backdrop of the above stated facts, the evidence of PW-3 cannot
be doubted. It has been corroborated by the evidence of the
investigating officer.
19. The learned Judge, on consideration of the
evidence has held the appellant guilty of the offence punishable
under Section 304, Part II of the I.P.C. On appreciation of the
evidence, I am of the view that the offence proved against the
52 cr.apeal no.232.23.odt..odt
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appellant would be under Section 304, Part II of the I.P.C.
Learned Judge has properly appreciated the evidence on record.
As such I do not see any substance in the appeal.
20. Learned Advocate for the appellant submitted that
the appellant has no criminal antecedents. The crime
committed was not with premeditation. He had no intention to
kill the deceased, who was his real sister. In the heat of anger,
the incident occurred. It is submitted that by this time the
appellant might have reflected and repented over the
unmindful act committed by him. Learned Advocate submitted
that his family depends on him. He is the maternal uncle of
PW-4 and PW-5. On account of remorse and repentance he will
definitely contribute for the education and over all well-being
of PW-4 and PW-5. He has undergone two years and 11
months and 28 days imprisonment. It is submitted that he is
ready to pay the fine amount. It is submitted that in the facts
and circumstances, the sentence already suffered by him would
be the sufficient punishment. It would be proportionate to the
52 cr.apeal no.232.23.odt..odt
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gravity of the offence proved against him.
21. Learned APP submitted that the act committed by
the appellant was unmindful. He took advantage of the
situation. His unmindful act resulted in the death of his sister.
This unmindful act has deprived children the love of their
mother through out their life. It is submitted that learned
Judge has recorded the cogent and concrete reasons and
awarded the sentence of five years. It is submitted that five
years sentence is just and proper.
22. I have given thoughtful consideration to the
submissions. In my view, the submissions advanced by the
learned Advocate for the appellant deserves consideration. The
appellant has suffered the imprisonment for two years 11
months and 28 days. It is not possible even by keeping him in
jail for any number of years to get back the life of deceased, who
was none other than his sister. The appellant by this time as
submitted by the learned Advocate might have reflected and at
52 cr.apeal no.232.23.odt..odt
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the same time repented over the sin committed by him.
23. Before parting with the matter, it is necessary to
place on record the appreciation for the able assistance rendered
by the learned appointed Advocate Mr. A.P. Tathod. The
Court appreciates his assistance. Learned Advocate Mr. A.P.
Tathod, be paid, his professional fees, as per rule.
24. In the facts and circumstances, in my view, the
sentence already suffered by the appellant would be the just and
proper sentence in this case. Accordingly, the appeal is
dismissed.
25. The judgment and order of conviction passed
against the appellant by the learned Additional Sessions Judge,
Nagpur in S.T.No.279/2022 for the offence punishable under
Section 304 Part II of the I.P.C. is maintained. However, the
order with regard to the substantive sentence is modified.
52 cr.apeal no.232.23.odt..odt
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26. It is ordered that the appellant/accused Sharad s/o
Vithobaji Ganorkar shall undergo the sentence already suffered
by him.
27. Sentence with regard to the fine and default
sentence is maintained. He be released on deposit of fine
amount
28. The Criminal Appeal stands disposed of in the
above terms. Pending applications, if any stand disposed of.
(G. A. SANAP, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 17/01/2025 11:25:28