1) The appeal is filed against judgment and order of Sessions Case No. 142/2013 which was pending in the Court of Additional Sessions Judge, Nanded. The Sessions Court has convicted and sentenced the appellant for offence punishable under section 304 Part II of Indian Penal Code and he is sentenced to suffer rigorous imprisonment for seven years. He is also directed to pay fine of Rs. 1,000/- and in default, sentence of R.I. for six months is given. Both the sides are heard.
2) As per the case of prosecution, the incident in question took place on the night between 2.12.2012 and 3.12.2012. Accused, Deepak was living with his wife, Usha near Mujampeth, Tahsil and District Nanded. In the vicinity of his house, one Mahendra Edke was living and he knew both the accused and his wife Usha. On 2.12.2012 at about at about 7.00 p.m. Mahendra was passing by the side of the house of the accused and at that time, Usha was alone in the house. She invited him inside of the house. When she was saying that she was liking him and they were together there, the accused entered the house. He saw his wife, Usha and Mahendra together side by side and he became angry. He realized that there was something immoral. He started assaulting his wife and Mahendra. Mahendra somehow escaped.
3) On that night, the accused gave severe beating to Usha by using a low level wooden table which is called as 'Pat' in this area and also by using a stone. On that night, the accused slept inside of the house. In the morning, when he woke up, he realised that his wife was dead.
4) On 3.12.2012 accused went to police station and reported the incident. Police visited the house of accused, which was in locked condition. As accused was there, the lock was opened. Police saw the dead body of Usha lying inside of the house. The low level wooden table used as a weapon was lying inside of the house and one stone having blood stain was lying outside of the house.
5) One police officer gave information about the incident and the crime came to be registered for offence of murder. The statements of relatives of deceased on parents side were recorded. They made allegations that there was ill-treatment to the deceased from accused and the accused had suspicion about her character. The chargesheet was filed for offences punishable under sections 302, 498-A r/w. 34 of I.P.C. against the accused, his parents and other relatives.
6) Before the Trial Court, the accused pleaded not guilty when the charge was framed. But, in the statement given under section 313 of Cr.P.C., he admitted that he had given beating to the wife inside of the house. Prosecution examined Mahendra and some police officers to show that the incident did take place and only accused could have assaulted the deceased. The Trial Court has held that there is possibility of grave and sudden provocation due to the presence of Mahendra inside of the house and probably they were found in juxtaposition and by making such observations, the Trial Court has given conviction under section 304 Part II of I.P.C. and acquitted the present appellant and his relatives of the offence punishable under section 498-A of I.P.C. Most of the record like spot panchanama, inquest panchanama is admitted by the defence.
7) In the evidence of Dr. Santosh Bhosle (PW 1), the P.M. report is duly proved. The P.M. report shows that as many as 21 injuries were found on the dead body which were as under:-
(i) Abrasion present over posterior medial aspect of forearm, upper third part, sizer 4 x 3 cm., reddish in colour.
(ii) Multiple abrasions over posterior of right forearm. Sizes ranging from 2 x 1 cm. to 0.5 x 0.5 cm. reddish in colour.
(iii) Multiple contusions over right forearm and dorsam of hand of sizes ranging from 5 x 4 cm. to 2 x 1 cm. reddish blue colour.
(iv) Abrasion over left forearm, lower 3rd part laterally, size 1 x 1 cm., red, with surrounding contusion of size 3 x 2 cm., reddish and blue.
(v) Multiple small abrasions over dorsam of left hand, size 0.5 x 0.5 cm. to 0.2 to 0.2 cm., reddish in colour.
(vi) Multiple contusions present over posterior and lateral part of right arm, size 5 x 4 cm. to 2 x 2 cm., reddish blue.
(vii) Contusion on right scapular region, upper part, size 8 x 6 cm., reddish blue.
(viii) Contusion over right side of back at infrascapular region, size 6 x 5 cm. with central abrasion, 1.5 x 1 cm., reddish. Contusions was reddish blue in colour.
(ix) Contusions over right scapular region, lower part, size 3 x 3 cm., reddish blue. (x) Abrasion over lateral part of right illic crest, size 0.5 x 0.5 cm., red.
(xi) Abrasion over front of left thigh, near knee joint, size 2 x 2 cm., reddish.
(xii) Abrasion present over left knee, size 1 x 0.5 c.m., reddish.
(xiii) Multiple small abrasions over medial part of upper third left leg over area of 3 x 3 cm., reddish.
(xiv) Contusions over medial aspect of left knee, size 4 x 4 c.m., reddish blue.
(xv) Abrasion over medial aspect of left leg, lower third part, size 4 x 4 cm., reddish.
(xvi) Multiple contusions over left leg and foot, size ranging from 6 x 5 c.m. to 2 x 1 c.m. with fracture of left tibia fibula at lower third part, all contusions were reddish blue in colour. Fracture ends were irregular and blood infiltrated.
(xvii) Multiple contusions present over left leg and foot, sizes 6 x 5 c.m. to 2 x 1 c.m. Reddish blud.
(xviii) Lacerated wound over medial aspect of left leg, lower third part, size 0.5 x 0.5 c.m. x tissue deep, reddish.
(xix) Multiple abrasions over medial aspect of left ankle, sizes ranging from 3 x 3 c.m. to 1 x 1 c.m., reddish with surrounding contusions, reddish blue in colur.
(xx) Multiple abrasions, over lateral aspect of right ankle, sizes ranging from 4 x 4 c.m. to 2 x 2 c.m., reddish.
(xxi) Lacerated wound present over medial aspect of right leg, upper third part, size 0.5 x 0.5 c.m. x tissue deep, reddish.
The evidence also shows that external injuries had caused haemorrhage in muscle and subcutaneous tissues underneath. There was under scalp contusion over left parieto occipital region and brain was pale and edematous. There was haemorrhage in muscles of anterior chest wall and there was fracture of 4th and 5th ribs. These injuries were antemortem in nature and death took place due to shock and haemorrhage due to multiple injuries. The evidence of Doctor is consistent with the P.M. report which is duly proved as Exh. 31.
8) The weapon 'Pat' was shown to the doctor and one stone was also shown and doctor has given evidence that such weapons can cause injuries which were found on the dead body. It is brought on the record in the cross examination of the doctor that there was no damage to vital organs. In the evidence of doctor, it is brought on the record that the injuries are collectively sufficient to cause death in ordinary course of nature.
9) In the evidence of Ramchandra Bendre (PW 2), Police Head Constable, Sushil Chavan (PW 4), P.S.I. and Uttam Mundhe (PW 7) Police Inspector of Nanded Rural Police Station, it is brought on the record that accused had approached police on 3.12.2012 and he had given information about the incident. Entry about the information was taken in station diary by the police officer. Surprisingly, this statement was not recorded when atleast non confessional part of it could have been used against the accused. However, there is station diary and accused is not disputing that he had reported the incident to police. The evidence of police officers show that only after giving of the information by the accused, they went to the house of accused and there, they found dead body. There is no reason to disbelieve the police officers in view of the facts and circumstances of this case and the statement given by the accused under section 313 of Cr.P.C. The information given by the accused needs to be treated relevant under section 8 of the Evidence Act. Further, on the basis of this information, dead body was recovered by police from the house of accused, which was in locked condition. These are definitely incriminating circumstances. The spot panchanama is admitted by the accused and it shows that blood was there inside of the house and even weapon was there. The inquest panchanama was prepared inside of the house. These two documents at Exhs. 37 and 38 are admitted by the accused and they can be used against the accused.
10) The evidence is given on the arrest of the accused and the recovery of his clothes. Blood was found both on his shirt and pant. Blood of group 'AB' was found on the pant of the accused and blood group of deceased was same. The blood group of accused is 'O' and there are C.A. reports in this regard. The evidence is given on the collection of blood sample etc. by the police officers and that evidence is not much disputed.
11) For motive, there is evidence of Mahendra (PW 3) and it shows that on that day, after 7.00 p.m., in one incident which took place inside of the house of accused, accused had seen Mahendra and deceased together and due to that accused had become angry. He has given evidence that he had scuffle with the accused and in his presence, the accused had started giving beating to Usha. His evidence shows that he left the spot due to this incident of quarrel. It is the case of accused that he had seen Mahendra in juxtaposition with Usha and he had become angry. He also admitted in the statement under section 313 of Cr.P.C. that it is he, who had given beating to deceased and due to the beating, she died.
12) In the case like present the provisions of sections 106 and 114 of Evidence Act are also available. In view of the number of injuries and nature of injuries, it cannot be said that there was no intention of the accused to cause the injuries. In view of the specific defence taken by the accused, it can be said that he admits that due to the incident like presence of Mahendra inside of the house with deceased and they were in juxtaposition position, he became angry and due to that, he gave beating. It can be said that he wanted to take defence of Exception 1 to section 300 of I.P.C. If this defence is proved, then the offence can fall under section 304-I of I.P.C. (Reliance placed on the case reported as (1996) 7 Supreme Court Cases 115 [Bonda Devesu Vs. State of A.P.]. There is probability of grave and sudden provocation as mentioned in section 300, exception 1 of I.P.C. From the nature of injuries and number of injuries, this Court has no hesitation to hold that there was either the intention to finish the deceased or the accused intentionally caused the injuries, which were likely to cause death. In such a case section 304-I of I.P.C. becomes applicable. However, the learned Trial Judge has used section 304-II of I.P.C. Thus, the punishment, penalty is on lower side. In view of these circumstances and as the sentence of only seven years of R.I. is given, this Court holds that there is no possibility of interference in the decision given by the Trial court.
13) In the result, the appeal is dismissed.