Partly allowed

Nayana Chandrakant Kamble v. the State of Maharashtra

Bombay HC7 Aug 2013APEAL/181/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a Section 302 IPC conviction, holding that circumstances satisfied Exception 4 to Section 300. The appellant was convicted under Section 304 Part IPC and sentenced to seven years' rigorous imprisonment, distinguishing the case from pre-meditated murder arising from a sudden quarrel.

What did the court decide?

Conviction under Section 302 IPC set aside; reconvicted under Section 304 Part I IPC with seven years rigorous imprisonment and fine.

Nayana Chandrakant Kamble Vs the State of… — Murder and Culpable Homicide | Bombay HC (2013)

¶1

vss

¶2

apeal.181.2010.doc

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶4

CRIMINAL APPEAL NO.181 OF 2010

¶5

Smt.Nayana Chandrakant Kamble r/o. 404, Kartik Building, Shivsagar Complex, Behind Church, Ganesh Nagar Dombivali (W), Dist.:Thane Presently lodged at Yerwada Central Prison, Pune ... Appellant

¶6

Vs.

¶7

The State of Maharashtra ... Respondent

¶8

Mr.Sanjeev P. Kadam for the Appellant Mrs.S.V. Gajare – Dhumal, APP, for Respondent – State

¶9

CORAM: MRS.V.K. TAHILRAMANI & MRS.MRIDULA BHATKAR, JJ.

¶10

DATE: AUGUST 7, 2013

¶11

ORAL JUDGMENT (PER TAHILRAMANI, J.):

¶12

The appellant has preferred this appeal against the judgment and order dated 24.2.2010 passed by the learned Adhoc Additional Sessions Judge, Mumbai in Sessions Case No.67 of 2009. By the said judgment and order, the learned Sessions Judge convicted the appellant under section 302 of the Indian Penal Code and sentenced her to life imprisonment and fine of Rs.3,000/-, in default, R.I. for one year.

¶13

The prosecution case briefly stated is as under:

¶14

The appellant was residing in the servant's quarter of naval officer Lt. Vishal Sharma PW7 who was serving in the navy. Lt. Vishal Sharma is

¶15

1 / 11

¶16

apeal.181.2010.doc

¶17

the complainant in the present case and he was residing at Naval Officer's Flat, Sasoon Complex, Colaba, Mumbai. Lt. Vishal Sharma had engaged the appellant as maid servant since April 2007. The husband of the appellant was addicted to liquor and he used to quarrel with the appellant after consuming liquor and assault her.

¶18

On 28.09.2008 at about 8.15 p.m., the appellant came to the house of the complainant at about 10.00 p.m. to do some household work and returned to the servant's quarter. At that time, Lt. Vishal Sharma had heard quarrel between the appellant and her husband. This continued for about 30 to 40 minutes. Thereafter, the complainant went to the house of the appellant which was adjoining his house. After knocking on the door, he told the appellant to maintain peace otherwise he would complain to Naval authorities for taking action against the appellant and her husband. Thereafter also both of the appellant and her husband continued with the quarrel. So the complainant again went to the servant's quarter and warned them to keep quiet. However, thereafter even at 11.00 p.m., the appellant and her husband continued with the quarrel. Meanwhile the complainant informed the security officer PW3 Atulkumar at the main entrance and asked him to come to his flat on account of disturbance caused by the appellant and her husband. After about 15 minutes i.e., at about 11.30 p.m, Naval security person PW3 Atulkumar called the complainant on telephone and informed that the appellant had come down alone to the gate and her legs and hands were bloodstained. This fact was

¶19

2 / 11

¶20

apeal.181.2010.doc

¶21

informed to the Naval police control room. After about 10 minutes, PW3 Atulkumar Naval security person came with the complainant Lt. Vishal Sharma to the quarter of the appellant. When they went inside the quarter of the appellant, they found husband of the appellant was lying down and he was covered with a blanket upto the neck. They noticed injury on back of his head and they saw blood near the bathroom of the quarter. They also noticed that the floor was wet and and it was freshly cleaned. The complainant made inquiry with the appellant about what had happened and the appellant told them that her husband might have got injured due to fall in drunken state and sustained injuries.

¶22

The appellant was told to take her husband to the hospital by PW7 and other witnesses. PW9 Dr.Murkey examined the husband of the appellant. Dr.Murkey found 12 CLW on the body of Chandrakant. Chandrakant was treated, however, during the course of treatment, he died. PW7 Lt.Vishal Sharma lodged the FIR. Thereafter, investigation commenced. After completion of investigation, chargesheet came to be filed.

¶23

Charge came to be framed against the appellant u/s 302 of the Indian Penal Code. She pleaded not guilty to the said charge and claimed to be tried. Her defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions

¶24

3 / 11

¶25

apeal.181.2010.doc

¶26

Judge convicted and sentenced the appellant as stated in para 1 above, hence, this appeal.

¶27

We have heard the learned advocate for the appellant and the learned APP for the State. We have considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the same, we are of opinion that the appellant caused the death of her husband Chandrakant by assaulting him with a deadly weapon.

¶28

The conviction is mainly based on the evidence of PW7 Lt. Vishal Sharma, PW3 Atulkumar, who was the naval security officer and PW4 Dineshkumar, who was the personnel from the Indian Navy – Naval Police. As the prosecution case in paragraph 2 above has been taken from the evidence of the complainant PW7 Lt.Vishal Sharma, we do not wish to overburden this judgment by mentioning the same here again in detail. Suffice to say that the evidence of this witness shows that at 10 pm, quarrel took place between the appellant and her husband in the servants' quarters, which were attached to the house of PW7. PW7 Lt.Vishal Sharma went to the room of the appellant on two occasions to tell them to stop the quarrel. However, the quarrel continued even after 11pm. Hence, PW7 Lt.Vishal Sharma, made a complaint to PW3 Atulkumar, who was the Naval Security Officer on duty. PW7 Ltd.Vishal Sharma alongwith PW3 Atulkumar went to the house of the appellant. PW7 saw that there

¶29

4 / 11

¶30

apeal.181.2010.doc

¶31

were blood stains near the bathroom and the floor was wet as it was freshly cleaned. He also saw the husband of the appellant rolled up in a blanket and he had injuries on his head.

¶32

PW3 Atulkumar was working as a Naval Security Officer at the Sasoon Complex in the naval area. He has stated that on 28.9.2008 at about 11.30pm, he received a call from PW7 Lt.Vishal Sharma. PW7 Lt.Vishal Sharma told him that his maid and her husband were quarreling with each other and he asked him to come and collect the identity card of his maid servant and her husband and warn them. Since PW3 Atulkumar was busy, he sent his colleague Baidyanath to go to the room of the maid servant of PW7 Lt.Vishal Sharma and asked Baidyanath to call the maid servant and her husband alongwith their identity cards. Baidyanath visited the house of the appellan. Within a few minutes, the maid servant of PW7 Lt.Vishal Sharma i.e., the appellant came down. PW3 Atulkumar demanded her pass as well as pass of her husband. He also asked her why her husband had not come. Thereupon, the appellant told him that her husband had consumed liquor and he was sleeping. At that time, PW3, Atulkumar saw blood stains on the hands and on the visible parts of the legs of the appellant. On enquiry, the appellant told him that she was cutting fish and, therefore, there were blood stains on her hands and legs. However, PW3 Atulkumar did not get any smell of fish. Hence, his suspicion was aroused. He then contacted PW7 Lt.Vishal Sharma on telephone and told him about the blood stains on the hands and legs of

¶33

5 / 11

¶34

apeal.181.2010.doc

¶35

the appellant. He requested PW7 Lt.Vishal Sharma to check. He also informed the Naval Police station. He was asked by the police to go the spot. Accordingly, PW3 Atulkumar went to the house of PW7 Lt.Vishal Sharma and requested him to come with him to the room of the appellant which was adjacent to the flat of PW7 Lt.Vishal Sharma. Both of them went to the room of the appellant. They knocked on the door of the room of the appellant. The appellant opened the door. Then this witness alongwith PW7 Lt.Vishal Sharma entered the room of the appellant. They saw the body of the husband of the appellant was wrapped with a bedsheet till the neck. Blood was oozing from his head and neck. The appellant appeared confused at that time. Then, PW3 Atulkumar narrated the said facts to the naval police station on telephone.

¶36

PW4 Dineshkumar, who was working in the Indian Navy Naval Police, has stated that at about 11.30pm, his senior received a message about a quarrel going on in the servants' quarters. Hence, he went to the servants' quarters accompanied by PW7 Lt.Vishal Sharma and knocked on the door of the appellant's room. The appellant came out. On enquiry, the appellant stated there was a little fight with her husband and that the matter was over. On enquiry about her husband, she told that he was sleeping. On entering into the room, they found that her husband was covered with a bedsheet upto neck. However, they saw blood was oozing from the head and neck of her husband. Hence, they made enquiries with the appellant. The appellant told them that her husband had taken drinks

¶37

6 / 11

¶38

apeal.181.2010.doc

¶39

and he might have sustained injury due to fall. They asked the appellant to take her husband to the hospital.

¶40

All the material on record shows that at the relevant time, the appellant and her husband, were in servants' quarters. No other person was in the house at that time. Blood stains were found on the hands and legs of the appellant. Blood was also found near the door of the bathroom of the appellant and floor of the house was seen wet showing that it was recently cleaned. On making enquiry with the appellant, she had given false explanation in respect of the blood stains on her body and in respect of injuries found on the body of her husband. Looking to the fact that the appellant and her husband were the only two persons present in the house, section 106 of the Evidence Act would come into play.

¶41

None of the prosecution witnesses are interested witnesses or had

¶42

any grudge or enmity against the appellant so as to falsely involve her. The evidence clearly shows that the appellant and her husband were found quarreling for a long time before the incident. Thereafter, the appellant was seen with blood stains on her hands and legs. Blood stains were found near the bathroom of the house of the appellant, the floor was seen freshly cleaned and her husband had injuries on his person. What is most important to note is that the appellant and the deceased were the only two persons in the house.

¶43

7 / 11

¶44

apeal.181.2010.doc

¶45

The evidence on record shows that the appellant and the deceased

¶46

were the only two persons in the house at the time of the incident. In such case, the accused has to explain how the deceased sustained injuries and died. In this connection, we may refer to Section 106 of the Evidence

¶47

Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principle which underlies Section 106 of the Evidence Act can be applied in such cases. In the case of State of Rajasthan Vs. Kashi Ram¹ , the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within

¶48

his knowledge and which could not support any theory or hypothesis

¶49

1 (2006)12 SCC 254 : AIR 2007 SC 144

¶50

8 / 11

¶51

apeal.181.2010.doc

¶52

compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.

¶53

The learned advocate for the appellant submitted that according to the prosecution, the weapon of assault was supposed to be a screw driver. However, according to PW6 Dr.Khan, who conducted the postmortem, the injuries found on the body of Chandrakant were not possible by screw driver. No doubt, Dr.Khan has stated that the injuries were not possible by the screw driver, however, the evidence of the complainant PW7 Lt.Vishal Sharma shows that the appellant and the deceased were the only persons in the servants' quarters. It is not exactly known by the prosecution as to with what weapon the appellant actually killed the deceased. However, the circumstances encapsuled by us in the above paragraphs clearly show her complicity in the crime. Moreover, the evidence on record shows that there was no possibility of any third person coming into the house of the appellant and assaulting her husband and causing him injuries. Further it is seen that the servants' quarters are in the naval area wherein entry is restricted. The persons entering into the area are thoroughly screened and only after they have passes, they are allowed to enter inside. It is not even the case of the appellant that some other person entered her house and caused injuries to her husband. The evidence of PW6 Dr.Khan is not enough to wash away all the circumstances which have been brought on record which lead to the conclusion that the appellant alone committed the

¶54

9 / 11

¶55

apeal.181.2010.doc

¶56

murder of her husband Chandrakant.

¶57

The learned advocate for the appellant submitted that even assuming that the appellant committed the murder of her husband, it cannot be said that the case would fall u/s 302 of the Indian Penal Code but it would fall u/s 304 part II or at the most section 304 part I. He pointed out that the evidence on record shows that quarrel was going on between the appellant and her husband Chandrakant which has been deposed to by PW7 Lt.Vishal Sharma. He further submitted that the act was not premeditated or preplanned but it happened on the spur of the moment in a fit of anger. Mr.Kadam submitted that the fact that the incident occurred during the course of sudden quarrel would bring the case under Exception 4 to section 300 and would thus, be covered by section 304 part II of the Indian Penal Code. The evidence on record shows that Chandrakant was a drunkard. It was the appellant, who used to work and maintain the family. It was the appellant, who got her two daughters married. The deceased used to constantly ask for money from the appellant and when the appellant did not give him money, he used to abuse and assault her. On the day of the incident also, it is seen that the deceased was highly intoxicated which is evident from the evidence of PW9 Dr.Murkey. Thus, it is seen from the evidence that on the date of the incident also, the deceased was highly intoxicated and he was quarreling with his wife i.e., the appellant, to such an extent that the neighbours were disturbed. The evidence on record further shows that since about last 2 years, the

¶58

10 / 11

¶59

apeal.181.2010.doc

¶60

deceased was harassing the appellant especially after drinking liquor. It appears that the appellant was unable to bear the torture meted out to her by her husband and in a fit of anger during the course of sudden quarrel, she assaulted her husband and caused him injuries which led to his death.

¶61

Considering the evidence on record, we are of the view that Exception 4 to Section 300 applies to the facts of the case. However, in our opinion, appropriate conviction would be u/s 304 part I of the Indian Penal Code considering the part of the body where the injury was inflicted and the nature and number of injuries. Hence, conviction u/s 302 of the Indian Penal Code is set aside, instead, the appellant is convicted u/s 304 part I of the Indian Penal Code. In our view, custodial sentence of 7 years R.I. and fine of Rs.500/-, i/d S.I. For 15 days would meet the ends of justice.

¶62

15. Appeal is allowed to the aforesaid extent.

¶63

(MRS.MRIDULA BHATKAR, J.)

¶64

(MRS.V.K. TAHILRAMANI, J.)

¶65

11 / 11

Nayana Chandrakant Kamble v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Nayana Chandrakant Kamble v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Daji Raja Pawar Vs the State of Maharashtra

Namdev Vithoba Jadhav Vs the State of Maharashtra

Namdeo Chhabu Pawar Vs the State of Maharashtra

Mumtaz Shamshuddin Khan Vs State of Maharashtra

The State of Maharashtra Vs Santosh Gangaram Sutar @ Lohar

The State of Maharashtra Vs Digambar @ Digu Mahadu Ubale