Partly allowed

Vijay Sopan Tarade v. the State of Maharashtra

Bombay HC14 Aug 2013APEAL/882/2010

Case brief

AI extract

What is this about?

High Court allowed appellant's appeal against life sentence for murder, holding circumstantial evidence sufficient but findings of intentional killing supported by injury report and conduct merited reduction to culpable homicide not amounting to murder under Section 304 Part II IPC with 7 years rigorous imprisonment.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant convicted under Section 304 Part II IPC and sentenced to rigorous imprisonment for 7 years.

Vijay Sopan Tarade Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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vidya

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 882 OF 2010

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Vijay Sopan Tarade Age : 25 years, R/o. Rasal Chawl, PCMT Chowk, Bhosari, Pune (Presently lodged at Yerwada Central Prison, Pune) ... Appellant vs. The State of Maharashtra ... Respondent

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Mr. A. Majid H. Banderkar, Advocate appointed for the appellant. Mrs. S.V. Gajare-Dhumal, APP for the State.

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

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AUGUST 14 , 2013.

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ORAL JUDGMENT (PER MRS. MRIDULA BHATKAR, J.)

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The appellant has preferred this appeal against the judgment and order dated 9^th July, 2010 passed by the learned Sessions Judge, Pune in Sessions Case No. 178/2009. By the said judgment and order, the learned Sessions Judge convicted the appellant under section 302 of Indian Penal Code. For the said offence, the appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer further R.I. for six months.

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The case of the prosecution is that the appellant was residing with his

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mother Hirabai in Rasal Chawl, Bhosari, Pune. The appellant was a rickshaw driver. However, he was addicted to liquor and used to demand money from his mother Hirabai. PW-4 Yogesh, being relative of deceased Hirabai, was also residing with them. Yogesh noticed that the appellant used to demand Rs.2,000/- from his mother Hirabai prior to the incident. On the night intervening 7^th and 8^th November, 2008, the appellant came to the house in the midnight and demanded money from his mother Hirabai and thereafter he assaulted her with a grinding stone on her head. She died due to head injury. The appellant started weeping. On hearing her weeping , PW-4 Yogesh, who was sleeping in the next room, woke up and came there. He saw Hirabai lying dead in a pool of blood with injury on her head. He immediately went out and reported this incident to the neighbours. They locked the door of the house of appellant from outside and informed about the incident to Bhosari Police Station. The police recorded an FIR and registered an offence at C.R. No. 468 of 2008 under section 302 against the appellant. The police drew spot panchnama. The dead body of Hirabai was sent for post-mortem to YCM Hospital at Pune. PW-7 Dr. Prakash Rokade conducted the post-mortem and opined that the

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injuries on the head were possible due to repeated blows of grinding stone and the cause of death was traumatic and haemorrhagic shock due to head injury. The police immediately arrested the appellant. They recorded the statements of the witnesses. The police recovered articles in the spot panchanama – quilt (Article 1), bedsheet (Article 2) and grinding stone (Article 3). After completion of investigation, charge came to be filed in the Court of learned Magistrate. Being the Sessions case, the learned Magistrate then committed the case to the Court of Sessions.

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The learned defence counsel has submitted that there is no evidence against the appellant in this case. He submitted that there is no eye witness in this case and the prosecution could not establish the circumstances to hold the appellant guilty. He argued that the evidence of PW-4 Yogesh ought not to have been relied by the trial Court. On reading evidence of PW-4 Yogesh, three possibilities can be revealed which might have caused the death of Hirabai. Firstly, as Hirabai was an asthmatic patient, she had an attack of asthma and fell down on the grinding stone and died due to head injury; secondly, she might have slipped and fell down on the grinding stone and died; and thirdly, not the appellant but Yogesh might

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have killed the deceased. The learned counsel submitted that all other

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witnesses i.e. neighbours have stated that they received the news of Hirabai's death from Yogesh. and they formed the opinion erroneously that appellant had murdered his mother. He further submitted that none of the panchas have supported the case of the prosecution. Thus, in the absence of any cogent evidence, the appellant is entitled to acquittal.

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It is true that there is no eye witnesses who has seen the actual assault. However, PW-4 is a star witness who has deposed all the details in respect of the motive and also what happened on that fateful night between the appellant and the deceased. He stated that he was residing with the deceased and appellant and he has witnessed frequent quarrel between them, as the appellant was demanding Rs. 2000/- from his mother. The police have examined PW-8 Vikas Landge with whom he was serving as a driver on Piaggo Autorickshaw owned by him. He has stated that in the year 2008 the appellant had borrowed Rs.5,000/- from him to purchase a cell phone. The appellant has returned Rs.3,000/- out of Rs.5,000/-. PW-8 sold the Piaggo Autorickshaw at the time of “Dassera” and thereafter the appellant was not in his employment. Thus, the amount of Rs.2,000/- was

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due against him. Prior to incident i.e. 7^th November, 2008 he demanded Rs.

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2,000/- from the appellant at around 7 p.m. The appellant thereafter went to his house and brought Rs.1,000/- and paid him. Thus, PW-4 Yogesh has rightly mentioned that there was demand of Rs.2,000/- from the appellant. Yogesh deposed that at that night deceased had told him that the appellant has taken Rs.1,000/- from her and he did not come late night. Thereafter, PW-4 slept and he was not aware when the appellant returned home. At around 2 a.m. he heard loud noise of quarrel between appellant and deceased. However, he thought that it must be a routine quarrel. So he did not go there. However at 3 a.m. he heard appellant weeping. So he woke up from sleep and went there. He saw that Hirabai was lying dead in a pool of blood with injury over her head and the appellant was sitting near her body. So, he immediately went to Mr. Goraksh Shelke PW-5 and told that the appellant has killed his mother. PW-5 Goraksh instructed PW-4 Yogesh to latch the room from outside so as to prevent the appellant from running away of the house. He then contacted PW-6 Santosh Lokhande, son of maternal aunt of the appellant and asked him to come immediately to the residence of the appellant. When he reached there, Yogesh PW-4 told him that appellant was detained inside the room. He told that appellant

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has assaulted Hirabai with grinding stone. Thus, PW-6 Santosh went to police station with Manoj PW-2, who did not support the case of the prosecution and informed the police about the incident. The police along with this witnesses came to the room of Hirabai . PW-4 Yogesh had locked the room from outside. After police reached the spot, they opened the latch and entered the room. They found that the body of Hirabai was lying dead and the appellant was sitting near her.

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PW-4 Yogesh is the first person to notice Hirabai lying dead in a pool of blood. He saw the appellant sitting near her and weeping. We have considered three possibilities which were argued by the learned counsel. According to him, there are two possibilities that Hirabai herself might have died accidentally due to fall either because of asthma or she might have slipped and came in contact with a grinding stone. Truthfulness of the possibilities can be tested on the basis of conduct of the appellant. Had the appellant come across his mother lying in a pool of blood due to accident, he would have definitely asked Yogesh or other neighbours to help him to take his mother to the hospital for medical treatment. However, he did not ask for any help. The third possibility as suggested by

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the learned counsel that it is not the appellant but Yogesh who might have killed Hirabai, is totally imaginary. If Yogesh might have killed Hirabai, the reaction of the appellant might be totally different. He would have given a very strong reaction to the police or before the neighbours. However, as per the evidence of PW-4, the appellant was sitting near his mother and weeping. Thus, we find this circumstance consistent with the hypothesis of the guilt of the accused. On the background of continuous pressure of demand for money from PW-7, there was every reason for the appellant to go to the extent of assaulting his mother for money. The prosecution has successfully established motive.

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The incident of assault and death has taken place within the four walls in the house of the deceased. Admittedly the appellant was residing in the house with his mother and Yogesh PW-4. The incident has taken place after midnight. So this is generally the time of all the members in the house to sleep. The appellant was found near the body of Hirabai and prior to that Yogesh had heard quarrel between appellant and deceased Hirabai. Though Yogesh has not witnessed the actual assault, he reached the spot immediately, as he heard the appellant weeping. The immediate disclosure

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of this incident by PW-4 Yogesh to PW-5 Goraksh and PW-6 Santosh is also an incriminating circumstances against the appellant. Though Yogesh had not seen the appellant assaulting his mother, it is true that on the basis of circumstances and condition of the appellant and the deceased, Yogesh had drawn inference that it must be the appellant who had assaulted and killed his mother. We accept that there is no eye witness to the incident. However, after going through the evidence of PW-4 Yogesh, PW-5 Goraksh Shelke, PW-6 Santosh Lokhande and PW-8 Vikas Landge, we independently arrive at a conclusion that the inference drawn by Yogesh PW-4 that it is the appellant who has assaulted and killed his mother was correct.

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The trial Court has rightly appreciated the evidence of all these witnesses though the panch witnesses have not supported the case of the prosecution. The evidence of all these witnesses is sufficiently strong enough to conclude that the appellant has committed the offence of assaulting his mother which resulted in death of Hirabai. PW-7 Dr. Prakash Rokade has given details of internal and external injuries caused to the deceased. He has specifically deposed that the internal injuries

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corresponding to external injuries nos. 1 to 4 and 6 are not possible due to fall of any person on any hard and blunt object as of grinding stone (Article 3). He has specifically opined and deposed that the injuries as he noticed were possible due to repeated blows of grinding stone (article 3). He further made categorical statement that the injuries are also not possible due to fall of the persons on the cot, over the floor of the room. The appellant was arrested immediately by the police. Thus, considering this evidence of witnesses, conduct of the appellant, medical evidence, we are of the view that no indulgence is required in the judgment and order of the trial Court.

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The learned defence counsel on the point of quantum has submitted that the appellant did not intend to kill his mother but there was a quarrel between the appellant and his mother Hirabai. This factum may be considered and the offence may be reduced from murder to culpable homicide not amounting to murder.

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As per the evidence of PW-8 Vikas Landge, the appellant did owe Rs.2000/- to him on the evening of fateful night. He repaid Rs.1,000/- out

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of Rs.2,000/- on the same night by taking the same from his mother. Thus,

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Rs.1,000/- was still due and therefore he had demanded the said amount on that night. So, there was a quarrel between the deceased and appellant. After assaulting his mother Hirabai, the appellant did not run away but he was sitting by her side and weeping. We consider these are mitigating circumstances which deserves reduction of the charge from murder to culpable homicide not amounting to murder. Thus, the conviction under section 302 of life imprisonment is set aside and the appellant is held guilty under Section 304 Part II of IPC and is sentenced to suffer rigorous imprisonment for 7 years.

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Appeal is allowed to the aforesaid extent.

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Office to communicate this order to the concerned jail authorities and to the appellant, who is in jail.

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At this stage, we must record our appreciation for Advocate Mr. A. Majid H. Banderkar, who is on the panel of advocates of High Court Legal Services Committee and who was appointed to represent the

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appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee, Bombay at Rs.2500/-.

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

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Vijay Sopan Tarade v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vijay Sopan Tarade 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

Statutes considered

Parties & counsel

Coram

Case details

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