Partly allowed

Ravi Shubhashnaik v. the State of Maharashtra

Bombay HC15 Feb 2022APEAL/111/2014

Case brief

AI extract

What is this about?

The High Court considered an appeal against a conviction for murder (Section 302 IPC). The Court found the dying declaration unreliable due to the accused taking the victim to hospital before the witness arrived and the daughter's evidence tainted by tutoring. It held that while the blows were fatal, they were not intended to cause death, reducing the offence to culpable homicide not amounting to

What did the court decide?

The conviction for murder (Section 302) was quashed; the appellant was convicted for culpable homicide not amounting to murder (Section 304 Part II IPC) and sentenced to 9 years R.I. plus Rs. 5000 fin

Ravi Shubhashnaik Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2022)

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APEAL111.2014.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 111 OF 2014

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Ravi Subhash Naik.

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Age about 30 years, Occupation-labourer,
Residing at Kamare Dairy, Taluka
Palghar,District Thane.
(presently lodged in Thane Central Jail)...Appellant.

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v/s.
The State of Maharashtra.
(Through Saphala Police Station
C.R. No. 23/2012)…Respondent.

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Mr. Gautam T. Kanchanpurkar a/w. Ms. Priya D. Patil a/w. Ms. Pooja
D. Kale, advocate for appellant.

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Ms. S.V. Sonawane, APP for State.

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Mr. Ravi Subhash Naik, accused present in court.

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Digitally --------------------- signed by ARUNA S ARUNA STALWALKAR TALWALKARDate: CORAM :SMT. SADHANA S. JADHAV & 2022.02.15

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17:00:50 PRITHVIRAJ K. CHAVAN, JJ. +0530

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RESERVED ON :JANUARY 27, 2022.

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PRONOUNCED ON :FEBRUARY 15 , 2022.

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JUDGMENT (PER SMT. SADHANA S. JADHAV, J)

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1The appellant herein stands convicted for the offence

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punishable under section 302 of Indian Penal Code and sentenced to

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suffer Rigorous Imprisonment for life and to pay fine of Rs. 5000/- i.d.

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to suffer R.I. for six months. The appellant is also convicted for the
offence punishable under section 315 of Indian Penal Code and
sentenced to suffer R.I. for 3 years by Additional Sessions Judge,
Palghar in Sessions Case No. 68 of 2012 vide Judgment and Order
dated 31/10/2013. Hence, this appeal.

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2Such of the facts necessary for the decision of this appeal
are as follows :

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(i) The appellant herein was married to Surekha 13 years prior
to 20/4/2012. The couple was blessed with two daughters namely,
Shweta and Neha. That 3 months prior to 20/4/2012 Surekha had
disclosed to her sister-in-law that she has seen her husband engaged in
long conversation with a lady on his phone. She suspected that he was
in an extra marital relationship with the said lady. Her suspicion was
strengthened because when she enquired about it, she was assaulted
by her husband.

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(ii) In the night intervening 19/4/2012 and 20/4/2012 Daksha
informed brother of Surekha that a quarrel has taken place between
Surekha and her husband at about 9.30 p.m. Her husband had

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assaulted her and thereafter, her husband and his friend had taken her
to Hospital at Palghar and that they were accompanied by other
relatives also.

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(iii)Surekha was examined by Dr. Pankaj Thakare (P.W.11),
Medical officer at Rural Hospital, Palghar. He found her to be
disoriented. The doctor had noticed an abrasion over great-toe of left
foot and a contused lacerated wound over scalp, left parietal region
measuring 5 x 2 cm. It appeared to be a simple injury caused by hard
and blunt object.

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(iv) Upon enquiry, husband of the injured informed the doctor
that a steel pot had fallen on her head. The patient was referred to
higher center for further investigation and management. The injury
certificate issued by P.W. 11 is at Exh. 33.

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(v) Her mother and other family members had upon enquiry
learnt that she was taken to Dhavale Hospital and the doctor had
advised them to take her to Bombay.

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(vi)Pursuant to medical advise, she was admitted in Nair
hospital at Bombay. Surekha succumbed to the injury in Nair Hospital
on 27/4/2012 at about midnight. The mother of deceased Surekha

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lodged a report at the police station on 29/4/2012.

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(vii) It is alleged in the said FIR that at Nair hospital, the son of
the first informant namely, Manoj enquired with the accused and at
that time, the accused had disclosed that there was a quarrel between
Surekha and him and in the course of quarreling he had assaulted
Surekha with a stick on her head. He regrets for the same. He also
informed Manoj that to escape from a criminal case, he had disclosed
that a steel box had fallen on her head.

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(viii)Neha, daughter of deceased and accused also informed all
concerned, that her father had assaulted her mother with a stick. On
27/4/2012 A.D. NO. 15 of 2012 was registered under section 174 of
the Code of Criminal Procedure, 1973. The scene of offence
panchanama, the inquest panchanama was conducted in A.D. Enquiry.

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(ix)On 29/4/2012 Crime No. 23 of 2012 was registered
against the accused for the offence punishable under section 302 of the
Indian Penal Code.

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3At the trial, prosecution examined as many as 13 witnesses
to bring home the guilt of the accused.

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4P.W.1 Smt. Jassu Babu Dubla happens to be the mother of
the deceased. She has proved the contents of the FIR, which is marked
at Exh. 11. It is elicted in her cross-examination that after death of her
daughter, she had gone to Saphala Police Station after 12 days. It is
admitted that her son and his friend had narrated the incident to the
police and she had only put her thumb impression on the same.

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5The daughter of the deceased Neha has been examined by
the prosecution as P.W. 2. She has deposed before the court that her
father had assaulted her mother with a stick in her presence. She has
even identified the wooden stick with which her mother was assaulted.
The child has been cross-examined and she has admitted that she was
disappointed with P.W. 1 for taking her away from her house to live
with P.W.1. It is also admitted that they used to tell her that her father
is the author of the injury due to which her mother had died. They had
even tutored her to disclose before the court that her father had
assaulted her mother.

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6P.W.3 Manoj Dubala happens to be the brother of the
deceased, to whom Deepak had disclosed that the hospitals were not
admitting the injured and had referred to Mumbai. He has deposed
before the court that the accused had an extra marital affair with some
lady with whom he used to converse regularly. Whenever she enquired
about the same, he used to assault her. She had disclosed about the
same to his wife Shobha to convey the same to P.W. 3.

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7On 19/4/2012 he had received a call from Daksha, the
neighbor of the accused. Daksha had informed P.W. 3 that the accused
had assaulted his wife and that she was being admitted in hospital.
According to him, he had made telephone call to Deepak who was
accompanying the injured and the accused to facilitate the admission
of the injured in the hospital. Deepak had further disclosed that rural
hospital, Palghar did not admit the injured. Similarly, the doctor at
Dhavale Hospital had also referred the patient to higher center at
Bombay. Upon information by Deepak, P.W. 3 alongwith his mother and
others had reached Nair hospital at Mumbai. When P.W. 3 reached the
hospital, he noticed that there were black marks on her right arm.
There was a bandage to her head and she was unconscious. P.W.3 then

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enquired with the accused. On the first day, the accused informed that
a tin box had fallen on her head. On next day, upon further enquiry,
the accused disclosed that since the doctors were not ready to admit
Surekha in the hospital, he had informed that a tin box had fallen on
her head. But in fact, he had assaulted her with a wooden stick. The
accused had also expressed apprehension that he was scared of being
prosecuted. It is admitted that they had not approached the police
station despite the fact that they had learnt from the accused himself
as well as Neha that the accused was the author of the injury sustained
by Surekha. That for the first time, he had gone to the police station on
29/4/2012 i.e. when the FIR was lodged. That there are material
omissions in the evidence of P.W.3.

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8P.W. 4 Laxmi Dhodi happens to be neighbor of the accused.

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She claims to have heard the noise of crying from the house of accused
Ravi. She rushed to his house. The accused had opened the door. She
saw Surekha lying on a mat with a bleeding injury to her head.
Surekha was conscious. P.W. 4 enquired with her and at that time,
Surekha had disclosed that Ravi had assaulted her. Thereafter, Surekha
became unconscious. Soon thereafter, the accused had brought Paresh

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on Motor cycle and had taken Surekha to hospital. It is admitted in
the cross-examination that on the day of incident, as usual both
daughters of accused had gone to the house of the mother of accused
for sleeping. It is further admitted that the injured was taken to the
hospital by the accused even before P.W. 4 reached his house and
therefore, she had no dialogue with Surekha.

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9P.W.5 Daksha who was the first person to communicate

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about the incident to P.W. 3 brother of the deceased is declared hostile.

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10P.W. 6, 7, 8 are the panch witnesses. Their evidence calls for

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no discussion as it is an admitted position that Surekha, the wife of the
accused sustained injuries in her matrimonial home, her husband was
present at the time of incident, she was taken to the hospital by the
accused, she was unconscious and the history of accidental injury was
given by the accused. The wooden stick was recovered at the instance
of the accused on 1/5/2012. P.W.8 happens to be the panch to recovery
of cell phone of the accused which was seized in the police station and
the panchanama was allegedly drawn in the presence of P.W. 7, who

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has admitted in the cross-examination that the contents of the
panchanama were not reduced into writing in his presence.

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11P.W. 9 PSI Ashok Waghmare was attached to Agripada

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Police Station. On 27/4/2012, he had received an information from
Nair hospital regarding the death of Surekha wife of Ravi Naik. He had
prepared the inquest panchanama which is at Exh. 27. He claims to
have recorded the statement of the brother of the deceased. It is also
admitted that on that day, the relatives of the deceased had not
complained against anybody, but all that the brother had disclosed is
that the neighbor of the accused had informed him telephonically that
his sister was assaulted on the previous night. No case was made out
for registration of offence and hence, initial investigation was done in
A.D. Enquiry.

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12P.W.10 Vaibhav Gharat is the panch for recording of the

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memorandum under section 27 of the Indian Evidence Act. Initially in
the examination-in-chief, he has stated that the accused in the custody

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of the police had informed the police that he had assaulted his wife on

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her head, but he has disowned to have signed the said memorandum.
Hence, he is declared hostile.

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13Dr. Sachin Sonawane (P.W. 12), Assistant Professor at Nair

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Hospital, Mumbai conducted autopsy on the dead body of Surekha. He
noticed 2 sutured injuries on her head which was suggestive of
craniotomy. Besides that, he noticed that contusions on her arms and
shoulders, abrasions on her knee and laceration on left great-toe. On
internal examination he had noticed surgical injuries as follows :

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(1) Oval shaped cramitomy flap of size 10 cm. x 6 cm of right parito-temporal bone.

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(2) Linear undisplaced fracture of length 5 cm. at left parietal extending from coronal suture to left lateral side.

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(3) There was subdural hematoma of size 60 cc seen in inferior surface of right temporal and occipital lobe dura matter at right parito-temporal region sutured with 8 stitches present.

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(4) Subarchonoid haemorrages seen over right cerebral region. Brain was congested and edematous.

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It was also noticed that the deceased was pregnant. There was a

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female foetus of 26 cms.. It appears that the deceased was pregnant of
about 5 months amenorogic female. The cause of death was
bronchopneumonia as complication of head injury. The post mortem
notes are at Exh.42 and the same are proved by P.W.12.

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14P.W.13 Vinayak Patil is the investigating officer. He has

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deposed about the steps taken by him in the course of investigation. He
has proved the omissions and the contradictions of the witnesses.
According to him, the informant and her son had disclosed to P.W. 13
that Neha is the eye witness to the incident. The alleged statement of
P.W.3 that he learnt from Deepak that the injured is being shifted to
Bombay is in the nature of an omission.

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15Learned Counsel for the appellant submits that the
prosecution had not proved its case beyond reasonable doubt in as
much as there is no eye witness to the incident. That there is delay in
lodging the FIR which goes to the root of the matter. That there was no
motive to kill the deceased. Lastly, that it is a case of grave and sudden
provocation. The accused had given just one blow on the head of the

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deceased and therefore, it cannot be said that the accused had an
intention to kill the deceased.

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16Per contra, learned APP has submitted that it is a case of
custodial death. The wife of the accused had sustained injury when she
was at home in the custody of her husband and therefore, it is
incumbent upon the accused to put forth the circumstances in which
the incident must have occurred as the incident is within the special
knowledge of the accused. There is no plausible explanation offered in
his statement under section 313 of the Code of Criminal Procedure,
1973. A false defence is taken and therefore, an adverse inference
needs to be drawn and the conviction for the offence punishable under
section 302 of the Indian Penal Code deserves to be maintained.

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17The evidence led by the prosecution is threefold. Firstly,
that there is an eyewitness to the incident. Secondly, there is an oral
dying declaration, Thirdly, there is an extra judicial confession.
Fourthly, that the deceased was carrying pregnancy of five months at
the time of her death. Fifthly, that it is a case of custodial death.

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18The first aspect to be considered is the evidence in the
nature of dying declaration. According to P.W. 4, the deceased had
disclosed to her that she was assaulted by her husband. However, it is
categorically admitted in the cross-examination that the accused had
taken Surekha to the hospital even before the arrival of P.W. 4. In view
of this, there was no occasion for the injured to make any dying
declaration to P.W. 4 and hence, the said evidence does not deserve to
be considered.

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19As far as the evidence that Neha was an eye-witness to the
incident of assault, it needs to be appreciated that P.W. 4 has
categorically stated that the daughters of the accused and deceased
had gone to the house of the mother of the accused for sleeping as
usual. Moreover, Neha had informed her grand-mother and her
maternal uncle on the very next day of the incident that her mother
was assaulted by her father in her presence. In that eventuality, no
steps were taken by the first informant or P.W. 3 to lodge a report. That
Neha has also admitted that her grand-mother and her maternal uncle

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had impressed upon her and tutored her to say that her mother had
sustained the fatal blow at the hands of her father. And therefore, the
evidence of Neha cannot be considered as a sterling testimony.

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20It is the case of the prosecution that there was an extra
judicial confession made by the accused to his brother in law within
two days from the incident. However, no steps were taken by P.W.3 to
report to the police. Besides, there is an apparent delay in lodging the
FIR even after the death of Surekha. P.W.9 has categorically stated that
the statements of the relatives was recorded in A.D. Enquiry and there
was no complaint against the accused. To add to it, P.W. 1 and P.W. 3
have stated before the court that they had approached Saphala police
station 12 days after the incident. An inference would have to be
drawn that the first information report is anti-dated. In any case, the
first informant has also stated that in fact, the incident was narrated by
P.W. 3 Manoj and his brother Sanjay.

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21The fact that Surekha was carrying pregnancy of 5 months
is proved by P.W. 11, who had performed the autopsy on the dead body

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of Surekha. It is a female fetus. It is pertinent to note that neither P.W.
1 or P.W. 3 have stated that Surekha was carrying pregnancy of five
months.

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22There is no evidence to show that the accused was involved
in any extra marital relation. The possibility that the deceased had
nurtured a suspicion cannot be ruled out.

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23It is a matter of fact that the wife of the accused had
sustained injury in her matrimonial house. The accused was present
when the incident occurred. And this fact is established by the very
conduct of the accused that he had rushed her to the hospital within
no time. Had there been an intention to do away with the life of the
deceased, nothing prevented him from making a second assault to
ensure her death. He had given one blow of the stick, realized his
mistake when she failed down and rushed to hospital immediately. The
accused had not taken undue advantage of the situation.

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24 The fact that the stick was used as a weapon of assault is proved

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by the fact that there were blood stains on the stick. In the words of

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P.W. 3, the accused had admitted that in the eventuality it had come to
light that it is a medico legal case, then Surekha would not have been
treated by the doctors, also needs to be taken into consideration and
no adverse inference can be drawn.

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25In the present case, the doctor has not stated that the injury
sustained by the deceased was sufficient in the ordinary course of
nature to cause death. In any case, the cause of death is
“bronchopneumonia as complication of head injury”.

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26It would be trite to rely upon the judgment of the Supreme
Court in the case of Kesar Singh & anr. v/s. State of Haryana1. It is

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held that-

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“The distinction between culpable homicide amounting to
murder and not amounting to murder is well known.
Culpable homicide is genus, murder is its specie. The
culpable homicide, excluding the special characteristics of
murder, would amount to culpable homicide not
amounting to murder. The Code recognizes three degrees
of culpable homicide. When a culpable homicide is of the
first degree, it comes within the purview of the definition of

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1 (2008) 15 SCC 753.

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Section 300and it will amount to murder. The second
degree which becomes punishable in the first part of
Section 304is culpable homicide of the second degree.
Then there is culpable homicide of third degree which is
the least side of culpable homicide and the punishment
provided for is also the lowest among the punishments for
the three grades. It is punishable under the second part of
Section 304.

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12. The questions which are required to be posed are - (1)
Whether the bodily injuries found on the deceased were
intentionally inflicted by the accused; and if so, (2)
Whether they were sufficient to cause death in the ordinary
course of nature.”

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27It was incumbent upon the accused to have given a
plausible explanation in his statement under section 313 of CR.P.C. The
accused had only denied to have committed the offence. It is apparent
on the face of the record that the accused had inflicted single blow on
the head of the deceased. The appellant had not taken undue
advantage of the situation, neither there was cruelty. However, the
knowledge that the stick would cause injury on the head which would
in all probabilities result into death cannot be ruled out. Hence, the
present case would fall under section 304 part II of the Indian Penal

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Code as no intention to commit murder can be attributed to the
accused.

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28The learned Counsel submits that the accused was in jail

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since 2012 except for parole granted due to pandemic. The accused is
present before the court at the time of hearing.

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29In view of the above observations, following order is

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passed:

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ORDER

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(I) The appeal is partly allowed.

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(II)The conviction and sentence for offence punishable under
section 302 of Indian Penal Code passed by Additional Sessions Judge,
Palghar in Sessions Case No. 68 of 2012 vide Judgment and Order
dated 31/10/2013 is hereby quashed and set aside.

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(III)The appellant is convicted for the offence punishable under
section 304 II of the Indian Penal Code and sentenced to suffer
Rigorous Imprisonment for 9 years and to pay fine of Rs. 5000/- i.d. to
suffer R.I. for six months.

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(IV)The conviction and sentence for the offence punishable

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under section 315 of Indian Penal Code is maintained.

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(V)The appellant is hereby entitled to the set off for the period
already undergone.

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(VI)The appeal is disposed of on the above terms.

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(PRITHVIRAJ K. CHAVAN, J)

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(SMT. SADHANA S. JADHAV, J)

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Talwalkar

Ravi Shubhashnaik v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Ravi Shubhashnaik 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

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