K.U. Chandiwal, J.@mdashAppellant questions conviction recorded by learned Addl. Sessions Judge, Nandurbar, on 29th August, 2011 in Sessions Case No. 32 of 2010 for offence u/s 304 Part I of Indian Penal Code, directing the appellant to undergo R.I. for eight years and to pay fine of Rs. 1,000/-, in default, R.I. for two months. Appellant was prosecuted for offence of committing murder of her co-wife Sunita under Sections 302, 326, 324, 506 of Indian Penal Code. On 30th August, 2010 at about 4 pm. to 5 pm., the appellant Anjanabai -third wife of Rajesh Gavit, went to her matrimonial home and started scolding deceased Sunita (second wife of Rajesh Gavit) as to why, Anjanabai was not allowed to cohabit with Ramesh. The altercations resulted in appellant giving fist blows and kick blows to Sunita and then picking up a knife and inflicting blows to Sunita at her back, iliac, on chin, both forearms. The appellant, after extending threats of dire consequences, sneaked away and rushed to learned Civil Judge Senior Division, Nandurbar at about 5:45 pm. to 6:00 pm. and conveyed of stabbing her co-wife by knife. Learned Judge called Court police to take proper recourse.
2. Immediately after the assault, as Anjanabai sneaked away, P.W. 2 Ramesh, her husband, P.W. 1 - Sunil, brother of Ramesh rushed to shift Sunita to a Hospital at Khandbara. P.W. 4 - Dnyaneshwar recorded statement (Exhibit 21) of Sunita, which was treated as dying declaration giving rise to Crime No. 128 of 2010. Sunita was gasping, consequently, she was shifted to private hospital and then, to Civil Hospital at Nandurbar. There was second dying declaration recorded by P.W. 6 - A.S.I. Kazi before Sunita''s death. Post mortem was carried and it was informed that Sunita died due to shock and haemorrhage due to injury to spleen and left kidney.
3. Charge below Exhibit 7 was explained to the appellant. She pleaded not guilty.
4. In order to establish the guilt against the appellant, 19 witnesses are put in as under:-
5. During the investigation, accused - appellant gave a statement that the blood stained weapon, which was used for assaulting Sunita, was kept in a ditch in front of her matrimonial house which was recorded at memorandum Exhibit 31. The knife (article "A-1") was taken charge under panchnama. P.W. 5 - Dr. Shinde recorded, stabbing injuries found in left hypocondrium and blunt trauma on abdomen and hematuria of Sunita. She also had contused lacerated wound on the neck and on left forearm. The injuries were sutured. P.W.-8 - Dr. Kalokhe had noticed incise wound on the body of Sunita from which injury Nos. 1 and 2 were on chin. Injury No. 10 was sutured wound on left hypochondria region at mid auxiliary region 1.5 cm. In length. Injury No. 11 was sutured wound over lower back of right chest 6 cm lateral to mid line. Injuries caused damage to spleen and left kidney.
6. P.W. 1 - Sunil resides across the road near the house of P.W. 2 - Ramesh. P.W. 2 - Ramesh has a grocery shop in the house itself. P.W. 2 - Ramesh was chatting with his brother Rajendra and Dinesh in front of shop. Owing to shouts of Sunita, P.W. 1 - Sunil and P.W. 2 - Ramesh rushed forward. They saw accused inflicted blows of knife in the back region of Sunita. Sunita was lying on the ground when blows were given. Dying declaration Exhibit 21 was recorded by P.W. 4 - Police Head constable Dnyaneshwar at the hospital; while Dying Declaration Exhibit 26 was recorded by P.W. 6 A.S.I. Kazi at Dr. Shinde''s hospital. These dying declarations are established by Medical Officer (P.W. 5). Sunita had also made oral dying declarations to P.W. 1 - Sunil, P.W. 2 -Ramesh, P.W. 10 - Lalita, and P.W. 3 Dr. Snehal. Evidence of these witnesses, read together, illustrates that the dying declarations were consistent in its character. There was no variance in the narrations of Sunita either to the witnesses or to the Police Officer. The evidence suggests that at 5:00 pm. on 30th August, 2010, accused came to the house of P.W. 2 - Ramesh (her husband). She picked up quarrel with Sunita and thereafter, picked up knife and assaulted Sunita. Two blows were given on her vital part as referred earlier. There were eleven injuries on the body of Sunita. Some of them were on chin, neck, arm and chest. P.W. 8 - Dr. Kalokhe established that all injuries were ante mortem in nature. These injuries damaged spleen and left kidney of Sunita. Sunita died due to profound bleeding due to shock and haemorrhage caused due to injury to spleen and left kidney. There is accepted position, death of Sunita was homicidal and it was not accidental death or natural death.
7. The conduct of appellant immediately after the incident of approaching to P.W. 16 - learned Civil Judge Senior Division and her confession, speaks volume against her. Even if he did not record her confession, but he has identified her in the Court and he had directed P.W. 15 - police constable to do the needful. Learned Judge did not believe evidence of P.W. 14 - Rafiq as it was found contrary to the statement of Sunita (Exhibit 26), or of the husband and P.W. 2 that, accused had picked up knife in the house.
8. The survey of entire evidence suggests that death of Sunita was owing to brutal assault caused by the appellant.
9. Mr. Hiwarekar, learned counsel submits, there was no intention of appellant to cause death of Sunita. She had gone to her house for cohabitation. Sunita tried to resist her entry. The evidence is silent about duration of stay of accused at the place of incident. The prosecution failed to examine mother-in-law or children of the couple. He repeats that there was no intention of the appellant accused to cause murder and consequently, the case, according to him, comes within the ambit of Section 304 Part II of Indian Penal Code. If it comes accordingly, learned counsel has urged for extending benefit of Section 6 of Probation of Offenders Act.
10. The evidence shows that death of Sunita was homicidal, caused due to inflicting several blows of knife resultantly, Sunita suffered bleeding injuries which were likely to cause death. The appellant had intention to cause death. Even if it was not a premeditated attack, it could be in sudden hit of passion, however, the gravity of such type of assault will not dilute.
11. Learned Addl. Sessions Judge had called report of Probation Officer and considered age of accused to be 20 years. He found that there was no evidence about intimidation and the offence comes u/s 304 Part I of Indian Penal Code. He did not desire to extend benefit under Sections 3 and 6 of Probation of Offenders Act. I do not find any error in such exercise. The offence u/s 304 Part I is punishable with imprisonment for life, consequently, effect and benefit of Section 4 of Probation of Offenders Act is taken away.
12. Mr. Hiwarekar has placed reliance to the judgment of this case in the matters of (A) Siddhesh Anil Shirsat v. State of Maharashtra, 2009 (2) LJSOFT 103 : [2009 ALL MR (Cri) 835]; (B)
13. These judgments, on analysis, are projecting different shades and colour complex. Nature of injuries in reported cases were not on vital part. In few of the cases, injuries were on shoulder or arm. In one of the case, it was on abdomen. In the instant case, injuries are on the vital part; kidney and spleen were damaged, chin was affected. Sunita suffered total eleven injuries. I do not wish to give concession in terms of Section 6 of Probation of Offenders Act. This is more so, appellant hit Sunita repeatedly with a deadly weapon. Consequently, I find no error in the judgment recording conviction. Appeal is dismissed.
