Ghansham Ninawe vs State of Maharashtra

R.M. Lodha, J.—The Addl. Sessions Judge, Nagpur, on 19-11-1991, after trial in Sessions Case No. 37/91, State of Maharashtra v. Ghansham Narayan Ninawe, has convicted the accused/appellant for the offence punishable u/s 302 I.P.C. and sentenced to undergo imprisonment for life for having committed murder of his wife Shakuntaladevi.

Mr. Daga, learned counsel for the accused/appellant, candidly submitted that the prosecution has amply established the involvement of the accused/appellant which ultimately resulted in death of Shakuntaladevi and he does not have much to say on this aspect of the matter, but, according to him, for death of Shakuntaladevi, wife of the accused/appellant, he could not be held guilty of committing culpable homicide amounting to murder, but he could be held guilty of culpable homicide not amounting to murder, and, therefore, the accused/appellant could be convicted only u/s 304 IPC. According to Mr. Daga, it is single blow case and the accused/appellant had no intention to cause death or for causing such bodily injury of deceased Shakuntala and he had only knowledge to cause such bodily injury which was likely to cause death, the offence committed by the accused/appellant would be covered in Part-II of Section 304 of I.P.C.

Mr. Ahmed, learned Addl. Public Prosecutor, after referring to the evidence on record, also submitted that it would be difficult for him to support the conviction of the accused/appellant for the offence punishable u/s 302 of I.P.C., and according to Mr. Ahmed, though the accused/appellant inflicted only one blow by Gupti (article 7) on the person of deceased Shakuntaladevi, the nature of the injury caused and the fact that as a result of that injury which was caused on the most vital part namely the chest, the accused/appellant had intention to cause bodily injury to the deceased Shakuntaladevi which was likely to cause death and, therefore, the act of the accused would be covered under Part-I of Section 304 of IPC.

How a normal human urge and physiological demand of having sex with spouse could result in a crime, is unfolded in the present case. The accused/appellant Ghansham Ninawe is a middle aged man and about 50 years old. The deceased Shakuntaladevi was his wife and out of the weldock, six sons and one daughter were born. PW. 1 Prabhakar, the eldest son, on the date of incident, was about 22 years old, and P.W. 7 Shravan, another son, was about 20 years old at the time of the incident. On 5-10-1990, at wee hours, the accused/appellant had urge to have sexual inter-course with his wife Shakuntaladevi, but since the children, some of whom major and grown up, were sleeping nearby, she did not allow her husband-the accused/appellant to have sexual inter-course with her. The accused/appellant in that situation, took out Gupti and inflicted one injury to Shakuntaladevi on her chest and as a result thereof, she died at 7 A.M. On the basis of this incident, First Information Report was registered initially u/s 307 of I.P.C. but later on changed to Section 302 IPC at Police Station, Lakadganj, Sub-Division Kotwali District Nagpur, on 5-10-1990 at about 10 O''clock. Investigation commenced. In the evening, the accused surrendered himself to the police station and also surrendered the weapon i.e. Gupti. Post-mortem of dead body of Shakuntaladevi was conducted on 5-10-1990 itself. Prior thereto, inquest panchanama as well as spot panchnama was prepared. Statements u/s 161 of Cr.P.C. were recorded, and on conclusion of investigation, the accused/appellant was committed for trial before the Addl. Sessions Judge, Nagpur, who on 29-7-1991 charged the accused for having committed murder of his wife intentionally by means of Gupti and thereby committed offence punishable u/s 302 of I.P.C. The accused pleaded not guilty. The prosecution led oral as well documentary evidence. The statement of the accused was recorded u/s 313 of Cr.P.C. and he denied his involvement in the crime. In answer to question No. 48, the accused/appellant submitted in his statement u/s 313 Cr.P.C. that deceased Shakuntala, his wife, gave ornaments to her brother about 6 years before and he was not consulted and over this point there was a dispute between him and her brother. The trial Court, after hearing the Public Prosecutor and the counsel for the accused, convicted the accused for the offence punishable u/s 302 of IPC and sentenced him to suffer imprisonment for life.

P.W. 1 Prabhakar, the eldest son of accused/appellant, testified in the Court that his father-accused/appellant, his mother Shakuntaladevi (the deceased), his brothers were all living together in their two rooms'' apartment situated at New Mangalwari. On 4-10-1990, he came to his house at 9 P.M., had his meals and slept, He slept in Chhapari and his father and brother also slept in Chhapari. His mother slept in kitchen as usual with other brothers and sister. At about 4 A.M. he woke up and noticed that light was on and he found that his father-accused/appellant was sleeping with his mother. He again slept and at about 5.30 A.M., he heard the shouts of his mother. He get up and noticed that his father was going away from the back door and when he asked his mother, she told him that she was stabbed by his father on left side of chest. She was profusely bleeding. He called Dr. Ghaturle who was residing nearby and he advised to shift Shakuntaladevi to the hospital. He along with his another brother Shravan (P.W. 7) shifted their mother to the hospital and within half an hour of reaching there, his mother died. Evidence of P.W. 1 Prabhakar is duly corroborated by P.W. 7 Shravan. Article 7 Gupti was sent for chemical analysis and as per C.A. report exh. 60, human blood was found on it. Post-mortem report (Exh. 45) shows that Shakuntaladevi sustained one external injury which was stab wound on chest 7 1/2" laterally from medial line of body in anterior axillary line in 4" inter costal space, obliquely placed measuring 1" x 1/2" x cavity deep. The internal injuries as a result of aforesaid external injury, were stab wound on left lower lobe 1 1/2" above from base border and 1" medially from lateral border size 1" x 1 1/2" x through & through and also right ventricle were having 1/2" x 1/2" medially from right border. The Post-mortem report also, therefore, corroborates the testimony of P.W. 1 Prabhakar. The evidence led by the prosecution is, therefore, clinching that the accused/appellant caused one Gupti blow on the chest of his wife Shakuntaladevi and as a result thereof, she sustained external as well as internal injuries found in her Post-mortem and as a result thereof, Shakuntaladevi died. On the basis of this evidence, Mr. Daga the learned counsel for the accused/appellant, was justified in not assailing the involvement of the accused/appellant in the aforesaid incident. No manner of doubt is left that the evidence led by the prosecution that the deceased Shakuntaladevi died of homicidal death and the findings recorded by the trial Court to that effect is justified and so also that it was the accused/appellant who caused the said injury on the person of his wife Shakuntaladevi.

The main question, therefore, which requires consideration by us in the present appeal, is whether for the death caused to Shakuntaladevi, accused/appellant can be held guilty for culpable homicide amounting to murder or culpable homicide not amounting to murder. It is not disputed by Mr. Ahmed, the learned Addl. Public Prosecutor, and rather could not be disputed that the accused/appellant caused only one Gupti blow on the person of his wife Shakuntaladevi. The accused/appellant, his wife Shakuntaladevi and their six sons and one daughter were admittedly living together in two rooms apartment having common lodging and boarding. It is indicative of the fact that except normal were and tear of the marital life, the family was carrying on jointly without any problem. From the evidence of P.W. 1 Prabhakar, the eldest son of the accused/appellant, it is apparent that in the night of 4-10-1990, the accused/appellant, his son Prabhakar and some of his brothers, slept together in the chhapari, whereas shakuntaladevi wife of the accused/appellant and mother of P.W. 1 Prabhakar, along with other sons and daughter slept in the kitchen. At about 4 O''clock early morning of 5-10-1990, P.W. 1 Prabhakar got up and found light on and his father was sleeping with his mother. That is pointer to the fact that the accused/appellant had urge of sexual intercourse with his wife and, therefore, in the night probably in the early hours, the accused/appellant shifted from Chhapari to the place where his wife was sleeping and he went near her. At about 5.30 A.M., P.W. 1 Prabhakar heard the noise of his mother and found that his father was running away from the back door and mother told him that the accused/appellant had stabbed her. It is, therefore, apparent from the prosecution evidence that the accused/appellant went to his wife for sexual intercourse, but since there were grown-up sons and daughter who were sleeping nearby, wife of the accused/appellant refused to indulge and did not allow the accused/appellant to have sexual intercourse with her and as a result thereof, the accused/appellant inflicted one Gupti blow on the person of his wife. The act was definitely out of sheer frustration by husband having not been able to satisfy his urge of having sex with his wife and in that momentary impulse and anger, the accused inflicted Gupti blow on his wife and, therefore, it could not be said that the accused/appellant had any intention to cause death of his wife Shakuntaladevi. At the best, the accused/appellant, for the injury caused to the wife and due to which ultimately Shakuntaladevi died, could be held guilty u/s 304 Part-I of IPC. For sole injury caused by the accused/appellant and the circumstances in which such injury was caused, in our opinion, the accused can be held guilty for the offence punishable u/s 304 Part-I of Indian Penal Code and we are not persuaded by the arguments of Mr. Daga, the learned counsel for the accused/appellant, that only knowledge can be attributed to the accused/appellant for the injury which was likely to cause death and the case would be covered u/s 304 Part-II of the Indian Penal Code. We, therefore, are of considered opinion that the conviction of the accused/appellant u/s 302 of the Indian Penal Code deserves to be altered to one u/s 304 Part-I of the Indian Penal Code and which we accordingly hereby do.

We heard the learned counsel on the question of sentence. Mr. Daga, the learned counsel for the accused/appellant, would urge that in view of the facts already indicated above, the sentence of five years imprisonment for the offence punishable u/s 304 Part-I IPC. would meet the ends of justice. On the other hand, Mr. Ahmed, the learned Addl. Public Prosecutor, would submit that in the facts and circumstances of the case, for the conviction of the accused/appellant u/s 304 Part-I, IPC., he/should be sentenced to 7 years rigorous imprisonment.

We have bestowed our thoughtful consideration on the point of sentence. Without repeating the facts and circumstances which are already indicated above, in our view, the interest of justice would be served in the present case if the accused/appellant is sentenced to 7 years'' rigorous imprisonment for his conviction u/s 304 Part-I of I.P.C. While awarding this sentence, we have adverted to and taken into consideration the peculiar facts and circumstances including the fact that it was a single blow case by the husband to his wife for her refusal to have sexual intercourse.

Consequently, this criminal appeal is partly allowed. The conviction of the accused/appellant by the Addl. Sessions Judge, Nagpur, for the offence punishable u/s 302 of I.P.C. is quashed and set aside, instead accused/appellant is convicted for the offence punishable u/s 304 Part-I of I.P.C. and sentenced to suffer rigorous imprisonment for seven years. Order accordingly.

Appeal partly allowed.