High Court
Facts
APEAL-604-20.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 604 OF 2020Indrasing Padkya PawaraC-11592 Circle 3/6,Age-39 years, Occu.- Nil,R/o Langadi Bhavani,Tq. Shahada, Dist. Nandurbar..APPELLANTVERSUSState of MaharashtraThrough P.S.O.,Police Station Shahada,Tq. Shahada, Dist. Nandurbar..RESPONDENT....Mr. S.U. Chaudhari, Advocate for appellantMr. S.D. Ghayal, Addl.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 08th APRIL, 2024PRONOUNCED ON : 03rd MAY, 2024JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The challenge in this appeal is to a judgment and order ofconviction and consequential sentence dated 06th February, 2018 passed byAdditional Sessions Judge, Shahada in Sessions Case No. 42 of 2016. Videthe impugned judgment and order, the appellant was convicted for theoffence punishable under Section 302 of the Indian Penal Code (‘I.P.C.’), andtherefore, sentenced to suffer imprisonment for life and to pay fine ofRs.2,000/- with default stipulation.1 APEAL-604-20.odt2.The facts, giving rise to the present appeal are as follows :-P.W.1 – Ramesh lodged the F.I.R. (Exh.10) on 28th May, 2016.He was a last year student of law stream. He had been to his village LangadiBhavani, Tq. Shahada, Dist. Nandurbar on account of summer vacation.Deepak (deceased) was his cousin. The houses of P.W.1 – Ramesh andDeepak were adjacent to each other.3.On 27th May, 2016 by 06:00 in the evening Deepak (deceased),P.W.1 – Ramesh, their another friend and distant brother – Govind weretalking inter-se on otla of the house of Deepak. Nisha, wife of Deepak, wasalso present there. The appellant is the uncle of Nisha. Both, Deepak andNisha were emotionally involved. They had eloped and married with eachother. The appellant, being uncle, and the father of Nisha were annoyedthereby. Both were said to have been giving threats of eliminating Deepak.4.On the aforesaid date, time and at place, the appellant came thereand said that he will eliminate Deepak. The appellant thereupon stabbed inthe ribs of Deepak with a mutton cutter and fled. One Mangesh Pawarasecured services of an ambulance. Deepak was being taken to the hospitalat Nandurbar in the said ambulance. On the way to the hospital, Deepakbreath his last. P.W.1 – Ramesh lodged the F.I.R. (Exh.10) at ShahadaPolice Station. A crime vide C.R. No. 158 of 2016 was registered against theappellant for the offence punishable under Section 302 of the I.P.C. P.W.8 –Dnyaneshwar was entrusted in the investigation. He paid visit to the scene2
Legal Reasoning
APEAL-604-20.odtThirdly — That the provocation is not given by anything done inthe lawful exercise of the right of private defence.Exception 2 - …..Exception 3 - …..Exception 4 — Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat of passionupon a sudden quarrel and without the offender having takenundue advantage or acted in a cruel or unusual manner.25.The evidence indicates the appellant gave a single blow to thedeceased, that too after a scuffle and the blow proved fatal. The blow wasinflicted on the ribs of the deceased. It was a sharp knife, but not a muttoncutter. The appellant was annoyed with the deceased to have eloped withhis niece and married her. The appellant had come to the house of thedeceased armed with a knife. He assaulted on the ribs of the deceased.The same indicates the appellant to have intended to cause bodily injury tothe deceased and the said bodily injury was inflected with an intention it to besufficient in the ordinary course of nature to cause death (3rdly of Section300 of the I.P.C.). The appellant did not suffer even a bruise or scratch onhis person. In our view, the case gets inferred by Exception 4 to Section 300of the I.P.C. referred above, and therefore, it would be an offence punishableunder Section 304 Part I of the I.P.C. It is reiterated that the assault was onribs. Single blow proved fatal.26.For all the aforesaid reasons, interference with the impugnedjudgment and order of conviction and sentence is warranted to a limitedextent. Hence, the following order :-13 APEAL-604-20.odtORDER(I)Criminal appeal is partly allowed.(II)Order of conviction and consequential sentence of theappellant dated 06th February, 2018 passed by AdditionalSessions Judge, Shahada in Sessions Case No. 42 of 2016for the offence punishable under Section 302 of the IndianPenal Code, is hereby set aside.(III)Instead, the appellant is convicted for the offencepunishable under Section 304 Part I of the Indian PenalCode, and therefore, sentenced to suffer rigorousimprisonment for eleven (11) years and to pay fine ofRs.2,000/- (Rupees Two Thousand). Since the appellanthas already paid fine of Rs.2,000/- vide the impugnedjudgment and order, he is exempted from depositing thefine amount in the present conviction.(IV)The appellant be given set off for the period which he hasalready undergone under Section 428 of the Code ofCriminal Procedure.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD14
Arguments
APEAL-604-20.odtof offence and drew panchanama thereof (Exh.38). Mortal remains ofDeepak were subjected to inquest and then postmortem examination. Theappellant was arrested. He made a disclosure statement (Exh.20) pursuantto which weapon of assault was seized under recovery panchanama(Exh.44). Statements of the persons acquainted with the facts andcircumstances of the case were recorded.5.Upon completion of investigation, the appellant was proceededagainst by filing the charge-sheet before the Court of J.M.F.C., Shahada.Learned Magistrate committed the case to the Court of Additional SessionsJudge, Shahada (‘trial Court’). The trial Court, in turn, framed the charge(Exh.3). The appellant pleaded not guilty. His defence is of false implication.6.To establish the charge, prosecution has examined eightwitnesses and produced in evidence certain documents. On appreciation ofthe same, the trial Court convicted and consequently sentenced the appellantas stated above.7.Learned counsel for the appellant would submit that the appellantbelongs to Pawara community. Although Deepak and Nisha had eloped andmarried with each other, the dispute was settled in a panchayat of thecommunity members held before six months. The couple was residinghappily at the village. There was no flare up between the couple after returnto the village till date of the incident. It was a day of Manata (a religious3 APEAL-604-20.odtfestival), on which a goat is sacrificed and villagers are offered non-veg meal.On the given day, Deepak alongwith his parents and wife were away fromthe house. P.W.1 – Ramesh and P.W.2 – Govind, eye witnesses, were thefriends of the deceased. Both of them were taking education at Nandurbar.Therefore, their presence at the scene of offence is doubtful. Nisha wasengaged in cooking in the kitchen room. As such, who committed the murderof Deepak is not known. The appellant has been falsely implicated.8.Learned counsel in the alternative submits that it would at themost be an offence under Section 304 Part II of the I.P.C. A single blow wasinflicted. A scuffle has preceded the incident. How and why the scufflecommenced is not in the evidence of the prosecution witnesses. The reasonof love marriage of Nisha with the deceased had become a history. Sincethe matter was settled, the appellant has started visiting the house ofDeepak. Learned counsel has relied on following authorities to ultimatelyurge for allowing the appeal and in the alternate, convert the conviction fromoffence under Section 302 of the I.P.C. to Section 304 Part II of the I.P.C. :-(i) Pappu Vs. State of Madhya Pradesh, 2006 AIR (SC) 2659(ii) Augustine Saldanha Vs. State of Karnataka, 2003 AIR (SC) 38439.Learned Addl.P.P. would, on the other hand, submit that it is anoffence of honour killing. The appellant had expressed his intention toeliminate Deepak before assaulting him with a sharp edged weapon. Theblow proved fatal. The incident took place at the entrance door of the house4 APEAL-604-20.odtof the deceased. Same suggests the appellant to have visited the place onlywith an intention to eliminate Deepak. The case is based on eye witnessaccount. The witnesses are relations of both, the appellant and deceased.On arrest of the appellant, the weapon used in commission of crime came tobe seized. C.A. report thereof (Exh.54) indicates it to have been stained withthe blood of blood group of the deceased. According to learned Addl.P.P., itwas an open and shut case. The trial Court has rightly convicted theappellant and sentenced to life imprisonment. According to him, nointerference with the impugned judgment and order of conviction andsentence is warranted. He, therefore, urged for dismissal of the appeal.10.Considered the submissions advanced. Perused the evidence onrecord. Also gone through the impugned judgment and order. Let us advertthereto and appreciate the same.11.P.W.7 – Dr. Jaymala, conducted the autopsy of the mortalremains of deceased. She noticed following injuries on his person :-i]There was stab wound on left side of chest having length1.5 cm and depth 1/2 cm and breadth 1/2 cm.ii]There was contused lacerated wound having size 5 x 3 x 3cm on left hypocontrial region to left iliac region.iii]The stab wound was between left 3 to 4 inter coastal spacerib. Directly penetrate and injured to left lung.iv]There was rupture of left side pleura.v]The stab wound was present on left side lung.vi]There was clotted blood present in large vessels.5 APEAL-604-20.odtIn her opinion the deceased died of hemorragic shock due toinjuries.12.The question is whether the appellant has caused death of thedeceased. The case is based on evidence of four eye witnesses besidesrecovery of a weapon used in commission of offence at the instance of theappellant.13.P.W.1 – Ramesh (informant) testified that he was a resident ofvillage Langdi Bhavani. Deepak (deceased) was his cousin. Nisha (widowof Deepak) is the daughter of Uttam Pawara. The appellant is the uncle ofNisha. Deepak and Nisha were emotionally involved. Both of them hadeloped in November 2015 and got married with each other. The appellantwas annoyed thereby. The appellant and his brother (father of Nisha) would,therefore, threaten to eliminate Deepak.14.It is further in his evidence that it was 06:00 in the evening of 27thMay, 2016. He, alongwith his friend Govind (P.W.2) was sitting on the otla ofthe house of Deepak. Both, Deepak and his wife Nisha, were also presentthere. All of them were engaged in talking. The appellant suddenly camethere and said in Pawara language, “rksg eh vkt ekj nh” (I will kill you today).It is further in his evidence that the appellant was armed with a mutton cutter.He assaulted on the ribs of Deepak with the said mutton cutter. After havingmade the assault, the appellant fled. His evidence further indicates that oneMangesh Pawara dialed phone number 108 from his cell phone to avail6 APEAL-604-20.odtservices of an ambulance. While Deepak was being taken to the hospital inthe ambulance, he unfortunately succumbed to the injuries. He accompaniedDeepak to Civil Hospital, Nandurbar. He did not meet police officer there. Itis further in his evidence that thereafter he lodged the F.I.R. (Exh.10).15.P.W.1 – Ramesh was subjected to a searching cross-examination. It has been brought on record that he was a last year studentof law stream. His residence was just twenty feet away from the house ofDeepak. P.W.2 – Govind was also taking education at Nandurbar. He wouldstay in a hostel. He admitted that there were two groups in the village. Therewas rivalry between the two groups over village panchayat election. It hasalso been brought on record that there was a Distribution Point (‘DP’) ofelectricity near the field of the appellant. Whenever electricity supply used toget disconnected, the villagers, Sarpanch and Police Patil would blame theappellant. He denied that there was no otla to the house of the deceased.According to him, it was a day of Manta (a religious festival). On that day, agoat is sacrificed and non-veg food is offered to the villagers. He, howeverdenied that Deepak, his parents and Nisha were outside the village forcelebrating Manta. He denied that the contentions made in the F.I.R. werehearsay. Cross-examination further indicates that the suggestions given toP.W.1 – Rajesh that at the time of incident he himself, P.W.2 – Govind,Deepak (deceased) and his wife – Nisha were the only persons present atthe spot, goes a long way to infer the appellant to have admitted presence ofall of them at the scene of offence.7 APEAL-604-20.odt16.P.W.2 – Govind was another eye witness. It is in his evidencethat he had been to the village on summer vacation. He alongwith P.W.1 –Ramesh, Deepak (deceased) and his wife – Nisha were talking on otla of thehouse of Deepak. The appellant suddenly came there and said to Deepak“rksg eh vkt ekj nh”. There was scuffle between the appellant and Deepak.Thereafter, the appellant took out the knife/mutton cutter from his pocket andassaulted on the ribs of Deepak therewith. The appellant pushed Deepakand left the spot.17.During cross-examination of this witness it was suggested to himthat those being summer days, sun set happens late. Due to sun rays (heat),nobody would sit on otla. He admitted that there were two groups in thevillage. According to him, the DP was erected near the field of the appellant.He, however claimed ignorance that whenever electricity supply would getdisconnected, the village Sarpanch used to blame the appellant. Thewitness could not state how long the scuffle took place between the appellantand Deepak. He also could not state what kind of conversation/quarreloccurred between the appellant and Deepak. According to him, the scuffletook place at the door of the house of Deepak.18.P.W.3 – Nisha, widow of the deceased, is another eye witness.She gave her evidence on the lines of evidence of P.W.1 – Ramesh andP.W.2 – Govind. According to her, she was present while the appellantcame and said that he will eliminate Deepak now. The appellant then8 APEAL-604-20.odtassaulted on the ribs of Deepak with a knife. Her evidence further indicatesthat both, P.W.1 and P.W.2 brought Deepak inside the house. The woundwas covered with a piece of cloth. Thereafter, Deepak was rushed to thehospital in an ambulance. Deepak, unfortunately died. She referred to herstatement recorded under Section 164 of the Code of Criminal Procedure.Same is at Exhibit 15.19.During her cross-examination, it has been brought on record thatshe was emotionally involved with Deepak. Both of them had eloped andmarried with each other. A panchayat of the community members was,therefore, held. Her father and uncle (present appellant) were late to cometo the panchayat (meeting). The panchas were, therefore, annoyed withthem. The panchas had even abused her father and uncle. It is further in herevidence that Sarpanch and Police Patil of the village were the relatives ofher husband. Her evidence further indicates that the appellant was residingoutside the village. She went on to state that the appellant would visit herhouse. She, however denied to have been visiting his house. According toher, a DP was installed near the field of the appellant. Although she admittedthat she was cooking rice at the relevant time, she denied to have been inthe kitchen room at the relevant time. She further went on to admit that itwas a day of Manta (a religious festival). She, however denied that shealongwith her parents-in-law and the deceased had gone to attend the saidfestival. She was suggested that when she came out of the kitchen, she sawDeepak to have sustained injuries and P.W.1 – Ramesh and P.W.2 – Govind9 APEAL-604-20.odtwere the only persons present there. These suggestions suggest that theappellant admitted presence of Ramesh and Govind at the scene of offence.She denied that the F.I.R. was lodged after due deliberation. She did notdeny the appellant to have killed her husband (Deepak).20.P.W.4 – Shekhlal would reside immediately opposite the house ofdeceased – Deepak. His evidence is on the lines of evidence of P.W.1 –Ramesh and P.W.3 – Nisha. According to him, he was present just outsidehis house. He saw the scuffle between the appellant and the deceased. Theappellant knocked Deepak down. He tried to reason with the appellant thatwhy was he behaving with Deepak in such a manner. The appellant wasarmed with a knife. The appellant assaulted on the ribs of the deceased withthe knife. During cross-examination, he admitted that Deepak was hiscousin. He denied to have had not seen the incident.21.P.W.5 – Nilesh is a panch witness. It is in his evidence that on31st May, 2016 the appellant made a disclosure statement that he would takethem to a place whereat the knife was kept. Accordingly, he took them to acertain place and took out the knife from the roof of a cattle shed. Thedisclosure statement made by the appellant is at Exhibit 20. It wassuggested to this witness that the appellant was not present while he visitedthe police station.22.P.W.6 – Dr. Kiran testified that he had reached village LangdiBhavani with the ambulance in response to a call on phone number 108. He10 APEAL-604-20.odtcarried Deepak in the ambulance to the Civil Hospital, Nandurbar. Headmitted to have no knowledge of the incident. P.W.8 – Dnyaneshwar is theinvestigating officer. His evidence indicates that he recorded the F.I.R.lodged by P.W.1 – Ramesh. He then paid visit to the scene of offence anddrew panchanama thereof (Exh.38). He conducted inquest (Exh.33) andsubmitted the dead body for postmortem examination. It is further in hisevidence that the appellant made a disclosure statement, pursuant to whicha knife came to be seized.23.Close reading and appreciation of the aforesaid evidence wouldindicate that it was the appellant and no other, who assaulted Deepak with asharp weapon. The weapon allegedly used in assaulting Deepak was seizedpursuant to the disclosure statement made by him. We have an opportunityto examine the said weapon. We find it to be a small knife and not themutton cutter. According to all the eye witnesses, the appellant gave onestab therewith to the deceased. The reason of assault was said to be hisniece – Nisha to have married the deceased after having been eloped withhim. According to us, the said had become history, since the couple hadreturned to the village. A panchayat of community members was held andthe matter was settled. Nisha, widow of the deceased, testified that theappellant would visit their residence. Admittedly, a scuffle ensued before theincident. The appellant took out the knife from his pocket and gave a blowtherewith to the deceased. True, he was armed with a knife. None of theprosecution witnesses could throw light on the cause of scuffle between the11 APEAL-604-20.odttwo. None of them could gave duration thereof. The question is, therefore,whether it is an offence of murder or culpable homicide not amounting tomurder.24.Relevant provisions of the I.P.C. read thus -“299. Culpable homicide. - Whoever causes death by doing an actwith the intention of causing death, or with the intention of causingsuch bodily injury as is likely to cause death, or with theknowledge that he is likely by such act to cause death, commitsthe offence of culpable homicide.300. Murder. - Except in the cases hereinafter excepted, culpablehomicide is murder, if the act by which the death is caused isdone with the intention of causing death, or2ndly. - If it is done with the intention of causing such bodilyinjury as the offender knows to be likely to cause the death ofthe person to whom the harm is caused, or3rdly. - If it is done with the intention of causing bodily injury toany person and the bodily injury intended to be inflicted issufficient in the ordinary course of nature to cause death, or4thly. - If the person committing the act knows that it is soimminently dangerous that it must, in all probability, cause deathor such bodily injury as is likely to cause death, and commitssuch act without any excuse for incurring the risk of causingdeath or such injury as aforesaid.Exception 1. - When culpable homicide is not murder. — Culpablehomicide is not murder if the offender, whilst deprived of thepower of self-control by grave and sudden provocation, causesthe death of the person who gave the provocation or causes thedeath of any other person by mistake or accident.The above exception is subject to the following provisos: —First — That the provocation is not sought or voluntarily provokedby the offender as an excuse for killing or doing harm to anyperson.Secondly — That the provocation is not given by anything done inobedience to the law, or by a public servant in the lawful exerciseof the powers of such public servant.12