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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.473/2014
Pappu @ Deoman s/o Rambhau Borate,
aged 32 years, Occ. Labour, r/o Near
the house of Narayn Borate,
Zingabai Takli, Nagpur
(Presently in Jail) .....APPELLANT
...V E R S U S...
The State of Maharashtra through
PSO, PS Koradi, Dist. Nagpur. ...RESPONDENT
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Mr. R. M. Daga, Advocate for appellant.
Mr. M. J. Khan, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- AUGUST 10, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. Being aggrieved by judgment of conviction and order of sentence passed by Additional Sessions Judge-7, Nagpur dated 26.05.2014 in Sessions Trial No.219/2013, the appellant is before this Court.
By the impugned judgment, the appellant is convicted for an offence punishable under Section 302 of the Indian Penal Code and is directed to suffer rigorous imprisonment for life and also to pay a fine of Rs.500/- and in default of payment of fine he is directed to suffer rigorous imprisonment for one month. The appellant is also convicted for the offence punishable under Section 324 of the IPC ::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:28:08 ::: 2 apeal473.14.odt and is directed to suffer rigorous imprisonment for one year. The learned Judge directed that the substantive sentences shall run concurrently.
2. The facts in brief, which give rise to the present appeal are as under:
(a) The deceased is one Puranlal Pardhi. The appellant has made assault on him and the first informant Sunita on the suspicion that they are having illicit relations.
(b) Pandurang Fade (PW8) received a phone call from Police Constable of Police Mobile Van that the deceased Puranlal and Sunita are admitted in Mayo Hospital. Pandurang Fade therefore, visited Mayo Hospital. During treatment, Puranlal expired. After treatment, Sunita was discharged. She was brought to the Police Station by Pandurang Fade (PW8), where she gave her report. The report is at Exh.-23.
(c) Report Exh.-23 which is dated 21.01.2013 discloses that she works as Chaukidar of one Dattulal Agrawal (PW1) whose house is under construction at Arya Nagar, Koradi road, Nagpur. She is having one son Sagar and one daughter Mayuri. Her husband Durgesh has deserted her and children since last three years.
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(d) The FIR further states that the deceased was also
Chaukidar and used to reside in a hut which is situated in front of the house where the first informant was working as Chaukidar. On 20.11.2013 in between 7.00 to 7.30 she called deceased Puranlal for taking food. Accordingly, Puranlal came in her house. At that time, the appellant, to whom, according to the first informant, she was treating as her husband, came there and had a quarrel with the first informant that she and Puranlal is having illicit relations and thereafter he assaulted by means of wooden rafter.
(e) The Investigating Officer Pandurang Fade (PW8) registered crime vide Crime No.12/2013 for the offence punishable under Section 324, 302 of the IPC. The printed FIR is at Exh.-24.
(f) After registration of the crime, the Investigating Officer reached to the spot of incident and prepared the spot panchanama in presence of Dattulal Agrawal (PW1) and another pancha. The spot panchanama is at Exh.-11. The Investigating Officer also seized soil, both; smeared with blood and simple; from the spot and also seized sweater which was stained with blood of the deceased, a wooden rafter, which was stained with blood. The seizure of the articles is duly mentioned in the spot panchanama Exh.-11 itself.
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(g) Inquest on the dead body of Puranlal was conducted vide
Inquest Panchanama Exh.-35. The dead body was also sent for post mortem. The accused was arrested on 21.01.2013 under seizure panchanama Exh.-33. He also seized clothes of the accused under seizure memo Exh.-41. All the muddemal articles were sent to the Chemical Analyzer. After completion of usual investigation, charge-
sheet was filed in the Court of J.M.F.C. Court No.6, Nagpur. The learned Magistrate, in whose Court the charge-sheet was filed, committed the case to the Court of Sessions. The case was registered as Sessions Trial No.219/2013. The learned Ad hoc Additional Sessions Judge framed charge against the appellant. He denied the same and claimed for his trial. In order to bring home the guilt of the appellant, the prosecution has examined in all nine witnesses.
After full dress trial, the learned Judge of the Court below passed the impugned judgment. Hence, this appeal.
3. We have heard Mr. R. M. Daga, learned counsel for the appellant and Mr. M. J. Khan, learned A.P.P. for the State. With their able assistance, we have gone through the notes of evidence and record and proceedings.
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4. The learned counsel for the appellant did not dispute the nature of death of Puranlal that it is homicidal one. He has also not disputed presence of the appellant on the spot and the authorship of the injuries noticed on the dead body of Puranlal. His statement is that the appellant cannot be convicted for the offence punishable under Section 302 of the IPC and prayed for conversion of the offence from Section 302 to any other lesser offence.
5. Dr. Mulchand Gedam (PW6) has conducted post mortem over the dead body of Puranlal with Dr. S. V. Parate. He has proved the post mortem report and it is at Exh.-28. A perusal of the post mortem report and the evidence of Dr.Gedam shows that the deceased received numerous injuries on his body. According to the autopsy surgeon, the cause of death is due to hemorrhagic shock as a result of multiple injuries sustained.
In view of the finding of autopsy surgeon, there can be no doubt that the deceased died homicidal death.
The next question is whether the appellant's conviction under Section 302 of the IPC can be sustained or he can be convicted for any other lesser offence.
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6. Section 299 of the IPC deals with culpable homicide.
Section 299 of the IPC reads thus:
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
It is also necessary to look into the provisions of Section 300 of the IPC, which reads thus:
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- (Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:28:08 :::
7 apeal473.14.odt Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death 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 provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. (Thirdly) --That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant ::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:28:08 ::: 8 apeal473.14.odt acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
Section 300 provides five exceptions wherein, the culpable homicide would not amount to murder. Under exception-I, an injury resulting into death of a person would not be considered as murder when the offender has lost his control due to the grave and sudden provocation.
7. Their Lordships in K. M. Nanavati..vs..State of Maharashtra; AIR 1962 SCC 605, has observed thus:
::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:28:08 :::9 apeal473.14.odt "The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the passion arising from that provocation and not after the passion had cooled down by lapse of time or otherwise, giving room and scope for premeditation and calculation."
Keeping in mind the aforesaid principles, now let us scrutinize the evidence available in the present case.
8. The First informant Sunita Pache (PW4) is also an injured witness. She was examined medically by Dr. Samir Mahakale (PW9) and he has proved the injury certificate Exh.-56.
The version of Sunita Pache that she and deceased were assaulted by the appellant is duly corroborated by her daughter Mayuri Pache (PW5).
From the evidence of Sunita Pache, it is clear that her husband has deserted her and therefore she was in need of a shelter.
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Her evidence shows that the deceased was residing in front of the house whereat Sunita was working as Chaukidar. According to her evidence, the appellant always used to raise doubts on her character.
Her evidence shows that on 20.01.2013, in between 7.00 to 7.30, she went on the first floor of the house where she was working as Chaukidar and then gave a call to the deceased Puranlal. In response to the said call, Puranlal came to the house and not noticing her on the ground floor, he came upstairs. Thereafter, she and Puranlal were talking with each other. At that time, the appellant came there and accosted Puranlal as to why he is staying there and started giving fist blows on the ground that she is having illicit relations with Puranlal. Thereafter, the appellant lifted a wooden rafter which was lying there and assaulted both Sunita and the deceased Puranlal.
9. The evidence of Mayuri Pache (PW5) also shows that when Puranlal came to the house and was chit chatting with Sunita, that time, the appellant, to whom she refers as her daddy, came and asked her where is Sunita, her mother. Thereafter, he went upstairs and made assault on her mother as well as Puranlal.
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10. From the evidence of these two material prosecution witnesses, it is clear that the relationship between him and Sunita, though was not in strict legal sense as husband and wife, however, they themselves were treating themselves as husband and wife. Even the said relationship is also recognized by Mayuri, the daughter of Sunita.
11. From the evidence, it is clear that on noticing Sunita chitchatting with Puranlal, the appellant lost his control and in anger, he was assaulted by wooden rafter. Exh.-33 is panchanama, which shows that the appellant is educated only up to 5 th standard. It also shows that the appellant is not a sophisticated person and is a rustic one.
12. Once a person loses his self control due to sudden provocation resulting into the assault, especially when a rustic person, then in such a situation measured retaliation cannot be expected. Therefore, the injuries appearing on the deceased, in our view, cannot be a criterion.
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13. Further, from the evidence, it is clear and it was never the intention on the part of the appellant to kill Puranlal. Due to the sudden provocation, whatever the available instrument he got, he made an assault. In that view of the matter, in our view, this is a fit case wherein the case of the appellant is covered under Exception-I of Section 300 of the IPC.
14. Insofar as conviction of appellant under Section 324 of the IPC for making assault on Sunita, we do not see any reason to disturb the said finding.
15. In the result, we pass the following order.
(i) Criminal Appeal No.473/2014 is partly allowed.
(ii) The judgment of conviction and order of sentence dated 26.05.2014 in Sessions Trial No.219/2013 passed by Additional Sessions Judge-7, Nagpur, thereby convicting the appellant-Pappu @ Deoman s/o Rambhau Borate for an offence punishable under Section 302 of the Indian Penal Code is modified. The conviction for an offence punishable under Section 302 of the IPC is converted into the one for an offence punishable under Section 304 Part I of the IPC.
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(iii) The appellant is sentenced to suffer rigorous
imprisonment for eight years.
(iv) Conviction of the appellant under Section 324 of
the IPC is maintained. However, the sentence shall run
concurrently.
(v) Rest of the order is maintained.
(V. M. Deshpande)
ig (B. R. Gavai)
kahale
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CERTIFICATE
I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.
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