apeal404.14
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 404 OF 2014
Ashok s/o Kuksu Kannake,
aged about 45 years,
Occupation : Labour,
r/o Navin Wasti, Gangalwadi,
Tah. Bramhapuri,
District Chandrapur. .... APPELLANT.
VERSUS
The State of Maharashtra
through P.S.O. P.S. Bramhapuri,
District Chandrapur. .... RESPONDENT.
Shri Y.B. Mandpe Advocate for the Appellant.
Shri A.K. Bangadkar, APP, for the respondent.
.....
CORAM : S.B. SHUKRE, J.
DATED : 07.06.2016.
ORAL JUDGMENT :
This is an appeal preferred against the judgment and order dated 17.6.2014 passed by the learned Additional Sessions Judge, Chandrapur, in Sessions Case No. 14 of 2013, thereby convicting the appellant of the offence punishable under Section 304-II of Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.500/-
with the default sentence of 15 days of rigorous imprisonment.
2. The appellant was prosecuted for an offence ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:34:08 ::: apeal404.14 2 punishable under Section 302 of Indian Penal Code on the allegation that at about 6 a.m. of 25.10.2012, at mouza Gangalwadi, Tahsil Bramhapuri, District Chandrapur, the appellant assaulted deceased Deepak and gave him a blow of wooden stump on his head. As a result of the blow, deceased Deepak fell down sustaining bleeding injury over his head. It appears that before Deepak could be taken to the hospital, he had breathed his last at the spot of incident itself.
3. The background of this incident was in the sour relations between the appellant on the one hand and the deceased Deepak on the other. The appellant suspected that deceased was having some sort of relations with his wife, although it was denied by the wife of the appellant. It so happened that in the morning of 25.10.2012 when the wife of the appellant was washing the bicycle, deceased Deepak came there, who was the neighbour of the appellant. He caught hold of her hand. Wife of the appellant started shouting and hearing her shouts the appellant came outside the house and tried to save his wife from the clutches of deceased Deepak, but in vain. The appellant picked up one wooden stump and hit Deepak on the back side of his head. Deceased Deepak received grievous injuries, to which he succumbed some time after.
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4. The appellant was arrested when the offence under Section 302 of Indian Penal Code was registered against him on 25.10.2012 on the basis of the first information report lodged by P.W.1 Nalesh Bhoyar. After completion of investigation, the appellant was tried for the said offence, but as it was found that the assault was carried out by the assailant without any intention to cause death or without having any knowledge that the assault was likely to cause death of Deepak, the appellant was convicted for the offence of culpable homicide not amounting to murder punishable under Section 304-II of Indian Penal Code.
Accordingly, by the judgment and order dated 17.6.2014 the learned Additional Sessions Judge convicted and sentenced the appellant as stated above. Not being satisfied with the same, the appellant is before this Court in the present appeal.
5. I have heard learned counsel for the appellant and learned APP. I have gone through the case papers and perused the judgment and order. Although it is strongly urged by the learned counsel for the appellant that the evidence of the prosecution witnesses did not show that the appellant had exceeded his right of private defence when the appellant tried to release his wife from the clutches of deceased Deepak, as rightly submitted by learned APP that the evidence of the prosecution ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:34:08 ::: apeal404.14 4 witnesses, in particular the evidence of wife of appellant, shows that the appellant had exceeded his right of private defence. She has clearly stated that after her hand was caught by the deceased and she was pushed aside by the deceased, the appellant arrived at the scene of offence and assaulted the deceased by a wooden stump on the back side of head of deceased. Her evidence shows that it was not the case that the deceased had continued to hold the hand of P.W.4 Meena even after the appellant had asked him to desist from doing so, rather the evidence of P.W.4 Meena shows that the appellant suddenly gave assault to deceased even though by that time the deceased had already pushed away P.W.4 Meena. Therefore, the finding recorded by the trial Court that this case would not be completely within the scope and ambit of right of private defence cannot be interfered with.
6. At the same time, I find that the entire incident has occurred only because of sudden and grave provocation given by deceased Deepak. When a person sees that his wife is being molested or physically and verbally abused by some body else, the person is bound to be annoyed and some times may cross the limits and such a person in a fit of rage would not know the consequences of that and he would conduct himself solely with ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:34:08 ::: apeal404.14 5 a motive to remove the cause of his rage somehow or the other.
This is what has happened in the instant case. It is also pertinent to note here that grave and sudden provocation was not invited by the appellant. Conduct of deceased Deepak was basically the cause of grave and sudden provocation of the appellant.
Therefore, the learned Additional Sessions Judge has rightly found that the case would not fall within the scope of of Section 302 IPC and this would be a case which would fall under Section 304-II of Indian Penal Code and, as such, the findings recorded in this regard by the learned Additional Sessions Judge deserve to be confirmed and I confirm them accordingly.
7. At this stage, learned counsel for the appellant has submitted that leniency should be shown to the appellant. He submits that out of 5 years of sentence of imprisonment, the appellant has already undergone imprisonment for a period of three years, seven months and some days and that he is having two school going children. He also submits that the appellant is the sole bread earner in his family. Learned APP, however, has opposed the prayer for leniency. He submits that the offence committed by the appellant is a serious one and, therefore, no more leniency than the leniency already shown by the trial Court should be afforded to the appellant by this Court.
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8. Considering the background and the facts of this case, as stated earlier, the fact that the appellant has already under gone more than half the sentence awarded to him and also the fact that the appellant is having two small school going children, who are dependent on him, I am of the view that ends of justice would be met if the sentence awarded to the appellant is modified in the following terms by partly allowing the appeal.
9. In the result, the appeal is partly allowed.
ig The finding regarding conviction of the appellant for an offence punishable under Section 304-II of Indian Penal Code is hereby confirmed. However, the sentence awarded to the appellant is modified and substituted by the sentence of imprisonment for a term equivalent to the period of imprisonment already undergone by the appellant till the date of the present order. If the appellant has not paid the fine amount, same shall be paid by him at the earliest before the trial Court. On payment of fine only the appellant shall be released. Appeal is partly allowed in these terms.
JUDGE /TA/ ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:34:08 :::