Ashok Bhaguji Khadke vs State Of Maharashtra
2005 Latest Caselaw 1458 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard advocate Mrs.Revati Mohite-Dere for the appellant/accused and learned APP Mr.D.R.More for the respondent/State.

2. This appeal is filed by the original accused challenging his conviction under Section 302 of the Indian Penal code by which he was sentenced to suffer life imprisonment and to pay fine of Rs. 1000/- in default to suffer R.I. for three months. He was also convicted under Section 182 of the Indian Penal Code and sentenced to suffer R.I. for three months and to pay fine of Rs. 500/- in default to suffer R.I. one month.

3. Section 182 of the Indian Penal Code is regarding giving false information with intent to cause public servant to use his lawful power to the injury of another person.

4. The prosecution case, in short, is as under :

The name of deceased is Smt.Damyanti Kudale. The accused was paramour of deceased Damyanti. He was rickshaw driver whereas deceased Damyanti was perhaps dealing with utensils. There was love affair and illicit relation between them since two years prior to the incident. Couple of days prior to the incident or so the accused had booked a room at Samrat Lodge near Pune Railway Station and both of them i.e. the accused and deceased Damyanti stayed in that lodge. On 15.1.99 at about 4.30 p.m. deceased Damyanti and the accused visited the house of witness Santosh Chandrakant Pise who was the son-in-law of deceased. They had a cup of tea and left the house. In the morning of that day, they had purchased a wrist watch for Rs. 400/-They came back to the Samrat Lodge between 7 to 7.30 p.m. in rickshaw bearing No. MB-14/L/9155. There a room was booked i.e. Room No. 120. Rickshaw was parked in the compound of lodge. While booking the room in the lodge, the accused gave his name as Ashok Kokate and that of Damyanti as Damyanti Kokate resident of Alandi. Then according to the prosecution at about 10.15 p.m., opposite Deccan Sweet Mart, on foot-path in the area of Pune Railway Station there was quarrel between the accused and deceased Damyanti, the accused got irritated, he whipped out a knife and stabbed the deceased. Then the accused himself took the deceased to the Sasoon Hospital, Pune where Damyanti died. The accused alleged to have disclosed that deceased Damyanti was stabbed by a stranger. Then the matter was investigated, a charge sheet was filed and the accused came to be convicted as stated above. Hence this appeal.

5. The counsel for the appellant/accused contended that as to what happened at the particular movement of stabbing was not witnessed by anybody and nobody knows anything about that. He also contended that so far as that aspect of the matter is concerned, the case is based on circumstantial evidence. But his main contention was that looking to the fact that there were illicit relations between the accused and deceased Damyanti and that some quarrel took place between them and by heat of passion the accused dealt only one single blow. But immediately taking the victim Damyanti in his own auto rickshaw to the Sasoon Hospital was a clear indication that the accused did not intend to cause death to the deceased. He, therefore, contended that at any rate there could be no conviction under Section 302 of the Indian Penal Code and the case squarely fell under Exception-I of Section 300 of the Indian Penal Code where culpable homicide is not murder. Regarding grave and sudden provocation, the counsel for the accused drew our attention to the discovery memorandum under which the knife was recovered from the accused. The advocate for the accused fairly conceded that the discovery memorandum, as it is on record, may not be admissible in evidence so far as it relates to incriminating part, but the court can take into consideration the history and background of the assault given by the accused. This discovery memorandum is in the paper book. It is at Exhibit 45. In this statement, the accused has admitted that he had illicit relations with deceased Damyanti. He has given what happened through out the day and then has stated that at about 10 p.m. they came out of the lodge for having their dinner, then they went near a bakery near Pune Railway Station for having a dinner, there the accused told victim Damyanti that it was not proper on her part to have illicit relations with somebody-else while she was with him, there was quarrel between the two and on every question put by him, deceased Damyanti was irritating him and insulting him, therefore, he got annoyed and hit her on the stomach.

6. The counsel for the accused contended that in his statement under Section 313 of the Criminal Procedure Code, the accused has admitted all these facts but has rightly and naturally denied actual stabbing. But looking to this statement of the accused from Exhibit 45 and the fact that the accused himself hired a rickshaw and took her to Sasoon Hospital clearly show that the case squarely falls under 1st Exception to Section 300 of the Indian Penal Code and, therefore, his conviction under Section 302 of the Indian Penal Code was required to be set aside and, the accused could be at the most convicted under Section 304 Part II of the Indian Penal Code. The counsel for the accused contended that this incident took place on 16.1.1999 and since then till today the accused is in custody i.e. 6 years and 11 months and, therefore, that much sentence undergone by him is sufficient for him.

7. The learned APP Mr.More for the State, on the other hand, contended that firstly the accused tried to mislead the police stating that somebody-else had assaulted the deceased Damyanti. He also stated that single stab injury given has resulted in death. It was penetrating incised wound of 2 inch x 1/2 cms incised and, therefore, the trial court was justified in convicting the accused under Section 302 of the Indian Penal Code.

8. As against this, the learned counsel for the accused contended that the knife that was recovered was worth Rs. 5/-as per seizure memorandum (Exhibit 46). It was 4 inch in length and, therefore, this was a small knife which anybody could possess and its use at the spur of movement does not reveal any intention, but though knowledge can be attributed.

9. We are not much convinced by the submissions made by the learned APP. All the circumstances brought on record clearly show that there is no eye witness to the incident. The police could not have been able to trace out the accused and pin him in this case if the accused had not made disclosure. In his discovery memorandum (Exhibit 45) the accused himself gave all the background. We are aware that only that portion of the discovery memorandum is admissible which leads the police to the discovery of a fact and the remaining part cannot be used against him. But what transpired during the stay and, how and in what manner Damyanti came to be assaulted has come in the discovery memorandum. It favours the accused as it gives that background about which the prosecution has no evidence. They could not have collected any such evidence because what happened between the accused and Damyanti was strictly between them with no outside person to witness. If these circumstances favour the accused and they do favour the accused in this case because they show that Damyanti was assaulted in a grave and sudden provocation caused by herself. Therefore, this case clearly falls under Exception-I of Section 300 of the Indian Penal Code.

10. Therefore, the conviction of the accused under Section 302 of the Indian Penal Code has to be altered. So far as sentence is concerned, maximum sentence prescribed under Section 304 Part II of the Indian Penal Code is ten years. The accused is already in custody for more than six years and, therefore, sentence already undergone by him is sufficient, in our opinion. Hence we pass the following order ::

ORDER

Appeal is partly allowed.

Conviction and sentence of the accused under Section 302 of the Indian Penal Code is set aside.

Conviction and sentence of the accused under Section 182 of the Indian Penal Code is maintained.

Accused is convicted under Section 304 Part II of the Indian Penal Code and sentenced him to suffer R.I. for the period already undergone by him. Since this sentence as well as the sentence under Section 182 were made concurrent, the accused shall be released forthwith if he is not required in any other case. Appeal is disposed of accordingly.