Bombay High Court
Pappu @ Deoman S/O Rambhau Borate ... vs The State Of Maharashtra, Through ... on 10 August, 2016
Bench: B.R. Gavai
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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
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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.
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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
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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:
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"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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Therefore she was treating the appellant as her husband who some
times used to live with her and some times live in his own house.
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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