Gunga Natha Patil vs The State Of Maharashtra
2016 Latest Caselaw 3894 Bom

                                                            
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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                        CRIMINAL APPEAL NO. 538 OF 2011




                                                                    
                      (CRI. APPEAL STAMP NO. 423 OF 2011)

    Gunga Natha Patil                     ]
    Aged 40 years, Occ: Agri.             ]




                                                                   
    Residing Vadgaon, Taluka Shahuwadi,]
    Dist. Kolhapur                        ]
    At present in Kolhapur Central Prison ].. Appellant
                                          [Ori. Accused ]
              Vs.




                                                               
    The State of Maharashtra            ig                      ]..Respondent
                                                                [Ori. Complainant]
                                      
                                  ....
    Ms. Rohini M. Dandekar Advocate appointed for the Appellant
    Mr. H.J. Dedia A.P.P. for the State
                                  ....
          
       



                                     CORAM : SMT.V.K.TAHILRAMANI AND
                                             MRS. MRIDULA BHATKAR, JJ.

DATED : JULY 18, 2016

ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]

1 This appeal is preferred by the appellant-original

accused against the judgment and order dated 28.12.2010

passed by the learned Additional Sessions Judge, Kolhapur in

Sessions Case No. 92 of 2007. By the said judgment and order,

the learned Sessions Judge convicted the appellant under

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Sections 302 and 506 of IPC. For the offence under Section

302 of IPC, the appellant has been sentenced to R.I. for life and

fine of Rs.500/- i/d R.I. for one month and for the offence under

Section 506 (2) of IPC, the appellant has been sentenced to

R.I. for six months.

2 The prosecution case, briefly stated, is as under:

(i)

The appellant is the brother of PW 2 Ananda. Deceased

Kamal was the wife of Ananda. Ananda had five brothers

i.e. Shankar, Shivaji, Tukaram, Bhagwan and the

appellant. Shivaji and Tukaram were residing at Mumbai

on account of their service. Ananda was residing with his

wife, brother Shankar and his wife and the appellant in

the same house but each family was residing separately.

Ananda was cultivating the land of Shivaji and Tukaram.

This fact was not liked by the appellant and on this count,

he used to quarrel with Ananda and used to abuse him

since two years prior to the incident.

(ii) The incident took place on 20.5.2007. In the evening,

Ananda was going to the house of his friend Kishan to

have dinner. He was accompanied by Kishan and one

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Ranga Patil. On the way, the appellant met Ananda and

started giving abuses to him. The appellant threatened

Ananda that when Ananda returned back, he would show

Ananda. When Ananda came back to his house, the

appellant started abusing Ananda and his wife Kamal.

Quarrel took place between them. There was a stick in

the hands of the appellant and the appellant gave a blow

with the stick on the back of Ananda. At that time, Kamal

the wife of Ananda, came forward. The appellant gave a

blow with the stick on the head of Kamal. She fell down.

The appellant then gave a blow with the stick on left side

of rib of Kamal. Kamal was thereafter taken to the

hospital. After examining her, Doctor declared that she

was dead. Ananda then lodged F.I.R. (Exh. 26).

Thereafter investigation commenced. After completion of

investigation, the charge sheet came to be filed.

3 Charge came to be framed against the appellant

under Sections 302, 504 and 506 of IPC. The appellant

pleaded not guilty to the said charge and claimed to be tried.

The defence of the appellant is that of total denial and false

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implication. After going through the evidence adduced in the

present case, the learned Judge convicted and sentenced the

appellant as stated in para 1 above, hence, this appeal. It may

be stated here that the appellant came to be acquitted of the

offence under Section 504 of IPC.

4 We have heard the learned counsel for the appellant

and the learned A.P.P. for the State. After giving our anxious

consideration to the facts and circumstances of the case,

arguments advanced by the learned counsel for the parties,

the judgment delivered by the learned Judge and the evidence

on record, for the below mentioned reasons, we are of the

opinion that the appellant assaulted Kamal with a stick which

led to her death.

5 The conviction of the appellant is mainly based on the

evidence of PW 2 Ananda. Ananda was the husband of

deceased Kamal. The appellant is the brother of Ananda.

Ananda and his family, the family of another brother Shankar

and the appellant were all residing in village Vadgaon in one

house but separately. Ananda has stated motive for the

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appellant to the commit the offence. Ananda has stated that

his brother Shivaji and Tukaram were residing at Mumbai on

account of their service, hence, he was cultivating the land of

Shivaji and Tukaram. On account of this, the appellant used to

quarrel with Ananda. The appellant used to give abuses to

Ananda. This took place since two years prior to the incident.

Ananda has stated that the incident took place on 20.5.2007.

In the evening, Ananda was going to the house of his friend

Kishan to have dinner. He was accompanied by Kishan and

one Ranga Patil. On the way, the appellant met Ananda and

started giving abuses to him. The appellant threatened that

when Ananda returned back, he would show Ananda. When

Ananda came back to his house, the appellant started abusing

Ananda and his wife Kamal. Quarrel took place between them.

There was a stick in the hands of the appellant and the

appellant gave a blow with the stick on the back of Ananda. At

that time, Kamal the wife of Ananda, came forward. The

appellant gave a blow with the stick on the head of Kamal. She

fell down. The appellant then gave a blow with the stick on left

side of rib of Kamal. Kamal was thereafter taken to the

hospital where she was declared dead. Nothing has been

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elicited in the cross-examination of Ananda so as to cause us to

disbelieve his evidence. His evidence shows that the appellant

assaulted Kamal with a stick which led to her death.

6 The evidence of Ananda has been corroborated by

the medical evidence. PW 5 Dr. Kamble conducted the post-

mortem on the dead body of Kamal. On external examination,

he found following two injuries on the dead body:

(I) Imprint abrasions 2 x 3 cm. transverse, left side of

chest at xypoid level;

(II)Contusion 2 x 2 cms. over the back of vertex.

On internal examination, Dr. Kamble found

hemorrhage in occipital region subdural. Under the scalp,

there was a contusion on posterior aspect of vertex. In the

opinion of Dr. Kamble, the said injuries can be caused by hard

and blunt object. According to Dr. Kamble, the cause of death

of the deceased is "neurogenic shock due to intracranial

hemorrhage and said injuries are sufficient to cause the

death". Dr. Kamble opined that if a stick blow is given on the

head or on the back of any person then the injuries mentioned

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in the autopsy report, can be caused.

7 Ms. Dandekar submitted that even if it is accepted

that the act of the appellant of hitting Kamal on the head with

a stick resulted in her death, the case would not fall under

Section 302 of IPC, but it would fall under Section 304 Part-II of

IPC. She pointed out that the evidence on record shows that

when the incident occurred, a quarrel was going on between

the appellant and the deceased and PW 2 Ananda. This has

been stated by Ananda in his evidence. Ananda has clearly

stated that when he came home, the appellant started abusing

Ananda and Ananda's wife Kamal. Thereafter quarrel started.

Then the appellant gave a blow with a stick on the head of

Kamal and also on the rib. Ms. Dandekar drew our attention to

the external injuries. She pointed out that the external injuries

are only abrasions and small contusion. Ms. Dandekar

submitted that the accused gave just two blows with a stick

which is clear from the evidence of Ananda and the medical

evidence. The external injuries are not at all of serious nature

and they are very minor in nature. She submitted that this

shows that it was not the intention of the appellant to cause

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the death of Kamal. She submitted that if the appellant had

intended to cause the death of Kamal, he would have

continued assaulting Kamal. The fact that the appellant did not

do so, shows that he did not have the intention to kill Kamal.

Ms. Dandekar further submitted that the assault was not pre-

meditated or preplanned but it happened on the spur of the

moment in a fit of anger. Ms. Dandekar further submitted that

the fact that the incident occurred during the course of sudden

quarrel and the fact that it happened on the spur of moment in

a fit of anger, would bring the case under Exception 4 to

Section 300 of IPC and the case would thus, be covered by

Section 304 Part-II of IPC.

8 To bring a case within Exception 4 to Section 300 of

IPC, all the ingredients mentioned in it must be found. It is to

be noted that the word "fight" occurring in Exception 4 to

Section 300 of IPC, is not defined in the IPC. It takes two to

make a fight. Heat of passion requires that there must be no

time for passion to cool down. In this case, the evidence shows

that the parties had worked themselves into a fury on account

of verbal altercation going on between them. However, for the

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application of Exception 4, it is not sufficient to show that there

was a sudden quarrel and there was no premeditation but it

must be further shown that the offender has not taken any

undue advantage or acted in a cruel or unusual manner. Based

on the fact that the weapon in question was a stick and the

appellant gave only two blows with a stick one on the head and

one on the rib, we find much merit in the contention raised by

Ms. Dandekar.

9 Considering the evidence on record, we are of the

opinion that Exception 4 to Section 300 IPC applies to the facts

of the case and the appropriate conviction would be under

Section 304 Part-II of IPC. In addition, the prosecution has also

proved its case for the offence under Section 506 of IPC.

Hence, the following order is passed:

ORDER

(1) The conviction and sentence under Section 302

imposed on the appellant by judgment and order dated

28.12.2010 passed by the learned Additional Sessions Judge,

Kolhapur in Sessions Case No. 92 of 2007 is set aside, instead,

the appellant is convicted under Section 304 Part-II of IPC and

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sentenced to suffer R.I. for nine years and fine of Rs.2000/- (Rs.

two thousand only) in default to suffer S.I. for one month.

(2) The conviction and sentence of the appellant under

Section 506 of IPC is maintained.

(3) Both the sentences shall run concurrently.

(4) Appeal is partly allowed to the aforesaid extent.

(5) Office to communicate this order to the appellant who

is in Kolhapur Central Prison, Kalamba Kolhapur.

(6) We quantify legal fees to be paid to Advocate Ms.

Rohini Dandekar by the High Court Legal Services Committee

at Rs. 5000/-.

[ MRS. MRIDULA BHATKAR, J.] [ SMT.V.K.TAHILRAMANI, J. ]

kandarkar