Ashok S/O Kuksu Kannake (In Jail) vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 2589 Bom

                                                                                    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

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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

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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

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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/