Bombay High Court
Dhaku Sonu Jadhav vs The Stata Of Maharashtra on 7 March, 2016
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 523 OF 2014
Dhaku Sonu Jadhav ]
Convict No. 5113, ]
Kolhapur Central Prison, Kalamba, ]
Kolhapur-416007 ].. Appellant
[Ori.Accused No.1]
Vs.
The State of Maharashtra ig ].. Respondent
....
Mr. Abhaykumar Apte Advocate appointed for the Appellant
Mr. A.S. Shitole A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
SMT. ANUJA PRABHUDESSAI, JJ.
DATE : MARCH 07, 2016
ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]
1 This appeal is preferred by the appellant-original
accused no.1 against the judgment and order dated 1.11.2011
passed by the learned Additional Sessions Judge, Raigad in
Sessions Case No. 148 of 2009. By the said judgment and
order, the learned Sessions Judge convicted the appellant
under Section 302 of IPC and sentenced him to imprisonment
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for life.
2 The prosecution case, briefly stated, is as under:
(i) Deceased Chandrakant was the husband of PW 1
Tulsabai. Gangubai was the sister of Tulsabai. The appellant is
the husband of Gangubai. Tulsabai along with her husband
Chandrakant and Gangubai along with her husband Dhaku
were working on the brick-kiln of PW 4 Ganesh Shelke. There
were about 12 to 13 couples working on brick-kiln of Ganesh
Shelke. PW 2 Ram and PW 3 Krishna alias Kisan were also
working on the brick-kiln of Ganesh Shelke. For residential
purposes, all the workers were allotted one hut each in the
premises of the brick-kiln. Gangubai along with appellant
Dhaku and Tulsabai along with her husband Chandrakant, were
residing in one hut, however, there was a partition in the hut
and Gangubai and Dhaku and Tulsabai and Chandrakant were
residing on either side of the partition. One Devji was the
father of Gangubai and Tulsabai. He expired about four years
back. Devji had one hut and some land. Devji gave half acre
land to Jankibai who was the sister of Gangubai and Tulsabai.
He gave half acre of land to Gangubai and half acre to Tulsabai.
As at the time of death, Tulsabai was residing with her father
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Devji, therefore Devji had given the hut to Gangubai. There
was dispute between Tulsabai and Gangubai on account of
property.
(ii) The incident occurred on 27.3.2009 at about 9.10
p.m. The appellant came to the house of Tulsabai. The
appellant gave abuses and called out to Chandrakant who was
the husband of Tulsabai. Chandrakant then went outside the
house. Then the appellant gave blow with sickle on the neck of
Chandrakant. Due to the blow, Chandrakant fell down. PW 2
Ram who had witnessed the incident, went and informed
Ganesh Shelke who was the owner of the brick-kiln. Ganesh
Shelke came to the spot and he took Chandrakant to the
hospital. There Chandrakant was declared dead. PW 1
Tulsabai then lodged F.I.R. (Exh. 15) in the hospital. Thereafter
investigation commenced. After completion of investigation,
the charge sheet came to be filed against the appellant. In due
course, the case was committed to the Court of Sessions.
3 Charge came to be framed against the appellant and
co-accused Gangubai under Section 302 read with Section 34
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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 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.
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 Chandrakant with the
sickle which led to the death of Chandrakant.
5 There are three eye witnesses in the present case i.e.
PW 1 Tulsabai, PW 2 Ram and PW 3 Krishna. Tulsabai has
stated that she was working on the brick-kiln of PW 4 Ganesh
Shelke. The brick-kiln was situated at village Kharghar near
Panvel. Her sister Gangubai and Gangubai's husband Dhaku
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were also working on the same brick-kiln. Tulsabai along with
her husband Chandrakant and daughter were residing in a
hut on the premises of the brick-kiln. Gangubai and Dhaku
were residing in a separate hut on the brick-kiln. Tulsabai has
stated that Devji was her father. Her father expired about
three years prior to the incident. She had no brother, however,
she had two sisters i.e. Gangubai and Janki. Her father Devji
had one hut and some land.
ig Her father had given half acre
land each to Janki, Tulsabai and Gangubai. As at that time
Tulsabai was residing with her father in his hut, her father had
given the hut to her. There was dispute between Tulsabai and
Gangubai on account of property. Tulsabai has further stated
that the incident occurred on 27.3.2009. The appellant came
to the house of Tulsabai. The appellant gave abuses and called
out to Chandrakant who was the husband of Tulsabai.
Chandrakant then went outside the house. Then the appellant
gave blow with sickle on the neck of Chandrakant. Due to the
blow, Chandrakant fell down. PW 2 Ram who had witnessed
the incident, went and informed Ganesh Shelke who was the
owner of the brick-kiln. Ganesh Shelke came to the spot and
he took Chandrakant to the hospital. There Chandrakant was
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declared dead. PW 1 Tulsabai then lodged F.I.R. (Exh. 15).
6 The second eye witness is PW 2 Ram. Ram has
stated that he was working on the brick-kiln of Ganesh Shelke
since last about five years. He knew deceased Chandrakant
and his wife PW 1 Tulsabai since about five years. They were
also working on the same brick-kiln and they were residing in
the premises of the brick-kiln in a hut. Ram was also residing
in a hut on the premises of brick-kiln. Ram knew Dhaku and
his wife Gangubai. They were also working on the same brick-
kiln and residing in the premises of the brick-kiln. According to
Ram, he returned home at about 7.30 p.m. There he came to
know that quarrel was going on between both sisters Gangubai
and Tulsabai. He went to the spot where the quarrel was
taking place. He saw the appellant giving blow to Chandrakant
with sickle. Chandrakant fell down. Then Ram went and
informed PW 4 Ganesh Shelke i.e. the owner of the brick-kiln.
Ganesh Shelke came to the spot. Ganesh Shelke took
Chandrakant to the hospital. Chandrakant died in the hospital.
7 The last witness is PW 3 Krishna. Krishna has stated
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that at the relevant time, he was working on the brick-kiln of
Ganesh Shelke. He was staying in the premises of brick-kiln in
a hut. Chandrakant was the husband of his cousin sister. The
hut of Chandrakant was situated adjacent to his hut. Krishna
has further stated that Gangubai is his sister and the appellant
is the husband of Gangubai. Chandrakant and Dhaku were
living in one hut but there was partition made by grass in the
hut. Krishna has further stated that at about 8 to 9 p.m. he
was taking dinner. At that time, quarrel took place between
Chandrakant and Dhaku. Dhaku gave blow with sickle on
Chandrakant. Chandrakant fell down and became unconscious.
Somebody informed Ganesh Shelke i.e. the owner of the brick
factory. Ganesh Shelke came to the spot and took
Chandrakant to hospital. Nothing has been elicited in the
cross-examination of PW 1 Tulsabai, PW 2 Ram and PW 3
Krishna to cause us to disbelieve their evidence. We find that
the evidence of these three eye witnesses inspires implicit
confidence, hence, we have no hesitation in relying on the
same.
8 The evidence of three eye witnesses is further
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corroborated by the medical evidence. PW 5 Dr. Naik
conducted the post-mortem on the dead body of Chandrakant.
On external examination, Dr. Naik noticed incised wound on
the right shoulder, size 5 cm. x 3 cm. x 2.5 cm. deep. The
injury had penetrated to the right subclaveri vessel, pleura and
lung. In addition, there was incised wound on the right arm.
On internal examination, Dr. Naik noticed that pleura was torn
on right side upper lobe of the lung. Right side lung was torn
on upper side lobe with bleeding in the right plural cavity and
lung was collapsed underneath. Blood had collected there. On
examination of large vessel on the left side, it was found
normal while on right side subclavira vessel was injured and
bleeding was present. According to Dr. Naik, the cause of
death was hemorrhagic shock. Dr. Naik has further stated that
injury sustained by Chandrakant was possible by blow of sickle.
Thus, the medical evidence also corroborates the prosecution
case.
9 Mr. Apte, the learned counsel for the appellant
submitted that even if it is accepted that the act of the
appellant of assaulting Chandrakant with sickle resulted in his
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death, the case would not fall under Section 302 of IPC, but it
would fall under Section 304 Part-I of IPC. Mr. Apte pointed out
that the evidence on record shows that when the incident
occurred, a quarrel was going on between the appellant and
deceased Chandrakant which has been deposed about by PW 3
Krishna. Mr. Apte pointed out that Krishna has stated that at 8
to 9 p.m. he was taking dinner, at that time, quarrel took place
between Chandrakant and the appellant. The appellant then
gave a blow with sickle to Chandrakant. Mr. Apte pointed out
that the evidence of the three eye witnesses shows that just
one blow was given by the appellant to Chandrakant. Mr. Apte
further submitted that the assault was not premeditated or
preplanned but it happened on the spur of moment in a fit of
anger. Mr. Apte stated that all these facts, especially the fact
that the appellant assaulted Chandrakant during the course of
sudden quarrel, would bring the case under Exception 4 to
Section 300 of IPC and would thus, be covered by Section 304
Part-I of IPC.
10 To bring a case within Exception 4 to Section 300 of
IPC, all the ingredients mentioned in it must be found. It is to
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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
especially that of PW 3 Krishna shows that a quarrel was going
on between the appellant and the deceased. The evidence of
three eye witnesses shows that the appellant gave only one
blow with sickle which shows that the appellant did not take
any undue advantage or act in a cruel or unusual manner. In
this view of the matter, in our opinion, the case would fall as
rightly submitted by Mr. Apte, under Section 304 Part-I of IPC.
11 Considering the evidence on record, we are of the
opinion that Exception 4 to Section 300 applies to the facts of
the case and appropriate conviction would be under Section
304 Part-I of IPC. Hence, the following order is passed:
ORDER
(1) The conviction and sentence under Section
302 of IPC imposed on the appellant by judgment and
order dated 1.11.2011 passed by the learned
Additional Sessions Judge, Raigad in Sessions Case
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No. 148 of 2009 is set aside. Instead, the appellant is
convicted under Section 304 Part-I of IPC and
sentenced to suffer R.I. for seven years and fine of Rs.
2000/- (Rs. two thousand only) in default to suffer R.I.
for one month.
(2) Appeal is partly allowed to the aforesaid
extent.
Office to communicate this order to the
appellant through the concerned Jail Superintendent.
(4) Legal fees to be paid to appointed advocate
Mr. Abhaykumar Apte is quantified at Rs.5000/-.
[SMT. ANUJA PRABHUDESSAI, J.] [ SMT.V.K.TAHILRAMANI, J. ]
kandarkar
