Devendra Ramchandra Lavate & Anr vs The State Of Maharashtra
2016 Latest Caselaw 811 Bom

    Mhi                                   1           Appeal-531-1996.sxw


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                   
                         CRIMINAL APPEAL NO. 531 OF 1996




                                                           
          1.     Devendra Ramchandra Lavate                    )
                 age 18 years.                                 )




                                                          
          2.     Santosh Revansidha Kothe,                     )
                 age 19 years.                                 )
                 Both resident of Solapur.                     )..APPELLANTS
                                                           (Orig. Accused No.1 & 2)
                       vs.




                                               
          1.     The State of Maharashtra                       )
          2.     Kallappa Kannikar   ig                         )
                 R/o Alandkar Chawl, Near Employment            )
                 Chowk, Dist. Solapur.                          ).. Respondents
                                   
          Mr.M.R.Deshpande,Advocate for the appellants.
          Ms. Jannat K. Yadav for respondent No.2.
          Mr. S.S.Pednekar, APP, for the State.
            


                                          CORAM: SMT. SADHANA S.JADHAV, J.

DATE : 22nd March, 2016.

ORAL JUDGMENT :.

1. The appellant No.1 herein is original accused No. 1 in

Sessions Case No.164 of 1995. The learned II Addl. Sssions Judge,

Solapur, vide judgment and order dated 15.7.1996 has been pleased to

convict the appellant for the offence punishable under Section 304 Part II

read with Section 34 of Indian Penal Code and under Section 323 read with

Section 34 of IPC and sentenced him to suffer R.I. for 3 years and fine of

Mhi 2 Appeal-531-1996.sxw

Rs.3,000/-, in default, to suffer R.I. for 9 months. Hence, this appeal.

2. Since none appears for the respondent No.2, this Court has

requested the learned Advocate Ms.Jannat K. Yadav to espouse the cause of

the respondent No.2. She has graciously accepted to espouse the cause of

the respondent No.2.

3. Such of the facts necessary for the decision of this appeal are

as follows :-

On 28.4.1995, Kallappa Kannikar (PW-2) lodged a report at

Modi Police Station, Solapur, alleging therein that Raju Kannikar happens

to be his nephew. He was running a laundry in the name and style of "New

Guardian Laundry" along with his nephew. On 27.4.1995, at about 9 p.m.

he returned home along with his nephew. At about 10 p.m., his wife

informed him that the boys in the said area were quarrelling with each

other. They came out of the house and they saw the wife of Ram Lavate

and his sister Ratnabai were abusing his wife. That they learnt that Raju

had picked up a quarrel with the present appellants. The complainant made

an attempt to pacify them. The appellant No.1 informed the complainant

Mhi 3 Appeal-531-1996.sxw

that he wold bring Raju home. He went to the laundry shop and brought

Raju back to his house. The complainant enquired with Raju about the

reason for quarrelling. At that time, Raju disclosed that the present

appellants were abusing his sister Parvati. At that time, suddenly, the

appellants mounted assault upon Raju and hit him with fist and kick blows.

There was an altercation between Raju on the one hand and the appellants

on the other hand. In the said quarrel, it is alleged that, the appellant No.1

had pinned Raju to the ground and had mounted on his chest and attempted

to strangulate him. The complainant had tried to pull back the appellant

No.1. Raju had fallen unconscious. The complainant presumed that he was

unconscious and therefore rushed to Wadiya Hospital where Raju was

declared dead. On the basis of his report, Crime No.150 of 1995 was

registered at Modi Police Station. After completion of investigation, the

accused were charge-sheeted. The body was sent for autopsy. It was

revealed in the post-mortem report that Raju had died due to strangulation.

Hence, the accused were charge-sheeted for the offence punishable under

Sections 302, 323, 504 read with Section 34 of the Indian Penal Code. The

case was committed to the Court of Sessions and registered as Sessions

Case No.164 of 1995. The prosecution examined as many as 10 witnesses

to bring home the guilt of the accused.

Mhi 4 Appeal-531-1996.sxw

4. PW-1 Anant Gund happens to be a formal witness, who had

acted as a panch for the scene of offence panchnama which is at Exhibit 14.

The scene of offence panchnama clearly indicates that the incident had

occurred in front of the house of the complainant. PW-2 Kallappa happens

to be the complainant. He has deposed in consonance with the first

information report. He has admitted before the Court that the house of

accused No.1 is on the back side of his block and there is only one wall

which operates as a partition between the two blocks. That the proximity is

such that the conversation in both the houses are easily audible. That Modi

Police Station is at a walking distance. It is re-affirmed in the cross-

examination that assailant i.e. accused No.1 sat on the abdomen of Raju and

complainant had tried to separate them. The incident lasted for about 5 - 6

minutes. Some of the members from the nearby chawl had also witnessed

the altercation. That the accused No2 had also actively participated in the

assault. He has also admitted that he was not sure as to whether the accused

had left the scene of offence only after realizing that Raju had died. It can

be safely inferred that the complainant had deposed before the Court that

the incident had occurred and has not been shattered in cross-examination.

Mhi 5 Appeal-531-1996.sxw

5. PW-3 Sanjiv Kannikar happens to be the cousin of the

deceased. He has deposed before the Court that on 27.4.1995 he was

sleeping in the open place opposite to his house at about 9.30 p.m. That

Shekhar had informed him that a quarrel had ensued between the accused

and Raju. He was informed that the quarrel was in progress near Juice

centre. That he had rushed to the spot, intervened and separated them. He

further deposed that thereafter Raju and Shekhar had gone to the laundry

and he had returned to his house. That after returning from laundry, he had

noticed that quarrel had ensued between Shobhabai and Ratnabai on the one

hand and his mother on the other. Accused No.1 had come to their house

and informed that Raju abused him and, therefore, he would get Raju from

the laundry. In fact, according to PW-2, the complainant had made attempts

to pacify them. He has further deposed that accused No.1 had returned to

the house along with Raju. They were standing in the open space opposite

to house. That the accused had mounted assault upon Raju with fist

blows. Raju fell down. Accused No.1 pinned him to the ground and had

strangulated him. His evidence corroborates the substantive evidence of

PW-2. PW-1 and PW-2 are eye-witnesses to the incident. The post-mortem

notes which are at Exhibit 30 would indicate that the deceased had

sustained abrasions on his neck, medial aspect of clavicle, back, elbow etc.

Mhi 6 Appeal-531-1996.sxw

The cause of death was Asphyxia due to throttling.

6. PW-10 Babasaheb Shaikh happens to be the Investigating

Officer. He has deposed before the Court that he had arrested both the

accused on 28.4.1995. At the time of arrest, he had noticed that accused

No.1 had sustained bruises and that he was sent to Civil Hospital for

examination. That he had carried out investigation in accordance with law.

PW-10 has proved omissions and contradictions in the evidence of PW-2

and PW-3 and the other witnesses. That PW2 had also not stated that he

had intervened when Raju was being beaten by the accused. He has

further admitted in the cross-examination that he had tried to collect injury

certificate from the concerned medical officer as regards examination of

accused No.1, but he had not sent any letter to the medical officer. PW-10

had also not collected the case papers from Wadiya Hospital as far as Raju

was concerned.

7. In the present case, what needs to be taken into consideration is

the statement of accused No.1 under Section 313 of Cr.P.C. As far as the

occurrence of incident is concerned, accused No.1 has contended that the

Mhi 7 Appeal-531-1996.sxw

incident is admitted. According to accused No.1, Raju had picked up a

quarrel with the accused persons. That he was annoyed with Sanjiv and

Shekhar and PW-2 Kallappa had mounted assault on him and started

assaulting him. That Raju assaulted and gave fist blows on his face and

apprehending danger at the hands of the prosecution witness as well as

Raju, he had lost self control and did not realize what had happened.

8. Taking into consideration the facts and circumstances in which

the incident had occurred, the learned Judge has acquitted the accused

persons for the offence punishable under Section 302 read with Section 34

of IPC. However, they are convicted for the offence punishable under

Section 304 (II) of IPC, thereby holding that the accused had knowledge of

the fact that his act, in all probabilities, would result into death of Raju.

9. The appellants were enlarged on bail by an order dated

1.10.1996. The incident is of the year 1994.

10. None had appeared for the appellants and, therefore, this Court

by an order dated 8.3.2016, bailable warrant was issued and was to be

executed through Sadar Bazar Police Station, Solapur. The police had

Mhi 8 Appeal-531-1996.sxw

executed the bailable warrant against original accused No.1 on 15 th March

2016 and had given notice to the accused that they should remain present

on 17.3.2016 without fail. Initially, the learned counsel for the appellants

sought time. However, considering the fact that the appeal is of the year

1996, this Court was not inclined to grant adjournment.

11. In the course of hearing of the present appeal, the learned

counsel had submitted that the accused No.1 was hardly 18 years of age at

the time of the alleged incident. To verify the said submission, this Court

had called upon the learned counsel to produce before this Court the

School Leaving Certificate of accused No.1.

12. Today, the learned counsel for the appellants has tendered

before this Court the Duplicate of the School Leaving Certificate of the

appellant No.1 - Devendra Ramchandra Lavate issued by Haribhai

Deokaran High School, Solapur. He has also placed on record the Birth

certificate issued by the Health Department of the Solapur Municipal

Corporation which clearly indicates that the date of birth of the appellant

No.1 is 27.5.1977. The incident had occurred on 27.4.1995. At the time of

incident, he was hardly 18 years of age rather he had not completed 18

Mhi 9 Appeal-531-1996.sxw

years of age. The photocopies of the certificates are taken on record and

marked "X" for the purpose of identification.

13. The learned counsel for the appellants has only prayed for

leniency.

14. This Court cannot be oblivious of the fact that the appeal is

being heard after 20 years. That at the time of incident, the appellant No.1

was hardly 18 years and 2 months old. That he cannot be given benefit of

the provisions of Juvenile Justice Act, 2000. That after 20 years of

conviction, it would not be proper to remand the accused to custody.

Taking into consideration the facts and circumstances of the case, this Court

is inclined to exercise powers under Section 4 of the Probation of Offenders

Act, 1958. Section 4 reads as under :-

"4. Power of Court to release certain offenders on probation of good conduct (1) When any person is found guilty of having committed an offence not punishable with death or

imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any

Mhi 10 Appeal-531-1996.sxw

punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three

years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour:"

15. The learned APP has vehemently submitted that the interest of

the victim also needs to be taken into consideration and that the appellant

does not deserve leniency. However, it is a matter of record that the

appellant No.1 has admitted in his statement under Section 313 of Cr.P.C.

that he had lost self control and that the incident has occurred in a fit of

rage upon certain provocation invited by the deceased.

16. The learned APP has placed reliance on a Judgment of the

Hon'ble Apex Court in the case of Mohammad Alias Biliya vs. State of

Rajasthan 1999 Cri. L.J. 3509. In the said case, the accused was

convicted for the offence punishable under Section 304 Part II of the Indian

Penal Code. However, taking into consideration the age of the appellant

that he was less than 21 years old, the Hon'ble Apex Court had exercised

the discretion and granted him the benefit of the provisions of Probation of

Offenders Act and had enlarged the appellant on executing a bond to the

satisfaction of the concerned Magistrate for a period of two years. In the

present case, it would not really be necessary to ask the accused to execute

Mhi 11 Appeal-531-1996.sxw

a bond of good behaviour since there are no antecedents nor theere is any

report that subsequently he had committed any offence while on bail during

the pendency of the appeal. Moreover, as on today, the appellant is 40

years old. However, the learned APP submits that the appellant be called

upon to execute a bond of good behaviour before the concerned Court

which shall remain in force for two years. The learnd Magistrate shall call

for a report from the Probation Officer after every six months and the

bond shall stand discharged on expiry of two years.

17. The Hon'ble Apex Court in the case of Moti Singh vs. State of

Maharashtra (2002) 9 SCC 494, has held as follows :-

"It would be quite unjust to deny the right of private defence to

the accused merely on the ground that he adopted a different line of defence. If the evidence adduced by the prosecution would indicate that the accused were put under a situation

where they could reasonably have apprehended grievous hurt even to one of them it would be inequitable to deny the right of private defence to the accused merely on the ground that he has adopted a different plea during the trial. The crucial factor is not what the accused pleaded, but whether the

accused had the cause to reasonably apprehend such danger. A different plea adopted by the accused would not foreclose the judicial consideration on the existence of such a situation."

18. The learned APP submits that in the present cse, the accused No.1 has

Mhi 12 Appeal-531-1996.sxw

exceeded his right of private defence. He had not only mounted assault

upon the person of the deceased, but had throttled him to death and

therefore he does not deserve to be acquitted. The learned APP further

submits that in fact, the appellant No.1 has admitted the incident as it had

occurred. Taking into consideration the fact that there is non-explanation of

injuries on the person of accused No.1, this Court is inclined to give him

the benefit of Section 4 of the Probation of Offenders Act.

19.

The appellants are present in the Court. The learned counsel

for the appellants was requested to ask the appellants as to whether they

would be willing to compensate the family of the victim. The learned

counsel for the appellants has submitted that the appellant No.1 is working

as Waiter in a Hotel. However, the appellant has voluntarily undertaken to

pay compensation of Rs.10,000/- (Rupees ten thousand only) to the family

of the victim in addition to Rs.3,000/- already deposited by him. Hence, the

conviction of the appellants for the offence punishable under Section 304

Part II of IPC is maintained. They are however sentenced to the period

already undergone. Hence, the following order :-

ORDER

(i) The appeal is partly allowed.

     Mhi                                    13           Appeal-531-1996.sxw

          (ii)             The conviction of the appellants for the offence punishable

under Section 304 Part II of IPC is maintained. They are sentenced to the

period already undergone.

(iii) The conviction of the appellants for the offence punishable

under Section 323 read with Section 34 of IPC is maintained. They are

sentenced to the period already undergone.

          (iv)             Their bail bonds stand cancelled.




                                                
          (v)              The sentence of fine is enhanced to Rs.13,000/-.

          (vi)
                                     

The appellants shall deposit an additional amount of

Rs.10,000/- before the Sessions Court, Solapur within eight weeks from

today.

(vii) Upon depositing the fine amount, the complainant is entitled to

compensation of Rs.12,000/-.

(viii) The learned Sessions Court, Solapur, shall issue notice to the

respondent No.2 calling upon him to receive the compensation after it is

deposited.

Appeal is allowed in the above terms and stands disposed of.

(SMT.SADHANA S.JADHAV, J.)