Sau. Pradnya Baburao @ Bablu (In ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 1759 Bom

Judgment

                                                            apeals486.15 & 215.16

                                       1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

                   CRIMINAL APPEAL NO.486 OF 2015
                               WITH
                   CRIMINAL APPEAL NO.215 OF 2016




CRIMINAL APPEAL NO.486 OF 2015

Sau. Pradnya Baburao @ Bablu Kathane,
Aged 35 years, Occupation Labour,
R/o Ward No.5, Shikshak Colony,
Tiosa, Taluka and District Amravati.         ..... Appellant.

                                ::   VERSUS   ::

The State of Maharashtra, through
Police Station Officer, Police Station,
Tiosa, Taluka & District Amravati.           ..... Respondent.




CRIMINAL APPEAL NO.215 OF 2016

Baburao @ Bablu Janrao Kathane,
Aged 23 years, Occupation Labour,
R/o Ward No.5, Shikshak Colony,
Tiosa, Tahsil and District Amravati.              ..... Appellant.

                                ::   VERSUS   ::

State of Maharashtra, 
through Police Station Officer,


                                                                            .....2/-




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 Judgment

                                                               apeals486.15 & 215.16

                                        2

Police Station Tiosa, Tahsil Tiosa,
District Amravati.                                           ..... Respondent.

================================================================
          Shri N.A. Badar, Counsel for the appellants (in both appeals).
          Shri M.J. Khan, Additional Public Prosecutor for the 
          Respondent/State.
================================================================



                                CORAM   : B.P. DHARMADHIKARI &
                                          V.M. DESHPANDE, JJ.  

DATE : APRIL 17, 2017.

COMMON JUDGMENT (Per : V.M. Deshpande, J.)

1. The appellants, in these two appeals, challenge

judgment and order of conviction passed by learned

Additional Sessions Judge-4, Amravati dated 17.2.2015 in

Sessions Case No.139 of 2014, by which both of them are

convicted by the Court below for the offence punishable

under Section 302 read with Section 34 of the Indian

Penal Code and are directed to suffer imprisonment for

life and to pay a fine of Rs.1,000/- by each of them and, in

.....3/-

Judgment

apeals486.15 & 215.16

default, to suffer further simple imprisonment for a

period of three months.

2. Appellant, in Criminal Appeal No.486 of 2015,

Pradnya w/o Baburao Kathane is wife of appellant, in

Criminal Appeal No.215 of 2016, Baburao Kathane. These

two appeals, since arise out of same judgment, are taken

up for hearing simultaneously and they are disposed of by

this common judgment.

3. We have heard learned counsel Shri N.A. Badar

for the appellants, in both these appeals, and learned

Additional Public Prosecutor Shri M.J. Khan for the

State.

4. Much emphasize in submissions of learned

counsel for the appellants is, that appellants are entitled

.....4/-

Judgment

apeals486.15 & 215.16

for conviction for the lesser offence. Learned counsel

submits that appellants are not disputing their presence

on the spot, neither he disputes about authorship of

injuries on deceased Nandu Kathane, who is brother of

appellant, Baburao Kathane. He, therefore, submits

conviction of appellants, for the offence punishable under

Section 302, be set aside.

5. The dead body was sent to PW5 Dr. Chetan

Deulkar for postmortem. He noticed following external

injuries:

"a) Contusion over chest right infra laviculor area 1 inch right to sternun about 7 x 5 cm. Bluish colour.

b) Contusion over chest and axillary area obliquely placed about 9 x 3 cm. It is oblique at antirior axillary line.

c) Lacerated wound over right mondibulor area 2 cm. away from midline from chin about 5 x 15 cm. and

.....5/-

Judgment

apeals486.15 & 215.16

fracture from underlying bone.

d) Lacerated wound over right ear on middle of external right ear 4 x 3 x 2 cm.

e) Contusion over right fronto tempera parietal region about 10 x 7 cm. fracture underlying bone.

f) Lacerated wound upper lip at right angel of mouth 2 x 1 cm.

g) Lacerated wound over lower lip 2 x 1 near right angle of mouth.

h) Lacerated wound scalp on left side over parietal region 5 x 2 cm., just above the left ear."

From the report, as appearing in the

postmortem report Exhibit 35 and in view of evidence of

Dr. Chetan Deulkar, it is clear that deceased Nandu met

with his homicidal death.

6. Now, whether appellants are liable for

.....6/-

Judgment

apeals486.15 & 215.16

conviction under Section 302 of the Indian Penal Code or

for any lesser offence, as canvassed by learned counsel for

the appellants, is to be seen.

7. The relationship between appellants with

deceased Nandu is not in dispute. From the evidence it is

clear that they were residing in the same house, however

in different rooms. It is established on record that there

used to be quarrels amongst Nandu and Baburao and,

therefore, their mother PW4 Venubai and their

neighbours were fed up.

8. PW3 Vilas Mendhe, teacher and neighbour,

states that he was fed up with quarrels with deceased

Nandu and Baburao and since they were quarreling, no

one was intervening.

.....7/-

Judgment

apeals486.15 & 215.16

9. PW4 Venubai, mother of appellant Baburao and

deceased Nandu, deposed from the witness box that

deceased Nandu was addicted to liquor. She also admits

that on that account, there used to be quarrels between

deceased Nandu and appellant Baburao.

10. It is to be noted that viscera was preserved and

sent to the chemical analyzer and chemical analyzer's

report Exhibit 13 shows that it contains alcohol. In view

of said chemical analyzer's report, we see no reason to

disbelieve PW4 Venubai and PW3 Vilas Mendhe that

deceased Nandu was addicted to liquor.

11. On 19.1.2014, PW2 Moreshwar Shekar was

attached to Police Station Tiosa. At about 11:00 p.m., he

went for patrolling. While he was on patrolling, he

received a phone call from police station that Pradnya

.....8/-

Judgment

apeals486.15 & 215.16

Kathane (appellant) lodged a report that her brother-in-

law Nandu (deceased) by drinking liquor was abusing and

extending threats to kill. He, therefore, recorded a non-

cognizable complaint. Police Constable, who informed

Moreshwar Shekar, registered a complaint of Pradnya

(appellant) as a non-cognizable complaint. The said

constable from police station asked PW2 Moreshwar

Shekar to visit the house and look after the matter.

Therefore, PW2 Moreshwar Shekar went to house of

appellants. At that time, both appellants and deceased

were present. He made inquiries with them and also

warned. According to version of PW2 Moreshwar Shekar,

thereafter, all of them went inside the house. Thereafter,

he came to police station.

It is the further version of PW2 Moreshwar

Shekhar that at 12:30 a.m. in night when he was on

patrolling, again he received a phone call from Head

.....9/-

Judgment

apeals486.15 & 215.16

Constable H.C. Dongre at about 1:15 a.m.. He again asked

Moreshwar Shekar to visit house of Kathane's. That time,

he noticed that Police Sub Inspectors Shinde and P.C.

Nivrutti were already there. They noticed that Nandu

was lying in dead condition.

12. PW1, is Roshan Kathane. He is nephew of both

deceased Nandu as well appellant Baburao. This boy lost

his parents, much earlier. From his evidence also it is

clear that deceased Nandu was habituated to drinks and

used to create quarrels. He also stated in his evidence

that on the day of incident at 11:30 p.m., there was a

quarrel in between deceased Nandu and appellant

Baburao. It is also version of this boy that at the time of

incident, deceased Nandu was under the influence of

liquor.

.....10/-

Judgment

apeals486.15 & 215.16

13. Visit of appellant, Pradnya, to the police

station for reporting quarrel, between her husband and

deceased Nandu, is also corroborated by PW1 Roshan

Kathane and PW4 Venubai. Both these witnesses

corroborate PW2 Moreshwar Shekar in respect of his

warning to deceased Nandu.

14. Thus, actual assault on deceased Nandu, by

these two appellants, is preceded by quarrel picked up

with them by Nandu under the influence of liquor.

According to prosecution witnesses, thereafter, again

quarrel ensued and in that, assault was made on Nandu.

15. The chronology of events shows that it is

Nandu, deceased, has provoked appellants under the

influence of liquor. In that view of the matter, in our

view, the present case squarely falls in exception 1 (one)

.....11/-

Judgment

apeals486.15 & 215.16

of Section 300 of the Indian Penal Code and, therefore,

appellants are entitled for punishment for the lesser

offence than offence punishable under Section 302 of the

Indian Penal Code.

16. Looking to injuries on the part of body of

deceased Nandu, we are of the view that it is a fit case

wherein appellants could be convicted for the offence

punishable under Section 304 Part-I of the Indian Penal

Code. Consequently, we pass the following order :

ORDER

Both Criminal Appeals are allowed in part.

2. The judgment and order of conviction passed

by the Additional Sessions Judge-4, Amravati, dated

17.02.2015 in Sessions Case No.139 of 2014, convicting the

appellants for the offence punishable under Section 302

.....12/-

Judgment

apeals486.15 & 215.16

read with Section 34 of Indian Penal Code is hereby set

aside, instead both the appellants are convicted for the

offence punishable under Section 304 Part-I of the Indian

Penal Code and directed to suffer Rigorous Imprisonment

for a period of 10 years.

3. Muddemal property be dealt with as directed

by the Trial Court after the appeal period is over.

                   JUDGE                                            JUDGE



!!  BRW  !!




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