Kisan Kaniram Rathod vs State Of ...
2017 Latest Caselaw 9764 Bom

 apeal432of02.odt                          1




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


                     CRIMINAL APPEAL NO.432 OF 2002


 Kisan Kaniram Rathod,
 Aged about 36 years,
 R/o. Dhamangaon Deshmukh,
 Tahsil Motala, District Buldhana                                       ...APPELLANT


          ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Officer
 Pimpalgaon Raja,
 District Buldhana                                                    ...RESPONDENT
 -------------------------------------------------------------------------------------------
          Mr. J.D. Bastian, counsel appointed for the Appellant.
          Mr. N.B. Jawade, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J. 

  DATE OF RESERVING THE JUDGMENT     
                                             
                                             :29.09.2017
  DATE OF PRONOUNCING THE JUDGMENT        
                                             :19.12.2017


 JUDGMENT:

The appellant seeks to assail the judgment and order

dated 18.7.2002 delivered by the Additional Sessions Judge,

Khamgaon, in Session Trial 35 of 1997, by and under which the

appellant (hereinafter referred to as "the accused") is convicted for

the offence punishable under section 304 Part II of the Indian

Penal Code ("IPC" for short) and is sentenced to suffer rigorous

imprisonment for 7 years and to payment of fine of Rs. 2000/-.

2 The accused and the deceased Yashoda entered into

matrimonial alliance in the year 1992 or thereabout (the exact

month or year is not discernible from the record). The accused

was residing with Yashoda at village Belkhed.

3 On the fateful day of the incident which occurred on

5.6.1997, the accused alongwith his father-in-law Ranglal Chavan,

(complainant) and co-brother Totaram Pawar had been to

Khamgaon to sell goats. They had lunch at Khamgaon. Ranglal

and Totaram Pawar stayed back in Khamgaon, since Ranglal

intended to purchase baby goat. The accused returned to Belkhed

at 5 p.m..

4 The prosecution case is that there was a quarrel

between the accused and the deceased Yashoda. The genesis of

the quarrel was the grievance of the accused that Yashoda did not

pack chilly paste alongwith bread in the lunch tiffin. Yashoda

went to the residence of her sister Pramila who resided at a

distance of 3 to 4 houses from the house of the accused

complaining that the accused quarreled with her. Pramila came to

the house of the accused and requested the accused not to quarrel

with Yashoda. Pramila requested the accused to have food in the

evening alongwith one Darasingh. Pramila returned to her house

and brought Yashoda alongwith her. Yashoda served food to

accused and one Darasing. The accused took one bite, again

started quarreling with Yashoda and took out a chisel like

instrument (KIKRA) and threw it towards Yashoda who was sitting

near the door at some distance from the accused. The Kikra struck

the neck of Yashoda, she sustained injury, Pramila who was

present immediately went to the house of her brother and called

her father, brother and other villagers to the spot. The accused

and others proceeded to the hospital in bullock-cart to admit

Yashoda. However, on the way Yashoda succumbed to the injury

sustained.

5 The father of Yashoda lodged a report alleging that

the accused caused the death of Yashoda and on the basis of the

said report offence under section 302 of IPC was registered against

the accused. The culmination of the investigation led to

submission of the chargesheet in the Court of Judicial Magistrate

First Class, Khamgaon, who committed the case to the Sessions

Court. The learned Sessions Judge framed charge for offence

punishable under section 302 of IPC, the accused abjured guilt and

claimed to be tried. The defence is of total denial.

6 The prosecution examined 5 witnesses to bring home

the charge. The father of the deceased Ranglal Chavan who

lodged the report is examined as PW 1. Dr. Vilas Jadhav, the

Medical Officer at General Hospital, Khamgaon who conducted the

post mortem, is examined as PW 2. The sister of deceased

Yashoda, Pramila who is an eye witness is examined as PW 3.

Darasingh Chavan, who according to the prosecution, witnessed

the incident is examined as PW 4 and the Investigating Officer is

examined as PW 5.

7 The post mortem report Exh. 28 reveals that the

deceased Yashoda sustained stab wound over interior and central

lower 1/3rd part of neck and the cause of death was haemorrhage

shock. The medical officer opined that the injury suffered by

Yashoda is possible due to the Kikra (article-1). PW 2 - Dr. Vilas

Jadhav has denied the suggestion that the injury suffered by

Yashoda is possible due to an accidental fall on instrument like

Kikra.

8 The most important witness is PW 3 - Pramila and it

would be apposite to reproduce the following portion of her

examined in chief:

"Accused Kisan asked to put food on the platform in front of house of Kisan and Yashoda was sitting at the door of her house. I was also sitting on the platform. After one bite accused Kisan complained that the food is not tasty and on that count he took out the instrument KIKRA and threw it towards my sister Yashoda which struck against her neck due to which she sustained bleeding injury. Accused Kisan also was saying prior to throwing instrument Kikra towards Yashoda that why she had not sent chilly paste with bread to Khamgaon".

The cross-examination reveals that the evidence of PW 3 -

Pramila has gone virtually unchallenged.

9 Darasingh Chavan who according to Pramila also

witnessed the incident, did not support the prosecution,

permission was sought by the learned APP to put questions in the

nature of cross-examination, the said permission granted and

Darasingh Chavan was cross-examined. However, nothing is

elicited in the cross-examination of PW 4 Darasingh to assist the

prosecution. Ranglal, the father of the deceased Yashoda is

examined as PW 1. He is not a witness to the incident. His

statement in the examination in chief that Pramila disclosed that

the accused inflicted a Kikra blow on the neck of Yashoda is of

little significance and is hearsay. However, in the cross-

examination, PW 1 states thus:-

"It is true to say that accused was holding the injury with his hand so as to stop the bleeding. It is true to say that due to it his clothes were stained with blood."

The learned counsel for the accused would urge that the

conviction of the accused under section 304 Part II of IPC is

unsustainable. Even if the entire evidence of the prosecution is

accepted at face value, offence under section 304 Part II of IPC is

not made out, is the submission.

10 It is not in serious dispute, and indeed in all fairness

to the learned counsel appearing on behalf of the accused, it is not

argued that Yashoda did not suffer injury due to the Kikra hurdled

at her by the accused. The submission is, that the act of throwing

Kikra which is a chisel like instrument, is not sufficient to attribute

knowledge to the accused that the act is likely to cause death. The

submission is, that the evidence on record is not suggestive of

culpable homicide. Section 299 of IPC which defines culpable

homicide reads thus:-

299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

It would also be relevant to reproduce section 304 of IPC

since the learned Sessions Judge has convicted the accused under

section 304 Part II of IPC.

304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

11 I have given my anxious consideration to the evidence

on record and the submission of the learned counsel Shri. J.D.

Bastian, for the accused and Shri. N.B. Jawade, the learned APP

for the respondent /State. The learned APP would submit that the

very act of throwing the chisel like instrument (KIKRA) on the

deceased, is sufficient to attribute knowledge that the act is likely

to cause death. I am afraid, I am not in a position to agree with

the learned APP.

12 The act of throwing or hurling the Kikra at Yashoda,

may be in a fit of rage, may be with the knowledge that Yashoda

may suffer an injury and indeed a grievous injury. However, the

act of hurling the chisel like instrument, in the factual matrix, is

not per say suggestive of knowledge that the death of Yashoda is

the likely consequence. The conviction of accused u/s 304 Part II

of the IPC is unsustainable and is set aside and the accused is

instead convicted of offence punishable under section 326 of IPC.

The accused acted in a fit of rage. The subsequent conduct,

however, would suggest that he was in deep remorse. Sentence of

1 (one) year rigorous imprisonment, in the circumstances, would

meet the ends of justice.

The appeal is partly allowed.

13] The conviction of the accused under section 304 Part

II of IPC is set aside and instead the accused is convicted of offence

punishable under section 326 of IPC and is sentenced to suffer

rigorous imprisonment for 1 (one) year. The accused is entitled to

set off under section 428 of Criminal Procedure Code.

14] Counsel fee is quantified at Rs.5000/-.

   15]              Order accordingly.




                                                            JUDGE




RS Belkhede