Bombay High Court
Sudhakar Pandurang Dhote (In ... vs State Of Maharashtra, Through ... on 25 July, 2017
Bench: Z.A. Haq
1 apeal70.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.70/2016
Sudhakar Pandurang Dhote,
aged about 47 years, R/o Palora,
Tah. Parshioni, Distt. Nagpur. ..Appellant.
..Vs..
State of Maharashtra,
through P.S.O., Parshioni,
Tah. Parshioni, Distt. Nagpur. ..Respondent.
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Shri S.H. Quazi, Advocate for the appellant.
Shri T.A. Mirza, A.P.P. for the respondent / State.
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CORAM : Z.A.HAQ, J.
DATE : 25.7.2017.
ORAL JUDGMNT
1. Heard Shri S.H. Quazi, Advocate for the appellant / accused and
Shri T.A. Mirza, A.P.P. for the respondent / State of Maharashtra.
2. The appellant / accused has challenged the judgment passed by the
Sessions Court by which he is convicted for the offence punishable under
Section 304-I of the Indian Penal Code and is sentenced to undergo rigorous
imprisonment for 10 years and to pay fine of Rs.2,000/- (Rs. Two Thousand)
and in default of payment of fine to undergo further rigorous imprisonment for
6 months.
3. The case of the prosecution is that the accused and Sevakram
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(deceased) had been residing in the same locality, 15 days prior to incident
there was a quarrel between accused and son of Sevakram, the accused had
abused and beaten son of Sevakram. On 25th April, 2014 i.e. on the date of
incident at about 6 p.m. Sevakram returned home from his field and as his wife
was cooking food, Sevakram told his wife that he was going out and went out,
at about 8 p.m. neighbours informed Lata (wife of Sevakram) that a quarrel
had taken place between the accused and Sevakram and, therefore, Lata went
to the spot, the accused and Sevakram were abusing each other, Lata
intervened and brought Sevakram towards home, the accused followed them,
took out a knife and gave three blows on chest, stomach and thigh of Sevakram
and because of the injuries and loss of blood Sevakram died.
4. On receipt of complaint, F.I.R. was registered, investigation was
undertaken, accused was arrested and after completing the formalities
charge-sheet was filed before the trial Court. As the offence punishable under
Section 302 of the Indian Penal Code is triable by the Court of Sessions, the
case was committed to the Sessions Court, charges were framed, read over and
explained to the accused, the accused did not accept the guilt and claimed to
be tried and, therefore, the trial was conducted. After conducting the trial, the
learned Additional Sessions Judge concluded that the prosecution has proved
that death of Sevakram was homicidal and the accused had committed his
murder and convicted the accused and sentenced him as per the order.
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5. Shri S.H. Quazi, learned Advocate for the appellant tried to point
out certain discrepancies and contradictions in the evidence of Lata (P.W.1),
but, after making submissions for sometime, fairly conceded that conclusions of
the learned Additional Sessions Judge regarding occurrence of incident and
involvement of the appellant / accused in the commission of crime cannot be
faulted with. However, he submitted that the learned Additional Sessions
Judge has committed an error by convicting the accused under Section 304-I of
the Indian Penal Code overlooking the fact that the prosecution has not been
able to point out any motive for the deadly assault by the accused. The learned
Advocate has pointed out the nature of injuries from the report of postmortem
examination and has referred to the opinion of Medical Officer which shows
that the death of Sevakram was due to cardio respiratory arrest due to massive
hemorrhage under left thoracic cage causing shock. It is submitted that overall
assessment of the evidence clearly suggests that the quarrel took place
suddenly and the accused assaulted Sevakram and there is nothing on record to
show that the assault was premeditated. It is further argued that the evidence
of Dr. Premanand (P.W.6) also does not conclusively show that any injury was
caused to Sevakram with intention to kill him.
6. After going through the evidence on record, I find substance in the
submissions made on behalf of the appellant / accused. The prosecution has
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not been able to establish beyond doubt that there was any intention on the
part of appellant /accused to cause death of Sevakram nor the prosecution has
been able to establish any motive.
In view of the above, I find that the conviction of the appellant /
accused for the offence punishable under Section 304-I of the Indian Penal
Code is not sustainable but it should be under Section 304-II of the Indian
Penal Code.
7. I have heard the learned Advocate for the appellant / accused on the
point of sentence.
It is submitted that the appellant at present is aged about 48 years,
is married and has marriageable daughter and school going children. It is
submitted that the appellant was granted furlough leave for 15 days in
December, 2016 and nothing adverse has been reported against him and he
had voluntarily surrendered. It is submitted that the accused has undergone
imprisonment of 3 years and 2 months.
Considering the above facts, it is directed that the appellant /
accused shall undergo rigorous imprisonment for 5 years and pay fine of
Rs.60,000/- (Rs. Sixty Thousand) and in default of payment of fine to undergo
further rigorous imprisonment for 1 year.
8. Hence, the following order:
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(i) The conviction of the appellant for the offence punishable under
Section 304-I of the Indian Penal Code is modified and the appellant / accused
is convicted for the offence punishable under Section 304-II of the Indian Penal
Code.
(ii) It is directed that the appellant / accused shall undergo rigorous
imprisonment for 5 years and shall pay fine of Rs.60,000/- (Rs. Sixty
Thousand) and in default of payment of fine shall undergo further rigorous
imprisonment for 1 year.
(iii) If the amount of fine is deposited, out of it Rs.50,000/- (Rs. Fifty
Thousand) shall be paid to Smt. Lata Wd/o Sevakram Kadu.
(iv) The District Legal Services Authority, Nagpur shall pay further
amount of Rs.50,000/- (Rs. Fifty Thousand) to Smt. Lata Wd/o Sevakram
Kadu.
This amount of Rs.50,000/- (Rs. Fifty Thousand) shall be paid to
Smt. Lata Wd/o Sevakram Kadu within 3 months.
(v) The impugned judgment is modified in the above terms.
(vi) The appeal is partly allowed accordingly.
The learned A.P.P. shall issue appropriate communication to Police
Station Officer Parshioni, Tah. Parshioni, Distt. Nagpur to give intimation of
this order to Smt. Lata Wd/o Sevakram Kadu.
JUDGE
Tambaskar.
