Ashok Tukaram @ Babu Awachar vs The State Of Maharashtra And Anr
2017 Latest Caselaw 8747 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.172 OF 2006

Ashok s/o. Tukaram @ Babu Awachar,
Age : 23 years, Occ. Labourer,
r/o. Karegaon, 
Tq. and Dist. Parbhani                       ..Appellant
                                             (Orig. accused)

               Vs.

1. The State of Maharashtra,                 (Prosecution)

2. Mirabai Madhav Awachar,
   Age : 25 years Occ. Agri.,
   r/o. Village Karegaon,
   Tq. and Dist. Parbhani                    ..Respondents 

                             ----
Mr.   Chaitanya   C.   Deshpande,   Advocate   i/b.   Mr.C.R. 
Deshpande, Advocate for appellant 

Mr. S.K.Tambe, APP for respondent no.1

Mr. B.A.Shinde, Advocate for respondent no.2
                         ----

                         CORAM : SUNIL P. DESHMUKH AND
                                 SANGITRAO S. PATIL, JJ.
                   RESERVED ON : NOVEMBER 09, 2017 
                 PRONOUNCED ON : NOVEMBER 16, 2017
 
JUDGMENT (PER SANGITRAO S. PATIL, J.) :

Being aggrieved by the judgment and order

dated 27.01.2006 passed in Sessions Case No.52 of

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2005 by the learned 1st Ad-hoc Addl. Sessions Judge,

Parbhani, convicting the appellant for the offence

punishable under Section 302 of the Indian Penal Code

("I.P.C.", for short) and sentencing him to suffer

imprisonment for life and to pay a fine of

Rs.25,000/-, the present appeal has been preferred.

2. The case of prosecution, in brief, is that

on 11.02.2005 at about 4.00 p.m., the appellant, the

deceased Madhav Uttamrao Awachar, one Prabhakar

Rangoba Awachar, Ashok Sahebrao Awachar and Bhagwat

Uttamrao Poul were gambling by playing a game called

"Nakkhi Dua" near the compound wall of Telephone

Office in front of the Regional Transport Office on

the left side of Parbhani to Vasmat road, running

West to East, at Parbhani. The informant namely,

Subhash Dattarao Awachar, who is the cousin of the

deceased Madhav, one Manohar Sahebrao Awachar and

Vishnu Sahebrao Awacher were watching that game. The

deceased Madhav placed a bet of Rs.10/- and won the

game. Therefore, he asked the appellant to pay him

3 cri.appeal.172-06

Rs.20/-. However, the appellant refused to pay that

amount to the deceased Madhav. On that count,

altercation and scuffle took place between them. The

informant and other persons, who were watching the

game, separated the appellant and the deceased

Madhav. At that time, the appellant took out a knife

from the watch-pocket of his pant and pierced it in

the chest of the deceased Madhav causing him a

bleeding injury. The deceased Madhav collapsed on the

ground. The informant and Vishnu Sahebrao Awachar

took the deceased Madhav to the Civil Hospital,

Parbhani in an auto-rickshaw. The Medical Officer

examined him and declared that he was dead.

3. The informant went to the Police out-post

situate in the premises of Civil Hospital and

intimated about murder of Madhav. He then went to his

village in the auto-rickshaw and came back to the

hospital along with his parents. At that time, P.S.I.

Shejal, Mondha Police Station, Parbhani, recorded

statement of the informant, which is treated as

4 cri.appeal.172-06

F.I.R. On the basis of that F.I.R., Crime No.37 of

2005 came to be registered against the appellant for

the offences punishable under Sections 302 and 504 of

the I.P.C. The investigation followed. Inquest of the

dead body of Madhav was prepared. His body was

referred to Civil Hospital for post-mortem.

Dr.Kankute conducted post-mortem on 11.02.2005

between 10.10 p.m. and 11.10 p.m. He noticed a

perforating stab injury in the chest of the deceased

Madhav. He opined that that Madhav died of 'Cardio-

respiratory failure due to hemorrhagic shock due to

puncturing stab injury to heart'. The spot panchnama

was prepared. Statements of witnesses were recorded.

Blood stained knife and full-pant and full-shirt of

the appellant came to be discovered pursuant to the

disclosure statement made by him. They were sent to

the Chemical Analyzer for analysis and report. The

said articles were found stained with blood of 'AB'

group, which was that of the deceased Madhav. After

completion of the investigation, the appellant came

5 cri.appeal.172-06

to be charge-sheeted for the offence punishable under

Section 302 of the I.P.C.

4. The case being triable by the Court of

Session, the learned Chief Judicial Magistrate

committed it to the Sessions Court for trial. It came

to be assigned to the 1st Ad-hoc Addl. Sessions Judge,

Parbhani. The learned trial Judge framed charge

against the appellant for the offence punishable

under Section 302 of the I.P.C. vide Exh.4 and

explained the contents thereof to him in vernacular.

The appellant pleaded not guilty and claimed to be

tried. His defence is that of total denial and false

implication on account of previous rivalry.

5. After scrutinizing the evidence adduced by

the prosecution, the learned trial Judge held the

appellant guilty of the above-mentioned offence. He,

therefore, convicted and sentenced the appellant for

the said offence, as stated above.

6 cri.appeal.172-06

6. The learned Counsel for the appellant

submits that the informant is the cousin of the

deceased Madhav. The informant had demanded

Rs.2,000/- from the appellant about eight days prior

to the date of the incident for purchasing a she-

buffalo. The appellant had refused to pay that amount

to the informant, therefore, their relations had

become strained. The informant had threatened the

appellant to complain against him for taking money

from the needy persons by falsely assuring them to

get their works done. Therefore, according to the

learned Counsel, the informant lodged a false F.I.R.

against the appellant. He submits that there has been

delay of three hours in lodging the F.I.R. Moreover,

there is delay of one day in sending copy of the

F.I.R. to the Magistrate. This delay has not been

explained by the prosecution. He submits that the

prosecution has examined only those witnesses who are

close relatives of the deceased Madhav. Some of the

witnesses did not support the prosecution. The

7 cri.appeal.172-06

evidence of the informant and other witnesses, who

tried to implicate the appellant for the offence of

murder, is not reliable. He, therefore, submits that

the appellant may be acquitted of the above-mentioned

offences.

7. In the alternative, the learned Counsel

submits that the incident had taken place on the spur

of moment without any pre- determination. The

appellant had no intention to kill the deceased

Madhav. In fact, both of them were good friends.

Their respective fathers also were good friends.

During the course of scuffle, under the heat of

anger, the appellant seems to have stabbed the

deceased Madhav. In the circumstances, relying on the

judgment in the case of Jagtar Singh Vs. State of

Punjab, 1983 CJ (SC) 139 and Abani K. Debnath Vs.

State of Tripura, 2005 CJ (SC) 11, he submits that at

the most, offence under Section 304 Part II of the

I.P.C. can be said to have been established against

the appellant. He submits that the appellant is a

8 cri.appeal.172-06

young person, who was aged about 22 years at the time

of the incident. He is a married person having

responsibility of his family. He has no criminal

antecedents. In the circumstances, the learned

Counsel submits that if the appellant is held guilty

for the offence punishable under Section 304 Part II

of the I.P.C., he may be shown leniency in the matter

of punishment.

8. On the other hand, the learned A.P.P.

submits that though the incident took place on a

trivial reason, the appellant gave a calculated blow

of knife on the vital part of the body i.e. chest of

Madhav, causing him serious injury to which, he

succumbed immediately after the incident. He submits

that the evidence of the informant is corroborated by

other witnesses. The appellant was friend of the

deceased Madhav. There was no enmity between the

informant and the appellant on any count. There was

no reason for the informant to lodge false F.I.R. and

9 cri.appeal.172-06

depose false against the appellant. He submits that

the evidence of the prosecution is quite sufficient,

cogent and clinching to establish guilt of the

appellant for committing murder of the deceased

Madhav. The medical evidence also supports the case

of the prosecution. According to him, the learned

trial Judge has rightly considered the evidence on

record and has rightly convicted and sentenced the

appellant. He, therefore, prays that the appeal may

be dismissed.

9. It has come in the evidence of the informant

that at the time of the incident, the appellant, one

Prabhakar Awachar, Ashok (PW 2)(Exh.14) and Bhagwat

(PW 5)(Exh.18) were gambling by playing a game called

"Nakkhi Dua". Vishnu (PW 3)(Exh.15), Manohar (PW 4)

(Exh.16) and himself were watching that game. After

sometime, the deceased Madhav also came there and

placed a bet of Rs.10/-. After winning in that game,

he asked the appellant to pay him Rs.20/-. The

appellant refused to pay that amount. Therefore,

10 cri.appeal.172-06

altercation and scuffle took place between them.

Ashok (PW 2) and himself separated them. Thereafter,

the appellant took out a knife from the watch-pocket

of his pant and pierced it in the chest of the

deceased Madhav. The deceased Madhav collapsed on the

ground. The appellant ran away therefrom. Blood

started oozing from the chest injury of the deceased

Madhav. He was taken to the Civil Hospital in an

auto-rickshaw. The Doctor examined him and declared

that he was dead.

10. It has come in the evidence of P.S.I. Shejal

(PW 9)(Exh.39) that after receiving a message from

the P.S.O. on his cell phone, that a person, who was

admitted in the Civil Hospital, Parbhani, was

murdered, he took entry in the station diary (Exh.48)

and went to the Civil Hospital, Parbhani. He states

that the informant narrated before him the manner in

which the incident took place. He reduced that

information into writing, as mentioned in the F.I.R.

(Exh.13) and went back to the Police Station.

11 cri.appeal.172-06

Thereafter, he registered the crime on the basis of

that F.I.R. (Exh.13).

11. As seen from the endorsement made on the

F.I.R. (Exh.13) as well as in the station diary

(Exh.48), the offence was actually registered at 7.00

p.m. on the day of the incident itself. As a matter

of fact, the F.I.R. (Exh.13) was recorded by P.S.I.

Shejal (PW 9) in the Civil Hospital, Parbhani much

prior to the registration of the crime in the Police

Station. The F.I.R. is running into two handwritten

pages. P.S.I. Shejal (PW 9) certainly must have

required some time for recording F.I.R. (Exh.13) in

the Civil Hospital, approaching Mondha Police Station

and then registering the crime. In the circumstances,

some delay in registering the crime in the Police

Station would be of no consequence. There is nothing

on record to show that the informant narrated the

incident as mentioned in the F.I.R. (Exh.13), on the

say of anybody else, who wanted to falsely implicate

the appellant in the incident in question. The

12 cri.appeal.172-06

informant has flatly denied that he ever had demanded

Rs.2,000/- from the appellant, the appellant refused

to pay that amount to him and therefore, he had a

grudge against the appellant. This reason suggested

on behalf of the appellant is not at all probable and

natural. It has come in the cross-examination of the

informant that the appellant and the deceased Madhav

were friends. Their respective fathers also were

friends. If that be so, there was no reason for the

informant to lodge a false report against the

appellant. There is no objectionable delay in lodging

the F.I.R. (Exh.13). The informant cannot be said to

have lodged false F.I.R. (Exh.13) against the

appellant. The evidence of the informant has been

corroborated by the contents of F.I.R. (Exh.13).

12. The copy of F.I.R. (Exh.13) seems have been

sent to the learned Chief Judicial Magistrate on

12.02.2005. As stated above, the crime was registered

on 11.02.2005 at about 7.00 p.m. The copy of F.I.R.

was sent to the learned Chief Judicial Magistrate on

13 cri.appeal.172-06

the next working day. As such, there cannot be said

to be any delay in sending the copy of F.I.R. to the

learned Chief Judicial Magistrate.

13. Bhagwat (PW 5), who was gaming at the time

of the incident, fully corroborates the evidence of

the informant on all material particulars.

14. Ashok (PW 2), Vishnu (PW 3) and Manohar

(PW4) also are the eye witnesses to the incident.

Ashok (PW 2) supports the case of the prosecution in

his examination-in-chief, but in the cross-

examination, he took a somersault and resiled from

his previous statement. Vishnu (PW 3) and Manohar

(PW4) did not support the prosecution. Both of them

resiled from their previous statements. They have

been cross-examined by the learned A.P.P. The

evidence of P.S.I. Shejal (PW 9) proved the

statements made by them before him while recording

their statements under Section 161 of the Code of

Criminal Procedure, which have been denied by them

14 cri.appeal.172-06

before the Court. It is clear that they were won-over

by the appellant and therefore, did not support the

prosecution by changing their versions. Therefore,

their evidence would not create any doubt about the

case of the prosecution.

15. Dr.Kankute (PW 6)(Exh.28), who conducted

post-mortem of the body of the deceased Madhav on

11.02.2005 between 10.10 p.m. and 11.10 p.m. in the

Civil Hospital, Parbhani, deposes that he noticed

only one stab injury on the chest of the deceased

Madhav perforating left artery having size 2 cm. x 2½

cm. x 1½ cm. in 8 cm. deep. On internal examination,

he found perforating injury on pleura on left side.

He found perforating wound on pericardium. Heart was

containing bleeding clots with stab injury with left

artery having size 1½ x 1 cm. He opined that Madhav

died of cardio-respiratory failure due to hemorrhagic

shock due to perforating stab injury to heart.

Accordingly, he prepared memorandum (Exh.29) of the

post-mortem. He further opined that the above-

15 cri.appeal.172-06

mentioned injuries were possible by knife (Art.7)

shown to him. In his cross-examination, he denied

that the above-mentioned injuries were possible if a

person falls on pointed glass during scuffle. The

evidence of Dr.Kankute (PW 6) fully corroborates the

case of the prosecution that the death of Madhav was

homicidal and was the result of perforating injury in

the chest caused by a knife.

16. It has come in the evidence of Narayan (PW7)

(Exh.32) and Shejal (PW 9) that they prepared

panchnama (Exh.33) in respect of spot of the incident

and seized the samples of blood stained earth, blood

stained pebbles, paper and plain earth from the spot

of the incident under the same panchnama.

17. It has come in the evidence of Suresh (PW 8)

(Exh.35) and P.S.I. Shejal (PW 9) that on 03.03.2005

at about 4.00 p.m., when the appellant was in the

police custody, he gave a disclosure statement and

offered to produce his clothes and knife concealed

16 cri.appeal.172-06

under the roof of his farm-house. Accordingly, the

memorandum (Exh.36) of that statement was recorded.

They further state that the appellant took them to

his farm-house. He entered into his farm-house and

took out a knife (Art.7), full-shirt (Art.8) and

full-pant (Art.9), which were stained with blood,

from under the tin-roof of the farm-house. They

seized the said articles under panchnama (Exh.37).

Nothing has been elicited in the cross-examination of

these witnesses to doubt their evidence in respect of

discovery of above-mentioned articles pursuant to the

disclosure statement made by the appellant.

18. The informant as well as Bhagwat (PW 5)

identified the knife (Art.7) as the same that was

used by the appellant at the time of the incident for

causing hurt to the deceased Madhav.

19. The blood stained clothes of the deceased

Madhav were also seized. His blood sample was

collected. A.S.I. Kashibai (PW 10)(Exh.52) states

17 cri.appeal.172-06

that as per the directions of P.S.I. Shejal (PW 9),

she carried the seized articles of Crime No.37 of

2005 to the Chemical Analyst with letter (Exh.40).

P.S.I. Shejal (PW 9) states that the report (Exh.41)

is in respect of the seized articles, while C.A.

report (Exh.42) is in respect of the blood sample of

the deceased Madhav. The blood group of the deceased

Madhav was 'AB'. The knife (Art.7) and pant (Art.8)

of the appellant, which were seized at his instance,

vide panchnama (Exh.37), were found to have stained

with blood of 'AB' group. This is an an additional

circumstance to connect the appellant with the

incident in question.

20. As stated above, there is direct as well as

circumstantial evidence to connect the appellant with

the incident in question. The said evidence is quite

natural and reliable. The learned trial Judge has

rightly appreciated the said evidence and rightly

held that the appellant pierced knife in the chest of

the deceased Madhav causing him serious injury, to

18 cri.appeal.172-06

which he succumbed.

21. Now, the question is whether, the offence of

murder made punishable under Section 302 of the

I.P.C. has been established against the appellant.

From the ocular evidence, it is clear that the

altercation and scuffle took place between the

appellant and the deceased Madhav on a trivial ground

that the appellant refused to pay Rs.20/- to the

deceased Madhav against his bet of Rs.10/-, which he

had won in the game. It seems that during the course

of the scuffle on that count, the appellant, in the

heat of passion, stabbed the knife in the chest of

the deceased Madhav. It was a single blow of knife.

The appellant cannot be said to have taken undue

advantage or acted in unusual manner. In the case of

Jagtar Singh (supra) cited by the learned Counsel for

the appellant, the accused, in a trivial quarrel,

wielded a weapon like knife and landed a blow thereof

in the chest of the deceased Narinder Singh.

Considering this fact, it was held that the accused

19 cri.appeal.172-06

was liable to be convicted for the offence punishable

under Section 304 Part II of the I.P.C. and not under

Section 302 of the I.P.C. In the case of Abani K.

Debnath (supra) cited by the learned Counsel for the

appellant, the accused were convicted for the offence

punishable under Section 302 read with Section 34 of

the I.P.C. It was noticed that the death had been

preceded by mutual fight over a trifle matter of

grazing of cows. During the course of scuffle, the

accused namely Abani Debnath rushed to the spot and

gave 'Dao' blow on occipital region of the deceased,

who died after five days of the incident. The Doctor

opined that the cause of death was head injury and

spinal injury in cervical region. It was held that

in the facts and circumstances of the case, no

offence under Section 302 of the I.P.C. can be said

to have been disclosed and consequently, the accused

had been convicted for the offence punishable under

Section 304 Part II of the I.P.C.

20 cri.appeal.172-06

22. In the present case also, there was no per-

meditation or malice on the part of the appellant

prompting him to think of causing death of the

deceased Madhav. As a matter of fact, the deceased

Madhav and the appellant were friends. The incident

took place on a very trivial ground followed by a

scuffle. During the course of this scuffle, under the

heat of passion, the appellant inflicted a single

blow of knife in the chest of the deceased Madhav

causing him serious injury, to which he succumbed.

In the circumstances, Exception 4 under Section 300

of the I.P.C. would be applicable to the facts and

circumstances of the present case, wherein it is

stated that culpable homicide is not murder if it is

committed without premeditation in a sudden fight in

the heat of passion and without the offender having

taken undue advantage or acted in a cruel or unusual

manner. We, therefore, hold that the appellant cannot

be said to have committed offence of murder made

21 cri.appeal.172-06

punishable under Section 302 of I.P.C. The appellant

committed culpable homicide not amounting to murder

and can be said to have inflicted blow of knife on

the chest of the deceased Madhav with the knowledge

that it was likely to cause death, but without

intention to cause death, or cause such bodily injury

as is likely to cause death. Thus, the present case

would fall under the four-corners of Section 304 Part

II of the I.P.C. The prosecution has established

guilt of the appellant beyond reasonable doubt for

offence punishable under Section 304 Part II of the

I.P.C. Considering the serious consequences of the

act of the appellant, we are not inclined to extend

him the benefit of Probation of Offenders Act.

23. The appellant was aged of 22 years of age at

the time of the incident. He is a married person and

has responsibility of his family. The incident took

place under the heat of passion during the course of

the scuffle without any intention on the part of the

appellant to cause death of Madhav. The appellant

22 cri.appeal.172-06

does not have any criminal antecedents. In the

circumstances, we think fit to show some leniency in

the matter of inflicting punishment. However, while

showing leniency to the appellant, agonies of the

widow and children of the deceased Madhav cannot be

ignored. They will have to be given some solace by

increasing the amount of fine, which would be paid to

them by way of compensation, if recovered. In our

view, it would be just and proper to sentence the

appellant with rigorous imprisonment for seven years

and to increase the amount of fine from Rs.25,000/-

to Rs.40,000/-.

24. In the result, we pass the following

order :-

(i)            The appeal is partly allowed.


(ii)            The   impugned   judgment   and   order   of 

conviction and sentence passed against the

appellant for the offence punishable under

Section 302 of the Indian Penal Code, are

23 cri.appeal.172-06

quashed and set aside. Instead, he is

convicted for the offence punishable under

Section 304 Part II of the Indian Penal Code

and is sentenced to suffer rigorous

imprisonment for seven years and to pay a

fine of Rs.40,000/- (Rs.Forty Thousand), in

default to suffer rigorous imprisonment for

one year.

(iii) The appellant shall surrender to his bail

bonds before the trial Court, within a

period of two weeks from today, for

undergoing the sentence passed against him

by this order.

(iv) If the appellant fails to appear before the

trial Court within two weeks from today,

then the trial Court shall issue coercive

process to secure his presence.

(v) The appellant be given set off in respect of

the period of imprisonment suffered by him

24 cri.appeal.172-06

in connection with the present case vide

Section 428 of the Code of Criminal

Procedure.

(vi) The amount of fine, if recovered, be paid to

the widow of the deceased Madhav, namely

Mirabai wd/o. of Madhav Awachar, r/o.

village Kargaon, Tq. and Dist.Parbhani.

(vii) The appeal is accordingly disposed of.

[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]

kbp