Ravindra S/O. Sahebrao Babre (In ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 8269 Bom

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

                         Criminal Appeal No. 77 of 2017

Ravindra s/o Sahebrao Babre,
Aged about 42 years, Occ :- Tailor, 
R/o ; Belora (Khurd), Tahsil Arvi, 
District - Wardha.  (In Jail)                                                .... Appellant

      //  Versus //

The State of Maharashtra,
Through Police Station Officer, 
Police Station Talegaon (Sh.), 
District - Wardha.                                                        .... Respondent

Shri R. M. Daga, Advocate for the appellant 
Shri V. P. Gangane, Additional Public Prosecutor for the respondent 

                                            CORAM      :  R. K. DESHPANDE AND
                                                              M. G. GIRATKAR, JJ.

DATE : 31-10-2017.

ORAL JUDGMENT (Per : M. G. GIRATKAR, J.)

Appellant was chargesheeted by Police Station, Talegaon

(Sh.), District Wardha for the offences punishable under Sections 302

and 323 of the Indian Penal Code.

2. The case of the prosecution in short is as under :

(i) Deceased Kusum Babre was the mother of appellant and P.W. 1

Nandkishor. Accused was residing adjacent to the house of Nandkishor.

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Mother   Kusum   was   residing   with   P.W.   1   Nandkishor.     Accused   was

residing with his wife and children. Accused/appellant was addicted to

liquor. He always used to quarrel with his brother and wife. He also

used to demand money from his wife and mother for consuming liquor.

(ii) On 16-7-2013, P.W. 1 Nandkishor had been to Pandharpur and

returned on 23-7-2013. On 25-7-2013, wife of accused obtained loan of

Rs. 15,000/- from Basic Bank. Appellant was demanding the said

amount from his wife for consuming liquor and used to assault her on

that count. In that night, due to fear, wife of appellant went to the house

of another person.

(iii) On the next day i.e. on 26-7-2013, in the morning, appellant

started quarrel with his brother Nandkishor saying that he had given

shelter to his wife. Again at about 3.00 p.m., he came to his house.

Appellant kicked on the door and entered into the house of Nandkishor.

After entering into the house, appellant started assaulting Nandkishor.

Nandkishor sustained injuries on his cheek and face. Deceased mother

came there to pacify the quarrel. That time, appellant threatened P.W. 1

to kill him and his mother. P.W. 1 caught hold the appellant. Appellant

rescued from P.W. 1's clutches and went to his house. He brought one

sword stick from his house. He came to the house of Nandkishor.

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Thereafter appellant chased his mother. Mother ran towards a lane. In

the lane, accused/appellant assaulted deceased mother by sword stick

and thereafter ran away.

(iv) Deceased was unconscious. Nandkishor with the help of villagers

lifted his mother in a rickshaw and took her to Government Hospital,

Arvi. Medical Officer declared her brought dead. Thereafter P.W. 1 went

to the Police Station and lodged the report, Exhibit 19. Crime was

registered vide First Information Report, Exhibit 20.

(v) Investigation started by Investigating Officer P.W. 7 API Sarin

Durge. Dead body was sent for post mortem. Medical officer Dr. Gunjan

Kolhe conducted the post mortem. As per his opinion, cause of death

was due to stab injury over left kidney. Investigating Officer also

referred Nandkishor for medical examination. Medical Officer Dr. Kolhe

examined him and found four superficial injuries. Accordingly, he issued

Medical Certificate, Exhibit 68.

(vi) As usual, spot panchanama, seizure panchanama was done by the

Investigating officer. He has recorded statements of witnesses. After

complete investigation, charge-sheet filed before the Judicial Magistrate

First Class, Arvi. As the offence punishable under Section 302 of the

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Indian Penal Code is exclusively triable by the Court of Sessions, the case

was committed to the Court of Sessions.

(vii) Charge was framed by the Sessions Court at Exhibit 10 for the

offences punishable under Section 302 and 323 of the Indian Penal Code.

Same was read over and explained to the accused/appellant to which he

pleaded not guilty and claimed to be tried. Prosecution has examined in

all total 8 witnesses. Appellant also examined his wife as a defence

witness. As per evidence of defence witness, P.W. 1 himself committed

murder of deceased Kusum.

(viii) Learned Sessions Judge after examining the evidence on

record relied on the evidence of P.W. 1 and convicted the accused/

appellant for the offences punishable under Sections 302 and 323 of the

Indian Penal Code and sentenced him to suffer rigorous imprisonment for

life and to pay a fine of Rs. 3,000/-, in default, to suffer simple

imprisonment for six months. Appellant is also convicted for the offence

punishable under Section 323 of the Indian Penal Code, but no separate

sentence is passed. Being aggrieved by the judgment of conviction dated

30-11-2016 in Sessions Case No. 272 of 2013, appellant filed the present

appeal.

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3. Heard learned counsel Shri R. M. Daga for the appellant. He

has only submitted that it is not the case of 302 of the Indian Penal Code.

There was quarrel between two brothers i.e. P.W. 1 and appellant

himself. Deceased mother tried to pacify the quarrel. Appellant lost his

control, brought a sword stick and gave only one blow to the deceased.

Learned counsel Shri Daga has submitted that as per the post mortem

report, only one injury was found on the back of deceased. It is not a

vital part. Appellant had no any intention to cause death of deceased,

hence, case is covered under Section 304 Part II of Indian Penal Code. At

last, learned counsel Shri Daga has submitted that appellant at the most

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

Indian Penal Code. In support of his submission, he pointed out decision

in the case of Ravindra Shalik Naik and ors. Vs. State of Maharashtra

reported in 2009 ALL MR (Cri) 1798 (S.C.).

4. Heard Shri V. P. Gangane, learned Additional Public

Prosecutor for the State/respondent. He has submitted that appellant

had intention to kill deceased. There was quarrel between P.W. 1 and

appellant. Deceased tried to pacify the quarrel. Thereafter appellant

went to his house, brought sword stick, chased his mother/deceased and

gave blow of sword stick. Learned Additional Public Prosecutor has

submitted that appellant had knowledge and intention to kill deceased,

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hence appeal is meritless and liable to be dismissed.

5. Perused the evidence on record. Case of prosecution is based

on evidence of P.W. 1. Evidence of P.W. 1 is well corroborated by the

evidence of P.W. 8 Dr. Gunjan Kolhe, Medical Officer.

6. As per evidence of P.W. 1, appellant quarreled with him in

the morning saying that P.W. 1 gave shelter to his wife in the night.

Again appellant came to his house. At the time of incident in the

afternoon, he kicked the door. He beat P.W. 1. That time, deceased

mother tried to pacify appellant and P.W. 1. Appellant went to his house

and brought sword stick. He chased deceased mother and gave one

blow. P.W. 1 has not stated anything more.

7. Evidence of P.W. 1 shows that there was quarrel between

himself and appellant. There was no any quarrel between deceased and

appellant and therefore, there was no any reason for the appellant for

having any intention to kill his mother. Evidence of P.W. 1 itself shows

that in a heat of passion, appellant gave blow of sword stick to the

deceased.

8. Evidence of P.W. 1 is well supported by P. W. 8 Dr. Gunjan

Kolhe. He has stated in examination-in-chief that he conducted post

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mortem of the dead body of deceased Kusum and found only one stab

wound over back on left side of size 2.01 cm x 0.7 cm x cavity deep

which was situated 11 cm lateral to lumber vertebram, 23 cm below

lower angle of scapula and 13 cm medial to anterior superior iliac spine

over back. During internal examination, he found 500 to 600 ml of blood

and stab wound present over hilar region of size 2 cm x 0.5 cm. As per

his opinion, cause of death was hypovolumic shock due to stab injury

over left kidney.

9. There is no dispute that death of deceased is homicidal.

Whether it is a murder punishable under Section 302 or the offence

punishable under Section 304 Part II is to be decided on the basis of

evidence on record.

10. From the perusal of evidence of P.W. 1, it is clear that

appellant had no any quarrel with the deceased. There was quarrel

between appellant and P.W. 1. Deceased tried to intervene for pacifying

quarrel between her sons. P.W. 1 has not stated anything which shows

that there was any previous quarrel of the appellant with deceased. The

evidence on record do not show that appellant had any intention to kill

deceased. On the other hand, evidence of P.W. 1 itself shows that there

was quarrel between himself and appellant. Because of the intervention

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of deceased, appellant lost control and gave blow of sword stick to his

mother(deceased). It was a single blow. Unfortunately, it caused the

death.

11. As per the evidence of Medical Officer Dr. Gunjan Kolhe, it is

clear that appellant had no any intention to kill his mother. In cross-

examination, he has admitted that injury no. 1 mentioned in column

no. 1 of post mortem report is serious one. Kusum might have died due

to this injury. If any person had intention to commit murder, then article

no. 3 i.e. sword stick might have travelled across the body. If any person

gives a blow of the weapon like sword stick, then the weapon may travel

across the body if he wants to do so. The weapon/sword stick might

accidentally reached up to the kidney. This particular admission of the

Medical Officer clearly shows that appellant had no any intention to kill

his mother. If really he had intention to kill, then he would have given

blow forcefully and weapon would have travelled across the body.

Moreover, it was a single blow given by the appellant. Therefore, it is

clear that appellant had no any intention to kill his mother.

12. In the case of Ravindra Shalik Naik and ors. Vs. State of

Maharashtra (cited supra), the Hon'ble Supreme Court has observed as

under :

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"6. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be

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deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat [2003 (5) Supreme 223], Parkash Chand v. State of H.P. (2004 (11) SCC 381), Byvarapu Raju v. State of A.P. and Anr. (2007 (11) SCC 218) and Buddu Khan v. State of Uttarakhand (SLP (Crl.) No. 6109/08 disposed of on 12.1.2009)."

13. In the present case, the appellant had no previous enmity.

There was no any motive to kill the deceased. Deceased was mother of

appellant. The real quarrel was between P.W.1 and the appellant.

Unfortunately, mother-deceased tried to pacify the quarrel and in a heat

of passion, appellant gave one blow of sword stick on the back of

deceased. Unfortunately, that blow caused the injury to kidney and,

therefore, mother died. Hence, it is clear that appellant had no any

intention to kill his mother. But it is clear that deceased died due to the

injury caused by appellant. Hence, he has committed the offence

punishable under Section 304, Part II of the Indian Penal Code. Hence

we pass the following order.

      (i)      Appeal is partly allowed.

      (ii)     Conviction of appellant for the offence punishable under

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Section 302 of the Indian Penal Code is hereby quashed and set

aside.

(iii) Appellant is convicted for the offence punishable under

Section 304 Part II of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for five years and to pay a fine of

Rs. 3,000/-, in default of payment of fine, to suffer rigorous

imprisonment for six month.

(iv) Conviction of appellant for the offence punishable under

Section 323 of the Indian Penal Code is maintained.

      (v)      Both sentence to run concurrently. 

      (vi)     R & P be sent back to the Sessions Court.

(vii) Appellant is in jail from 26-7-2013, therefore, set off be

given as per the provisions of Section 428 of the Code of

Criminal Procedure.

                       JUDGE                                       JUDGE




wasnik




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