Vijay S/O. Gobarsingh Pawar (In ... vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 11630 Bom

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

                         CRIMINAL APPEAL NO. 258 OF 2018

  Vijay S/o. Gobarsingh Pawar,
  Aged about 52 years,
  R/o. Ramgao Haru, Tah. Darwha,
  Dist. Yavatmal.
  (In Amravati Jail)                                                      . . . APPELLANT

                         ...V E R S U S..

  The State of Maharashtra through
  Police Station Officer,
  Police Station Darwha,
  Dist. Yavatmal.                                                      . . . RESPONDENT

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 Shri R. M. Daga, Advocate for appellant.
 Shri S. M. Ghodeswar, A.P.P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 24.08.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Through this appeal, the appellant has challenged the

judgment and order dated 09.01.2018 passed by Additional Sessions

Judge, Darwha in Sessions Trial No. 11/2017, convicting and

sentencing him in the manner stated hereinafter:-

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Under Section 302 of the Indian Penal Code, 1860 to

undergo imprisonment for life and to pay a fine of Rs. 1000/-, in

default to undergo 3 months of rigorous imprisonment.

3. In short, the prosecution case runs as under :-

The accused and deceased- Vijay Bhimrao Chavan were

residing at village Ramgaon Haru, Tah. Darwha, Dist. Yavatmal. On

23.02.2017, at around 7.00 p.m., there was quarrel between the

accused and the deceased on the ground that the deceased had seen

the wife of the accused with bad intention. Sukhchand Chavan (PW8)

and Dhanraj Chavan (PW16) intervened in the said quarrel and

separated the accused and the deceased. Thereafter, the deceased was

proceeding towards his house however, the accused went to his house

and brought sickle and gave blow of sickle on the back side of neck of

the deceased. The deceased sustained bleeding injury over back side

of the neck and died within few minutes. Bhimrao Chavan (PW4),

father of the deceased, lodged oral report, which was registered as

First Information Report No. 51/2017. Dipal Kankredwar (PW17), PSI

at Police Station Darwha conducted the investigation. After completion

of the investigation, the Investigating Officer filed charge-sheet with

Judicial Magistrate First Class. Since, the offence under Section 302 of

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

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the learned Magistrate committed the case to the Court of Sessions as

per Section 209 of the Code of Criminal Procedure.

4. The learned Sessions Judge framed charge against the

accused, which was explained to the accused in vernacular and for

which accused pleaded not guilty. The defence of the accused is of

total denial and false implication.

5. During the trial, the prosecution examined 20 witnesses

out of which, Sukhchand (PW8) and Dhanraj (PW16) are eye-

witnesses. The learned Trial Judge believed the evidence of the two

eye-witnesses- Sukhchand (PW8) and Dhanraj (PW16) and relying on

other circumstantial evidence convicted the appellant in the manner

stated in paragraph no. 2 above.

6. We have heard Shri R. M. Daga, learned Advocate for the

appellant and Shri S. M. Ghodeswar, learned A.P.P. for respondent/

State.

7. Shri R. M. Daga, learned Advocate for the appellant

submitted that the conviction of the appellant is based on surmises and

conjuncture. He invited our attention to the statement of Sukhchand

(PW8) and Dhanraj (PW16) and submitted that their evidence does

not inspire confidence. He submitted that in any case, the assault on

the deceased by the accused was without premeditation and the

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appellant has not taken undue advantage and therefore, the appellant

can be convicted for offence under Section 304, Part-I of the Indian

Penal Code.

8. Shri S. M. Ghodeswar, learned A.P.P. for State invited our

attention to the testimonies of Sukhchand (PW8) and Dhanraj (PW16)-

eye-witnesses. He submitted that the testimonies of eye-witnesses

inspire confidence. He submitted that the learned Trial Judge is

perfectly justified in convicting and sentencing the accused for offence

under Section 302 of the Indian Penal Code.

9. We have perused the entire material on record and in our

opinion, the appeal needs to be partly allowed.

10. We have gone through the testimonies of two eye-

witnesses i.e. Sukhchand (PW8) and Dhanraj (PW16) and we find that

so far as the involvement of the appellant in the incident is concerned,

the same in our view is proved by the ocular account furnished by

Sukhchand (PW8) and Dhanraj (PW16). Both these witnesses, in one

breath, stated that they saw the accused and the deceased abusing

each other in front of the house of the accused. It is stated that the

accused was angry due to the fact that the deceased was looking

towards the wife of the accused with bad intention. The initial quarrel

between the accused and the deceased was stopped by Sukhchand

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(PW8) and Dhanraj (PW16) but, thereafter the accused went to his

house and brought sickle and gave blow of sickle on the back side of

neck of the deceased resulting into death of the deceased.

11. The eye-witnesses- Sukhchand (PW8) and Dhanraj

(PW16) being relative of the deceased, their testimonies need deeper

scrutiny, which we have exercised and on great circumspection we find

that testimonies of both the eye-witnesses are implicitly truthful.

12. The injury sustained by the deceased are supported by

medical evidence of autopsy surgeon Dr. Pravin Wadhwe (PW20), who

conducted post-mortem on the corpse of the deceased. According to

Dr. Pravin Wadhwe (PW20), the deceased was having incised wound of

size 4 inch X 2 inch over left side of the neck below occipital region.

According to Dr. Pravin Wadhwe (PW20), the injury was anti-mortem

and sufficient to cause death of a person. Dr. Pravin Wadhwe (PW20)

proved the post-mortem (Exh.69). He stated that injury over the neck

of the deceased is possible by the seized sickle.

13. In addition to the credible evidence referred to above, we

have bonus evidence against the appellant in the form of recovery of

sickle at his pointing out. The sickle is discovered by the accused in

presence of independent witness- Purushottam Raut (PW5). The

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accused made disclosure statement regarding concealing of sickle in

his house in the bag having 'Tur'.

14. The prosecution, in addition to the above evidence,

examined Dr. Ashish Kadam (PW18) to prove the injury suffered by the

accused while assaulting the deceased. Dr. Ashish Kadam (PW18)

examined the accused on 24.02.2017 and found abrasion over his left

ankle and swelling over right eye brow. He proved injury certificate

(Exh.66).

15. In our view, the evidence referred to above conclusively

establishes the involvement of the appellant in the crime. In our view,

the learned Trial Judge acted correctly in concluding that the

prosecution has squarely established the involvement of the appellant

in the crime.

16. This leave us with only one question, namely that of the

offence. We have reflected over it and in our view considering overall

circumstances, the learned Trial Judge erred in convicting the

appellant for the offence under Section 302 of the Indian Penal Code

and instead he should have convicted the accused for one under

Section 304, Part-I of the Indian Penal Code.

17. According to the prosecution, the assault on the deceased

was not due to any per-existing vendetta on the part of the appellant

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against the deceased. The evidence of the eye-witnesses show that the

appellant got enraged due to the fact that the deceased had seen wife

of the accused with bad intention. Therefore, initially they quarreled

with each other and in that rage, the appellant went to his house and

brought sickle and assaulted the deceased. The deceased suffered one

fatal injury.

18. Shri R. M. Daga, learned Advocate for the appellant

placed reliance on the judgment of Apex Court in the case of Ravindra

Shalik Naik Vs. State of Maharashtra [2009 ALL MR (Cri.) 1798

(S.C.)], wherein the Apex Court held that Exception 4 of the Section

300 of the Indian Penal Code can be invoked if death is caused by :-

(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.

19. It is observed by the Apex Court that heat of passion

requires there must be no time for passion to kill. In the facts of the

present case, we are satisfied that manner of assault stated by

Sukhchand (PW8) and Dhanraj (PW16) show that assault on the

deceased by the accused was without premeditation and was result of

sudden fight, as the deceased had seen towards the wife of the accused

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with bad intention. The testimonies of eye-witnesses do not show that

the accused has taken undue advantage and acted in cruel or unusual

manner.

20. In our view, considering the aforesaid facts, it would be

appropriate to held that offence under Section 304, Part-I of the Indian

Penal Code is made out against the appellant. This leave us with only

one question namely quantum of sentence to be awarded to the

appellant under Section 304, Part-I of the Indian Penal Code. From

perusal of the impugned judgment, it appears that the appellant has

been in jail continuously since 23.02.2017. Considering the

background facts, in our opinion, the custodial sentence of 10 years

would meet the ends of justice.

21. In the result and for the reasons recorded above, the Court

passes the following order: -

 (i)              The appeal is partly allowed.

 (ii)             Judgment and order dated 09.01.2018 passed by learned

Additional Sessions Judge, Darwha in Sessions Trial No. 11/2017

thereby convicting the appellant for an offence punishable under

Section 302 of the Indian Penal Code is quashed and set aside.

(iii) Instead, the appellant is convicted for the offence

punishable under Section 304, Part-I of the Indian Penal Code and his

sentence shall be ten years imprisonment.

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              (iv)             The appellant be given benefit of set off under Section 428

              of the Code of Criminal Procedure.




                               JUDGE                                  JUDGE




RR Jaiswal