Smt.Gangubai Kashinath Kamble vs The State Of Maharashtra
2021 Latest Caselaw 17805 Bom

                                                                       Judgment.Cr.Apeal.351.1998.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 351 OF 1998

Gangubai Kashinath Kamble,                                    ...Appellant
Convict No. B-20.                                            (Orig. Accused)
        Versus
The State of Maharashtra                                     Respondents
                                                         (Orig. Complainant)

                          ***
Mr. Veerdhawal Deshmukh, appointed for the Appellant.
Ms. S.V. Sonawane, APP for Respondent - State.
                          ***

                                               CORAM :       PRASANNA B. VARALE &
                                                             N.R. BORKAR, JJ.

                                    RESERVED ON :            AUGUST 04, 2021.
                                  PRONOUNCED ON :            DECEMBER 22,2021.

JUDGMENT (PER PRASANNA B. VARALE, J)

1. Being aggrieved by the judgment and order

passed by the learned Additional Sessions Judge, Pune,

in Sessions Case No. 365/1994, dated 24th February,

1995, whereby Appellant herein (Original Accused) who

was convicted for the offences punishable under

Sections 302 of the Indian Penal Code (for short

"IPC"), and sentenced to suffer imprisonment for life

and also to pay fine of Rs. 100/- in default to suffer

further R.I. for one year, preferred the present

Appeal.

Umesh Malani PAGE 1 OF 28

Judgment.Cr.Apeal.351.1998.doc

2. The case of prosecution rests on the oral and

documentary evidence in the form of five witnesses

examined by the prosecution in support of its case and

the documents in the form of injury certificate,

postmortem report, various panchnamas and CA report.

The accused in her defence examined one witness. The

prosecution in support of its case heavily relied on

two dying declarations.

3. The case of prosecution, in brief, can be

summarized as under:

Accused - Appellant was residing with her

husband, son Shivshankat at one tenement marked as 9/8

'B' type, Range-Hills, Khadki, Pune. Her husband

Kashinath was working as labourer in the Ammunition

Factory, Khadki and was receiving a meager salary of

2,000/- and this meager salary was further subjected to

various deductions. After all deductions, Kashinath was

getting salary of Rs. 600 cash in hands. This amount of

Rs. 600 per month was wholly insufficient for the wife

i.e. Appellant to run the house. On account of this

disproportion namely, the requirement of money for the

expenses as against the meager amount of Rs. 600 being

Umesh Malani PAGE 2 OF 28

Judgment.Cr.Apeal.351.1998.doc

received by the Kashinath in which the Appellant was to

run the house, was always a reason of quarrels between

the couple. These quarrels also led to two complaints

being lodged by the Appellant against her husband in

the police station. The unfortunate incident took place

on 10.06.1994.

4. The deceased-Kashinath along with his grand-

daughter went to the Ammunition Factory to collect the

amount of his salary. As soon the deceased came out of

the factory, the accused who was waiting outside, asked

the deceased for payment. The deceased replied that he

received the salary of Rs. 50 only after all

deductions. The couple then proceeded to market for

purchasing some sweets for grand-daughter. Then they

dropped grand-daughter in the matrimonial house of

their daughter and returned back to their residence at

about 10.00 pm. The deceased asked the Appellant to

cook the food to which Appellant asked the deceased to

give her money so as to make arrangements for cooking

food. The deceased expressed his inability. This

exchange of words led to quarrel between the couple. It

is the case of the prosecution that the accused hurled

Umesh Malani PAGE 3 OF 28

Judgment.Cr.Apeal.351.1998.doc

abuses and by pouring kerosene on the person of her

husband and by igniting matchstick from the match box

set him on fire. The deceased who was subjected to the

burns started shouting. One Rakesh Pilley (PW 2) who

happened to be sub-tenant of the deceased opened the

door of his room and found that the deceased in flames

whereas Appellant was standing. Rakesh (PW 2) asked her

mother to bring blanket. Meantime, the deceased and

Appellant both came on the ground floor. Rakesh (PW 2)

who was having blanket also got down on the ground

floor and wrapped the deceased in the blanket so as to

extinguish flames. One Amol Thorat (PW 1) who had

parked his handcart and was talking to one resident of

the area also witnessed the incident. While Rakesh was

wrapping the deceased in blanket, he told him that his

wife set him on fire and ran away.

5. Meantime, mother of Rakesh made a phone call

to police. Then police immediately reached on the spot

and took the deceased to Military Hospital, Khadki. PSI

Narayan Kamthe (PW 3) who was attached to Khadki Police

Station at the relevant time on receipt of the

information rushed to Military Hospital and in presence

Umesh Malani PAGE 4 OF 28

Judgment.Cr.Apeal.351.1998.doc

of one D.B. Mokashi, Nursing Assistant working in the

Military Hospital recorded the statement of the

deceased and the same was treated as first information

report and offence was registered as Crime No. 126/94

under Section 307 of IPC. As the deceased was subjected

to burns and was admitted in the hospital, Shri A.R.

Patil, JMFC, Khadki was requested to record the dying

declaration of the deceased by Khadki Police.

Accordingly, A.R. Patil, JMFC visited the Military

Hospital and after ascertaining the consciousness and

fit state of mind of the deceased recorded the

statement i.e. dying declaration Exh. 30.

6. The appellant came to be arrested on

11.06.1994 and was sent for medical examination. On

17.06.1994 at about 05.00 pm the deceased succumbed to

burn injuries and on receipt of this information, PSI

Dhone (PW 4) visited the Military Hospital and had

drawn inquest panchnama. The dead body of the deceased

was referred to Sassoon Hospital for postmortem. Dr.

Mahajan attached to Sassoon Hospital conducted the

postmortem on 18.06.1994 and issued the postmortem

report and advanced death certificate. The cause of

Umesh Malani PAGE 5 OF 28

Judgment.Cr.Apeal.351.1998.doc

death opined in these documents was due to shock and

result of burn injuries. In view of the postmortem

report and advanced death certificate as well as an

information received by Khadki Police Station about the

death of Kashinath, the offence under Section 307 was

altered to an offence under Section 302 of IPC. The

investigating agency which was set in motion on

registration of FIR took further steps in the

investigation such as, drawing necessary panchnamas,

recording statement of witnesses and after completion

of the investigating filing of charge-sheet in the

court of JMFC, Khadki. As the offences being

exclusively triable by the Court of Sessions, the

learned JMFC committed case to the Court of Sessions.

7. The charge was read over and explained to

accused, to which accused pleaded not guilty and

claimed trial. The defence of the accused was of total

denial and false implication. Learned Sessions Judge on

the basis of material before him in the form of

evidence, framed the following points for

consideration:

1. Does the prosecution prove that the death

Umesh Malani PAGE 6 OF 28

Judgment.Cr.Apeal.351.1998.doc

of deceased Kashinath on 17.6.1994 at 5-00 p.m. as indoor patient, was unnatural homicidal?

2. Does the prosecution prove that the accused on 10.6.1994 at about 10.30 p.m. in her residence caused burning injuries to deceased Kashinath by setting him on fire after pouring kerosene and committed his homicidal unnatural death?

3. Whether there was motive on the part of the accused to commit the murder of her own husband Kashinath?

8. Learned Sessions Judge, on appreciation of

evidence, answered all the points in affirmative and by

judgment and order awarded the conviction and sentence

to the Appellant.

9. The prosecution in support of its case

examined as many as 5 witnesses.

10. Firstly, we may refer to the evidence of PSI

Narayan Kamthe (PW 3), Investigating Officer, who

recorded the dying declaration first in point of time.

This witness in examination-in-chief deposed that he

was attahced to Khadki Police Station as PSI at the

Umesh Malani PAGE 7 OF 28

Judgment.Cr.Apeal.351.1998.doc

relevant time. He was on duty in Bopodi Police Chowky

on 10.06.1994. At night round about 11.00 pm when he

was on duty, he received information of burning of one

Kashinath Tayyappa Kamble. Therefore, he came to Range-

Hills, police chowky. In the police chowky, he learnt

that the burnt patient sent to Military Hospital,

Khadki. Therefore, he went to the said Hospital. The

burn patient Kashinath was admitted in ICU Ward No. 5.

He was conscious. Then this witness made inquiry with

him. He was in talking condition. AS per his narration,

this witness recorded his statement. While recording

his statement, Nursing Assistant of that Hospital,

Shri. P.B. Mokasi, was present. After recording the

statement, it was read over to the patient and he

admitted it to be true and correct. This witness

further stated that after he obtained his thumb

impression on the said statement. Nursing Assistant

Shri. P.B. Mokashi, also put his signature and this

witness also put his signature on it. Thereafter, he

sent the said statement to Khadki Police Station along

with his report for registration of offence. Then this

witness visited the scene of offence and prepared the

Umesh Malani PAGE 8 OF 28

Judgment.Cr.Apeal.351.1998.doc

spot panchnama.

In the cross-examination, this witness stated

that dying declaration at Exhibit 22 is not in his

handwriting and his writer scribed it as per his

dictation and there is no mention in Exhibit 22 that it

was scribed by his writer as per his dictation. Then

certain suggestions were given to effect that as per

declaration made by patient, this witness did not

dictate to his writer, then thumb mark of patient was

obtained on blank paper, doctor orally told him that

patient is conscious, then without obtaining oral

permission, he directly went to the hospital, all these

suggestions were denied. This witness admitted that

when this witness visited the patient, doctor was

sitting in his chamber and not near the patient. Doctor

did not examine the patient in his presence.

11. Now, we may refer to another important witness

i.e., Ashok Patil (PW 5), who recorded the second dying

declaration. In examination-in-chief, this witness

deposed before the Court that he received request

letter from Khadki Police in the night in between

10.06.1994 and 11.06.1994 around 01.20 a.m. for

Umesh Malani PAGE 9 OF 28

Judgment.Cr.Apeal.351.1998.doc

recording dying declaration of injured Kashinath

Kamble. Accordingly, immediately after receipt of the

said letter, he went to Military Hospital, Khadki. He

further deposed that the patient Kashinath was admitted

in the hospital having burn injuries. He was conscious

and in a position to speak. He himself ascertained the

fact of his consciousness and state of mind, by putting

question to the patient, whether he is able to speak.

Then the patient replied in the affirmative.

Thereafter, as per his narration, he recorded his dying

declaration at about 02.00 a.m. Then he obtained the

thumb impression of the patient on the said dying

declaration. Doctor on duty of the said hospital was

present during the period of recording dying

declaration. The name of the doctor is Lahiree and he

also put his signature on the dying declaration

recorded by this witness.

In the cross-examination, this witness stated

that at the time of recording the dying declaration,

police were not present. For recording the dying

declaration police took this witness to the hospital

only. Then a suggestion was given that at the time of

Umesh Malani PAGE 10 OF 28

Judgment.Cr.Apeal.351.1998.doc

recording the dying declaration at Exhibit 30, patient

was unconscious, this suggestion was denied.

12. Now we may refer to another set of witnesses

i.e., Amol Thorat (PW 1) and Rakesh Pilley (PW 2), the

eye witnesses, as claimed by the prosecution.

13. Amol Thorat (PW 1). This witness in his

examination-in-chief, stated that he deals in

vegetables on handcart in Jwala Mitra Mandal square. He

was knowing the deceased Kashinath Kamble. He was

residing at B type 9/8, Range-hills, Pune and the said

building is near to the spot, where he used to deal in

vegetables at square. He resides in B type 9/3 building

on the ground floor, whereas the deceased was residing

on the upper story on the said building. This witness

further deposed that on 10.06.1994, as usual he was

managing the business of vegetables in the square. At

night at about 10.30 p.m after his business, he went to

keep his handcart to the house of one Raju. After

parking the said cart, he was talking with one Dolas.

In the meantime, Kashinash Kamble came from the upper

story of his residence in burnt condition. Then Rakesh

Umesh Malani PAGE 11 OF 28

Judgment.Cr.Apeal.351.1998.doc

Pilley extinguish the fire by putting blanket on the

person of Kashinath. He wrapped Kashinath with blanket.

At that time, Kashinath Kamble was shouting and was

saying that his wife set him on fire and she ran away.

Then this witness disclosed the said fact to Raju

Kamble. This witness further stated that people of that

locality sent phone message to the police. Then police

and ambulance came there.

In the cross-examination, this witness stated

that he never visited to the house of accused. He

learnt from the people that deceased, his wife and son

were residing together. The deceased alone came from

his house. He was unable to tell the distance between

him and deceased Kashinath while he was coming from

upper story. This witness admitted that he was standing

at such distance that the voice of man cannot reach.

14. Rakesh Pilley (PW 2) is another eye witness.

This witness in examination-in-chief deposed before the

Court that in the month of June, 1994, he was residing

at B Type 9/8, Range-hills, Pune as sub-tenant of

deceased. Deceased was residing by the side of his

house. This witness deposed that on the day of incident

Umesh Malani PAGE 12 OF 28

Judgment.Cr.Apeal.351.1998.doc

i.e. on 10.06.1994 at night, he himself and his sister

were seeing the T.V. program and his mother was

sleeping. At about 10.30 somebody knocked the door. He

opened the door and saw appellant was standing in front

of Kashinath, who was burning. In the meantime, his

mother also came there and said that she will bring

water. But he asked her do not bring water, bring

Kambal. This witness further deposed that meantime,

Kashinath and his wife went towards the ground floor.

He then went along with blanket and wrapped around the

body of Kashinath and extinguished the fire. The

appellant was standing by the side. Then his mother

sent phone message to police. At that time, Kashinath

made declaration that his wife set him on fire.

In the cross-examination This witness stated

that the deceased Kashinath used to consume liquor and

was quarrelsome person.

15. Now, we may refer to the injuries found on the

person of Kashinath, as referred in postmortem

conducted by Dr. Mahajan on 18.06.1994. During the

postmortem following injuries were found on the dead

body:

Umesh Malani PAGE 13 OF 28

Judgment.Cr.Apeal.351.1998.doc

1. Superficial to deep burn injuries present involving complete face and neck.

2. Superficial to deep burn injuries present involving right upper limb complete upto tips of fingers.

3. Superficial to deep burn injuries involving left upper limb complete upto tips of fingers, on dorsal aspect, upto palm on flexer aspect. Ink mark seen over left thumb.

4. Superficial burn injuries involving complete chest wall and abdominal wall upto 2" below the level of umbilicus completely.

5. Superficial burn injuries over right lower limb complete upto base of toes.

6. Superficial burn injuries over left lower limb sparing only antero-catenal aspect of thigh apte knee.

7. Superficial to deep burn injuries involving complete back and buttocks. Pus like material seen on places.

8. Superficial wound or venesection over left cubital fossa, 3 sutures seen.

9. Surgical wound of venesection over left ankle, 3 sutures seen.

As per his opinion, total percentage of burns

were about 90%.

16. Now the last witness of prosecution is, PSI

Umesh Malani PAGE 14 OF 28

Judgment.Cr.Apeal.351.1998.doc

Dhone (PW 4), the investigating officer. This witness

stated that on 11.06.1994, he received the case papers

of crime no. 126/94 under Section 307, 504 of the IPC

from PSI. Kamthe, for further investigation. This

witness further stated about the steps taken by him in

the process of investigation such as, effecting arrest

of accused, recording the statement of witness, drawing

seizure panchnama, collecting CA report, drawing

inquest panchnama, etc.

17. The defence in his support examined

Shivshankar Kashinath Kamble (DW 1), son of deceased.

In examination-in-chief this witness stated that his

deceased father was suffering from T.B. He was always

consuming a liquor and Ganja. He was doing work in

Ammunition factory at Khadki. He further stated that he

was in debt. He further stated that the tenant Smt.

Pilley, told him to go as you are called by your

sister. When he was going to his sister, he saw her

parents who were quarreling on the road. Then he

pacified them and went to his sister. While returning

back, when he was purchasing a pan, his friend

disclosed him that his father set on fire. Then he sent

Umesh Malani PAGE 15 OF 28

Judgment.Cr.Apeal.351.1998.doc

phone message to Ammunition Factory. Then her mother

had been to police chowky.

In the cross-examination, this witness

admitted that appellant was angry with his father as he

was consuming liquor, so also, giving less money to

her. He further admitted that complaint was made by

appellant against the deceased to the police that he

used to beat her under the influence of liquor. As his

father was always beating to appellant, appellant was

fed up. He further stated that in the year 1988,

appellant tried to commit suicide by setting herself on

fire, as appellant was fed up with the harassment by

deceased.

18. Learned Counsel Mr. Deshmukh appointed for the

Appellant vehemently firstly submitted that the

evidence brought by the prosecution before the Court in

support of its case cannot be accepted. The witnesses

examined by the prosecution cannot be termed as eye

witnesses to the incident, is the submission of learned

Counsel for the Appellant. Learned Counsel for the

Appellant further submitted that it would be unsafe to

rely on the dying declaration to award conviction and

Umesh Malani PAGE 16 OF 28

Judgment.Cr.Apeal.351.1998.doc

sentence to the Appellant. Learned Counsel further

submitted that even assuming the version of witnesses

and dying declaration, this material show that the act

of the Appellant was not an act with premeditation.

Learned Counsel further submitted that the evidence

brought on record by the prosecution clearly show the

sequence of events such as, the Appellant asking her

husband about the salary and husband then replied that

he received only Rs. 50 after all the deductions,

thereafter the husband of the Appellant asked her to

cook food and she expressed her inability on account of

non-availability of the sufficient amount. Learned

Counsel further submitted that admittedly the exchange

of words between the Appellant and her husband led to a

quarrel and hurling abuses. Learned Counsel further

submitted that as the Appellant was constantly

subjected to the harassment by her husband who was

unable to take care of family expenses and the

Appellant was running her house for the entire month

with a meager amount of Rs. 600, led to sudden

provocation.

19.             Learned           Counsel            for     the      Appellant            further

Umesh Malani                                                                           PAGE 17     OF 28





                                                                         Judgment.Cr.Apeal.351.1998.doc

submitted that the evidence of defence witness clearly

show that the deceased husband of the Appellant was

carrying vices of i.e. he was addicted to liquor and

consuming Ganja. The evidence would also show that two

complaints were lodged at the instance Appellant

against her husband in the police station for

harassment and ill-treatment. Thus, learned Counsel

submitted that as act of the Appellant was not an act

of intention or premeditation. Learned Counsel further

submitted that the evidence brought on record clearly

show that the Appellant was fed up due to the poverty

suffered by her on account of meager earnings of the

husband and this meager earning was result of vices of

her husband. Learned Counsel further submitted that the

evidence clearly show that the dying declaration -

Exhibit 22 recorded by Narayan Kamthe (PW 3) is not in

his writing and in the cross-examination, the witness

admits that the statement was recorded by his writer

under his dictation. Learned Counsel further submitted

that though prosecution has placed reliance on oral

dying declarations, the oral dying declarations cannot

be relied upon for the reason that the said dying

Umesh Malani PAGE 18 OF 28

Judgment.Cr.Apeal.351.1998.doc

declarations were made in the presence of police. Thus,

learned Counsel for Appellant submitted that the case

against the Appellant would not fall under Section 302

of IPC but at the most would fall under Section 304(I)

of IPC.

20. Per contra, learned APP vehemently submitted

that the prosecution has brought on record clinching

evidence against the Appellant. Learned APP submitted

that no fault can be found in the dying declarations,

as the dying declarations comply with all the requisite

criteria. The dying declarations are recorded by

ascertaining fitness and the consciousness of the the

deceased. The first dying declaration was immediately

recorded by PSI Narayan Kamthe (PW 3) after

ascertaining the fitness of the patient. Similarly, the

second dying declaration is also reliable and truthful.

Learned APP submitted that the other independent

witnesses namely, Amol (PW 1) and Rakesh Pilley (PW 2)

who are the independent witnesses, have supported the

case of prosecution. Learned APP further submitted that

apart from the dying declarations recorded by Narayan

Kamthe (PW 3) and PSI Patil (PW 5), there is an oral

Umesh Malani PAGE 19 OF 28

Judgment.Cr.Apeal.351.1998.doc

dying declarations to Amol (PW 1) and Rakesh (PW 2).

Hence, learned APP prayed that the Appeal may be

dismissed.

21. With the assistance of both the learned

Counsel appearing for the respective parties, we have

gone through the record.

22. On hearing the learned Counsel appearing for

the respective parties, as well as on going through the

record, we are of the opinion that there is no reason

to disbelieve the witnesses and more particularly P.W.1

and P.W.2.

23. Now the question which falls for our

consideration is to whether the act of Appellant would

fall under Section 302 of IPC or under Section 304-I as

submitted by learned Counsel appearing for Appellant.

24. On perusal of the evidence brought on record,

we find considerable merit in the submissions of

learned Counsel for the Appellant.

25. The evidence brought on record would show that

the deceased Kashinath who was working in the

Umesh Malani PAGE 20 OF 28

Judgment.Cr.Apeal.351.1998.doc

Ammunition Factory and though his salary was Rs. 2,000,

he was receiving a meager salary of Rs. 600 after

various deductions. The record also shows that

Kashinath was subjected to vices. The evidence further

shows that due to the insufficient funds, it was

difficult for the Appellant to run her house.

26. The perusal of record would further show that

on the day of incident when the Appellant asked her

husband as to amount he earned as salary and the

husband replied that it was only Rs. 50 after all

deductions. The sequence of events further show that

the couple then purchased some sweets for their grand-

daughter and after going to home the deceased asked the

Appellant to prepare the food and then appellant

expressed her inability on account of non-availability

of money. Admittedly, this exchange of words led to an

quarrel and abuses and then led to the commissions of

crime at the hands of the Appellant.

27. There is also considerable merit in the

submission of learned Counsel for the Appellant that it

was an sudden provocation by the act of deceased

Umesh Malani PAGE 21 OF 28

Judgment.Cr.Apeal.351.1998.doc

Kashinath. It was also the submission of learned

Counsel for the Appellant that the case of accused

would fall under the exceptions to Section 300 of IPC.

28. To consider the above submission, for our

ready reference, we may reproduce the Section 300 of

IPC and exceptions as under:-

300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk

Umesh Malani PAGE 22 OF 28

Judgment.Cr.Apeal.351.1998.doc

of causing death or such injury as aforesaid.

Exception 1. When culpable homicide is not murder Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:--

First --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

                Thirdly           --That       the    provocation             is        not
               given       by      anything         done    in        the       lawful

exercise of the right of private defence. Explanation: Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Umesh Malani PAGE 23 OF 28

Judgment.Cr.Apeal.351.1998.doc

Exception 2 : Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3 : Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Umesh Malani PAGE 24 OF 28

Judgment.Cr.Apeal.351.1998.doc

Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5 : Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

29. It may be useful for our purposes to refer to

the observations in the judgment of the Hon'ble the

Apex Court in the case of K.M. Nanavati vs. State of

Maharashtra1 . While dealing with the term sudden and

grave provocation, the Hon'ble the Apex Court observed

in para 84 & 85 as under:

(84) Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. in short, the cultural, social and emotional background of the society to which an accused belongs............

               (85)      The       Indian    law,     relevant       to       the
1   AIR 1962 SC 605

Umesh Malani                                                                 PAGE 25     OF 28





                                                                       Judgment.Cr.Apeal.351.1998.doc

present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time or otherwise, giving room and scope for premeditation and calculation. (Emphasis supplied).

30. As observed by us, in the present matter the

Appellant wife of deceased was forced to run family

with wholly insufficient money in the form of a meager

amount of salary of the deceased husband. A demands of

Umesh Malani PAGE 26 OF 28

Judgment.Cr.Apeal.351.1998.doc

money, a quarrel between the couple, and hurling of

abuses was a routine. Appellant accused on two occasion

lodged complaint in the police station. Shivshankar

Kamble (DW 1), son of deceased and Appellant, in cross-

examination admitted that deceased was beating

appellant under the influence of liquor and Ganja.

Thus, it can be safely be said that the Appellant was

fed up with a miserable life and the sequence of events

dated 10.06.1994 turned out to be the last straw that

broke the camel's back.

31. Considering the aforesaid principles so also

the judgment of the Apex Court, we are of the opinion

that the case of prosecution against the accused would

fall under Section 304 (I) and not in Section 302 of

IPC. Hence, we pass the following order:

:ORDER:

1. Criminal Appeal is partly allowed.

2. The conviction recorded by learned Additional Sessions Judge, Pune by his order dated 24th February, 1995 in Sessions Case No. 365 of 1994 is altered from Section 302 of IPC to Section 304(I) of the IPC.

Umesh Malani PAGE 27 OF 28

Judgment.Cr.Apeal.351.1998.doc

3. The Appellant - Gangubai K. Kamble is held guilty for the offence punishable under Section 304(I) of IPC and sentenced to suffer rigorous imprisonment of 07 years. The order of the learned Sessions Judge in respect of fine and, in default of payment of fine amount, is confirmed.

4. We appreciate the assistance rendered by the learned Counsel Mr. Deshmukh appointed to prosecute the Appeal on behalf of the Appellant. We quantify the fees payable to him at Rs. 10,000/- (Rupees Ten Thousand only). The High Court Legal Services Committee, Mumbai is directed to pay the fees to learned Counsel Mr. Deshmukh within four weeks from today.

     (N.R. BORKAR,J.)                               (PRASANNA B. VARALE,J.)




Umesh Malani                                                                        PAGE 28     OF 28