Sham Timanna Gaikwad vs The State Of Maharashtra
2022 Latest Caselaw 4873 Bom

                                                                         Cri.Appeal.14.14.doc

Ajay
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 14 OF 2014

       Sham Timanna Gaikwad,
       Age : 40 years, Occ.: Labour,                                  Appellant
       Residing at Bhairu Vasti, Solapur.                        ..   (Orig. Accused No.1)


            Versus
       The State of Maharashtra,
       (Notice to be served on A.P.P. High Court,
       A.S., Bombay.)                                            .. Respondent

                                   ....................
        Mr. Lokesh Zade, Appointed Advocate for the Appellant
        Ms. P.P. Shinde, APP for the Respondent - State
                                        ...................

                     CORAM                       : SMT. SADHANA S. JADHAV &
                                                   MILIND N. JADHAV, JJ.

                     RESERVED ON                 : APRIL 29, 2022.
                     PRONOUNCED ON               : MAY 06, 2022.

       JUDGMENT : (PER MILIND N. JADHAV, J.)

1. This is an appeal against conviction fled by the Appellant against

the judgment and order dated 23.03.2007 passed by the learned Ad-hoc

Additional Sessions Judge, Solapur whereby the Appellant is convicted for

the ofences punishable under:- (i) Section 302 of the Indian Penal Code, 1860

(IPC) and sentenced to sufer rigorous imprisonment for life and to pay fne

of Rs.1,000/- and in default to sufer rigorous imprisonment for three

months; and (ii) Section 498-A IPC and sentenced to sufer rigorous

imprisonment for three months and to pay fne of Rs.500/- and in default to

sufer rigorous imprisonment for one month.

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2. The Appellant is convicted for committing the murder of his wife

Laxmi (deceased) on 01.11.2005. Originally there were two accused;

accused No.2 - was mother of accused No.1 and mother-in-law of Laxmi.

Original accused No.2 - stands acquitted by the Trial court. Appellant is in

jail since 02.11.2005.

3. Such of the relevant facts which are necessary for the purpose of

deciding the present appeal are as follows:-

3.1. Appellant and Laxmi were married for 15 years before the incident

and have two daughters and a son. Appellant worked as sweeper on daily

wages in the police station at Salgar Vasti, Solapur. He was addicted to

liquor. He used to quarrel with Laxmi after drinking liquor; abuse her and

beat her. He used to harass and demand from Laxmi to bring money from her

parents for construction of house and beat her. Whenever Laxmi visited her

maternal house, she disclosed behaviour of Appellant to her brother Raju

Jadhav (PW-3). Her brother used to give some money on every occasion

whenever Laxmi visited his house and send her back to her matrimonial

home.

3.2. Two days before the incident, Appellant quarreled with Laxmi and

demanded that she bring money from her parents, abused and beat her up.

Thereafter with intention to cause harm, Appellant doused Laxmi with

kerosene, however she managed to rescue herself from the Appellant and

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rushed to her parents' house nearby and narrated the episode to her brother

(PW-3). Her brother convinced her that he would call a meeting of the elders

to resolve the issue and sent her back asked her to return.

3.3. On 01.11.2005, at about 11:00 p.m. Bharat Gaikwad (PW-5) was

walking towards his house near the house of the Appellant, when he saw the

Appellant hurriedly coming out of his house in a frightened state and running

away. When PW-5 questioned him as to why he was in such a hurry, the

Appellant told him that he had killed Laxmi and ran away. Thereafter Bharat

Gaikwad came near the house of the Appellant and peeped inside the house,

he noticed Guddi (PW-8) minor daughter of the Appellant crying but there

was complete darkness in the house. Therefore he immediately went to the

house of PW-3, brother of Laxmi and informed him about the incident.

Thereafter, PW-3 and his wife rushed to the Appellant's house and noticed

Laxmi lying in a dead condition in her house. There were injuries to her

forehead and mouth as well as near her left ear and there was bleeding from

her mouth and nose. They noticed one pharashi - tile (stone) lying near her

body.

3.4. Thereafter PW-3 approached the police station at Salgar Vasti and

lodged report against the Appellant and original accused No.2 alleging that

they caused death of Laxmi by injuring her with the pharashi - tile (stone). In

the meantime, Anita Gaikwad, wife of the brother of the Appellant also

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reached the police station at Salgar Vasti and reported that the Appellant had

killed Laxmi by assaulting her with the pharashi - tile (stone) on her head.

Report was lodged in the station diary and a police constable was deputed to

go to the spot of incident. Thereafter, PSI - Raut reached the spot of incident

i.e. the house of the Appellant and noticed the body of Laxmi having

sustained head injury as well as an injury on her lip and blood was oozing out

from her ear and nose. He noticed that there were two pieces of pharashi - tile

(stone) lying near her body. He drew the spot and inquest panchanama and

sent the dead body to the Civil Hospital for postmortem. He prepared the

scene of ofence panchanama, seized the two pharashi - tile (stone) stained

with blood and other articles lying on the spot. He recorded the complaint of

Raju Jadhav on the spot itself and forwarded the said complaint to the police

station for registration of the crime. Head constable Tanaji Chougule

registered Crime No.70 of 2005 for ofence punishable under Section 302 and

498A IPC and entrusted the investigation to PW-9 - PSI - Raut - Investigating

Officer (I.O.).

3.5. The I.O. recorded the statements of witnesses, arrested the

accused and seized the clothes of the deceased and accused. The accused

was referred to medical examination and for taking his blood sample;

postmortem report (PM report) was obtained; the seized clothes, blood

samples and viscera bottle were sent to the CA for analysis and report.

Statements of PW-8 Guddi @ Revati (minor) and PW-1 were recorded before

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the Judicial Magistrate First Class. It transpired during investigation that the

Appellant and accused No.2 in furtherance of their common intention

subjected Laxmi to cruelty and harassed her for fulfllment of their unlawful

demand for money and therefore they killed Laxmi by causing injury to her

head with the pharshi - tile (stone). Charge sheet was fled for ofences

punishable under Section 302, 498-A read with 34 IPC.

3.6. Since the ofence punishable under Section 302 IPC is exclusively

triable by the Sessions Court, the learned Judicial Magistrate First Class,

Solapur committed this case to the Court of Sessions.

3.7. On hearing both sides, the Ad-hoc Additional Sessions Judge,

Solapur framed the charge against the Appellant and original accused No.2

(mother-in-law of Laxmi) for ofences punishable under Section 302, 498-A

read with Section 34 IPC. The charge was read over and explained to the

Appellant in his mother tongue but he did not plead guilty and claimed to be

tried. According to the Appellant, death of Laxmi is accidental.

4. The prosecution has examined 10 witnesses to bring home the

guilt of the Appellant. Appellant has not examined any witnesses in support

of his defence. PW-3 - Raju Tukaram Jadhav is the brother of Laxmi and frst

informant who reported the ofence. PW-8 - Guddi @ Revati Sham Gaikwad

is the daughter of the Appellant and Laxmi; she was present at the scene of

crime at the time of incident and is an eyewitness; however according to the

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prosecution she has turned hostile. PW-1 - Bharat Shankar Gaikwad is a

friend of the frst informant who met the Appellant outside his house

immediately after commission of the ofence and on being asked has

confessed to have killed Laxmi; PW-2 is the pancha witness of the spot and

inquest panchanamas; PW-5 and PW-6 are police witnesses of the seizure

memos, who carried the seized articles for chemical analysis and made the

station diary entries; PW-7 is neighbor of the Appellant, PW-9 is the

Investigating Officer (I.O.); PW-10 is the Judicial Magistrate First Class who

recorded the statement of PW-1 and PW-8 (minor) under Section 164 of the

Code of Criminal Procedure, 1973 (Cr.PC) and PW-4 is the Medical Officer

who conducted the postmortem on the dead body of Laxmi and gave his

report.

5. The entire case of the prosecution is based on ocular evidence

given by PW-8 (child witness) and corroborated by circumstantial evidence

given by PW-1 and medical evidence given by PW-4.

6. It is seen that the spot of incident is a 10 feet x 10 feet room in a

slum area and does not have electricity connection. The time of incident is

around 11.15 p.m. at night on 01.11.2005. It is alleged that, Appellant was the

only person present at the scene of crime alongwith PW-8 - (minor); also

admittedly the weapon of ofence which is seized is the pharashi - tile (stone)

admeasuring 24" x 10".

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7. Mr. Lokesh Zade, learned counsel appearing for the Appellant has

vehemently argued that death of Laxmi has taken place accidentally when the

pharashi - tile (stone) which was kept on the window sill fell accidentally on

her head at night; that there is no direct evidence against the Appellant save

and except circumstantial evidence to indict the Appellant; that her death was

due to a single Contused Lacerated Wound (CLW) on her forehead just

above the medial aspect of her left eyebrow leading to heamatoma under the

frontal scalp region and skull fracture on the left temporal parietal region. He

submitted that the medical evidence given by PW-4 does not support the

prosecution's case and on the contrary aids and assists the Appellant's case.

He submitted that PW-4 (Doctor) has testifed that the aforestated injury

caused to Laxmi's head can be caused due to the fall of the pharashi - tile

(stone) on her head; further PW-4 has opined that if the said pharashi falls

from a height then the aforestated injury is possible. He submitted that the

extra-judicial confession of the Appellant given to PW-1 immediately after the

ofence is purely circumstantial and the chain of circumstances has not been

proved by the prosecution. He submitted that if the Appellant had indeed

made the aforesaid confession to PW-1, PW-1's natural reaction would have

been to immediately check upon Laxmi's well being; however PW-1 did not

do any such thing and instead peeped into the house of the Appellant and

heard PW-8 (minor) crying and thereafter proceeded to the house of PW-3

(brother of Laxmi) to inform him of what the Appellant had told him and

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thereafter went to his house. He submitted that though PW-1 has stated that

he peeped into the house of the Appellant before proceeding to inform PW-3

he did not see Laxmi and only heard PW-8 crying. Hence there are material

infrmities in the chain of circumstances deposed by PW-1 which cannot be

countenanced. He submitted that the deposition of PW-8 (minor) i.e.

Guddi, daughter of the Appellant and Laxmi cannot be accepted in evidence

as her statement recorded under Section 164 of the Cr.PC before the PW-10 -

Judicial Magistrate is at complete variance with her deposition and both

statements are contrary to each other. He has therefore prayed for setting

aside and quashing of the impugned judgment dated 23.03.2007 against the

Appellant.

8. PER CONTRA, Ms. P.P. Shinde, learned APP has argued in

support in the impugned judgment dated 23.03.2007 and contended that the

prosecution has successfully proved the circumstantial evidence on the basis

of the deposition of PW-1, spot panchanama, inquest panchanama, seizure

panchanama and the same is supported and corroborated by the medical

evidence given by PW-4, the Doctor who conducted the postmortem. She

submitted that Laxmi was sleeping in her house and the Appellant committed

the ofence by causing fatal injury to her head with the pharashi - tile (stone)

with the intention and knowledge to be likely to cause her death. She

submitted that the prelude to the incident has been deposed by PW-3 (brother

of Laxmi) that the Appellant used to ill-treat, threaten, harass Laxmi and

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demand money from Laxmi and ask her to get the money from her parents;

that just two days prior to the incident the Appellant doused Laxmi with

kerosene and threatened to burn her if she did not accede to his demand of

getting money from her parents. She has therefore argued that the judgment

dated 23.03.2007 has been correctly passed after analysing the evidence

placed before the Court and deserves to be upheld.

9. We have perused the impugned judgment dated 23.03.2007, heard

the learned counsel appearing for the respective parties and with their

assistance, perused the depositions of the prosecution witnesses as well as

some of the relevant exhibits germane to the matter. Submissions made are

on pleaded lines.

10. It is seen that the Appellant was married to Laxmi for 15 years and

had a daughter of 7 years (PW-8 - Guddi) at the time of incident (2005).

Though it is the prosecution's case that the Appellant was regularly harassing

and ill-treating Laxmi and demanding money be brought from her parents,

the prosecution has not placed on record any cogent material in the nature of

any complaint or dispute ever raised by Laxmi or her family members in

respect of the aforestated charge to bring home the motive of the Appellant.

This is required to be looked into the 'theory of motive' if the case of the

prosecution needs to be accepted. The prelude to the present incident, an

incident which took place two days before the date of ofence was a serious

incident. PW-3 has stated that just two days prior to the incident the

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Appellant quarreled with Laxmi, gave threats to her and asked her to bring

money from her parents, got annoyed on her and poured kerosene on Laxmi.

PW-3 has further deposed that thereafter Laxmi apprehending danger to her

life immediately rushed to his house and disclosed the said incident to him.

This was a serious incident. Admittedly, no report was lodged with the police

authority either by Laxmi or PW-3 about this incident. It is deposed that on

the next day, when Appellant visited the house of PW-3, Laxmi was allowed

to return back with the Appellant. PW-3 in his deposition has categorically

stated that when Laxmi rushed to his house, his neighbors had gathered at his

place and tried to persuade Laxmi. None of the said neighbors who would

have witnessed Laxmi being doused with kerosene at that time in the house of

PW-3 have been examined by the prosecution to prove the theory of motive,

intention and threat harbored by the Appellant to eliminate Laxmi. Hence the

theory of motive propagated by the prosecution based only upon the

deposition of PW-3 does not inspire our confdence.

11. That apart, we now come to the evidence of PW-4 - Dr.

Subhashchandra Sangameshwar Sardar, the Medical Officer who conducted

the postmortem of the dead body of Laxmi.

11.1. In his deposition PW-4 has stated that on external examination the

following two injuries were noticed:

(i) CLW on forehead just above medial aspect of left eyebrow

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oblique 1" x 1/2" muscle deep head compressed on left side.

(ii) CLW on upper lip in the center less than 1/2".

11.2. PW-4 has stated that on internal examination the following two

injuries were noticed:

(i) Heamatoma under scalp frontal region; fracture frontal bone

left side with fracture base of skull fracture left temporal

parietal region.

(ii) Brain - extra dural sub dural haematoma all over brain left

temporal and parietal region lacerated brain and its covering

oedematus.

11.3. As seen, the two internal injuries correspond to external injury

No.1. The injuries are stated in the PM report which is taken in evidence and

marked as Exhibit '18'. A careful perusal and analysis of column Nos.17, 18

and 19 of the PM report clearly shows that the two internal injuries stated

hereinabove correspond to the external injury No.1. This external injury is a

very serious injury about which PW-4 has stated that it is sufficient to cause

death in the ordinary course. The cause of death of Laxmi mentioned in the

PM report is because of shock and hemorrhage caused due to head injury.

PW-4 was shown the pharashi - tile (stone) at the time of his deposition and

he has opined that the above injury may be caused by the said pharashi - tile

(stone) if it is hit on the head. In his cross-examination PW-4 has stated that

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if the said pharashi - tile (stone) fell on the head from a height, then the

aforestated injury is possible. Hence the medical evidence is clear and direct

and there is no ambiguity as to the cause of death due to the pharashi - tile

(stone) falling on Laxmi's head. Therefore the only question that now falls

for determination is whether the said pharashi - tile (stone) fell on Laxmi's

head from the window sill or was an act of violence committed by the

Appellant.

12. Admittedly Laxmi was asleep at the time of the incident. PW-10

the Judicial Magistrate First Class who recorded the statement of PW-1 and

PW-8 (minor - child witnesses) under Section 164 of the Cr.PC has been

examined as a prosecution witness. It is pertinent to note that PW-8 (minor)

is the child witness and her evidence has to be considered with a greater

degree of caution. In her deposition before the Court PW-8 has stated that at

the time of the incident Laxmi was sleeping inside the house near the window

and the said pharashi - tile (stone) was kept on the said window; that two cats

were fghting and quarreling with each other outside the said window and one

of the cat pushed the window resulting in the pharashi - tile (stone) falling on

the head of Laxmi.

12.1. Before we consider the evidence given by the minor child witness

PW-8 i.e. Guddi, principles laid down by the Apex Court in two decisions,

namely Bhagwan Singh vs. State of Madhya Pradesh1 and Digamber

1 (2003) 3 SCC 21

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Vaishnav vs. State of Chhattisgarh,2 must be kept in mind.

12.2. The Apex Court in Bhagwan Singh (supra), also in relation to the

evidence given by a six-year-old minor witness, held that the sole testimony of

a child at such a tender age cannot be relied upon without careful evaluation

and other corroborative evidence as the child can be an easy prey to tutoring.

Paragraphs 19 and 20 of the decision are relevant and read thus:

"19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. (See Panchhi v. State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] )

20. In the case before us, the trial Judge has recorded the demeanour of the child. The child was vacillating in the course of his deposition. From a child of six years of age, absolute consistency in deposition cannot be expected but if it appears that there was a possibility of his being tutored, the court should be careful in relying on his evidence. We have already noted above that Agaram, maternal uncle of the child, who frst met him after the incident and took him along with his younger brothers to his father's village, has not been produced by the prosecution as a witness in the court. It was most unlikely that if the child had seen the incident and identifed the three accused, he would not have narrated it to Agaram as the latter would have naturally inquired about the same. The conduct of his father Radheyshyam who was produced as a witness by the prosecution is also unnatural that before recording the statement of the child by the police, he made no enquiries from the child."

12.3. The Apex Court in Digamber Vaishnav (supra) disregarded the

evidence of a nine-year-old child witness as it was fraught with

inconsistencies and held that the evidence of a child witness must, as a rule of

practical wisdom, be reliable, if adequately corroborated, and evaluated 2 (2019) 4 SCC 522

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carefully. Paragraphs 21 to 24 of the decision are relevant and read thus:

"21. The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW 8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always fnds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.

22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must fnd adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi v. State of U.P. [Panchhi v. State of U.P., (1998) 7 SCC 177 : 1998 SCC (Cri) 1561] , State of U.P. v. Ashok Dixit [State of U.P. v. Ashok Dixit, (2000) 3 SCC 70 : 2000 SCC (Cri) 579] and State of Rajasthan v. Om Prakash [State of Rajasthan v. Om Prakash, (2002) 5 SCC 745 : 2002 SCC (Cri) 1210] .]

23. In Alagupandi v. State of T.N. [Alagupandi v. State of T.N., (2012) 10 SCC 451 : (2013) 1 SCC (Cri) 1027] , this Court has emphasised the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that : (SCC p. 463, para

36) "36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/ her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always fnds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable.

24. It is clear from the testimony of PW 8 that she is not an eyewitness to the incident. She was aged about 9 years at the time of the incident. Her evidence is fraught with inconsistencies. None of the other witnesses have identifed the appellants..."

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12.4. Keeping in mind the aforementioned decisions and the principles

enunciated therein, in respect of reliability of the evidence of a minor child

witness, in the present case we fnd that the deposition of PW-8 Guddi

(minor) in court is at complete variance with her statement recorded under

Section 164 of the Cr.P.C. by the 5 th Judicial Magistrate First Class on

15.11.2005 i.e. 14 days after the incident. In the statement given before the

Judicial Magistrate First Class, PW-8 has stated that the Appellant had

brought the pharashi - tile (stone) from outside into the house and had hit the

same on Laxmi's head while she was asleep; thereafter there was bleeding

from Laxmi's head; that the Appellant was drunk at that time and thereafter

he ran away from the house. Therefore PW-8 during her deposition was

declared as hostile and the learned prosecutor was permitted to ask leading

questions to her in her cross-examination. PW-8 has thereafter in her

deposition completely denied her narration of the incident before the learned

Magistrate. Therefore the deposition of Laxmi (the child witness) in the

Trial court does not inspire our confdence.

13. The medical evidence in the present case in fact is the guiding

factor if analysed carefully. The cause of death in the death Certifcate

produced by the prosecution at Exhibit '10' is due to shock and hemorrhage

because of the head injury. The deposition of PW-4 (Doctor) cannot be

doubted or questioned. It is noticed that due to the principal external injury

on the left forehead of Laxmi, the head was compressed on the left side due to

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the fracture in the frontal bone and the base of skull in the left temporal

parietal region. Such an injury is possible only if the pharashi - tile (stone) is

hit hard or falls on the head of the victim with great force leading to fracture

of the skull, bone and compression of the head. In plain words such an injury

as described by the Doctor on Laxmi's left forehead fracturing the frontal

bone and the base of the skull on the left temporal parietal region can only be

caused if the pharashi - tile (stone) is hit hard on her head to crush her head.

The second external injury above the upper lip which is less than half an inch

is not relevant and material to the cause death. The principal external injury

has caused heamotoma under the scalp in the frontal region which clearly

implies that the said pharashi - tile (stone) came to be applied with force on

the head of Laxmi. The Appellant's defence that the said pharashi was lying

on the window sill and fell from the window sill on to Laxmi's head cannot be

countenanced for the following reasons:-

(i) That there is no material evidence on record to show the

distance of the window sill from the incident spot where

Laxmi was sleeping;

(ii) that the dimensions of the pharashi - tile (stone) placed on

record are 24" x 10" which is big and heavy; the slum room

where the incident took place is a 10 feet x 10 feet room and

the dimensions of the window are not on record;

(iii) that assuming for the sake of argument that the pharashi - tile

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(stone) had fallen from the window sill, it would be difficult

to assess the extent of the damage to the victim in the

absence of the distance from the window sill;

(iv) that considering the medical evidence on record there is no

doubt in our mind that the said pharashi - tile (stone) was hit

and applied with a great degree of force on Laxmi's head.

14. We have also noted that at the time of the incident the Appellant

was drunk and under the infuence of alcohol. Hence assuming that the

Appellant had hit the pharashi - tile (stone) to cause the head injury on

Laxmi's head, it can be derivated that the Appellant being under the infuence

of alcohol had no intention and knowledge of his act that it would cause death

of Laxmi due to his such act. In so far as the conviction under Section 498-A

IPC is concerned, there is no material placed on record to indict and convict

the Appellant and therefore the case of the prosecution fails in so far as

conviction of the ofence under Section 498-A IPC is concerned.

15. On the basis of the above discussion and fndings, we are

constrained to add that though the Appellant had knowledge that his act of

hitting Laxmi on the head with the pharashi - tile (stone) would be likely to

cause her death, he had no intention to do so. Such an act of the Appellant

does not travel beyond the ofence of culpable homicide (as defned in Section

299 IPC) not amounting to murder. The punishment for culpable homicide

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not amounting to murder has been prescribed under Part II of Section 304

IPC. The facts alluded to hereinabove alongwith our observations come

within the ambit of Part II of Section 304 IPC. As such, the Trial Court erred

in convicting and sentencing the Appellant for the ofence of murder under

Section 302 IPC.

16. In view of the above discussion and fndings, we are of the frm

opinion that the Appellant in a heat of passion and being under the infuence

of alcohol, acted in a manner that he knew is likely to cause the death of

Laxmi but without the intention to kill her. Thus in the present case we fnd

that in view of the prelude to the incident, the act of the Appellant was in the

heat of passion without any pre-meditation on his part and hence the

Appellant and his such act falls under the provisions of Part II of Section 304

IPC. Therefore, the conviction of the Appellant for the ofence of murder of

Laxmi is hereby altered to that of culpable homicide not amounting to murder

as defned under Section 299 IPC read with Exception 4 of Section 300 IPC.

The Appellant, under Part II of Section 304, is hereby sentenced to undergo

imprisonment for a period of ten years and to pay a fne of Rs.20,000.00, and

in default thereof, to undergo imprisonment for an additional period of six

months.

17. The duration of imprisonment that the Appellant has already

undergone i.e. from the date of his arrest (02.11.2005) till date shall be

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counted towards the imprisonment stipulated in the sentence passed

hereinabove. The Appellant shall be released on the completion of the

sentence unless required in any other case. If the Appellant has completed

the duration of the sentence passed hereinabove, he shall be released

forthwith unless required in any other case / cases.

18. Criminal Appeal stands partly allowed in the above terms.

19. Learned appointed Advocate Mr. Lokesh Zade is entitled to the

professional fees in accordance with law.

    [ MILIND N. JADHAV, J. ]                  [SMT. SADHANA S. JADHAV, J.]


              Digitally signed
              by AJAY
AJAY       TRAMBAK
TRAMBAK    UGALMUGALE
UGALMUGALE Date: 2022.05.06
              16:17:28 +0530




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