Mayur S/O Ruplal Dhurve vs State Of Mah. Thr. Pso Amgaon ...
2022 Latest Caselaw 11826 Bom

Judgment                                                 apeal579.22

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



                CRIMINAL APPEAL No. 579 OF 2022.


Mayur s/o Ruplal Dhurve,
Age 20 years, Occupation - Labour
In jail, resident of Tiagaon, Tahsil
Amgaon, District Gondia (M.S.)            ...     APPELLANT.


                               VERSUS


State of Maharashtra,
through Police Station Officer,
Amgaon, Tahsil Amgaon,
District Gondia (M.S.)                   ...     RESPONDENT.


                          ---------------------
   Mr. G.S. Shegaonkar, Advocate (Appointed) for the Appellant.
       Shri A.M. Kadukar, A.P.P. for the Respondent/State.
                         -----------------------



                      CORAM : VINAY JOSHI AND
                             MRS.VRUSHALI V. JOSHI, JJ.

CLOSED FOR JUDGMENT ON :                  16.11.2022.
JUDGMENT PRONOUNCED ON :                  18.11.2022.



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 Judgment                                                      apeal579.22

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JUDGMENT (Per Vinay Joshi, J) :

Challenge in this appeal is to the judgment delivered by

the Sessions Judge, Gondia in Sessions Case No.47/2020 on

26.10.2021, convicting the appellant/accused for the offence

punishable under Section 302 of the Indian Penal Code, sentencing

him to undergo life imprisonment along with payment of fine.

2. The accused was charged for committing murder of his

own father. The prosecution has examined as many as 6 witnesses

to bring home the guilt of the accused. Besides that, the prosecution

banks on certain documents to support the charge. The trial Court

has relied on the evidence of eye witnesses, which has formed the

basis of conviction.

3. We have heard the learned Counsel for the parties and

perused record.

4. The background facts in nutshell are as follows.

The informant is mother of the accused, and wife of the

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deceased. On 21.03.2020 around 11 p.m. she has lodged report

regarding the occurrence. The informant stated to police that the

accused is her younger son aged 20 years, and was doing labour

work at the relevant time. Always there happened to be quarrel in

between the accused and her deceased husband [Ruplal], at the

instance of expenses made by the accused. On 20.03.2020 in late

evening there was quarrel in between the father and son on account

of accused buying a mobile handset. On the following day, around 5

p.m. while the informant was cleaning utensils, she saw that the

accused was following the deceased by holding stone. She went

behind and saw that the accused caused her husband Ruplal to fall,

and was trying to press his throat. The informant intervened and

with the aid of neighbouring person Ashish, separated the duo.

Immediately the accused came with an axe and dealt repeated blows

at the back, stomach and thigh of Ruplal. Later on Ruplal died due

to the injuries sustained in the assault.

5. The police have carried panchnama of the scene of

offence. Axe was seized from the place of occurrence. Blood stained

clothes of the deceased, as well as accused were seized and sent for

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chemical analysis. Postmortem was conducted on the dead body.

After completion of the investigation, final report has been filed.

6. The trial Court has framed charges to which the accused

disowned the guilt. The prosecution mainly relied on the evidence of

P.W.1 - informant Revanta, and another eye witness Ashish

[Exh.12], who is a neighbour. Besides that evidence of panch

witness, medical officer and police officers have been recorded. The

trial Court held that the prosecution has successfully established the

guilt of the accused with requisite standard of proof and accordingly

passed the judgment and order of conviction.

7. We prefer to directly consider the evidence of eye

witnesses, since it assumes great significance. P.W.1 - Revanta

[informant] is wife of the deceased, whilst mother of the accused. It

is her evidence that at the relevant time while she was cleaning

utensils, she saw accused and deceased were quarreling at the

instance of buying mobile handset, hence, she rushed to pacify them.

The accused was strangulating her husband, hence, with the aid of

the neighbour she separated the quarrel. Within quick succession,

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the accused returned with an axe and dealt blows by rare handle of

the axe on the stomach of her husband, who ultimately died.

Contextually, we have gone through the evidence of another eye

witness Ashish, who is a neighbour. He has squarely supported the

evidence of P.W.1 Revanta on the point of actual occurrence. It is

his evidence, that when he separated the duo, the accused went and

came back with an axe. He saw the accused inflicting repeated

blows with the axe, because of which the later became unconscious.

Both the eye witnesses were cross examined at length, however, they

withstood to their version. A faint attempt has been made in defence

to suggest that the accused acted in private defence, however, the

said defence does not gain support either from the cross examination

or from the circumstances.

8. The learned trial Court has rightly assessed the evidence

of both the eye witnesses. Pertinent to note that the informant is the

mother of the accused, who has no grudge, nor reason to falsely

implicate her own son. Therefore, her evidence is quite credible, as

well as gained assurance by supporting evidence of neighbouring

person.

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9. We have gone through the evidence of P.W.5- Dr.

Chaudhary, who has conducted autopsy on the dead body. He has

found following injuries on the person of the deceased :

"[i] Abrasion measuring 3 cm length x 2 cm breadth at the left shoulder region near calvicle.

[ii] Abrasion measuring 9 cm length x 6 cm breadth [Grace] at lumber region.

[iii] Linear abrasion measuring 2.5 cm x 1 cm at right pelvic region.

[iv] Laceration admeasuring 2 cm x 1.5 cm at left pelvic region along with contused area around the injury of dimension about 5 cm with peeling of epidermis seen.

[v] Linear abrasion seen about left pelvic region in left abdominal region of dimension 3 cm length lateral.

[vi] Left anterior superior iliac spine fracture along with multiple fragmented bones of wing of ilium."

Cause of death was as injuries to major vessels and to left kidney.

Most of the injuries were abrasions on the person of the deceased.

Thus, the medical evidence is consistent with the version of the eye

witnesses that the accused dealt blows by rare side of the axe.

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Apparently it is a case of homicidal death.

10. The learned Counsel for the appellant would submit that

the incident was an outcome of sudden quarrel, therefore, it will not

amount to an offence of "murder", within the meaning of Section

300 of the Indian Penal Code. He would submit that in a sudden

fight, in a heat of passion, the accused lost his control and had dealt

blows to the deceased. It is submitted that neither the accused

intended to cause death, nor he had adequate knowledge regarding

the consequences of the said act. It is submitted that the injuries

were mere abrasions, however, since there was damage to major

vessels and kidney, it resulted into death. In support of said

contention he relied on the decision of the Supreme Court in case of

Kulesh Mondal .vs. State of W.B. - AIR 2007 SC 3228, wherein the

offence of murder was brought down to culpable homicide by

invoking exception 4 to Section 300 of the Indian Penal Code.

11. We have considered the plea relating to applicability of

exception 4 to Section 300 of the Indian Penal Code. It is

contended that the incident was an outcome of sudden quarrel in a

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heat of passion. In order to bring the offence within the compass of

exception 4 to Section 300 of the Code, it has to be established that

the act was committed without premeditation, in a sudden fight in a

heat of passion, upon a sudden quarrel without the offender having

taken undue advantage and not having acted in a cruel or unusual

manner. One cannot lay a general rule as to what shall be termed to

be a sudden quarrel. It is a question of fact that whether the quarrel

in question is a sudden or not, most necessarily depends upon the

proved facts of each case.

12. We have revisited the entire material. It has come in the

evidence that the accused, a young boy aged 20 years, had

purchased a mobile from his earnings from labour work. The

deceased, who was his father has quarreled for the reason of

purchasing mobile. At the time of occurrence, the accused chased

his father with a stone, however, there is no evidence that the

accused hit by stone, however, it has come in the evidence that he

initially caught hold his father and on separation brought an axe and

dealt blow from its rare side on the stomach of his father. It has

come during the cross examination that the deceased was a man of

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irritable nature. The deceased frequently used to take up quarrel

with his wife and son [accused]. It has also come on record that the

deceased used to assault under influence of liquor with whatever

articles he gets. The entire incident is to be appreciated on the

background of these facts. There happens to be no motive for a son

to have a grudge against his own father so as to cause his death. The

incident appears to be a sudden occurrence on account of father

scolding his son on buying mobile.

13. Notably, though the accused brought an axe, however, he

dealt blows from the rare side/portion of the axe i.e. by handle,

which assumes significance. Had it been the fact that the accused

intended to kill the deceased, then there was no reason for him to

use the rare portion of the axe. It is required to be noted that though

the accused was angry and in heat of passion, he assaulted his

father, still he has chosen to use rare side of the axe, meaning

thereby he was not intending to cause fatal injury to his father. The

manner of attack itself postulates that the accused has not used the

dangerous side of the axe. There is no material on record to indicate

that the accused has taken undue advantage and acted in a cruel or

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 Judgment                                                     apeal579.22



unusual manner.      Considering these background facts, the act of

accused would certainly fall within the purview of explanation 4 to

Section 300 of the Code. Moreover, as the accused has no intention

to kill, however, his act postulates the knowledge that it is likely to

cause death, the act of accused would fall within Part-II of Section

304 of the Indian Penal Code.

14. The accused is a young boy of 20 years. Section 304,

Part-II of the Indian Penal Code provides punishment for

imprisonment which may extend to 10 years or with fine or with

both. Though the case is covered under exception 4 of Section 300

of the Code, however, the act has resulted in causing death of a

human being. Therefore, in our view, imprisonment for a period of 8

years along with fine would meet the ends of justice.

15. In view of above discussion, Criminal Appeal is partly

allowed. The conviction and sentence of appellant/accused for the

offence punishable under Section 302 of the Indian Penal Code is

converted into Section 304, Part-II of the Indian Penal Code. The

accused is sentenced to suffer rigorous imprisonment for a period of

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8 years, along with of fine of Rs.5000/-, and in default to undergo

further R.I. for three months.

16. The appellant/accused is entitled for set off in terms of

Section 428 of the Code of Criminal Procedure.

17. Criminal Appeal is accordingly allowed and the judgment

and order of conviction dated 26.10.2021 delivered by the Sessions

Judge, Gondia in Sessions Case No.47/2020 is modified to the extent

mentioned above.

18. Muddemal property be dealt with as per Rules.

19. Fees of the appointed Counsel for the appellant be paid as

per Rules.

                                          JUDGE                              JUDGE




                         Rgd.
Signed By:RAKESH GANESHLAL
DHURIYA
Private Secretary
High Court of Bombay, at Nagpur
Signing Date:18.11.2022 15:49