Sitaram Dada Sarode vs The State Of Maharashtra
2022 Latest Caselaw 10127 Bom

                                                   cri apeal 120-13 & ia 392-20.doc

ATU/RMA
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO. 120 OF 2013
                                 WITH
                  INTERIM APPLICATION NO. 392 OF 2020

    Sitaram Dada Sarode
    Age - 49 Years, Occ. - Medical Practitioner,
    R/o. Thardi, Tal. Nandgaon,
    Dist. Nashik.
    (At present lodged in Paithan Open Prison)       .. Appellant
                                                         (Org. Accused)
                Vs.
    The State of Maharashtra
    (Through Inspector of Police, Chatushrungi
    Police Station, Dist. Pune)                .. Respondent
                                                         (Org. Complainant)

    Mr. Pawan Mali, Advocate appointed for Appellant
    Mr. H.J. Dedhia, APP for State

                         CORAM            : A.S. GADKARI &
                                            MILIND N. JADHAV, JJ.

Reserved on : 27th SEPTEMBER 2022.

Pronounced on : 03rd OCTOBER, 2022.

JUDGMENT [PER : MILIND N. JADHAV, J.]

. This Criminal Appeal questions the legality of Judgment and

Order dated 30.01.2012 passed by the learned Additional Sessions

Judge, Pune in Sessions Case No. 816 of 2008 (for short "Trial Court")

convicting Appellant under Section 235(2) of Code of Criminal

Procedure, 1973 (for short "Cr.P.C."), for offence punishable under:-

(i) Section 302 of the Indian Penal Code, 1860 (for short

"IPC") and sentencing him to suffer life imprisonment

cri apeal 120-13 & ia 392-20.doc

along with fine of Rs. 1,000/-, in default, to suffer

further rigorous imprisonment for six months;

(ii) Section 498-A IPC and sentencing him to suffer

rigorous imprisonment for two years along with fine of

Rs. 500/-, in default, to suffer further rigorous

imprisonment for three months; both sentenced to run

concurrently.

2. Appellant is convicted for committing murder of his wife

Sangita by assaulting with a lid of autoclave and throwing acid on her

person.

3. By Order dated 26.07.2019, Mr. Pawan Mali, Advocate was

appointed to espouse the cause of Appellant. By Order dated

20.09.2022, Appellant was produced before us in person as he

expressed his desire to conduct proceedings in person.

4. Initially we heard the Appellant in person as he expressed

his desire to conduct his case in person. He attempted to make

submissions for sometime but thereafter requested us that since Mr.

Pawan Mali, learned Amicus was appointed by the High Court Legal

Services Committee to espouse his cause, he be allowed to conduct his

matter and represent him. He submitted that, he has no objection for

Mr. Mali in conducting present Appeal on his behalf.

cri apeal 120-13 & ia 392-20.doc

5. Facts of the prosecution case which emerge from record are

as follows:-

5.1. Appellant is a medical practitioner. He married Sangita in

the year 1993. Initially both resided at Manmad. Appellant practiced

his vocation in Manmad. About eight years prior to the incident,

Sangita secured job of pharmacist in Pune Municipal Corporation and

therefore came to reside at Pune along with her two children,

Mrunalini and Shantanu in her mother Shantabai's (first informant)

house.

5.2. Incident occurred on 30.08.2008 at Pune. It was the

practice of Appellant to visit his family in Pune every fortnight.

Appellant always informed Sangita and his children in advance about

his visit.

5.3. On 30.08.2008 Appellant was in Pune. At around 06:00

p.m. Shantabai went out to visit Hanuman Mandir at a distance of 5 to

7 minutes. After some time one neighbour Sarika Kokne rushed to

Shantabai and informed her that there was a quarrel between

Appellant and Shantabai. Shantabai rushed back to her residence and

saw Sangita lying in burnt condition. Sangita told her that Appellant

assaulted her on the back of her head with some hard object and

thereafter poured a substance like acid on her body due to which she

sustained burn injuries. Shantabai along with her neighbour took

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Sangita initially to Ratna Hospital and thereafter shifted her to Surya

Hospital on medical advice.

5.4. On her admission to Surya Hospital, PW-7 - Dr. Govind

Kamble recorded statement of Sangita (Exh. 77) in the presence of

Shantabai. In this statement Sangita stated that Appellant suspected

her chastity and therefore assaulted her and ran away thereafter. On

the basis of this statement complaint was given by Shantabai and C.R.

No. 404 of 2008 was registered against Appellant for offences

punishable under Section 307, 498-A and 504 of IPC. Appellant was

arrested on the same night.

5.5. According to prosecution, PW-8 - Shantanu, son of Appellant

and Sangita (deceased) is an eye witness to the incident. Prosecution

case is further based upon oral dying declaration made to PW-3 -

Shantabai (mother of Sangita) and two written dying declarations

(Exhs. 77 & 42). Exh. 77 was recorded by PW-7 - Dr. Kamble whereas

Exh. 42 was recorded by PW-2 on 30.08.2008. In both dying

declarations, Sangita stated that Appellant suspected her character,

hence, he poured / doused her with some liquid substance like acid

and attempted to kill her.

5.6. Statements were recorded by Investigating Officer (IO); spot

panchanama (Exh. 70) was prepared and articles like lid of autoclave

(weapon), burnt curtain, one plastic bottle and burnt gown were

cri apeal 120-13 & ia 392-20.doc

recovered and seized from the spot and sent to the Chemical Analyzer

for analysis.

5.7. During treatment Sangita succumbed to burn injuries on

05.09.2008. After death, inquest panchanama (Exh. 74) was prepared

and the dead body of Sangita was sent for autopsy. Charge under

Section 302 IPC was subsequently added.

5.8. PW-10 - Dr. Ajay Taware conducted autopsy and prepared

postmortem report (Exh. 91). He noted the following injuries in PM

report:-

A. "External Injuries:-

1. Injection mark over right side of neck (therateotic)

2. Superficial to deep burn seen in following areas of body:-

                 Head, neck, face : 5%
                 Right upper limb : 8%
                 Left upper limb             : 8%
                 Right lower limb : 1%
                 Left lower limb             : 2%
                 Abdomen & chest : 9%
                 Back                        : 7%
                 Genitals                    : 0%
                 ------------------------------------
                 Total burn injuries : 40%
                 ==============

3. Fasciotomy would seen over both upper limbs (therateotic)

4. Eight stitched would over occipital region mid-

line vertical having size of 9 x 1 cm,

5. Four stitched would over left occipital horizontally oblique of size 5 x 1 cm All above mentioned injuries were ante- mortem.

cri apeal 120-13 & ia 392-20.doc

B. Internal injuries:

1. In head : haematoma in the scalp over right occipital region having size of 4 x 4 cm., and left occipital region 4 x 4 cm, pale red in colour.

2. In brain : sub-arachnoid hemorrhage seen all over, both temporal region, all over occipital region, posterior aspect of both parietal region, pale red in colour.

PW-10 also noticed ink mark over right great toe."

6. Investigating Officer received reply from the Chemical

Analyzer that articles sent for investigation got burnt in a fire at the

laboratory and therefore he could not give his report and identify the

liquid used in the crime as to whether it was acid or any other

substance. After completion of investigation chargesheet was filed

against Appellant in the Court of Judicial Magistrate First Class. Since

the offence is punishable under Section 302 IPC and exclusively

tirablelby Court of Sessions, JMFC committed the case to the Sessions

Court for trial.

7. Charge (Exh. 10) was framed against Appellant for offences

punishable under Sections 302, 504 and 498-A IPC. It was read over

and explained to him in vernacular; he denied the charge, pleaded not

guilty and claimed to be tried. Defence of Appellant being that, the

alleged incident occurred on the day of Pola festival; that Sangita was

preparing puranpoli (a sweet item) and food at the time of the

incident and he was about to leave for Manmad as usual; that Sangita

cri apeal 120-13 & ia 392-20.doc

sustained burn injuries due to over-flaming of the stove; that Appellant

was married to Sangita since 1993 and most importantly he did not

have cordial relations with Shantabai and his brother-in-law Bajirao

Masal (PW-4); hence they falsely implicated him in the case and also

tutored PW-8 (son - Shantanu) to depose against him.

8. To bring home the guilt of Appellant, prosecution has

examined 13 witnesses.

9. We have heard Mr. Pawan Mali, learned Advocate

appointed for Appellant and learned APP for the State and with their

able assistance perused the evidence and record in the present case.

10. In the present case, prosecution has heavily relied upon the

evidence of PW-7 - Dr. Govind Kamble who recorded the first dying

declaration (Exh. 77). Sangita's right leg thumb impression was taken

on this statement. This clearly showed that her hands and fingers were

burnt. The statement bears the signatures of PW-3 and PW-4 as

witnesses to the dying declaration. This statement is recorded on the

printed form and has been endorsed and recorded by PW-7. However

the endorsement which is also in a printed form has been signed by

PW-7 at 09:30 p.m. In the evidence of PW-7, it has come on record

that this dying declaration was recorded at about 06:30 p.m. and

hence the timing of recording this statement is a glaring discrepancy

and contradiction. In this statement Sangita has stated that Appellant

cri apeal 120-13 & ia 392-20.doc

suspected her chastity and therefore inflicted acid burns on her body.

In this context, Mr. Mali appearing for Appellant has drawn our

attention to Exh. 78 from the record and proceedings of the case. Exh.

78 are the combined medical casepapers of Sangita, inter alia,

pertaining to her entire timeline of treatment after she was admitted

to the hospital and until her death 6 days later. These case papers

reveal that on her admission dressing was done with silver sulfate by

Dr. Pandit and Dr. Shinde and it is noted that she had 45% burns

which appeared to be 'flame burns' than 'acid burns' and out of that

25% burns appear to be deep and fasciotomy is done on both her

upper limbs. Incidentally, Dr. Pandit and Dr. Shinde as also the

anesthetist Dr. Sarala Soham Gandhi who treated Sangita immediately

on her admission to Surya Hospital have not been examined by

prosecution. Hence the statement recorded by PW-7 in Exh. 77 that

Sangita suffered acid burns clearly militates against the hospital record

(Exh. 78).

11. The second dying declaration (Exh. 42) was recorded

between 9:30 p.m. to 10.30 p.m. by PW-2 Police Head-Constable. He

has deposed that he received instructions to reach Surya Hospital to

record statement of Sangita and accordingly went there; that he met

the concerned Doctor and was informed that Sangita was in a position

to give her statement and he was allowed to record her statement. He

cri apeal 120-13 & ia 392-20.doc

has deposed that Sangita narrated the entire incident of assault by

Appellant and he recorded the same. That, thereafter he read over the

said statement to her and at that time the Doctor was with him. In his

examination-in-chief he has next deposed that he obtained Sangita's

signature on the statement and the Medical Officer (PW-7) also read

the statement and put his signature on the same thereafter. He has

further stated that Shantabai was also present in the ward when he

recorded the statement. In his cross-examination PW-2 has stated that

he reached Surya Hospital at about 09:00 p.m. and met PW-7 - Dr.

Govind Kamble. That, at that time treatment of Sangita was underway

and saline was given to her. He has categorically deposed that both

hands of Sangita were burnt. This categorical admission by PW-2 in

his cross-examination clearly contradicts his own deposition in his

examination-in-chief that he obtained Sangita's signature on the

statement. Further reading of the medical case papers (Exh. 78)

alongwith the medical evidence (PM Report - Exh. 91) reveal that

Sangita's hands and palms were burnt, then in that view of the matter

PW-2 obtaining her signature on the second dying declaration (Exh.

42) is therefore shrouded with suspicion. Hence the second dying

declaration thus is unbelievable and need to be kept aside from

consideration.

12. Next we come to the ocular evidence of PW-8 Shantanu, son

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of Appellant and Sangita, which is also heavily relied upon by

prosecution to prove homicidal death of Sangita. On the date of

incident, Shantanu was eight years old and therefore, in view of the

settled law relating to deposition of a child witness, his evidence will

have to be evaluated and scrutinized with greater circumspection as

also it will have to be seen if his deposition would require

corroboration from the evidence of other prosecution witnesses.

According to prosecution, PW-8 Shantanu is an eye witness to the

incident. He has deposed that on 30.08.2008 Appellant assaulted

Sangita in his presence. This proves that there was a quarrel between

them. He has deposed that at about 06:00 p.m., his mother Sangita

was cooking food and Appellant asked him to fetch thread and

fevikwik from outside. He bought fevikwik from the shop and returned

home and as he was entering the door of his house, he saw Appellant

pouring something from the bottle on Sangita's body. He has further

deposed that he saw that Sangita sustained an injury on her head and

there was blood on the floor. At that time Appellant pushed him aside

and left the house. He thereafter called his neighbour Madhavi and

went to call Mrunalini (sister) who had gone for tuition. He narrated

the entire incident to her tuition teacher and returned back, when he

noticed Shantabai taking Sangita to the hospital.

13. It will also be pertinent to refer to the deposition of PW-4 -

cri apeal 120-13 & ia 392-20.doc

Bajirao Masal cousin brother of Sangita. PW-4 has deposed that

Appellant used to visit Sangita and her children at her mother's place

every fortnight and stay with them for two days. He has specifically

deposed that there used to be quarrels between them on the ground of

Appellant suspecting Sangita's chastity; that these quarrels used to

result in physical abuse of Sangita. PW-4 has further deposed that he

was called on several occasions by his aunt Shantabai and he

witnessed Appellant threatening them that he would finish them.

Incidentally on the date of incident at about 4:30 p.m. Appellant called

PW-4 at Lalit Mahal Hotel, Shivaji Nagar. They both met and Appellant

informed him that Sangita had booked a flat and was demanding

money from him. He also told PW-4 that because of this reason there

was a dispute between them. Thereafter at about 6:20 p.m. PW-4

received a phone call from Appellant and he informed him that

Sangita was burnt and that he should come there since he was going

to the police chowky. In his cross-examination, PW-4 has stated that

he rushed to the house of Shantabai and saw the children standing

frightened outside the house. He open the latch and saw blood

splattered on the kitchen platform and floor and one blood stained

autoclave (weapon used by Appellant) lying their. Thereafter he

rushed to Surya Hospital to see Sangita and in his presence the first

dying declaration was recorded by PW-7 - Dr. Govind Kamble. It is

pertinent to note that he has deposed that after the dying declaration

cri apeal 120-13 & ia 392-20.doc

Exh. 77 was obtained, Sangita's right leg thumb impression was taken

since both her hands were burnt. This is an important admission of

fact. If both hands of Sangita were indeed burnt, then PW-2's

deposition about obtaining her signature on the second dying

declaration (Exh. 42) is rendered unbelievable. Hence the second

dying declaration cannot be countenanced.

14. That apart, one more aspect becomes clear from the

deposition of PW-4 i.e. Appellant used to suspect chastity of Sangita

and used to quarrel with her. At this stage, we may point out that PW-

8 - Shantanu, in his deposition has stated that Appellant used to

physical abuse and beat him, Sangita and PW-9 - Mrunalini. He has

further categorically deposed that Sangita was also beaten by

Appellant on 30.08.2008 i.e. on the date of incident and at that time

he was present in the house. The evidence of PW-9 - Mrunalini i.e.

elder sibling of Shantanu and daughter of Appellant and Sangita is

also relevant in this aspect. In her deposition she has deposed that

Appellant visited them every 10 - 15 days and whenever he came he

used to abuse, quarrel and assault her mother Sangita. She has further

deposed that on the fateful day, after the incident PW-8 rushed to her

first and informed her that Appellant had quarreled with Sangita and

thereafter poured something from the bottle on her body resulting in

severe injury. PW-3 - Shantabai has also in her evidence stated that

cri apeal 120-13 & ia 392-20.doc

whenever Appellant used to visit Pune he would torture Sangita by

abusing and beating her and used to take suspicion on her character

and further issue threats to kill her. She has deposed that Sangita had

lodged a complaint before the Woman's Organization at Pashan in this

respect.

15. From the aforesaid depositions given by PW-3 - Shantabai,

PW-4 - Bajirao Masal, PW-8 - Shantanu and PW-9 - Mrunalini, all four

close relatives of deceased Sangita, it is clearly discernible that

quarrels used to frequently take place between Appellant and Sangita

as he suspected her character. It is also perceptible that Appellant

used to physically abuse Sangita whenever he visited at Pune. This

apparently in all probability must have been the norm for eight years

after Sanigta shifted from Manmad to Pune and started serving in the

Pune Municipal Council as Pharmacist. It is seen that on the date of

incident also Appellant had a quarrel with Sangitra and physically

abused her in the presence of PW-8 - Shantanu. The spot panchanama

Exh. 39) shows recovery and seizure of the weapon used by the

Appellant i.e. the autoclave lid. This object is a circular steel plate

used as the cover to the autoclave vessel used by doctors and

pharmacists for boiling water and sterilizing needles / syrings in

medical parlance. Hence from a marshaling of the evidence and

deposition of the prosecution witnesses it is clearly observable that

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there was a sustained and continuous provocation of the issue

harboured by Appellant over a period of time presiding the offence.

The incident was the last act, word and gesture comprising of the

sudden and provocative conduct and demeanor of Appellant sufficient

for causing a reactive loss of his self-control. It is seen that the

question of loss of self-control by grave and provocation is a question

of fact. In this context, it will be useful for us to refer to a recent

decision of the Hon'ble Supreme Court delivered on 02.08.2022 in the

case of Dauvaram Nirmalkar Vs. State of Chhattisgarh, in Criminal

Appeal No. 1124 of 2022 wherein this aspect of law, inter alia,

pertaining to the gravity of provocation to be assessed by taking into

account the history of abuse is discussed. It is held therein that the

provocation need not be confined to the gravity of the final

provocative act committed by the accused. The Supreme Court has

referred to the provisions of Exception I of Section 300 IPC which

recognizes that when a reasonable person is tortmented continuously,

he may, at one point of time, erupt and reach a break point whereby

losing his self-control, going astray and committing the offence. In this

context, it is pertinent to note that there is no premeditation or

planning on the part of Appellant to kill or murder his wife Sangita.

However since he was the last person seen alongwith Sangita by PW-8

- Shantanu, he would be the only person who could explain the injury

on Sangita's head (temporal - occipital region) with the only object

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lying next to her body i.e. autoclave lid. Though it has come on record

that the autoclave lid had blood stains, in this case the CA Reports

have not been produced in evidence. Nevertheless from the deposition

of the four related witnesses of deceased Sangita and the first dying

declaration recorded by PW-7 - Dr. Govind Kamble, it is clear that

circumstantial evidence proved by prosecution points and indicts the

role of Appellant as the author of crime in the present case. However

even though it is discernible that the Appellant committed the act of

killing Sangita, it is not proved in evidence as to what was the liquid

that was used because of which Sangita suffered burn injuries. As

seen the CA Reports have not been proven by prosecution. Spot

panchanama reveals recovery and seizure one plastic mirinda bottle

and assuming for the sake of arguments that the said bottle was

containing the alleged liquid with which Sangita was doused, it is

improbable that the plastic bottle would hold a liquid chemical such as

concentrated acid. Hence keeping this in mind and the medical case

papers (Exh. 78) which have been discussed at length and alluded to

hereinabove in para No.10, it is clear that prosecution has not been

able to prove its case beyond all reasonable doubts and the chain of

circumstances snaps in between and does not explain the above

discussed issue. That apart, applying the ratio in the case of Dauvaram

Nirmalkar (supra), it is clear that there used to be a litany of quarrels

between Appellant and Sangita.

cri apeal 120-13 & ia 392-20.doc

16. It is seen that the ratio of Dauvaram Nirmalkar (supra)

clearly applies to the facts and circumstances of the present case. In

our considered opinion, the present case will fall under Exception 1 to

Section 300 IPC. Exception 1 to Section 300 IPC states that 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. Exception 1 applies when due to grave

and sudden provocation, the offender looses his self-control and

causes the death of a person who gave the provocation. The Supreme

Court in the above case has stated that the question of loss of self-

control by grave and sudden provocation is a question of fact. The

observations of the Supreme Court in paragraph Nos. 12 and 13 in this

respect, expanding the meaning and scope of the defence of

provocation under Exception 1 are directly relevant. Paragraph Nos.

12 and 13 reads thus:-

"12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the Indian Penal Code. First, whether there was an intervening period for the passion to cool and for the Accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the Accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the Accused, placed in the same

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situation in which the Accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the Accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the Accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the Accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.

13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the Accused's reaction, should be identified to show that there was temporary loss of self-control and the Accused had acted without planning and premeditation. This has been aptly summarised by Ashworth in the following words:

"[T]he significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased's final act and the Accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act and its effect upon the Accused - and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties."

Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be

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available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation."

16.1. Thus from the above, it is seen that gravity of provocation

need not be confined to the singular incident but can be assessed by

taking into account the history of the abuse culminating in the final act

of the accused if it is shown that the said act occurred due to

temporary loss of self-control and the accused had acted without

planning and premeditation. In the present case, it is seen that

Appellant was staying away from Sangita for almost eight years prior

to the incident; that he was on visiting terms to Pune where Sangita

and the children were residing along with Shantabai on a regular

(fortnightly) basis; that prosecution witnesses have categorically

deposed that frequent quarrels used to take place between Appellant

and Sangita, PW-3 and PW-4 have deposed that Appellant used to

suspect the chastity of Sangita and that used to be the reason for their

quarrels. This deposition of prosecution witnesses corroborates with

the contents of the first dying declaration given by Sangita to PW-7 -

Dr. Govind Kamble wherein she has categorically stated that

immediately prior to the incident, Appellant had accused her chastity.

Deposition of PW-8 - Shantanu who was present in the house when the

quarrel between Appellant and Sangita took place immediately before

the incident also corroborates the above fact. That apart, deposition of

PW-4 - Bajirao Masal, cousin brother of Sangita in one other aspect

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also becomes relevant i.e. Appellant calling him at 4:30 p.m. i.e. two

hours before the incident and informing him that Sangita had booked

a flat and was demanding money from him for the same. These

factual circumstances having come in evidence will all have to be

considered from the perspective of the provocation of Appellant in

committing the act of wrongdoing i.e. the incident. While evaluating

and considering the circumstances discussed hereinabove from the

deposition of the prosecution witnesses, it is reasonably concluded

that Appellant lost his power of self-control temporarily and

committed the offence in the proximity to the time of provocation i.e.

the quarrel that ensued between Appellant and Sangita before the

time of incident. There is no material brought on record by

prosecution to show that the act of Appellant was a premeditated and

planned act. Thus, there was sudden loss of self-control as observed

by the Supreme Court on account of 'slow burn' reaction followed by

the final and immediate provocation and there was temporary loss of

self-control. Hence, applying the exception 1 of Section 300 IPC, we

would covert the conviction of Appellant from Section 302 IPC to Part

I of Section 304 IPC.

16.2. That apart, on considering the evidence given by the

immediate family members namely PW-8 and PW-9, children of

Appellant and PW-3 and PW-4, mother and cousin brother of Sangita,

it is seen that none of the prosecution witnesses have complained

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about any demand of money by Appellant. Appellant and Sangita

were married since 1993 and eight years prior to the date of incident

had cohabited together at Manmad. It is only when Sangita obtained a

job of pharmacist in Pune, she was compelled to shift to Pune. It is

also seen from the deposition of prosecution witnesses that Appellant

regularly visited them at Pune. In this context, deposition of PW-8

Shantanu, son of Appellant is relevant and on reading his deposition,

it is seen that Appellant was also a doting father. Thus, we find that

no case whatsoever is made out by the prosecution for applicability of

Section 498-A IPC against the Appellant in the present case.

17. We have been informed that Appellant has already suffered

incarceration for over 14 years and he has been in custody since

31.08.2008.

18. In view of the above discussion and findings, we pass the

following order:-

(i) The conviction and sentence imposed upon Appellant

under Section 498-A is hereby quashed and set aside;

(ii) The conviction of Appellant under Section 302 IPC is

set aside, instead Appellant is convicted under Section

304 (Part I) of IPC and sentenced to 10 years of

imprisonment and fine of Rs. 50,000/-, in default, to

undergo further imprisonment for a period of two

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years.

Since the Appellant has already undergone the

aforestated sentence awarded along with the default

sentence, he shall be released forthwith unless required

in any other case / cases;

(iii) Appeal is partly allowed in the aforesaid terms;

(iv) Interim Application No. 392 of 2020 does not survive

and accordingly stands disposed of.

19. Before parting with the Judgment, we would wish to place

on record appreciation for the efforts put in by Mr. Pawan Mali,

learned Advocate appointed by High Court Legal Services Committee,

Mumbai for espousing the cause of the Appellant; he was thoroughly

prepared in the matter and rendered proper and able assistance to this

Court.

20. All concerned to act on an authenticated copy of this Order.

21. According to record, Appellant is lodged in Paithan Open

Prison. The Secretary, High Court Legal Services Committee is hereby

directed to communicate this Order to the Appellant and also to the

Superintendent of Paithan Open Prison forthwith expeditiously by all

possible modes.

   [ MILIND N. JADHAV, J. ]                                      [ A.S. GADKARI, J.]

              Digitally signed by
AJAY       AJAY TRAMBAK
TRAMBAK    UGALMUGALE
UGALMUGALE Date: 2022.10.03
              14:41:47 +0530