Laxman Dharma Dandekar vs The State Of Maharashtra
2022 Latest Caselaw 9982 Bom

                                                    Cri. Appeal.1032.15 and 1033.15.doc

ATU/RMA
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO. 1032 OF 2015


          Sachin Laxman Dandekar
          Age: 30 years, Occ: Agriculturist,
          R/O. Gangangaon, Dandekar Pada,
          Tal: Dahanu, Dist. Palghar.
          (Presently in Nashik Jail)                        .. Appellant
                                                            (Accused No.2)
               Versus

          State of Maharashtra,
          Through P.I. Talasari Police Station,
          Mumbai.                                           .. Respondent

                                           WITH
                          CRIMINAL APPEAL NO. 1033 OF 2015


          Laxman Dharma Dandekar,
          Age:55 years, Occ: Agriculturist
          R/o. Gangangaon, Dandekar Pada,
          Tal: Dahanu, Dist. Palghar.
          (Presently in Nashik Jail)                        .. Appellant
                                                            (Accused No.1)
               Versus

          State of Maharashtra,
          Through P.I. Talasari Police Station,
          Mumbai.                                           .. Respondent

          Mr. P.R. Arjunwadkar a/w. Ms. Prabha U. Badadare, Advocates for
          Appellants
          Mr. S. S.Hulke, APP for Respondent - State.

                                  CORAM             : A.S. GADKARI &
                                                        MILIND N. JADHAV, JJ.
                                  RESERVED ON       : 05th September,2022.
                                  PRONOUNCED        : 29th September, 2022.

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                                             Cri. Appeal.1032.15 and 1033.15.doc


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

. Criminal Appeal No. 1032 of 2015 is filed by Original

Accused No. 2 and Criminal Appeal No. 1033 of 2015 is filed by

Original Accused No. 1. Accused No.1 is the father of Accused No. 2.

2. Both Appeals question legality of Judgment and Order dated

18.08.2015 passed by learned Additional Sessions Judge, Palghar in

Sessions Case No. 31 of 2011, convicting both Appellants under

Section 235(2) of the Code of Criminal Procedure Code, 1973 (for

short "Cr.P.C.") for offence punishable under Section 302 read with 34

of The Indian Penal Code, 1860 (for short "IPC") and sentencing both

to suffer imprisonment for life with fine of Rs. 1000/- each, in default,

to suffer rigorous imprisonment for one month.

3. Shorn of unnecessary details, facts of prosecution case which

emerge from the record are as follows:

3.1. Sakharam (20 years old) was having a love affair with

Jyotsna, daughter of Appellant No.1 and sister of Appellant No.2.

Appellants' family were against their relationship and alliance since

they belonged to different castes. One year prior to incident, Appellant

No.1 visited house of PW-1 and informed them that he will not

perform marriage of his daughter Joystna with Sakharam and they

should search for another bride. Some months prior to the incident,

Appellant No.2 assaulted Sakharam and snatched his bicycle near

Cri. Appeal.1032.15 and 1033.15.doc

Umbergaon and threatened that he will murder him if he continued

his alliance with Jyotsna.

3.2. On 22.01.2011, at about 06:30 p.m. Sakharam Sukhad

Kherva (hereinafter to be referred as "Sakharam") was returning home

from work on his bicycle He was confronted by Appellants on the

road near Karajgaon who came on motorcycle and assaulted him with

a blunt object on his head and he was seriously injured. PW-3 Datta

Soma Thapad informed PW-1 Ganpat Khevra about the incident. PW-1,

along with younger brother Arvind and other villagers proceeded to

Karajgaon and found Sakharam lying in a pool of blood.

3.3. PW-1 enquired with bystanders about the incident and

learnt that Appellant No.2 and one other person came on motorcycle

and assaulted Sakharam; that Appellant No. 2 caught hold of

Sakharam from behind and the other person accompanying him gave a

blow with hammer on his head leading to bleeding injury; that

Appellants continued giving kicks and abused him and only when

people gathered around them, they ran away on their motocycle.

Sakharam was taken to hospital by PW-1 and others where he was

declared dead on admission.

3.4. PW-1 lodged First Information Report (for short "FIR") and

criminal law was set into motion. CR No. I-7/2011 came to be

registered. PW-10 Dilip S. Pawar Investigating Officer("I.O.") arrested

Cri. Appeal.1032.15 and 1033.15.doc

Appellants on the same night at about 09:30 p.m.

3.5. PW-10 conducted inquest panchanama (Exh. 25) of the dead

body of Sakharam. He carried out recovery and seizure panchanama

(Exh. 38) of blood stained clothes of both accused 'Article Nos. 2, 3, 4

and 5' which they had worn at the time of incident. Clothes worn by

deceased Sakharam were seized (Exh. 50) and marked as 'Article Nos.

6, 7 and 8. PW-10 sent the seized articles to the Chemical Analyzer for

forensic analysis. C.A. Reports (Exh.52 and Exh.53) vide covering

letter dated 06.02.2011 (Exh.51) were produced in evidence. PW- 10

conducted Spot panchanama (Exh.29) and the soil and soil mixed with

blood. On 23.01.2011 Appellant no.1 made a voluntary statement to

the IO and showed the place where the blood-stained hammer

(weapon) and motorcycle were concealed by him. PW-10 prepared

seizure memo (Exh.35A) of weapon (hammer) and motorcycle used

by Appellants. After investigation charge-sheet was filed in the Court

of Judicial Magistrate First Class, (JMFC) Dahanu.

Since the offence under Section 302 IPC is exclusively triable

by Court of Sessions, case was committed to the Sessions Court for

trial. Charge (Exh.5) was framed against Appellants and read over and

explained to them in vernacular, to which both pleaded not guilty and

claimed to be tried.

To bring home the guilt of Appellants, prosecution examined

10 witnesses.

Cri. Appeal.1032.15 and 1033.15.doc

4. PW-9 - Dr. Pralhad C. Padghane, conducted postmortem

examination on the dead body of Sakharam and prepared PM report

(Exh.40) which notified the following injuries:

"A. External Injuries

1. Deep and wide CLW looking like blunt object stab obliquely longitudinal and gapping over left parietal region just behind and above post auricular region measuring about 3 cm x 1.5 cm x 1 & half inch deep allowing probe inside with profuse bleeding. There was a depressed fracture piece of skull bone displaced anteriorly inside.

2. Obliquely longitudinal CLW on left side of forehead with crack fracture on skull bone underneath with blood oozing measuring about 2 & ½ cm. x 0.5 cm. x scalp deep.

3. Vertically oblique CLW with gapping measuring about 1.5 x 0.3 cm. scalp deep present over temporal aspect of left orbit with crack fracture underneath.

4. After scalp dissection there were peripheral scalp hematoma around the scalp wound.

5. Obliquely vertical abrasion measuring about 3 x half cm. brownish black discolouration over left zygomatic region at the level of left ear.

6. Minor abrasion on left knee joint on patelar region measuring about 1 cm x .5 cm.

7. CLW on left leg vertically longitudinal measuring about 1 & half x 0.5 x 2 cm. antero medial aspect and middle of lower half blood oozing.

8. Minor abrasion over right forearm measuring about 2 x.5 cm. dorsally on distal 1/4th radial aspect.

9. Minor bruise dark blue on left forearm dorsally on distal 1/4 radial aspect.

10. Minor abrasion over right knee joint oval shaped, measuring about 2 x half cm.

11. Minor abrasion measuring about 1 x 0.5 cm. on middle knuckle horizontal on right hand. At the places over the above injuries reddish brown scobs present.

12. Longitudinal contusion over right leg measuring about 2.5 x 0.5 cm located over middle of lower half antero medially.

B. Internal Injuries

1. Scalp hematoma one inch in diameter circular shape present over right aspect, frontal region.

Cri. Appeal.1032.15 and 1033.15.doc

2. Peripheral scalp hematoma around the corresponding mentioned in Col.No.17.

C. Injuries on the skull

3. Depress fracture measuring about 4 x 2 cm obliquely longipudinal shape displaced inside anteriorly situated on left parietal bone

4. Crack depress fracture measuring about 1 cm x 0.2 cm elliptical on left temporal bone situated just lateral to left orbit.

5. Cracked depress fracture measuring about 2 x 0.5 cm.

obliquely vertically situated over frontal bone on left aspect.

6. Total half brain hematoma was present on 1 hemisphere.

7. Brain substances damaged correspondingly to fracture sites of skull bone.

4.1. PW-9 in PM Report stated "the probable cause of death was

hemorrhagic shock due to multiple injuries to head and brain causing

internal, external profused bleeding and assault with hard protruding

object." In his substantive evidence he has stated that "injuries at Sr.

No.1, 2, and 3 mentioned in col. No.17 and injuries mentioned in

col.no.19 are possible due to assault by a weapon like hammer. Other

injuries mentioned in col. No.17 are possible in scuffle." In his cross

examination he has specifically stated that, "it is not true that all these

injuries can be caused if a vehicle gives a dash to a person and he falls

on a rough kachcha road having gitties and stones."

5. PW-2, Lakhma Ramu Ambolkar is the sole eye witness to the

incident. On 22.01.2011 he was returning from his daily labour job at

around 5:30 p.m. and Sakharam was ahead of him on his bicycle.

When they reached upto the boundary of village Vasa-Karajgaon, he

Cri. Appeal.1032.15 and 1033.15.doc

saw Appellants riding on motorcycle and they stopped and accosted

Sakharam on the road and assaulted him. He has deposed that

Appellant No.2 held Sakharam from behind and Appellant No.1

removed a hammer from the carrier/boot of the motorcycle and

inflicted a blow on his head; further after Sakharam fell to the ground,

he was assaulted by kicks by Appellants; that people gathered at the

spot and therefore Appellants ran away on their motorcycle from the

spot. Prosecution has heavily relied upon the ocular evidence of PW-2.

6. Mr. P.R. Arjunwadkar, learned Advocate appearing for

Appellants vehemently submitted that, prosecution has failed to prove

its case beyond reasonable doubt and there are material discrepancies

and lacunae in the Judgment passed by the learned Trial Court. He

submitted that there is no material brought on record to prove the

alleged love affair between deceased and daughter of Appellant No. 1

(Joystna) and hence motive is not proved by prosecution; that there is

no incriminating evidence proved against both Appellants to connect

them to the crime in question. He submitted that Appellants had no

enmity with Sakharam and are falsely implicated by prosecution.

Hence he has prayed for setting aside of the impugned Judgment and

Order.

7. PER CONTRA, Mr. S.S. Hulke, learned APP, appearing on

behalf of State has drawn our attention to the deposition of PW- 2, eye

Cri. Appeal.1032.15 and 1033.15.doc

witness, to incident and submitted that he witnessed the assault by

Appellants; that ocular evidence of PW-2 stands corroborated by

medical evidence given by PW-9 pertaining to injuries sustained by

Sakharam. He submitted that PW-1 in his evidence has deposed that

Sakharam was having a love affair with daughter of Appellant No.1

(Jyostna) which was not disliked by Appellants and their family

members; that Appellant No.2, had some months prior to incident

assaulted Sakharam and threatened to kill him if he continued his

alliance with Jyostna and thus the motive was proven. He has

therefore prayed for dismissal of Appeal.

8. We have heard both the learned advocates appearing for

respective parties and with their able assistance perused the entire

evidence and record of the case.

It is seen that prosecution case is substantially based on

ocular evidence, theory of "motive" and recovery of weapon. In the

present case there is a sole eyewitness to the incident.

9. It is pertinent to note that PW-2 is the eye witness who has

witnessed the entire incident from a distance of 30 feet, hence he can

be classified as a wholly reliable witness based on his testimony which

is not shattered in cross-examination; that he is also not an interested

witness; his testimony is corroborated by Medical evidence given by

PW-9 and the inquest and recovery panchanama conducted by PW-10.

Cri. Appeal.1032.15 and 1033.15.doc

10. From perusal of the record of the case it is discernible that

testimony of PW-2 is reliable and therefore needs to be accepted

without any doubt. His testimony narrates the entire incident as

observed by him in close proximity and it stands further corroborated

by recovery evidence (Exh.29 and Exh.35A) and medical evidence

(Exh.40).

11. That apart, on minute perusal of the deposition of the PW-1,

it is seen that Appellants had a clear motive to harm Sakharam, as he

continued his love affair with Joystana (daughter of Appellant No.1),

which was not approved by Appellants and their family. Further

Appellant No. 2's conduct of assaulting Sakharam a few months before

the incident and threatening to kill him if he continued to meet

Joystna proves motive for eliminating Sakharam, is one of the strong

circumstance indicating motive behind the crime.

12. However in the context of reappreciation of evidence in the

present case, it will be apposite to refer to the provisions of Sections

299 and 300 IPC which define offences of culpable homicide and

murder respectively and read thus:

"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Explanation 1.--A person who causes bodily injury to an-

other who is labouring under a disorder, disease or bodily

Cri. Appeal.1032.15 and 1033.15.doc

infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.

Explanation 3.--The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

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--

2ndly.--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-- 3rdly.--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--

4thly.--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 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.

Cri. Appeal.1032.15 and 1033.15.doc

Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2.--Culpable homicide is not murder if the of- fender 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 pre- meditation, 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 of- fender, 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 nec- essary for the due discharge of his duty as such public ser- vant 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 of- fender's having taken undue advantage or acted in a cruel or unusual manner.

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."

13. Sections 302 and 304 IPC prescribe the punishment for the

offence of murder and that of culpable homicide not amounting to

murder respectively and read thus:

"302. Punishment for murder.--Whoever commits murder shall be punished with death or 1[imprisonment for life], and shall also be liable to fine." "304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder, shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is

Cri. Appeal.1032.15 and 1033.15.doc

caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

[emphasis supplied]"

14. In the present case Trial Court has convicted and sentenced

Appellants for the offence of murder (as defined in Section 300 IPC)

under Section 302 IPC.

15. Exception 4 to Section 300 IPC outlines a situation where

culpable homicide does not amount to murder. There are three

requirements for this exception to apply:

(i) the act of killing is committed without premeditation;

(ii) the act of killing is committed in a sudden fight in the

heat of passion upon a sudden quarrel; and

(iii) the offender should not have taken undue advantage or

acted in a cruel or unusual manner.

16. Keeping in mind the aforementioned statutory provisions, on

minute perusal of the evidence and record of the present case, it is

discernible that Appellant No.1's daughter (Jyostna) had a love affair

with Sakharam which was not accepted by his family. It has come on

record that both Jyostna (19 years) and Sakharam (21 years) were of

tender age and belonged to different castes and hence their alliance

Cri. Appeal.1032.15 and 1033.15.doc

was not accepted by Appellants' family. From the deposition of PW-1,

it is seen that Appellant No.1 had visited Sakharam's house and

informed his family that he will not give Joystna's hand to Sakharam

and they should find some other bride for him. It is also important to

note that few months prior tot he incident, Appellant No.2 had also

confronted Sakharam at Umargaon and threatened to kill him if he

continued his lover affair with Jyostna.

17. From the above mentioned two incidents, it can be evidently

seen that Appellants were against their relationship and did everything

possible to break the same. This clearly shows that Appellants were

enraged with Sakharam as the affair was continuing. In this backdrop,

on 22.01.2011 Appellant Nos. 1 and 2 while traveling on their

motorcycle saw Sakharam on Karajgaon road ahead of them and

accosted him to question him as to why he was still continuing his love

affair with Jyostna and abused him profusely. A physical scuffle broke

out and it is clearly seen from the evidence of PW-2 that Sakharam

was overpowered by both Appellants. Appellant No. 2 held Sakharam's

hands and body from behind and Appellant No. 1 in the heat of

passion removed the carpenter's hammer from the carrier/boot of his

motorcycle and gave a singular blow on Sakharam's forehead and he

fell to the ground. Since bystanders including PW-2 gathered at the

spot, Appellants ran away on their motorcycle. It is pertinent to note

that Appellant No. 1 was a carpenter by profession and it is therefore

Cri. Appeal.1032.15 and 1033.15.doc

not unusual on his part to carry a hammer and other equipment

related to carpentry in the boot of his motorcycle. Therefore, in view

of the provisions of Exception 4 to Section 300, in our opinion, the act

of inflicting a singular blow with the hammer on Sakharam's forehead

by Appellant No. 1 can be said to have been inflicted in a heat of

passion and on the spur of the moment due to the motive, but

certainly cannot be a premeditated and planned act to murder him.

We say so for the following reasons.

18. The act of killing Sakharam happened on the road when he

was accosted by Appellants. Certainly this cannot be a premeditated

and planned act. Further because of the relationship between

Sakharam and Jyostna Appellants were enraged with Sakharam for

having continued his alliance with Jyostna and this was the very

reason for confronting Sakharam. The weapon used by Appellant was

the hammer which was not carried in the first instance by Appellant

No. 1 before assaulting Sakharam. It has come in evidence that after

the confrontation with Sakharam, Appellant No. 2 overpowered and

hled him, there were abuses and kick blows given to him and

thereafter Appellant No. 1 reached to his motorcycle took out the

hammer (which is the carpenter's principal tool) from the boot of his

motorcycle and inflicted its singular blow on Sakharam's forehead.

After inflicting the singular blow, Appellants did not take any undue

advantage or act in a cruel or unusual manner but were frightened

Cri. Appeal.1032.15 and 1033.15.doc

since bystanders gathered at the spot. Hence they left the spot on

their motorcycle. Further at the behest and instance of Appellant

No.1, the weapon (hammer) and the motorcycle was recovered and

seized by the IO. Hence it is discernible that it could not have been the

intention of Appellants to kill and murder Sakharam but certainly both

Appellants wanted to teach him a lesson and reprimand him for

continuing with the said alliance. The injury caused to Sakharam by

blow of hammer was however fatal leading to his death.

19. The discussion and findings alluded to hereinabove, in our

considered opinion pertaining to act of the Appellants does not travel

beyond the offence of culpable homicide not amounting to murder in

the facts and circumstances of the present case. Act of Appellants due

to the motive proved by the prosecution was an act committed in the

heat of passion and on the sudden spur of moment whereby the

singular blow of hammer was inflicted by Appellant No. 1 on

Sakharam's forehead. The Trial Court has therefore certainly erred in

convicting and sentencing the Appellants for offence punishable under

Section 302 IPC when the Appellants deserve to be given the benefit of

doubt. The act of the Appellants' falls within the ambit of punishment

for culpable homicide not amounting to murder prescribed under Part-

II of Section 304 IPC.

20. In view of the above discussion and findings, we are of the

Cri. Appeal.1032.15 and 1033.15.doc

firm opinion that Appellants acted in a sudden spur of the moment

and heat of passion. By such act they acted in a manner that, they

knew is likely to cause death of Sakharam but without the intention to

kill him.

21. Hence the following order:-

(i) The conviction of the Appellants in both Criminal

Appeal under Section 302 IPC is set aside; instead

Appellants are convicted under Section 304 Part-II IPC

and sentenced to suffer rigorous imprisonment for 10

years and to pay a fine of Rs. 25,000/- each, and in

default thereof to suffer further rigorous imprisonment

for six months;

(ii) Appellants were arrested on 22.01.2011. Since both

have undergone the sentence awarded above, they shall

be released from prison forthwith unless required in

any other case/cases.

22. Both Criminal Appeals are partly allowed in the aforesaid

terms.

23. All the concerned to act on an authenticated copy of this

Judgment and Order.

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




 AJAY
               Digitally signed by
            AJAY TRAMBAK                                                         16/16
 TRAMBAK    UGALMUGALE
 UGALMUGALE Date: 2022.09.29
               14:58:20 +0530