Kiran Raghunath Dalvi vs The State Of Maharashtra
2023 Latest Caselaw 10645 Bom

2023:BHC-AS:30558-DB
                                                           CRIA-299-2018.doc


               Andreza

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION
                                    CRIMINAL APPEAL NO. 299 OF 2018
               Kiran Raghunath Dalvi, Age ; 27 years,
               Occ: business, residing at Narayanpur,                                    ... Appellant
               Tal. Purandar, Dist. Pune.                                                (Orig. Accused)
               (At present in custody at Yerwada Jail)
                                    Versus
               The State of Maharashtra,                                                 ... Respondent
               (Through the Saswad Police Station, Pune).


               Mr. Daulat G. Khamkar for Appellant.

               Mrs. M. M. Deshmukh, A.P.P. for Respondent-State.

                                     CORAM:               A. S. GADKARI AND
                                                          PRAKASH D. NAIK, JJ.

              RESERVED ON                          :      18th April 2023

              PRONOUNCED ON :                             13th October 2023
                                                       ( THROUGH V.C. )


               JUDGMENT (Per Prakash D. Naik, J.)

1. The Appellant is convicted for an offence under Section 302 of

Indian Penal Code (IPC) and sentenced to suffer imprisonment for life

and to pay fine of ₹ 25,000/-. He is acquitted for the offence under

Section 498-A of IPC vide Judgment and Order dated 17.10.2014

passed by learned Additional Sessions Judge, Pune.

2. The case of the prosecution is as under :

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The Complainant Devkibai Dinkar Gaikwad, is the mother of

deceased Suvarna. Marriage of Suvarna was performed with accused

no.1 in 2002. Suvarna went to reside with accused persons in a joint

family at Narayanpur. Suvarna was blessed with two children out of

the wedlock. The accused were engaged in the business of preparing

garlands in the temple. Suvarna used to help them in the business.

Accused no. 1 was addicted to liquor. He used to ill-treat his wife

Suvarna by saying that she did not prepare garlands of flowers properly

and she was not doing the household work properly. She was assaulted

and abused. The accused used to assault her on the same count.

Suvarna along with the children had been to the house of Complainant.

At that time she told her mother that the accused are assaulting her and

threatening to cause her death. They used to pick up quarrels and beat

her on financial affairs. Suvarna returned back to her matrimonial

home. She again came back to her mother and informed that the

accused assaulted her and drove her out of the house. Suvarna stayed

with her parents till 20.09.2008. Accused no.1 came to the house of

Complainant on 21.09.2008 to take Suvarna and children back. He

assured to give good treatment to Suvarna and took her back on

21.09.2008. On 11.10.2008, Complainant received message that

accused assaulted Suvarna and she is serious. She has been admitted

in hospital. The Complainant and her husband rushed to hospital.

Suvarna had sustained bleeding injuries on her head. She was

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unconscious. She was declared dead. First Information Report was

lodged. The prosecution case is that the accused no.1 assaulted the

deceased on her head by giving blow of iron rod and after the assault,

he was caught by Pw.2-Bharat Kshirsagar and Pw.3-Vilas Khurgade.

Police reached the spot. Panchanama was effected. Postmortem was

conducted. Statements of witnesses were recorded. Clothes of the

deceased and accused were seized under panchanama. Accused were

chargesheeted.

3. Charge was framed under Section 302 of IPC and Section 498-A

of IPC.

4. Vide Judgment and Order dated 17.10.2014, passed by learned

Additional Sessions Judge, Pune, the accused no.1 is convicted for an

offence under Section 302 of IPC. He was acquitted for the offence

punishable under Section 498-A of IPC. Accused nos. 1 and 3 were

acquitted of the offence punishable under Section 498-A and 302 read

with Section 34 of IPC.

5. Prosecution examined eleven witnesses. Pw.1-Devkibai Gaikwad

is the first informant. She is the mother of deceased. Pw.2-Bharat

Kshirsagar reached the spot at the time of incident. Pw.3-Vilas

Khurgade is the eye witness to the incident. Pw.4-Abhimanyu Borkar

had witnessed the incident of assault. Pw.5-Dr. Ajay Taware, is the

Medical Officer. Pw.6-Dr. Bhupendra Mohole conducted postmortem

of deceased. Pw.7-PSI Rajendra Boravke, is the Investigating Officer.

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Pw.8-Jaysing Patil, is the Investigating Officer, Pw.9-Nikhil Bhutkar, is

panch witness. Pw.10-Dr. Suresh Dabadgaonkar, is the Chief Medical

Officer at Noble Hospital, Pune and Pw.11-Ajit Jadhav, is panch witness

for arrest panchanama. Dw.1-Dr. Sameer Shitole, examined Suvarna

and declared her dead. Dw.2-Dr. Sahebrao Shinde, is the Medical

Officer.

6. Learned Advocate Mr. Khamkar representing Appellant

submitted that the prosecution case is weak. There is no evidence to

establish the charge under Section 302 of IPC. The Appellant has been

acquitted for the offence under Section 498-A of IPC. There are

discrepancies in the evidence of witnesses. The co-accused were

acquitted of all the charges. The ocular evidence and medical evidence

is contradictory. The prosecution case rests principally on testimony of

three witnesses namely, Pw.2, Pw.3 and Pw.4. Their evidence does not

inspire confidence. There are number of contradictions. It would not

be safe to rely on their testimony. The defence of the accused is that

some unknown persons killed the deceased whilst committing dacoity.

The trial Court has erroneously discarded the said defence. The

discovery of iron rod is contrary to Section 27 of the Indian Evidence

Act. The eye witnesses have not given material particulars of the

incident. There is no motive to commit murder. The accused is

entitled for benefit of doubt. The prosecution has failed to prove its

case beyond reasonable doubt. The evidence of defence witnesses was

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ignored. In the alternative it is submitted that the offence under

Section 302 of IPC is not made out. At the most, the accused could be

convicted under Section 304(ii) of IPC. The Appellant is in custody for

a period of fourteen years. The sentence may be reduced and the

Appellant may be released on the basis of sentence undergone by him.

7. Mr. Khamkar has relied upon the following decisions :

(i) Ankush Shivaji Gaikwad vs. State of Maharashtra1

(ii) Madanayya vs. State of Maharashtra2

(iii) Rampal Singh vs. State of U.P.3

8. Learned Additional Public Prosecutor submitted that the

prosecution has established the case beyond doubt. The evidence of the

prosecution witnesses could not be shaken. There are eye witnesses to

the incident. They have established that the Appellant had assaulted

the deceased with iron rod. The evidence on record establishes that the

accused had intention to commit murder. The prosecution witnesses

inspire confidence. The medical evidence corroborated the version of

the eye witnesses. The victim had sustained several injuries. The

offence under Section 302 of IPC is proved. Considering the weapon

used in the commission of crime, number of injuries suffered by the

victim, nature of injuries suffered by the victim on the vital part of the

body on which the injuries were suffered clearly proves that the accused

no.1 has committed murder of the deceased. Acquittal of the co-

1 AIR 2013 SCC 2454

2 (2017) 13 SCC 485

3    2012 Cri.L.J. 3765


                                   13th October 2023





                                 CRIA-299-2018.doc

accused would not affect the prosecution case. The assault resulting in

death was authored by the Appellant. All the ingredients to constitute

the offence under Section 302 of IPC are made out. No interference is

called for in the impugned Judgment. Appeal may be dismissed.

9. We have scrutinized the record. Perused the evidence of

witnesses. The appellant and the co-acused Raghunath Bhiku Dalvi

and Smt. Shantabai Raghunath Dalvi, were charged of offences under

Section 498-A and Section 302 read with Section 34 of IPC. Accused

nos. 2 and 3 are acquitted of all the charges. Whereas, the Appellant

has been convicted for an offence under Section 302 of IPC and

acquitted for the offence punishable under Section 498-A of IPC.

10. The First Information Report was lodged by Devkibai Gaikwad.

She is the mother of deceased. She has been examined as Pw.1. She

has deposed that Suvarna (deceased) was her daughter. She was

married to accused (Appellant). Accused no.2 is father in law of

Suvarna and accused no.3 was her mother in law. All the accused were

residing jointly. The accused no. 1 was addicted to liquor. The accused

and Suvarna were in the business of preparing garlands. Accused no.1

was assaulting Suvarna. He was insisting that Suvarna should bring ₹

25,000/- to ₹ 50,000/- from her father. He used to quarrel with

Suvarna on the count of transaction pertaining to the shop. Accused

nos. 2 and 3 used to beat her regularly. Suvarna visited her parental

home with children and disclosed that she was subject to physical

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torture by the accused. On her return to matrimonial house, she would

again face threat of dire consequences. She was sent back to her

matrimonial home. She was again assaulted by the accused. The

victim Suvarna was at her parental home thereafter for about one and

half month. The accused no.1 came to take her back to matrimonial

home. Accused no.1 assured that he would not ill-treat Suvarna.

Immediately thereafter, the Complainant received a message that

accused had assaulted Suvarna and she has been admitted to hospital.

The Complainant and her husband went to the hospital. Some persons

informed her that accused no.1 and his mother had assaulted Suvarna

with iron bar on her head. She lodged the report.

11. In the cross examination, Pw.1 stated that the accused are

financially sound. In the past complaints were lodged against the

accused with police regarding ill-treatment to Suvarna. There is no

reference to demand of ₹25,000/- in her report, Exhibit P-53. At the

time of lodging report, she did not mention that she inquired with

persons from Village Narayanpur regarding the incident and she came

to know about it from the said persons.

12. Pw.2-Bharat Kshirsagar, acted as Panch for spot panchanama.

He deposed that on 11.10.2008, he noticed that wife of accused no.1

was lying in pool of blood near the house. Vilas Khurgade had caught

hold of accused no.1. Accused no.1 lifted one stone lying at the spot in

order to assault his wife Suvarna on her head. He asked him to drop

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the stone and, accordingly, he dropped it. He gave call to Police

Station. Victim was sent to hospital. Police arrived at the spot. On the

next day, police recorded his statement. Police recovered articles from

spot.

13. In the cross examination, Pw.2 stated that the deceased was

unconscious when he saw her. About two hundred people had gathered

at the spot. Some persons were present near the accused. In the

statement, he has stated that he told accused no.1 to drop the stone and

accordingly he dropped it. On perusal of the statement, he cannot

assign any reason as to why this fact is not mentioned in the statement.

14. From the evidence of this witness, it is apparent that he is not the

eye witness to the assault. He saw the accused at the spot of incident.

There is omission in his version that, he saw the accused holding stone

which was dropped by him.

15. Pw.3-Vilas Khurgade, is the eye witness to the incident.

According to him, on 11.10.2008, he heard the commotion in the

Village. He went to the spot. He saw the accused assaulting his wife

Suvarna by iron bar. He rushed to the spot. He caught accused no.1.

The victim fell unconscious. She had suffered head injury. Pw.2 came

to the spot.

16. In the cross examination, Pw.3 stated that there are residential

houses near the house of accused. Persons who are in the temple

cannot hear the noise or commotion if it takes place in front of the

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house of the accused. He knows most of the villagers. He had caught

the accused no.1. At that time, he was having iron bar. Accused no.1

did not leave the place till the police had arrived. His statement was

recorded by the police on 12.10.2008. Iron bar has no specific

identification marks.

17. The defence has not been able to discard evidence of Pw.3 being

eye witness. His evidence that the victim was assaulted by accused no.1

cannot be disbelieved.

18. Pw.4-Abhimanyu Borkar, has deposed that on 11.10.2008, he had

gone at the construction work of the house of one Gulabrao Gaikwad.

He saw accused no.1 and his wife Suvarna quarreling. At that time,

accused nos. 2 and 3 were present. Accused nos. 1 to 3 assaulted

Suvarna. He did not pay any heed to it as such quarrels used to take

place daily. He saw accused no.1 assaulting Suvarna with iron rod on

her head. Sushilabai Dalvi tried to stop accused no.1 by holding iron

rod. He slapped Sushilabai. The accused no. 1 continued assaulting

Suvarna. Pw.2 and Pw.3 came to the spot. Pw.2 took the iron rod from

accused no.1. The accused no.1 took stone lying aside. He was about to

hit Suvarna, but Pw.2 prevented him from doing so. Call was given to

the police. She was unconscious. She was taken to hospital. The

witness was cross examined. He stated that he met the police for the

first time in connection with this case on 13.10.2008. His statement

was recorded.

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19. Although the witness has been cross examined at length, the

version of the witness about the incident being witnessed by him could

not be demolished. This witness has referred to the quarrel between

the accused and the victim, which used to occur usually. There is no

assault by using stone. The evidence of this witness discloses that the

incident had occurred suddenly during the quarrel between the parties.

The evidence does not disclose from where the accused brought the

iron rod or whether it was a pre-planned assault on the victim with iron

rod.

20. Pw.5-Dr. Ajay Taware, has deposed that he was attached to BJ

Medical College. Dr. Mohole was working as Assistant Lecturer.

Postmortem of Suvarna Dalvi was conducted by Dr. Wable and Dr.

Mohole. They had mentioned the injuries in paragraphs 17 and 19 of

the postmortem report. They mentioned the cause of death due to

blunt injury over the head. They opined that injuries are sufficient to

cause death in ordinary course of nature individually and collectively.

The injuries mentioned in column no. 17 and corresponding injuries

mentioned in column no. 19 are sufficient to cause death in the

ordinary course of nature. The said injuries are possible by iron bar.

21. Pw. 6-Dr. Bhupendra Dinkar Mohole has deposed that on

examination he found external and internal injuries. They were

sufficient to cause death in ordinary course of nature individually,

collectively and associated with other injuries. In the cross

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examination, he stated that he was not handed over any document from

Noble Hospital when the dead body was referred to him for

postmortem.

22. Pw.7-Rajendra Boravke, has stated that he was in charge of

investigation on 12.10.2008. He visited the spot. He recorded

panchanama of spot. The deceased had filed several applications in the

past. It was against the accused that ill-treatment was caused to her on

account of dowry.

23. In the cross examination, Pw.7 stated that he did not visit the

spot on 11.10.2008. He did not make inquiry with witness Bharat

Kshirsagar on 12.10.2008 when spot panchanama was drawn. He did

not record statement of Bharat Kshirsagar on 12.10.2008. Pw.2 did not

inform him while recording his statement that accused no.1 dropped

the stone when he was instructed to do so. Pw.2 did not inform him

that boys present there removed the injured to hospital and that few

boys are present there. Pw.2 did not inform him that accused no.1

runs flower shop behind the temple and the deceased was assisting him

in his shop. Pw.4 did not inform him that after assaulting Sushilabai,

she fell down. He did not inform that when iron bar was taken from the

hands of accused no.1, he took the stone lying aside. It did not

transpire in his investigation that the accused was caught hold with

iron bar in his hand. He did not visit Noble Hospital.

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24. Pw.8-API-Jaysing Patil, deposed that he obtained complaint of

Pw.1. It was registered under Sections 307, 323 and 498-A read with

Section 34 of IPC. He went to Noble Hospital and effected

panchanama of dead body of deceased. Offence under Section 302 of

IPC was registered. Doctor intimated that deceased died due to head

injury. He conducted investigation. He seized the weapon and clothes.

Recorded statements of witnesses.

25. In the cross examination, Pw.8 stated that he had not collected

medical paper of Noble Hospital of deceased before filing chargesheet.

He denied that dying declaration of the deceased was recorded at Noble

Hospital and it was not supporting the case. Weapon used in this case

was found lying at the spot. Complainant had not stated in her

statement that accused no.1 had demanded ₹25,000/- to ₹50,000/-

with her.

26. Pw.9-Nikhil Ganesh Bhutkar, has stated that he was called by the

police on 15.10.2008. The accused gave statement that he would

produce the iron bar. Memorandum statement was recorded. The

accused showed the iron rod kept in front of house. Police seized the

iron bar.

In the cross examination he stated that one case is registered

against him by Saswad Police Station. The case is going on before the

Sessions Court.

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27. Pw.10-Dr. Suresh Dabadgaonkar, stated that he was in charge of

Medico Legal Register of Noble Hospital, Pune. He produced legal

register of Noble Hospital. On 11.10.2008, Suvarna Dalvi was brought

to the hospital. She was examined by the Doctor. She had eleven

injuries on her person. While sending the dead body from the hospital

for postmortem, their procedure is that they obtain thumb mark of the

deceased person on the form which is sent to police with the dead body

for postmortem. When the victim was examined by their hospital, she

was already dead.

28. In the cross examination it is stated that when they are sending

dead body to postmortem to police, they were keeping office copy with

them. In answer to the question whether the injuries noted as

punctured wound can occur by sharp edged weapon, he answered in

affirmative and said that incised injuries cannot be occurred by hard

and blunt object. By hard and blunt object, punctured wound cannot

occur. Incised wound occurred by sharp and cutting object. In answer

to another Court question that on going through the postmortem report

and column no. 17, the injuries noted in the postmortem in column no.

17 and injuries noted by his Doctor in MLC register are same. The

witness answered that as the patient is examined by the houseman,

who is Junior Doctor, on clinical examination he found that the patient

is dead and therefore he was not very particular about noting the

detailed nature of injuries and as the case was a medico legal, it had to

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be forwarded for postmortem through Police so he was not very

particular about not noting down injuries therefore there was disparity

between the postmortem noted injuries mentioned in column no. 17 of

postmortem notes and the medico legal register of the hospital. It is

generally a practice that if the case is brought dead, they do not go into

the details of the injuries because in the case of scalp the skin is tensed

on the bone so it is very difficult to differentiate an incised injury from

lacerated injury even for experienced doctor and being a private

hospital, they do not take brought dead cases and usually declared

them dead and send them for postmortem.

29. In the cross examination, he stated that he knows Dr. Wable,

who is in-charge of Forensic Medicine Department of Sassoon Hospital,

Pune. He did not agree with the proposition that every Doctor who is

noticing dead body should note the situation of dead body. It is true

that if the patient is brought to Doctor in injured condition, it is first

duty of the Doctor that he should save the life of the injured person. It

is not true to say that firstly it is requirement to have diagnosis of

disease of patient. It is necessary to save the life first. The line of

treatment depends on the seriousness of the case in hand after

examination of the patient. Houseman Doctor is trained Doctor who

checks the patients in serious cases. It is true that the postmortem

injuries noted in paragraph 17 are not in conformity with the

observations of injuries noted by Houseman Doctor of their hospital.

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When the Doctor gets an opportunity to see the injury at the earliest,

his observation to that effect is always accurate as the healing process

starts as the time passes. After preliminary examination, if the patient

is found dead in a private institution, they do not go to the details of

injuries and diagnosis when the case is medico legal case because it has

to be sent to postmortem.

30. Pw.1-Ajit Jadhav, is the panch witness for arrest panchanama

carried out and clothes of the accused were seized.

31. The defence examined Dr. Sameer Suresh Shitole, as DW.1. He

stated that he is a BHMS Doctor. Injuries are of two types. One is

lacerated wound, abrasions wound and contusions wound and second

type is incised wound, punctured wound and stab wound. The first

type of injuries pertaining to lacerated wound, abrasions and

contusions, which are probable by blunt object and second type of

injuries pertaining to incise wound, punctured wound, stab wound are

probable by sharp object. He produced MLC register of Noble

Hospital. On 11.10.2008, he was working as Houseman. He brought

MLC register as per witness summons. Suvarna Dalvi was brought to

the hospital on 11.10.2008. She was taken for primary treatment. He

examined her and found that she was brought dead. He found eleven

injuries. The injuries noted in the register brought by him at serial nos.

13 and 5 to 11, are probable by sharp object. Incised wounds are mostly

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caused by sharp object. Their edges are clear cut. If the group injury

come under laceration, edges are irregular.

32. In the cross examination by the APP, he stated that three months

before joining Noble Hospital, he passed out BHMS degree. The work

of autopsy is not included in their syllabus. He never did autopsy work

at any time. He never did any operation and not taught about

operation. During their studies, they did not have any opportunity to

see operations, to do any operation, to see any injury and to do any

stitches work. The topics are related to Human Behaviour and

Medicine. There was no occasion for him to look and consider any

injury. In 2008 he was having superficial knowledge about injury. The

victim was brought in dead condition. As per his knowledge he noted

the injury in MLC register. He was not having any knowledge about

injury no. 1, 3 and 5 to 11. Injury noted in the postmortem are correct.

The internal injuries are true and correct. The injuries noted in

postmortem are ante-mortem. In re-examination he stated that

Forensic Science was his study in the syllabus.

33. Dw.2, Dr. Sahebrao Shinde has deposed that he was serving at

Noble Hopital, Pune. On 11.10.2008, he was at Casualty Department.

After declaring the patient as dead, they intimated to police to visit the

hospital and carry the body to Sassoon Hospital along with the dead

body. They did not follow any other procedure while sending dead

body. In the cross examination, it is stated that Exhibit 130 is the

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xerox copy of office copy of the hospital. Original copy is sent to

Sassoon Hospital, Pune and office copy is given to police.

34. On the scrutiny of the evidence of all the witnesses including the

defence witnesses, it is apparent that role of assault by iron rod has

been attributed to the Appellant. It is pertinent to note that all the

accused including the Appellant were acquitted for offence under

Section 498-A of IPC. The witnesses have deposed that the Appellant

was seen assaulting the deceased. The evidence of witnesses discloses

that there used to be quarrels between the accused and the victim. The

version of the Complainant that there was demand of money by the

accused was proved to be an omission. The incident of assault had

occurred in the quarrel that had ensued between the victim and the

accused. Accused nos. 2 and 3 are acquitted for the offence under

Section 302 of IPC as well as Section 498-A of IPC. The prosecution

has adduced the evidence of witnesses which is consistent in proving

that the Appellant was involved in assaulting the deceased. The

witnesses are not clear as to the number of blows. The accused had

examined defence witnesses. The accused had tried to contend that

there is discrepancy in the postmortem report and the medical case

papers of Noble Hospital where the victim was initially taken for

treatment. The defence has argued that there is major disability in the

number and nature of injuries reflected in the register produced by

Noble Hospital and the postmortem report. The evidence of the

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Doctors from Noble Hospital and the cross examination of the defence

witnesses from the Noble Hospital examined by the defence, it is

apparent that the injuries noted by Noble Hospital were by Houseman

who had no adequate experience and that the injuries reflected in the

postmortem were correct. There is no reason to doubt the injuries

reflected in the postmortem. The defence has not been in position to

discard the injuries appearing in the postmortem. Thus, the overtact

attributed to the Appellant that he has assaulted the victim, has been

proved. The victim has died due to injuries suffered by her on assault

by Appellant with iron rod.

35. Learned Counsel for the Appellant has submitted that the

Appellant is in custody for a period of fourteen years. By way of

alternate submission, it is submitted that assuming that it is proved

that the victim died due to assault by Appellant, the offence would not

fall under Section 302 of IPC. There was no intention on the part of the

accused to commit murder of his wife. Hence, the conviction under

Section 302 of IPC may be altered to Section 304(ii) and the Appellant

may be released from custody on the basis of sentence undergone by

him.

36. In the case of Ankush Shivaji Gaikwad vs. State of

Maharashtra (supra), it was held that intention to cause death can be

gathered generally from a combination of a few or several of the

following, among other, circumstances viz. nature of the weapon used,

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whether the weapon was carried by the accused or was picked up from

the spot, whether the blow is aimed at a vital part of the body, the

amount of force employed in causing injury, whether the act was in the

course of sudden quarrel or sudden fight or free for all fight, whether

the incident occurs by chance or whether there was any pre-

meditation, whether there was any prior enmity or whether the

deceased was a stranger, whether there was any grave and sudden

provocation, and if so, the cause for such provocation, whether it was

in the heat of passion, whether the person inflicting the injury has

taken undue advantage or has acted in a cruel and unusual manner and

whether the accused dealt a single blow or several blows. The Court on

the basis of factual aspect and the evidence on record, altered the

conviction under Sections 302 and 304(ii) of IPC by observing that

there was verbal altercation between the accused and the deceased,

which culminated into scuffle in which the Appellant hit the deceased

with iron rod which he was carrying and did not give any further blow

after the deceased fell down.

37. In the case of Madanayya vs. State of Maharashtra (supra),

it was held that on going through the postmortem report, it was

observed that on going through the postmortem report, there is no

doubt that there were a number of injuries on the body of the deceased.

None of the injuries by itself were sufficient to cause death. The

cummulative effect of the injuries is that the deceased died. The issue

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arises is whether the accused had the intention of causing death of the

deceased. The deceased narrated the incident to her sister and she

survived till the evening although assault was in the morning. It is

difficult to impute the intention to kill to the Appellant. The conviction

was converted from Section 302 to Section 304(ii) of IPC.

38. In the case of Rampal Singh vs. State of Uttar Pradesh

(supra), the Apex Court had dealt with the distinction between culpable

homicide amounting to murder and not amounting to murder. In the

said case, the dispute was between the deceased and the acused who

were related to each other on certain construction made by the

deceased on his land. There was heated exchange of words taking place

between the accused and the deceased. The deceased was throwing the

accused on the ground. Both separated by others present at spot. The

accused brought a rifle from his house and warned his brother standing

near the deceased to keep away as he was going to fire bullet.

Subsequently, on provocation of deceased, accused fired a shot hitting

the deceased in the stomach, which resulted in his death. It was held

that though the offence was not committed with any premeditation and

intention to kill, the same was committed with intent to cause bodily

injuries which could result in death of the deceased. The accused had

not fired indiscriminately but took a clear aim at the deceased and thus

it was not a case of knowledge simpliciter but that of intention ex-facie

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and altered the conviction of accused from Section 302 of IPC to

Section 304(i) of IPC.

39. The evidence on record in the present case analysed herein above

indicates that the incident had taken place during quarrel. The accused

had assaulted his wife with iron rod. It is not clear from where the

weapon was brought. The facts indicate that it was at the spot of

incident. The accused continued to stay at the spot. He was then

apprehended by the witnesses and till police arrived, he did not try to

disappear from the spot. It is true that there are number of injuries on

the person of the deceased reflected in the postmortem report. From

the evidence on record and the nature of injuries, it can be seen that the

accused had committed the act of assault with intent to cause her

bodily injury, which could result in the death of the deceased. The case

would therefore fall under Section 304(i) of IPC.

40. Section 304 of IPC is quoted herein below for the purpose of

reference, which reads as follows :

"Section 304 -Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 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 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."

41. Thus, though it is proved that the accused had assaulted the

deceased with iron rod, which resulted in victim's death, it does not

13th October 2023

CRIA-299-2018.doc

appear from the factual matrix and the evidence on record that there

was an intention to kill although the accused has committed the act

with intent to cause bodily injury which could result in the death of the

deceased. The Appellant has been in custody for a substantial period of

time. Hence, from altering the offence from Section 302 to Section 304

(Part-I) of IPC, the accused can be released from custody on the basis of

the sentence of imprisonment undergone by him.

ORDER

(i) The Appeal is partly allowed;

(ii) The Judgment and Order dated 17.10.2014 passed by learned Additional Sessions Judge, Pune, is modified by altering the conviction under Section 302 of IPC to Section 304(Part-I) of IPC and the Appellant is directed to be released from custody on the basis of the sentence of imprisonment undergone by him;

(iii) Appeal stands disposed of.

(PRAKASH D.NAIK, J.) (A.S.GADKARI, J.)

ANDREZA PEREIRA Digitally signed by ANDREZA PEREIRA Date: 2023.10.13 15:38:41 +05'30'

13th October 2023