Bombay High Court
Ramesh @ Shyam Pandharinath Gawande And ... vs The State Of Mah. Thr. Pso Allipur ... on 5 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:789-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.542 OF 2022
1. Ramesh @ Shyam Pandharinath
Gawande, aged about 35 years, Occ.
Agriculturist;
2. Sugandhabai w/o Pandharinath
Gawande, aged about 70 years,
Occupation : Agricultureist, Both r/o
Aatipati Ward, Allipur, Tq. Hinganghat,
Dist. Wardha.
... APPELLANTS.
VERSUS
The State of Maharashtra, through
Police Station Officer, Police Station
Allipur, Tq. Hinganghat, Dist.
Wardha.
... RESPONDENT.
_____________________________________________________________
Shri S.V. Manohar, Senior Advocate assisted by Shri A.A. Choube,
Advocate for the appellants.
Shri M.J. Khan, Addl.P.P. for the respondent/State.
______________________________________________________________
CORAM : VINAY JOSHI AND MRS.VRUSHALI V. JOSHI, JJ.
DATED : 05.01.2024.
ORAL JUDGMENT : (Per : Vinay Joshi, J.)
. Mother and son were tried for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code ('IPC') for
committing murder of another son (Gajanan). Mother was additionally
charged for voluntarily causing hurt by dangerous weapon to
prosecution witnesses Seema, and thereby committed an offence
punishable under Section 324 of the IPC.
2. The Trial Court vide impugned judgment and order dated
25.07.2022 in Sessions Case No.17 of 2017 convicted the accused no.1
Ramesh @ Shyam (son) for the offence punishable under Section 302
of the IPC, whilst acquitted accused no.2 Sugandhabai (mother) from
the charge of murder. However, Trial Court has convicted accused no. 2
Sugandhabai, for the offence punishable under Section 324 of the IPC.
The Trial Court has sentenced accused no.1 Ramesh to undergo
imprisonment for life along with fine of Rs.25,000/- for the offence
punishable under Section 302 of the IPC. Accused no.2 Sugandhabai
was sentenced to suffer rigorous imprisonment for one year with fine of
Rs.2,000/-, for the offence punishable under Section 324 of the IPC.
Being aggrieved by the aforesaid judgment and order of conviction,
both accused have appealed in terms of Section 374 of the Code of
Criminal Procedure ('the Code').
3. The facts of the prosecution case in brief are that, deceased
Gajanan was the real brother of accused no.1 Ramesh and son of
accused no.2 Sugandhabai. Both brothers were residing separately
adjacent to each other. Deceased Gajanan was residing with his wife
Seema, minor son Suyog and daughter Vidisha. Both brothers had a
property dispute for which deceased Gajanan had filed a Civil Suit.
4. On 09.06.2013, around 4.00 pm deceased Gajanan was
talking with neighboring person namely Dashrath Pethkar and his wife,
in front of his house. Informant Seema was at her doorstep. At relevant
time, accused no.1 Ramesh was cutting firewood across the road, by
means of axe. Deceased Gajanan had consumed Kharra (sort of
Tobacco) which he spitted. Accused Ramesh got annoyed and started to
assault Gajanan by means of axe by saying that 'why you spitted by
looking to me'. He dealt the axe blows at the head of Gajanan on which
the latter fell down. Accused Ramesh also gave axe blow at his left
thigh causing bleeding injury. Informant Seema rushed at the rescue of
her husband Gajanan, however accused no.2 Sugandhabai caught her
hair and by blunt side of axe dealt a blow. Injured Gajanan was shifted
to the Hospital where he succumbed to the injuries on the following
day. The informant Seema rushed to the Concerned Police, and lodged
the report regarding occurrence.
5. Initially, crime was registered for the offence punishable
under Section 307 read with Section 34 of the IPC. During the course
of investigation Panchanama of the scene of offence was drawn, clothes
of deceased as well as accused were seized. Blood samples were
collected. At the instance of the accused Ramesh weapon used in the
commission of crime was seized. Postmortem was conducted on the
dead body, inquest panchanama was drawn, statement of eye-witnesses
have been recorded. On completion of investigation, final report has
been filed. Both accused denied the guilt and put the prosecution to the
task of establishing levelled charges with requisite standard of proof.
The prosecution has examined in all 16 witnesses and also banked
upon certain documents to bring home the guild of the accused. The
Trial Court held that Gajanan met with a homicidal death. Accused no.1
Ramesh assaulted Gajanan and thereby committed the offence of
murder. So also, the Trial Court held that Accused no.2 Sugandhabai
caused hurt to the informant Seema, by means of dangerous weapon.
On said finding trial Court has imposed aforementioned sentence.
6. Heard learned Senior Counsel Shri Manohar appearing for
the accused, on facts, as well as on law. Learned Senior Counsel Shri
Manohar has not disputed the homicidal death of Gajanan, however
endevoured to convince that the prosecution failed to establish that the
accused had assaulted to the deceased. In the alternative he would
submit that act of Accused no.1 Ramesh does not constitute the offence
of 'murder' as defined under Section 300 of the IPC. Essential
ingredients to constitute the offence of murder are missing, at the most,
it is a case of culpable homicide not amounting to murder punishable
under Section 304 Part II of the IPC.
7. Per contra, learned Addl.P.P. Shri Khan firmly supported the
decision rendered by the Trial Court. He would submit that accused
no.1 Ramesh has assaulted on the head by dangerous weapon from
which the very intention to kill can be gathered and thus, it is a case of
murder. In the alternative he would submit that even if it is held that it
was not a pre-planned act of accused Ramesh, however his intention
can be well gathered and thus, it would fall under Section 304 Part I of
the IPC.
8. The prosecution evidence consist of Eye-Witnesses, Panch,
Medical Officers and Police Personnel. The line of cross-examination
indicates that the accused had denied homicidal death in the Trial
Court by claiming to be accidental death. The Trial Court has
considered said submission in extenso and held that homicidal death of
Gajanan has been duly established. Though this point was not
canvassed before us, however since the accused is facing a charge of
murder, it necessitates us to deal with said aspect.
9. In order to establish homicidal death of Gajanan,
prosecution is banking upon the Inquest Panchanama, Postmortem
Report and evidence of the Medical Officers. In this regard, the
prosecution heavily relied on the evidence of PW11 Dr. Vishal Surwade,
who has conducted autopsy. For the sake of convenience, we have
extracted relevant portion of his evidence as below :
4. During external examination I found following
injuries.
1. Incise looking lacerated wound over right fronto
parietal region, about 12 cm above the right mastoid of
size 9 cm x 2 cm x cavity deep. Brain matter was
coming out. General position of the wound is obliquely
downward. Beveling margin is present. These margins
are clearcut but contused. Both angles of wound are
accut.
2. Incise looking lacerated wound, it was present over
left side of the occipito parietal region, it was 9 cm.
From left mastoid of size 9 cm x 2 cm x cavity deep.
Brain matter was coming out. General position of the
wound was horizontal above occipital protuberance.
Beveling is also present over upper margin of the wound.
Margins are contused and cleancut. Both angles of the
wound are acute.
3. Chop wound present over posterior aspect of left thigh
of size 13 x 4 cm x muscle deep. The general position of
the wound is obliquely downward towards the medial
end. Margins contused and clean cut. Hamstring muscle
is showing the clean cut tear. Middial end of the wound
is obtuse angle while lateral end is of acute angle.
5. I also noted fracture on left side of occipital bone,
fracture of right parital bone. All these injuries were
fresh and anti- mortam.
6. During internal examination I found following
injuries;
1) On opening the scalp, scalp is edematous, and
contused. There was collection of blood i.e. subgalial
hematon was present over frontal, parietal and occipital
region.
2) On opening the vault, there was depressed
communated fracture of the right parietal bone of size
5x2 cm. Was present there. Depressed and communited
fracture was present on the left occipital bone of size 6x2
cm. Whereas, at the base of the skull a linear fracture of
size 3 cm was present at right middle cranial fossa.
10. As per his opinion, cause of death was hemorrhage and
shock as a result of head injury. He further opined that injury
mentioned in postmortem report (Exh.130) is possible by axe Art.
No.10.
11. The Prosecution has also examined PW12 Dr.Yogita
Mahakalkar, who has initially examined Gajanan (deceased) and found
following injuries :
(1) On right side of head about right ear the injury was
upto 8 cm from the right ear, the size of injury was 6 to 7
cm.
(2) Another injury was on backside of head slightly away
from the mid-line the size of injury was 6 to 7 cm.
(3) The injury was on left thigh on backside. The size of
injury was 6 to 7 cm.
12. She deposed that all the injuries were caused due to sharp
and hard object. All the injuries were fresh, which might have caused
within half an hour. All injuries were grievous in nature. After
examination, she referred injured Gajanan to Government Hospital
Wardha. She proved injury certificate of patient deceased Gajanan at
Exh.206. She identified axe Article-10 and deposed that the injuries
caused to patient Gajanan were possible by said axe.
13. Both Medical Officers have been cross-examined however
they denied the suggestion which could cause sketh to the prosecution
case. Medical Officers have specifically opined cause of death as
'hemorrhage and shock as a result of head injury'. Both have stated that
injury was possible by seized axe. Looking to the nature of injury
coupled with the evidence of Medical Officer, we have no hesitation to
hold that Gajanan met with homicidal death.
14. Though the prosecution has examined several eye-
witnesses, however besides the informant Seema (PW6), other
witnesses have left their loyalty to the prosecution. In umpteen cases,
we came across similar situation where the eye-witnesses shown their
reluctance to give evidence for variety of reasons. Rather, the common
man does not wish to become a cause, or do not want to attract the
wrath of rival, or engulf into the controversy. Certainly, the tendency of
hostility is not potential to decide the fate of the case, but with regard
to the said human phenomenon the available material needs scrutiny.
15. Since the rest turned hostile, the case is based on the sole
testimony of PW6 informant Seema. Learned Senior Counsel Shri
Manohar would submit that since the case is based on single eye-
witness, her evidence must be worthy of credit and must inspire full
confidence of the Court. We are fully in agreement with said
submission. In said perspective, we have minutely examined the
evidence of PW6 informant Seema. Witness Seema is widow of
Gajanan. The place of occurrence was just 30 to 40 feets away from her
doorstep. Nothig has brought on record through cross-examination to
improbabilize her presence. In these circumstances, presence of Seema
at the place of occurrence cannot be doubted since it was quite
natural.
16. PW6 Seema has specifically deposed that while deceased
Gajanan was talking with neighboring person, he has spitted Kharra
that is why accused no.1, who was cutting firewood got annoyed and
gave axe blow at the head of Gajanan. Her evidence is specific on the
point of assault. She has particularly stated that axe blows was dealt at
the backside of the head and then at thigh. Medical evidence clearly
supports the ocular testimony of PW6 informant Seema.
17. Learned Senior Counsel Shri Manohar took us through the
Postmortem notes, to impress that there was only single injury at the
head and second at the shoulder. For this purpose he has shown the
diagram, which is a supplement to column no.17 of the Postmortem
notes. We are unable to find second head injury in the said diagram
too. We cannot read diagram in isolation since postmortem note
specifically refers that second injury was over left occipito parietal
region. Contexually we have gone through the evidence of PW11 Dr.
Vishal Surwade, who equally stated about second head injury at
occipito parietal region. Gajanan was initially examined by PW12 Dr.
Yogita Mahakalkar. It has come in her evidence that second head injury
was at the backside of the head, slightly away from the mid-line. PW6
informant Seema a village lady has particularly stated that the accused
dealt axe blows twice at the head and then at thigh. Thus, we find no
inconsistency in the evidence of sole eye-witness vis-a-vis medial report.
18. The Defence Counsel would submit that as per the evidence
of PW6 Seema at relevant time deceased Gajanan was holding his
minor daughter at his arms and thus, it is difficult for minor to escape
unhurt. He endevoured to impress that the incident as narrated by PW6
informant Seema is quite improbable. True, PW6 Seema admitted in
cross-examination that at relevant time her daughter was at the arms of
Gajanan. There are no set parameters to infer that whenever a person
holds a child, he cannot sustain injuries without causing harm to a
child. Always it depends upon the variety of factors like, the position of
deceased and accused, the part of body where blow was given, the
direction of blow and so on. Therefore, we are not ready to accede the
submission that because of only the child remained unhurt, the story of
assault described by PW6 Seema is improbable.
19. It is argued that blood stained clothes of both children have
not been seized during the course of investigation. Moreover, the
defence has criticized for non-examination of minor son Suyog aged 6
years who was the eye-witness. The Investigating Agency could have
done those things, however those lapses cannot be stretched to the
extent of eclipsing the evidence of the informant, specifically stating
the manner of assault. The prosecution case is tried to be impeach on
some other grounds like FIR does not speak about names of neibhourer
or the passerby have not been examined, but to our mind these things
are of miniscule nature which has no impact on the core issue.
20. Besides the direct evidence of (PW6) informant Seema, the
prosecution has established that the blood stained clothes of the
accused were seized. Moreover, axe with blood stains was seized at the
instance of the accused. All these articles were sent for chemical
analyzation. It was found that the blood of the deceased was of A
positive group. Chemical Analyzers report indicates that blood found on
the clothes of accused as well as weapon seized at his instance was also
of group 'A positive'. Certainly this is a clinching piece of evidence
which connects accused with the crime. The defence urged to discard
said material on account of want of proper sealing however we have
examined the evidence of Investigating Officer from which we are
convinced that the articles were properly seized and sealed. Learned
Trial Judge has aptly dealt the said issue. The evidence of sole eye-
witness is well supported by scientific evidence. Moreover, we are much
impressed by the quick lodgment of FIR. As per the prosecution case,
the incident took place on 09.06.2013 around 4.00 p.m., whilst FIR has
been lodged within one hour with specific details about the act of the
accused. Law always prefers quick lodgment of FIR which eliminates
the chances of concoction. Herein though the informant's husband was
on death bed, she assiduously rushed to the Police Station and
ventilated her grievance. This circumstance of disclosing the complicity
of accused to the Police within one hour, strongly supports the evidence
of PW6 Seema in all respect. The evidence of sole eye-witness is natral
credible and trustworthy. On re-examination of entire material, we have
no doubt in our mind that the prosecution has duly established that
Accused no.1 Ramesh has assaulted Gajanan by means of axe, which
proved to be fatal.
21. This has occasioned us to deal with one more case where
the Trial Court has not dealt with the crucial aspect while concluding
that the offence of "murder" has been established. In several cases, the
Trial Courts after reaching to the conclusion that the act of accused
resulted into causing death, has not further dealt as to how the said act
constitutes the offence of murder. Like mathematical calculations the
Trial Court has simplified the matter that act plus death is equal to the
offene of murder. Certainly, the said mode is neither expected nor
approvalble under law. Reasons are necessary on two counts, firstly the
Trial Judge shall satisfy himsel that act of accused amounts to the
offence of murder, and secondly the Appellate Court would be in a
position to know the reasons as to why the offence of murder. On
exemplary basis, we prefer to quote paragraph 80 of the decision by
which the Trial Court concluded that the prosecution has proved the
offence of murder.
"80. From the above discussion, it is clear that the
prosecution has succeeded to prove that accused No.1
Ramesh assaulted deceased Gajanan by means of Axe.
It has not brought on record through substantive
evidence that accused No.2 had played active role in
assault on deceaed Gajanan. Therefore I hold only
accused No.1 Ramesh guilty for the offence
punishable u/s 302 of I.P.C. and accused No.2
Sugandhabai is liable to be acquitted from the said
charge."
22. Precisely, the Trial Court has not dealt with the issue as to
how the offence of murder defined under Section 300 of the IPC has
been established. As a matter of fact, when on facts it has been proved
that the act of the accused resulted into causing death, further inquiry
is to be undertaken by the Courts that in legal parlance what offence
has been committed. In given facts and circumstances, it has to be seen
whether the act of accused falls within either of the parameters laid
down for the offence of murder as defined under Section 300 of the
IPC. Mere homicidal death is not enough to conclude that it is a case of
murder. We expect from the trial Courts to deal this aspect with all
seriousness.
23. Be that as it may, the question arose whether the act of the
accused of causing death of Gajanan amounts to murder or culpable
homicide not amounting to murder. On the basis of evidence, the
pivotal question of intention is to be decided whether the case falls
under Section 302 or 304 Part I or 304 Part II of the IPC. Murder is a
gravest form of culpable homicide, which has its peculiar characteristic
required to be proved before a person is to be held guilty for
committing murder as defined under Section 300 of the IPC. It requires
judicial scrutiny of the prevailing facts. Merely the fact that death of
human being is caused is not enough to constitute offence of murder
unless one of the mental status mentioned in ingredient of Section 300
is present. It must be proved that there was an intention to inflict the
particular bodily injury actually found to be present. The intention of
the person causing the injury has to be gathered from careful
examination of the facts and circumstances of each case. The intention
to cause the requisite type of injury is a subjective inquiry and then
there would be further inquiry whether injury was sufficient in ordinary
course of nature to cause the death is of objective nature.
24. It is now well understood that in the scheme of the Indian
Penal Code "Culpable homicide" is the genesis and "murder" is the
species and generally speaking culpable homicide sans special
characteristics of murder is culpable homicide not amounting to
murder. The Indian Penal Code recognizes three degrees of culpable
homicide. The first degree of culpable homicide is "murder" which is
defined by Section 300 and made punishable under Section 302 IPC.
The second degree is culpable homicide as defined under Section 299
and made punishable under Section 304 Part I, IPC. The third degree of
culpable homicide is made punishable under Section 304 Part II of the
IPC. Whenever the accused causes the death of another and had no
intention to kill, then the offence would be murder only if, (1) the
accused knew that the intended injury would be likely to cause death,
or (2) that it would be sufficient in the ordinary course of nature to
cause death or, (3) that the accused knew that the act must in all
probability would cause death, and if the case cannot be placed as high
as that and the act is only likely to cause death and there is no special
knowledge, the offence comes under Section 304(II), I.P.C.
25. In order to ascertain the legal impact of the act of accused
entire relevant material needs scrutiny. In this regard observations of
the Supreme Court in case of Pulicherla Nagaraju v. State of A.P. (2006)
11 SCC 444 at paragraph 29 are worthy to note, which reads as below :
"29. Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will
decide whether the case falls under Section 302 or 304 Part I
or 304 Part II. Many petty or insignificant matters - plucking
of a fruit, straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead to
altercations and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may be
totally absent in such cases. There may be no intention. There
may be no premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may be
cases of murder where the accused attempts to avoid the
penalty for murder by attempting to put forth a case that
there was no intention to cause death. It is for the courts to
ensure that the cases of murder punishable under Section
302, are not converted into offences punishable under
Section 304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder punishable
under Section 302. The intention to cause death can be
gathered generally from a combination of a few or several of
the following, among other, circumstances: (i) nature of the
weapon used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether the
blow is aimed at a vital part of the body;(iv) the amount of
force employed in causing injury; (v) whether the act was in
the course of sudden quarrel or sudden fight or free for all
fight; (vi) whether the incident occurs by chance or whether
there was any premeditation; (vii) whether there was any
prior enmity or whether the deceased was a stranger;(viii)
whether there was any grave and sudden provocation, and if
so, the cause for such provocation; (ix) whether it was in the
heat of passion; (x) whether the person inflicting the injury
has taken undue advantage or has acted in a cruel and
unusual manner; (xi) whether the accused dealt a single blow
or several blows. The above list of circumstances is, of course,
not exhaustive and there may be several other special
circumstances with reference to individual cases which may
throw light on the question of intention. Be that as it may."
26. Reverting to the facts, it reveals that there was no deep
rooted enmity between two brothers. Though both were not in cordial
terms, however they were residing adjacent to each other. It emerges
from the evidence that at relevant time accused Ramesh was cutting
firewood across the road by an axe. When he saw his brother (deceased
Gajanan) was spitting Kharra, he conceived the impression of teasing
and thus, by same axe immediately gave two axe blows at the head of
Gajanan. Evidence of Seema unfolds that while assaulting, the acused
said that 'ek>kdMs ikgwu Fkaqdrksl dk;?' which clearly indicates that because
of spitting only, the accused got annoyed and reacted in such manner.
Apparently it was not a pre-planned attack nor it can be said that the
accused was carrying a dangerous weapon with a specific intent. The
things were quite normal for the accused Ramesh since as usual he was
cutting firewood by axe. Therefore, possession of axe which is
implement generally used in villages for cutting wood cannot be
construed that the accused was carrying weapon at relevant time. The
things indicate that since the accused saw that the deceased Gajanan
spitted, may be under misconception, rather due to bitterness found it
humiliating and by loosing temper ran and gave two blows by same
axe. Certainly, the act was not at all premeditated but by loss of temper
on momentary things he dealt axe blows. At the moment whatever was
available at his hand was used to vent the grievance. In above context it
cannot be said that the accused carried a weapon at relevant time with
specific intent.
27. Though the accused gave blows at the head which is a vital
part of the body, however that alone cannot decide the nature but it is
to be appreciated in context with other circumstances. The deceased
Gajanan was holding his small child in arms rather that may have
occasioned accused to hit at back side to avoid blow on a child. If the
accused intended to cause death he could have easily dealt repeated
blows on the defenseless deceased, who was rather captivated by
holding a child. Moreover, the accused has not assaulted
indiscriminately which could have caused hurt to the child too. These
circumstances indicate that in sudden occurrence the accused lost his
mental balance by seeing his brother spitting and while cutting
firewood dealt two blows at the backside of the head of deceased.
Nobody has intervened but after giving two blows the accused
remained there only which also assumes significance.
28. The given facts no where suggest that either accused
Ramesh intended to cause death or intended to cause such bodily
injury coupled with a knowledge it could likely to cause death or even
intentionally caused said bodily injury which is sufficient in ordinary
course of nature to cause death. Moreover, it is quite apparent that
unpredictably everything was happened. No sooner deceased spitted,
accused got annoyed and suddenly while cutting wood diverted to
deceased and by same axe gave blows. There was total absence of
prearranged plan nor evidence suggests so. Thus in heat of passion
upon sudden occurrence, accused reacted in the shape of inflicting axe
blows. There is total absence of intention on the part of the accused
Ramesh. However, the act of inflicting axe blow at the head of deceased
Gajanan in sudden occurrence would definitely attracts the knowledge
that his act is likely to cause death and it would squarely fall within the
clause [c] to Section 299 of IPC.
29. The above discussion firmly establishes that the act of
Ramesh would fall in the third degree of culpable homicide not
amounting to murder. Section 222 of Cr.P.C. permits court to convict
accused for minor offence though he was not charged for the same. The
Code never specifies as to which are the minor offences corresponding
to major offences. The offence of culpable homicide not amounting to
murder of third degree would be well construed as minor offence of
Section 302 of the Indian Penal Code. Therefore, the act of accused
No.1 Ramesh would fall in the category of latter part of culpable
homicide not amounting to murder which is punishable U/s 304 Part-II
of the Indian Penal Code.
30. As regards to the case of accused no.2 Sugandhabai, the
learned Counsel appearing for the defence besides claiming leniency
and reduction in sentence, has not advanced any other submissions.
The prosecution evidence is sufficient to hold that accused no.2
Sugandhabai caused hurt to PW6 Seema by means of dangerous
weapon, and therefore, the conclusion of the Trial Court to that extent
needs no interference.
31. Coming to the point of sentence, the learned Senior
Counsel Shri Manohar would urge for taking lenient view. It is
submitted that the accused no.1 Ramesh is behind bars from last four
years. He belongs to the poor strata of the society and shouldering
responsibility of his family. The occurrence was unfortunate outcome of
loss of temper. Reliance has been placed on the decision of the
Supreme Court in case of Pop Singh and ors. vs. State of Madhya
Pradesh 2023 (16) SCALE to contend that in similar situation the
Supreme Court while altering the punishment into the offence
punishable under Section 304 Part II has imposed sentence for five
years of rigorous imprisonment. We do not see any legal ratio as such in
said decision. Though it is urged that the period already undergone is
sufficient, however we are not in agreement since one person has lost
his life for no reason. While imposing sentence, right balance is to be
maintained. Concededly, there are no antecedents nor the accused
Ramesh was having criminal tendency but as of sudden he took such a
step by treating the instance of spitting as a provocation.
32. Having regard to the all above facts, we are of the view that
seven years rigorous imprisonment would be just to balance the scale.
As regards to accused no.2 Sugandhabai, it is informed that she has
already undergone 79 days of imprisonment. Having regard to the
period of incarceration and her gender coupled with the act, we are of
the view that the said incarceration would be sufficient for the offence
punishable under Section 324 of the IPC.
33. In view of the above, Criminal Appeal is partly allowed. We
hereby modify the impugned judgment and order dated 25.07.2022
passed in Sessions Case No.17 of 2017 to the extent of altering
conviction of accused no.1 Ramesh @ Shayama s/o Pandharinath
Gawande from Section 302 of the IPC, to Section 304 Part II and
sentence him to suffer rigorous imprisonment for seven years along
with fine and default clause as imposed by the Trial Court.
34. We also modify the sentence of accused no.2 Sugandhabai
wd/o Pandharinath Gawande for the offence punishable under Section
324 of the IPC and sentence her for the period which she has already
undergone, along with fine and default clause as imposed by the Trial
Court.
35. The appeal stands disposed of in the above terms.
(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Trupti
Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 19/01/2024 18:29:58
