Bombay High Court
Amit S/O. Kishor Salmake vs The State Of Mah. Pso, Rajapeth Ps, ... on 29 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
1 apeal777.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.777/2023
Amit S/o Kishor Salmake,
aged about 33 Yrs., R/o Vilayatpura,
Near Bagve's Flour Mill, Achalpur,
Dist. Amravati.
At present in Central Jail, Amravati. ... Appellant
- Versus -
The State of Maharashtra,
through Police Station Officer,
Rajapeth Police Station, Rajapeth
Amravati, Tq. & Dist. Amravati. ... Respondent
-----------------
Mr. D.S. Khushalani, Counsel for the Appellant.
Mr. A.B. Badar, A.P.P. for the Respondent.
----------------
CORAM: VINAY JOSHI AND MRS.VRUSHALI V. JOSHI, JJ.
DATED: 29.1.2024.
ORAL JUDGMENT (Per Vinay Joshi, J.)
Heard Mr. D.S. Khushalani, learned Counsel for the
Appellant and Mr. A.B. Badar, learned A.P.P. for the Respondent.
2 apeal777.2023
2. The husband was facing a trial for committing the
homicidal death amounting to murder of his mother-in-law
namely Kalawati in Sessions Case No.323/2021. The learned
trial Court relying on the evidence of eye witnesses, recorded the
finding of guilt vide impugned judgment and order dated
10.10.2023 and thereby imposed sentence to undergo
imprisonment for life along with fine for the offence punishable
under Section 302 of the Indian Penal Code.
3. The prosecution case in nutshell is that the appellant
(accused) was son-in-law of deceased Kalawati. On 27.11.2020
around 9.30 p.m. domestic quarrel occurred in between husband
and wife i.e. accused with his wife in which deceased Kalawati
intervened. The accused picked up an iron rod lying in the house
and gave a forcible blow at the head of Kalawati which proved to
be fatal. On the basis of information given by relative of
deceased - Priti, report has been initially lodged for the offence
punishable under Section 307 of the Indian Penal Code. Later on
3 apeal777.2023
it was converted into offence punishable under Section 302 of the
Indian Penal Code. The police carried out panchanama of the
scene of offence. Dead body was sent for post-mortem
examination. Accused was apprehended. Weapon namely rod
was seized and after completing formalities of investigation
chargesheet has been filed. In order to bring home the guilt of
accused, prosecution has examined in all seven witnesses and
relied on certain documents. The trial Court relied on ocular
testimony and on that basis recorded the finding of guilt as
aforementioned.
4. The learned Counsel appearing for accused has
criticised the judgment of trial Court firstly on the ground of
inadequacy of evidence, and secondly contended that the offence
of murder cannot be inferred from the occurrence. With the
assistance of both sides we have examined the entire evidence.
The prosecution mainly relied on the evidence of P.W.2 Priti
(informant), P.W.3 Deepali and P.W. 4 minor Prachi to establish
4 apeal777.2023
the guilt. The informant Priti was residing just adjacent to the
house of accused. It is her evidence that on the date of occurrence
elder daughter of Deepali came informing that a quarrel was
going on in between her parents i.e. accused and Deepali in the
neighbouring house. Immediately informant Priti and other
relatives rushed to the nearby house and saw that accused was
quarrelling with his wife Deepali. Informant saw that since
deceased Kalawati intervened, the accused took out iron rod and
hit at her head and fled. She has been cross-examined, however,
her evidence withstood the prosecution case.
5. The most crucial evidence is of P.W.3 Deepali (wife of
deceased) and P.W.4 Prachi (daughter of deceased). Deepali
equally stated that accused who is her husband was quarrelling at
relevant time. Kalawati and minor Prachi were at the house. In
said quarrel accused hit at the head of Kalawati by means of rod
and ran away. Minor Prachi also deposed in the same fashion.
5 apeal777.2023
6. We have considered the defence submission, however,
unable to convince as to why these family members are to be
disbelieved. The presence of these three eye witnesses on the
spot is quite natural. Particularly the wife as well as daughter of
accused deposed against him. They have no reason to falsely
implicate their own kin for the offence of murder. The evidence
of these three eye witnesses is cogent, consistent and reliable. We
are fully satisfied that by leading consistent evidence of three
reliable witnesses the prosecution has duly established the act of
assault at the hands of accused.
7. The trial Court has evaluated the entire material and
finally came to the conclusion that it is only the accused who has
assaulted Kalawati by means of iron rod and thus caused serious
injury which resulted into death and, therefore, the offence of
murder punishable under Section 302 of the Indian Penal Code
has been proved. The leaned Counsel for the accused would
submit that the trial Court has not considered the material in
6 apeal777.2023
proper perspective to find out as to what offence has been
committed by the proved act. True we are in disadvantage since
the impugned judgment does not spell-out as to how the finding
of murder has been arrived. It is argued that the incident was at
the spur of moment, the accused was not carrying any weapon,
there is total absence of premeditation and a single blow was
inflicted. Certainly these are the vital parameters to decide
whether the accused intended to kill Kalawati. In order to
constitute an offence of murder one of the ingredients as set out
in Section 300 has to be made out. In the absence, offence of
culpable homicide cannot be termed as a murder punishable
under Section 302 of the Indian Penal Code. While considering
the said aspect totality of circumstances have to be considered
together.
8. 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
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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 offence of murder.
Certainly, the said mode is neither expected nor approvable under
law. Reasons are necessary on two counts, firstly the Trial Judge
shall satisfy himself 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.
9. Be that as it may, the question arose whether the act of
the accused of causing death of Kalawati 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
8 apeal777.2023
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.
10. 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
9 apeal777.2023
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.
11. In order to ascertain the legal impact of the act of
accused entire relevant material needs scrutiny. In this regard
10 apeal777.2023
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
11 apeal777.2023
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."
12. Reverting to the facts, it reveals from the evidence
that initial quarrel was in between husband and wife. During said
quarrel Kalawati (mother-in-law) intervened which has enraged
accused who at the spur of moment picked up an iron rod lying
nearby and hit at the head of deceased. The evidence itself
discloses that accused was not carrying weapon at relevant time.
12 apeal777.2023
All it was happened that during quarrel he just picked up a nearby
lying rod which itself is an indicator to show that there was lack of
premeditation. Moreover the accused has no cause to assault
Kalawati, however, as she intervened into the quarrel between
husband and wife, the accused gave a blow at her head.
13. We have examined the postmortem notes from which
it is evident that there was only single injury at the parietal region
of the deceased. Thus in the spur of moment the accused gave a
single blow that too by iron rod lying in the house itself. Had it
been the fact that the accused intended to kill deceased, he would
have inflicted more blows but instead of that after inflicting a
single blow he ran away. The entire evidence nowhere suggests
that accused intended to kill deceased, however, from his act of
hitting at the head by iron rod it can be inferred that he had
knowledge that his act would be likely to cause death and thus the
case squarely falls under Section 304 II of the Indian Penal Code.
In view of the above discussion, we differ from the view taken by
13 apeal777.2023
learned trial Court and hold that it is a case punishable under
Section 304 II of the Indian Penal Code.
14. It takes us to consider the aspect of imposition of
punishment. Always it is a delicate issue to impose appropriate
punishment upon the accused. At this juncture, Court has to
take a survey of entire occurrence to decide the quantum of
punishment. As stated above, it was not a premeditated assault
and iron rod lying in the house was used as a weapon. The
accused never aimed to cause injury to his own mother-in-law,
but as she intervened into the quarrel he reacted in such a way.
The accused is having two minor daughters as well as shouldering
responsibility of age old father. It is not the case where the
accused acted in cruel manner or has doctored the act of
eliminating his own mother-in-law. The accused is in jail from
last three years. To our mind some more incarceration is
necessary since an innocent lady has lost her life. In our
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considered view seven years of imprisonment would meet the
ends of justice.
15. In view of the above, the appeal is partly allowed.
We convert the conviction from Section 302 of the
Indian Penal Code to Section 304 II of the Indian Penal Code and
direct the accused to undergo the rigorous imprisonment for
seven years along with fine and default clause as imposed by trial
Court.
Appeal stands disposed of in above terms.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 05/02/2024 18:13:23
