[Cites 15, Cited by 0]

Bombay High Court

Vinodshashikant Ingle And Anr. vs The State Of Maharashtra Thr. Station ... on 15 December, 2025

2025:BHC-NAG:14304-DB




              Judgment

                                                               515 apeal206.19

                                          1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.206 OF 2019

              1. Vinod Shashikant Ingle,
              aged about 36 years, occupation:
              labourer.

              2. Pooja Vinod Ingle,
              aged about 24 years, occupation:
              labourer.

              Both appellant Nos.1 and 2 are residing at
              Jatripala, Shanti Nagar, Palso Badhe,
              taluka and district: Akola.        ..... Appellants.

                                   :: V E R S U S ::

              The State of Maharashtra, through Station
              Officer, Borgaon Manju Station, taluka and
              district Akola.                ..... Respondent.

              Shri Rahul Dhande, Counsel for Appellants.
              Shri N.B.Jawade, Additional Public Prosecutor for the
              Respondent/State.

              CORAM : URMILA JOSHI-PHALKE & NANDESH S.DESHPANDE, JJ.
              CLOSED ON : 03/12/2025
              PRONOUNCED ON : 15/12/2025

              JUDGMENT ( Per : Urmila Joshi-Phalke)

.....2/-

Judgment

515 apeal206.19

1. By this appeal, appellants (the accused persons)

have challenged judgment and order dated 17.5.2018

passed by learned Sessions Judge, Akola (learned Judge of

the trial court) in Sessions Trial No.96/2017.

2. By the said judgment impugned in this appeal,

the accused persons are convicted for offence punishable

under Section 302 read with 34 of the IPC and sentenced to

undergo rigorous imprisonment for life each and pay fine

Rs.5000/-, in default, to undergo rigorous imprisonment for

3 months.

They are further convicted for offence

punishable under Section 452 read with 34 of the IPC and

sentenced to undergo rigorous imprisonment for two years

each and pay fine Rs.1000/-, in default, to undergo

rigorous imprisonment for further period of one month

each.

.....3/-

Judgment

515 apeal206.19

3. Brief facts of the prosecution case are as under:

(A) Aniruddha Ingle (the informant) is brother of

Arun Ingle (the deceased) residing adjacent to house

of the informant along with his family. Accused No.1

Vinod Ingle is nephew of the deceased, who was also

residing along with his wife adjacent to house of the

deceased. On the day of the incident, there was a

dispute between the deceased and the accused

persons on account of throwing garbage on verandah

of the house of the deceased. Regarding the said

incident, accused No.2 Pooja Ingle lodged report,

which was registered as N.C.Report at Borgaon Manju

Police Station, district Akola vide N.C.Report

No.692/96. It is alleged that the deceased was always

objecting act of accused No.2 Pooja Ingle throwing the

garbage. On 26.11.2016, i.e. on the day of the

incident, there was a quarrel between the deceased

.....4/-

Judgment

515 apeal206.19

and accused No.2 Pooja Ingle in the morning. On the

same day, i.e. 26.11.2016, at about 1:30 pm, when

the informant was present at his house, he heard

sound of the quarrel from the house of the deceased

and, therefore, he went towards the house of the

deceased and witnessed the quarrel between the

accused persons and the deceased. The deceased was

telling accused No.1 Vinod Ingle that his wife accused

No.2 Pooja Ingle was throwing garbage in front of his

house. However, accused No.1 Vinod Ingle started

assaulting the deceased by means of "bamboo stick"

as well as the head of the deceased was bashed

against a wall and he was also assaulted by fists and

kick blows. Due to the assault, the deceased

sustained grievous injuries. The informant rushed

towards the deceased and rescued him, but the

deceased became unconscious. Thereafter, the

.....5/-

Judgment

515 apeal206.19

accused persons left the house of the deceased. The

deceased was taken to the "Vidarbha Hospital" at

Akola. However, during treatment, he succumbed to

the injuries. On the basis of the said report, the police

registered the crime against the accused persons.

(B) After registration of the crime, after completing

formality of investigation, recording statements of

witnesses, recovery of weapon at the instance of

accused he submitted chargesheet against the

accused persons.

(C) Learned Sessions Judge, after committal the case

by learned Magistrate, framed charge vide Exh.32

against the accused persons. The accused persons

denied the charge and claimed to be tried.

.....6/-

Judgment

515 apeal206.19

(D) In support of the prosecution case, the

prosecution has examined in all 8 witnesses, they are

as follows:

  PW                   Names of Witnesses                  Exh.
  Nos.                                                     Nos.


           deceased and eyewitness



           chanama

           has drawn spot panchanama






    (E)     Besides the oral evidence, the prosecution

placed reliance on C.A.Reports Exhs.24 to 26, report

Exh.38, FIR Exh.39, seizure of clothes of the deceased

Exh.40, medical certificate Exh.49, requisition to the

.....7/-

Judgment

515 apeal206.19

medical officer Exh.50, spot panchanama Exh.52,

memorandum statement of accused No.1 Vinod Ingle

Exh.53, recovery panchanama Exh.54, requisition to

the Director of FSL Exhs.55 to 57, duty pass Exh.58,

requisition to the medical officer Exh.61, arrest

panchanama of accused No.1 Vinod Ingle Exh.64,

requisition to the medical officer Exh.65, medical

certificate of accused No.1 Vinod Ingle Exh.66, inquest

panchanama Exh.70/6, intimation to the police

Exh.70/9, death summary Exh.70/10, property seizure

memo Exh.70/11, query to the medical officer Exh.73,

opinion of the medical officer Exh.74, postmortem

report Exh.76, arrest panchanama of accused No.2

Pooja Ingle Exh.77, property seizure Exh.78,

requisition to the medical officer Exh.80, medical

certificate of injured Exh.81, and N.C.Report by

accused No.2 Pooja Ingle Exh.87.

.....8/-

Judgment

515 apeal206.19

(F) All the incriminating evidence is put to the

accused persons in order to obtain their explanations.

The defence of the accused persons is of total denial

and of false implication.

(G) Learned Judge of the trial court appreciated the

evidence and held the accused persons guilty and

convicted and sentenced them as the aforesaid.

(H) Being aggrieved and dissatisfied with the same,

the present appeal is preferred by the accused persons

on the ground that learned Judge of the trial court has

wrongly relied upon the evidence of informant PW1

Aniruddha Ingle; grandson of the deceased and

eyewitness PW2 Karan Chakre; and eyewitness PW3

Sujata Ingle. Their evidence is not consistent and due

to previous enmity, they are implicated in the allege

offence.

.....9/-

Judgment

515 apeal206.19

4. Heard learned counsel Shri Rahul Dhande for

the accused persons and learned Additional Public

Prosecutor Shri N.B.Jawade for the State and with their

able assistance, we have gone through the evidence

adduced by the prosecution and relevant documents on

record.

5. Learned counsel for the accused persons

submitted that though informant PW1 Aniruddha Ingle

claimed himself as eyewitness of the incident, PW2 Karan

Chakre and PW3 Sujata Ingle nowhere state about his

presence at the spot of the incident. PW2 Karan Chakre also

nowhere states regarding presence of PW3 Sujata Ingle at

the spot of the incident and PW3 Sujata Ingle has not stated

regarding presence of PW2 Karan Chakre at the spot of the

incident. All these three witnesses claimed themselves as

eyewitnesses, but their evidence is not consistent with each

other. The medical evidence is also not supporting and is

.....10/-

Judgment

515 apeal206.19

contrary to the ocular evidence of the eyewitnesses. No

external injury was found on the person of the deceased.

Medical Officer PW4 Dr.Purshottam Pachpore, who

examined the deceased initially, has admitted during the

cross examination that when blow is given by lethal weapon

like "wooden stick," external injuries will be there on head.

He further admitted that when head of a person is dashed

repeatedly against wall, there will be external injury.

Whereas, no external injury was sustained by the deceased.

Thus, the medical evidence is also contradictory to the oral

evidence and, therefore, the prosecution case fails.

He further submitted that the evidence of

medical officer PW8 Dr.Trishul Padole, who conducted

postmortem examination of the deceased, also admitted

that opinion relating to weapon "stick," which is stated by

him in examination-in-chief, is not mentioned specifically in

Exh.76. He further submitted that statements of

.....11/-

Judgment

515 apeal206.19

eyewitnesses PW2 Karan Chakre and PW3 Sujata Ingle were

recorded belatedly and no explanation is put forth by the

prosecution for the said belated statements and, therefore,

possibility of embellishment cannot be ruled out.

Alternatively, he submitted that even accepting the evidence

of these witnesses as it is, especially the evidence of

eyewitness PW3 Sujata Ingle, it shows that accused No.1

Vinod Ingle was not present when initial quarrel took place

between accused No.2 Pooja Ingle and the deceased.

Accused No.2 Pooja Ingle has lodged N.C.Report against the

deceased, the informant Aniruddha Ingle, and wife of the

informant Babita. The evidence of eyewitness PW3 Sujata

Ingle further shows that, at about 1:30 pm, accused No.2

Pooja Ingle has disclosed the said incident to accused No.1

Vinod Ingle, who is her husband and, thereafter,

immediately, accused No.1 Vinod Ingle went towards the

house of the deceased and the alleged incident has taken

.....12/-

Judgment

515 apeal206.19

place. Accused No.2 Pooja Ingle disclosed to accused No.1

Vinod Ingle that the deceased caught hold of her hands and

had beaten her due to which accused No.1 Vinod Ingle got

annoyed and the alleged incident has taken place. He

submitted that, therefore, the case of the accused persons

covers under Exception-1 "Grave and Sudden Provocation"

and, therefore, the offence would come under lesser Section

304 Part-II. In view of that, the appeal deserves to be

allowed.

6. Learned Additional Public Prosecutor for the

State submitted that informant PW1 Aniruddha Ingle;

grandson of the deceased PW2 Karan Chakre; and PW3

Sujata Ingle, are eyewitnesses to the said incident. The

evidence of PW2 Karan Chakre and PW3 Sujata Ingle is

consistent with each other as PW2 Karan Chakre entered

into the house by backdoor. Whereas, PW3 Sujata Ingle

witnessed the incident from front door. Therefore, question

.....13/-

Judgment

515 apeal206.19

of witnessing each other does not arise. Their evidence is

consistent as far as material particulars are concerned. The

evidence of these witnesses is further corroborated by the

medical evidence of Medical Officers PW4 Dr.Purshottam

Pachpore and PW8 Dr.Trishul Padole. It is further

substantiated by circumstantial evidence. Thus, the

prosecution has established that the death of the deceased is

"homicidal" one. The N.C.Report lodged by accused No.2

Pooja Ingle sufficiently shows that there was previous

dispute between the accused persons and the deceased. The

evidence of PW3 Sujata Ingle specifically shows that as soon

as accused No.2 Pooja Ingle disclosed about the incident

took place in the morning, accused No.1 Vinod Ingle entered

into the house of the deceased and assaulted him when he

was sleeping. Thus, "intention" of the accused reveals from

the said circumstances. The death of the deceased is, "due

to head injury.". Thus, the death of the deceased is

.....14/-

Judgment

515 apeal206.19

"homicidal" one is also established by the prosecution. He

further submitted that the case of the accused persons does

not cover under Exception as there is nothing on record to

show that there was any "provocation" for accused No.1

Vinod Ingle due to which he could not control and assaulted

the deceased. In view of that, the appeal being devoid of

merits is liable to be dismissed.

7. After hearing both the sides and perusing the

entire evidence on record, admittedly, the deceased has not

sustained any external injuries, as per the evidence adduced

by the prosecution.

8. Whether the death of the deceased is "due to

assault" and "homicidal" caused by the accused persons, is

question to be answered.

9. To prove the death of the deceased is "homicidal"

one, the prosecution placed reliance on the evidence of PW4

.....15/-

Judgment

515 apeal206.19

Dr.Purshottam Pachpore, who initially examined the

deceased, when he was brought to the hospital. His

evidence shows that he was working as Residence Medical

Officer in "Vidarbha Hospital." On 26.11.2016, the

deceased was brought by a police constable to the hospital

with history of assault. He conducted medical examination

and during the examination, he found that he has sustained

head injury and it was difficult for him to breath. He has

also witnessed weakness in the right side of upper limb and

lower limb as well as palpitation. He referred the deceased

for CT Scan Examination. The CT Scan Report shows " left

temporal I.C. bleed with sub arachnoid hemorrhage ". He

then suggested surgery. The surgery was performed by

Neurosurgeon of "left frontal temporal parietal craniotomy

with evacuation of intraparenchymal hematoma" . Then, he

issued certificate Exh.49. The injury noticed by him was

fresh in nature. The weapon used was blunt weapon. The

.....16/-

Judgment

515 apeal206.19

injury as noted by him is possible if head is bashed against a

wall. He further stated that certificate was issued by

Dr.Praveen Awachar attached to the "Vidarbha Hospital."

The injuries noted by him in Exh.49 are grievous in nature.

The deceased died on 30.11.2016. His cross examination

shows he was aware that the case of the deceased was

"medico-legal case". After the CT Scan was conducted, he

came to know nature of injuries sustained by the deceased.

He further admitted that certificate Exh.49 does not indicate

that the deceased has sustained any external injury on his

head. He further admitted that in Exh.49, no data is given

to know whether the injury was fresh in nature. It further

discloses that when a blow is given by lethal weapon like

wooden "stick", external injuries will be there on the head.

He further admitted that when head of a person is bashed

repeatedly against a wall, there will be external injury.

.....17/-

Judgment

515 apeal206.19

10. PW8 Dr.Trishul Padole is examined to prove

postmortem notes. As per his evidence, on 30.11.2016, he

has conducted postmortem on the dead body of the

deceased. On conducting the postmortem, he found

following external injuries on the persons of the deceased:

"1. Stitch wound over left fronto-parieto- temporal region measuring 30 cm with 49 stapled sutures. (It is a part of treatment)

2. Intravenous puncture mark present over left cubital fossa. (It is also a part of treatment). Both wounds are ante-mortem"

On internal examination, he found, following

injuries:

"underscalp hematoma over left fronto- parietal area of size 18x2 cm reddish brown in colour.

.....18/-

Judgment

515 apeal206.19

1. Left temporo-parietal bone of size 16x12 cm, corresponding to craniotomy wound mention in column No.17."

He further found that all the injuries are

corresponding with the external injuries. The injuries

mentioned in column Nos.17 and 19 are sufficient to cause

death in ordinary course of nature. The cause of death of

the deceased is, "due to head injury.". Accordingly, he

prepared postmortem notes Exh.76.

His cross examination shows that, as far as cause

of death is concerned, it is not challenged by the defence.

His entire cross examination is regarding opinion given by

him as to the weapon.

11. Recital of the inquest panchanama shows that

there was injury on the left portion of the head of the

deceased. Thus, the medical evidence shows that the death

of the deceased is, "due to head injury".

.....19/-

Judgment

515 apeal206.19

12. Whether the death of the deceased is caused "due

to the assault" by accused No.1 Vinod Ingle, is to be

ascertained on the basis of the evidence adduced by the

prosecution.

13. The evidence of informant PW1 Aniruddha Ingle,

who is eyewitness of the incident, shows that on the day of

the incident, i.e. 26.11.2016, there was a quarrel between

accused No.2 Pooja Ingle and the deceased as accused No.2

Pooja Ingle used to throw garbage in front of the house of

the deceased. The evidence further discloses that accused

No.2 Pooja Ingle was in habit of throwing garbage in

courtyard of the deceased and, therefore, on that day, there

was a quarrel between the deceased and accused No.2 Pooja

Ingle. However, the matter was settled. At about 1:30 pm,

he heard shouts of accused No.1 Vinod Ingle and the

deceased from the house of the deceased and, therefore, he

along with his wife immediately went to see as to what has

.....20/-

Judgment

515 apeal206.19

happened. He witnessed that accused No.2 Pooja Ingle had

gagged the mouth of the deceased and accused No.1 Vinod

Ingle was giving blows of kicks and fists. Accused No.1

Vinod Ingle was also having "stick" in his hands. He further

witnessed that accused No.1 Vinod Ingle was bashing head

of the deceased against a wall and, therefore, he dragged

out accused No.1 Vinod Ingle from the house and the

accused persons have assaulted the deceased on his stomach

and chest by means of wooden "stick". Accused No.1 Vinod

Ingle has also given threats to them. As the deceased

became unconscious, he immediately called an auto-

rickshaw with the help of PW2 Karan Chakre and took the

deceased initially to the police station and, thereafter, to the

Government Hospital at Akola. After admitting the

deceased in the hospital, he approached the police station

and lodged the report, which is at Exh.38 and FIR is at

Exh.39. He has identified the clothes of the deceased as

.....21/-

Judgment

515 apeal206.19

well as the "stick" which was in the hands of accused No.1

Vinod Ingle.

His cross examination shows that he had taken

the deceased to Borgaon Manju Police Station at about 2:00

pm. He further stated that he has narrated the incident to

the police, but the police have not made any enquiry with

him. He denied that there are 50-60 houses around his

house, but he stated that there are 10-15 houses and the

said houses are at distance of 15-100 feet. He further

admitted that shouts had taken place at the time of the

incident. Some omissions are also brought on record during

his cross examination. He further admitted that he is not

aware whether accused No.2 Pooja Ingle has lodged the

report regarding the incident to the Borgaon Manju Police

Station on that day. An attempt was made to show that

there was a dispute between the deceased and the

informant and the informant himself has assaulted the

.....22/-

Judgment

515 apeal206.19

deceased and, therefore, he sustained the injuries, which is

denied by PW1 Aniruddha Ingle. It also came in his cross

examination that at the relevant time, wife and son of the

deceased were not in the house. His cross examination

further shows that he along his entire family was not in the

hospital, till 27.11.2016. They were continuously with the

deceased in the hospital on 27.11.2016 and 28.11.2016. He

specifically admitted that he did not witness on what places

the deceased has received injuries.

14. To corroborate the version of PW1 Aniruddha

Ingle, another eyewitness PW2 Karan Chakre is examined.

He has corroborated the version of PW1 Aniruddha Ingle on

material particulars as far as the assault is concerned.

15. Learned defence counsel has vehemently

submitted that there is an inconsistent evidence as PW1

Aniruddha Ingle has not stated about the presence of PW2

.....23/-

Judgment

515 apeal206.19

Karan Chakre and PW2 Karan Chakre has not stated about

presence of PW1 Aniruddha Ingle and PW3 Sujata Ingle.

16. Learned Additional Public Prosecutor for the

State pointed out that PW2 Karan Chakre entered into the

house from the backdoor by opening latch by inserting his

hand. Whereas, PW1 Aniruddha Ingle entered into the

house from the front door. PW3 Sujata Ingle also witnessed

the incident from the front door and, therefore, question of

witnessing each other does not arise. The evidence of PW2

Karan Chakre also shows that he entered into the house

from the backdoor by opening latch by inserting his hand.

His evidence shows that at the relevant time, he was in the

house of Dadu Sunil Ingle and Nalanda Ingle. As he heard

shouts, he entered into the house from backdoor by opening

the latch. He witnessed that the accused persons were

assaulting his grandfather i.e. the deceased. Accused No.2

Pooja Ingle has gagged his mouth. Whereas, accused No.1

.....24/-

Judgment

515 apeal206.19

Vinod Ingle was bashing his head against a wall. He stated

that accused No.1 Vinod Ingle was assaulting by means of

kicks and fists. He shouted and, therefore, PW1 Aniruddha

Ingle, PW3 Sujata Ingle, and Babita, the wife of PW1

Aniruddha Ingle came there. They took the accused persons

out of the house and, thereafter, took the deceased to the

hospital. Initially, they took him to Dr.Patel and, thereafter,

took him to the hospital at Akola. His cross examination

shows that the house of Nalanda Ingle and the house of

Dadu Ingle are adjacent to their house. He further admitted

that if any person shouts loudly, it is audible to the adjacent

houses. He specifically stated that as it was afternoon,

persons from the other houses did not come to their house.

He witnessed the deceased and accused No.1 Vinod Ingle

and accused No.2 Pooja Ingle in the said house when he

entered in the house.

.....25/-

Judgment

515 apeal206.19

On the basis of this cross examination, an

attempt was made to show that he has not narrated about

the presence of PW1 Aniruddha Ingle and PW3 Sujata

Ingle. Admittedly, his evidence shows that after he entered

into the house, after some time, PW1 Aniruddha Ingle and

PW3 Sujata Ingle came there and, thereafter, they rescued

the deceased from the clutches of the accused persons. The

omission, that he has not stated that accused No.1 Vinod

Ingle was bashing the head of the deceased against the wall,

is brought on record by the defence.

PW3 Sujata Ingle, also deposed on the similar

line. Her evidence shows that at about 1:30 pm, as she was

proceeding to her tuition, she saw accused No.1 Vinod Ingle

and accused No.2 Pooja Ingle talking to each other and

accused No.2 Pooja Ingle was telling accused No.1 Vinod

Ingle that the deceased caught hold of her hands and has

beaten her. Accused No.1 Vinod Ingle then started coming

.....26/-

Judgment

515 apeal206.19

to the house of the deceased. One wooden "stick" was kept

under roof of kitchen. He took out the same and went

inside the house of the deceased. The deceased was

sleeping. Accused No.1 Vinod Ingle assaulted the deceased

by means of the "stick". She was behind accused No.1

Vinod Ingle. She has also witnessed accused No.2 Pooja

Ingle coming and she apprehended that she would be

assaulted and, therefore, she gave a push to accused No.1

Vinod Ingle and accused No.1 Vinod Ingle fell down by the

side of the television. Thereafter, she went away. She went

towards the road and met Sadanand Ingle, but due to fear,

she has not narrated anything to him. They again returned

to the house of the deceased. The house of the deceased

was closed. She tried to push the door and she peeped

through the window. She saw that accused No.1 Vinod

Ingle was bashing the head of the deceased on the wall and

accused No.2 Pooja Ingle has gagged his mouth. Her

.....27/-

Judgment

515 apeal206.19

evidence further shows that as there was no one in the

house of Sadanand Ingle, she again came to the house of

the deceased and witnessed PW2 Karan Chakre and her

parents, who were present there. During her cross

examination, it came on record that as she was afraid, she

was unable to shout and, therefore, she has not shouted.

She has admitted that she did not feel immediately that she

should inform her parents about the incident. Her evidence

further shows that Sadanand Ingle did not come with her as

he was under the influence of liquor. From her cross

examination, it is further brought on record that she was

present in the house from 26.11.2016 to 28.11.2016.

From this cross examination, an attempt was

made to show that though she was present in the house, her

statement was not recorded immediately, but it was

recorded on 10.12.2016. Thus, there is inordinate delay in

recording the statement of the eyewitness.

.....28/-

Judgment

515 apeal206.19

17. PW5 Dadarao Shende, acted as pancha on spot

panchanama, has not supported the prosecution case and

left loyalty towards the prosecution case.

18. PW6 Purshottam Dhande, investigating officer

who has carried out initial part of the investigation, has

drawn spot panchanama by visiting the spot of the incident.

He has also issued a letter to doctor at "Vidarbha Hospital"

for recording statement of the deceased, but the deceased

was not in a position to give a statement. He arrested

accused No.1 Vinod Ingle by drawing arrest panchanama

Exh.64. The accused made a memorandum statement and

produced "stick," which was seized by him.

His cross examination shows that the accused

was arrested at village Palso-Badhe itself.

He further admitted that there are several houses

near Borgaon Manju, but he has not made any efforts to

.....29/-

Judgment

515 apeal206.19

take panchas from nearby police station. During his cross

examination, it is brought on record that immediately, after

arrest, accused No.1 Vinod Ingle expressed a desire to make

a voluntary statement of disclosure.

Thus, the cross examination itself shows that it

was the voluntary statement of accused No.1 Vinod Ingle

and on his statement he led them and the "stick" was

recovered at his instance.

19. PW7 Yuvraj Uike, is another investigating officer,

who has recorded relevant statements of the witnesses. As

far as his cross examination is concerned, he admitted that

he did not visit village Palso Badhe for investigation, till

10.12.2016. He also admitted that no eyewitness from

village Palso-Badhe came to him, till 10.12.2016 to narrate

the information about the offence. He further admitted

that accused No.2 Pooja Ingle has lodged report on

.....30/-

Judgment

515 apeal206.19

26.11.2016 at 12:30 pm and non-cognizable offence was

registered.

20. On the basis of the evidence adduced by the

prosecution, an attempt was made to show that as there

was previous enmity, the accused persons were implicated

falsely in the alleged offence.

21. Learned counsel for the accused persons

vehemently submitted that Medical Officers PW4

Dr.Purshottam Pachpore and PW8 Dr.Trishul Padole both

have admitted that if head is bashed repeatedly, there has to

be external injury.

He further invited our attention towards

admission of Medical Officer PW4 Dr.Purshottam Pachpore,

who has admitted that if a blow was given by "stick", there

has to be external injury.

.....31/-

Judgment

515 apeal206.19

On the basis of these admissions, he submitted that

there was no external injury on the person of the deceased

and, therefore, the allegation levelled by the prosecution

witnesses is contrary to the medical evidence and it is liable

to be discarded.

Perusal of the evidence of PW1 Aniruddha Ingle,

PW2 Karan Chakre, and PW3 Sujata Ingle shows that none

of them states that accused No.1 Vinod Ingle has given a

blow of the "stick" on his head. The evidence of these three

witnesses is consistent that they witnessed that accused

No.1 Vinod Ingle was bashing head of the deceased against

the wall. Therefore, the contention of learned defence

counsel, that the medical evidence is contrary to the oral

evidence, is not sustainable.

He further submitted that as PW4 Dr.Purshottam

Pachpore and PW8 Dr.Trishul Padole have admitted that if

.....32/-

Judgment

515 apeal206.19

head is bashed repeatedly, there has to be external injury, no

external injury injury is found on the person of the deceased

and, therefore, this evidence is also contrary to the medical

evidence.

Perusal of the evidence of these three witnesses

shows that none of them has stated that they have

witnessed accused No.1 Vinod Ingle bashing the head of the

deceased repeatedly against the wall. Their evidence is

consistent that when they witnessed, accused No.1 Vinod

Ingle was bashing the head of the deceased against the wall

and immediately PW1 Aniruddha Ingle dragged accused

No.1 Vinod Ingle from the house.

Similar is the evidence of PW2 Karan Chakre and

PW3 Sujata Ingle.

.....33/-

Judgment

515 apeal206.19

Therefore, this contention of learned counsel for

the defence, that the medical evidence is contrary to the oral

evidence, is also not sustainable.

22. On appreciation of the evidence, the fact, that

there was a dispute between the deceased and the accused

persons on throwing garbage in the courtyard of the house

of the deceased is established by the prosecution. PW1

Aniruddha Ingle, has stated about the same that on the day

of the incident, i.e. 26.11.2016 also, in the morning, the

alleged incident of throwing garbage has taken place and,

therefore, there was a quarrel between the deceased and

PW1 Aniruddha Ingle and his wife. Accused No.2 Pooja

Ingle has lodged a report regarding the said incident dated

26.11.2016 to the Borgaon Manju Police Station. The

N.C.Report filed by accused No.2 Pooja Ingle is at Exh.87,

which shows that she has lodged the report against the

deceased, PW1 Aniruddha Ingle, and Babita, wife of PW1

.....34/-

Judgment

515 apeal206.19

Aniruddha Ingle. The story narrated by her is that there

was a quarrel between her and the deceased and PW1

Aniruddha Ingle on 26.11.2016 and she was assaulted by

these persons. The timing of the incident narrated is 10:00

am to 10:30 am..

23. The prosecution story in the present case is also

that on that day, at about 10:00 am to 10:30 am, as accused

No.2 Pooja Ingle has thrown garbage in the courtyard of the

house of the deceased, there was a quarrel between them,

but the said quarrel, subsequently, was settled and all went

to their houses. The evidence of PW3 Sujata Ingle shows

that when she was proceeding to attend her tuition, she

witnessed the accused persons and accused No.1 Pooja Ingle

was disclosing the incident took place in the morning and,

therefore, accused No.1 Vinod Ingle entered into the house

of the deceased and the alleged incident has taken place.

.....35/-

Judgment

515 apeal206.19

Though some omissions are brought on record,

during the cross examination, the investigating officer has

also admitted about non-disclosure of the said fact before

him while recording the statement of PW2 Karan Chakre.

Perusal of the statement also shows that he has not stated

before the investigating officer while recording the

statement that the head of the deceased was bashed against

the wall by accused No.1 Vinod Ingle and, therefore, the

evidence of PW2 Karan Chakre, regarding bashing of the

head of the deceased by accused No.1 Vinod Ingle, is a

material omission.

24. Recital of the FIR also shows that the fact of

bashing the head of the deceased against the wall is not

narrated by PW1 Aniruddha Ingle.

25. As far as PW3 Sujata Ingle is concerned, she has

narrated that accused No.1 Vinod Ingle was bashing the

.....36/-

Judgment

515 apeal206.19

head of the deceased against the wall and, therefore, there

is an improvement in the evidence of PW1 Aniruddha Ingle

and PW2 Karan Chakre, but this fact is narrated by PW3

Sujata Ingle.

26. The medical evidence shows that the deceased

has sustained the injury i.e. the head injury due to assault in

the alleged incident. Admittedly, there are some

improvements in the evidence of PW1 Aniruddha Ingle and

PW2 Karan Chakre.

27. It is a well settled that "falsus in uno, falsus in

omnibus" (false in one thing, false in everything) is neither

a sound rule of law nor a sound rule of practice. It is not

applicable in criminal cases in India, as witnesses may be

partly truthful and partly false in their evidence. The

experience shows that the evidence of many witnesses

contains a grain of untruth a some exaggeration or

.....37/-

Judgment

515 apeal206.19

embellishment. This many a times happens perhaps due to

fear in the mind of the witnesses that their testimony may

not be accepted. Discrepancies in deposition of witnesses

are always there due to normal error of observation, normal

error of memory due to lapse of time, due to mental

disposition etc. which needs to be ignored. The prosecution

would fall only wherein inconsistency goes to the root of the

case, otherwise it becomes the duty of the Court to sift truth

from falsehood by coming out nuggates of truth of evidence

of witnesses examined by the prosecution. If such exercise

is possible, their evidence cannot discarded wholly. At the

most, inconsistent part of the version of the witnesses may

be discarded and rest of the testimony which is in general

agreement with version of other witnesses is to be accepted.

28. Even, though the said fact is not stated by PW1

Aniruddha Ingle and PW2 Karan Chakre, regarding bashing

of the head of the deceased against the wall, the said fact is

.....38/-

Judgment

515 apeal206.19

stated by PW3 Sujata Ingle. It is further corroborated by the

medical evidence that the deceased has sustained the head

injury in the said incident. There is no defence of the

accused persons that the deceased has sustained the head

injury either by fall or any other reasons. Filing of the

N.C.Report by accused No.2 Pooja Ingle shows that there

was an enmity between the deceased and the accused

persons. The evidence of PW3 Sujata Ingle specifically

shows that she has witnessed accused No.1 Vinod Ingle

proceeding towards the house of the deceased after accused

No.2 Pooja Ingle has disclosed the incident took place in the

morning and, thereafter, he has assaulted the deceased. The

deceased was found injured in his own house and witnessed

by PW1 Aniruddha Ingle; PW2 Karan Chakre; and PW3

Sujata Ingle.

.....39/-

Judgment

515 apeal206.19

29. Thus, the evidence of the prosecution witnesses is

consistent as far as the incident is concerned and it is not

shattered during the cross examination.

30. The evidence of PW2 Karan Chakre and PW3

Sujata Ingle is criticized by the defence on the ground that

there is delay in recording statements of two eyewitnesses

i.e. PW2 Karan Chakre and PW3 Sujata Ingle. Admittedly,

the alleged incident has taken place on 26.11.2016 and

their statements were recorded on 10.12.2016.

31. It is also a part of the evidence that the deceased

was admitted in the hospital from 26.11.2016 to 30.11.2016

and, thereafter, the deceased succumbed to the injuries. The

death report placed on record shows that on 30.11.2016 the

death of the deceased occurred during the treatment.

32. PW2 Karan Chakre is the grandson and PW3

Sujata Ingle is niece of the deceased. Due to the death of

.....40/-

Judgment

515 apeal206.19

the deceased, they may have been in a grief and may not

have approached the police. The evidence also shows that

the police have also not approached them to record their

statements.

33. As far as the delay in recording statements is

concerned, the law is settled by the decision of the Hon'ble

Apex Court in the case of Gunnana Pentayya alias Pentadu

& ors vs. State of Andhra Pradesh, reported in 2008 ALL

MR (Cri) 2540 (SC) that, "mere delay in recording the

statement of witnesses is not fatal unless a specific

question is put to the investigating officer regarding reason

for delay".

This aspect is further considered by the Hon'ble

Apex Court in the case of Firoz Khan Akbarkhan vs. State

of Maharashtra, reported in 2025 SCC OnLine SC 627,

wherein it has been held, as under:

.....41/-

Judgment

515 apeal206.19

"delay in recording the statements of witnesses more so when the said delay is explained, will not aid an accused. Of course, no hard-and- fast principle in this regard ought to be or can be laid down, as delay, if any, in recording statements will have to be examined by the Court concerned in conjunction with the peculiar facts of the case before it".

34. In the present case, the investigating officer is

not cross examined on the aspect that why there was delay

in recording statements of PW2 Karan Chakre and PW3

Sujata Ingle. Moreover, the facts and circumstances on

record show that the deceased is close relative of PW2

Karan Chakre and PW3 Sujata Ingle. He was hospitalized,

till 30.11.2016. On 30.11.2016, he died. Being the

nearest relatives, as PW2 Karan Chakre is grandson and

PW3 Sujata Ingle is niece, they may be in a grief and,

therefore, they have not approached the police to record

.....42/-

Judgment

515 apeal206.19

statements. As far as their presence at the spot is

concerned, it is natural one and there is no reason to

discard their evidence. Their presence at the spot is also

not declined by the defence.

35. The evidence of PW3 Sujata Ingle is also

criticized on the ground that she is a child witness.

36. The evidence of child witness and its credibility

would depend upon the facts and circumstances of each

case. There is no rule of practice that in every case the

evidence of a child witness has to be corroborated by other

evidence before a conviction can be allowed to stand but as

a prudence, the court always finds it desirable to seek

corroboration to such evidence from other reliable

evidence placed on record. Only precaution which the

court has to bear in mind while assessing the evidence of a

child witness is that witness must be a reliable one. The

.....43/-

Judgment

515 apeal206.19

evidence of a child witness must be evaluated carefully as

the child may be swayed by what others tell him and he is

an easy prey to tutoring. Therefore, the evidence of a child

witness must find adequate corroboration before it can be

relied upon.

37. It is settled principle of law that a child witness

can be a competent witness and statement of such witness

is reliable, truthful, and is corroborated, then there is no

hurdle in accepting the same.

38. Here, in the present case, though PW3 Sujata

Ingle is child witness, her evidence is corroborated by other

two witnesses and, therefore, there is no reason to discard

the evidence of the child witness. As already observed,

though they are close relatives, their presence at the spot of

the incident is natural one.

.....44/-

Judgment

515 apeal206.19

39. The law is well settled that while appreciating

the evidence of a witness, the approach must be whether

the evidence of the witness read as a whole appears to

have a ring of truth. Once that impression is formed, it is

undoubtedly necessary for the court to scrutinize the

evidence more particularly keeping in view the

deficiencies, drawbacks and infirmities pointed out in the

evidence as a whole and evaluate them to find out whether

it is against the general tenor of the evidence given by the

witness and whether the earlier evaluation of the evidence

is shaken as to render it unworthy. The material thing

which is to be seen whether those inconsistencies go to the

root of the matter or pertain to insignificant aspect thereof.

If the criminal trial is for such of the truth, the duty of the

presiding officer is not merely to see that no innocent

person is punished, but also to see that guilty person does

not escape. In criminal trial, normally, the evidence of wife

.....45/-

Judgment

515 apeal206.19

and husband, son or daughter of the deceased is given

great weightage on the principle that there is no reason for

them not to speak the truth and shield the real culprit.

40. Here, in the present case, as observed earlier,

presence of PW1 Aniruddha Ingle, PW2 Karan Chakre, and

PW3 Sujata Ingle at the spot of the incident is natural as

PW2 Karan Chakre is residing along with the deceased and

PW1 Aniruddha Ingle and and PW3 Sujata Ingle are

residing in neighbourhood and close relatives of the

deceased.

41. Thus, there is no reason to discard the evidence

merely because there are some inconsistencies in their

evidence.

42. It is well settled that the prosecution case cannot

be rejected solely on the ground that the independent

witnesses have not been examined, but perusal of the

.....46/-

Judgment

515 apeal206.19

evidence on record, the court finds that the case put forth

by the prosecution is trustworthy. When the evidence of

other witnesses are trustworthy and corroborated to each

other, mere fact that the statement was recorded belatedly

and independent witnesses are not examined, is not

sufficient to discard the evidence of these witnesses.

examination of independent witness is not an

indispensable requisite if the testimonies of witnesses are

trustworthy and reliable. Non-examination of any

independent witness by the prosecution will not go to the

root of the matter affecting the decision of the court, unless

other witnesses' testimonies and evidences are scant to

establish the guilt of the accused.

43. For all above reasons, we do not find any reason

to discard the evidence of PW1 Aniruddha Ingle; PW2

Karan Chakre, and PW3 Sujata Ingle.

.....47/-

Judgment

515 apeal206.19

44. On going through the evidence of PW3 Sujata

Ingle, it is apparent that accused No.2 Pooja Ingle has

disclosed the morning incident to accused No.1 Vinod Ingle

and, therefore, accused No.1 Vinod Ingle entered into the

house of the deceased and the alleged incident has taken

place.

45. Learned defence counsel vehemently submitted

that the case of the accused persons covers under Exception-

1 "Grave and Sudden Provocation." He submitted that there

was an incident of assault by the deceased to accused No.2

Pooja Ingle, which was narrated by accused No.2 Pooja Ingle

to accused No.1 Vinod Ingle. Admittedly, accused No.1

Vinod Ingle was not present during the morning incident.

He came to know about the morning incident at about 1:30

pm when accused No.2 Pooja Ingle disclosed the same.

.....48/-

Judgment

515 apeal206.19

The evidence of PW3 Sujata Ingle further shows

that as soon as accused No.1 Vinod Ingle heard the incident

took place in the morning from accused No.2 Pooja Ingle, he

immediately proceeded towards the house of the deceased

and took the "stick" lying at the roof of the deceased and

entered into the house of the deceased, which is sufficient to

show that as the deceased has assaulted accused No.2 Pooja

Ingle, accused No.1 could not control his anger and entered

into the house and assaulted the deceased and, therefore,

the case of the accused persons covers under Section 304

Part-II of the IPC.

46. Considering the evidence of PW3 Sujata Ingle

and the defence taken by the accused persons, it has to be

seen, whether the submission of learned counsel for the

accused persons, that the case covers under Section 304

Part-II of the IPC, is acceptable or not.

.....49/-

Judgment

515 apeal206.19

47. The "culpable homicide" is defined under

Section 299 of the IPC and it is genus. Whereas, the

"murder" defined under Section 300 of the IPC and it is

specie. Under Section 299 of the IPC, whoever causes death

with an intention or knowledge specified in that section,

commits offence of "culpable homicide". However, since

"culpable homicide" is only genus, it includes two forms;

one is a graver offence which amounts to 'murder' and

lesser one which does not amount to 'murder'. It can be

seen that, therefore, though the offence of "culpable

homicide"is defined, the said provision does not provide any

punishment for that offence as such and, for the purpose of

punishment, the court has to examine facts and find out

whether the offence falls or does not fall under the

definition of murder under Section 300 of the IPC. In view

of this scheme, therefore, every act of homicide falls within

.....50/-

Judgment

515 apeal206.19

the definition of "culpable homicide" under Section 299 of

the IPC.

Section 300 of the IPC on the one hand mentions

that a "homicide" is "murder". However, in that section five

exceptions have been given and these exceptions lay down

the circumstances in which the act causing death is not

murder even though it may have been done with the

intention or knowledge specified in Section 300 of the IPC.

Therefore, it has to be seen; (1) what was the intention or

knowledge with which the act was done and what are

circumstances in which it was done, (2) if it is established

that the offence is "culpable homicide", but it does not fall

within the definition of murder and if it falls under any of

exceptions to that section, the offence is punishable under

Section 304 of the IPC. Once, it is held that the offence falls

under Section 304 of the IPC, the punishment differs,

depending upon whether the death is caused with an

.....51/-

Judgment

515 apeal206.19

intention or only with the knowledge and, therefore, if the

element of intention exists, the offence is punishable under

Part-I of Section 304 of the IPC, otherwise, the offence falls

under Part-II of Section 304 of the IPC.

48. Learned counsel for the accused persons

vehemently submitted that the case would fall under

Exception-I to Section 300 of the IPC, which is reproduced

hereunder for reference:

"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--

(Secondly) - If it is done with the intention .....

(Thidly) - If it is done with the intention of causing bodily injury .....

(Fourthly) - If the person committing the act knows .....

.....52/-

Judgment

515 apeal206.19

Illustrations. (a) A shoots Z with the intention of killing .....

(b) A, knowing that Z is labouring under such a disease .....

(c) A intentionally gives Z a sword-cut or club-

wound .....

(d) A without any excuse fires a loaded cannon into a crowd .....

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.

.....53/-

Judgment

515 apeal206.19

(Thirdly) - That the provocation is not given by anything done in the lawful exercise of the right of private defence.

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

49. The Hon'ble Apex Court right from K.M. Nanavati

vs. State of Maharashtra, reported in AIR 1962 SC 605

onward held that, "provocation itself is not enough to

reduce the crime from murder to culpable homicide not

amounting to murder. In order to convert a case of murder

to a case of culpable homicide not amounting to murder,

provocation must me such that would temporarily deprive

the power of self-control of a "reasonable person". What has

also to be seen is the time gap between this alleged

provocation and the act of homicide; the kind of weapon

used; the number of blows, etc. These are again all

questions of facts. There is no standard or test as to what

.....54/-

Judgment

515 apeal206.19

reasonableness should be in these circumstances as this

would again be a question of fact to be determined by a

Court".

50. In order to bring the case within Exception-1 to

Section 300 of the IPC, following conditions must be

complied with:

"(i) The deceased must have given provocation to the accused;

(ii) The provocation must be grave;

(iii) The provocation must be sudden;

(iv) The offender, by reason of the side provocation, shall have been deprived of his power of self-control;

(v) He should have killed the deceased during the continuance of the deprivation of the power of self-control; and

.....55/-

Judgment

515 apeal206.19

(vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident."

51. To attract Exception-1 to Section 300 of the IPC,

accused must establish that there was a provocation which

was both grave and sudden; such provocation had deprived

the accused of his power of self-control; and whilst the

accused was so deprived of his power of self-control, he had

caused the death of the victim.

52. The Hon'ble Apex Court in the case of Vijay vs.

State, represented by the Inspector of Police,

MANU/SC/0085/2025 held in paragraph Nos.24, 25, and

26 as under:

"24. In order to bring his case under Exception 1 to Section 300 IPC the following ingredients:

.....56/-

Judgment

515 apeal206.19

(i) The provocation was sudden; (ii) the provocation was grave; and (iii) loss of self-

control. These three ingredients may be considered one by one:

(i) Whether the provocation was sudden or not does not present much difficulty. The word 'sudden' involves two elements. First, the provocation must be unexpected. If an accused plans in advance to receive a provocation in order to justify the subsequent homicide, the provocation cannot be said to be sudden. Secondly, the interval between the provocation and the homicide should be brief. If the man giving the provocation is killed within a minute after the provocation, it is a case of sudden provocation. If the man is killed six hours after the provocation, it is not a case of sudden provocation.

(ii) the main difficulty lies in deciding whether a certain provocation was grave or

.....57/-

Judgment

515 apeal206.19

not. A bare statement by the accused that he regarded the provocation as grave will not be accepted by the court. The court has to apply an objective test for deciding whether the provocation was grave or not. A good test for deciding whether a certain provocation was grave or not is this: "Is a reasonable man likely to lose self-control as a result of such provocation?" If the answer is in the affirmative, the provocation will be classed as grave. If the answer is in the negative, the provocation is not grave. In this context, the expression 'reasonable man' means a normal or an average person. A reasonable man is not the ideal man or the perfect being. A normal man sometimes loses temper. There is, therefore no inconsistency in saying that, a reasonable man may lose self-control as a result of grave provocation. A reasonable or normal or average man is a legal fiction. The reasonable man will vary from society to society. A Judge should not impose his personal standards in this matter. By training, .....58/-

Judgment

515 apeal206.19

a Judge is a patient man. But the reasonable man or the normal man need not have the same standard of behaviour as the judge himself. The reasonable man under consideration is a member of the society, in which the accused was living. So, education and social conditions of the accused are relevant factors. An ordinary exchange of abuse is a matter of common occurrence. A reasonable man does not lose self-control merely on account of an ordinary exchange of abuses. So, courts do not treat an ordinary exchange of abuses as a basis for grave provocation. On the other hand, in most societies, adultery is looked upon as a very serious matter. So, quotes are prepared to treat adultery as a basis for grave provocation.

(iii) the question of loss of self-control comes up indirectly in deciding whether a particular provocation was grave or not. So, if it is proved that the accused did receive grave .....59/-

Judgment

515 apeal206.19

and sudden provocation, the court is generally prepared to assume that homicide was committed while the accused was deprived of the power of self-control. In some cases, it may be possible for the prosecution to prove that the accused committed the murder with a cool head in spite of grave provocation. But such cases will be rare. So, when the accused has established grave and sudden provocation, the court will generally hold that he has discharged the burden that lay upon him under Exception 1 to Section 300 IPC".

25. What should be the approach of the court? The provocation must be such as will upset not merely a hasty and hot-tempered or hypersensitive person, but one of ordinary sense and calmness. The Court has to consider whether a reasonable person placed in the same position as accused would have behaved in the manner in which the accused behaved on receiving the same provocation.

.....60/-

Judgment

515 apeal206.19

If it appears that the action of the accused was out of all proportion to the gravity or magnitude of the provocation offered, the case will not fall under the exception. The case can only fall under the exception when the court is able to hold that provided the alleged provocation is given, every normal person would behave or act in the same way as the accused in the circumstances in which the accused was placed, acted.

26. In the words of Viscount Simon: "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self- control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires and actual intention to kill, or to inflict grievous bodily harm the doctrine that provocation may reduce murder to manslaughter seldom applies".

.....61/-

Judgment

515 apeal206.19

53. In view of Section 105 of the IPC, burden of

proof castes on accused. Being an exception, burden of

proving the circumstances covered by Exception-1 is on the

accused. Where the prosecution prima facie proves that the

act was committed by the accused which had resulted in the

death of the deceased and the accused pleads that the case

falls within one of the exceptions, it is for him to prove that.

It is for accused who seeks to reduce the nature of his crime

by bringing his case under Exception-1, to prove that the

provocation received by him was such as might reasonably

be deemed sufficient to deprive him of self- control, and that

the act of killing took place whilst that absence of control

was in existence and may fairly be attributed to it.

54. Thus, to bring the case within the ambit of

"culpable homicide not amounting to murder", it could have

invoked on the basis of evidence.

.....62/-

Judgment

515 apeal206.19

55. As far as the present case is concerned, the

evidence of PW3 Sujata Ingle shows that there was a

communication between accused No.1 Vinod Ingle and

accused No.2 Pooja Ingle. Accused No.2 Pooja Ingle has

disclosed the incident to accused No.1 Vinod Ingle that the

deceased has assaulted her. This fact is further corroborated

by N.C.Report lodged by accused No.2 Pooja Ingle. As soon

as accused No.2 Pooja Ingle has disclosed the said incident

of the assault at the hands of the deceased to accused No.2

Pooja Ingle, accused No.1 Vinod Ingle lost his self-control

and he was deprived of power of self-control and went into

the house of the deceased and assaulted the deceased and

caused death of the deceased.

56. Thus, the evidence on record shows that what

actually provoked accused No.1 Vinod Ingle is that, the

deceased has assaulted his wife accused No.2 Pooja Ingle

and, therefore, he lost his self-control and, therefore, the

.....63/-

Judgment

515 apeal206.19

contention of learned counsel for the accused persons, that

the case would cover under Exception-1 to Section 300 of

the IPC "Grave and Sudden Provocation," is acceptable.

57. Whether the offence is "culpable homicide" or

"murder", the Hon'ble Apex Court in the case of Ajmal vs.

State of Kerala, reported in (2022)9 SCC 766 has held that,

"the academic distinction between "murder" and "culpable

homicide not amounting to murder" has vexed the courts for

more than a century. The confusion is caused, if courts

losing sight of the true scope and meaning of the terms used

by the legislature in these sections, allow themselves to be

drawn into minute abstractions. The safest way of approach

to the interpretation and application of these provisions

seems to be to keep in focus the keywords used in the

various clauses of sections 299 and 300".

.....64/-

Judgment

515 apeal206.19

It has been further held that, "the court should

proceed to decide the pivotal question of intention with

care and caution so that will decide whether the case falls

under Section 302 or under Section 304 Part-I or Part-II of

the Indian Penal Code. 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

.....65/-

Judgment

515 apeal206.19

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 of the Indian Penal

Code".

58. The Hon'ble Apex Court further held that "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

.....66/-

Judgment

515 apeal206.19

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 circumstance 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".

59. By applying these principles, the facts of the

present case show that the weapon "stick" was taken by

accused No.1 Vinod Ingle lying under roof of the house of

the deceased. The evidence on record further shows that

nature of the weapon was not coming under the category of

"dangerous weapon." The said weapon "stick" was also not

brought by accused No.1 Vinod Ingle, but it was lying at the

spot and he picked up from the spot. During the scuffle, a

blow is received by the deceased on his head. There are no

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515 apeal206.19

repeated blows by accused No.1 Vinod Ingle while causing

the injuries. The act was due to the "Grave and Sudden

Provocation." There was no pre-mediation on the part of

accused No.1 Vinod Ingle. There was previous enmity and

due to the "Grave and Sudden Provocation," the incident

has taken place and in a hit of passion, the injury was

caused to the deceased. Accused No.1 Vinod Ingle has dealt

a single blow on the person of the deceased.

60. The above said circumstances, sufficiently show

that there was no intention to cause the death of the

deceased, but there was a knowledge to accused No.1 Vinod

Ingle that his act may cause death of the deceased.

61. Admittedly, in the present case, the quarrel took

place on a simple reason that the deceased has allegedly

assaulted accused No.2 Pooja Ingle and, therefore, accused

No.1 Vinod Ingle entered into the house of the deceased and

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515 apeal206.19

gave the blow. The act of accused No.1 Vinod Ingle was not

pre-mediated. The weapon used by him is also lying on the

spot.

62. From the above all circumstances, irresistible

conclusion can be drawn is that accused No.1 Vinod Ingle

was not having any intention to cause death of the

deceased, but he was having knowledge that this act may

cause the death of the deceased and, therefore, the act of

accused No.1 Vinod Ingle falls under Section 304 Part-II of

the IPC.

63. As far as the role of accused No.2 Pooja Ingle is

concerned, there is no evidence on record to show that she

was sharing a "common intention" with accused No.1 Vinod

Ingle.

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515 apeal206.19

64. Word "in furtherance" indicates existence of aid

or assistance in producing an effect in future and thus, it has

to be construed as an advancement or promotion.

65. The Hon'ble Apex Court, in the case of Jasdeep

Singh @ Jassu vs. State of Punjab, reported in (2022)2 SCC

545, interpreted word "furtherance" and held as under:

".......... Word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyze and assess the evidence before implicating a person under Section 34 of the IPC. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common

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515 apeal206.19

intention to the satisfaction of the court. The evidence should be substantial, concrete, definite and clear".

66. By applying the aforesaid principles to the facts

of the present case in hand, it shows that accused No.2

Pooja Ingle has disclosed the incident to accused No.1 Vinod

Ingle and, thereafter, accused No.1 Vinod Ingle,

immediately, entered into the house of the deceased.

However, as per the evidence of PW3 Sujata Ingle, accused

No.2 Pooja Ingle came at the spot of the incident,

subsequently. Therefore, there is no evidence on record to

show that accused No.1 Vinod Ingle and accused No.2 Pooja

Ingle were sharing "common intention" to cause the death

of the deceased.

Therefore, the conviction of accused No.2 Pooja

Ingle under Section 302 read with 34 of the IPC, to whom

no overt act is attributed and there is no evidence to show

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515 apeal206.19

that she was sharing "common intention," requires to be

quashed and set aside.

67. Insofar as the offence under Section 452 read

with 34 of the IPC against accused No.1 Vinod Ingle and

accused No.2 Pooja Ingle is concerned, i.e. "house-trespass",

is proved against both of them. Accused No.1 Vinod Ingle

and accused No.2 Pooja Ingle have committed "house-

trespass" for causing hurt to the deceased and, therefore,

the offence under Section 452 read with 34 of the IPC is

made out against them and, therefore, the conviction

against both the accused persons requires to be maintained.

68. Learned Judge of the trial court, while

considering the evidence adduced, has not taken into

consideration the aspect that the alleged incident has

occurred due to the conflict between the deceased and

accused No.2 Pooja Ingle on account of throwing garbage in

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515 apeal206.19

the courtyard of the house of the deceased. The deceased

has allegedly assaulted accused No.2 Pooja Ingle in absence

of accused No.1 Vinod Ingle, which provoked accused No.1

Vinod Ingle to enter into the house of deceased and the

alleged incident has taken place.

69. As observed earlier, the death of the deceased is

caused due to the provocation and the case of accused No.1

Vinod Ingle covers under Exception-1 and, therefore,

accused No.1 Vinod Ingle is held guilty for the offence

punishable under Section 304 Part-II of the IPC and

sentenced to undergo rigorous imprisonment for 10 years.

The fine amount is maintained. The default sentence is

also maintained. Therefore, the sentence of accused No.1

Vinod Ingle deserves to be modified.

Accused No.2 Pooja Ingle is acquitted of offence

under Section 302 read with 34 of the IPC.

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515 apeal206.19

The conviction and sentence under Section 452

read with 34 of the IPC imposed upon accused No.1 Vinod

Ingle and accused No.2 Pooja Ingle is hereby maintained.

70. In this view of the matter, we proceed to pass

following order:

ORDER

(1) The Criminal Appeal is Partly Allowed.

(2) The judgment and order dated 17.5.2018 passed by

learned Sessions Judge, Akola in Sessions Trial No.96/2017

is modified.

(3) Accused No.1 Vinod Shashikant Ingle is held guilty for

the offence punishable under Section 304 Part-II of the IPC

and sentenced to undergo rigorous imprisonment for 10

years and pay fine Rs.5000/-, in default, to undergo

rigorous imprisonment for three months.

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515 apeal206.19

(4) Accused No.2 Pooja Ingle is acquitted of offence

punishable under Section 302 read with 34 of the IPC.

(5) Accused No.1 Vinod Shashikant Ingle and accused No.2

Pooja Ingle are held guilty for the offence punishable under

Section 452 read with 34 of the IPC and sentenced to

undergo rigorous imprisonment for two years each and pay

fine Rs.1000/-, in default, to undergo rigorous

imprisonment for further period of one month each.

(6) Accused No.1 Vinod Shashikant Ingle and accused No.2