Bombay High Court
Gajanan S/O Jaganrao Nagose vs State Of Mah. Through P.S.O., Police ... on 23 January, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-NAG:1596-DB
Judgment apeal280.18
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 280/2018.
Gajanan s/o Jaganrao Nagose,
Aged 38 years, Occupation -
Labourer, resident of Dhotra, Post
Warha, Tq. Tiwsa, District Amravati. ... APPELLANT.
VERSUS
State of Maharashtra,
through P.S.O., Police Station
Kurha, Tq. Tiwsa,
District Amravati. ... RESPONDENT.
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Mr. D.A. Sonwane, Advocate (Appointed) for the Appellant.
Mr. N. Joshi, A.P.P. for the Respondent.
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CORAM : NITIN B. SURYAWANSHI AND
M. W. CHANDWANI, JJ.
DATE : JANUARY 23, 2025.
Rgd.
Judgment apeal280.18
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ORAL JUDGMENT (PER NITIN B. SURYAWANSHI, J.) :
This appeal challenges the judgment and order of
conviction passed by the learned Additional Sessions Judge, Amravati
in Sessions Trial No.284/2014 thereby convicting the
appellant/accused for the offence punishable under Section 302 of the
Indian Penal Code, sentencing him to suffer life imprisonment and
imposing a fine of Rs.10,000/- with default clause. The
appellant/accused is also convicted for the offence punishable under
Section 326 of the Indian Penal Code, and sentenced to suffer
rigorous imprisonment for 10 years and to pay fine of Rs.3,000/- with
default clause. The sentences are ordered to run concurrently.
2. The prosecution case in short is that, the appellant/accused
is son of deceased Jagan and Laxmibai (P.W.2). Laxmibai lodged a
report (Exh.17) alleging that on 27.05.2014 at about 6.30 a.m. when
she and Jagan were having tea, at that time Chandrakala had been to
their house to call Laxmibai for labour work. Thereafter the
appellant/accused came there and asked Chandrakala to leave the
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house. Accordingly Chandrakala left the house. Laxmibai accosted
accused - Gajanan for asking Chandrakala to leave the house.
Thereafter accused took out an axe from the house and inflicted
injuries by means of said axe on her husband Jagan on the count that
he invites people in the house. The accused inflicted injuries on
head, neck, both hands and back of the deceased. When Laxmibai
tried to intervene, the accused also assaulted her with axe. Ashok
Mule and Laxman Lokhande intervened, separated the accused from
the deceased and Laxmibai, and gave understanding to the accused.
3. Pursuant to lodging of the report, Kurha Police Station
registered Crime No.61/2014 under Section 326 of the Indian Penal
Code. During the course of treatment, Jagan expired. On completion
of the investigation, charge sheet came to be filed and accused was
charged under Sections 302 and 326 of the Indian Penal Code.
4. During trial prosecution has examined 7 witnesses in
support of the charge. The learned Trial Judge found the accused
guilty and therefore, sentenced him to suffer imprisonment as stated
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above. Hence, this appeal.
5. We have heard the learned Counsel for the
appellant/accused and learned A.P.P. for respondent - State. Perused
the record.
6. Learned Counsel for the accused submits that the trial
Court has failed to appreciate evidence on record in the proper
perspective, and has wrongly convicted the accused under Section
302 of the Indian Penal Code. It is submitted that even if the
prosecution case is accepted as it is, the offence committed by the
accused does not go beyond Section 304 part-II of the Code.
According to him, the accused is entitled to invoke the first exception
of Section 300. In support of his contention, the learned Counsel for
the accused has relied on the judgment of Apex Court in case of
Shahajan Ali and others .vrs. State of Maharashtra and others reported
at (2017) 13 SCC 481, Ravi Kumar .vrs. State of Punjab reported at
AIR 2005 SC 1929 and V. Sreedharan .vrs. State of Kerala reported
at AIR 1992 SC 754.
Rgd.
Judgment apeal280.18
7. Learned A.P.P. on the other hand supported the impugned
judgment and order of conviction. He submits that there was no
grave and sudden provocation from the deceased to the accused, and
therefore, he is not entitled to invoke first exception of Section 300 of
the Code. In support of his contention the learned A.P.P. has relied
on the judgment of Apex Court in case of Vijay @ Vijaykumar .vrs.
State represented by Inspector of Police (Criminal Appeal
No.1049/2021 decided on 16.01.2025).
8. Homicidal death of Jagan is proved by the prosecution by
examining Dr. Naidu (P.W.3), who has conducted autopsy of Jagan.
During post-mortem he found the following injuries on the body of
Jagan.
(1) Incise wound on left side of neck region of size 5 cm x 1
cm.
(2) Incise wound over forehead of size 05 cm x 05 cm.
(3) Incise wound over right shoulder of size 9 cm x 02. cm.
(4) Incise wound over back side of right shoulder of size 3 cm
x 2 cm.
(5) Abrasion over right arm of size 3 x 3 x 0.5 cm.
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Judgment apeal280.18
(6) Lacerated wound over left fore arm of size 3 cm x 3 cm.
(7) Incised wound over parietal region of size 4 cm x 02 cm.
(8) Lacerated wound over left arm of size 4 x 0.5 cm.
(9) Incised wound right elbow of size 2 x 0.5 cm.
In the post-mortem notes (Exh.25), the cause of death is mentioned
as "head injury due to extradural hematoma". He has further deposed
that injuries mentioned in column no.17 were possible by a weapon
i.e. axe. He also deposed that the injuries are likely to cause death of a
person.
9. Perusal of the evidence on record, particularly of P.W.2 -
Laxmibai, who is injured eye witness shows that while she was having
tea along with her husband Jagan and Chandrakala Wanhkade, who
had come to call her for labour work, at that time the accused entered
the house and started assaulting her husband. She started shouting.
Thereafter accused took out an axe and assaulted her, as to why she
has raised shouts. Gajanan assaulted her husband, as she was shouting.
He was continuously assaulting him. The accused also accosted
Chandrakala as to why she had been to his house. Thereafter Police
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Patil and other villagers came there and took them to Kurha, where
she has lodged report (Exh.17).
10. In cross-examination, P.W.2 Laxmibai has admitted that
some times her husband used to drink liquor. She used to give
understanding to her husband not to abuse the accused. She has also
admitted that after the accused asked Chandrakala to leave their
house, she had accosted the accused. Accused has also asked Jagan as
to why he has called people in the house. She also admitted that she
tried to intervene in the quarrel between the accused and Jagan, and
in that course fell on turati kud and sustained injuries. She has also
admitted that due to bleeding injury she became unconscious, and
thereafter, she does not know as to what happened in between her
husband and accused. Omission to the effect "accused started
assaulting my husband" "I started shouting when accused was
assaulting my husband" were brought on record in her cross-
examination.
11. After the incident, P.W..2 Laxmibai and Jagan were taken
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to the hospital and P.W.5 examined them and issued injury certificate
of Laxmibai (Exh.36) and injury certificate of Jagan (Exh.37). Thus,
the prosecution has proved beyond reasonable doubt that Jagan
expired due to assault by axe and Laxmibai (P.W.2) received injuries
in the same incident. Thus there is evidence on record to show that
Jagan died due to assault by the accused with axe and in the same
incident Laxmibai (P.W.2) received injuries, as she was also assaulted
by the accused with the same axe.
12. Prosecution has also examined P.W.6 - Chandrakala, who
has only stated that she had been to the house of Laxmibai at 6 a.m.
for agricultural work. At that time Laxmibai and Jagan were having
tea. At that time accused came there and asked her as to why she
came to his house, he asked her to leave the house. At that time
Laxmibai told the accused that she was not there for lunch. There was
quarrel between the accused and Laxmibai. Thereafter she went to
her house. It is clear from her evidence that she has not witnessed the
actual assault by the accused on Jagan or Laxmibai.
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Judgment apeal280.18
13. On careful analysis of the evidence brought on record by
the prosecution, we are of the considered view that the prosecution
has proved the manner in which incident of assault by appellant on
deceased Jagan and P.W.2 Laxmibai has taken place. Injured P.W.2
Laxmibai has proved assault on her, as well as on her husband.
Evidence of P.W.2 on the point of assault is reliable and she had no
animus against her own son to falsely implicate him in the present
crime. Prosecution therefore, has proved beyond reasonable doubt
that appellant is author of the assault on Laxmibai and deceased,
which has resulted into death of Jagan.
14. The question now falls for our consideration is - Whether
the accused is liable to be punished for offence under Section 302 of
the Indian Penal Code or the case falls in exception 1 to Section 300
of the Indian Penal Code ?
15. It has come in the evidence of eye witness Laxmibai
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(P.W.2), that the quarrel preceded the assault by accused on Jagan
and herself. Her admission in cross examination is that she used to
give understanding to her husband not to abuse the accused. When
the accused asked Chandrakala to leave their house, she has accosted
the accused by saying "Tine kay tuzya ajaycha ata khalla ka",
probabilizes the defence of the accused that due to grave and sudden
provocation because of quarrel, he assaulted Jagan and Laxmibai
(P.W.2). She has further admitted that due to bleeding injury, she
became unconscious and thereafter she did not know as to what
happened in between her husband and accused. The omissions from
her evidence that "accused started assaulting my husband" "I started
shouting when accused was assaulting my husband" are also proved in
the evidence of the Investigating Officer.
16. From above evidence it is clear that due to quarrel, the
accused was deprived of power of self-control and in a fit of anger he
assaulted Jagan and Laxmibai. There was no premeditation on the
part of appellant to assault and cause death of his father Jagan. We are
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therefore, of the view that first exception of Section 300 of the Indian
Penal Code is applicable to the present case, he is therefore, guilty of
culpable homicide not amounting to murder.
Accused is in jail since the date of his arrest i.e. from
25.07.2014. He has completed more than 10 years of sentence,
which according to us is sufficient in the facts of the present case.
Hence the following order.
ORDER
(i) Criminal Appeal is partly allowed.
(ii) The conviction of appellant/accused under Section 302
awarded by the Additional Sessions Judge-3, Amravati in
Sessions Trial No.284/2014 dated 06.10.2017 is altered to
conviction under Section 304 Part-II of the Indian Penal
Code, and the appellant/accused is sentenced to suffer
imprisonment for the period already undergone by him.
(iii) The conviction of the appellant/accused under Section
326 of the Indian Penal Code is maintained.
(iv) The appellant/accused be released forthwith, if not
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required in any other case.
(v) Muddemal property be dealt with in accordance with law.
(vi) Professional fees of the learned Counsel appointed for the
appellant/accused be paid as per Rules within a period of 4
weeks from uploading of this order.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 18/02/2025 10:31:58
