2016 ALL MR (Cri) 1697
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. P. DHARMADHIKARI AND V. M. DESHPANDE, JJ.
Subhash @ Sopan s/o. Prahlad Gavanade Vs. State of Maharashtra
Criminal Appeal No.441 of 2013
22nd February, 2016.
Petitioner Counsel: Shri S.D. CHANDE, Ms. S.B. KHOBRAGADE
Respondent Counsel: Shri R.S. NAYAK
Penal Code (1860), S.300 Exception 4 - Murder - Sudden fight - Allegation that appellant assaulted deceased by sickle and left spot - Deceased and appellant are cousins - There was dispute between them on account of land - Eye witnesses deposed that on day of incident, there was altercation in between deceased and appellant and incident had occurred in spur of moment - Weapon used in crime was sickle - However, appellant being agriculturist, it is not uncommon for him to hold such weapon - Further, post mortem report shows that it was case of single injury - Appellant had not taken any undue advantage of situation - However, injury caused is such that it could result into death - Case falls under Exception 4 of S.300, IPC - Conviction of appellant altered from S.302 to S.304 Part I. (Paras 13, 14)
V. M. DESHPANDE, J. :- By the present appeal, the appellant Subhash @ Sopan Pralhad Gawande, who is sentenced to suffer life imprisonment, as awarded to him by the learned Ad-hoc Additional Sessions Judge-1, Buldana, Camp at Malkapur in Sessions Case No.63/2012 (Old S.T. No.5/2012), after holding him guilty for committing the offence punishable under Section 302 of the Indian Penal Code, is before this Court.
2. Shivaji Bhatu Ahire (PW-8) a probationary Police Sub Inspector was present at Nandura Police Station on 4.11.2011. That time, Sudhir Gawande (PW-1) came to Police Station and lodged his oral report (Exh.25). As per the said report, though he resides at Nashik in view of his service, for the purpose of Diwali, he had been to his village Mamulwadi. On 4.11.2011, he heard the noise and commotion. Therefore, he rushed towards the place of incident to notice that his uncle Murlidhar Dnyandeo Gawande lying in a pool of blood and Subhash @ Pralhad Gawande, the appellant, was proceeding from the spot along with blood smeared sickle in his hand. Deceased Murlidhar Gawande and Subhash Gawande, the appellant, are his cousins and there was a long standing dispute in between them on account of distribution of agricultural property. After getting such oral report, a crime was registered against the appellant vide Crime No.138/2011 and printed F.I.R. (Exh.26) was prepared.
3. Shivaji Ahire (PW-8), thereafter, proceeded along with staff to the place of occurrence. There, in the presence of panchas, spot panchanama (Exh.37) was drawn. The inquest panchanama (Exh.39) over the dead body was also drawn. Thereafter, the dead body was sent to postmortem at Primary Health Centre, Nandura. The postmortem report (Exh.45) was received by the investigating officer.
4. The appellant was arrested on 4.11.2011 itself at 2.45 p.m. When he was in police custody, he gave his memorandum statement (Exh.30) in presence of panchas, whereby he agreed to show the place where he concealed the weapon as well as the clothes which were on his person at the time of commission of the offence. Accordingly, the police party, along with panchas, reached to the house of the accused and from the old water tank, the blood smeared sickle and clothes were seized under seizure panchanama (Exh.31). The investigating officer completed the other usual investigation and filed charge-sheet before the Court of law.
5. The case was registered as Sessions Case No.63/2012, since the offence was exclusively triable by the Court of Sessions. The learned Judge of the Court below framed the charge. The appellant denied the charge and claimed for his trial. In order to bring home the guilt of the appellant, in all eight witnesses were examined by the prosecution and also relied upon the various documents which were duly proved during the course of trial. After appreciating the prosecution case, the learned Judge of the Court below passed the sentence as observed in opening paragraph.
6. We have heard Shri S.D. Chande, learned counsel along with Ms. S.B. Khobragade, learned counsel for the appellant and Shri Rajesh Nayak, learned Additional Public Prosecutor for the respondent-State. With their able assistance, we have gone through the record and proceedings.
He further submits that in any case the appellant cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code and at the most he can be convicted for the offence punishable under Section 304 Part-I of the Indian Penal Code.
"(1) Stab wound on superior aspect of thorax near base of neck, left side just behind clavicle, obliquely (transverse) placed from middle of left clavicle to medial end.
4 cm. long depth - piercing into thoracic cavity gaping 2 cm.
Ragged end latero - posteriorly clean end antero medially.
*Weapon - pointed and sharp on one margin blunt on another margin."
9. According to PW-7 Dr. Jaiswal, who conducted the postmortem, the fatal injury was due to left sub clavian artery and, therefore, he died due to cardiorespiritory arrest. The postmortem report shows that it was a case of single injury. PW-7 Dr. Jaiswal has also gave his report to query of investigating officer, by which, he pointed out that the weapon which was sent to him can cause injury on the dead body. In view of evidence of Dr. Jaiswal and coupled with the postmortem report, there cannot be any doubt in mind that the deceased died with homicidal death.
10. We are unable to accept the submission on the part of appellant to discard the evidence of eyewitnesses. Their evidence has remained unshaken on the material aspect that appellant has given sickle blow.
11. The next question that the Court is required to address, as to whether, the appellant is required to be convicted for the offence punishable under Section 302 of the Indian Penal Code or he is entitled to punishment for lesser offence.
12. The deceased as well as the appellant are cousins. It is brought on record through evidence of PW-1 Sudhir, nephew of deceased, that there was dispute in between appellant and deceased on account of land. This aspect is duly corroborated by PW-3 Bhagwan, the father of Sudhir (PW-1). The evidence of PW1- Sudhir Gavande and PW3-Bhagwan Gavande, who is the father of Sudhir, show that on the date of the incident, they both heard the commotion as well as the noise of dispute in between the appellant and the deceased. According to evidence of PW3-Bhagwan, there was altercations in between the deceased as well as the appellant. To a specific question, he has required to answer as under :
"There was altercations in between them, pushing and shoving (yksVikV) taken place".
His evidence shows that the incident had occurred in spur of moment. According to the evidence of this prosecution witness, in a minute before PW-3 Bhagwan could intervene in the said altercation, the appellant has assaulted by means of sickle and left the spot. In view of the evidence of prosecution witnesses, we see force in the submissions of learned counsel for the appellant that there was no intention on the part of appellant to commit murder and incident in question has occurred in a sudden fight. In view of the prosecution evidence, the present case falls in Exception 4 of Section 300 of the Indian Penal Code.
14. Weapon used in the crime is sickle. Sickle is usually found commonly in the house of agriculturist. In fact, the sickle is an implement for the agricultural use. It is brought on record that both the deceased and the appellant belong to agricultural families, therefore, the sickle in the hand of the appellant is not uncommon. Further, from the evidence of eyewitness, it is clear that the appellant has not taken any undue advantage of the situation after he gave sickle blow. It is established on record that the appellant has given one sickle blow to the deceased. In the present case, the appellant has caused such bodily injury on the vital part of body though the incident has occurred in spur of moment, the injury is such that it could result into death. Hence, appellant is required to be convicted under Section 304 Part-I of the Indian Penal Code.
15. In this view of the matter, the appeal needs to be partly allowed and accordingly the judgment and order of conviction passed by Ad-hoc Additional Sessions Judge-1, Buldana, Camp at Malkapur, dated 9.7.2013, is hereby set aside. The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code, instead the appellant is convicted for offence punishable under Section 304 Part-I of the Indian Penal Code and he is directed to suffer Rigorous Imprisonment for ten years. Insofar as fine amount is concerned, the order passed by the learned Sessions Judge is confirmed. Needless to mention that the appellant, who is in jail, shall be entitled for the set off.