Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 2252 (BOM)

Shardabai Dhondiram Mane v. State of Maharashtra

2012-12-04

A.R.JOSHI, V.K.TAHILRAMANI

body2012
Judgment : [Smt. V.K. Tahilramani, J.] 1. The Appellant is the original accused No.2. By the Judgment and order dated 10th September, 2004 in Sessions Case No. 29 of 2004, the learned VIth Additional Sessions Judge, Sangli convicted he Appellant under Section 302 read with Section 34 of the Indian Penal Code. The Appellant was sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/in default, R.I. for six months. 2. The prosecution case is that on 14th August, 2003 at about 23 hours in the land bearing Gat No.506 of Pandurang Dadu Madane at village Karanje, the Appellant along with co-accused in furtherance of their common intention assaulted deceased Dhondiram Bhairu Mane by means of sticks of babhul and bamboo and forcibly administered poison by name Rogar and as a result, said Dhondiram died the next day. P.W.No.7 ASI Bapu Dayanu Chandane lodged the First Information Report (FIR). Thereafter, investigation commenced. After completion of investigation chargesheet came to be filed. 3. Charge came to be framed against the Appellant original Accused No.2 along with original accused No.1 i.e. her son Bhagavat under Section 302 of IPC for causing death of Dhondiram Mane. The Appellant pleaded not guilty and claimed trial. The defence of the Appellant is that of total denial and false implication. The further defence is that the case would not fall under Section 302 of IPC, but it would fall at the most under Section 326 of the IPC. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph No.1 above, hence, this Appeal. 4. We have heard Mr. Arfan Sait, Advocate appointed for the Appellant and Mr. J. P. Kharge, learned A.P.P. for the Respondent– State. We have perused the evidence as well as the judgment and order of the learned Sessions Judge. After carefully considering the matter, we are of the opinion that the appellant and other accused did cause injuries to Dhondiram which resulted in his death. 5. Mr. Sait, learned Advocate for the Appellant, in the background of this case, firstly contended that as per the C.A. report no poison was found nor the prosecution could prove that victim Dhondiram died as a result of poisoning. The learned A.P.P. did not contradict this aspect of the matter. Other evidence against the Appellant is of assault of the deceased. Sait, learned Advocate for the Appellant, in the background of this case, firstly contended that as per the C.A. report no poison was found nor the prosecution could prove that victim Dhondiram died as a result of poisoning. The learned A.P.P. did not contradict this aspect of the matter. Other evidence against the Appellant is of assault of the deceased. In that regard, our attention was drawn by Mr. Sait to the fact that even if the prosecution case is accepted as it is, that the Appellant is alleged to have caused certain fractures to the deceased by using sticks, the case would not fall under Section 302. He drew our attention to the postmortem report which describes the injuries. They are as under: Contusion over left arm from midpart to upper 1/3 of forearm; CLW one post aspect of the contusion over Rt. arm in upper part 6' x 6'; CLW over lateral aspect of 1' leg 3 inches above lateral tuberosity; There were three fractures. Two on humorous and third on tibia fibula. Mr. Sait contended that in no case these injuries could have resulted in death and since the prosecution case about the death by poisoning cannot be believed and accepted, as has been done by the trial Court, this particular appellant can be at the most convicted under Section 326 of the Indian Penal Code and not Section 302 of IPC. On the other hand, the learned A.P.P. for the State tried to contend that the injuries were serious and that offence could come under Section 302 of the Indian Penal Code. 6. In this case, the weapons used are sticks and the length and width of the sticks do not show that they were deadly weapons. We are of the opinion that the learned Sessions Judge has rightly concluded that the Appellant along with original Accused No.1 assaulted Dhondiram with sticks and caused his death. However, even if the Appellant had assaulted and caused those three fractures, looking to the fact that the injuries are not on vital parts, the conviction of the appellant under Section 302 cannot be sustained and, therefore, we are constrained to allow the Appeal partly. Hence, the following order: ORDER 1. The Appeal is partly allowed. 2. Conviction of the Appellant/Accused under Section 302 of the Indian Penal Code is set aside. She is acquitted of that charge. 3. Hence, the following order: ORDER 1. The Appeal is partly allowed. 2. Conviction of the Appellant/Accused under Section 302 of the Indian Penal Code is set aside. She is acquitted of that charge. 3. However, the Appellant/Accused is convicted under Section 326 of the Indian Penal Code and sentenced to suffer R.I. for five years. She is entitled for set off. 4. Writ of the order be expedited. 5. The order be communicated to the Appellant -Original Accused who is in jail. 6. At this stage, we wish to place on record our appreciation for the way in which Mr. Arfan Sait, learned appointed Advocate appearing for the Appellant has conducted the matter. He meticulously prepared the matter and very ably argued the matter. We quantify his fees to be paid by the High Court Legal Services Committee, Bombay at Rs.2,500/ (Rupees Two Thousand Five Hundred only). The same to be paid to the learned Advocate Mr. Arfan Sait within two months from today.