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2014 DIGILAW 1647 (BOM)

Sanjay Hari Phondake v. State of Maharashtra

2014-07-28

A.S.GADKARI, V.K.TAHILRAMANI

body2014
JUDGMENT SMT. V.K. TAHILRAMANI, J. The Appellant/original accused has preferred this Appeal against the judgment and order dated 6th March 2012 passed by the Learned Sessions Judge, Sindhudurg, Oros in Sessions Case No. 15 of 2011. By the said judgment and order the learned Sessions Judge convicted the Appellant under Section 302 of the Indian Penal Code for causing the death of his father Hari and under Section 323 for causing injuries to his mother Taramati. For the offence under Section 302, the Appellant was sentenced to suffer imprisonment for life and for the offence under Section 323 the Appellant was sentenced to pay a fine of Rs. 100/-, in default to undergo simple imprisonment for seven days. 2. The prosecution case briefly stated is as under : The Appellant was the son of Hari and P.W.10 - Taramati. Hari is the deceased in the present case. Earlier the Appellant, deceased Hari and his wife Taramati were all residing at Ramwadi. However, on account of quarrels between Hari and the Appellant, Hari and his wife Taramati started residing at Khindicha Mal and the Appellant with his wife and children continued to reside at Ramwadi. Prior to the incident the Appellant asked his mother Taramati to give him money by selling ancestral land. Taramati informed this fact to her husband Hari. However, Hari was opposed to the said idea. The incident occurred on 21st November 2010. At about 4 p.m. the Appellant came to Khindicha Mal. At that time deceased Hari had gone to fetch water. In the meanwhile, P.W.8 Punam who was the daughter of the Appellant came there and was sitting with Taramati. The Appellant came to the spot and asked Taramati about his father. The Appellant saw his father standing in Khale. Khale is a place where rice is threshed. The Appellant then dragged Taramati from the cattle shed and asked her to stand in Khale, adjacent to Hari. Then a quarrel took place between the Appellant and his father Hari. Taramati asked P.W.8 - Punam to go home and tell about the incident to her mother i.e. P.W.7 - Sanjivani. Hence, Punam left to tell her mother about the incident. The Appellant then gave fist blows to his father Hari. Hari fell on the ground. Taramati tried to separate the Appellant and Hari. The Appellant kicked Taramati due to which Taramati fell down. Hence, Punam left to tell her mother about the incident. The Appellant then gave fist blows to his father Hari. Hari fell on the ground. Taramati tried to separate the Appellant and Hari. The Appellant kicked Taramati due to which Taramati fell down. Almost all the bangles of Taramati were broken. Taramati then called P.W.1 - Chandrakant for help. Chandrakant came to the spot. Chandrakant saw the incident and he went to call villagers. At that time the Appellant lifted a stone from nearby and gave blow with it on the head of Hari. This incident took place at about 5.30 p.m. Thereafter Hari was taken to the hospital. Hari expired at 8.30 p.m. P.W.1 - Chandrakant lodged FIR, Exhibit 10. Thereafter investigation commenced. The Appellant was arrested. The dead body of Hari was sent for postmortem. P.W.12 - Dr. Makandar examined Hari. On examination he found the following injuries on the person of Hari : "1. Contused lacerated wound over occipital region of scalp with fracture of occipital bone. Bleeding present." During postmortem it was found that the cause of death was hemorrhage shock with intracranial hemorrhage. After completion of investigation, charge-sheet came to be filed. 3. Charge came to be framed against the Appellant under Sections 302 and 323 of the Indian Penal Code. The Appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of denial. His further defence is that the incident occurred during the course of a sudden quarrel. After going through the evidence adduced in this case, the Learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph 1 above, hence, this Appeal. 4. We have heard Mr. Sait, learned advocate for the Appellant and the learned APP for the State. We have carefully considered the submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, we are of the opinion that the Appellant assaulted his father Hari with a stone on the head and during the course of the incident also caused injuries to his mother Taramati. 5. The conviction is mainly founded on the evidence of P.W.10 - Taramati. Taramati was the mother of the Appellant and the wife of the deceased. 5. The conviction is mainly founded on the evidence of P.W.10 - Taramati. Taramati was the mother of the Appellant and the wife of the deceased. She has stated that she was residing along with her husband, the Appellant and his wife and children at Ramwadi. However, on account of quarrels between the Appellant and his father Hari, Taramati and Hari started residing at Khindicha Mal and the Appellant along with his wife and children continued to reside at Ramwadi. Taramati has stated that prior to the incident the Appellant was asking her to provide money by selling ancestral land. Taramati informed this fact to her husband Hari. Her husband opposed the idea. Taramati has stated that on the day of the incident at about 4 p.m. She was at home at Khindicha Mal cleaning rice. Thereafter the Appellant came to Khindicha Mal. At that time her husband had gone to fetch water. The Appellant came to the spot and asked Taramati about his father. The Appellant saw his father Hari standing in the Khale. The Appellant then dragged Taramati from the cattle shed and asked her to stand in the Khale, adjacent to Hari. Then a quarrel took place between the Appellant and his father Hari. Taramati asked her granddaughter P.W.8 - Punam to go home and tell about the incident to her mother i.e. P.W.7 - Sanjivani. Sanjivani is the wife of the Appellant. Hence, Punam left to tell her mother about the incident. The Appellant then gave fist blows to his father Hari. Hari fell on the ground. Taramati tried to separate the Appellant and Hari. The Appellant kicked Taramati due to which Taramati fell down. Some of the bangles of Taramati were broken. Taramati then called P.W.1 - Chandrakant for help. Chandrakant came to the spot. Chandrakant saw the incident and he went to call villagers. At that time the Appellant lifted a stone from nearby and gave blow with it on the head of Hari. This incident took place at about 5.30 p.m. Thereafter Hari was taken to the hospital, however, Hari expired at 8.30 p.m. 6. The evidence of Taramati is supported to some extent by the evidence of P.W.8 - Punam who was the daughter of the Appellant and the granddaughter of the deceased as well as Taramati. P.W.8 - Punam has stated that Hari was her grandfather. The evidence of Taramati is supported to some extent by the evidence of P.W.8 - Punam who was the daughter of the Appellant and the granddaughter of the deceased as well as Taramati. P.W.8 - Punam has stated that Hari was her grandfather. At the time of incident she was residing at Ramwadi along with her mother, sister and father i.e. the Appellant. Her grandfather Hari and grandmother Taramati were staying in a cattle shed at Khindicha Mal. Her grandfather Hari started residing in the cattle shed since he was not pulling on well with the Appellant. Punam has stated that the incident took place on 21st November. She was at home on that day. On account of swelling on her toe, she had gone to her grandfather's house to apply Iodex. Thereafter she was sitting with her grandmother. Her grandfather at that time had gone to fetch water. At about 4 p.m. her father came there. The Appellant asked the whereabouts of his father. In the meantime, Hari - the father of the Appellant came there. Then the Appellant asked his father to stand in the plot (khale) prepared to thrash paddy crop. Then the Appellant also dragged his mother Taramati and made her stand adjacent to her husband. Taramati, the grandmother of Pun am then told Punam to go and inform her mother P.W.7 - Sanjivani that the Appellant is assaulting his father. Hence, Punam rushed home to inform her mother about the incident. 7. The evidence of P.W.10 Taramati is further corroborated by the evidence of P.W.7 - Sanjivani who is the wife of the Appellant. Sanjivaji has stated that earlier she was residing at Ramwadi in ancestral house along with her in-laws and children. The Appellant was asking his father Hari that Hari should permit the Appellant to dispose of the ancestral property and deceased Hari was opposing the same. On account of this Hari and the Appellant were constantly quarrelling with each other. On account of the quarrels, Hari decided to reside separately. Accordingly Hari and his wife Taramati started residing in the cattle shed at Khindicha Mal, whereas the Appellant, his wife and children continued to reside at Ramwadi. Sanjivani has stated that on 21st November 2010 her daughter Punam told her that she is visiting the house of her grandfather since she had a swelling on her leg. Accordingly Hari and his wife Taramati started residing in the cattle shed at Khindicha Mal, whereas the Appellant, his wife and children continued to reside at Ramwadi. Sanjivani has stated that on 21st November 2010 her daughter Punam told her that she is visiting the house of her grandfather since she had a swelling on her leg. Punam left the house in the afternoon. After approximately one and halfhour Punam rushed home. Punam informed Sanjivani that the Appellant i.e. father of Punam and husband of Sanjivani was assaulting Punam's grandfather. Hence, Sanjivani left the house to go to Khindicha Mal. When she reached the spot she saw her father-in-law was lying on the ground with bleeding injury to his head above the ear. 8. After the incident Hari was rushed to the hospital. P.W.12 - Dr. Makandar examined Hari. He found the following injuries on his person: "1. Contused lacerated wound over occipital region of scalp with fracture of occipital bone. The patient was unconscious with severe head injury and bleeding." Dr. Makandar also examined Taramati and he found the following injuries on her person: "1. Blunt trauma over right side of chest. Redness of size 3 cm x 2 cm. The cause was hard and blunt object and the age of the injury was within 24 hours. 2. Abrasion over the right wrist anterior aspect of 1 cm. in length. Red in colour, caused by hard and blunt object or tip of sharp object and the age was within 24 hours." Thus, the medical evidence supports the case of the prosecution that the Appellant assaulted Hari with a stone. The medical evidence also supports the case of Taramati that she was also assaulted by the Appellant. 9. Hari died at about 8.30 p.m. Thereafter the dead body of Hari was sent for postmortem. P.W.15 - Dr. Mhadgut performed the postmortem on the dead body of Hari. On examination, Dr. Mhadgut found the following injuries on the body of Hari : "(1) Deep incised lacerated wound over left occipital temporal region measuring 2 cm x 4 cm by brain deep. (2) Lacerated wound over right pinna with bleeding from ear. (3) Contused lacerated wound over deltoid area of right arm was present.” Dr. Mhadgut also noticed fracture of right temporal occipital bone and subcutaneous hemotoma and lacerated hemorrhage in relation to injury No.1. In Dr. (2) Lacerated wound over right pinna with bleeding from ear. (3) Contused lacerated wound over deltoid area of right arm was present.” Dr. Mhadgut also noticed fracture of right temporal occipital bone and subcutaneous hemotoma and lacerated hemorrhage in relation to injury No.1. In Dr. Mhadgut's opinion the probable cause of the death was hemorrhagic shock with intra-cranial hemorrhage. We find that the medical evidence is totally consistent with the prosecution case. 10. The learned APP has also placed reliance on the evidence of P.W.1 Chandrakant. Chandrakant has stated that deceased Hari and his wife were residing in the field known as Khindicha Mal. The land of Chandrakant was known as Palacha Vahal. On the date of the incident, he had been to the land with his cattle at about 4 p.m. and he was sitting near mango tree. From the mango tree he could see the house of the deceased which was at about a distance of 100 ft. At about 5.30 p.m. Chandrakant heard the shouts of Taramati saying "Run, Sanjay is assaulting his father". On hearing this, Chandrakant rushed to the spot. On reaching the spot, Chandrakant noticed that the Appellant was assaulting his father Hari. The mother of the Appellant was trying to separate the Appellant and Hari. Chandrakant realized that he was not in a position to separate them, hence, he rushed to the village and tried to search for Prakash who was the chairman of Tanta Mukti Committee of the village. In the village he saw Prakash as well as Police Patil. He then narrated the facts to them and they all proceeded towards Khindicha Mal. They noticed Hari was lying on the ground. They noticed bleeding injury on the head of Hari. Then Hari was shifted to the Primary Health Center. From there he was immediately shifted to the hospital at Oros. 11. Mr. Sait submitted that even if it is accepted that the act of the Appellant of assaulting his father with a stone resulted in his death, the case would not fall under Section 302 of the Indian Penal Code, but would fall under Section 304 part II of or at the most Section 304 part I of the Indian Penal Code. He pointed out that Taramati has stated that the Appellant and his father started jostling with each other. He pointed out that Taramati has stated that the Appellant and his father started jostling with each other. However, he pointed out from the Marathi version of the evidence that Taramati has stated that the Appellant and his father started doing maramari. Mr. Sait has drawn the attention of this Court to the New Standard Dictionary Volume III, Marathi-English-Marathi by Gangadhar Deorao Khanolkar, 1985 edition that the word maramari is described as mutual fighting. Mr. Sait submitted that the evidence of Taramati shows that at the time of the incident maramari was going on between the Appellant and his father i.e. the deceased that is a fight was going on between the Appellant and the deceased. Mr. Sait submitted that the fight between the Appellant and his father was a sudden fight. The Appellant did not come to the spot armed with a weapon, but he assaulted Hari with a stone taken from the spot. Mr. Sait pointed out that the assault was not premeditated or preplanned, but it happened on the spur of moment in a fit of anger. Mr. Sait further submitted that the fact that the Appellant assaulted Hari during the course of a sudden quarrel would bring the case under exception (4) of Section 300 of the Indian Penal Code. 12. To bring the case under exception (4) of Section 300 of the Indian Penal Code, all the ingredients mentioned in it must be found. It is to be noted that the word fight occurring in exception 4 to Section 300 of the Indian Penal Code is not defined in the Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. The evidence of Taramati especially the words used by her in her evidence as seen from the original in Marathi shows that both the parties were mutually fighting. The Appellant did not come to the spot armed with a weapon, but he assaulted Hari with a stone taken from the spot. Had the Appellant come with a predetermined mind to assault Hari, he would have come to the spot armed with a weapon. Such is not the case. Looking to the evidence on record, we have no doubt that the case would fall under exception (4) to Section 300 of the Indian Penal Code. Had the Appellant come with a predetermined mind to assault Hari, he would have come to the spot armed with a weapon. Such is not the case. Looking to the evidence on record, we have no doubt that the case would fall under exception (4) to Section 300 of the Indian Penal Code. However, we are not prepared to accede to the submission of Mr. Sait that the case would fall under Section 304 Part II of the I.P.C. In our view, the case would fall under Section 304 Part I of the I.P.C. because we are of the opinion that the Appellant did not just have the knowledge that his act is likely to case death as contended by Mr. Sait, but in fact the Appellant intended to cause the death of Hari. We say so on the basis of the weapon used, the part of the body where the injury was inflicted, the force used while assaulting and the nature of the injury. Looking to all these facts, we are of the considered opinion that the case cannot fall under Section 304 Part II of the I.P.C. 13. Considering the evidence on record, we are of the view that exception (4) to Section 300 applies to the facts of this case and the appropriate conviction would be under Section 304 Part I of the I.P.C. Hence, the conviction under Section 302 of the I.P.C. is set aside, instead, the Appellant is convicted under Section 304 Part I of the I.P.C. For the said offence, in our opinion, custodial sentence often years rigorous imprisonment and fine of Rs. 1,000/-, in default simple imprisonment for 15 days would meet the ends of justice. The conviction and sentence under Section 323 is maintained. 14. The Appeal is allowed to the aforesaid extend. At this stage, we must record our appreciation for Advocate Mr. Arfan Sait, who is on the High Court Legal Services Committee and who was appointed to represent the Appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the Appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.5000/-. Appeal partly allowed.