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2017 DIGILAW 204 (BOM)

Laxman Akaram Ingole v. State of Maharashtra

2017-01-31

B.R.GAVAI, INDIRA JAIN

body2017
JUDGMENT : B.R. GAVAI, J. 1. Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Amravati dated 20.1.2015 in Sessions Trial Case No. 98/12, thereby convicting the appellant for the offences punishable under Sections 302 & 307 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay a fine of Rs. 5,000/- and in default, to suffer S.I. for one year for the offence punishable under Section 302 of the Indian Penal Code and also sentencing him to suffer R.I. for five years and to pay a fine of Rs. 3,000/- and in default, to suffer S.I. for six months for the offence punishable under Section 307 of the Indian Penal Code, the appellant has approached this Court. The prosecution case as could be gathered from the material placed on record is thus :- On 4.12.2012 at around 8 p.m. the deceased gave abuses to his son to close his betel kiosk. The accused/appellant felt that the abuses were given to him. So he slapped victim Sudhakar. In turn Sudhakar gave blows of stick to him. Thereafter accused went to his house and brought a sickle. He gave blows of sickle to victim Sudhakar Ingole. The wife of victim, namely, Sunanda Ingole PW. 3 came to save her husband. The accused assaulted her also. She also fell down unconscious. One Mahindra Kakade PW. 2 with the help of others took them to Government Hospital, Amravati. He also lodged an FIR with Talegaon Police Station vide Crime No. 9/12. 2. On the basis of the First Information Report, investigation was set into motion. At the conclusion of investigation, a charge-sheet came to be filed against the accused in the Court of learned J.M.F.C, Chandur Railway for the offences punishable under Sections 307, 302 and 324 of the Indian Penal Code. However, since the case was exclusively triable by the Court of Sessions, the same came to be committed to the learned Sessions Judge, Amravati. The learned trial Judge framed the Charges below Exh. 3 for the offences punishable under Sections 302 & 307 of the Indian Penal Code. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeal has been filed. 3. 3 for the offences punishable under Sections 302 & 307 of the Indian Penal Code. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeal has been filed. 3. Shri Daruwala, learned Counsel appointed for the appellant, submits that the learned trial Judge has grossly erred in passing the order of conviction. He submits that all the witnesses are interested witnesses and, therefore, the conviction on the basis of the interested witnesses would not be sustainable in law. The learned Counsel alternatively submits that in any case, the case would not fall under Section 302 but at the most under Part II or Part I of Section 304 of the Indian Penal Code. 4. Shri M.K. Pathan, the learned Additional Public Prosecutor for the respondent State, on the contrary submits that PW. 3 Sunanda is an injured witness and, therefore, her presence is proved. He further submits that even the other witnesses also support the prosecution case. It is, therefore, submitted that no interference is warranted with the impugned judgment and order. 5. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinized the entire evidence on record. 6. Since the fact regarding the death of the deceased is not challenged, it will not be necessary to discuss the medical evidence. 7. PW. 1 Baban is the first informant. He is a person who had taken the deceased and PW. 3 Sunanda to the hospital. The perusal of the FIR would reveal that it is stated in the report that there was a dispute between the deceased Sudhakar and the present appellant Laxman. On the date of incident, he was informed by one Pintya Mujawar that the deceased and PW. 3 Sunanda were lying in injured condition. He was informed that the present appellant had assaulted deceased Sudhakar and his wife. He brought them to hospital. 8. PW. 3 Sunanda Ingole is the wife of the deceased and also the injured witness. She states that the deceased had gone to shop and asked his son to close the same. He had used the words "Madarchod Pan Thela Band Kar". The accused felt that her husband had abused him. He brought them to hospital. 8. PW. 3 Sunanda Ingole is the wife of the deceased and also the injured witness. She states that the deceased had gone to shop and asked his son to close the same. He had used the words "Madarchod Pan Thela Band Kar". The accused felt that her husband had abused him. Thereafter the accused went to his house and brought sickle and assaulted her husband on his stomach, back and other parts of the body. She states that she came out of the house because of shouting and rushed to pacify the quarrel. At that time accused assaulted her by sickle on her right hand, palm, thigh and she fell unconscious. In her cross-examination, it has come on record that there used to be frequent quarrels on account of the compensation towards the land which was acquired by the State. There are various omissions and contradictions in her evidence. However, in so far as the main incident is concerned, her testimony remains unchallenged. 9. PW. 4 Avinash is the son of the deceased and PW. 3 Sunanda. He states that when he was in his Pan shop, the deceased had come to inform him to close the shop by uttering words "Haramkhora Vel Zala Pan Thela Band Kar". He states that the accused felt that the deceased had abused him. Therefore, he came and slapped his father. That time his father gave a stroke of stick to accused. Accused said to my father "Tham Salya Tula Atta Me Khatam Karato". Thereafter, accused brought sickle and assaulted his father. He gave blow of sickle 4-5 times to his father and on his stomach. In the meantime, his mother had rushed to spot. She was also assaulted by the accused. Though this witness has been thoroughly cross-examined, nothing damaging has come in the evidence. 10. PW. 5 Dharamraj Shrawanji Mankar is an independent witness and he also states that when he was in the house which is in front of the house of the deceased, he heard some noise and, therefore, came out and he saw the accused assaulting the deceased with sickle. 11. PW. 6 Champat is another independent witness, who supports the prosecution case. 12. In view of the ocular testimony of PW. 3 Sunanda, PW. 4 Avinash, PW. 5 Dharamraj & PW. 11. PW. 6 Champat is another independent witness, who supports the prosecution case. 12. In view of the ocular testimony of PW. 3 Sunanda, PW. 4 Avinash, PW. 5 Dharamraj & PW. 6 Champat, we find that the prosecution has proved beyond reasonable doubt that it is the present appellant who is the author of the crime. We find that the prosecution has proved beyond reasonable doubt that the deceased had died because of the assault made by the present appellant/accused and that the deceased Sunanda had received serious injuries on account of the assault by the present appellant. 13. That leaves us with the next question as to whether the case for an offence punishable under Section 302 of the Indian Penal Code would be made out or not or as to whether the case would fall under some other offence. It is to be noted that PW. 3 Sunanda & PW. 4 Avinash are wife and son of the deceased and as such, are interested witnesses. No doubt that the testimony of interested witnesses is not to be discarded only on that ground. However, the testimony of these witnesses is required to be scrutinized with greater caution. It could be seen from the testimony of both these witnesses that they have stated that the deceased had abused his son PW. 4 Avinash. However, the accused felt that he was abused and, therefore, he gave a slap to the deceased. Thereafter, the deceased gave stick blows to the present appellant and the present appellant went to his house, brought a sickle and assaulted the deceased. In the meantime, PW. 3 Sunanda came to save her husband who was also assaulted. It could thus be seen that even according to these witnesses, the abuses were given by the deceased first and thereafter the accused had slapped him. After that the deceased gave two blows of stick to the appellant and thereafter appellant brought the sickle and assaulted the deceased. The testimony of these witnesses would reveal that there always used to be quarrels between the accused and the deceased. We, therefore, find that though the testimony of these witnesses to the effect that the accused had assaulted the deceased and PW. 3 Sunanda is to be believed, at the same time the possibility of the real genesis of the incident being withheld by these witnesses cannot be ruled out. 14. We, therefore, find that though the testimony of these witnesses to the effect that the accused had assaulted the deceased and PW. 3 Sunanda is to be believed, at the same time the possibility of the real genesis of the incident being withheld by these witnesses cannot be ruled out. 14. We, therefore, find that it will be more appropriate to rely on the testimony of PW. 5 Dharamraj who is an independent witness. This witness states that when he heard the noise, he came out of the house and found that the deceased gave stroke of stick to the accused. Thereafter, accused went to his house which is nearby, brought the sickle and assaulted Sudhakar by sickle on stomach. The testimony of this witness would reveal that he has admitted in his cross-examination that on the date of the incident Sudhakar had abused the accused and also gave one stroke of stick. He has further admitted that on the day of incident, both were abusing each other and thereafter the quarrel took place between them. He has further admitted that on the day of the incident the deceased had abused the appellant in a drunken condition and he gave stroke of stick after consuming liquor. 15. It could thus be seen that according to this witness, there was a quarrel between the two. However, initially the deceased gave a blow of stick to the appellant and thereafter appellant went home, brought sickle and assaulted the deceased and Sunanda. In the similar facts, the Apex Court in the case of Bivash Chandra Debnath @ Bivash D & others v. State of West Bengal reported in (2015) 11 SCC 283 : [2015 ALL MR (Cri) 2020 (S.C.)] had held that the conviction under Section 302 of Indian Penal Code would not be tenable. 16. We, therefore, find that the prosecution has utterly failed to prove that there was any premeditation. On the contrary, the evidence on record would show that in a sudden fight and heat of passion, upon a sudden quarrel the incident has taken place. It could further be seen that Explanation to Exception 4 of Section 300 IPC would show that it is immaterial in such cases which party offers the provocation or commits the first assault. As a matter of fact, the evidence would show that the first assault was by the deceased. It could further be seen that Explanation to Exception 4 of Section 300 IPC would show that it is immaterial in such cases which party offers the provocation or commits the first assault. As a matter of fact, the evidence would show that the first assault was by the deceased. Nothing is placed on record to show that the accused has taken undue advantage or acted in a cruel or unusual manner. It appears that in a quarrel that took place and upon the deceased assaulting the appellant with the stick, the appellant lost his control and assaulted the deceased. We, therefore, find that the appellant would be entitled to the benefit of Exception 4 of Section 300 IPC. 17. In so far as the conviction under Section 307 of the Indian Penal Code is concerned, we do not find that the same requires any interference. In the result, the Criminal Appeal is partly allowed. The conviction and sentence awarded to the appellant for the offence punishable under Section 302 of the Indian Penal Code are set aside and altered to one under Part I of Section 304 of the Indian Penal Code. The appellant is sentenced to undergo rigorous imprisonment for a period of seven years for the said offence. Rest of the order including conviction and sentence for the offence punishable under Section 307 of the Indian Penal Code, payment of fine amount, etc. is maintained. Fees payable to the learned Counsel, who was appointed to appear on behalf of the appellant, are quantified at Rs. 5,000/- (Rupees Five Thousand Only).