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2018 DIGILAW 2457 (BOM)

Deepak Ramchandra Chavan v. State of Maharashtra

2018-10-11

A.S.GADKARI, S.S.SHINDE

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JUDGMENT : A.S. Gadkari, J. The appellant has impugned the Judgment and Order dated 2nd February 2010 passed by the 5th AdHoc Additional Sessions Judge, Greater Mumbai in Sessions Case No.796 of 2008, convicting the appellant under section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/-, in default of payment of fine, to further suffer simple imprisonment for one year. 2. Heard the learned counsel appearing for the appellant and the learned APP for State. Perused the record. 3. The prosecution in brief is that, on 10th September 2008 in the intervening night and more precisely on 11th September 2008 between 2.30 a.m. to 3.00 a.m. a quarrel took place between deceased Jerry Fernandis and the appellant in the pandol erected for celebrating Gannesh festival. The quarrel between deceased Jerry and the appellant further ensued in hot exchange of words and the appellant and Jerry started scuffling with each other. At that time, the appellant slapped on the face of Jerry due to which he fell on the ground. The appellant thereafter assaulted Jerry with kick blows on his mouth, chest, stomach and leg. The appellant lifted bamboo stick lying nearby in the pandol and assaulted Jerry. The appellant subsequently hurled a stone lying in the said pandal on the head of Jerry. After hearing commotion, people from neighbourhood gathered near the scene of offence whereupon the appellant left the said place The deceased was taken to Nair Hospital by Sagar Chonkar (PW No.7), Smt. Vanita Jerry Fernandis (PW No.9) and other persons. The deceased scummed to injuries at about 6.30 a.m. on 11.9.2010. Initially crime bearing No.167 of 2008 came to be registered under section 307 of Cr. P.C at the instance of Sachin R. Lakhan (PW No.1). After Jerry succumbed to death, the offence registered under section 307 of Cr. P.C was altered to section 302 of Cr. P.C. After completion of investigation, the police had submitted chargesheet in the Court of competent jurisdiction. 4. As the offence under section 302 of Cr. P.C. is exclusively triable by the Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions as contemplated under section 209 of Cr. P.C.. The learned Trial Court framed charge below Exh.3. 4. As the offence under section 302 of Cr. P.C. is exclusively triable by the Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions as contemplated under section 209 of Cr. P.C.. The learned Trial Court framed charge below Exh.3. The said charge was read over and explained to the appellant in verna-cular language to which he denied and claimed to be tried. The defence of the appellant is of total denial. The prosecution in support of its case, examined in all 15 witnesses. The Trial Court after recording evidence and hearing the parties was pleased to convict the appellant under section 302 of Indian Penal Code by the impugned Judgment and Order dated 2nd February 2010. 5. Though the prosecution has examined 15 witnesses in support of its case, the evidence of Sachin Lakhan (PW No.1), Sagar Chonkar (PW No.7), and Smt. Vanita Jerry Fernandis (PW No.9) wife of the deceased, and Dr. Aarti Gupta (PW No.12) is relevant and necessary to decide the present appeal. Sachin Lakhan (PW No.1) in his testimony has stated that between 2.30 a.m. and 2.40 a.m. of 11.9.2008, there was hot exchange of words between Jerry and the appellant over some petty ground which ensued in scuffle and in the said scuffle, the appellant initially gave slap to Jerry due to which he fell down. The appellant thereafter picked up a bamboo stick and assaulted Jerry with it. The appellant also hurled a stone which was lying in Pandol at the deceased due to which he suffered injuries. Dr. Aarti Gupta (PW No.12) in her testimony has stated that, when deceased Jerry was brought to the hospital, he was smelling with alcohol. She admitted in her cross-examination that, the injuries suffered by Jerry can be caused due to falling down in ditch after striking of stone. The wife of deceased namely Smt. Vanita Jerry Fernandis (PW No.9) stated to Police that, Jerry was under influence of liquor and he fell down and sustained injuries. 6. A minute scrutiny of evidence of Sachin Lakhan (PW No.1) would indicate that, his testimony is trustworthy and reliable. The wife of deceased namely Smt. Vanita Jerry Fernandis (PW No.9) stated to Police that, Jerry was under influence of liquor and he fell down and sustained injuries. 6. A minute scrutiny of evidence of Sachin Lakhan (PW No.1) would indicate that, his testimony is trustworthy and reliable. As noted earlier, Sachin Lakhan (PW No.1) in his testimony has clearly stated that, it is due to quarrel which ultimately ensued in scuffle, the appellant assaulted deceased Jerry initially with kick blows, then with bomboo stick and thereafter hurled a stone at the deceased. Deceased was insisting with appellant to behave properly as he was elder to him which enraged appellant and he initially gave slap on the face of deceased Jerry. The testimony of Sagar Chonkar (PW No.7) duly corroborates the version of Sachin Lakhan (PW No.1). Thus it is clear that, the incident in question has taken place due to sudden heat of passion and provocation by deceased Jerry and in the said heat of passion, the appellant assaulted deceased Jerry with kicks, stick and then with stone. Mr. Gurav submitted that, the fact that the incident occurred during sudden quarrel would being the case under Exception 4 of Section 300 of the Indian Penal Code. 7. To bring a 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 here that the word "fight" occurring in Section 4 of Section 300 of the Indian Penal Code is not defined in the Code. It takes two to make a fight. It takes to make a fight by heat of passion requires that there must be no time for passion to cool down. In the present case as noted earlier it is due to the admonition given by the deceased being elder to the appellant initially quarrel took place which ensue in deceased initially slapping the appellant due to which the appellant got infuriated and assaulted the deceased initially with kick blows and then with the stick and lastly hurled stones on the head of the deceased. It further clearly appears to us that, there was no premeditation or preplanning on the part of the appellant and the incident occurred on the spur of the moment in a fit of anger. It further clearly appears to us that, there was no premeditation or preplanning on the part of the appellant and the incident occurred on the spur of the moment in a fit of anger. The appellant did not come to the spot armed with weapon and assaulted the deceased initially with kicks and the with stick which was lying in the said pandol. 8. Taking into consideration the facts of the present case we are of the considered view that, the case will fall under Section-304 Part II of the Indian Penal Code. Considering the evidence available on record, we are of the further view that Exception 4 to Section 300 of the Indian Penal Code applies to the facts of the present case and the appropriate conviction would be under Section 304 Part II of the Indian Penal Code. Hence, the conviction of the appellant under Section 302 of the Indian penal Code is set aside and instead the appellant is convicted under Section 304 Part II of the Indian Penal Code and for the said offence under Section 304 Part II of the Indian Penal Code the appellant is sentenced to imprisonment for 10 years. The fine amount, if any, deposited shall stand forfeited. If the fine amount is not deposited, the in default sentence imposed upon by the learned Additional Sessions Judge is maintained. Hence the following Order: (a) Conviction and sentence imposed upon the appellant under section 302 of the Indian Penal Code by Judgment and Order dated 2nd February 2010 by the learned 5th AdHoc Additional Sessions Judge in Sessions Case No.796 of 2008 is hereby modified and the appellant is convicted under section 304 II of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years. (b) Fine amount, if any deposited by the appellant in the Trial Court be forfeited. (c) Appellant is entitled for set off under section 428 of Cr. P.C. 9. Appeal is accordingly partly allowed. 10. In view of disposal of the Appeal No.235 of 2010, Criminal Application No.1538 of 2016 does not survive and the same is accordingly disposed off.