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2019 DIGILAW 1476 (BOM)

Kalicharan v. State of Maharashtra

2019-06-27

SUNIL B SHUKRE

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JUDGMENT : Sunil B. Shukre, J. This is an Appeal which questions the legality and correctness of the Judgment and Order dated 2nd May 2005 rendered in Sessions Trial No. 123 of 1997 by the Sessions Judge, Nagpur. 2. In brief the facts of the present Appeal are as under : There were two accused persons, one is the Appellant himself and the other one is Suresh Gagadhar Awathe, who were prosecuted and tried for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. They were alleged to be involved in an incident which took place on 20th December 1996 at 17.30 hours, at village Khapa, District Nagpur. 3. It so happened that both these accused persons were bridegrooms, who were to marry two daughters of one Bhimrao Gagate on 20th December 1996 at Khapa at the same time and venue. Their marriages with respective brides were solemnized and then there was a time for marriage feast. The feast would be served to several guests attending the marriage, who would be sitting with folded legs on the ground in different rows. The arrangement is traditionally called in marathi as 'Pangat'. While the Pangat feast was at its peak, it is alleged that some differences arose between the accused persons and one guest Deepak Bajirao Marotkar over consumption of a flour boiled butter-milk which is traditionally called in marathi as 'Kadhi'. 4. It is alleged that initially 'Kadhi' was asked for by Deepak and when it was brought for him, he refused to accept the same in his plate. This was not liked by the accused persons. The Accused persons insisted upon Deepak not to turn back on his demand, but Deepak refused to be pursuaded in accepting 'Kadhi'. These differences ultimately led to this Appellant in pulling out a dagger, which he was wearing as a part of traditional wedding dress and assault Deepak by means of dagger. It is alleged that this Appellant stabbed Deepak at different portions in his lumber region causing six incised wounds and two contusions, which all ultimately resulted in death of Deepak. 5. It is alleged that this Appellant stabbed Deepak at different portions in his lumber region causing six incised wounds and two contusions, which all ultimately resulted in death of Deepak. 5. The complaint and its investigation and then the prosecution and trial of this Appellant and his co-accused for the offence of murder followed and the trial concluded in acquittal the co-accused of the Appellant and conviction of the Appellant for an offence punishable under Section 304(Part-I) of Indian Penal Code. By the impugned Judgment and order, the Appellant was convicted and sentenced to suffer rigorous imprisonment for five years together with a fine of Rs. 1000/-, accompanied by a default sentence of further rigorous imprisonment for three months. 6. Being aggrieved by the impugned Judgment and order, the Appellant is now before this Court in the present Appeal. 7. I have heard Mr. Nawab, the learned Counsel for Appellant and Mr. Joshi, the learned APP for State. I have also gone through the paper book and record and proceedings of the present Appeal. 8. The learned Counsel for Appellant has made submissions in a fair manner and giving up his challenge to the findings of guilt, insofar as it relates to causing of death of Deepak, the learned Counsel has made submission only with regard to the conversion of the conviction from Section 304 (Part-I) of Indian Penal Code to Section 304 (Part-II) of Indian Penal Code and concomitantly about the quantum of the sentence. 9. Per contra, the learned APP submits that the trial court has already imposed mild punishment by taking lenient view and having regard to the evidence brought on record, there is hardly any scope in this case to further reduce the sentence. 10. I would have accepted the submissions made across the bar on behalf of the State by the learned APP, had it been a case that the guilt of the accused so found in the facts and circumstances of the case had attracted only Part-I of Section 304 of Indian Penal Code. But, on a closure scrutiny of the evidence available on record, I find that the guilt of the accused in the present case, insofar as it relates to causing of death of Deepak, would only attract Section 304 (Part-II) of Indian Penal Code. 11. But, on a closure scrutiny of the evidence available on record, I find that the guilt of the accused in the present case, insofar as it relates to causing of death of Deepak, would only attract Section 304 (Part-II) of Indian Penal Code. 11. The reason for such a conclusion is that the evidence available on record unmistakenly shows that assault made on Deepak was a result of sudden quarrel and it had no backdrop of any enimity of the deceased with the Appellant. Infact, Deepak was a respected guest, who had attended wedding of the Appellant. He was partaking of the wedding feast being held to celebrate wedding of the Appellant. In such a case, no person would have any intention to cause any injury to his guest. Infact, no person inviting a guest would even imagine in his mind to cause any harm to his guests. But, sometimes human frailties overpower a person and a petty difference of opinion between a guest and host may assume a menacing form and result in persons indulging in violent acts. In such a case, there may not be an intention to cause death and the intention may be only to establish superiority of one's view point or satisfaction of one's ego through physical violence. This seems to have happened in the present case. What appeared to be harmless and innocuous exchange of words turned later into a diatribe between the duo and then it erupted into an affair of extreme violence leading to unfortunate death of an honoured guest at a wedding ceremony. 12. I am of the view that in the background of the facts and circumstances discussed above, no intention to cause death could be seen to be present on the mind of this Appellant and whatever injuries he had inflicted to the deceased could only be said to have been done with the knowledge that they were likely to cause death, though there was some degree of uncertainty in the knowledge that such injuries may cause death. 13. A careful perusal of the impugned Judgment and order shows that the leaned Sessions Judge has drawn the same conclusion just as I have in this case. 13. A careful perusal of the impugned Judgment and order shows that the leaned Sessions Judge has drawn the same conclusion just as I have in this case. In paragraph No. 49 of the Judgment, the learned Sessions Judge has found that it looked highly improbable to him that bridegroom would have any intention to murder any invitee in his own marriage. He also found that the incident took place suddenly, and therefore, there was no prior meeting of minds or pre arranged plan or pre concert to inflict murderous injuries upon the deceased. However, the learned Sessions Judge after making such a determination, found that the ingredients of Section 304 (Part-I) of Indian Penal Code were attracted and not the ingredients of Part-II of Section 304 of Indian Penal Code. 14. I must say, there is a difference, may be thin-line between Part-I and Part-II of Section 304 of Indian Penal Code and the difference is real. The difference lies in the presence of intention to cause death, which is the requirement of Part-I of Section 304 of Indian Penal Code and absence of intention but presence of knowledge regarding the probable consequence of the injury inflicted, which is the core of Part-II of Section 304 of Indian Penal Code. In Rampal Singh V/s State of Uttar Pradesh, (2012) 8 SCC 289 , elaborating the difference between these two parts, the Hon'ble Apex Court observed that the linguistic distinction between them is evident from the very language of Section 304 of Indian Penal Code. It further held that there are two apparent distinctions, one in relation to the punishment, while other is founded on causing that act with an intention or without any intention, but with the knowledge that the act is likely to cause death. It also observed that any determination regarding applicability of either of the parts of Section 304 of Indian Penal Code is primarily a question of fact to be decided only on the basis of evidence brought on record in a particular case. 15. The Hon'ble Apex Court has given succinctly its exposition about the difference between two parts of Section 304 of Indian Penal Code in another case, Alister Anthony Pareira V/s State of Maharashtra, (2012) 2 SCC 648 . It observed in Paragraph No. 28 thus :- "28. 15. The Hon'ble Apex Court has given succinctly its exposition about the difference between two parts of Section 304 of Indian Penal Code in another case, Alister Anthony Pareira V/s State of Maharashtra, (2012) 2 SCC 648 . It observed in Paragraph No. 28 thus :- "28. For punishment under Section 304 Part I, the prosecution must prove the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is "culpable homicide not amounting to murder" since Section 304 does not define this expression Sections 299 and 300 IPC have to be seen." 16. It appears to me that learned Sessions Judge turned oblivious to such a fine distinction between two parts of Section 304 of Indian Penal Code, and therefore, has committed an error of fact and law in awarding punishment under Part-I of Section 304 of Indian Penal Code, in spite of giving a finding that there was no intention on the part of this Appellant. To this extent, interference with the findings recorded by the learned Sessions Judge is required, which I would make while concluding this Judgment. 17. Thus, I find that the accused has committed culpable homicide not amounting to murder of Deepak which is punishable under Section 304 (Part-II) of Indian Penal Code and the accused deserves to be convicted and sentenced for the same. 18. On the question of sentence, I am of the opinion that the incident has occurred 23 years ago and there is no material brought on record to show any such act as may have been done by the Appellant during the pendency of the Appeal dis-entitling him from earning further leniency from this Court. The Appellant is a married person and it is informed by his learned Counsel that the Appellant has one daughter and a son, apart from his wife, to take care of. The Appellant is a married person and it is informed by his learned Counsel that the Appellant has one daughter and a son, apart from his wife, to take care of. It is also informed by the learned Counsel that the Appellant is a labourer earning his livelihood and taking care of his family only by the dint of hard labour and that somehow or the other he is managing to educate his children and also feed his entire family within his meager income. He submits that Appellant may be given a chance to reform himself and also be a responsible head of family. He submits that if his sentence is reduced to a reasonable period, it would serve the Appellant as an incentive to be a good and responsible person and it would also enable him to take care of the educational needs of the children of the Appellant and other needs of his family. He, therefore, submits that further leniency be shown to the Appellant. The learned APP has recorded his opposition to the same. 19. Taking a holistic view of the matter and other factors, such as the long passage of time after the time when the incident took place, the social status of the Appellant, absence of any adverse material against the Appellant and the educational and other needs of the members of the Appellant's small family, I am of the opinion that circumstances do exist which speak in favour of showing further leniency to the Appellant. The only question then would be of balancing the factors going in favour of the Appellant with the needs of the society and doing so, I am of the view that the sentence of rigorous imprisonment of five years awarded to the Appellant could be reduced to no further than the rigorous imprisonment of four years with proportionate enhancement in the amount of fine. 20. In the circumstances, Criminal Appeal is partly allowed. 21. The Appellant is convicted of an offence punishable under Section 304 (Part-II) of Indian Penal Code and is sentenced to suffer rigorous imprisonment of four years and is also directed to pay a fine of Rs.10,000/-, and if any default is committed in paying the fine amount, the Appellant shall suffer further simple imprisonment of three months. 21. The Appellant is convicted of an offence punishable under Section 304 (Part-II) of Indian Penal Code and is sentenced to suffer rigorous imprisonment of four years and is also directed to pay a fine of Rs.10,000/-, and if any default is committed in paying the fine amount, the Appellant shall suffer further simple imprisonment of three months. The Appellant be given benefit of the set-off for the period of detention, already undergone by him against the modified sentence imposed by this Judgment, in terms of Section 428 of the Code of Criminal Procedure. The impugned Judgment and order stand modified accordingly. 22. The Appellant to surrender to the Superintendent, Central Prison, Nagpur within four weeks from the date of this Judgment.