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2019 DIGILAW 243 (BOM)

UMESH KISHORE GARODIA v. STATE OF MAHARASHTRA

2019-01-29

A.S.GADKARI, A.S.OKA

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JUDGMENT : A.S. Gadkari, J. 1. The appellant has impugned the Judgment and Order dated 9th October 2009 passed by the learned Additional Sessions Judge, Raigad at Alibag, District Raigad in Sessions Case No. 17 of 2009, convicting him for an offence punishable under section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 5 lakhs, in default of payment of fine, to further undergo rigorous imprisonment for two years. 2. Heard Shri Sejpal, the learned counsel appearing for the appellant and Shri Yagnik, the learned APP for State. Perused the entire record. 3. The date and time of incident is 14th October 2008 between 3.00 to 4.00 pm. Shorn off unnecessary details, the prosecution case in brief is that, the deceased Pradip R. Modi and the appellant were in the business of sale and purchase of steel. The appellant was having his office bearing No. C118 situated on the first floor of Kalamboli Steel Chambers at Kalamboli, District Raigad. As per the prosecution case, the deceased was to receive Rs. 40 Lakhs from the appellant out of their business transactions. On 14th October 2008, the deceased had been to the office of the appellant for demanding the said due amount. There was altercation between the appellant and the deceased. The deceased, thereafter, abused the appellant in filthy language and also extended threats. The appellant got furious and assaulted the deceased with a hammer on his head and face causing grievous hurt. That, the appellant also pierced knife in the throat of the appellant causing death of Pradip Modi (deceased) instantaneously. It is further the prosecution case that, after the said incident the appellant went to Kalamboli Police Station and informed the act committed by him to Shri Dattatray Khade, Police Sub-Inspector (PW-1), then attached to Kalamboli Police Station. A station diary entry at Sr. No. 57 dated 14-10-2010 was made by the Station House Officer and in pursuance of the information given by the appellant about the commission of the offence, the Police party led by Police Inspector Shri. Jaising Tambe (PW-20) went to the scene of offence. The Police personnel noticed a dead body lying in the office of the appellant with a hammer pressed in the mouth of the deceased and a knife pierced in the throat. 4. The Police personnel noticed a dead body lying in the office of the appellant with a hammer pressed in the mouth of the deceased and a knife pierced in the throat. 4. The appellant came to be arrested at about 00.10 am on 15th October 2008. After completion of the investigation, on 2nd January 2009, the Police submitted charge sheet in the Court of Judicial Magistrate, First Class at Panvel. As the offence punishable under section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class committed the said case to the Court of Sessions at Alibag. The trial Court framed charge below Exhibit - 3. The said charge was read over and explained to the appellant to which he denied and claimed to be tried. The defence of the appellant is of total denial and false implication. 5. The prosecution in support of its case examined in all 20 witnesses. The learned trial Court after recording evidence and after hearing the parties to the said case was pleased to convict the appellant by the impugned Judgment and Order as stated hereinabove. 6. At the outset, it is to be noted here that, it is the prosecution case itself that, Pradip Modi (deceased) with a view to demand his outstanding amount of Rs. 40 Lakhs had been to the office of the appellant on the date and time of the incident. There were altercations between them and the deceased abused the appellant in filthy language and also extended threats. It is due to the said abuses and threats extended by the deceased, it caused grave and sudden provocation to the appellant and in the heat of anger the appellant assaulted the deceased with a hammer and a knife which was lying in the said office. The said hammer and knife have been seized from the scene of offence by the Police in presence of Gunraj Singh (PW-2). The detailed description of the hammer and knife has been mentioned in the Inquest cum Spot Panchanama (Exhibit - 24). Blood stained clothes of the accused were also seized by the same panchanama. The said hammer and knife have been seized from the scene of offence by the Police in presence of Gunraj Singh (PW-2). The detailed description of the hammer and knife has been mentioned in the Inquest cum Spot Panchanama (Exhibit - 24). Blood stained clothes of the accused were also seized by the same panchanama. Shri Vijay Mhatre (PW 19), then attached to Primary Health Centre, Vashi as Medical Officer conducted autopsy of the dead body of Pradip Modi and has stated that, during the course of post mortem examination, he noticed the following nine injuries: "(1) Contused lacerated wound over forehead and parietal region of skull having sized 8 x 5 x 4 cms. Compound fracture of skull was found. (2) Contused lacerated wound over right temporal region of skull, 8 x 4 x 3 cms. Fracture of skull was found. (3) Contused lacerated would over left parietal region of skull, having size 6 x 4 x 2 cms. Fracture of skull. (4) Contused lacerated wound over left eyebrow and forehead, having size 3 x 2 x 1 cms. (5) Contusion over nose having 2 x 2 cms, fracture of nasal bone. (6) Contused lacerated would over upper lip having size 2 x 1 x 1 cms. Fracture of upper jaw. (7) Contused lacerated would over chin and lower jaw, having size 3 x 2 x 2 cms. Fracture of mandible. (8) Contused lacerated would over thyroid cartilage, stab injury with sharp edges, having size 2.5 x 2 x 4 cms. Injury to trachea, thyroid, cartilage and oesophejus. (9) Contusion over anterior chest wall, 10 x 8 cms." 7. The internal injuries mentioned in the post mortem report are corresponding to the said external injuries. It appears from the nature of injuries that, the appellant, after getting provoked due to the abuses and threats extended by the deceased, has indiscriminately assaulted him, predominantly with the hammer. Taking the prosecution case narrated hereinabove as true and correct, the act of the appellant would fall within the ambit of exception 4 of section 300 of the Indian Penal Code. It is to be noted here that, the word "fight" occurring in Exception 4 of Section 300 of the Indian Penal Code is not defined in the Code. It takes two to make a fight. It is to be noted here that, the word "fight" occurring in Exception 4 of Section 300 of the Indian Penal Code is not defined in the Code. It takes two to make a fight. For applicability of Exception 4, it is necessary that after a sudden quarrel, there must be no time for passion to cool down. 8. In that view of the matter, according to us, the act of the appellant would, therefore, fall within the purview of section 304 (Part-II) of the Indian Penal Code and not under section 302 of the Indian Penal Code. We, therefore, modify the impugned Judgment and Order to that extent and hold the appellant guilty of commission of offence under section 304 (Part - II) of the Indian Penal Code. 9. Hence, the following order:- ORDER: (i) The impugned Judgment and Order dated 9th October 2009 passed by the Additional Sessions Judge, Raigad at Alibag, District Raigad in Sessions Case No. 17 of 2009 is hereby modified and the appellant is held guilty for commission of an offence punishable under section 304 (Part - II) of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2 Lakhs. In default of payment of fine to further undergo rigorous imprisonment for one year. (ii) The appeal is partly allowed in the aforesaid terms.