Avinash Ramesh Mandape vs The State of Maharashtra

D. G. Deshpande, J.—Heard Mr. Mundargi for the appellant - accused and A.P.P. for the State.

The appellant - accused who was young boy of about 17 years on the date of the incident, which occurred in September 1993, is convicted for

the offence u/s 302 of Indian Penal Code by the IIIrd Additional Sessions Judge (B.B. Satarle), Kolhapur, by his judgment dated 28-6-1995 and

is sentenced to life imprisonment and fine of Rs. 1,000/- or in default S.I. for one month.

It was mainly contended by Mr. Mundargi that considering the facts and circumstances of the case, the only question was whether offence for

which appellant- accused could be convicted was u/s 302 of the I.P.C. or u/s 304 (Part - 2) of the I.P.C. Since, Mr. Mundargi restricted his

submissions to this aspect of the case, the learned A.P.P. also restricted his arguments, and from the circumstances it was submitted by him that the

case made out by the prosecution was u/s 304 (Part-21 of the I.P.C.

For applying proper section of the I.P.C. it is necessary to reproduce certain salient features of the case.

As per the prosecution case, and which is not disputed, the victim was a young boy of about 17 years of age. The appellant-accused was also

about 17 years at that time, and their friends were also of the same age group. On 11-9-1993 a small altercation took place over the kite fly, in

which Sagar Mandape brother of the appellant slapped the complainant whose name is also Sagar (Jadhav). On the next day Vishal Bhosale, one

of the witnesses alleges that this appellant accused conveyed the message to him that Sagar should not enter the society where Avinash resides.

Thereafter on 14-9-1993 Sagar Jadhav - complainant accompanied by Vishal Bhosale, Jagdish Patil, Shrikant Chougale and Amol - deceased

assembled at the square near the locality for the purpose of questioning the appellant-accused as to what threats he had given and what he

intended to do about it. It is alleged by the prosecution that all of them first went to the house of the appellant- accused but he was not in the

house, therefore, they again assembled at the square near the board of ""Mad Max Group"". Some time thereafter they saw that appellant - accused

was coming on bicycle. One of those 5 boys stopped the appellant - accused. They asked him what threats he has given over the quarrel of his

brother Sagar. Therefore appellant accused is alleged to have asked the boys to go to his house to verify story from Sagar. Accordingly, all of

them accompanied by appellant - accused went to his house and from outside appellant - accused asked somebody who was inside the house as

to whether Sagar was at home. Somebody informed that Sagar was not at home and therefore at that time the quarrel started between the

appellant - accused on the one side and the five boys on the other side. There was a hot exchange of words, a scuffle and it is alleged that in that

scuffle the appellant - accused took out a knife (Khanjar) and gave a single blow on the stomach of Amol and thereafter Amol started running from

the spot. He ran for quite a distance and then fell down, he was asking for water. An autorickshaw came there, the driver was also incidentally

related to one of the witnesses. He offered water to Amol and they removed Amol to the hospital where history of receiving injury in the history of

the history of assault in quarrel was given, but within half an hour Amol died.

It is in this background that case of the prosecution has to be considered whether prosecution has succeeded in proving offence u/s 302 or it is a

case falling u/s 304 (Part 2).

What is apparent from record and from true facts is, that firstly appellant - accused had no criminal record or antecedent, he was a young boy

of about 19 years of age studying in school. Secondly, there was absolutely no enmity between him and the deceased - Amol. Thirdly, he had not

given any threats to the deceased - Amol but a warning that is alleged to have been given by him to Vishal Bhosale that Sagar should not enter the

locality, and it is this warning was given over a fighting over a kite flying. Further, it is revealed from the evidence of the prosecution that on that

date of the incident i.e. on 14-9-1993 it was not the person accused - appellant who was in search of Amol - the victim in this case, neither it is the

case of the prosecution that this appellant accused was trying to execute his threat given to brother of the complainant. On the contrary what is

revealed is that prosecution witnesses P.W. 1 Sagar Rangrao Jadhav, P.W. 3 Jagdish Hari Patil and P. W. 5 Shrikant Anandrao Chougule, and

their friends had assembled on 14-9-1993 they were searching for the appellant accused, they had been to his house, he was not found there.

Thereafter, they were waiting for him at the square near the board of ""Mad Max Group"", they saw the accused going on bicycle and even at that

time it is not alleged that on seeing this group, the appellant accused stopped and gave any threats. To the contrary, the consistent case of the three

friends and prosecution witnesses is that they stopped the appellant-accused and they questioned about the threat or warning given by him. At that

time also there is no allegation that the appellant - accused tried to be offensive. To the contrary, the appellant - accused asked them to come to

his house and verify to the facts from Sagar - brother of the appellant-accused.

The aforesaid sequence of events will show that at no time from 11-9-1993 till 14-9-1993 the appellant - accused had tried to influence the so-

called other group or pressurise them or threatened them nor he was trying to search for them to execute the threat given by him. Thereafter when

all of them assembled near the house of the appellant - accused, none of the prosecution witnesses say that on the pretext of finding Sagar - the

brother of the appellant accused, appellant-accused entered the house and brought out the knife (Khanjar). Witnesses are consistent that the

appellant - accused enquired about his brother Sagar without entering the house and from outside itself. This particular situation becomes relevant

and important if one looks at the knife (Khanjar) that is alleged to have been seized at the instance of the appellant - accused. We had seen the

knife (Khanjar). It was sent to this Court as muddemal property ''Article 4''. The knife (Khanjar) is quite big one, it is in an ornamental cover and it

has a brass metal spring like hook and the knife (Khanjar) cannot come out until brass metal hook is pressed. The total length of the knife

(Khanjar) along with cover is about one feet and the blade of the knife (Khanjar) is about seven inches. The cover and the knife (Khanjar) makes

a bulky thing, and since on this important aspect the prosecution is totally silent, namely, whether the appellant - accused was carrying this knife

(Khanjar) with the cover, it is with him from the beginning i.e. while he was proceedings on bicycle or whether he brought it by entering into the

house. A grave doubt is created as to the source of the weapon. None of the witnesses have been able to prove as to from where the appellant -

accused got the knife (Khanjar). However, the recovery of the knife (Khanjar) at the instance of the appellant - accused immediately on the next

day and the consistent evidence of the prosecution about the use of the knife (Khanjar) does not create any doubt about the use of the knife

(Khanjar) by the appellant - accused for assaulting Amol.

The question is whether the appellant accused in the circumstances mentioned above could be attributed with an intention to commit murder of

Amol. Admittedly, till the actual assault, no intention of the appellant - accused is brought on record by any of the prosecution witnesses either in

the form of direct evidence or in the form of circumstances. To the contrary, it has come on record that there was no enmity between the victim

and the appellant - accused. Secondly, as per the evidence of these three witnesses and medical evidence only one single blow on stomach was

given. It has also come in the evidence that there was an altercation between the appellant -accused on one side and 4-5 friends of the victim on

the other side. There was a physical scuffle between them and one of the lady witness who was present on the spot also shouted that victim was

being assaulted (Even though all the three important witnesses have spoken about her presence at the scene of offence at the time of the assault,

the prosecution did not choose to examine this lady witness). All these facts coupled with the absence of any evidence regarding the source of the

weapon Article 4 are sufficient in our considered opinion to bring this case under 4th exception to section 300 and therefore it has to be held that

this is a case of culpable homicide not amounting to murder and culpable homicide being committed without premeditation in a sudden fight in the

heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage of the situation or having acted in a cruel or

unusual manner.

Inflicting one single blow not preceded or not followed by any cruel or harsh attack on the part of the appellant - accused vis-a-vis the victim,

absence of any premeditation and presence of sudden fight and sudden quarrel, coupled with the absence of evidence from where the appellant -

accused got the knife are circumstances sufficient to bring this case under Exception 4. Therefore, as observed by us earlier and as submitted by

Mr. Mundargi this is not a case u/s 302 of I.P.C. but it is a case u/s 304 (Part 2) of the I.P.C.

The learned Public Prosecutor fairly conceded that from the circumstances brought on record, apart from the submissions made by Mr.

Mundargi, that this was a case where the appellant - accused was not liable to be convicted u/s 302 of the I.P.C. but was liable to be convicted

u/s 304 (Part 2) of I.P.C. We therefore consequently hold that the conviction of the appellant - accused u/s 302 of I.P.C. is not just and proper

and he is liable to be convicted u/s 304 (Part 2).

So far as the sentence is concerned, it was contended by Mr. Mundargi that considering the age of the appellant - accused at the time of the

incident, considering the fact that even though the appellant accused is in jail for last more than six years, the appellant - accused had persuaded his

studies and has completed vocational guidance course, considering the absence of any criminal antecedents and considering the manner in which

the assault took place the sentence already undergone by the appellant - accused is sufficient to meet the ends of justice. The learned A.P.P.

however contended that even if the appellant accused is held to be guilty u/s 304 (Part 2) the punishment prescribed was upto 10 years and

sentence should be in consonance with the nature and severity of the offence.

We have given our anxious consideration to the submissions made by Mr. Mundargi and the learned A.P.P. In our opinion this is a case where

appellant accused should be called upon to pay compensation to the parents of the victim. It has come on record that the father of the victim Amol

Jadhav was working as a peon in the bank and that Amol Jadhav had also one younger brother and this clearly shows that the family of victim is

from lower middle class and since the young life has been lost, in our opinion, compensation of Rs. 30,000/- will be sufficient to meet the ends of

justice. This would be payable, of course, out of the fine to be imposed in this case.

For all these reasons, we pass the following order :

ORDER

The judgment of conviction of the appellant - accused passed by IIIrd Additional Sessions Judge, Kolhapur dated 28-6-1995 u/s 302 of E.P.C.

and sentence imposed upon him is set aside and is modified and the appellant - accused is convicted u/s 304 (Part 2) of the I.P.C. and is

sentenced to suffer R.I. for 7 years and to pay a fine of Rs. 31,000/-, out of which Rs. 30,000/- shall be payable to the parents of the victim Amol

Rangrao Jadhav. Appellant - accused is given six weeks time to pay fine. If fine is not paid within six weeks the accused will have to undergo R.I.

for 2 years and 3 months. Mr. Mundargi made a statement, upon instructions of the father of the appellant - accused, that the accused will deposit

the amount of fine in the Sessions Court, Kolhapur, within six weeks. On deposit of such fine, the Sessions Court, Kolhapur, will issue notice to

the parents of victim - Amol Rangrao Jadhav and pay the amount of compensation to them. Rest of the order regarding destruction of property

remains the same.