Dipak Siddhu Patil vs The State of Maharashtra

V.K. Tahilramani, Actg. C.J.

This appeal is preferred by the appellant -original accused against the judgment and order dated 30.11.2009 passed by the learned Additional Sessions Judge, Sangli in Sessions Case No. 107 of 2008. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 2000/-, in default S.I. for two months.

The prosecution case briefly stated, is as under:

(a) The deceased in the present case is Macchindra. PW 4 Suresh was the brother of Macchindra. Suresh was residing with his family at Miraj and Macchindra along with his wife and parents was residing at Vadgaon. The house of Macchindra was situated in Dattanagar locality in Vadgaon. The house of the appellant was on the western side of the house of Macchindra. It was situated at a distance of about 40 feet. There was a dispute in relation to the open space between the house of Macchindra and the appellant.

(b) On 12.4.2008, Suresh had gone from Miraj to stay in his newly constructed house in Dattanagar at Vadgaon. At that time, Macchindra came to his house and told him that there was a dispute with the appellant in relation to fixing of door on the western side of his house. Suresh then told Macchindra that he would come to his house the next day morning.

(c) On 13.4.2008, Suresh went to the house of Macchindra at about 7.00 a.m. They started demolishing the western side wall of the house in order to fix a door frame therein. One Jalindar (PW 7) and Macchindra were doing that work. Suresh was standing beside them. The wall was demolished to an extent which was sufficient to fix a door frame. At that time, the appellant came to the spot from his house. He started abusing them. The appellant then caught hold of Macchindra and gave him fist and kick blows. Thereafter, the appellant took out a knife and stabbed Macchindra on the abdomen with the knife. Suresh raised hue and cry. The appellant then ran away.

(d) Macchindra was taken to Civil Hospital at Sangli. Medical treatment was started, however, Macchindra expired at about 1.00 p.m. Suresh lodged F.I.R. Exh. 21. Thereafter, investigation commenced. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Sections 302, 323, 452 and 504 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal preferred by the appellant against his conviction and sentence.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted Macchindra with a knife in the abdomen and caused his death.

There are two eye witnesses in the present case i.e PW 4 Suresh and PW 7 Jalindar. PW 4 Suresh has stated that he was residing with his family at Miraj and Macchindra along with his wife and parents was residing at Vadgaon. The house of Macchindra was situated in Dattanagar locality in Vadgaon. The house of the appellant was on the western side of the house of Macchindra. It was situated at a distance of about 40 feet. There was a dispute in relation to the open space between the house of Macchindra and the appellant.

Suresh has further stated that on 12.4.2008, he had gone from Miraj to stay in his newly constructed house in Dattanagar at Vadgaon. At that time, Macchindra came to his house and told him that there was a dispute with the appellant in relation to fixing of door on the western side of his house. Suresh then told Macchindra that he would come to his house the next day morning.

Suresh has further stated that on 13.4.2008, he went to the house of Macchindra at about 7.00 a.m. They started demolishing the western side wall of the house in order to fix a door frame therein. One Jalindar (PW 7) and Macchindra were doing that work. Suresh was standing beside them. The wall was demolished to an extent which was sufficient to fix a door frame. At that time, the appellant came to the spot from his house. He started abusing them. The appellant then caught hold of Macchindra and gave him fist and kick blows. Thereafter, the appellant took out a knife and stabbed Macchindra on the abdomen with the knife. Suresh raised hue and cry. The appellant then ran away. Macchindra was taken to Civil Hospital at Sangli. Medical treatment was started, however, Macchindra expired at about 1.00 p.m. Then Suresh lodged F.I.R.

The evidence of PW 7 Jalindar is on similar lines as that of PW 4 Suresh.

In addition to the evidence of two eye witnesses i.e PW 4 Suresh and PW 7 Jalindar, reliance is also placed by the prosecution on the evidence of PW 6 Vijay. Vijay has stated that on 13.4.2008 at about 8.00 a.m., he heard shouts, hence, he came out of his house. At that time, he saw the appellant running away towards southern side of village with a knife in his hand. Jalindar then went to the spot and he saw Macchindra lying there with bleeding injuries on the abdomen.

Dr. Yug Mohit Choudhary, the learned counsel for the appellant submitted that even if, it is accepted that the act of the appellant of assaulting Macchindra on the abdomen with a knife resulted in the death of Macchindra, the case would not fall under Section 302 of IPC but it would fall under Section 304 Part II of IPC. He pointed out that the evidence on record shows that when the incident occurred, a quarrel was going on between the appellant and Macchindra. This has been deposed about by PW 4 Suresh and PW 7 Jalindar. Dr. Choudhary pointed out that the appellant gave just one blow with knife on the abdomen of Macchindra which is clear from the evidence of PW 4 Suresh as well as PW 7 Jalindar. Dr. Choudhary submitted that this shows that it was not the intention of the appellant to cause the death of Macchindra. He submitted that if the appellant had intended to cause the death of Macchindra, the appellant would not have stopped after giving just one blow to Macchindra but the appellant would have continued to assault Macchindra. The fact that the appellant did not do so shows that the appellant did not have any intention to cause the death of Macchindra. Dr. Choudhary further submitted that the assault was not pre-meditated or pre-planned but it happened on the spur of the moment in a fit of anger. Dr. Choudhary reiterated that the fact that the appellant stopped after giving just one blow to Macchindra during the course of sudden quarrel would bring the case under Exception 4 to Section 300 of IPC and would thus be covered by Section 304 Part II of IPC.

To bring a case within Exception 4 to Section 300 of IPC, all the ingredients mentioned in it must be found. It is to be noted that the word ''fight'' occurring in Exception 4 to Section 300 of IPC is not defined in the IPC. It takes two to make a fight. In this case, the evidence shows that the parties had worked themselves into a fury on account of the quarrel going between them. However, for the application of Exception 4 to Section 300 of IPC, it is not sufficient to show that there was a sudden quarrel and there was no per-meditation but it must further be shown that the offender had not taken any undue advantage or acted in a cruel or unusual manner. The fact that the appellant gave only one blow shows that he did not take any undue advantage or acted in a cruel or unusual manner. However, we are not prepared to accede to the submission of Dr. Choudhary that the case would fall under Section 304 Part II of IPC. In our view, the case would fall under Section 304 Part I of IPC because we are of the opinion that the appellant did not just have the knowledge that his act is likely to cause death as contended by Dr. Choudhary but in fact, the appellant intended to cause the death of Macchindra. We say so on the basis of the weapon used, the part of the body where the injury was inflicted, the force used while assaulting and the nature of injury. The injuries, as seen from the evidence of PW 5 Dr. Sadakale, are extensive in nature. Looking to all these facts, we are of the considered opinion that the case cannot fall under Section 304 Part II of IPC.

Considering the evidence on record, we are of the view that Exception 4 to Section 300 of IPC applies to the facts of the case and the appropriate conviction would be under Section 304 Part I of IPC, hence, the conviction of the appellant under Section 302 of IPC is set aside, instead, the appellant is convicted under Section 304 Part I of IPC. In our view, custodial sentence of eight years rigorous imprisonment and fine of Rs. 2000/-, in default, R.I. for one month would meet the ends of justice.

The appeal is allowed to the aforesaid extent.