Shantaram Hari Mane vs The State of Maharashtra

V.K. Tahilramani, Acting C.J—This appeal is preferred by the appellant -original accused against the judgment and order dated 20.4.2009 passed by the learned Additional Sessions Judge, Satara in Sessions Case Nos. 216 of 2007. 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 rigorous imprisonment for life and fine of Rs. 2000/-, in default S.I. for 2 months.

The prosecution case briefly stated, is as under:

(a) Deceased Baburao Jadhav along with his family was residing in Village Degaon in District Satara. The appellant was also residing in the same village. PW 5 Shobha and PW 11 Kishor were also residing in the very same village. The relations between the appellant and deceased Baburao were strained and they often used to quarrel on various counts.

(b) On 22.7.2007 at 3.30 p.m., PW 5 Shobha heard the sound of quarrel going on between the appellant and the deceased, hence, Shobha came out of the house. At that time, she saw that the appellant picked up a stone and assaulted Baburao with the stone on the head. Thereafter, the appellant left the spot. Baburao sustained injury on his head and he fell down on the road.

(c) Somebody informed PW 7 Lalsing -the son of the deceased, who was working at M.I.D.C. Lalsing came home. His mother was present in the house. Lalsing''s mother told him that quarrel took place between his father (Baburao) and the appellant. Lalsing then went to the spot. He found his father lying on the road in a pool of blood. His father had sustained injury on the head and ear. Blood was oozing from the said injuries. Lalsing then lodged F.I.R. 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 Section 302 of IPC. The appellant-accused 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.

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 Baburao with a stone on the head which led to the death of Baburao.

The conviction of the appellant is based on the evidence of two eye witnesses i.e PW 5 Shobha and PW 11 Kishor. PW 5 Shobha has stated that she was residing at Degaon along with her in laws and children. The incident took place on 22.7.2007 at about 3.30 p.m. At the time of the incident, Shobha was present in her house. She heard the sound of quarrel, hence, she came out of the house. At that time, she saw the appellant picking up a stone and assaulting Baburao on the head. Thereafter, the appellant left the spot.

PW 11 Kishor has stated that at about 3.20 p.m., he was proceeding from Kumbhar Batti square. At that time, he saw that quarrel was going on between the appellant and deceased Baburao. The appellant started assaulting the deceased with stone.

It is the prosecution case that the appellant assaulted the deceased with a stone. This is supported by the medical evidence. PW 9 Dr. Mane conducted the postmortem on the dead body of Baburao. Dr. Mane found three C.L. Ws. on the parietal occipital region and one C.L.W. on the right ear pinna. On internal examination, Dr. Mane found fracture of left parieto occipital region. According to Dr. Mane, the cause of death was due to head injury with fracture of left parietal bone with haematoma. In the opinion of Dr. Mane, the injury caused to Baburao was in ordinary course of nature sufficient to cause death.

Mr. Rananware, learned Advocate for the appellant submitted that even if it is accepted that the act of the appellant of assaulting Baburao resulted in his death, the case would not fall under Section 302 of IPC but it would fall under Section 304-IIof IPC. He pointed out that the evidence on record shows that when the incident occurred, a quarrel was going on between the appellant and the deceased which has been deposed by PW 5 Shobha and PW 11 Kishor. Mr. Rananware drew our attention to the evidence of PW 5 Shobha and PW 11 Kishor. PW 5 Shobha has stated that at 3.30 p.m., when she was present in her house, she heard the sound of quarrel, hence she came out of the house. Then she saw the appellant assaulting the deceased on the head with a stone. PW 11 Kishor has stated that at about 3.20 p.m., when he was proceeding from Kumbhar Batti square, he saw quarrel was going on between the appellant and the deceased. Then the appellant assaulted the deceased with a stone. Mr. Rananware further submitted that the assault was not premeditated or preplanned but it happened on the spur of the moment in a fit of anger. He pointed out that the appellant did not come to the spot armed with weapon but when the quarrel took place, during the course of the quarrel, the appellant picked up a stone which was lying at the spot and assaulted deceased Baburao with the said stone. Mr. Rananware submitted that the fact that the appellant assaulted the deceased with the stone during a sudden quarrel would bring the case under Exception 4 to Section 300 of IPC and would thus, be covered by Section 304-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. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence on record shows that both the parties had worked themselves into a fury on account of verbal altercation going on between them. The evidence on record shows that the appellant did not come to the spot armed with a weapon but he assaulted the deceased with a stone taken from the spot. Looking to the evidence on record, we are of the considered opinion that the incident occurred during a sudden quarrel, hence, Exception 4 to Section 300 of IPC would apply. However, we are not prepared to accede to the submission of Mr. Rananware 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 the death but in fact the appellant intended to cause the death of Baburao. 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 the injuries. The injuries as seen from the evidence of PW 9 Dr. Mane are extensive in nature.

Considering the evidence on record, we are of the view that Exception 4 to Section 300 of IPC applies to the facts of the present 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-I of IPC. In our view, custodial sentence of eight years rigorous imprisonment and fine amount of Rs. 2000/- in default simple imprisonment for one month would meet the ends of justice.

The appeal is allowed to the aforesaid extent.