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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 730 OF 2019
Santosh Balaram Kharkar
Age :- Adult, Occu : Tailor
R/o. PutubaichaPada, Taluka :Alibag, Dist:- Raigad. … Appellant
Revdanda Police Station, Alibag, Dist.Raigad. … Respondent
Mr. Shreekant V. Gavand, A.P.P. for Respondent-State.
JUDGMENT
1) Appellant has impugned Judgment and Order dated 11th January, 2019, passed by the learned Ad-hoc Additional Sessions Judge-1, Raigad- Alibag, in Sessions Case No.98 of 2016, convicting him under Sections 302 and 506 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine, to further suffer rigorous imprisonment for 6 months.
2) Heard Mr.Bapat, learned Advocate appointed by the Legal Aid Committee, High Court, Mumbai to represent the Appellant and Mr.Gavand, learned APP for the State. Perused entire record.
3) The name of deceased is Nandkumar Raut. The date and time of incident is 21st July, 2016 at about 5.15 p.m.
3.1) It is the prosecution case that, on 21st July, 2016, at about 1.30 p.m. Smt.Nandini N. Raut (PW No.1), the wife deceased was informed by Mr.Shrikant N. Raut (PW No.5), that, a quarrel between the deceased and another person was going on near Chunegaji Bridge. Therefore PW No.1 along with her brother Mr.Avinash P. Thakur (PW No.2) went to the said spot. She saw her husband was lying on the road, the Appellant was sitting on his body and beating him. Appellant beat Nandu Raut on his cheek. Appellant was also abusing and gave threat to Nandu Raut that, he would beat and see him. Upon an inquiry by PW No.1, Nandkumar informed her that, when he was returning home on his bicycle, at that time, the Appellant met him and said that, ‘what your sound is’ and due to that, altercation between them took place. PW No.1 took her husband to their house and made him to sleep on the bed. At about 4.00 p.m. under the pretext of going to the field, PW No.1 went to the house of her neighbour. After some time, one Mr.Manoj Malekar came to her house and informed PW No.1 that, a quarrel had taken place between her husband and Appellant near the shop of Mr. Amrut Raut (PW No.3). PW No.1 therefore rushed to the shop of PW No.3. She saw that, her husband was lying in a pool of blood near vharanda(Otla) of the house of PW No.3. She also saw the pieces of kadappa tiles and bricks of the Tulshi Vrindavan had fallen near the said spot. Mr.Kedar Raut (PW No.4) and Mr.Amrut Raut (PW No.3) informed PW No.1 that, the Appellant beat her husband on his head with the upper portion of the said Vrindavan. The Police were informed. The deceased was thereafter taken to hospital.
3.2) The deceased was declared dead prior to administration of medical treatment. Dr.Vijaykumar Jadhav (PW No.10), the Medical Officer, then attached to Civil Hospital, Alibag conducted autopsy on the dead body of Nandkumar Raut on 22nd July, 2016, between 7.00 a.m. to 8.00 a.m. He gave his opinion as to the cause of probable death as “poly trauma, death due to perforating injury to heart & lungs & head injury, brain injury”. He accordingly prepared postmortem report (Exhibit-40) and also issued Advance Death Certificate (Exhibit-41). After completion of investigation, the Police submitted charge-sheet in the Court of Chief Judicial Magistrate, Raigad-Alibag.
3.3) As the offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Raigad-Alibag committed the case to the Court of Sessions as contemplated under Section 209 of the Criminal Procedure Code, 1973.
3.4) The learned Judge of the trial Court framed charge below Exhibit-5. The contents of the charge were read over and explained to the Appellant in Marathi vernacular, to which he pleaded not guilty and claimed to be tried. The defence of the Appellant was of total denial and false implication.
3.5) The prosecution in support of its case, examined in all 11 witnesses, namely Smt.Nandini N. Raut (PW No.1), wife of deceased; Shri.Avinash P. Thakur (PW No.2), brother of PW No.1; Mr.Amrut M. Raut (PW No.3), the eyewitness to the incident; Mr. Kedar S. Raut (PW No.4), a relative of the deceased; Mr.Shrikant N. Raut (PW No.5), a witness to the quarrel between the deceased and Appellant which occurred in the noon of the same day; Mr.Krishna K. Nagaonkar (PW No.6), panch witness to the Spot Panchnama (Exhibit-28); Mr.Prashant R. Raul (PW No.7), panch witness to the Inquest Panchnama (Exhibit-30); Mr. Bhaskar D. Raut (PW No.8), panch witness to the panchnama of collection of soil sample from the spot near Chunegaji Bridge (Exhibit-33) i.e. the spot where the earlier incident in the noon on the said day took place; Mr. Swapnil P. Tambadkar (PW No.9), panch witness to the panchnama of seizure of pieces of kadappa (Exhibit-35), Panchnama of recovery of pickaxe (Exhibit-38); the clothes of Appellant (Article Nos. 12 and 13); Dr.Vijaykumar N. Jadhav, Medical Officer (PW No.10) who conducted autopsy on dead body of Nandkumar and prepared postmortem notes (Exhibit-40) and also issued Advance Death Certificate (Exhibit-41); and Mr.Abasaheb A. Patil (PW No.11), the Investigating Officer of the crime, who was then attached to Revdanda Police Station, Alibag, District Raigad.
3.6) The trial Court after recording evidence of the said witnesses and hearing the learned Advocates for the respective parties has convicted and sentenced the Appellant by its impugned Judgment and Order dated 11th January, 2019.
4) Though the prosecution has examined 11 witnesses in support of its case, according to us, the evidence of PW No.1, PW No.3, PW No.5 and PW No.10 is relevant and material for deciding present Appeal. As noted above, PW Nos.6, 7, 8 and 9 are the panch witnesses for the said Exhibits and their evidence has no direct bearing for decision of the present Appeal. As far as the actual incident which led to the death of Nandkumar at about
5.00 p.m. near the house of PW No.3 is concerned, for PW No.1 it is hear-say in nature.
4.1) The facts narrated in the forgoing paragraph Nos.3.[1] and 3.[2] above are deciphered from the evidence of PW Nos.1, 2, 3 and 5 and are admitted facts on record. It is thus clear that, on 21st July, 2016, two incidents took place involving the Appellant and deceased.
5) In the first incident and as per the evidence of PW No.1, after receipt of information from PW No.5, PW No.1 went near Chunegaji Bridge and saw that, the deceased was lying on road, the Appellant was sitting on his body and was assaulting him on his cheek. As per the information given by the deceased to his wife (PW No.1), the said quarrel took place as the Appellant had asked the deceased ‘what your sound is’. After PW No.1 and PW No.2 pacified the said quarrel, PW No.1 took her husband (deceased) to her house and made him to sleep on the bed. Then, at about 4.00 p.m., PW No.1 under the pretext of going to field, had in fact went to her neighbour for chitchatting. At about 5.00 p.m. Mr. Kedar Raut (PW No.4) came to her and informed her that, near the house of Mr.Amrut Raut (PW No.3), Appellant was assaulting the deceased and therefore PW No.1 rushed to the said spot. After reaching to the said spot, she saw that, her husband was lying in a pool of blood near the varhanda(Otla) of house of PW No.3. She also saw the pieces of tiles and bricks of Tulshi Vrundavan were fallen apart. Mr.Amrut Raut (PW No.3) informed PW No.1 that, the Appellant assaulted deceased on his head by the upper portion of Tulshi Vrundavan.
5.1) In the cross-examination of PW No.1 an omission that, the PW No.1 saw her husband was lying on the road and the Appellant was sitting on her husband and beating him, has been brought on record. PW No.1 has admitted the fact that, she has not lodged a police report about the incident of beating by Appellant to her husband which occurred at about 1.30 p.m. of the said day.
6) PW No.3 Amrut Raut who is the eyewitness to the main incident occurred in the evening and a star witness of the prosecution, in his evidence has deposed that, he conducts the business of grocery shop in Vadhav Khurd Village. He opens the shop at 7.00 a.m. and closes it at about 1.00 p.m. and again opens at 3.00 p.m. and closes at 9.00 p.m. On 21st July, 2016, he had opened his shop. At about 5.00 p.m. he saw Appellant was beating his son. Appellant’s wife was present there. He and the wife of Appellant tried to rescue his son. At that time, the deceased came there. The Appellant started to beat deceased with bricks and stone. PW No.3 and the wife of Appellant tried to rescue the said quarrel. Appellant was not in a mood to listen and continued beating the deceased with bricks and stones. Deceased therefore entered in the compound of his shop; PW No.3 closed the gate of his compound. Appellant entered in the compound by breaking its gate. Appellant beat deceased on his head with bricks, stones and upper portion of the Tulshi Vrundavan. Appellant also beat deceased with a hoe (Pickaxe). PW No.3 got frightened and came out of his compound. At that time, Mr.Kedar Raut (PW No.4) came there. PW No.3 went in village and informed the incident to villagers. The statement of PW No.3 under Section 164 of Cr.P.C. was also recorded by the Chief Judicial Magistrate, Raigad-Alibag. It is at Exhibit-23. The hoe (Pickaxe) was lying in his compound. The hoe (Pickaxe) is marked as Article No.7.
6.1) In his cross-examination, PW No.3 has denied the suggestion that, he was deposing falsely that the Appellant was beating deceased with bricks and stones. The said suggestion was again denied by him. He has denied the suggestion that, he did not see the said incident.
6.2) According to us there is no reason at all to disbelieve even iota of testimony of PW No.3. It appears to us that, PW No.3 is a fully reliable witness and his testimony inspires confidence in the mind of this Court.
7) Mr. Shrikant N. Raut (PW No.5) has deposed that, on 21st July, 2016, between 1.15 to 1.30 p.m. he was going to his house on motorcycle. When he reached Chunegaji Bridge, he saw that a quarrel was going on between the deceased and Appellant. He informed about the said quarrel to the wife of deceased. In his cross-examination nothing beneficial to the Appellant has been brought on record.
7.1) It be noted here that, this witness i.e. PW No.5 has not stated about the fact which has been narrated by PW No.1 that, in the said quarrel, the Appellant was sitting on the body of the deceased and was assaulting him on his cheek. Thus, there is no corroboration to the version of PW No.1 on that count.
8) Dr.Vijaykumar Jadhav (PW No.10) has conducted autopsy on the dead body of Nandkumar. While performing autopsy, he noticed the following external injuries:
1) CLW 6 x 5 cm over frontal bone with corresponding frontal bone fracture.
2) Penetrating injury over left chest, with corresponding left sided rib fracture.
3) CLW over dorsum of left hand, He also noticed the following internal injuries:
1) Fracture of frontal bone corresponding with 1st external injury, associated with sub-arachnoid hemorrhage over frontal lobe,
2) 2nd external injury corresponding with fracture of 3rd and 4th rib with perforation of pleura over corresponding rib. Perforation of lungs, pericardium and heart.
8.1) PW No.10 has opined that, all the injuries were antemortem. He gave his opinion as, death was due to brain trauma with perforated injuries to the heart and lungs. The injury to brain as well as heart were immediate cause of death.
8.2) Perusal of postmortem notes reveals that, in Column No.21 against the clause ‘stomach and its contents’, PW No.10 has put a note ‘BILE with Alcoholic Smell’. It thus appears that, the deceased had consumed alcohol on the date and time of incident.
8.3) Perusal of record and evidence of PW No.1 and 5 indicates that, either PW No.1 has narrated exaggerated version of the incident which took place at about 1.30 p.m. near Chunegaji Bridge or PW No.5 is stating the true and correct facts. According to us, with a view to implicate the Appellant and to propound the motive at the behest of Appellant, PW No.1 has exaggerated her version of quarrel which took place at about 1.30 p.m. near Chunegaji Bridge.
9) It be noted here that, neither PW No.1, PW No.2, PW No.4 and PW No.5 are the eyewitnesses to the incident which occurred at about 5.00 p.m. initially in front and subsequently in the precincts of the shop of PW No.3. As noted earlier, PW No.3 in his evidence has categorically stated that, at about 5.00 p.m. the Appellant was beating his son. PW No.3 and the wife of Appellant tried to rescue his son from the clutches of Appellant, at that time the deceased came there. It appears to us from record that, the deceased tried to pacify the said quarrel and/or also tried to save the son of the Appellant from his clutches and at that time, all of a sudden being angry, Appellant started assaulting the deceased with bricks and stones which were lying at the said place. When the deceased tried to escape from the said place and entered into the compound of PW No.3, the Appellant followed him by breaking the gate of the compound and again beat the deceased on his head with bricks and stones and the upper portion of the Tulshi Vrundavan. He also assaulted with a hoe (Pickaxe) on the chest of the deceased, which was lying in the said compound. It thus clearly appears to us that, the Appellant had no intention to commit murder of deceased and it is when the deceased tried to pacify the Appellant or tried to rescue his son from the clutches of Appellant, the Appellant got enraged and started assaulting deceased. It also appears from record that, the alleged incident, which took place in the afternoon, had no direct nexus with the incident occurred at 5.00 p.m. As noted in the postmortem notes, the traces of/smell of alcohol was noticed by PW No.10 which has been recorded in the postmortem notes. It therefore reveals that, in the afternoon in inebriated state, the Appellant and deceased had a quarrel and thereafter both went to their respective houses.
10) From the perusal of entire record, it clearly appears that, the Appellant was not having any intention to commit the offence of murder. He did not come at the scene of offence with premeditation. The articles which he used in assaulting the deceased such as bricks, stones, hoe or the upper part of the Tulshi Vrundavan, were already at the said place and in the fit of anger, the Appellant used it to assault the deceased. At this stage, it be noted here that, the spot panchnama (Exhibit-28) mentions that, the witnesses observed marks of pelting of stones/bricks on the wall of the house/shop of PW No.3. It thus denotes that, the Appellant indiscriminately threw bricks/stones/pieces of kadappa on the person of deceased while assaulting him.
11) In the aforenoted facts and evidence on record, according to us, therefore Exception 4 of Section 300 of IPC would come into fray and can be applied to the case in hand.
12) 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. To invoke Exception 4 to Section 300 of IPC, four requirements must be satisfied viz.:i. It was a sudden fight; ii. There was no premeditation; iii. The act was done in the heat of passion and iv. The assailant had not taken undue advantage or acted in a cruel or unusual manner. v) The cause of the quarrel is not relevant nor it is relevant as to who offered the provocation or started to assault first, but what is important is that the occurrence must be sudden and not premeditated and the offender had acted in a fit of anger and must not have taken any undue advantage or acted in a cruel or unusual manner. When during the course of a sudden quarrel, a person in the heat of moment, attacks the other person and causes injury, one of which proves to be fatal, the accused would be entitled to the benefit of this exception.
13) The evidence on record shows that the Appellant did not act in a cruel or unusual manner. Taking into consideration all the above mentioned facts, we are of the considered opinion that, the present case would fall within the purview of Section 304 (Part II) of IPC. and not under Section 302 of the IPC.
14) In view of the above, the conviction and sentence of Appellant under Section 302 is set aside and instead he is convicted under Section 304 (Part II) of the IPC. The Nominal Roll of Appellant produced on record by the Jail Authority produced through the learned APP shows that, as of today, the Appellant has undergone 12 years 5 months and 27 days of imprisonment including remissions.
15) In this view of the matter, it is difficult to impute the intention to kill, to the Appellant. Therefore we convert the conviction of Appellant from under Section 302 to Section 304 (Part II) of the IPC. As the Appellant is behind the bars for last more than 12 years, in our view, this is sufficient punishment for his crime and therefore we reduce the sentence after altering the sentence as aforesaid to the period incarceration already undergone by him.
16) Hence, the following Order:a) The conviction and sentence of Appellant under Section 302 of the IPC, by the impugned Judgment and Order dated 11th January, 2019, is set aside and instead the Appellant is convicted under Section 304 (Part II) of the IPC. b) As noted in paragraph No.14 above, the Appellant has already undergone the entire sentence. We therefore direct the Appellant be released immediately from Jail on production of the authenticated copy of this Judgment, if not required in any other case. c) The learned APP appearing in the Appeal is directed to communicate this Order to the concern Superintendent of Jail wherein the Appellant is undergoing his sentence.
17) Before parting with Judgment, we place on record our appreciation for the efforts put by Mr. Aditya Bapat, learned Advocate appointed by the High Court Legal Services Committee, Mumbai for espousing the cause of Appellant. He was thoroughly prepared with the Appeal and rendered proper assistance to this Court in arriving at the above conclusion. ( RANJITSINHA RAJA BHONSALE, J. ) ( A.S. GADKARI, J. )