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ATU/RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAYIN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL APPELLATE JURISDICTIONAPPELLATE JURISDICTION CRIMINAL APPEAL NO. 1032 OF 201 5 Sachin Laxman Dandekar Age: 30 years, Occ: Agriculturist, R/O. Gangangaon, Dandekar Pada, Tal: Dahanu, Dist. Palghar. (Presently in Nashik Jail) .. Appellant (Accused No.2) Versus State of Maharashtra, Through P.I. Talasari Police Station, Mumbai. .. Respondent WITH CRIMINAL APPEAL NO. 1033 OF 201 5 Laxman Dharma Dandekar, Age:55 years, Occ: Agriculturist R/o. Gangangaon, Dandekar Pada, Tal: Dahanu, Dist. Palghar. (Presently in Nashik Jail) .. Appellant (Accused No.1) Versus State of Maharashtra, Through P.I. Talasari Police Station, Mumbai. .. Respondent Mr. P.R. Arjunwadkar a/w. Ms. Prabha U. Badadare, Advocates for Appellants Mr. S. S.Hulke, APP for Respondent â State. CORAM : A.S. GADKARI & MILIND N. JADHAV, JJ. RESERVED ON : 05 th^ September,2022. PRONOUNCED : 29 th^ September, 2022.
JUDGMENT (PER: MILIND N. JADHAV, J.)
. Criminal Appeal No. 1032 of 2015 is filed by Original Accused No. 2 and Criminal Appeal No. 1033 of 2015 is filed by Original Accused No. 1. Accused No.1 is the father of Accused No. 2.
- Both Appeals question legality of Judgment and Order dated 18.08.2015 passed by learned Additional Sessions Judge, Palghar in Sessions Case No. 31 of 2011, convicting both Appellants under Section 235(2) of the Code of Criminal Procedure Code, 1973 (for short âCr.P.C.â) for offence punishable under Section 302 read with 34 of The Indian Penal Code, 1860 (for short âIPCâ) and sentencing both to suffer imprisonment for life with fine of Rs. 1000/- each, in default, to suffer rigorous imprisonment for one month.
- Shorn of unnecessary details, facts of prosecution case which emerge from the record are as follows: 3.1. Sakharam (20 years old) was having a love affair with Jyotsna, daughter of Appellant No.1 and sister of Appellant No.2. Appellantsâ family were against their relationship and alliance since they belonged to different castes. One year prior to incident, Appellant No.1 visited house of PW-1 and informed them that he will not perform marriage of his daughter Joystna with Sakharam and they should search for another bride. Some months prior to the incident, Appellant No.2 assaulted Sakharam and snatched his bicycle near
Appellants on the same night at about 09:30 p.m. 3.5. PW-10 conducted inquest panchanama (Exh. 25) of the dead body of Sakharam. He carried out recovery and seizure panchanama (Exh. 38) of blood stained clothes of both accused âArticle Nos. 2, 3, 4 and 5â which they had worn at the time of incident. Clothes worn by deceased Sakharam were seized (Exh. 50) and marked as âArticle Nos. 6, 7 and 8. PW-10 sent the seized articles to the Chemical Analyzer for forensic analysis. C.A. Reports (Exh.52 and Exh.53) vide covering letter dated 06.02.2011 (Exh.51) were produced in evidence. PW- 10 conducted Spot panchanama (Exh.29) and the soil and soil mixed with blood. On 23.01.2011 Appellant no.1 made a voluntary statement to the IO and showed the place where the blood-stained hammer (weapon) and motorcycle were concealed by him. PW-10 prepared seizure memo (Exh.35A) of weapon (hammer) and motorcycle used by Appellants. After investigation charge-sheet was filed in the Court of Judicial Magistrate First Class, (JMFC) Dahanu. Since the offence under Section 302 IPC is exclusively triable by Court of Sessions, case was committed to the Sessions Court for trial. Charge (Exh.5) was framed against Appellants and read over and explained to them in vernacular, to which both pleaded not guilty and claimed to be tried. To bring home the guilt of Appellants, prosecution examined 10 witnesses.
- PW-9 - Dr. Pralhad C. Padghane, conducted postmortem examination on the dead body of Sakharam and prepared PM report (Exh.40) which notified the following injuries: âA. External Injuries
- Deep and wide CLW looking like blunt object stab obliquely longitudinal and gapping over left parietal region just behind and above post auricular region measuring about 3 cm x 1.5 cm x 1 & half inch deep allowing probe inside with profuse bleeding. There was a depressed fracture piece of skull bone displaced anteriorly inside.
- Obliquely longitudinal CLW on left side of forehead with crack fracture on skull bone underneath with blood oozing measuring about 2 & ½ cm. x 0.5 cm. x scalp deep.
- Vertically oblique CLW with gapping measuring about 1.5 x 0.3 cm. scalp deep present over temporal aspect of left orbit with crack fracture underneath.
- After scalp dissection there were peripheral scalp hematoma around the scalp wound.
- Obliquely vertical abrasion measuring about 3 x half cm. brownish black discolouration over left zygomatic region at the level of left ear.
- Minor abrasion on left knee joint on patelar region measuring about 1 cm x .5 cm.
- CLW on left leg vertically longitudinal measuring about 1 & half x 0.5 x 2 cm. antero medial aspect and middle of lower half blood oozing.
- Minor abrasion over right forearm measuring about 2 x.5 cm. dorsally on distal 1/4th radial aspect.
- Minor bruise dark blue on left forearm dorsally on distal 1/4 radial aspect.
- Minor abrasion over right knee joint oval shaped, measuring about 2 x half cm.
- Minor abrasion measuring about 1 x 0.5 cm. on middle knuckle horizontal on right hand. At the places over the above injuries reddish brown scobs present.
- Longitudinal contusion over right leg measuring about 2.5 x 0.5 cm located over middle of lower half antero medially. B. Internal Injuries
- Scalp hematoma one inch in diameter circular shape present over right aspect, frontal region.
saw Appellants riding on motorcycle and they stopped and accosted Sakharam on the road and assaulted him. He has deposed that Appellant No.2 held Sakharam from behind and Appellant No. removed a hammer from the carrier/boot of the motorcycle and inflicted a blow on his head; further after Sakharam fell to the ground, he was assaulted by kicks by Appellants; that people gathered at the spot and therefore Appellants ran away on their motorcycle from the spot. Prosecution has heavily relied upon the ocular evidence of PW-2.
- Mr. P.R. Arjunwadkar, learned Advocate appearing for Appellants vehemently submitted that, prosecution has failed to prove its case beyond reasonable doubt and there are material discrepancies and lacunae in the Judgment passed by the learned Trial Court. He submitted that there is no material brought on record to prove the alleged love affair between deceased and daughter of Appellant No. 1 (Joystna) and hence motive is not proved by prosecution; that there is no incriminating evidence proved against both Appellants to connect them to the crime in question. He submitted that Appellants had no enmity with Sakharam and are falsely implicated by prosecution. Hence he has prayed for setting aside of the impugned Judgment and Order.
- PER CONTRA, Mr. S.S. Hulke, learned APP, appearing on behalf of State has drawn our attention to the deposition of PW- 2, eye
witness, to incident and submitted that he witnessed the assault by Appellants; that ocular evidence of PW-2 stands corroborated by medical evidence given by PW-9 pertaining to injuries sustained by Sakharam. He submitted that PW-1 in his evidence has deposed that Sakharam was having a love affair with daughter of Appellant No. (Jyostna) which was not disliked by Appellants and their family members; that Appellant No.2, had some months prior to incident assaulted Sakharam and threatened to kill him if he continued his alliance with Jyostna and thus the motive was proven. He has therefore prayed for dismissal of Appeal.
- We have heard both the learned advocates appearing for respective parties and with their able assistance perused the entire evidence and record of the case. It is seen that prosecution case is substantially based on ocular evidence, theory of âmotiveâ and recovery of weapon. In the present case there is a sole eyewitness to the incident.
- It is pertinent to note that PW-2 is the eye witness who has witnessed the entire incident from a distance of 30 feet, hence he can be classified as a wholly reliable witness based on his testimony which is not shattered in cross-examination; that he is also not an interested witness; his testimony is corroborated by Medical evidence given by PW-9 and the inquest and recovery panchanama conducted by PW-10.
infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.âWhere death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented. Explanation 3.âThe causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
- Murder.â Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, orâ 2ndly.âIf it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, orâ 3rdly.âIf it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, orâ 4thly.âIf the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.âWhen culpable homicide is not murder.â Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: âFirst.âThat the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.âThat the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.âThat the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.âWhether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.âCulpable homicide is not murder if the of- fender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without pre- meditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.âCulpable homicide is not murder if the of- fender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and nec- essary for the due discharge of his duty as such public ser- vant and without ill-will towards the person whose death is caused. Exception 4.âCulpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the of- fender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.âIt is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.âCulpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
- Sections 302 and 304 IPC prescribe the punishment for the offence of murder and that of culpable homicide not amounting to murder respectively and read thus: â302. Punishment for murder.âWhoever commits murder shall be punished with death or 1[imprisonment for life], and shall also be liable to fine.â â304. Punishment for culpable homicide not amounting to murder.âWhoever commits culpable homicide not amounting to murder, shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is
was not accepted by Appellantsâ family. From the deposition of PW-1, it is seen that Appellant No.1 had visited Sakharamâs house and informed his family that he will not give Joystnaâs hand to Sakharam and they should find some other bride for him. It is also important to note that few months prior tot he incident, Appellant No.2 had also confronted Sakharam at Umargaon and threatened to kill him if he continued his lover affair with Jyostna.
- From the above mentioned two incidents, it can be evidently seen that Appellants were against their relationship and did everything possible to break the same. This clearly shows that Appellants were enraged with Sakharam as the affair was continuing. In this backdrop, on 22.01.2011 Appellant Nos. 1 and 2 while traveling on their motorcycle saw Sakharam on Karajgaon road ahead of them and accosted him to question him as to why he was still continuing his love affair with Jyostna and abused him profusely. A physical scuffle broke out and it is clearly seen from the evidence of PW-2 that Sakharam was overpowered by both Appellants. Appellant No. 2 held Sakharamâs hands and body from behind and Appellant No. 1 in the heat of passion removed the carpenterâs hammer from the carrier/boot of his motorcycle and gave a singular blow on Sakharamâs forehead and he fell to the ground. Since bystanders including PW-2 gathered at the spot, Appellants ran away on their motorcycle. It is pertinent to note that Appellant No. 1 was a carpenter by profession and it is therefore
not unusual on his part to carry a hammer and other equipment related to carpentry in the boot of his motorcycle. Therefore, in view of the provisions of Exception 4 to Section 300, in our opinion, the act of inflicting a singular blow with the hammer on Sakharamâs forehead by Appellant No. 1 can be said to have been inflicted in a heat of passion and on the spur of the moment due to the motive, but certainly cannot be a premeditated and planned act to murder him. We say so for the following reasons.
- The act of killing Sakharam happened on the road when he was accosted by Appellants. Certainly this cannot be a premeditated and planned act. Further because of the relationship between Sakharam and Jyostna Appellants were enraged with Sakharam for having continued his alliance with Jyostna and this was the very reason for confronting Sakharam. The weapon used by Appellant was the hammer which was not carried in the first instance by Appellant No. 1 before assaulting Sakharam. It has come in evidence that after the confrontation with Sakharam, Appellant No. 2 overpowered and hled him, there were abuses and kick blows given to him and thereafter Appellant No. 1 reached to his motorcycle took out the hammer (which is the carpenterâs principal tool) from the boot of his motorcycle and inflicted its singular blow on Sakharamâs forehead. After inflicting the singular blow, Appellants did not take any undue advantage or act in a cruel or unusual manner but were frightened
firm opinion that Appellants acted in a sudden spur of the moment and heat of passion. By such act they acted in a manner that, they knew is likely to cause death of Sakharam but without the intention to kill him.
- Hence the following order:- (i) The conviction of the Appellants in both Criminal Appeal under Section 302 IPC is set aside; instead Appellants are convicted under Section 304 Part-II IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 25,000/- each, and in default thereof to suffer further rigorous imprisonment for six months; (ii) Appellants were arrested on 22.01.2011. Since both have undergone the sentence awarded above, they shall be released from prison forthwith unless required in any other case/cases.
- Both Criminal Appeals are partly allowed in the aforesaid terms.
- All the concerned to act on an authenticated copy of this Judgment and Order. [ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.]
