Judgment:
Oral Judgment: (Smt. V.K. Tahilramani, J.)
This appeal is directed by the appellant-original accused against the judgment and order dated 30.7.2008 passed by the learned Ad-hoc Additional Sessions Judge-1, Nashik in Sessions Case No.146 of 2007. By the said judgment and order, the learned Judge convicted the appellant under Section 302 of IPC and sentenced him to life imprisonment.
2. The prosecution case briefly stated, is as under:
PW-5 Lila was the wife of the deceased Mohan. She was residing along with her husband Mohan, her children, her father in law and the appellant at Kalmuste. The appellant was the younger brother of her husband. There were house and property disputes between the appellant and Mohan. The incident occurred on 30.4.2006. At about 11 a.m. Mohan, the appellant and their father came home. PW-5 Lila served them lunch in the front room. Then she went to the kitchen. She heard her husband telling his younger brother i.e. the appellant that he will not give any share to the appellant from the house and the land. Thereupon, the appellant got angry. The appellant went to the next room and brought a sickle and he assaulted Mohan with the sickle on backside of the ear. Mohan was taken to the hospital, however, he died on the way. F.I.R. Came to be lodged. Thereafter, investigation commenced. The dead body of Mohan was sent for post-mortem. During the post-mortem, incised wound was found traverse on the scalp involving left ear and below ear. 10 cms. x 2.5 cms. It was found that brain was incised, the incised wound was found going through the skull base. After completion of investigation, charge sheet came to be filed.
3. Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in the present case, the learned Judge convicted and sentenced the appellant as stated in para 1 above, hence, this appeal.
4. We have heard the learned counsel 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 counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, we are of the opinion that the appellant assaulted his brother Mohan with sickle behind the ear and caused his death.
5. The conviction is based on the evidence of PW-5 Lila who is an eye witness to the incident. PW-5 Lila was the wife of deceased Mohan and the sister in law of the appellant. The appellant was the younger brother of Mohan. There were house and property disputes between the appellant and his brother Mohan. The incident occurred on 30.4.2006. At about 11 a.m. Mohan, the appellant and their father came home. PW-5 Lila served them lunch in the front room. Then she went to the kitchen. She heard her husband telling his younger brother i.e. the appellant that he will not give any share to the appellant from the house and the land. Thereupon, the appellant got angry. The appellant went to the next room, brought a sickle and he assaulted Mohan with the sickle on backside of the ear. Mohan was taken to the hospital, however, he died on the way. Nothing has been elicited in the cross-examination of PW-5 Lila so as to disbelieve her testimony. We are of the opinion that her testimony inspires implicit confidence, hence, we have no hesitation in relying on the same.
6. Mr. Apte submitted that even assuming that the prosecution case is true, the case of the appellant would not fall under Section 302 of IPC but it would fall under Section 304 Part-II of IPC. To support his contention, he has drawn our attention to the evidence of PW-5 Lila. The evidence of this witness clearly shows that the appellant gave just one blow with sickle below the ear of Mohan. Moreover, Mr. Apte submitted that the incident occurred on account of grave and sudden provocation on the spur of moment. Again he has placed reliance on the evidence of PW-5 Lila to support this contention. He pointed out that Lila has stated that when they were having food, her husband Mohan told the appellant that he will not give any share from the house and land to the appellant. Thereupon, the appellant got angry and he brought one sickle from the next room and assaulted Mohan with it. The appellant on hearing that he would not be given any share in the house and property, got provoked and immediately got sickle from the next room and assaulted Mohan with it. Mr. Apte has pointed out that the incident occurred on the spur of moment without any premeditation and on account of grave and sudden provocation. Mr. Apte further pointed out that only one blow of sickle was given by the appellant to Mohan and thereafter the appellant stopped assaulting Mohan.
7. From the evidence on record, it does appear that the appellant was provoked by the words of his brother Mohan who told him while having lunch that he would not give any share in the house and property to the appellant. As stated earlier, the incident occurred on the spur of moment without any premeditation. However, we are not prepared to accede to the submission of Mr. Apte 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 Mr. Apte but in fact, the appellant intended to cause death of Mohan. We say so on the basis of the weapon used, part of the body where the injury was inflicted, the force used while assaulting and the nature of the injury. The injuries as seen from the evidence of PW-6 Dr. Sumedh 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.
8. Considering the evidence on record, we are of the view that the Exception 1 to Section 300 applies to the facts of the present case and the appropriate conviction would be under Section 304 Part-I of IPC. Hence, the conviction under Section 302 of IPC is set aside. Instead, the appellant is convicted under Section 304 Part-I of IPC. In our view, the custodial sentence of eight years and fine of Rs.1000/- in default S.I. for two months, would meet the ends of justice.
9. The appeal is allowed to the aforesaid extent.
10. Writ of order is expedited.
11. Office to communicate this order to the appellant and the Jail Superintendent in which Jail, the appellant is lodged.
12. At this stage, we must record our appreciation for Mr. Abhaykumar Apte appointed from the High Court Legal Services Committee Bombay to represent the appellant. We found that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs.2400/-.