Bombay High Court
Kailas Sakharam Koli vs The State Of Maharashtra on 26 September, 2017
Author: A.M.Badar
Bench: A.M.Badar
(275)APEALNo.1942016 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.194 OF 2016
Kailas Sakharam Koli,
C-9536, Nashik Road, Central Prison,
Nashik. ... Appellant
V/s.
The State of Maharashtra
(At the instance of Kalwa Police Station
Crime No.I-332/2012, Dist.Thane) ... Respondent
.....
Mr.Satyavrat Joshi, Appointed Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 26th September 2017.
ORAL JUDGMENT :
1 By this appeal, the appellant/convicted accused is challenging the Judgment and Order dated 31/10/2014 passed by the learned Additional Sessions Judge, Thane in Sessions Case No.12 of 2013 thereby convicting the applicant/accused for offences punishable under Section 498-A as well as Section 307 of the Indian Penal Code (hereinafter referred to as "IPC" for the sake of brevity). For the offence punishable under Section 498-A of the Gaikwad RD 1/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) IPC, the appellant/accused is sentenced to suffer simple imprisonment for three years apart from imposing of fine of Rs.1,000/- and in default directed him to undergo further simple imprisonment for three months. For the offence punishable under Section 307 of the IPC, the appellant/accused is sentenced to suffer simple imprisonment for ten years apart from directing him to pay fine of Rs.3,000/- and in default to undergo further simple imprisonment for a period of six months. Substantive sentences are directed to run concurrently by the learned trial Judge.
2 Facts in nutshell leading to the institution of the present appeal can be summarized thus :
(a) P.W.No.1 Pratibha Kailas Kale is wife of appellant/accused Kailas Sakharam Kale. P.W.No.3 Sakharam Kale is father of the appellant/accused. P.W.No.2 Dinesh Patil is brother of P.W.No.1 Pratibha and brother-in-law of appellant/accused Kailas Kale.
(b) P.W.No.1 Pratibha was married to appellant/accused on 24/05/2006 and out of this wedlock P.W.No.1 Pratibha gave birth to a daughter named Yashashree in the year 2007. The appellant/accused was working as a painter to earn his livelihood. P.W.No.1 Pratibha was suffering from polio since her childhood and knowing well this fact, the Gaikwad RD 2/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) appellant/accused married her.
(c) According to the prosecution case, initially, for few years married life of P.W.No.1 Pratibha was well. However, thereafter the appellant/accused started subjecting her to cruelty by giving taunts to her, pointing her disability. He used to consume liquor and under influence of liquor, he used to beat her. Father of P.W.No.1 Pratibha had purchased a shop block in her name. The appellant/accused used to insist P.W.No.1 Pratibha to get that shop block transferred for the purpose of selling it.
(d) The incident of attempt on life of P.W.No.1 Pratibha, according to the prosecution case, took place in the night intervening 14/10/2012 and 15/10/2012 at her matrimonial house which she used to share with the appellant/accused and P.W.No.3 Sakharam Kale. The appellant/accused came late in night at the house. He was under influence of liquor.
He started quarreling with P.W.No.1 Pratibha. At about midnight, he strangulated P.W.No.1 Pratibha by means of her odhani. Because of this murderous assault, P.W.No.1 Pratibha became unconscious.
(e) According to the prosecution case, the appellant/accused then came out of his bedroom and informed the incident to his Gaikwad RD 3/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) father P.W.No.3 Sakharam Kale and left the house by locking it from outside. P.W.No.3 Sakharam Kale then called neighbourers to get the outer door of the house opened. P.W.No.2 Dinesh Patil - brother of P.W.No.1 Pratibha, who was residing in the vicinity also came there. They both took P.W.No.1 Pratibha initially to the Civil Hospital, Kalwa and, thereafter to Sion Hospital, Mumbai.
(f) P.W.No.1 Pratibha was examined medically by P.W.No.4 Resident Medical Officer working with Sion Hospital, Mumbai on her admission on 14/10/2012 itself. P.W.No.2 Dinesh Patil reported the incident to the police on 14/10/2012 itself, which resulted in registration of Crime No.I-332/12 for offences punishable under Sections 498-A and 307 of the IPC with Police Station, Kalwa, District Thane.
(g) Routine investigation of the crime in question followed.
Odhani which was used as a weapon of offence came to be seized. Statements of witnesses came to be recorded and ultimately, the appellant/accused came to be charge-sheeted.
(h) Charge for offences punishable under Sections 498-A and 307 of the IPC came to be framed against the appellant/accused. He pleaded not guilty and claimed trial. In order to bring home the guilt to the appellant/accused, the prosecution Gaikwad RD 4/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) examined in all five witnesses. After examining the appellant/accused under Section 313 of the Code of Criminal Procedure (hereinafter referred to as "Code" for the sake of brevity) and after hearing both parties, by the impugned Judgment and Order, the appellant/accused came to be convicted of offences alleged against him and he is sentenced accordingly.
3 I heard Shri.Joshi, the learned Advocate appointed to represent the appellant/accused. By taking me through evidence of P.W.No.1 Pratibha, P.W.No.3 Sakharam Kale and P.W.No.4 Dr.Kiran Naik, the learned Advocate vehemently argued that the appellant/accused was under influence of liquor at the time of the incident in question. Even if this evidence is accepted as it is, then also it cannot be said that the appellant/accused had attempted to commit murder of his own wife i.e. P.W.No.1 Pratibha. In submissions of the learned Advocate appearing for the appellant/accused, P.W.No.4 Dr.Kiran Naik has spoken about disability and brain function of P.W.No.1 Pratibha, which obviously was related to her disease which she has suffered in the childhood. Symptoms narrated by P.W.No.4 Dr.Kiran Naik which allegedly developed in P.W.No.1 Pratibha were there since beginning as even, according to the prosecution case, she had suffered polio since her childhood. Therefore, difficulty in walking, performing day-to-day activities and inability to talk properly are Gaikwad RD 5/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) not fall out of the alleged incident.
4 Shri.Joshi, the learned Advocate further submitted that the learned trial Court has not kept in mind the principle of proportionality in imposing the sentence. Even if it is held that offences alleged against the appellant/accused are true, in submissions of the learned Advocate for the appellant/accused, sentence of ten years simple imprisonment is too harsh, which is totally disproportionate to the offences allegedly committed by the appellant/accused. He relied on the Judgment of the Honourable Apex Court in the matter of Balkar Singh v. State of Uttarakhand reported in (2009) 15 SCC 366 and submitted that the incident in that matter was more brutal than the case in hand. The learned Advocate further argued that in the matter of Balkar Singh (supra), there was death due to indiscriminate firing by the appellant/accused. Firearm was used in that case. However, it was held that the offence is not following under proviso of Section 302 of the IPC and by convicting the appellant/accused therein for the offence punishable under Section 304 Part I of the IPC, sentence of eight years was imposed on him. With this, Shri.Joshi , the learned Advocate for the appellant/accused submitted that harsh sentence imposed by the learned Additional Sessions Judge needs to be modified. By referring to the letter of the appellant/accused, the learned Advocate further submitted that in fact, simple imprisonment is harsher than the rigorous imprisonment in the sense that the appellant/accused is deprived Gaikwad RD 6/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) of his right to earn remissions.
5 The learned Additional Public Prosecutor supported the impugned Judgment and Order of conviction by contending that intention of the appellant/accused is writ large from the fact that he used odhani for strangulating his wife P.W.No.1 Pratibha. Force applied for constricting neck of P.W.No.1 Pratibha has come on record through evidence of P.W.No.4 Dr.Kiran Naik and as such, it cannot be said that offence is not falling under one punishable under Section 307 of the IPC. The learned APP submitted that sentence of ten years imprisonment is proper.
6 I have carefully considered the rival submissions and also perused Record and Proceedings including depositions of witnesses and other documentary evidence. The question which falls under consideration in the case in hand, is whether strangulation of P.W.No.1 Pratibha by the appellant/accused was for committing her murder and whether during her married life she was subjected to cruelty as explained by proviso to Section 498-A of the IPC by the appellant/accused. For answering these points, let us examine whether the prosecution has proved the incident which took place in the night intervening 14/10/2012 and 15/10/2012 at the matrimonial house of the appellant/accused and P.W.No.1 Pratibha Koli. On this aspect, evidence of P.W.No.1 Pratibha, P.W.No.3 Sakharam Kale, who is Gaikwad RD 7/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) father of the appellant/accused and that of P.W.No.2 Dinesh Patil
- brother of P.W.No.1 Pratibha is of utmost importance. In fact, case of the prosecution hinges on testimonies of these three witnesses. Out of these three witnesses, P.W.No.1 Pratibha is an injured witness having suffered constriction of her neck during the course of incident. It is well settled that in a case of single victim and single accused, theory of false implication does not deserve a moments consideration. The appellant/accused has not set up any such theory. However, according to him, being fed up with her life, P.W.No.1 Pratibha has indulged in self-effacement by attempting to commit suicide by strangulating herself by means of her own odhani. But, as she herself survived, she has falsely implicated her husband i.e. appellant/accused. Let us, therefore, at the outset, consider what P.W.No.1 Pratibha says about the incident in question.
7 It is not in dispute that P.W.No.1 Pratibha was sharing her house with her husband i.e. appellant/accused as well as her father-in-law P.W.No.3 Sakharam Kale. P.W.No.1 Pratibha has deposed that on the day of the incident, she along with her husband i.e. appellant/accused had a quarrel as the appellant/accused returned home at about 10.30 p.m. after consuming liquor. He insisted her to get the shop block transferred. Then, as per version of P.W.No.1 Pratibha, the appellant/accused caught hold of her, took her odhani, put it Gaikwad RD 8/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) around her neck and pulled it forcefully thereby constricting her neck. P.W.No.1 Pratibha further stated that because of this assault, she became unconscious only to regain her consciousness on 20/12/2012 at the Sion Hospital, Mumbai. As per her version, this incident took place in her bedroom and at that time, her father-in-law i.e. P.W.No.3 Sakharam Kale was in the hall. Despite searching cross-examination of P.W.No.1 Pratibha, nothing could be brought on record to falsify her version about the incident of murderous assault on her. Absurd suggestion given to her that she attempted to kill herself came to be denied by her.
8 In the wake of version of P.W.No.1 Pratibha about the incident of murderous assault on her, let us see what her father-in- law P.W.No.3 Sakharam Kale says about it, as he was very much present outside the bedroom of P.W.No.1 Pratibha. It has come in the evidence of P.W.No.3 Sakharam Kale that on the day of incident, his son Kailas i.e. appellant/accused returned home and had a quarrel with P.W.No.1 Pratibha. As per version of P.W.No.3 Sakharam Kale, at about 12.30 a.m. in that night, the appellant/accused came and told him that he had finished P.W.No.1 Pratibha. He told P.W.No.1 Pratibha to do whatever he desires and left the house by locking the same from outside. P.W.No.3 Sakharam Kale deposed that he then went to the bedroom of the appellant/accused to find P.W.No.1 Pratibha lying unconscious on the floor with a odhani wrapped around her neck.
Gaikwad RD 9/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 :::(275)APEALNo.1942016 (J) As per version of P.W.No.3 Sakharam Kale, blood was oozing from nose and mouth of P.W.No.1 Pratibha. This witness then called neighbourers, got the door of the house opened from them. P.W.No.3 Sakharam Kale deposed that then P.W.No.2 Dinesh Patil also came there and they both took P.W.No.1 Pratibha initially to Civil Hospital, Kalwa and then to Sion Hospital, Mumbai.
9 Next comes the evidence of P.W.No.2 Dinesh Patil. This witness, who is brother of P.W.No.1 Pratibha and residing in the neighbourhood of her matrimonial house, deposed that he was informed about the incident and, therefore, he immediately, rushed at the house of P.W.No.1 Pratibha to find her lying unconscious in her bedroom with a pink odhani wrapped around her neck. P.W.No.2 Dinesh Patil has also stated that he found P.W.No.1 Pratibha bleeding from her nose. This witness felt that she is dead. He also vouched that along with P.W.No.3 Sakharam Kale he took his sister P.W.No.1 Pratibha initially to Hospital of Kalwa and then to Sion Hospital. Cross-examination of this witness has not affected truthfulness of his version about the incident witnessed by him. P.W.No.2 Dinesh Patil had lodged FIR Exhibit 14 on 15/10/2012 itself that is soon after the incident. The FIR lodged with promptitude by this witness is corroborating his aversion about the incident.
Gaikwad RD 10/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 :::(275)APEALNo.1942016 (J) 10 Evidence of P.W.No.3 Sakharam Kale and P.W.No.2 Dinesh Patil is fully corroborating the version of P.W.No.1 Pratibha regarding the murderous assault on her at the hands of appellant/accused. Ultimately, she was in her bedroom when the incident in question took place and as such, there cannot be any eye witness to the incident. However, post-event happenings have come on record through the evidence of P.W.No.3 Sakharam Kale and P.W.No.2 Dinesh Patil. Evidence of these two witnesses about post-event situation found on the scene of occurrence fully corroborates version of P.W.No.1 Pratibha. The injuries suffered by P.W.No.1 Pratibha in the incident have come on record through evidence of P.W.No.4 Dr.Kiran Naik. His evidence will be discussed at the appropriate place. However, at this juncture, it is relevant to note that P.W.No.1 Pratibha had suffered bilateral sub- conjuctival hemorrhage, swelling of left frontal area apart from presence of ligature mark on her neck. It is hard to cause such type of injuries by a person to herself. Had P.W.No.1 Pratibha suffered some minor injuries, then the theory of self-inflicted injury could have been propounded by the defence. However, in the instant case, theory of self-inflicted injuries does not deserve any consideration as in that process a person may get more than what is bargained for. Therefore, I do not find any substance in defence of the appellant/accused that it was P.W.No.1 Pratibha, who had caused injuries to herself and falsely implicated appellant/accused in the crime in question.
Gaikwad RD 11/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 :::(275)APEALNo.1942016 (J) 11 Post-event conduct of the appellant/accused which is relevant under Section 8 of the Indian Evidence Act and which is spoken by P.W.No.3 Sakharam Kale incriminating the appellant/accused reflects intention of the appellant/accused. After the incident in question, P.W.No.1 Pratibha, as stated earlier, came to be examined by P.W.No.4 Dr.Kiran Naik. He found her to have suffered bilateral sub-conjuctival hemorrhage, swelling of left frontal area 3 x 3 cm. apart from presence of ligature mark around her neck. Contemporaneous Medical Certificate at Exhibit 20 corroborates evidence of P.W.No.4 Dr.Kiran Naik on this aspect. Extra judicial confession by the appellant/accused to his own father-PW-3 Sakharam unerringly points out guilt of the appellant/accused in the crime in question.
12 Evidence of P.W.No.1 Pratibha shows that she became unconscious during the incident of attempt on her life and regained consciousness on 20/10/2012. P.W.No.4 Dr.Kiran Naik vouched about truthfulness of version of P.W.No.1 Pratibha on this aspect by stating that she was brought to the hospital in unconscious critical condition and she started regaining consciousness from 20/10/2012. Effect of assault on P.W.No.1 Pratibha has come on record from evidence of this Medical Officer. He has deposed that constriction of neck caused scanty supply of Gaikwad RD 12/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) blood to the brain causing damage to the brain. Evidence of this witness shows that in such eventuality, the patient can suffer hypoxic brain injury which results in irrelevant talk, difficulty in walk, difficulty in performing day-to-day activities and those symptoms were found to be present in P.W.No.1 Pratibha. Her speech was also found to be affected. P.W.No.4 Dr.Kiran Naik categorically deposed that P.W.No.1 Pratibha has suffered permanent brain damage because of injury No.3 caused to her in the incident.
13 Though the evidence of this witness is criticized during the course of argument by the learned Advocate appearing for the appellant/accused by stating that all these symptoms were in fact, in existence because of suffering of polio by P.W.No.1 Pratibha. For want of cross-examination on this aspect to concerned witness, it is not possible to accept the point so raised during the course of argument. Neither P.W.No.1 Pratibha, nor her relatives were cross-examined in order to demonstrate that even prior to the incident P.W.No.1 Pratibha was suffering from difficulties in performing daily activities or she was talking irrelevantly. Rather, it has come in her evidence that prior to her marriage, she used to do business of selling fish. No doubt, the polio impaired her leg, but that does not mean that other symptoms, which were found by P.W.No.4 Dr.Kiran Naik, were in existence since prior to the incident. Suffice to mention that result of assault on P.W.No.1 Gaikwad RD 13/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) Pratibha deposed by P.W.No.4 Dr.Kiran Naik is one of the circumstance to infer intention of the appellant/accused.
14 With this evidence, I conclude that the prosecution has proved the fact that in the night intervening 14/10/2012 and 15/10/2012, the appellant/accused had constricted neck of P.W.No.1 Pratibha by means of odhani. Whether this was an attempt to murder P.W.No.1 Pratibha or whether this act of the appellant/accused constitute some other offence will have to be examined from proved circumstances. Culpable homicide is a genus and murder is its species. The Indian Penal Code practically recognizes three degrees of culpable homicide. Culpable homicide of the first degree is the gravest form which is defined as 'murder' and is made punishable under Section 302 of the IPC. The second may be termed as 'culpable homicide of second degree', which is made punishable under first part of Section 304 of the IPC. The last degree of culpable homicide is 'culpable homicide of third degree' which is made punishable under second part of Section 304 of the IPC. For making out the offence of murder punishable under Section 302 of the IPC, the prosecution is firstly required to establish that a bodily injury is present on the victim. Secondly, the prosecution is required to establish nature and size of the injury on the victim. Then the prosecution is enjoined to prove that there was intention to inflict the particular injury, by adducing clear and cogent evidence for clarifying that such an Gaikwad RD 14/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) injury was not accidental or unintentional. Possibility of injury of other kind intended by the appellant/accused is required to be ruled out. Lastly, the prosecution has to establish that the injury so caused was sufficient to cause death in the ordinary course of nature. If all these factors are established, then only the offence defined under Section 300 of the IPC and punishable under Section 302 of IPC is made out. The offence punishable under Section 307 of the IPC is made out when the accused have intended to commit murder and in pursuance of that intention does any overt act towards commission of murder. In order to establish the offence punishable under Section 307 of the IPC, the prosecution is required to establish the intention or knowledge of committing murder and doing of an act towards it. Thus, Section 307 of the IPC contemplates intention or knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Viewed from this angle, it is clear from the facts of the instant case that the appellant/accused has used odhani of P.W.No.1 Pratibha and constricted her neck by means of that odhani making her bleeding from nose and mouth. She became unconscious because of force applied to her neck by the appellant/accused by using odhani. Then he left the house after warning his father and locked the house from outside preventing medical aid to his wife P.W.No.1 Pratibha. Result of this incident is already discussed in foregoing paragraphs while appreciating the evidence of Medical Officer. P.W.No.1 Pratibha has suffered Gaikwad RD 15/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) permanent brain damage in the incident and she was unconscious from 14/10/2012 to 20/12/2012. The extensive damage which resulted because of the act of the appellant/accused depict his intention and if really P.W.No.1 Pratibha has succumbed to the injury inflicted by the appellant/accused, then the offence would have been certainly the offence punishable under Section 302 of the IPC. In the result, conviction under Section 307 of the IPC is perfectly legal and justified requiring no interference at the hands of this Court.
15 Now, let us examine whether the prosecution has proved ingredients of offence punishable under Section 498-A of the IPC. Explanation to Section 498-A of the IPC defines the term 'cruelty' to a married woman. It requires willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health. Similarly, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security also amount to cruelty. Acts of certain intensity and persistence are required for establishing this offence. In the case in hand, evidence of P.W.No.1 Pratibha shows that as she has suffered from polio from her childhood, appellant/accused was giving taunts to her pointing out her disability. He was abusing her because of her incapacity in doing any work for earning livelihood. P.W.No.1 Pratibha has Gaikwad RD 16/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) spoken that the appellant/accused has always used to return late night by consuming liquor and he used to assault her by holding her hair and hands tightly. Her evidence reflects that she was being ill-treated for the purpose of getting the shop block transferred in her name for the purpose of selling it out. To crown this all, from her cross-examination, it is brought on record that as the appellant/accused used to drink liquor and used to ill-treat her continuously, she was fed up with life. This reflects intensity and persistence of ill-treatments to a married woman at the hands of her husband. Material brought on record from cross-examination of the victim, as such, points out that the victim was thinking that the life was not worth living and she should end her life because of ill-treatment made to her by her own husband. This evidence is rightly held to be sufficient by the learned trial Court for convicting appellant/accused of the offence punishable under Section 498-A of the IPC and, therefore, finding on this aspect also does not require any interference.
16 Now coming the point as to whether appellant/accused is adequately punished for proved offences. As stated in opening paragraphs, the appellant/accused is sentenced to suffer simple imprisonment for both offences against him. Section 307 of the IPC provides for punishment which may extend to imprisonment for life, if hurt is caused in an attempt to commit murder. Section 498-A of the IPC provides for punishment for a term which may Gaikwad RD 17/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) extend to three years apart from time. In the matter of Gurmukh Singh v. State of Haryana reported in (2009) 15 SCC 635, the Honourable Apex Court has considered and enumerated illustrative factors which needs to be considered for imposing punishment. Criminal background and adverse history of the accused, number of criminal cases pending against him, motive, previous enmity, the mode and manner in which the incident took place, the gravity, dimension and nature of injury etc., are relevant factors which requires consideration for determining quantum of punishment. In the case in hand, the incident of murderous assault on P.W.No.1 Pratibha was preceded by quarrel between husband and wife. At that time, even according to the prosecution case and as deposed by P.W.No.1 Pratibha and her father-in-law P.W.No.3 Sakharam Kale, the appellant/accused had consumed liquor. He had not approached his wife i.e. P.W.No.1 Pratibha armed with any weapon. Instantaneously, he used her odhani for committing the crime in question. Evidence on record does not show that the appellant/accused has any criminal background or adverse history. It seems that punishment of simple imprisonment for a period of ten years is disproportionate to the offence proved to have been committed by the appellant/accused. Shri.Joshi, the learned Advocate rightly relied on the Judgment in the matter of Balkar Singh (supra). In that matter, the accused has requested the deceased to have some wine with him. The deceased turned down this request. This infuriated the accused, who indulged Gaikwad RD 18/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) indiscriminate fire by the firearm causing death of the victim. The Honourable Apex Court on this fact situation concluded that the offence is one punishable under Section 304 Part I of the IPC. In the case where indiscriminate firing of the appellant/accused caused death of a victim, custodial sentence of eight years was found by the Honourable Apex Court to meet the ends of justice. Case in hand is of lighter criminality shown by the appellant/accused on the spur of the moment during the course of quarrel with his wife, who ultimately survived the assault. Hence, I am of the opinion that rigorous imprisonment for a period of eight years is suffice to meet the ends of justice for the offence punishable under Section 307 of the IPC. However, the sentence imposed for the offence punishable under Section 498-A of the IPC needs no interference. Therefore, the Order :
(i) The appeal is partly allowed.
(ii) The impugned Judgment convicting the appellant /accused is confirmed.
(iii) However, so far as the impugned Order of conviction is concerned, the same is modified, so far as the offence punishable under Section 307 of the IPC is concerned and instead of simple imprisonment for a period of ten years for the offence punishable under Section 307 of the Gaikwad RD 19/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 ::: (275)APEALNo.1942016 (J) IPC, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of eight years.
(iv) The fine and sentence imposed in default thereof for offences is maintained.
(v) Needless to mention that rest of the Order of the trial Court is confirmed.
(vi) Copy of this Order be sent to the appellant/accused, who is undergoing jail sentence in the prison.
(A.M.BADAR J.) Gaikwad RD 20/20 ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 00:34:27 :::