Bombay High Court
Ravindra Chandar Pawar vs The State Of Maharashtra on 26 July, 2021
Author: C. V. Bhadang
Bench: Nitin Jamdar, C. V. Bhadang
21-apl-15-2013
.IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 15 OF 2013
Ravindra Chandar Pawar
Aged 25 years, R/o. Medha Adivasi
Wadi, Taluka Roha, Dist. Raigad ..Appellant
V/s.
The State of Maharashtra ..Respondent
----
Ms. Apeksha Vora for the Appellant.
Ms. Prajakta Shinde, APP for the Respondent / State.
----
CORAM : NITIN JAMDAR AND
C. V. BHADANG, JJ.
DATE : 26 July 2021
Judgment : (Per C. V. Bhadang, J.)
. By this Appeal, the Appellant (Accused No.1) is
challenging the judgment and order dated 2 May 2012 passed by
the learned Additional Sessions Judge at Mangaon, District
Raigad in Sessions Case No.04/2011. By the impugned
judgment, the Appellant has been convicted for the offence
punishable under Section 302 of IPC for having intentionally
caused the death of Sunil Arjun Waghmare. The Appellant has
been sentenced to undergo imprisonment for life and to pay a
fine of Rs.1,000/- and in default, to undergo Rigorous
Imprisonment (R.I.) for one year.
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2. The prosecution case may be briefly stated thus-
The incident in question is alleged to have happened
on 9 August 2010 at about 3.00 p.m. in front of the house of the
complainant Yashoda Waghmare (P.W.1). The Appellant and the
co-accused Nos.2 and 3 who are respectively the father and the
wife of the present Appellant, are alleged to have assaulted
Shankar Laxman Pawar by means of stick on his head due to
which Shankar Pawar fell unconscious. It is the prosecution case
that deceased Sunil Arjun Waghmare went to intervene in the
incident and had taken the injured to his house. Annoyed by
this, the Appellant and the co-Accused are alleged to have pushed
the deceased Sunil Waghmare to his house which is near the spot
of the incident and the present Appellant while pushing the
deceased pressed his neck and squeezed his private part resulting
into injuries to his testicles. In so far as the Accused Nos.2 and 3
are concerned, it is alleged that they had assaulted Shankar Pawar
by means of stick and Accused No.3 is also alleged to have
pushed the deceased Sunil Waghmare till his house. Presently, we
are only concerned with the role played by the Appellant and the
challenge to his conviction and sentence.
3. On a complaint being lodged by P.W.1, an offence
came to be registered with Police Sation Roha at Crime
No.92/2010. During the course of investigation, the
Investigating Officer Mr. Vivek Deore (P.W.7) visited the spot of
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incident and drew a spot panchanama as well as inquest
panchanama of the dead body which was sent for post mortem
examination. P.W.4 Dr. Shruti Shirke conducted post mortem
examination and issued an Advanced Certificate about the cause
of death and post mortem report (Exh.24). According to P.W.4
deceased Sunil Waghmare died on account of neurogenic shock
due to testicular injury with associated injury to vital organ-brain.
There were no external injuries found on the dead body. The
Investigating Officer recorded statement of witnesses and upon
completion of investigation, a charge-sheet came to be filed
against the Appellant and the co-accused which was committed to
the Court of Sessions and was registered as Sessions Case
No.04/2011.
4. The learned Sessions Judge framed a charge against
the Appellant and the co-accused on 30 May 2011 under Section
302, 324 and 323 r/w. 34 of IPC to which the Appellant and the
co-accused pleaded not guilty and claimed to be tried. The
defence of the Appellant is one of total denial and false
implication.
5. At the trial, the prosecution examined in all seven
witnesses and produced the record of the investigation. The
Accused did not lead any evidence in defence.
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6. The learned Sessions Judge has found the Appellant
guilty for the offence punishable under Section 302 of IPC and
he has been sentenced as aforesaid. Hence, this Appeal.
7. We have heard Ms. Vora, the learned counsel for the
Appellant and Ms. Shinde, the learned APP for the State. With
the assistance of the learned counsel for the parties, we have gone
through the record.
8. It is submitted by the learned counsel for the
Appellant that there were no external injuries found on the body
of the deceased and the Medical Officer - P.W.4 has admitted that
if a person under the influence of liquor falls on the road (which
according to the learned counsel, has came on record is a cement
road) there is a possibility of an internal injury to brain. It is
submitted that the internal injury in the nature of haematoma
found on the deceased cannot be attributed to any assault by the
Appellant in view of the prosecution evidence. It is pointed out
that P.W.4 has also admitted that in case of scuffle by a kick blow,
injury is possible to the testicles. It is submitted that the seized
articles have not been shown to be sent for the report of Chemical
Analyser nor the stick which is allegedly seized as a weapon used
in the assault, was shown to P.W.1. She therefore submitted that
the learned Sessions Judge was in error in finding the Appellant
guilty.
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9. Alternatively, the learned counsel placing reliance on
the decision of the Supreme Court in State of Karnataka Vs.
Shivalingaiah1 has submitted that the offence at the highest
would fall under Section 325 / 326 or Section 304 Part II of IPC.
The learned counsel was at pains to point out that according to
prosecution the deceased had gone to intervene in the incident
between the accused and Shankar Pawar and therefore no
intention could be attributed to the Appellant to assault or injure
deceased Sunil Waghmare who had gone to intervene in the
quarrel. It is submitted that the evidence would indicate that the
deceased might have received the injuries, in the incident which
happened at the spur of the moment and without pre-meditation.
It is submitted that in any event, no intention could be attributed
to the Appellant to cause such bodily injury to Sunil Waghmare
which may in the ordinary course of nature be sufficient to cause
his death. The learned counsel pointed out that the Appellant
has undergone imprisonment for more than 10 years and in the
event the offence is modified to one under Section 326 or Section
304 of IPC, the Appellant be let out on the imprisonment already
undergone.
10. The learned APP has supported the conviction. It is
submitted that there is eye witness account of the assault and in
the absence of any circumstances to indicate that the said
evidence is not acceptable, no exception can be taken to the
1AIR 1988 SC 115
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conviction of the Appellant. The learned APP also submitted
that the nature of the injury caused to the deceased which
includes an internal injury in the nature of a haematoma and the
crushing of the testicles is sufficient to attribute intention to the
Appellant to cause death.
11. We have carefully considered the circumstances and
the submissions made and we find that the conviction of the
Appellant can be modified to one under Section 304 part II of
IPC. P.W.1 Yashoda is the widow of deceased Sunil. She states
that on the day of incident at about 3.00 p.m. Sunil was taking
lunch in the house while she was cleaning utensils outside. There
was a scuffle between Ramesh and Ravindra and they were
abusing each other. At that time, father of Appellant namely
Shankar came at the spot and was trying to intervene in the
quarrel. At that time, father of Ravindra came at the spot i.e.
Accused No.2 who gave a blow on the head of Shankar by stick
resulting into a bleeding injury because of which Shankar fell
unconscious. It can thus be seen that the principal incident of
altercation and a scuffle and an assault was between Ramesh and
Ravindra in which the Accused No.2 had assaulted Shankar by a
stick. It is at this point that the deceased came at the spot leaving
his lunch and took Shankar to his house and asked Ramesh to
send for a Doctor. According to prosecution, annoyed by this,
the Appellant and other co-accused are alleged to have pushed
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the deceased in which in so far as the present Appellant is
concerned, the allegation is that he caught hold the neck of the
deceased with one hand and with the other pulled / squeezed the
private part of the deceased, because of which, Sunil fell on the
ground and on examination, he was declared dead by P.W.5 Dr.
Nandini Telenge.
12. We do not find that the evidence on the point has
been shaken in the cross examination. P.W.2 Shankar Pawar is
the other injured witness. P.W.3 who is a spot panch had turned
hostile. P.W.4 is a Medical Officer who had conducted the post
mortem whose evidence has already been referred to and P.W.5 is
the Medical Officer who had examined the deceased and declared
him dead. P.W.6 Ramesh Pawar states that the Appellant had
come to his house for charging mobile and made certain remarks
regarding the sister in law of Ramesh Pawar (sister of his wife).
Ramesh Pawar is alleged to have stated that it is he who is
maintaining them. Thereupon, the accused assaulted Ramesh
Pawar . He states that at that time his father came to intervene.
P.W.6 Ramesh Pawar is again the witness who was assaulted
alongwith his father and lastly P.W.7 is the Investigating Officer.
13. Having gone through the prosecution evidence, we
are unable to accept that there was no incident of any such assault
as claimed on behalf of the Appellant or that he has been falsely
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implicated. The question however is what is the offence which
can be said to be proved against the Appellant. A perusal of the
prosecution case and the evidence would show that the deceased
had gone to intervene in the incident of an altercation followed
by a scuffle and an assault between the Appellant and Shankar
Pawar. Thus, primarily, the Appellant cannot be attributed with
any intention or motive or premeditation to assault the deceased.
It is on account of the fact that the deceased went to intervene
and took Shankar Pawar to his house and sent for a Doctor, that
the Appellant got annoyed in which according to prosecution, the
deceased was pushed till his house and in the meantime, the
Appellant is alleged to have squeezed the private part of the
deceased resulting into his death.
14. As per Section 299 of IPC which defines culpable
homicide, whoever causes death by doing an act, with the
intention of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the knowledge
that he is likely by such act to cause death, commits the offence of
culpable homicide. Section 300 of IPC which is relevant for the
purpose sets out exceptions and states that except cases which fall
under the various exceptions, culpable homicide is murder if the
act by which the death is caused is done with an intention of
causing death.
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15. In our considered view, this would be a case which
would be covered by Exception 4 to Section 300 which interalia
provides that culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel. In our considered view, in all probability,
the Appellant was annoyed by the intervention of the deceased
and the fact that it was the deceased who had taken Shankar
Pawar to his house and had sent for medical help. In our view,
the incident of assault on the deceased happened on the spur of
the moment and in any case, no premeditation can be attributed
to the Appellant to assault the deceased. Even going by the
prosecution case, as it stands essentially the deceased had gone to
intervene in some other quarrel.
16. Shivalingaiah, was an Appeal preferred by the State.
In that case, the learned Sessions Judge while acquitting the
Respondent / Accused under Section 302 of IPC, had found him
guilty of the offence under Section 323 of IPC. In the face of
similar allegation of the Respondent / Accused having caused the
death of deceased Giri Gowda by squeezing his testicles, the High
Court found that the offence would fall under Section 325 of
IPC. In other words, the High Court found that the offence
would be only of intentionally causing grievous hurt against,
which the State was before the Supreme Court. The Supreme
Court in the facts and circumstances of the case, found that the
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offence would not fall either under Section 302 or Section 304
Part II of IPC as it would not be covered by clause Thirdly of
Section 300. The Supreme Court, however made it clear that it
would depend upon facts and circumstances of each case. The
following observations in para 3 are apposite.
We wish to make it clear that it cannot be that in all
circumstances such an act would not be covered by
clause Thirdly and therefore, amount to culpable
homicide amounting to murder punishable under
Section 302 or culpable homicide not amounting to
murder punishable under Section 304 Part II. It all
depends on the facts and circumstances of each case
whether the accused had the requisite intention or
knowledge. The High Court has brought out the
circumstances which show that the respondent
acted on a sudden impulse.
17. Considering the over all circumstances, we find that
the conviction deserves to be modified to one under Section 304
Part II of IPC.
18. Coming to the point of sentence, Section 304 Part II
of IPC invites a maximum sentence which may extend to 10 years
or with fine or with both. The Appellant is in custody since 9
August 2010 and has put in more than 10 years of imprisonment
which is the maximum punishment under Section 304 Part II of
IPC.
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19. In the result, the following order is passed.
ORDER
1. The Appeal is partly allowed.
2. The impugned judgment and order is hereby modified. The Appellant stands convicted of the offence punishable under Section 304 Part II of IPC.
3. The Appellant is sentenced to rigorous imprisonment, for a period of ten years.
4. The Appellant has served more than ten years of imprisonment. Thus, the Appellant be set at liberty forthwith, if not required in connection with any other offence.
5. Fine if paid, be refunded.
(C. V. BHADANG, J.) (NITIN JAMDAR, J.)
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