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When court should convert conviction from S 302 of IPC to S 304 of IPC?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.361 OF 2016

Appellant : Suresh s/o Sadhuji Ghogre,
Aged about 60 years, Occu. Electrician,
R/o Dasara Road, Gondhilipura,Near the House of Rajaram Admane, Nagpur.
Presently lodged at Central Prison, Nagpur.

— Versus —

Respondent : The State of Maharashtra,
through Police Station Officer,
Police Station Kotwali, Nagpur,Tah. & Dist. Nagpur.

Shri R.M. Daga, Advocate for the Appellant.
Smt. A.R. Kulkarni, A.P.P. for the Respondent/State.

CORAM : S.B. SHUKRE & S.M. MODAK, JJ.
RESERVED ON : 22nd NOVEMBER, 2018.
PRONOUNCED ON : 11th JANUARY, 2019.

ORAL JUDGMENT :- (Per S.M. Modak, J.)

The appellant sole accused is convicted of committing the murder of one Shailesh Balkrishna Junghare. He was assaulted with the help of knife on 23/09/2014 at about 7.15 p.m. in front of house of Rajesh Manohar Rendke. On the complaint of one Lukesh Pawar, Kotwali Police Station, Nagpur initially registered an offence under Section 307 of the Indian Penal Code (for short hereinafter referred to as ‘IPC’). Deceased Shailesh was first taken to the hospital of Dr. Patil and he died there lateron. Police converted the offence to Section 302 of IPC.

02] This appellant was named in the First Information Report. He was charge-sheeted for the offence under Section 302 of IPC. Additional Sessions Judge, Nagpur, convicted him to life imprisonment and a fine of Rs.5,000/- on 30/06/2016. 03] We have heard Shri R.M. Daga, learned Counsel for the appellant and Mrs. A.R. Kulkarni, learned Additional Public Prosecutor for the respondent. They have taken us through the evidence. The emphasis of the appellant is entirely on reducing the sentence from life imprisonment to a lesser imprisonment. There is submission to convert the conviction from Section 302 to Section 304 of IPC. The defence has, however, opposed it.

MOTIVE
04] On going through the evidence, we find that there are six eye-witnesses. In such cases, motive does not play any important role. Though no motive was attributed, indirectly anger of the family members of the appellant towards the family of deceased was attributed. The appellant was having a son by name Jitendra. He had committed suicide by poisoning. One Shrutika Junghare is the daughter of brother of deceased Shailesh. They used to reside at Nashik. Occasionally, Shrutika used to visit the house of her deceased uncle at Nagpur. Shrutika and Jitendra came in contact with each other and Jitendra used to visit the house of the deceased. Deceased’s family members were not comfortable. It was brought to the notice of the appellant-accused. Family members of the appellant blamed the family members of the deceased for the act of commission of suicide by Jitendra.

05] On reading cross-examination of the witnesses, defence has suggested dispute between deceased Shailesh on one hand and Hiraman Nerkar and Hirabai Ugle on the other hand. It was on account of construction of house of the deceased. Deceased was constructing his new house. It is not in dispute that it was on the verge of completion. Daughter Anushka [PW-7] and wife Reena [PW- 8] have admitted about this dispute and even filing of police complaint by deceased (admitted by PW-8 Reena).

EVIDENCE
06] On going through the evidence of seven eye-witnesses, we find that only PW-4 Rafiq Sheikh, PW-7 Anushka (daughter) and PW-6 Rajesh Randke have supported the assault by the appellant on the deceased. When the deceased visited his new house on 23/09/2014, the appellant assaulted him with the help of knife. There is some variance about the exact place of assault, that is to say the place where the deceased was putting a lock on the door of the house or the spot where he was putting a lock to the compound gate of the house.

POSTMORTEM EXAMINATION
07] When we have gone through the postmortem examination report, we find four injuries mentioned in Column No.17. There are three wounds, one is stab injury, second is surgical stab intervention and third is incised wound, whereas there was one contused abrasion on forehead. These three wounds are on chest, abdomen and forehead. Doctor carrying out postmortem was not examined, probably for the reason that the defence has admitted the report. Final cause of death is ‘stab injury to heart’. There was also stab wound to valves and cartilages and it is corresponding to external stab wound over front of chest on left side. Neither the defence has disputed about homicidal death nor there is any other contrary material. There is every reason to uphold the opinion of the trial Court about homicidal death.

WEAPON
08] Even, there is a reason to uphold the knife as the weapon for causing all these injuries. Dr. Nilesh Tumdam, who has examined the seized knife for giving the opinion, was examined by the prosecution. There is a reason to believe about spot of incident. It is in front of the house of Rajesh Manohar Rendke on Dasra Road, Pravin Kawale [PW-9] is the spot-panch.

EYE WITNESS
09] Out of the eye witnesses, PW-2 Pawankumar Jais and PW- 3 Rajesh Jain have resiled from their police statements. They were examined on the point of witnessing the assault. Witness Pawankumar Jais has totally resiled, whereas the witness Rajesh Jain has at least deposed about shifting deceasd Shailesh from the spot to the hospital in Auto-Rickshaw. The first informant Lukesh Pawar [PW-5] has also resiled from the contents of the F.I.R. He and Raja Rendke (probably PW-6 Rajesh) were chitchatting on 23/09/2014 in between 07:00 p.m and 07:30 p.m. The first informant Lukesh has deposed from the stage deceased Shailesh came running, whereas PW-6 Rajesh deposed since the assault by the accused on the deceased with the help of knife. During cross-examination, witness Rajesh has given one answer. Defence has brought the same to our notice. He heard the voice of deceased Shailesh “Mala Wachwa, Mala Wachwa”.

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10] Rafiq Sheikh [PW-4] and Anushka [PW-7] have also deposed about witnessing the assault. Anushka had gone to the spot for calling her father. Deceased had gone to the new house on the fateful day. PW-4 Rafiq has simply stated about assault by the appellant on the deceased. That is to say he has not narrated, how the accused came there from, whether there were talks in between them. Whereas, Anushka has deposed few particulars. The accused- appellant patted the deceased and when the deceased took a turn, appellant gave a blow of knife on his chest. About this particular fact also, the appellant claims it as an improvement. 11] The evidence of Rafiq and Anushka was challenged on the ground of delay in recording of statement and inaction/keeping silent during that period. Reena, wife of deceased has not witnessed the incident. She got knowledge from daughter Anushka. The knife was recovered at the instance of the accused and Ravindra Gawane [PW-1] is the panch. C.A. Report does not suggest of finding out blood of deceased on that knife.

CONCLUSION
12] On reading the entire evidence, we do find that the evidence of eye-witnesses (particularly of Rafiq and Anushka) proves about the assault on the deceased by the appellant with the help of knife. Then, we realize the approach of the defence in conducting the appeal. They are fully aware about the evidence noted above. For this reason, probably they have not pressed hard in allowing the appeal in toto. Now, we will deal with the main thrust of the appellant on converting the sentence.

CASELAWS
13] The appellant relied upon the judgment in the case of Sunder Lal vs. State of Rajasthan reported in (2007) 10 SCC 371 and the case of Tularam vs. The State of Madhya Pradesh reported in 2018 ALL MR (Cri) 3161 (S.C.). In both these cases, the Hon’ble Supreme Court converted conviction from Section 302 to Section 304 of IPC. The law on the point of culpable homicide amounting to murder and that not amounting to murder is discussed therein. The appellant wants us to give similar benefit to the appellant.

14] We have gone through these two judgments. It is true that the culpable homicide is defined in Section 299 of IPC. The culpable homicide is a genus, whereas murder is it’s species. All murders are the culpable homicides, but all culpable homicides are not murders. Defence can be successful in taking out the case from the sweep of Section 300 of IPC in two contingencies. One is, if they make out any exception given in Section 300 of IPC and, secondly, if they make out a case of non-fulfillment of ingredients of clause firstly to clause fourthly of Section 300 of IPC.

15] In those two contingencies, the culpable homicides will not be murder and the accused is required to be dealt with as per the punishment prescribed in Section 304 of IPC. In the judgments referred above, there are certain guidelines as to how to appreciate the evidence. There is emphasis on single blow of knife, no argument or altercation immediately before the assault in between the deceased and the appellant, the time of incident being night time and absence of any motive. In the case of direct evidence, the motive as a circumstance is not so important as in the case of circumstantial evidence. So, in case of a case based on direct evidence, there can be prosecution evidence on the point of motive or it may not be there. If, however, such evidence is adduced, then the duty of the Court is to assess the evidence. Traces of such evidence are present here. The love affair between Shrutika (niece of deceased) and Jitendra (son of appellant) and displeasure from the family members of the deceased is shown as a background. PW-8 Reena Junghare, wife of deceased, had given details of this background. The intimacy in between Shrutika and Jitendra was in the month of April, 2014. Shrutika had come to Nagpur to the house of her deceased uncle. Then, she returned to Nashik. Jitendra, son of the appellant, committed suicide in the month of April, 2014. The prosecution claims that being disturbed due to untimely death of his son Jitendra, the appellant used to abuse family members of the deceased under the influence of liquor. After reading the evidence of prosecution witnesses, we do not find the evidence satisfactory on the point of motive. The prosecution having relied on the backdrop of a particular relationship, could have brought on record the love affair on one hand and commission of suicide of Jitendra on the other hand. Even, Shrutika had committed suicide subsequently. But, the evidence is not satisfactory on the point of connection between commission of suicide by Jitendra and the appellant holding the family members of the deceased accountable for that suicide on the other hand. So, the connecting link is not established. Hence, we feel that, motive for appellant to commit murder, being family members of the deceased responsible for commission of suicide by his son, is not established. This would make us believe that it is difficult to hold that there was any premeditation or pre-planning on the part of the appellant to kill the deceased which would in turn necessitate examining thoroughly the presence of intention or knowledge as contemplated by Section 300 of IPC.

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16] In addition to the age of the appellant being senior citizen is also cited for taking a lenient view. The age will come into picture after final appreciation of evidence and that too if the offence will fall under the category ‘culpable homicide not amounting to murder’.

17] It is true that there are four injuries to the deceased. One is abrasion on forehead that may be due to fall and there are stab wounds on the chest and abdomen. The eye witnesses PW-4 Rafiq and PW-7 Anushka have categorically stated about only one blow of knife. It is very well true that the appellant has not given repeated blows of knife on the deceased. It has also come in the evidence that appellant ran away after the assault. The location of the injuries on the body suggests that it was near a vital part of the body. However, which part of the body, the assault would ultimately affect would depend upon various factors i.e. the height of deceased and the appellant, the distance in between them at the time of assault, weapon used, the force applied and finally the intention of the assailant. If the assault is from the very close distance, there is likelihood of injuring the upper part of the body. Probably, if the assault might have been on the abdomen or lower part of the body, the result could have been different. Even though, the appellant had brought knife along with him, we do not find that he intended to cause death of deceased Shailesh. We are taking this view for the reason that there is only single blow, that there is no argument or altercation immediately earlier to the assault, that there are no repeated blows even though opportunity was available and that there is absence of evidence of expert suggesting that the injuries were sufficient in the ordinary course of nature to cause death. 3 rd clause of Section 300 requires that the bodily injury intended to be inflicted must be sufficient in the ordinary course of nature to cause death and that means, it must be established by evidence. PW-10 Dr. Nilesh has been examined by the prosecution to prove the nature of weapon used and it’s connection with the stab injury. But, PW-10 does not say anything in this regard and his opinion vide Exh.66 is also silent on this aspect of the matter. Merely because postmortem is admitted (Exh.63) by defence, it does not relieve the prosecution to prove the ingredients of Section 300 of IPC.

18] These facts create a doubt, in our opinion, about intention of the appellant to inflict such injury as to cause the death of Shailesh or the appellant having intention to deal such an injury as is sufficient to cause death or the appellant having knowledge that in all probability the injury caused by him would result in death of the deceased. We infer that the appellant had intention to cause some injury which possibly may not have caused the death and that it is this element of uncertainty which takes the case out of the ambit of Section 300 of IPC.

19] On going through the judgment of the trial Court, we do not find that it has considered these aspects. We intend to disagree with the finding of the trial Court on this aspect of the case. There is every scope to say that appellant intended to inflict some injury on the deceased and to the misfortune of both, it has resulted into his death. So, we intend to convert the conviction from Section 302 to Section 304 of IPC.

20] When we have read the judgment of the trial Court, we do not find any discussion on the point of fulfillment of the conditions of Section 300 of IPC. The learned trial Judge has discussed about proof of all the circumstances. He was required to give findings before coming to the conclusion about the guilt of the accused under Section 302 of IPC. There can be punishment under Section 302 of IPC only when the case falls under either of the clauses of firstly to fourthly of Section 300 of IPC. Unfortunately, it is not there. For that reason and for the reasons stated above, the appellant needs to be given a benefit of doubt to the limited extent of his guilt under Section 302 of IPC and thus we find that the prosecution has succeeded only in proving the guilt of the appellant for an offence which falls under the scope and ambit of Section 304(I) of IPC.

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SENTENCING
21] When we talk about punishment prescribed under Section 304 (I) of IPC, it is of two kinds. One is life imprisonment or imprisonment up to 10 years and second is fine. Court has to award appropriate sentence which suits the interest of justice. Law has evolved on mitigating and aggravating circumstances. 22] No doubt, the act is an offence against society. Anguish of the appellant (due to commission of suicide by his own young son) towards the family of deceased is portrayed as a motive, though, it is not sufficiently proved. In nutshell, the incident happened due to discord between families of appellant and deceased. These family differences need to be considered as one of the mitigating factors. Though murder took place on public road, it was not a cold blooded murder. At the same time, age of appellant being of 60 years also weighs in his favour. If he is inflicted with life imprisonment, there are no good chances of his surviving the full term. 23] At the same time, the interests of legal representatives of deceased need to be protected. As on record, Reena Shailesh Junghare [PW-8] is the wife and Anushka Shailesh Junghare [PW-7] is the daughter of deceased. There are no other legal representatives who have come on record. Deceased was aged about 35 years. He was having long life to live and he must be the breadwinner of the family. His family members must be undergoing lot of inconveniences after the murder.

24] So, when we have balanced all the factors, we feel that seven years imprisonment will meet the ends of justice. At the same time, wife Reena and daughter Anushka need to be compensated. Considering the age of deceased and average earning, we quantify the compensation to the tune of Rs.5,00,000/-. Appellant may contend weak financial capacity. But, he cannot forget, he is responsible for the death and ultimately, if he has to live his remainder life openly, he has to arrange for resources.

25] We are awarding this compensation by invoking the provisions of sub-section (1) to Section 357 of Cr.P.C. When there is only sentence of fine or fine being part of whole sentence, Court has to appropriate whole/part of fine amount towards compensation. Whereas, when there is only sentence of imprisonment (without fine), Court may impose compensation independently by invoking the provisions of sub-section (3) to Section 357 of Cr.P.C.

26] For offence under Section 304(1) of IPC, there cannot either be imprisonment only or fine only. Further, there are no pecuniary limitations on the power of Additional Sessions Judge / High Court so far as amount of fine is concerned. So, we also impose a fine of Rs.5,25,000/- on the appellant. Out of this amount, Rs.5,00,000/- be paid as compensation to wife Reena Shailesh Junghare and daughter Anushka Shailesh Junghare in equal proportion. If they will claim compensation through Civil Court, this amount be considered. If there are other legal representatives of deceased, their claim is not considered. If they desire, they may approach the Civil Court as per law. Civil Court can decide the claim of claimants and may consider this amount of compensation while fixing the total compensation and it’s shares, if any occasion arises. For above reasons, we are allowing the appeal partly and passing following orders :

i. Appeal is partly allowed.
ii. The appellant is convicted for the offence punishable under Section 304(I) of IPC instead of offence punishable under Section 302 of IPC.
iii. Appellant is directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,25,000/-. iv. Out of this fine amount, an amount of Rs.5,00,000/- be paid to Reena Shailesh Junghare and Anushka Shailesh Junghare in equal proportion.
v. If the appellant fails to pay the amount of fine of Rs.5,25,000/-, he is further directed to undergo rigorous imprisonment for two years.
vi. Sentences to run concurrently.
vii. Appellant be given benefit of set off. viii. Amount of fine be deposited in District Court, Nagpur. As and when deposited, compensation be paid to Reena Shailesh Junghare and Anushka Shailesh Junghare on proving their identity as per rules.

(S.M. Modak, J.) (S.B. Shukre, J.)

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