AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1254 OF 2007 Mohammed Farid Shaikh, residing at, Manik Peth, Akkalkot, Dist. Solapur. ... Appellant Vs. The State of Maharashtra. ... Respondents Mr. D.G. Khamkar for the appellant. Mr. V.B. Konde-Deshmukh, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 30TH MARCH, 2010. ORAL JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The appellant was tried in the Court of Sessions, Solapur in Sessions Case No.171 of 2002 for offences punishable under Sections 302, 323 and 504 of the Indian Penal Code (for short, “the IPC”). By the impugned judgment and order dated 22/9/2003, learned Sessions Judge convicted the appellant for offence punishable AJN 2 under Section 302 of the IPC and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for two months. The appellant was also convicted for offence punishable under Section 323 of the IPC and sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs.200/-, in default, to suffer simple imprisonment for one month. The appellant was also convicted for the offence punishable under Section 504 of the IPC and sentenced to pay fine of Rs.300/-, in default, to suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. Being aggrieved by the said judgment and order, the appellant has filed the present appeal. 2. The case of the prosecution as stated by the complainant PW-1 Dattatraya Chandrakant Mashale is that he was residing at Manik Peth, Akkalkot along with his family members. Deceased Chandrakant Mashale was his father. According to the complainant, on 6/6/2002 at AJN 3 about 9.00 p.m. he, his mother and the deceased were in their house. The appellant started abusing the deceased when he went out of the house for washing his hands. On hearing the abuses, he and his mother PW-3 Sindhubai came out of the house. He found that the appellant was abusing the deceased and giving threat that once his son Ashfak returns from Mumbai, he will kill him. According to the complainant, he and his mother PW-3 Sindhubai requested the appellant not to abuse the deceased. The appellant, however, did not give any heed to their request and rushed to assault the deceased. The appellant started pressing the throat of the deceased. He and his mother PW-3 Sindhubai tried to intervene. But, the appellant bit the index finger of his right hand and pushed his mother PW-3 Sindhubai. At that time, PW-2 Kamalabai and one Subhadrabai came there. The appellant started assaulting the deceased with fist blows on his stomach and again pressed his throat due to which he became unconscious. According to the complainant, thereafter the appellant ran away and on hearing the hue and cry, AJN 4 neighbours rushed to the spot. The deceased was then taken to the hospital where he was declared dead. According to the complainant, on the same day, he went to the Akkalkot North Police Station and lodged his complaint. After registration of the complaint, the investigation was set into motion. 3. In support of its case, the prosecution examined six witnesses, out of which, three are eye-witnesses. PW-1 Datta is the son of deceased Chandrakant. PW-2 Kamalabai Ramesh Dede is the neighbour of the deceased. PW-3 Sindhubai is the wife of the deceased. PW-4 Ram is the pancha to panchanama under which clothes of the deceased and clothes of the appellant were recovered. PW-5 Dr. Shivbhadra is the Medical Officer, who had examined PW-1 Datta and the appellant. PW-5 Dr. Shivbhadra did the postmortem of the deceased. PW-6 PSI Ramdas is the investigating officer. After perusing the evidence on record, learned Sessions Judge convicted the appellant as aforesaid and, hence, this appeal. AJN 5 4. We have heard, at some length, learned counsel appearing for the appellant and learned A.P.P. appearing for the State. 5. Learned counsel for the appellant submitted that even if the prosecution case is taken as true, at the highest, an offence punishable under Section 304 Part II of the IPC can be said to be made out against the appellant and, hence, his sentence may be brought down and the appellant may be directed to be released from prison after adjusting the sentence undergone by him. Learned A.P.P., on the other hand, submitted that the impugned judgment and order does not call for any interference. 6. The evidence of PW-5 Dr. Shivbhadra, who did the postmortem of the deceased discloses that the deceased had not received any incised wounds. The cause of death is stated to be asphyxia due to throttling. The evidence of PW-1 Datta, the son of the deceased indicates that the AJN 6 incident took place on 6/6/2002 at 9.00 p.m. At that time, he was taking dinner with his mother in his house. According to him, the deceased went outside to wash his hands. The appellant came there and started abusing the deceased. After hearing the abuses, he and his mother came outside the house. The appellant was giving threat to the deceased saying that he will kill them once his son came from Mumbai. PW-1 Datta tried to intervene and rescue the deceased. The appellant bit the index finger of his right hand. The appellant pushed his mother. Then the appellant pressed the throat of the deceased. The deceased was then carried to Cottage Hospital at Akkalkot by him, where he was declared dead. 7. PW-2 Kamalabai has also stated that she witnessed the incident in question. She saw the appellant pressing the throat of the deceased with his hands. PW-3 Sindhubai has given a similar version. She has also repeated that the appellant pressed the throat of the deceased and was also giving him fist blows. AJN 7 8. Thus, the evidence on record indicates that the incident in question took place because of a petty quarrel. There is no evidence of pre-planning. There is also no evidence of any motive. The incident had taken place at the spur of the moment. Besides, the appellant has not used any weapon. Admittedly, he gave fist blows to the deceased and strangulated him with his hands. The fact that no weapon was used indicates that there was no preparation for murder. This is a case which falls in Exception 4 to Section 300 of the IPC. It is a culpable homicide committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. But, the appellant's action was accompanied by a declaration that once his son comes, he would kill them. This is, therefore, not a case where there was no intention. The appellant's case would, therefore, fall under Section 304 Part I of the IPC. In view of the above, we pass the following order : AJN 8 O R D E R 9. The impugned judgment and order convicting the appellant for offence punishable under Section 302 of the IPC and sentencing him to suffer rigorous imprisonment for life is quashed and set aside. The appellant is instead convicted for offence punishable under Section 304 Part I of the IPC and is sentenced to rigorous imprisonment for ten years for the said offence. The sentence of fine of Rs. 500/- is maintained. The appellant's conviction and sentences for offences punishable under Sections 323 and 504 of the IPC are maintained. Substantive sentences shall run concurrently. The appellant - Mohammed Farid Shaikh is directed to be released upon completion of ten years of imprisonment unless he is required in any other case. 10. The appeal is disposed of in the aforestated terms. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]