1 Appeal-1180-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 1180 OF 2008 Satyawan Sukhedeo Godse ) Age: 48 yrs, Occu: Agriculture ) R/o. Godse Vasti, Galavewadi, ) Tal: Atpadi, Dist. Sangli, ) (At present lodged in Sangli Dist. ) Prison, Sangli. ) ..Appellant (Orig. accused No.1) Vs. The State of Mahaashtra ) Respondent Mr.Shekhar A.Ingawale, Advocate, for the appellant Ms. P.P. Shinde,APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 20th October, 2011. JUDGMENT: 1. The original accused No.1 has preferred this Appeal against the judgment and order passed by the Adhoc Addl. Sessions Judge, Sangli, in Sessions Case No.35 of 2008 whereby the appellant was convicted for the offence punishable under Section 304 Part II of IPC and was sentenced to undergo R.I. for seven years and to pay fine of Rs.5,000/- and in default to pay fine, he was directed to undergo further R.I. for three months. 2 Appeal-1180-08.sxw 2. To state in brief, deceased Tukaram Sukhdeo Godse and accused No. 1, who is the present appellant were the real brothers having lands adjoining each other. The lands were irrigated with water from the well. One well exclusively belonged to deceased Tukaram and in another well, Tukaram and his brother accused No.1 Satyawan had joint share. There was also electric motor jointly held by them and they were sharing expenses for maintenance of motors and electricity bills. On 18.10.2007 night, deceased Tukaram was irrigating his land but due to sudden failure of electricity, he had to stop irrigation and returned home. On the next day morning i.e. 19.10.2007 at about 7.30 a.m. deceased went to irrigate his portion of the land from the common well and for that purpose he also switched on the electric motor installed in the common well. At that time, Babaso son of the accused No.1, came and switched off the electric motor and on enquiry, he said that he had also to irrigate his land and therefore he had switched off the electric motor. At that time, accused No.2 Shivaji, who is also the son of accused No.1, came there. Accused No.2 Shivaji and his brother Babaso began to abuse their uncle Tukaram and his son. To avoid further quarrel, Housabai, who is wife of deceased Tukaram, took her husband and son to their house. When deceased Tukaram was standing in front of the door of their house, both sons of accused No. 1 came there with stones in their hands. Babaso threw a stone which hit on the head of deceased Tukaram and he fell down. At about the same time, accused No. 3 Appeal-1180-08.sxw 1 also came there and uttered the words “Sarkha Kurbur Kartos, Bhandtos Ata Tula Thevatach Nahi, Khalas Karun Takto” which means the deceased was always creating trouble and quarrelling and therefore, the accused No.1 would finish him. Saying so, the accused No.1 picked up an axe lying near the bathroom of his house and gave a blow with blunt of the axe on the head of Tukaram. He also gave some more blows on different parts of the body. Accused No.2 allegedly assaulted on the back of Tukaram with stone. After that accused Nos. 1 and 2 rushed towards the wife and son of Tukaram and had a scuffle with them. After that they left the place. As the deceased Tukaram was lying unconscious, he was immediately taken to a police station on the motorcycle. From there he was referred to Government Hospital at Atpadi and then to District Hospital Sangli where he was operated upon. Two days after that he died. Post mortem report reveals that he had suffered fracture of left parietal bone and diffuse extradural and subdural haematoma present over both hemispheres. The cause of death was Cranio cerebral injury. Initially, the case was registered under Section 307 of IPC on the report lodged by PW-1 Housabai. After death Section 302 of IPC was added. Axe was recovered on the basis of information given by accused No.1. After investigation, charge-sheet was filed against accused Nos. 1 and 2 under Section 302 read with Section 34 of IPC. Babaso was a juvenile and, therefore, a separate proceeding was filed before the Juvenile Court against him. The case 4 Appeal-1180-08.sxw was committed to the Court of Sessions and accused Nos. 1 and 2 were put to trial for the aforesaid offence. 3. On behalf of prosecution, in all seven witnesses were examined. On behalf of defence, DW-1 Dr. Uttam Namdeo Padalkar, Medical Officer, was examined to prove that the deceased as well as the accused persons had suffered the injuries. On behalf of defence, it was contended that the deceased had suffered fatal wound on the head because of fall on the wooden stump due to scuffle. In the alternative, it was contended that the injury was caused to him in self defence. Both these pleas were rejected by the trial Court and the trial Court held that accused No.1 was alone responsible for causing homicidal death of deceased Tukaram. However, taking into consideration the facts and circumstances, the trial Court came to conclusion that it was not a case of murder, but culplable homicide not amounting to murder punishable under Section 304 Part II of IPC and accused No.1 was convicted and sentenced accordingly. Accused No.2 was acquitted. 4. The learned Counsel for the appellant took me through the evidence led by prosecution as well as defence and the reasons given by the trial Court for coming to conclusion that the present appellant had given the axe blow on the head of deceased Tukaram resulting in his death. The learned Counsel tried to 5 Appeal-1180-08.sxw contend that deceased Tukaram as well as both accused had suffered some injuries and this act was proved by DW-1 Dr. Uttam. However, the injuries suffered by accused Nos. 1 and 2 were minor and they could be caused due to fall during the scuffle. The evidence of PW-1 Housabai shows that scuffle had taken place between accused Nos. 1 and 2 on one hand and Housabai and her son Dinesh on the other hand. As per the oral evidence as well as FIR lodged by Housabai, Babaso the younger son of the accused/appellant had pelted a stone which had hit on the head of the deceased Tukaram and he fell down. When he was lying down, the present appellant had given a blow with blunt side of axe on the head of Tukaram. Taking into consideration the internal injuries resulting in death it could be attributed to the forceful blow given by the axe and not by hitting of a stone from some distance. The learned trial Court considered the plea of the accused that deceased might have suffered fatal wound because of fall on the wooden stump and after giving valid reasons, rejected it. Mere fall on the stump on the ground, it was impossible to suffer such fracture of skull bone piercing into brain matter. This required sufficient force which would be absent when a person falls on stump. Such force is possible only when a blow is given on the head by using certain force and that has been attributed to the present appellant. Taking into consideration the facts and circumstances, there is no reason to disbelieve the evidence of PW-1 Housabai which shows that the present appellant had given axe 6 Appeal-1180-08.sxw blow on the head of deceased Tukaram. After going through the medical evidence, I find that the trial Court was right in holding that death was caused by the blow given by the accused. 5. The learned Counsel for the appellant contended that taking into consideration the facts and circumstances in which the incident had occurred, the sentence of R.I. for seven years is harsh. According to him, the appellant, who has already undergone the sentence of more than four years, may be let off with the sentence as already undergone. As per the report from the Superintendent, Kolhapur Central Jail, the accused was in jail for three months and 13 days as under-trial prisoner and then was granted bail. After conviction, since 8.10.2008, he is continuously in Jail. He has been actually in jail for three years five months and seven days as on 30.9.2011. He also earned remission of period of 10 months and 12 days. Taking into consideration all this, he has undergone sentence for a period of 4 years and 4 months. The prosecution story also clearly shows that there was no enmity between the parties. They were real brothers. The dispute abruptly occurred on the ground of irrigation of the land by both the sides. Initially, there was some exchange of hot words and during that quarrel, the accused abruptly lifted an axe and gave a blow on the head of his brother resulting in his death. He gave a single blow and that too from the blunt side of 7 Appeal-1180-08.sxw the axe. The trial Court noted that it indicated that the accused did not have intention to cause death nor he could have intention to cause such injury which would be sufficient in the ordinary course of nature to cause death. However, he could have knowledge that with such a blow he could cause such an injury which was likely to cause death and this ofence under Sec. 304 Part II of IPC is proved. In view of the circumstances in which the incident occurred and the fact that the accused had given a single blow from the blunt side of the axe, in my opinion, the sentence of imprisonment for five years would be just and reasonable. 6. For the aforesaid reasons, the Appeal is partly allowed. While the conviction of the accused for the offence of culpable homicide not amounting to murder under Section 304 Part II is maintained, the sentence is reduced to R.I. for five years with fine of Rs.5,000/- and in default to pay fine to undergo further R.I. for three months. (J.H.BHATIA,J.)