1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.619 OF 2006 Laxman Shivappa Kamble ..Appellant Age : 55 yrs, Occu : labour R/o.Hirabai Zopadpatti, Kasarwadi, Pune V/s. The State of Maharashtra ..Respondent Mr.A.N.Kotangale, advocate, for appellant Mrs.S.D.Shinde, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 30TH APRIL, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . The accused/appellant, father of deceased Shivaji has challgned the conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code whereby the learned Sessions Judge, Pune by Judgment dated 13th January, 2006, convicted and sentenced the accused to suffer imprisonment for life with fine of Rs.1000/-, in default to undergo R.I for six months. 2 2. FACTS :- In the night on 30th October, 2004 accused and his wife Laxmibai were sleeping in the hut. Their younger son Shivaji barged the room in drunken state and desire to switch on television. The accused told him not to do so being late in the night. However, the son caught hold the neck of his father i.e.the accused, the accused picked up the axe lying below the cot and inflicted a blow on head and on right back side of his son Shivaji. The impact was such that Shivaji suffered bleeding injury. He was shifted to Y.C.M.Hospital, Pimpri, Pune. The F.I.R vide C.R.No.321/2004 for the offence under Section 307 of the Indian Penal Code was recorded. Spot panchanama was drawn. The incriminating articles axe, sari, with blood marks sample blood, hair samples were taken charge. The apparels of the accused and injured/Shivaji were also taken charge under panchanama. Shivaji succumbed to the injuries during medical treatment on 4th November, 2004 at 5.00 A.M. The report was submitted to the J.M.F.C Pimpri, Pune and nature of offence was changed to Section 302 of the Indian Penal Code. Inquest on the body of Shivaji was drawn. The probable cause of death was head injury associated with other injuries referred in Post Mortem Notes The seized property was sent to the office of C.A under forwarding letter. The C.A report showed blood stains connecting to the accused. On 13th January, 2005 chargesheet against the accused came to be filed before JMFC Pimpri, 3 Pune. The learned JMFC passed committal order and on 9th February, 2005 committed the case to the Court of Sessions. 3. The charge below Exh.2 for the offence punishable under Section 302 of the Indian Penal Code was explained to the accused. The accused challgned the same by his plea (Exh.3). The accused was in custody and considering financial crunch, legal aid was given to him. 4. The prosecution has put in five witnesses. P.W.1 Laxmibai Laxman Kamble, is the wife of the accused and mother of Shivaji. She put the investigation in motion. P.W.2 Chandu Vishnu Shelar witnessed the spot panchanama (Exh.15) with seizure of the axe having blood stains and saree. P.W.3 Dr.Shrikant Suresh Chandekar had performed post mortem (Exh.20) and in his opinion, the probable cause of death is head injury with other injuries. P.W.5 PSI Santram Rama Kamble carried investigation. P.W.4 PSI Suryakant Shankarrao Surve seized the clothes on the person of Shivaji vide Exh.10 and of the accused vide Exh.12 under seizure memo. The inquest on the dead body was recorded which is at Exh.11. The forwarding letter is at Exh.23 and the C.A reports are at Exh.24 to Exh.26. 4 5. The accused has admitted the seizure panchanama of clothes of Shivaji, inquest panchnama of dead body of Shivaji and seizure panchanama of his clothes. 6. The accused put forth the defence that on the date of incident Shivaji had come to the house under the drunken state and he fell down against the cot in the house and received head injuries. 7. We have scrutinized the evidence and at the outset we have no hesitation to observe that at the spur of a moment out of anger created due to behaviour of the deceased at 10.30 P.M, by switching on the television and disturbing the father, sorry state of affairs has taken place taking precious life of son Shivaji. 8. P.W.1 is the star witness. In fact, while she was in the hut the grusome incident occurred where at one side is her husband and the sufferer is her son. She gave accurate events and also confirmed that she took her son Shivaji to the hospital and recorded F.I.R. She identified the axe at article 6. At article 5 is her saree with blood stains. The clothes of her son or T Shirt of the accused are also not in dispute. The hut where the incident has taken place is of 10 x 10 feet having facilities of television set, fan, a cot, household utensils. The space left over is barely 7 x 10 feet. During the night of the incident the 5 deceased had come to the house in druken state had quarrel with his father the accused. The accused claimed, that such quarrel by deceased was not with him but with some outsider. This is rightly disbelieved by the Sessions Court. The suggestion put forth to P.W.1 by the defence demonstrate that presence of P.W.1 accused in the hut is not in controversy. It is projected that since the deceased was under the influence and smashed against the cot in the house and suffered injuries being not in self control. It was argued, F.I.R at Exh.9 is not in tune with her evidence and there is exaggeration and imblishment in her narration. 9. P.W.3 Dr.Shrikant Suresh Chandekar while carrying post mortem on the dead body of Shivaji Laxman Kamble, has recorded following external injuries. (1) Abrasion with blackish scab over right mid chest and anteriorly vertical linear 1 cm (2) Stiched wounds over a) over right occipital region upper end 12 cm. behind right ear top measuring 7 cm margins not contused, not abraded, clean cut margins on cutting stitches. b) over right partial prominenced 10 cm above right ear top measuring 2 cm., saggital on opening margins clean cutting c) over left parieto occipital measuring 7 cm upper end of would 8 cm. above and behind left ear top, margins clean cut. On opening wound no abrasion, no contusion along margins (4) A wound at base of left middle finger laterally extending 6 proximally to hand involving total thickness margins clean cut, on palmer aspect measuring 3.5 cm. clean cut. bone deep. On dorsal aspect stiched 3.2 cm. on opening margins clean cut at places. Underling 3rd meta carpal head and base of proximal phalangeal bone of middle finger showed chipped off fractures on lateral aspect. Clean cut involving parital thickness. Metacarpophangeal joint dislocated. The corresponding internal injuries noticed by him are as under :- (1) reddish black hematomas over mid frontal saggital 0.2 x 1 cm right parieto occipital 5 x 7 0.3 cm and mininal hematoma All above mentioned injuries were antemortem and bleeding. He preserved blood for grouping and in his opinion, the probable cause of death was due to head injury with other injuries. According to him the axe (article 6) could be probable weapon by which such injuries were suffered by the victim. Thus, evidence of this witness does not leave any room of doubt about homicidal death of Shivaji Laxman Kamble. The defence has also not disputed about the death of the deceased Shivaji or getting injuries to his head, except claiming that deceased dashed against the cot. 10. P.W.4 Suryakant Shankarrao Surve was attached to Bhosari Police Station and on 31st October, 2004 he received a Case Diary No.321 of 2004 for the offence punishable under Section 307 of the Indian Penal Code. During investigation the F.I.R was reduced in writing by PSI Kamble (Exh.9). The seized articles were sent to the office of C.A on 9th November, 2004 with 9 parcels in 7 C.R.No.321 of 2004 received on same date. The Medical Officer had sent one parcel on 31st October, 2004 to the office of C.A and on 24th March, 2005 report at Exh.25/1 is given that the blood group of deceased Shivaji was of group 'O'. On analysis of nine parcels the office of C.A, by their report dated 24th March, 2005 further opined that Axe wrapped in paper, Half T Shirt, Saree (torn), Jerkin (cut), Banian(cut), Full pant wrapped in paper, Cloth piece wrapped in paper labelled I, Cloth piece wrapped in paper labelled J and Hair in a packet wrapper is stained with blood of human origin blood group 'O'. The hair is reported to be human hair but there is no sample hair available for examination. Thus, the C.A report connected to the presence of blood of the deceased on the apparels of the accused and saree of P.W.1 Laxmibai. 11. The survey of entire evidence shows that the accused, father of deceased to be perpetrata of the offence or crime. The accused in his statement under Section 313 of the Criminal Procedure Code has admitted presence of wife P.W.1 with late Shivaji in the hut. The presence of human blood of 'O' group of deceased on the apparels of the accused also unerringly connect to the commission of offence. Non examination of other witnesses, in the fact situation will not be deem to draw adverse inference, as the incident has taken place in the tiny hut where P.W.!, accused and the deceased were residing and present. 12. It is proved through medical evidence and even by P.W.1 that there 8 were three injuries suffered by the deceased. However, fatal blow was head injury caused by axe. In this case the motive to commit offence, is not at all figuring. It is apparently established that the behaviour of Shivaji to switch on television at 10.30 in the night irked his father, the accused, and the deceased catch hold collar of his father the accused, added fuel to the anger. The act of the accused in the above background of the matter will definitely be within the parameters of Section 304 II of the Indian Penal Code as the requirement of Section 300 of the Indian Penal Code clause fourthly to Section 300, there was no motive. The blow inflicted by the accused was done under the heat of passion and anger. The accused did not take undue advantage of the circumstances. The three injuries sustained by Shivaji will not by itself will be decisive to hold the accused to has committed murder of his son knowingly or intentionally to face punishment under Section 302 of the Indian Penal Code. In the ultimate back ground we hold that the accused though, knew that blow of axe at the head of his son is likely to cause death but it cannot be presumed that he had such intention to cause death of his son. Hence, the conviction is converted from 302 of the Indian Penal Code to Section 304 II of the Indian Penal Code. 13. Hence, we proceed to pass the following order. (a) We set aside the conviction under Section 302 of the Indian Penal Code. (b) However, convict the accused under Section 304 II of the Indian 9 Penal Code and sentence him for a period of seven years and to pay a fine of Rs.1000/- in default S.I for 30 days. (c) Needless to state that he is entitled for the set off of the period which he has undergone during the trial. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)