1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1000 OF 2006 Yusuf Ibrahim Khan ..Appellant Age : 37 yrs, Occu : Rickshaw driver R/o.Vadgaon Sheri, Pune – 14 (At present undergoing sentence at Yerwada Central Prison, Pune – 4) V/s. The State of Maharashtra ..Respondent Mr.M.S.Mohite, advocate, for appellant Mrs.M.M.Deshmukh, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 12TH JUNE, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . The appellant/accused has challenged the Judgment and Order of conviction dated 26th July, 2006, recorded by the learned Additional Sessions Judge, Pune in Sessions Case No.302/2000, whereby the appellant/accused is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer R.I for life and fine of Rs.5000/- in default to undergo R.I for five months. 2. On 4th April, 2000 when children of the appellant/accused and his 2 wife were present at their home, in the evening the appellant/accused demanded Rs.20/- from his wife for drinking liquor which was complied by her. The appellant/accused after bringing the same consumed in the house. Thereafter, demanded Rs.5/- from Rizwana his wife the deceased, for purchasing Goa Gutkha. On her refusal to comply, the accused got irritated. The appellant/accused further asked her to join him to Patil Estate for which also Rizwana declined. The accused then lifted a grinding stone and hit her on her head causing severe bleeding injuries, which ultimately resulted in her death. 3. The shouts of P.W.1 Ruksana and her brother invited attention of the neighbours and the appellant/accused allegedly made extra judicial confession before them. 4. The report of P.W.3 Sadique vide Exh.33 was treated as a complaint and offence was registered at Yerwada Police Station. The accused was put under arrest vide Arrest Panchanama Exh.22. At Sassoon Hospital Rizwana was declared dead. P.W.5 Suryakant Pawar, police sub-inspector, drew inquest Exh.23 and then P.W.4 Dr.Rajendra Bansal carried the Post Mortem on the dead body and the report Exh.25 indicates that he has noticed following external injuries. (i) Left black eye (ii) Contused lacerated wound over left side of forehead, involving 3 lateral third of left upper and lower eyelids, 8 x 5 cm in size, with involver scalp tissue missing. Underlying fractured left side of frontal bone visible (iii) Contused lacerated wound triangular in shape over center of forehead 7 cm above flabella, 31/2 cm x 1 ½ cm in size (iv) Contused lacerated wound 1 x 1 cm over outer aspect of left third of upper lip (v) Contusions over 2 x 2 cm area over left cheek (maxillary prominence) (vi) Contused lacerated wound, irregular, 9 x 7 cm lower center of occipital region of scalp, underlying fractured occipital bone visible (vii) Contused lacerated wound irregular, 5 x 3 cm over left side of occipital region of scalp (viii) Contused lacerated wound, triangular 3 ½ cm x 2 cm over right side of frontal region of scalp, 7 cm above lateral third of right eyebrow (ix) Abrasions over area 7 x 5 cm adjacent to lateral aspect of injury no.2 On internal examination he found following injuries. (i) Haematoma below the skull over frontal left parieto temporal, whole occipital region and right parietal region (ii) left temporalis muscle contused (iii) depressed fracture of left temporal bone over 4 x 3 cm area with two crack fractures originating from it (iv) crack fracture of right occipital bone Meninges over left frontotemporal lobe lacerated. Brain contused 5 x 4 cm over left frontotemporal region 4 x 4 cm over 4 superolateral aspect of posterior half of right parietal lobe both anterior and middle cranial fossae at base of skull showed communitted fractures 5. According to Dr.Rajendra Bansal, the injury Nos.2, 3, 6, 7 & 8 referred above with the internal damage, were sufficient in the ordinary course of nature to cause death and injuries were possible by the grinding stone (Article No.1). P.W.4 did not agree that injuries were possible by fall. 6. The evidence adduced before us of P.W.3 Sadique, P.W.6 Hassan, P.W.7 Fatima and P.W.8 Rizwan unerringly establish that the deceased was found lying injured in her house. Same is even not challenged by the accused. P.W.9 Ravikant Malekar, A.P.I, Yerwada Police Station had seen the injured in her house in a pool of blood. He drew Spot Panchanama Exh.34 and shifted the body. The accused in his statement under Section 313 of the Criminal Procedure Code has not disputed his presence in the house. His defence is, he came to his house and heard noise from the house and found Rizwana lying in the room. He did not cause injuries to Rizwana. From evidence of above witnesses coupled with the evidence of P.W.4, it is not in dispute that wife of accused Rizwana met homicidal death. 7. We have scanned the evidence of P.W.1, daughter of the appellant/accused and also the deceased. There is no reason for P.W.1 to 5 depose against her father. The accused has not brought on record any such eventualities for her to develop any rancour against him at her teen age when she was studying in 4th Std at the material time. In the cross examination also which is recorded subsequently owing to orders of this Court in Criminal Appeal No.305/2001, P.W.1 confirmed her earlier evidence that the appellant/accused hit the grinding stone on her mother on her head, causing fatal injuries to her. The presence of P.W.1 is also not denied by the appellant/accused. On analysis of her evidence, we find that it was the appellant/accused who hit the grinding stone at his wife to which she succumbed. The neighbours, however, did not hear accused making any extra judicial confession. 8. The learned Additional Sessions Judge on analysing the evidence found the appellant/accused guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine. 9. The nature of injuries referred by P.W.4 noticed by him do indicate that it was in all probabilities a single blow with force, causing injuries to forehead and at right front region. Though the accused at the relevant time was intoxicated, the intoxication by the appellant/accused at the material time cannot result in any concession in his favour. 6 10. Section 300 of the Indian Penal Code reads as under :- S.300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causind death, or 2ndly – If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly – If the person committing the act knows that it so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid Exception 4 – Culpable homicide is not murder if it is committed without premediation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. 11. It was the accused who demanded Rs.5/- from his wife and on her refusal he got irritated. His second demand to join him, at Patil Estate having not been complied by his wife, he hit the deceased with the grinding stone. The misbehaviour of deceased in the eyes of the accused is not the act of great provocation. It was unfortunate affair taking of life of victim. It is obvious therein the sudden quarrel which ensued the accused in the heat of the moment, hit the grinding stone and caused injuries to his wife which proved to be fatal. In the situation the accused will be entitled to exception 4 of Section 300 of the Indian Penal Code. 7 12. It is well settled, the number of wounds caused during occurrence is not decisive factor but it is important that the occurrence must have been sudden and unpremeditated and the accused has obviously, acted in a fit of anger in such moment. The evidence of P.W.1 discussed earlier demonstrate that the accused hit grinding stone on his wife in such a moment. The accused had no intention of causing death or such bodily injury as is likely to cause death. In the result, we hold that the offence punishable under Section 302 of the Indian Penal Code though not made out, however, the offence punishable under Section 304 I of the Indian Penal Code is established. 13. In the light of the above, we proceed to pass the following order. (i) We acquit the accused of the offence punishable under Section 302 of the Indian Penal Code but convict him for the offence punishable under Section 304 I of the Indian Penal Code and sentence him to suffer R.I for ten years and to pay fine of Rs.5000 in default to suffer R.I. for 5 months. (ii) The period in custody will be set off against the substantive sentence. (iii) Appeal is disposed off accordingly. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)