Partly allowed

Jalinder Devidas Shinde. v. State of Maharashtra.

Bombay HC4 Oct 2004APEAL/780/1988

Case brief

AI extract

What is this about?

This High Court criminal appeal reconsidered the conviction for murder. The court quashed the murder conviction and reduced it to culpable homicide not amounting to murder, noting the lack of intention to kill with a light weapon. The prosecution case was accepted but the original sentence was substituted with a fine and modified concurrent sentencing.

What did the court decide?

Conviction under S. 302 IPC set aside; convicted under S. 304(Part II) IPC; sentenced to fine of Rs. 7,000/- (imprisonment in default); conviction under S. 452 IPC maintained.

Jalinder Devidas Shinde. Vs State of Maharashtra. — Murder and Culpable Homicide | Bombay HC (2004)

¶1

AJN

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.780 OF 1988

¶5

Jalinder Devidas Shinde, ) aged about 28 years, Occupation) Agriculturist, resident of ) Nagewadi, Taluka Khanapur, ) District Sangli.

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) ... Appellant (Orig. Accused.) ) ... Respondents

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Versus

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The State of Maharashtra.

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Mr. Arfan Sait, advocate appointed for the appellant-accused.

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Mr. D.S. Mhaispurkar, A.P.P. for the respondent-State.

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CORAM: SMT. RANJANA DESAI & A.S. OKA, JJ.

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DATED: 4TH OCTOBER, 2004.

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ORAL JUDGMENT :- ( Per Smt. Ranjana Desai, J. )

¶14

1.	The		appella	nt	(for conv	enience,	"the	acc	used")	was
tried	in	the	C	ourt	of the	Additional		Ses	sions	Judge,
Satara	at	Satara	in	Ses	sions Case	No.29	of	1988	for	the
offences	puni	shable	un	der	sections	452 and		302	of	the
Indian	Penal	Code		(for	short,	"the	IP	C").	By	the
judgment	a	nd	order	d	ated 5/8/19	88, the		learned		Sessions
Judge	found		the	acc	used guilty	of		offences		punishable
under	sections	452	and		302 of	the IPC.		He	convict	ed the
accused	of	the	offence		under sectio	n 302	of	the	IPC	and
sentenced	him		to	su	ffer imprison	ment	for	l	ife.	For
offence	under		section	45	2 of the	IPC,	the		accused	was
sentenced	to	suffer	R.I.		for one	year	and	to	pay	a fine

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: 2 :

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of Rs.300/- in default to suffer R.I. for one month.

¶17

Both the sentences were ordered to run concurrently.

¶18

Being aggrieved by the said order and judgment, the

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accused has approached this court.

¶20

3.	At	the trial, the case	of	the	prosecu	tion w	as as
follows.		Deceased Dhula Namdeo	Sat	pute	was	the	husband
of PW-2	Anjir	abai Satpute. PW	-10	Mukt	abai	Satpute	is the
complainant.		Her daughter S	unita	was	marri	ed to	the
accused.	The	deceased Dhula was	her	bro	ther	in law.	His
daughter	Sangita	was married	on	12/	11/1987	to	one
Anandrao	Rajge.	The deceased		sent	P	W-10	Muktabai
Satpute’s	daughter	Sangita with	Sunita		to	her	matrimonial

¶21

house after the marriage. This was done without the

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consent of the accused.

¶23

4.	It is	the	case of	the prosecution t	hat	the	accused
was	annoyed because	of	this.	On the day	of	the	incident,
the	deceased w	as i	n his	house along with	his	wife	PW-2
Anjirabai	Satpute.	P	W-2 A	njirabai Satpute	served	foo	d to
the	deceased at		7.30 p.m.	The deceased		was	sitting
towards	southern	side	while	he was taking	food.		PW-2
Anjirabai	Satpute	was	sitting	near the fire	place.		The
accused,	all of	a	sudde	n, entered the	house	of	the
deceased	armed with	a	stick.	He asked the	dec	eased	as to
why	his wife	-	Sangita	was sent along		with	Sunita,
without	his co	nsent.	The	accused gave two		strokes	of
stick	on the	head	of	the deceased.	PW	-2	Anjirabai

¶24

: 3 :

¶25

Satpute	went ahead. The accused raised a stick in	order
to b	eat her. The stroke fell on the left thumb of	her
hand.	PW-2 Anjirabai Satpute started shouting	loudly.
The	accused ran away with the stick in his hand.	On
account	of cries raised by PW-2 Anjirabai Satpute,	PW-4
Jalandhar	Nalawade, PW-6 Anjana Pawar and	PW-11
Ramchandra	Satpute came there. PW-2 Anjirabai	Satpute
sent	Balabai to call PW-10 Muktabai Satpute.	PW-10
Muktabai	Satpute came to the house within five to	ten
minutes.	PW-2 Anjirabai Satpute told PW-10	Muktabai
Satpute	what had happened. PW-11 Ramchandra Satpute	and
PW-10	Muktabai Satpute shifted the deceased to	the
government	dispensary at Masur. From there, he was	taken
to	Cottage Hospital, Karad. From Kottage Hospital,	he
was	shifted to Civil Hospital, Satara. From there,	he
was	shifted to Sassoon Hospital, Pune. The	deceased
succumbed	to his injuries on 18/11/1987. In	the
meantime,	PW-10 Muktabai Satpute lodged her complaint	at
15.30	hours on 16/11/1987 on the basis of	which
investigation	was started. The accused came to	be

¶26

arrested. After completion of the investigation, the

¶27

accused came to be charged as aforesaid.

¶28

5.	In	support	of its	case, the prosecution	examined	as
many	as	15	witnesses.	The prosecution	story	basically
rests	on	the	evidence	of eye-witness	PW-2	Anjirabai
Satpute.		PW-10	Muktabai	Satpute, PW-4	Jalinder	Nalawade,
PW-6	Anjana	Pawar	and	PW-11 Ramchandra	Satpute	have
sought		to corr	oborate	PW-2 Anjirabai	Satpute’s	evidence.

¶29

: 4 :

¶30

PW-10	Muktabai	Satpute	is the	complainant. The		medical
evidence	comprises	evidenc	e of	PW-3 Dr.		Avinash
Lokhande,	PW-5	Dr.	Lakshminath	Bade, who had		conducted
post	mortem on	the	corpse of	the deceased,	PW-7	Dr.
Indrajit	Mohite, PW-8	Dr.	Anant	rao Patil and	PW-12	Rajiv
Joshi.	The	details	of the	investigation have	been	given
by P	W-14 Shivaji	Bhosale,	Police	Head Constable	and	PW-15

¶31

Laxman Shejal, Police Sub-Inspector, Umbraj Police Station.

¶32

6.	defence	of	the	accused	was	one	of	denial.	He
contended	that	he	was	falsely	impl	icated	on	account	of
enmity.	After	perusin	g	the	evidence		on	record,	the
learned	Sessions	Judg	e	accepted	the		prosecution	story	in

¶33

its entirety and convicted the accused. Hence, this appeal.

¶34

7.	We	have heard	Mr.	Arfan	Sait,	the	advocate	appointed
to appear	for the	appellant/accused,	and Mr.
Mhaispurka	r, learned	A.P.P. appearing fo	r the State.

¶35

8.	Mr.		Sait,		the	learned	counsel		for the	accused
contended		that		the	trial	court	erred	in	convicting	the
accused.		He		sub	mitted	that	PW-2		Anjirabai	Satpute’s
evidence		ought	not		to ha	ve been	relied		upon because	PW-2
Anjirabai		Satput	e’s		conduct	is un	natural.		Though	the
incident		is	said	to	have	been	taken	place	on	15/11/1987
at a	bout	7.30	p.m.	,	PW-2	Anjirabai	Satp	ute	has not	lodged
the	FIR.		The	FIR	came	to be	lodged	by	PW-10	Muktabai

¶36

: 5 :
Satpute on 16/11/1987 at about 15.30 hours.		The	fact
that PW-2 Anjirabai Satpute did not approach t	h	e	police
immediately though her husband was seriously			injured,
creates doubt about her credibility. He submi	tt	ed	that
PW-2 Anjirabai Satpute is an interested	w	itness	and
considering the admitted enmity, her evidence w	il	l	have
to be scrutinised cautiously. The learned		Judge	has
failed to do so. The learned counsel further		urg	ed that
the prosecution has examined all interested			witnesses.
Not a single independent witness has been e	x	amined	in
support of the prosecution case. He further			submitted
that the learned Sessions Judge ought to have		ignor	ed the
extra judicial confession made by PW-13 Mohan	M	ore	as he
has turned hostile. Mr. Sait also urged		tha	t the
recovery of stick also does not inspire confidence.			In
any event, submitted Mr. Sait even if the			prosecution
story is accepted, the offence under section 302		of	the
IPC is not at all attracted to the facts of	th	e	present
case. The intention to murder cannot be at	tr	ibuted	to

¶37

the accused. At best, the accused could be convicted

¶38

under section 304 (Part II) of the IPC.

¶39

9.	As	against	this, Mr.	Mhaispurkar,	the	learned	A.P.P.
contended	that	the	trial court	judgment	is	well	reasoned.
PW-2	A	njirabai	Satpute’s	evidence	inspires		confidence.
PW-2 A	njirabai	Satpute	being the	wife of	the	decease	d has
no	reason	to	implicate	anyone	else.		Necessary
corroboration		to	PW-2 Anjirabai	Satpute’s		evidence	is
found	in	the	evidence of the	neighbours.		Recovery	of

¶40

the

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: 6 : stick at the instance of the accused also supports prosecution case. Therefore, according to the

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learned

¶43

A.P.P., the order of conviction and sentence deserves to

¶44

be maintained.

¶45

10.	We have	given our	anxious	consi	deration to	the
submissions	advanced by	both	sides.	In	our opinion,	the
evidence	of PW-2	Anjirabai	Satpute	has	rightly	been
relied	upon by	the	prosecution.		Admittedly,	the
relations	between the	deceased	and the	a	ccused and	PW-10
Muktabai	Satpute were	strained.	PW-10		Muktabai	Satpute
is	his mother-in-law	and the	accused	was	suspecting	her

¶46

character. Similarly, he was also suspecting the

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character of his wife Sunita.

¶48

11.		The as	pect	of	strained	rela	tionship	has	not	been
challenged		before	us.		In	fact,	in	his	statement	under
section		311 of	the	Crim	inal	Proce	dure	Code,	the	accused
has		accepted th	at	he	suspec	ted	his	mothe	r-in-law and	his
wife	Sunita.	He	has	also	acc	epted	that	his	wife had	gone
to	her	parents’	place.		His	case	is	that	on account	of

¶49

this strained relationship, he has been falsely

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implicated.

¶51

12.		PW-2 Anjirabai	Satpute	has	given	a grap	hic		account
of	the	incident in	question.	Sh	e has	stated	that		she
served	food	to her	husband	at	about	7.30	p.m.		Her
husband		was sitting	towards	the	southern	side	while		he
was	taking	food. A	lantern was	in	front	of him.		She	has

¶52

: 7 :

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further		stated	that		the accused	came in	armed	with	a
stick a	nd	he	gave two		strokes of	the stick	on	the hea	d of
her	hu	sband.	She	r	aised cries	on account	of	which	PW-4
Jalinder		Nalawade,	PW-6		Anjana	Pawar and	PW	-11 Ra	mchandra
Satpute		rushed	there.		She sen	t Balabai	to	call	PW-10
Muktabai.			Accordingl	y	, PW-10	Muktabai	Satupte	also	came
there.			We find		the eviden	ce of t	his	witness c	onsistent.
Being		the	wife of	t	he deceased,	she is	the	most	natural
witness.		Her	presence		in the	house	can	hardly	be
doubted.		Mr.	Sait,		the lea	rned counsel	for	the	accused,
contended		tha	t PW-2		Anjirabai	Satpute has	not	lodged	FIR
immediately		afte	r the		incident	and,		therefore,	the
prosecution		story	has		become	doubtful.	We	are	not
impressed		by	this s	u	bmission for	the sim	ple	reason	that
PW-2		Anjirabai	Satp	u	te has i	n her ev	idence	stated	that
her	c	hildren	were slee	pi	ng in he	r house.	In	the	nature
of	thin	gs,	she must		have been	in a sta	te of	shock	and,
therefore,		if	she did		not rush	to lodge	a	complaint,	she
cannot		be	called	a	n unreliable	witness	merely	on	account
of	tha	t.	Besides,		in her	evidence, P	W-10	Muktabai	has
given		explanatio	n for		this delay.	PW-10		Muktabai	has
stated		that	Balutai	t	he daughter	of the	dece	ased cam	e to
her an	d	told	her tha	t	the acc	used had	beaten	the	deceased
and	that	s	he shou	l	d go to	the house	of	the	deceased.
PW-10	Mu	ktabai	rushed to		the hous	e of the	dec	eased.	PW-2
Anjirabai		Satpute	told h	e	r that	the accused	ha	d asked	her
husband	as	to	why his		wife was	sent alo	ng w	ith Sunita	and
at of	the the	same decea	time he sed. T		gave two he deceased	blows of was lying	stick on	on the the	head ground.

¶54

		: 8 :
There	was	a bump on his head. PW-1	0 Mu	ktabai has	further
stated	that	PW-6 Anjana Pawar, PW-4	Jalindar	Nalawade	and
PW-11	Ramc	handra Satpute were present in	her	house.	PW-4
Jalinder		Nalawade and PW-11 Ramchan	dra S	atpute	brought
the d	eceased	out of the house. They	asked	her son	Yuvraj
and	Dilip	Salunke to bring one ric	kshaw	from	Masur.
Rickshaw		was brought at about 8.45 p.m.	to	9.00	p.m.
The	deceas	ed was kept in the ricks	haw.	Then	PW-10
Muktabai		and PW-11 Ramchandra Satpute	took	the	deceased
to	the	primary health centre at Masur.		They	reached
Masur	at	about 10.00 p.m. The	doctor	examined	the
deceased		and advised that he should be	taken	to	Cottage
Hospital,		Karad. Therefore, they took	the	deceased	to
Cottage		Hospital, Karad, at about 11.30	p.m.	The	doctor
examined		the deceased. PW-10 Mu	ktabai	and	PW-11
Ramchand	ra	were in the hospital with	the	deceased	till

¶55

2.00 p.m. Thereafter, on Monday, PW-10 Muktabai came to

¶56

Masur and lodged an FIR at Masur Out Post.

¶57

In our opinion, since the condition of the deceased was deteriorating, time was spent by PW-10 Muktabai and others in shifting the deceased from one hospital to another. Nothing has come on record to show that this time was taken to make deliberation and for the purpose of concocting the prosecution story. We are satisfied with the explanation given by PW-10 Muktabai. In our opinion, therefore, the delay in lodging the FIR has no adverse impact on the prosecution story. It was argued that there is delay in recording the statements of the

¶58

: 9 :

¶59

witnesses.		Since	on accou	nt of	the	precar	ious	condition
of	the	deceased, PW	-10 Muktabai	could	lodge	FIR	at	3.30
p.m.		on 16/11/1987,	there is	bound to	be	some	delay	in
recording		statements.	There	is no	merit		in	the

¶60

submission that because of this delay, the prosecution

¶61

story is discredited.

¶62

14.		P	W	-	6 A	njana	bai, the	nei	ghbour	of	the	decease	d	has
stated	that		a	t	about		7.30 p.m.		she		heard	somebo	dy	saying
in	the		d	e	ceased’s h	ouse	as to		why	his	wife	was	sent	with
Sunita.	S	he			heard	crie	s of P	W-2	Anj	irabai.		She	came	out
of	her	h	o	u	se. S	he	saw the		accused	in	front	of	the	house
of	the		d	ec	eased	hold	ing a	stick	i	n	his	hand.		The
deceased	w	a	s		lying		on the fl	oor.		PW-10		Muktabai		came
there	and				PW-2		Anjirabai tol	d	her	that	the	accused		had
given	stick				blows on		the head	of	her	hus	band.	Mr.		Mane
has	pointed				out that		this witn	ess	did	n	ot	tell t	he	police

¶63

that she saw the accused in front of the deceased’s house

¶64

with a stick.

¶65

15.	PW-4	Ja	linder		Sat	pute,	another	ne	ighbour	of	the
deceased	has	stated	that		at	about	8.00		p.m.	he	was
taking	food	in	his hou	s	e.	He	he	ard	the	accused	saying
why	his wife	was	sent w	i	thout	his	con	sent.		Then he	heard
the	sound	of	something		being	hit	on	the	h	ead of	the
deceased.	H	e went	to t	h	e	house	of	the	decea	sed. He	saw
the	accused	coming	out o	f	t	he ho	use	of	the	deceased.	He
had	a stick	in	his han	d.		He	ran	tow	ards	southern	side.
According	to	this	witness,		he	then	e	ntered	the	house	of

¶66

: 10 :

¶67

the	deceased.	He	saw the		decea	sed	lying	on	the g	round.
PW-10	Muktabai	came	there.			PW-2	An	jirabai	told M	uktabai
that	the accused	had	beaten		her	husb	and	with	sticks.	In
his	police statement,	th	is wit	nes	s	has	not	state	d that	he
heard	some sound	as	something		was	hit	on	the	head of	the
deceased.	He	did	not tell		the	police	that	he	saw	the
accused	coming out	of	the	ho	use	of	the	deceased.	He	did

¶68

not tell the police that he had identified the deceased

¶69

in the light of lantern.

¶70

16.	PW-11	Ra	mchandra		Satpute	is	the	brot	her	of	the
deceased.		He	has	stated	that		after	hearing	cries	of	the
deceased,	he	went	to	his	house.		He	saw	th	e	accused
coming	from	oppo	site	direc	tion	with	a	stick.		He	ran
towards	the	S.T.		stand.	In	side	the	house,	he	saw	the
deceased	lying	on	the	floo	r.		PW-10	Mukta	bai	came	there.
PW-2	Anjirabai	told	her	that	the	ac	cused	had	given	a	blow
with	a stick	on	the	head	of	the	dec	eased.	T	hereafter,	he
along	with	others	took	the	dec	eased	to	the	hospit	al.	He
has	admitted	that	till	17/	11/1987		he	did	not	disclose	to

¶71

anybody that he saw the accused running. There are no

¶72

major omissions in his evidence.

¶73

17.	It	is true	that	PW-6	Anja	nabai	and PW	-4	Jalinder
have	not	stated be	fore	the	police	that	they	saw	the
accused	with	a stick	in	his	han	d.	The pros	ecution	has
also	examined	PW-13	M	ohan	More	to	establish	that	the
accused	had	made	extr	a-judicia	l		confession	to	him.
However,	this	witness	has	tur	ned	hostile.	But	even	if

¶74

: 11 :

¶75

the evidence of PW-6 Anjanabai, PW-4 Jalinder and PW-13 Mohan More is left out of consideration, in our opinion, the conviction of the accused can be based on other

¶76

evidence, particularly the evidence of PW-2 Anjirabai and

¶77

PW-10 Muktabai.

¶78

18.	At this	stage,	it is	also	necessary	to	see	what	is
the	medical ev	idence.	PW	-8 Dr.		Anantrao		Patil	has
examined	the	deceased	at	the pri	mary	health		centre	at
Masur.	Thereafter,	the	decease	d was	exa	mined	by	PW-7	Dr.
Indrajit	Mohite	at	Cottage	Hospital,		Karad.		As	the
condition	of	the	dece	ased	had	consider	ably	det	eriorated,
he	was shifted	to	the C	ivil Ho	spital,	Satara.		PW-12	Dr.
Rajiv	Joshi	examined	the	deceased	at	the		Civil	Hospital,
Satara.	Therea	fter,	the	deceased	was	taken	t	o	Sassoon
Hospital,	Pune.	PW-3	Dr.	A	vinash	Lokhand	e	examined	the
deceased	at	Sassoon	Hospital.		The	deceased		succumbed	to
his	injuries on	11/11/198	7 at	about	9.55	p.m.		PW-5	Dr.
Lakshminath	Bade	did	post-mo	rtem on	the	corpse		of	the

¶79

deceased. On external examination, PW-5 Dr. Bade found

¶80

the following injuries.

¶81

"1. Contusion on top of head on anterior

¶82

fontanelle measuring 3" x 2" dark red in

¶83

colour.

¶84

Abrasion in the centre of contusion

¶85

measuring 1" x 1/2 with scab."

¶86

: 12 :

¶87

19.	Dr.	Bade	h	as	stated	that	these	injuries were
antimortem.		When	the	stick,	arti	cle 1,	wh	ich is said to
have	been	recovered	at	the	instanc	e of	the	accused, was
shown	to	him,	he	has	stated	that	the	external injuries
are	possible	by	the bl	ow of	that	stick	if	the blow is

¶88

given with force. On internal examination, PW-5 Dr.

¶89

Bade found the following injuries.

¶90

"1. Haematoma, over both parietal and frontal region with swelling measuring 8" x 6" with blood clot. 2. Depressed fracture on top of skull involving both parietal bones and joining suture measuring 3" x 2".

¶91

Suture line fracture of left side of coronal future upto temporal bone.

¶92

Extra dural and sub-arachnoidal haemorrhage all over the brain."

¶93

According to him, all the internal injuries

¶94

correspond to the external injuries 1 and 2.

¶95

According to PW-5 Dr. Bade, the death was caused

¶96

: 13 :

¶97

due to fracture of skull bones and intra cranial haemorrhage. Accordingly, he prepared the post-mortem notes, which are at Ex-24. Dr. Bade was shown the X-Ray of the deceased in the court. He stated that taking into consideration the depressed fracture and sutured line fracture, the blow of the stick must have been given with a great force. He also stated that the injuries mentioned in column No.19 of the post-mortem report are sufficient in the ordinary course of nature to cause death, even individually. In the cross-examination, when stick article 1 was shown to him, he has stated that it is light in weight. He also stated that by a single blow

¶98

of stick dealt with force, depressed fracture and

¶99

fracture of suture line are possible.

¶100

21.	Once	it	is held on the basi	s of	t	h	e evi	dence		of	PW-2
Anjirabai		Satpute	and PW-10 Mu	ktabai	Sa	t	pute	th	a	t	the
accused,	gave	stic	k blows on the	head	of		the	de	c	eased	and
the	dece	ased	succumbed to	his	in	j	uries	two			days
thereafter,		the	only question that	needs			to	be			examined
is	whether		the accused is guilty	of	the			offence			under
section	302	o	f the IPC as held	by	th	e	trial		c	ourt	or
whether	he	could	be held guilty o	f a	l	e	sser	offence	.		Mr.
Sait,	le	arned	counsel for the	accuse	d		conten	ded		that	the
intention		to	murder the deceased	ca	n		never	be			attributed
to	the	accuse	d. He had only	used	the		stick	and		at	the
spur	of	the	moment in a fit of	anger	he		gave	a	b	low	on
the	dece	ased,	which undoubtedly pro	ved	to		be	fatal.			The
deceased		died	two days after the	inci	dent.			The			learned

¶101

: 14 :

¶102

counsel contended that if this court comes to a conclusion that the accused is guilty, he may be convicted for a lesser offence under section 304, Part II of the IPC.

¶103

22.	Mr.	Mhaispur	kar, th	e lear	ned	A	.P.P	.	for	the	State,
however,	vehe	mently	con	tended	that		the		prosecuti	on	has
clearly	made	out	its cas	e of	comm	iss	ion		of a	n	offence
under	section	302	of the	IPC	agai	nst		the	accused.		The
accused	caused	serious	in	juries	on		the		head	of	the
deceased	which	is a	vital	part o	f	the		bo	dy.	Intentio	n to
murder	must	be a	ttributed	to		th	e		accused	and	the
conviction	and	sentence	passed	by	the		tr	ial	court	may	not
be	disturbed.	In	supp	ort of	h	is		sub	mission,	the	learned
A.P.P.	relied	on	the	judgment	of		the		Supreme	Court	in
State of U.	P. vs. Vire	ndra Prasad	, 2004 Al	l M.R.
(Cri.) 850.

¶104

23.	W	e	have gi	ven our anx	io	us	consi	deration		to	the
submissi	ons	adv	anced by	both side	s.		In	our		opinion,	the
prosecuti	on	has	proved	its case		bey	ond	reasona	ble		doubt
that	the	accus	ed gave	two blow	s	on	the	hea	d	of	the
deceased	.	But	, we	are unable		to	concur	with		the	trial
court’s	view	that	the ac	cused is	g	uilty	of	murde	r.	I	t is
a	fact	that	the wife	of the ac	cu	sed	had	left	him	and	was
staying	with	her	father.	The d	ec	eased	had	sen	t	her	along
with	Sunita	to	her mat	rimonial hous	e.		This	see	ms	to	have
angered	t	he ac	cused.	In a fit		of	anger,	he	ba	rged	into
the	house	of	the decea	sed with	st	ick	and	gave		two	strokes

¶105

: 15 :

¶106

on	the head o	f the deceased.	PW-5 Dr. Bade has	stated
that	the stick	(article 1)	is a light weight stick.	If
at	all, the	accused wanted	to do away with the	deceased,
he	would not	have used	such a light weight	stick.
Unfortuna	tely, the	attack on	the head resulted in	the
death	of the	deceased.	In the peculiar facts of	the
case,	we ar	e unable to	come to the conclusion that	the
accused	intended	to commit	murder of the deceased.	In
our	opinion,	the judgment	in Virendra Prasad’s	case
(supra)	does not	further the	case of the prosecution.	In
that	case,	after considering	the relevant provisions	of
the	IPC, and	after referr	ing to the judgment of	the
Supreme	Court	in Virsa Sing	h v. State of Punjab,	AIR
1958	SC 465 ,	the Supreme	Court has held that even	if the
intention	of the	accused wa	s limited to the inflicti	on of
a bo	dily injury	sufficient to	cause death in the	ordinary
corse	of nature	, and did	not extend to the intention	of
causing	death,	the offence	would be murder. Her	e it

¶107

cannot be said that the accused had the intention to

¶108

inflict a bodily injury sufficient to cause death.

¶109

24.	In	th	e circum	stances,	in	our	opinion,	the	accused
will	have	to	be con	victed	under	section	304	Part	II of
the	IPC.	The	question	is	how	much	sentence	sho	uld be
imposed	on	him.	It	is	app	arent	from	his	statement
recorded	under	sectio	n 311	of	the	Code	that	the	accused’s
wife	is a	lunatic.	At	the	time	when	the sta	tement	under
section	311	was	recorded,	the	dau	ghter o	f the	acc	used was
six	month’s	old.	She	must	be,	by now	, about	16	years of

¶110

				: 16 :
her	age.			About 17 years are elapsed after the	date	of
the	incid	ent.		In such circumstances, in ou	r	opinion,
sentence		un	dergone	by the accused should be	treated	as
sentence		for		this offence but in addition to	that,	he
should	be		senten	ced to pay a fine and in defa	ult he	must
be	senten	ced		to suffer suitable imprisonment.	In	our
opinion,		a	fine	of Rs.7,000/- and in default of		payment
of	fine,		simple	imprisonment for one year will	serve	the
interest	of		justi	ce. If fine is paid, out	of	fine
amount,		a	sum	of Rs.5,000/- should be	paid	as
compensat	ion		to	PW-2 Anjirabai Satpute, the wife	of	the
deceased	a	nd	if	she is not alive to her heirs.	We	find
that t	he	le	arned	judge has also convicted the	accused	for
offence	pu	nis	hable	under section 452 of the	IPC	and
sentenced		him	to	suffer R.I. for one year and	to pay	a
fine	of		Rs.300/-	in default to sffer R.I. fo	r one	year.
In	our		opi	nion, that conviction should be	ma	intained.
However,		w	e	feel that the sentence already	u	ndergone
should	be		trea	ted as sentence for the of	fence	under

¶111

section 452 of the IPC. Hence, we pass the following

¶112

order:

¶113

O R D E R

¶114

"The	convictio	n	and		sentence	of	the
appellant/a	ccused		Jalinder		Devidas		Shinde
under	section	302	of	the	IPC	is set	aside.
Instead,	he	is	convic	ted	under	section	304
Part	II of	the	IPC.		Sentence	undergone	by

¶115

: 17 :

¶116

him	shall be treated	as sen	tence for	that
offence.	In addition	to	that, he	is
sentenced	for that offenc	e to	pay a fine	of
Rs.7,000/-.	In default	of	payment of	fine,
he	shall undergo	simple	imprisonment	for
one	year. If the	fine is	paid, out of	the
fine	amount, a sum	of R	s.5,000/- should	be
paid	as compensation	to	PW-2 A	njirabai
Satpute,	the wife of	the dece	ased if she	is
alive	and if she is	not, it	should be	paid
to	PW-2 Anjirabai’s	heirs.	The con	viction
and	sentence of the	accused	under	section
452 of	the IPC is	maintained.	However,	the
sentence	already under	gone by	the	accused
should	be treated as	sentence	for the	same.

¶117

With this modification of the impugned

¶118

order, the appeal is disposed of."

¶119

(SMT. RANJANA DESAI, J.)

¶120

(A.S. OKA, J.)

Jalinder Devidas Shinde. v. State of Maharashtra.

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Jalinder Devidas Shinde. v. State of Maharashtra.

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