Partly allowed

Vicky Ganpat Lad v. the State of Maharashtra

Bombay HC4 Apr 2008APEAL/205/2006

Case brief

AI extract

What is this about?

High Court allowed both appeals partly, setting aside convictions for murder under Section 302 IPC and convicting appellants under Section 304-II IPC (culpable homicide not amounting to murder) based on lack of intent to cause death.

What did the court decide?

Conviction under Section 302 IPC set aside; appellants convicted under Section 304-II IPC and sentenced to period of imprisonment already undergone.

Vicky Ganpat Lad Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2008)

¶1

 .[1].

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL APPEAL NO.205 OF 2006

¶4

 Shri.Vicky Ganpat Lad, ]
 Age : 22 years, ]
 R/at : Balkumb, Devramnagar, ]
 Adjacent to Trupti Mutton Shop ]
 Thane. ] ..Appellant.
 (orig.Accused No.1)
 Versus

¶5

 The State of Maharashtra. ] ..Respondent.

¶6

 . . .
 Mr.Niranjan Mundargi, Adv. i/b. Smt.Asmita
 Sarangdhar, Adv. for the Appellant.
 Smt.M.M.Deshmukh, APP, for the Respondent-State.

¶7

 WITH
CRIMINAL APPEAL NO.1233 OF 2005

¶8

 Shri.Jitu Lalchand Sonkar, ]
 Age : 21 years, ]
 R/at : Waman Nagar, Dongripada,]
 Ghodbundar Road, Thane. ] ..Appellant.
 (orig.Accused No.2)
 Versus

¶9

 The State of Maharashtra. ] ..Respondent.

¶10

 . . .
 Mr.Manoj J. Bhatt, Adv. for the Appellant.
 Mr.P.S.Hingorani, APP, for the State.

¶11

CORAM : F.I.REBELLO AND
SMT.V.K.TAHILRAMANI, JJ.

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 .[2].

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DATED : APRIL 04, 2008.

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ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) :

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 1. Appellant-orig.accused No.1 Vicky Ganpat
 Lad has preferred Criminal Appeal No.205 of 2006
 and appellant-orig.accused No.2 Jitu Lalchand
 Sonkar has preferred Criminal Appeal No.1233 of
 2005.

¶16

 2. In both these appeals, the appellants have
 challenged the judgment and order dated 17th
 December, 2005 passed by the learned IIIrd
 Additional Sessions Judge, Thane in Sessions Case
 No.30 of 2004. By the said judgment and order,
 the learned Sessions Judge, convicted both the
 appellants under Section 302 read with 34 of
 Indian Penal Code and sentenced them to
 imprisonment for life and to pay fine of

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 Rs.1000/-, in default, RI for three months.

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 3. The prosecution case, briefly stated, is as
 under :

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 . The incident took place on 17.9.2003 at

¶20

 .[3].

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 about 10:30 p.m.. The said incident took place

¶22

 near the shop of the complainant PW-2 Shivaji
 Chavan. The accused persons were known to the
 complainant. Accused No.1 Vicky Lad was armed
 with iron pipe (article 9) and accused No.2 Jitu
 Sonkar was armed with iron rod (article 10).
 Accused No.1-Vicky assaulted Lalchand Prajapati
 (deceased) on his head with iron pipe and accused

¶23

 No.2-Jitu also assaulted deceased Lalchand
 Prajapati. At the time of the incident, accused

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 No.2-Jitu was also abusing Lalchand and saying

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 "Maro, Usko Jada Charabi Ho Gai Hai". Lalchand
 sustained injury on his head. Thereafter, the
 complainant and others took Lalchand to Civil
 Hospital. Lalchand was admitted in the hospital.
 However, on the next day at about 6:00 a.m.,
 Lalchand died in the hospital. During the course
 of investigation the body of Lalchand was sent for
 post-mortem. Two injuries were found on the body
 of deceased Lalchand i.e. : (1) sutured CLW over
 occipito-parital region semicircular seven
 stitches & (2) small contusion over right anterior
 chest wall 2 cms X 2 cms.. After conclusion of
 the investigation, charge-sheet came to be filed.

¶26

 .[4].

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 In due course, the case was committed to the Court

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 of Session.

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 4. The charge came to be framed against both
 the appellants under Section 302 read with 34 of
 IPC. Both the appellants pleaded not guilty to
 the said charge and claimed to be tried. The
 defence of the appellants is that of total denial
 and false implication. After going through the
 evidence adduced by the prosecution, the learned
 Sessions Judge convicted and sentenced the
 appellants, as stated in Para 1 above. Hence,
 these Appeals.

¶30

 5. We have heard Mr.Manoj Bhatt learned
 Advocate for the appellant-orig.accused No.2 Jitu
 Sonkar in Criminal Appeal No.1233 of 2005,
 Mr.Niranjan Mundargi learned Advocate for the
 appellant-orig.accused No.1 Vicky Lad in Criminal
 Appeal No.205 of 2006, and learned APPs for the
 State. We have also perused the judgment and
 order passed by the learned Sessions Judge as well
 as the record pertaining to the present case.
 After giving our anxious consideration to the

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 .[5].

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 matter, we have reached to the conclusion that the
 appellants ought to have been convicted under
 Section 304-II IPC and their conviction under
 Section 302 IPC cannot be sustained.

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 6. So far as the involvement of the appellants
 in the incident is concerned, we are satisfied
 that it has been established to the hilt through
 the credible ocular account rendered by the
 complainant PW-2 Shivaji Chavan and PW-4 Sonu
 Chavan. The complainant PW-2 Shivaji has stated
 that on 17.9.2003 at about 10:30 p.m. he was
 closing his fish shop. At that time he saw that
 accused No.1-Vicky assaulted Lalchand (deceased)
 by means of iron pipe on his head and accused
 No.2-Jitu assaulted Lalchand by means of iron rod.
 At that time accused No.2-Jitu was also abusing
 Lalchand and saying "Maro, Usko Jada Charabi Ho
 Gai Hai". Lalchand sustained injury on his head.
 Thereafter, the complainant and others took
 Lalchand to Civil Hospital. PW-2 Shivaji has
 identified both the accused before the Court as
 well as he has identified the weapons before the
 Court. The evidence of PW-4 Sonu is on the same

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 .[6].

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 line as that of PW-2 Shivaji PW-4 Sonu has also
 identified the accused persons as well as the
 weapons before the Court.

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 7. We have closely examined the ocular
 accounts furnished by PW-2 Shivaji and PW-4 Sonu
 and we find that it inspires confidence. The
 manner of assault as disclosed by these witnesses
 is corroborated by the external and internal
 injuries found on the person of deceased Lalchand
 by PW-5 Dr.Tejaswini Bhagat. Dr.Bhagat has stated
 that during the post-mortem she noticed two
 external injuries on the body of deceased Lalchand
 which are as under : (1) sutured CLW over
 occipito-parital region semicircular seven
 stitches; and (2) small contusion over right
 anterior chest wall 2 cms X 2 cms. Dr.Bhagat has
 further stated that on internal examination she

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 found the following injuries on the body of
 deceased Lalchand : (1) haematoma under the scalp

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 at occipetoparital region - 6 cms x 4 cms, (2)
 left temporal bone fracture, and (3) intracranial
 haemorrhage with subdural haematoma of size 3 cms
 x 2 cms with pontine haemorrhage is noted. In the

¶39

 .[7].

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 opinion of PW-5 Dr.Bhagat the cause of death is
 due to haemorrhagic shock due to intracranial
 haemorrhage with subdural haematoma with fractured
 skull. Dr.Bhagat has categorically stated that if
 anybody gives blow of iron pipe on the head then
 injury no.1 mentioned in column no.17 is possible.
 She has further stated that injury no.1 mentioned
 in column no.17 is sufficient to cause the death
 of person. In the opinion of PW-5 Dr.Bhagat the
 injuries sustained by the deceased are possible by
 iron pipe (article 9) and iron rod (article 10).

¶41

 8. In the present case, there is recovery of
 iron pipe (article 9) at the instance of accused
 No.1-Vicky. Panch witness PW-8 Rajeshkumar Gupta
 has deposed about the recovery of iron pipe at the
 instance of accused No.1-Vicky. The said weapon
 was sent to Chemical Analyser and the CA report
 shows that it was stained with blood of "O" group
 i.e. blood group of the deceased Lalchand. There
 is also recovery of iron rod (article 10) at the
 instance of accused No.2-Jitu. Panch witness PW-7
 Anil Jagtap has deposed about the said recovery.
 However, it may be stated here that no blood was

¶42

 .[8].

¶43

 detected on the said weapon. Both the accused
 came to be arrested on the very next day of
 incident. Clothes of the accused persons came to
 be seized under panchnama (Exh.41). Clothes were
 sent to CA. T-shirt of accused No.2-Jitu was
 found to have stains of blood of "O" group.
 Finding of stains of "O" blood group on the
 T-shirt of accused No.2-Jitu and the iron pipe
 would also be a circumstance which would go
 against the appellants.

¶44

 9. Thus it is seen that the evidence of eye
 witnesses PW-2 Shivaji and PW-4 Sonu is
 corroborated not only by the medical evidence,
 but, it also receives some support from the CA
 report.

¶45

 10. This leaves us with only one question viz.,
 that of the offence. The learned Sessions Judge
 has convicted both the appellants for the offence
 under Section 302 read with 34 of IPC. However,
 the learned Advocates for the appellants have
 stated that the learned Sessions Judge erred in
 convicting the appellants under Section 302 IPC,

¶46

 .[9].

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 instead the appellants ought to have been

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 convicted under Section 304-II IPC. In support of
 their contentions, reliance is placed on various
 decisions. The first decision on which reliance

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 is placed is in the case of Mavila Thamban Nambiar

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v. State of Kerala, reported in 1997 Cri.L.J.

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831. The learned Advocates for the appellants
 submitted that in the said case though the accused
 had given a blow with a pair of scissors on the
 vital part of the body, yet the conviction under
 Section 302 was altered to one under Section
 304-II. We have carefully perused the said
 decision and we find that in the said case the
 accused had given just one blow on the body. The
 learned Advocates also placed reliance on the
 decision of this Court in the case of Gopal

¶52

Sakharam Jadhav v. State of Maharashtra, reported
 in 2000 (1) Mh.L.J. 242. In the said case, the
 accused had inflicted fist blow and kick blows on
 the deceased and thereafter he picked up a brick

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 and assaulted the deceased with the brick on the
 chest. In such circumstances, it was held that

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 the case would not fall under Section 302 of IPC

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 but would fall under Section 304-II of IPC. In

¶56

 .[10].

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 this connection, it would be pertinent to refer to
 the observations of the Supreme Court in the case
 of Jawahar Lal and another v. State of Punjab
 reported in AIR 1983 SC 284. In the said case,
 the facts were that the appellant gave one dagger
 blow on the chest of the latter when he passed by
 the front of his shop and the resultant injury in
 the opinion of the Autopsy Surgeon, was sufficient
 in the ordinary course of nature to cause the
 death of the deceased. The trial court, convicted
 Jawaharlal for an offence under Section 302 IPC,
 and the High Court dismissed his appeal. It was
 urged by the prosecution that the act of
 Jawaharlal would fall squarely within the ambit of
 clause thirdly of Section 300 IPC. The Supreme
 Court in para 15 observed thus :-

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 "Merely because the blow landed on a
 particular spot on the body, divorced
 from the circumstances in which the
 blow was given, it would be hazardous
 to say that the 1st appellant intended
 to cause that particular injury."

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 .[11].

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 . The Apex Court took the view that there was
 no intention on the part of Jawaharlal to inflict
 the injury which he inflicted and that being so,
 his act would not fall within clause thirdly of
 Sec.300 IPC but instead would fall under Section
 304(II) IPC.

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 11. In the present case, as far as accused

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 No.2-Jitu is concerned, no role is attributed to
 him of assault on the head of the deceased
 Lalchand. Lalchand died only on account of
 assault on the head. The medical evidence shows
 that there was only one injury on the head. Thus,
 from the evidence it is seen that only one blow
 was given by the accused and that blow landed on
 the head of deceased Lalchand. Lalchand did not
 die on the spot, but he expired on the next day.
 If accused No.1-Vicky intended to cause death of
 Lalchand, he would have continued to give blow to
 Lalchand till Lalchand died. However, accused
 No.1-Vicky had given only one blow. This shows
 that accused No.1-Vicky did not intend to cause
 death of Lalchand and at the most it can only be
 said that he had the knowledge that his act may

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 .[12].

¶64

 cause death of Lalchand, however, he did not have
 the intention to do so. In view of these facts,
 in our opinion, the case would fall under Section
 304-II IPC.

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 12. The learned APP has placed reliance on two
 decisions of the Supreme Court in support of her
 contention that even though one blow was given by
 the accused person, the case would still fall
 under Section 302 IPC. The said decisions are in
 the case of State of U.P. v. Premi and others
 reported in AIR 2003 SUPREME COURT 1750 and in the
 case of State of Rajasthan v. Dhool Singh
 reported in (2004) 12 SUPREME COURT CASES 546. In
 the case of Premi (supra) nodoubt only one blow
 was inflicted on the head of the deceased,
 however, it is seen that the accused persons had
 entered into the house of the deceased at midnight
 and they were armed with country-made pistol and
 thereafter they had inflicted injury on the head.
 The very fact that the accused persons in the said
 case entered the house of the deceased armed with
 deadly weapon and thereafter caused him injury,
 shows that their intention was to cause death of

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 .[13].

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 the person. In the present case, the accused were
 walking by road and thereafter on seeing Lalchand
 they have assaulted him in the manner stated
 above. The circumstances in the case of Premi
 (supra) being quite different from the facts of
 the present case, the said decision would not
 apply to the facts of the present case.

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 . In the case of Dhool Singh (supra) a single
 blow was given, however, the said blow was given
 with a sword on the neck of the victim. The sword
 measured 3 ft in length and though the blow was
 solitary blow it resulted in almost instantaneous
 death. In the present case we have already
 observed above that Lalchand expired on the next
 day of the incident. The nature of the weapon and
 the other circumstances in the case of Dhool Singh
 (supra) being entirely different, the said
 decision also would not apply to the facts of the
 present case. Hence, it would of no help to the
 prosecution.

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 13. In view of the discussions in the foregoing
 paras, we are of the opinion that the case falls

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 .[14].

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 under Section 304-II of IPC.

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 14. In the result, Appeals are partly allowed.
 The conviction and sentence of both the appellants
 i.e. orig. accused No.2 Jitu Lalchand Sonkar and
 orig.accused No.1 Vicky Ganpat Lad under Section
 302 read with 34 of IPC is set-aside. Instead the
 appellants are convicted under Section 304-II read
 with 34 of IPC and they are sentenced to the
 period of imprisonment already undergone by them.

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(SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.)

Vicky Ganpat Lad v. the State of Maharashtra

Case brief

What is this about?

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Vicky Ganpat Lad v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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