Dismissed

Barku @ Prakash Waman Shinde v. the State of Maharashtra

Bombay HC7 Feb 2012APEAL/205/2010

Case brief

AI extract

What is this about?

The High Court dismissed appeals against a conviction for culpable homicide (not murder) under IPC Section 304 Part II. The court held the incident arose from a sudden quarrel without premeditation. The mother was acquitted due to insufficient evidence.

What did the court decide?

All three criminal appeals stand dismissed; conviction under Section 304 Part II IPC is upheld; sentence of 10 years imprisonment confirmed.

Barku @ Prakash Waman Shinde Vs the State of… — Murder and Culpable Homicide | Bombay HC (2012)

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Cri. Appeal 205/10, 144 & 145/11

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 205 OF 2010

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Barku @ Prakash s/o. Waman Shinde, Age 19 years, R/o. Takli Manur, Tq. Pathardi, Dist. Ahmednagar. ....Appellant.

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Versus

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The State of Maharashtra

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....Respondent.

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Mr. B.R. Jaybhay, Advocate for appellant. Mr. V.D. Rakh, A.P.P. for State/respondent.

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WITH CRIMINAL APPEAL NO. 144 OF 2011

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The State of Maharashtra ....Appellant.

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Versus

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Barku @ Prakash s/o. Waman Shinde, Age 19 years, R/o. Takli Manur, Tq. Pathardi, Dist. Ahmednagar. ....Respondent.

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Mr. V.D. Rakh, A.P.P. for appellant. Mr. B.R. Jaybhay, Advocate for respondent.

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WITH CRIMINAL APPEAL NO. 145 OF 2011

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The State of Maharashtra ....Appellant. Versus

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Shashikala Waman Shinde, Age 39 years, R/o. Takli Manur, Tq. Pathardi, Dist. Ahmednagar. ....Respondent.

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Cri. Appeal 205/10, 144 & 145/11

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Mr. V.D. Rakh, A.P.P. for appellant.

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Mr. B.R. Jaybhay, Advocate for respondent.

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CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ.

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DATED : 7th February, 2012.

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JUDGMENT : [PER T.V. NALAWADE, J.]

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All the three appeals are filed against the judgment and order of Additional Sessions Judge, Ahmednagar, delivered in Sessions Case No. 100/2008. The Sessions Court has convicted and sentenced the appellant from the first appeal for offence punishable under section 304, Part II, of the Indian Penal Code ("I.P.C." for short) when he was charged for other offences also, including the offence punishable under section 302 r/w. 34 of I.P.C. The second appeal is filed by the State for conviction under section 302 r/w. 34 of I.P.C. Accused No. 2 is the mother of accused No. 1 and as she is acquitted of all the offences, the State has filed the third appeal against the decision of acquittal. Both the sides are heard. This Court has perused the paper book and the original record.

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At the relevant time, accused No. 1 was aged about 19 years and he was living with his mother, accused No. 2, in

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Cri. Appeal 205/10, 144 & 145/11

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village Takali, Tahsil Pathardi, District Ahmednagar. Deceased Atmaram was nephew of complainant Vithal. The house of Atmaram is situated on the backside of the house of accused No. 1. The house of Vithal is situated in the vicinity of these houses. The deceased was uncle of witness Sangeeta Karande. Sangeeta was living with the deceased as her parents are dead. Sangeeta was aged about 18 years at the relevant time.

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In the vicinity of the houses of the deceased and the accused, there is a public water tap. The incident took place on 16.3.2008 at about 7-00 a.m. near this water tap. Deceased and Sangeeta had gone to water tap to take water. When one drum was filled with water, Sangeeta lifted the drum and she started proceeding towards home. The deceased put the second drum under the water tap for filling it and then the quarrel started between the deceased and accused. Both the accused had come there for taking water and the quarrel started over taking of the water. When Sangeeta was leaving for home, she heard the noise of the quarrel and so she looked back. Sangeeta noticed that both the accused were quarreling with deceased Atmaram and accused No. 2 was instigating accused No. 1 to teach lesson to Atmaram by saying that, "Baghato kai, ha far majla aahe, yacha bet bagha" [c?krks dk;] gk Qkj ektyk vkgs] ;kpk csr c?k]. The accused No. 1 also

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Cri. Appeal 205/10, 144 & 145/11

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said to Atmaram that Atmaram should not dare to have quarrel with him, otherwise he would finish Atmaram and he said to Atmaram that, "Tu maje nadi lagto kai, mi tuza kata kadhato" [ rw ek>s uknh ykxrks dk;] eh rw>k dkVk dk<rks]. During quarrel, accused No. 1 gave blow of knife on the back of Atmaram and then he gave two blows of knife on the abdomen of Atmaram. Sangeeta raised hue and cry. In the incident, accused No. 2 also held the deceased and she gave beating to the deceased with fist blows and kicks.

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The persons living in the neighbourhood of the water tap, including the grandfather of Sangeeta viz. Raghunath, came there. The persons, who came to the spot, did not intervene in the incident due to fear of accused No. 1. When many persons gathered, accused No. 1 ran away and accused No. 2 also left the spot of offence.

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Raghunath and others shifted injured Atmaram to Rural Hospital, Patherdi, in a private jeep. The doctor from the hospital declared that Atmaram was already dead. Vithal Karande, brother of Raghunath, had also come to the spot, as according to him, Sangeeta had called him to spot after starting of the quarrel. Vithal gave report to Pathardi Police Station that he had witnessed

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Cri. Appeal 205/10, 144 & 145/11

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the incident and in his presence accused No. 1 Barku and his mother murdered Atmaram. The crime at Cr. No. 46/2008 came to be registered for the offence of murder and for other offences punishable under sections 504, 506 r/w. 34 of I.P.C. against the accused Nos. 1 and 2.

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P.S.I. Pakhare, who was attached to Pathardi Police Station, took over the investigation of the case. He prepared the enquest panchanama of the dead body and took over the clothes of the deceased under panchanama. He visited the spot and he prepared the spot panchanama. He recorded statements of some witnesses on 16.3.2008 and he recorded statements of others on 17.3.2008. Accused No. 2 came to be arrested at about 8.30 p.m. on 16th itself.

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Pakhare referred the dead body for P.M. examination on 16.3.2008. Doctor Gore conducted P.M. examination on the dead body of Atmaram on 16th between 12.30 p.m. and 1.45 p.m. Doctor found one injury on back and two injuries on the abdomen. The injuries on the abdomen had caused damage to the internal organs including aorta. Doctor gave opinion that death took place due to cardiorespiratory failure due to hemorrhagic shock due to rupture of aorta.

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Cri. Appeal 205/10, 144 & 145/11

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Accused No. 1 was absconding for some time. He came to be arrested on 19.3.2008. As there were blood stains on his T-shirt, his clothes came to be taken over under the panchanama. While in police custody accused gave statement under section 27 of the Evidence Act and then the weapon, knife came to be recovered. Panchanama of the seizure of knife came to be prepared by Pakhare. The weapon, clothes of accused and clothes of deceased came to be forwarded to C.A. Office. Human blood was detected on T-shirt of the accused and blood of group "B" was detected on the clothes of the deceased and also on the knife. After completion of investigation, Pakhare filed chargesheet against the accused for the offences punishable under sections 302, 504, 506 r/w. 34 of I.P.C.

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In the Trial Court the charge was framed against both the accused for aforesaid offences. Accused pleaded not guilty. For proving the charges, prosecution examined in all eight witnesses. The Trial Court has believed both the eye witnesses viz. Vithal (PW 2) and Sangeeta (PW 4). The Trial Court has considered the circumstances, evidence like recovery of weapon at the instance of accused No. 1, and presence of blood stains on the T- shirt of the accused. The Trial Court has acquitted accused No. 2,

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by holding that the evidence as against her is not reliable. The Trial Court has come to the conclusion that the incident took place all of a sudden in petty quarrel, which was started on the count of taking of water from public water tap and so only for the offence punishable under section 304, Part II, of I.P.C. the accused No. 1 is convicted.

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For the State, it was submitted in this Court that two blows of knife were given on abdomen and they cut the vital internal organs. It was submitted that even the Trial Court has observed that the accused No. 1 had chosen that part of the body for making the assault and in view of these circumstances, accused No. 1 need to be convicted and sentenced for offence punishable under section 302 of I.P.C. It was submitted that there is specific evidence as against accused No. 2 that, she gave instigation and she also took part in the incident and so she needs to be convicted and sentenced for the offence punishable under section 302 of I.P.C.

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For the accused, it was submitted that the evidence is not at all reliable and even the conviction given to accused No. 1 needs to be set aside.

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Cri. Appeal 205/10, 144 & 145/11

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As the Trial Court has convicted accused No. 1 for offence punishable under section 304, Part II, of I.P.C., the relevant provisions in this regard need to be seen first. The definition of murder given in section 300 starts with exceptions that "Except in the cases hereinafter excepted, culpable homicide is murder". The provisions of section 300, thus show that even if ingredients of murder as described in four clauses of section 300 of I.P.C. are established, if there are circumstances, which bring the offence under any of the five exceptions given in section 300 of I.P.C., the offence is mitigated and it needs to be treated as culpable homicide not amounting to murder.

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Section 101 of the Evidence Act shows that the onus of proof of all the ingredients of offence like murder is upon the prosecution and unless, it discharges that onus, it cannot succeed. For proving the ingredients of offence of murder, the prosecution can rely on both direct and circumstantial evidence. When the incident shows that there were eye witnesses, it is essential for the State to examine the witnesses for unfolding of narrative, on which the prosecution is based. Thus, at first place, it is the State, which is required to establish the incident. In section 105 of the Evidence Act, it is provided that the burden of proving that the case of accused comes within exception is upon

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Cri. Appeal 205/10, 144 & 145/11

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the accused. Thus, if the State is able to establish the offence of murder, it becomes necessary for the accused to show that there are circumstances, which bring the case within one of the five exceptions given in section 300 of I.P.C.

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Exception No. 4 appears to be used by the Trial Court in the present case. The exception No. 4 with the explanation is as under :-

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"Exception 4.-Culpable homicide is not murder if it is committed without premeditation 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.

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Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. "

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The aforesaid provision shows that for bringing the case under this exception, following things are required to exist, (i) premeditation, (ii) sudden fight, (iii) incident in heat of passion, (iv) the offender did not take undue advantage and (v) the offender did not act in a cruel or unusual manner.

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All the aforesaid requirements are questions of facts.

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Cri. Appeal 205/10, 144 & 145/11

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In view of section 105 of the Evidence Act, it can be said that the onus of proving the existence of aforesaid facts is on the accused, in ordinary course. However, it is well settled that the onus is not of the same kind as burden placed on the prosecution to prove the guilt beyond reasonable doubt. Though, in ordinary course, the accused is required to show that the aforesaid facts existed, from the prosecution evidence itself, the Court can come to the conclusion that the accused is entitled to benefit of an exception. When the record creates such probability, the Court is expected to give the benefit of such probability to the accused even though the accused has not pleaded exception or the accused has not relied on it.

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The aforesaid provisions show that for bringing the case under exception No. 4 of section 300 of I.P.C., it is required to be first shown that there was no premeditation. The premeditation can be of killing or even of the act done by the accused. Premeditation can be established by positive evidence or by circumstantial evidence. If, there is the evidence of formal grudge, previous threat or previous expression of ill feeling, the inference of premeditation can be drawn. Similarly the act of procuring or bringing weapon or even selecting the weapon, when many weapons were available can be established for proving

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Cri. Appeal 205/10, 144 & 145/11

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premeditation. All these things are required to be ruled out for giving the benefit of exception No. 4.

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For proving of sudden fight, there should be occurrence of violence on both the sides. In some cases, there may be evidence of sudden quarrel and there may not be reliable and acceptable evidence as to how the incident started, as to who was the aggressor and in such a case also, exception No. 4 can be used. It can be said that in ordinary course, when a person carries a dangerous weapon like knife and he uses the knife against an unarmed person, it is desirable that the exception is not applied. However, when there is no reliable evidence as to the starting of the incident or as to what happened throughout the incident, it becomes difficult to infer that the accused was already in possession of dangerous weapon. Thus, when there is the possibility that the quarrel was there and during the quarrel the incident took place, the prosecution needs to establish the ingredients of section 300 of I.P.C. If, there is no clinching evidence on starting of the incident or on the different stages of incident, reasonable doubt may arise even about the case of prosecution regarding the ingredients of section 300 of I.P.C.

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If exception No. 4 is considered in relation to the 4

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Cri. Appeal 205/10, 144 & 145/11

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clause of section 300 of I.P.C., it can be said that it was the affair between the accused, who assaulted and the deceased and so third person like accused No. 2 cannot be said to have common intention. Thus, in such cases, it is difficult to use section 34 against the co-accused.

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The evidence of a case like present one needs to be appreciated in the light of aforesaid provisions of law. Sangeeta (PW 4) was living in the house of deceased and so she can be believed in respect of version that she and the deceased had together come to the water tap at about 7.00 a.m. on that day. Sangeeta has deposed that they had taken two drums and when one drum was filled with water, she started taking the drum to home and the deceased placed the second drum under water tap. She has deposed that when she was returning, she heard abuses given by accused Nos. 1 and 2 to the deceased and so she ran to the house of her grandfather Vithal and called Vithal to the spot of offence. She has deposed that when she and Vithal reached the spot, the main incident took place.

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Sangeeta (PW 4) has deposed that in the main incident the accused No. 2 gave instigation to accused No. 1 by saying that deceased had become arrogant and so he should be

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Cri. Appeal 205/10, 144 & 145/11

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finished. (vkRekjke Qkj ektyk vkgs] R;kpk csr ikgk). She has deposed that accused No. 1 then said that he would end the life of deceased (rq>k dkVkp dk<rks). This witness has further deposed that accused No. 1 then gave one blow of knife on the back of deceased and two blows of knife into the stomach/abdomen of the deceased. She has deposed that accused No. 2 then caught hold of the deceased and she gave beating to the deceased by fist blows and kicks. Sangeeta has deposed that other witnesses like Kacharu Gaikwad, Mathurabai Thorat and Sahadeo Shinde gathered there and accused Nos. 1 and 2 went away. She has deposed that due to fear of accused No. 1, witnesses did not intervene in the incident. She has deposed that her grandfather Raghunath shifted Atmaram to hospital.

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During cross examination of Sangeeta (PW 4) the defence confronted to her police statement dated 17.3.2008. The important omissions in relation to police statement are as under :-

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(i) Sangeeta had not stated before the police that when abusing started, she went to house of her grandfather Vithal and she called Vithal to the spot. (ii) Sangeeta had not stated before police that Vithal was present on the spot during the incident and he witnessed the main incident of assault.

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Cri. Appeal 205/10, 144 & 145/11

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These omissions are duly proved by the defence in the evidence of Investigation Officer Pakhare (PW 7). These omissions are material as the first informant Vithal (PW 2) has given evidence that he went to the spot only because Sangeeta (PW 4) had come to his house and she had taken him to the spot of offence.

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Vithal (PW 2) has given evidence that after learning about the quarrel from Sangeeta, he went to the spot with brother Raghunath and wife of Raghunath namely Kalawati. Other evidence of Vithal is similar to the evidence of Sangeeta. He has given evidence that Atmaram was shifted to hospital, but the doctor declared that Atmaram was already dead. The report given by Vithal on the same day at about 10.45 a.m. to police is duly proved as Exh. 13. Exh. 13 is consistent on material points with the evidence of Vithal. No specific number of blows were mentioned in Exh. 13 when Vithal has given evidence on the number of blows given to Atmaram. However, it was mentioned in F.I.R. that the blows were given on back and abdomen and they were many and they were given by using knife.

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The evidence of Sangeeta (PW 4) shows that the house of accused is situated on the backside of the house of

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Cri. Appeal 205/10, 144 & 145/11

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deceased. Her evidence shows that the spot of offence is not visible from their house as there is wall in between. The spot panchanama at Exh. 18 is proved in the evidence of panch witness Kale (PW 1) and there is also evidence of Investigating Officer Pakhare (PW 7). Though Kale (PW 1) is said to be her relative, there is no reason to disbelieve his evidence, as the evidence of spot panchanama is not against the defence. In the spot panchanama, there is mention that the house of deceased is situated at the distance of 500 fts. from the spot of offence. Unfortunately, the Investigating Officer did not get prepared map of scene of offence from the revenue authorities to show the distance between the houses of relatives and the spot of offence. From the evidence on record, inference is possible that only Sangeeta could have called Vithal to the spot.

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The evidence and circumstances discussed above show that there are material omissions in relation to previous statement of Sangeeta, in the evidence of Sangeeta. In view of these material omissions, the evidence of Vithal cannot be safely accepted as the evidence of eye witness in such a serious case. Further, the evidence of Vithal shows that there is no circumstantial check to his evidence. There is no record that Vithal had admitted Atmaram to Rural Hospital. The clothes of

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Vithal were not taken over by the police and it is not his case that his clothes were stained with blood. In view of these circumstances, it can be inferred that others learnt about the incident when the incident was over and Vithal was not eye witness to the incident. The other witnesses, who can be called as independent witnesses, are not examined by prosecution. In view of these circumstances, this Court holds that the evidence of Vithal and F.I.R. are useful to prosecution only to prove that immediately after the incident everybody knew that accused No. 1 had assaulted Atmaram and so the report was given accordingly.

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The crime was registered at 10.45 a.m. on 16.3.2008. The evidence of Investigating Officer (PW 7) and the enquest panchanama show that police started preparing enquest etc. at about 11 a.m. Evidence of Dr. Gore (PW 5), who conducted P.M. examination on the dead body of Atmaram, shows that doctor found one surface wound on back, one incised wound at the level of iliac crest, and one stab wound near the common iliac junction. Doctor has described these injuries as antemortem in nature. The two injuries which were inflected on the abdomen of deceased had caused injuries to internal organs like jejunum, ileum and aorta.

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Cri. Appeal 205/10, 144 & 145/11

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As per the evidence of Dr. Gore, there was some liquid in stomach of the deceased. On the basis of this circumstance, the doctor has deposed that the death took place within four hours of the last intake of the food. Doctor has deposed that due to injury to aorta there was loss of blood and death took place due to cardio respiratory failure due to hemorrhagic shock due to rupture of aorta. No specific evidence is given that injury is sufficient to cause death in ordinary course of nature. However, in view of the evidence given and the P.M. Report, this Court holds that such inference is easily possible.

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The aforesaid evidence of doctor shows that the death took place within four hours of last meal and the injuries were caused at the most within 4 to 5 hours before starting of P.M. examination. P.M. was conducted in between 12.30 p.m. and 1.45 p.m.. Thus time of death fixed by doctor and the evidence given on the injuries by doctor is consistent with the version of Sangeeta (PW 4) that the incident took place at about 7.00 a.m. and accused No. 1 inflicted the injuries with a knife. The probable falsehood from the evidence of Sangeeta that she had called her grandfather Vithal to the spot is easily separable and remaining evidence can be safely accepted to base the conviction.

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Cri. Appeal 205/10, 144 & 145/11

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The accused No. 1 was arrested on 19.3.2008 and his clothes were also taken over under panchanama on the same day. The panch witness Karande (PW 3) has given evidence on the seizure of the clothes of accused No. 1. The panchanama at Exh. 16 is consistent with the evidence given by the panch witness. Similar evidence is given by the I.O. (PW 7) on seizure of clothes of accused No. 1. In the cross examination, the panch witness Karande (PW 3) has admitted that the clothes were on the table in the police station and police had kept the clothes there. Though this admission is there, there is the evidence of I.O. also in this regard. There was no reason for I.O. to create false record against the accused. It can be said that due to the circumstances that blood stained clothes which were on the person of the accused came to be seized on 19.3.2008, the evidence of recovery of the clothes is little bit weak, but this evidence cannot be ignored altogether. The carrier constable Thorat (PW 8) is examined by the prosecution to prove that the articles seized in the case were carried to C.A. Office by Thorat (PW 8). The office copy of the forwarding letter is at Exh. 55 and the C.A. Report is at Exh. 59. This record shows that human blood was detected on the T-shirt of accused.

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Karande (PW 3) has given evidence on discovery of weapon, knife, on the basis of statement given by accused No. 1 to police. Karande has deposed that the statement was given to police on 23.4.2008 and the statement was to the effect that the knife was kept in the wall of irrigation tank at Pargaon. The panch witness has given evidence that the accused then took the police and panchas to the irrigation tank of Pargaon and from there he produced a knife, Article No. 6. He has deposed that the knife was found to be concealed under a stone. The memorandum of the statement of the accused is at Exh. 17 and the panchanama is at Exh. 18. There is similar evidence of I.O. (PW 7) in this regard. There is also the evidence of carrier constable Thorat (PW 8) to show that this article was sent to C.A. office with the aforesaid covering letter. The C.A. Report shows that blood of group "B" was detected on the knife. C.A. Report further shows that blood of the same group was detected on the clothes of the deceased. The doctor, who conducted P.M. examination, has given evidence that the injuries found on the abdomen can be caused by such weapon. This evidence is consistent with the case of prosecution and it corroborates the version given by Sangeeta. Though recovery of the weapon was done after four days of the arrest, no probability is created that police have created false record with regard to discovery of this weapon. This evidence is also available

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for corroboration.

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The evidence of I.O. (PW 7) shows that accused No. 1 was absconding till 19.3.2008, for about 3 days. Accused No. 2, mother of accused No. 1, was arrested on 16th itself. In the statement under section 313 of Criminal Procedure Code, the circumstance that the accused No. 1 was absconding, was not put to the accused, but the accused has taken the defence of alibi in the statement. He has stated that he was at Aurangabad for about 4 days and he was living in the house of his aunt. This aunt is not examined and no steps are taken to prove the alibi . The accused has further contended that he was doing the business of property development together with the deceased and so he had no reason to murder the deceased. The explanation given by the accused is not at all plausible.

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The spot panchanama (Exh. 18) is proved in the evidence of Karande (PW 3). I.O. (PW 7) has also given evidence on spot panchanama. The spot panchanama was prepared on 16.3.2008 between 15.30 hrs. and 15.45 hrs. No blood was found on the spot of the offence. The earth was wet as there was water tap at this place and police did not collect earth sample for C.A. purpose. No drum of water was also found on the spot. In ordinary

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course, the second drum of water, which was taken there by the deceased and Sangeeta, ought to have been there. There is no explanation from the prosecution in respect of these lacunae, discrepancies. As there is public water tap on the spot and people take the water from this tap and as the evidence shows that the deceased was immediately shifted from the spot, not much weight can be given to these discrepancies.

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Sangeeta (PW 4) has given evidence against the accused No. 2. But there is no circumstantial corroboration to the version given against the accused No. 2. The clothes of accused No. 2 were not seized, no injury was found on her person and no injury, which can be called as caused by fist blows and kicks, was found on the dead body. In view of these circumstances and the other circumstances already discussed, this Court holds that reasonable doubt has been created in respect of the evidence given against the accused No. 2. The evidence of Sangeeta in this connection can be segregated and ignored. In view of this circumstances, this Court holds that the Trial Court has rightly acquitted accused No. 2.

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The discussion made about shows that there is the evidence like :-

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(a) The evidence of eye witness Sangeeta (PW 4) against the accused No. 1. Though her statement was recorded by the police on the next day of incident, she can be believed.

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(b) There is evidence of recovery of knife used in the incident at the instance of the accused and blood group of "B", which is also the blood group detected on the clothes of the deceased, was found on the knife.

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(d) The circumstances that the name of the accused No. 1 was known to everybody as assailant and his name was informed by the first informant to police at about 10.45 a.m. on 16th itself and lastly,

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(e) The circumstances that the accused was not available till 19th, he was absconding, though police could arrest his mother on 16th itself.

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The name of Sangeeta was informed as eye witness in F.I.R. on 16th itself. The evidence of Sangeeta shows that she tried to improve the things in the Court. This girl was aged 18 years at

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the relevant time. Such a girl is not expected to intervene in such an incident and so it cannot be expected that she ought to have intervened in the incident. The P.M. Report shows that the deceased was aged about 35 years. It is already mentioned that the accused was aged about 19 years at the relevant time. There is no evidence on previous enmity between the deceased and the accused No. 1. After separation of falsehood, if the evidence of Sangeeta is accepted, it can be said that incident took place over taking of water from the public tap. As there is the possibility that Sangeeta witnessed the incident from some distance and as there are aforesaid circumstances, premeditation on the part of the accused No. 1 cannot be inferred. Due to the aforesaid lacunae in the case of prosecution and due nature of evidence of Sangeeta, probability is created that during the quarrel there was sudden fight and in the fight, the blows on the abdomen were given by accused No. 1 by using knife. Considering the difference of age between the deceased and accused, not much can be made out due to the circumstance that two blows were given on abdomen by the accused. There is no convincing evidence on the genesis of the incident and as there are aforesaid possibilities, the case needs to be placed in exception No. 4 to section 300 of I.P.C.

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The Trial Court has sentenced accused No. 1 with

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imprisonment for 10 years. It was submitted for the appellant that imprisonment for 10 years appears to be harsh. The Medical evidence shows that atleast two blows were given by using knife and the injuries on the abdomen had cut vital organs including aorta. Only due to some circumstances already mentioned, the case can be placed in exception No. 4 of section 300 of I.P.C., otherwise conviction could have been given for offence punishable under section 302 of I.P.C. In view of these circumstances, this Court holds that the punishment of imprisonment of 10 years is justified.

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For the defence three cases were cited. In the case reported as AIR 1996 SC 2478 [Dhanna etc. Vs. State of M.P.] when there were material omissions in previous statement with regard to the role played by the accused and material improvement was made by the said witness during the trial, benefit of this circumstance was given to the accused. In the case reported as 2001 Mh.L.R. (3) 629, High Court of Bombay, [Hupa alias Hupsing Wangarya Bhil Vs. State of Maharashtra] , the evidence given by the prosecution was found to be doubtful and the material witnesses like a panch witness was found to be a stock witness, the Court held that it was unsafe to base conviction on the basis of solitary statement of police

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¶131

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constable in respect of recoveries. Thus, the facts are totally different. In the Criminal Appeal No. 252/2003 decided by Uttarakhand at Nainital [Sumer @ Sumera Moti Gadaria Vs. State of Uttarakhand], the prosecution had given the evidence of all the interested witnesses and some witnesses were involved in a murder case. There were circumstances to make their evidence doubtful and so the benefit of doubt was given to the accused. Thus, the facts of this case were also different. These case are of no use for defence in the present matter.

¶133

In view of the discussion made above, this Court holds that no interference is possible in the judgment and order of the Trial Court and so all the three appeals stand dismissed.

¶134

[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]

¶135

ssc/

Barku @ Prakash Waman Shinde v. the State of Maharashtra

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Barku @ Prakash Waman Shinde v. the State of Maharashtra

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