Partly allowed

Budha Daliya Tankari v. State of Maharashtra

Bombay HC19 Aug 2013APEAL/347/2010

Case brief

AI extract

What is this about?

The High Court considered an appeal against conviction for murder (IPC 302). The appellant argued the case falls under Exception 4 to Section 300 IPC (sudden quarrel, one blow). The Court held that the weapon, injury nature, and force used indicated intention to cause death, upholding conviction under IPC 304 Part I instead of 302.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant convicted under Section 304 Part IPC; sentence of seven years rigorous imprisonment and fine.

Budha Daliya Tankari Vs State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 347 OF 2010 (Through Jail)

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Budha Daliya Tankari ] Age - 40 Years, Convict Prisoner No. C/7778, ] undergoing sentence at Nashik Road Central ] Prison and Previously residing at Sambha ] Tankarpada, Taq. Talasari, Dist. Thane. ] Appellant (Org. Accused)

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Versus

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The State of Maharashtra ]

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(Through Talasari Police Station) ] Respondent

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Mr. Murtaza M. Najmi, Advocate appointed for the Appellant

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Mrs. S.V. Gajare-Dhumal, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ

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DATE : AUGUST 19, 2013.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :-

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The appellant-original accused has preferred this appeal

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against the judgment and order dated 29.05.2009 passed by the

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Additional Sessions Judge, Palghar in Sessions Case No. 74 of

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By the said judgment and order, the learned Sessions

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Judge convicted and sentenced the appellant as follows:-

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Convicted u/S.	Sentenced to
302	Rigorous imprisonment for life and fine of Rs. 1000/- in default, imprisonment for 2 months.
323	Rigorous imprisonment for 1 year and fine of Rs. 500/- in default, imprisonment for 1 month.

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The learned Sessions Judge directed that both the

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substantive sentences shall run concurrently.

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The prosecution case briefly stated, is as under:

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(a) Deceased Chintubhai was residing along with his wife PW 3 Kokilaben at Sambha Tankarpada, Dist. Thane. The appellant and PW 10 Ganesh were their neighbours. PW 10 Ganesh was having illicit relations with Jasoda who was the wife of the appellant.

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(b) On 30.05.2008 at about 10.00 p.m., a quarrel took

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place between PW 10 Ganesh and Jasoda. As both were

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quarreling loudly, Chintubhai went there. Neighbours also

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gathered. PW 10 Ganesh was asking Jasoda why she was allowing other persons in the house when she was having relations with him. Jasoda abused Ganesh. Chintubhai asked both Ganesh and Jasoda why they were quarreling. In the meanwhile, other witnesses also came to the spot. The appellant - husband of Jasoda also came to the spot. The appellant started abusing Ganesh as to why he abused his wife Jasoda. Chintubhai intervened in the quarrel and he asked the appellant why he was quarreling. PW 3 Kokilaben - wife of Chintubhai also asked the appellant about it. The appellant then kicked Kokilaben. Chintubhai - husband of Kokilaben asked the appellant why he kicked Kokilaben. The appellant then started abusing Chintubhai. A quarrel took place between the appellant and Chintubhai. In the course of the quarrel, the appellant assaulted Chintubhai with a knife on the abdomen. Chintubhai was rushed to the private hospital. There it was advised that Chintubhai should be taken to the Government Hospital, however, on the way to the Government Hospital, Chintubhai expired.

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investigation commenced. Blood stained clothes of the appellant which were on his person at the time of the incident were recovered at his instance. The incident was witnessed by six witnesses. Their statements were recorded. After completion of investigation, charge sheet came to be filed.

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3. Charge came to be framed against the appellant under

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Section 302 of IPC for causing the death of Chintubhai by assaulting him with a knife. Charge was also framed under Section 323 of IPC for causing hurt to Kokilaben. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going

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through the evidence adduced in this case, the learned Sessions

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Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal.

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We have heard the learned Advocate for the appellant and

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the learned APP for the State. After giving our anxious

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consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that appellant assaulted Chintubhai with a knife which led to his death. The appellant also caused hurt to PW 3 Kokilaben.

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The conviction of the appellant is based on the evidence of

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six eye witnesses i.e. PW 1 Chimanbhai, PW 2 Tarabai, PW 3 Kokilaben - wife of Chintubhai, PW 7 Savita, PW 8 Bhavesh and PW 10 Ganesh. PW 3 Kokilaben has stated that PW 10 Ganesh was having illicit relations with Jasoda who was the wife of the appellant. On 30.05.2008 at about 10.00 p.m., quarrel took place between PW 10 Ganesh and Jasoda. As both were quarreling loudly, Chintubhai went there. Neighbours also gathered. PW 10 Ganesh was asking Jasoda why she was allowing other persons in the house when she was having relations with him. Jasoda abused Ganesh. Chintubhai asked both Ganesh and Jasoda why

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they were quarreling. In the meanwhile, other witnesses also came to the spot. The appellant - husband of Jasoda also came to the spot. The appellant started abusing Ganesh as to why he abused his wife Jasoda. Chintubhai intervened in the quarrel and he asked the appellant why he was quarreling. PW 3 Kokilaben - wife of Chintubhai also asked the appellant about it. The appellant then kicked Kokilaben. Chintubhai - husband of Kokilaben asked the appellant why he kicked Kokilaben. The appellant then started abusing Chintubhai. A quarrel took place between the appellant and Chintubhai. In the course of the quarrel, the appellant assaulted Chintubhai with a knife on the abdomen.

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The evidence of PW 3 Kokilaben shows that the appellant assaulted Chintubhai with a knife and her evidence also shows that the appellant kicked her in the abdomen. Thus, her evidence establishes clearly the offence punishable under Sections 302 and 323 of IPC. The evidence of other eye witnesses is on similar lines as that of PW 3 Kokilaben. The evidence of these six eye witnesses establishes that the appellant assaulted Chintubhai in

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the stomach with a knife.

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The medical evidence also corroborates the evidence of the

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eye witnesses. PW 12 the Doctor performed the postmortem on the dead body of Chintubhai. He noticed one stab incised wound of size 7 cm x 2 1/2 cm horizontally oblique at abdomen left costal area. In the opinion of the Doctor, Chintubhai died due to hemorrhagic shock due to stab incised wound over left thoraco abdominal region with deep injury to liver. In the opinion of the Doctor, the injury was possible by weapon knife which was before the Court.

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Mr. Najmi, learned Advocate for the appellant submitted

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that even if it is accepted that the act of the appellant of assaulting Chintubhai with a knife resulted in his death, the case would not fall under Section 302 of IPC but it would fall under Section 304 Part II or at the most Section 304 Part I of IPC. He pointed out that the evidence on record shows that a quarrel was

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going on between the appellant and deceased Chintubhai which

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has been deposed to by PW 2 Tarabai. PW 2 Tarabai has stated that on 30.05.2008 at about 10.30 p.m., a quarrel took place between Chintubhai i.e the deceased and the appellant. Thereafter, the appellant assaulted Chintubhai with a knife and ran away. Mr. Najmi pointed out that the appellant gave just one blow with the knife to Chintubhai which is clear from the evidence

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of six eye witnesses. Mr. Najmi submitted that this shows that it was not the intention of the appellant to cause death of Chintubhai. He submitted that if the appellant had intended to cause the death of Chintubhai, the appellant would not have stopped after giving just one blow but he would have continued assaulting Chintubhai. The fact that he did not do so shows that he did not have any intention to kill Chintubhai. Mr. Najmi further submitted that the assault was not premeditated or preplanned but it happened on the spur of the moment in a fit of anger. Mr. Najmi reiterated that the fact that the appellant stopped after giving just one blow to Chintubhai during the course of sudden quarrel would bring the case under Exception 4 to Section 300 of

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IPC and the case would thus be covered by Section 304 Part II of

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IPC.

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8 To bring a case within Exception 4 to Section 300 of IPC, all

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the ingredients mentioned in it must be found. It is to be noted that the word 'fight' occurring in Exception 4 to Section 300 of IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence shows that the parties had worked themselves into a fury on account of verbal altercation going on between them. The appellant had not come to the spot with intention that he would assault Chintubhai i.e he did not come armed to the spot with a weapon with intention to assault Chintubhai. The incident occurred suddenly and in the course of

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the sudden quarrel, the appellant assaulted Chintubhai. However,

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for the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation, it must further be shown that the offender has not taken any undue advantage or acted in a cruel or unusual manner. The fact that

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the appellant gave only one blow shows that he did not take any

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undue advantage or acted in a cruel manner, however, we are not

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prepared to accede to the submission of Mr. Najmi that the case would fall under Section 304 Part II of IPC. In our view, the case would fall under Section 304 Part I of IPC because we are of the opinion that the appellant did not just have the knowledge that his act is likely to cause the death of Chintubhai but in fact, the appellant intended to cause the death of Chintubhai. We say so on the basis of the weapon used, the part of the body where the injury was inflicted, the force used while assaulting and the nature of the injury. The injury, as seen from the evidence of PW 12 the Doctor who conducted the postmortem, is extensive in nature. Looking to all these facts, we are of the considered opinion that the case cannot fall under Section 304 Part II of IPC.

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Considering the evidence on record, we are of the view that Exception 4 to Section 300 of IPC applies to the facts of the present case and the proper conviction would be under Section 304 Part I of IPC, hence, the conviction and sentence of the

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appellant under Section 302 of IPC is set aside, instead, the

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appellant is convicted for the offence under Section 304 Part I of

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IPC. In our view, custodial sentence of Seven years rigorous imprisonment and fine of Rs. 1000/- in default, simple imprisonment for one month would meet the ends of justice as far

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as conviction under Section 304 Part I of IPC is concerned.

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The conviction and sentence of the appellant under Section 323 is maintained.

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Both the sentences of imprisonment shall run concurrently.

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The appeal is partly allowed to the aforesaid extent.

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Office to communicate this order to the concerned prison

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Authorities and to the appellant who is in jail.

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At this stage, we must record our appreciation for Advocate

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Mr. Murtaza Najmi who is on the panel of Advocates of High

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Court Legal Services Committee and who was appointed to

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represent the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this

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appeal by the High Court Legal Services Committee at ` 2500.

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[MRS. MRIDULA BHATKAR, J ] [SMT. V.K. TAHILRAMANI,J ]

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jfoanz vkacsjdj

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Budha Daliya Tankari v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Budha Daliya Tankari v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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