Dismissed

Shivaji Krishna Malme v. the State of Maharashtra

Bombay HC21 Aug 2013APEAL/645/2010

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against conviction for murder (IPC 302).rejecting the submission that the killing was manslaughter under S. 304 IPC Exception 4. The Court held that a 5-10 minute silence between quarrel and attack negated 'suddenness' and 'heat of passion.', finding sufficient evidence for murder.

What did the court decide?

Appeal dismissed; conviction and sentence for murder under Section 302 IPC upheld.

Shivaji Krishna Malme Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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cri apeal 645-10.doc

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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. 645 OF 2010

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(Through Jail)

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Shivaji Krishna Malme ] Convict Prisoner No. C/4688, 4/2, ] Age : 56 Years, Presently lodged at ] Kolhapur Central Prison, Kalamba, ] Kolhapur. ] Appellant (Org. Accused)

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Versus

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The State of Maharashtra ] Respondent

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Mrs. B.P. Jakhade, Advocate appointed for the Appellant

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Mrs. V.R. Bhonsale, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI & MRS. MRIDULA BHATKAR, JJ

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DATE : AUGUST 21, 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 18.05.2010 passed by the

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Additional Sessions Judge, Sangli in Sessions Case No. 116 of

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By the said judgment and order, the learned Sessions

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Pg 1 of 8

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cri apeal 645-10.doc

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Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to life imprisonment and fine of Rs. 5000/- in default, RI for 6 months.

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The prosecution case briefly stated, is as under:

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(a) First informant PW 5 Usha was residing along with her

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father-in-law and mother-in-law. Her father-in-law is the appellant

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and her mother-in-law is the deceased in the present case. They were all residing in one house.

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(b) The incident occurred on 28.04.2009 at about 03.00

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p.m. There was a quarrel in between the appellant and his wife Shalan. Both were abusing each other. At that time, PW 5 Usha

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told them to keep mum. For 5-10 minutes, they kept mum, thereafter, suddenly PW 5 Usha heard the sound of her mother-inlaw Shalan crying out. PW 5 Usha went in the adjoining room and she saw that the appellant was assaulting Shalan with an axe and

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Shalan was lying on the ground. Usha went to save Shalan,

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however, the appellant threatened to kill Usha by assaulting her

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Pg 2 of 8

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cri apeal 645-10.doc

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with an axe, hence, Usha did not come forward. Then the

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appellant left the axe in the house itself and ran away. PW 5 Usha lodged the FIR. Thereafter, the investigation commenced. Dead

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body of Shalan was sent for postmortem. PW 1 Dr. Satpute conducted the postmortem on the dead body of Shalan. He found

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following external injuries on the dead body of Shalan:-

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1. CLW over Rt. maxillary prominence, 12 x 3 x 5 cm

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2. CLW over Rt. temporal region 10 x 3 x 5 cm

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3. CLW over Rt. Parietal region 10 x 3 x 5 cm

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4. CLW over Rt. Elbow Joint lat 2 x 1/2 x 1/2 cm

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5. CLW over upper part of Lt. Forearm 10 x 2 x 2 cm

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On internal examination, the Doctor found fracture to the

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right temporal bone 15 x 3 cm and fracture to the right parietal bone 15 x 3 cm. The cause of death was multiple head injuries.

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After completion of investigation, the charge sheet came to be filed.

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Charge came to be framed against the appellant under

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Section 302 of the IPC . The appellant pleaded not guilty to the

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said charge and claimed to be tried. His defence is that of total

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denial and false implication. After going through the evidence

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Pg 3 of 8

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adduced in this case, the learned Sessions 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 the learned APP for the State. After giving our anxious 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 the appellant assaulted his wife Shalan with an axe and caused her death.

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The conviction is mainly based on the evidence of PW 5 Usha who is an eye witness to the incident. Usha was the daughter-in-law of the appellant and the deceased. Usha was residing with the appellant and her mother-in-law i.e the deceased. They were all residing in one house. PW 5 Usha has stated that on 28.04.2009 at about 03.00 p.m., there was a

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Pg 4 of 8

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cri apeal 645-10.doc

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quarrel in between the appellant and his wife Shalan. Both were abusing each other. At that time, PW 5 Usha told them to keep mum. For 5-10 minutes, there was silence, thereafter, PW 5 Usha heard the sound of her mother-in-law Shalan crying out. PW 5 Usha went in the adjoining room and she saw that the appellant was assaulting Shalan with an axe and Shalan was lying on the ground. Usha went to save Shalan, however, the appellant threatened to kill Usha by assaulting her with an axe, hence, Usha did not come forward. Then the appellant left the axe in the house itself and ran away. PW 5 Usha lodged the FIR. Nothing has emerged in cross-examination of Usha so as to cause us to disbelieve her evidence. We find that her evidence inspires implicit confidence, hence, we have no hesitation in relying on the same.

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Mrs. Jakhade, learned Advocate for the appellant submitted that even if it is held that the appellant assaulted Shalan and caused her death, the act of the appellant would not fall under

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Section 302 of IPC but it would fall under Section 304 Part I of IPC.

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Pg 5 of 8

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cri apeal 645-10.doc

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She submitted that the appellant assaulted the deceased during a

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sudden quarrel, hence, the case would be covered by Exception 4 to Section 300 of IPC and would thus fall under Section 304 Part I of IPC. She pointed out that the evidence of PW 5 Usha shows that a quarrel was going on between the appellant and his wife Shalan and both were abusing each other and that the incident occurred during this sudden quarrel. We are afraid that we are unable to agree with this submission because though the evidence of PW 5 Usha shows that a quarrel was going on between the appellant and his wife Shalan and both were abusing each other, at that time, PW 5 Usha told them to keep mum. Accordingly, both of them kept mum for 5-10 minutes and it was only thereafter that the appellant assaulted his wife Shalan.

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To bring the case within Exception 4 to Section 300 of IPC, all the ingredients mentioned in it must be found. The quarrel has to be a sudden quarrel. Heat of passion requires that there should be no time for passion to cool down. In the present case, when

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the appellant assaulted his wife Shalan, at that time, no quarrel

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Pg 6 of 8

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cri apeal 645-10.doc

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was going on. In fact, some time had elapsed between the

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quarrel which was going on between the appellant and his wife Shalan and thereafter, the appellant had assaulted his wife Shalan

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with an axe. Thus, it cannot be said that the incident occurred

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suddenly and in the course of sudden quarrel. It is also to be noted that the appellant did not give just one blow to Shalan but

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he gave five blows of axe to Shalan. Looking to the evidence of PW 5 Usha, it cannot be said that the incident of appellant assaulting his wife Shalan occurred during a sudden quarrel. Thus, we are unable to give the benefit of Exception 4 to Section

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300 of IPC.

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We find that there is sufficient evidence which connects the

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appellant with crime. The offence is clearly one under Section

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302 of IPC and it does not fall under Section 304 Part I of IPC. We

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find no merit in the appeal. The appeal is dismissed.

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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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Pg 7 of 8

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At this stage, we must record our appreciation for Advocate Mrs. B.P. Jakhade who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by

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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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Shivaji Krishna Malme v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shivaji Krishna Malme v. the 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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