Criminal appeal against conviction and death sentence for murder. The High Court upheld the conviction under Section 302 IPC, rejecting the argument for Section 304 IPC Part II, finding that the assault on the head with an axe indicated murderous intent.
Appeal dismissed; conviction and sentence under Section 302 IPC affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
APEAL899_2010
vidya
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 899 OF 2010
Nandkumar Tukaram Dupade R/o. Kolegaon, Tal. Malshiras, District Solapur.
District Solapur. ... Appellant vs. The State of Maharashtra ... Respondent
Smt. Nasreen S.K. Ayubi, Advocate appointed for the appellant. Mrs. S.V. Gajare-Dhumal, APP for the State.
CORAM: MRS. V.K. TAHILRAMANI & MRS. MRIDULA BHATKAR, JJ.
AUGUST 5 , 2013.
ORAL JUDGMENT (PER MRS. V.K. TAHILRAMANI, J.)
The appellant/original accused has preferred this appeal against
the judgment and order dated 17th May, 2008 passed by the learned Additional Sessions Judge, Malshiras in Sessions Case No. 2/2007. By the
said judgment and order, the learned Sessions Judge convicted the appellant under section 302 of IPC. For the said offence, the appellant was
sentenced to rigorous imprisonment for life and fine of Rs.500/-, in default, S.I. for one month.
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The appellant was married to Thakubai. They had one daughter named Sonali, who was about 12 years old at the time of incident. Chandrashekhar, brother of the appellant was serving in Vijaysinha Mohite-Patil High School, Kolegaon, Taluka Malshiras, District Solapur. On the date of incident i.e. 26th July, 2006, PW-1 Dupade was holding the charge of Head Master of the school. At about 2.15 p.m. PW-1 Dupade was in his office. The office clerk Jadhav and peon Gaikwad were also in the office. At that time, the appellant came to the office and started asking the office clerk to give copies of the school record relating to the service record of his brother Chandrashekhar. Chandrasekhar was serving as Assistant teacher in the said school. The clerk told that the record was not available as after the transfer of a teacher to another school, the record is sent to that school. The appellant started abusing clerk Jadhav, PW-1 Dupade and Gaikwad peon. At that time, Thakubai, wife of the appellant and Sonali, daughter of the appellant were proceeding by the road in front of the school. Thakubai was carrying a bundle of firewood and Sonali was carrying her books. Thakubai told the appellant not to behave in such a manner and to come home. At that time, the appellant took out an axe from
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the bundle of firewood carried by Thakubai and started dragging Thakubai and Sonali towards the office of the school. The appellant then dragged them inside the office. At that time, PW-1 Dupade , clerk Jadhav and peon Gaikwad were present in the office. The appellant started asking Thakubai and Sonali where they had stayed. Sonali replied that she and her mother had come there without staying anywhere. The appellant then gave a blow with an axe on the head of Sonali. PW-1 Dupade tried to catch hold of the appellant but appellant ran away after dropping the axe in the office. Sonali was taken to the hospital by PW-3 Dharmaraj. However, Sonali was declared dead before admission. PW-1 Dupade then lodged the FIR (Exhibit 11). Thereafter investigation commenced. The dead body of Sonali was sent for post-mortem. During post-mortem, it was noticed that Sonali had sustained one incised wound over midfrontal region along the hairline to mid occipital region 10 cms X 4 cms. X 4 cms. with fracture of skull underneath bone and laceration of brain with extensive bleeding. One abrasion was also found on the right ring finger of Sonali. The appellant was arrested on the next day i.e. 27th July, 2006. After completion of investigation, the charge sheet came to be filed.
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302 of IPC for causing death of Sonali by assaulting her with an axe on the head. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant, as stated in paragraph 1 above, hence, this appeal.
Gaikwad were also in the office. At that time, the appellant came to the
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office and started asking the office clerk to give copies of the school record relating to the service record of his brother Chandrashekhar. Chandrasekhar was serving as Assistant teacher in the said school. The clerk told that the record was not available as after the transfer of a teacher to another school, the record is sent to that school. The appellant started abusing clerk Jadhav, PW-1 Dupade and Gaikwad peon. At that time, Thakubai, wife of the appellant and Sonali, daughter of the appellant were proceeding by the road in front of the school. Thakubai was carrying a bundle of firewood and Sonali was carrying her books. Thakubai told the appellant not to behave in such a manner and to come home. At that time, the appellant took out an axe from the bundle of firewood carried by Thakubai and started dragging Thakubai and Sonali towards the office of the school. The appellant then dragged them inside the office. The appellant started asking Thakubai and Sonali where they had stayed. Sonali replied that she and her mother had come there without staying anywhere. The appellant then gave a blow with an axe on the head of Sonali. PW-1 Dupade tried to catch hold of the appellant but appellant ran away after dropping the axe in the office. Nothing has been elicited in the cross-examination of PW-1 Dupade so as to disbelieve his evidence. We
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find that his evidence inspires implicit trust and confidence and we have no hesitation in relying on the same. The evidence of PW-1 Dupade clearly shows that the appellant assaulted his daughter Sonali with an axe on the head.
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of his daughter Sonali. She submitted that only one blow with an axe was
given to Sonali and thereafter the appellant ran away. It is seen that the appellant has assaulted his daughter Sonali with an axe, which is a deadly weapon, on the vital part of the body i.e. head. The injuries as seen from the post-mortem notes, which are reflected in paragraph 2 above, are extensive in nature. The incised wound on the head was 10 cms X 4 cms. X 4 cms. with fracture of skull underneath bone and laceration of brain. It is not the case of the appellant that the incident was caused during a sudden quarrel or on account of grave and sudden provocation or while exercising the right of private defence. There is no evidence to show that the present case falls under any of the exceptions to Section 300. Looking to the weapon used, the part of the body on which the injury was inflicted, the extensive nature of the injury on the head, the fact that Sonali was just 12 years old at the time of incident, all these factors when taken into account lead to conclusion that the case cannot fall under section 304 Part II of IPC. The case clearly falls under section 302 of IPC. Thus, we find no merit in the appeal. Appeal is dismissed.
and to the appellant who is in jail.
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Ms. Nasreen Ayubi, 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 the High Court Legal Services Committee, Bombay at Rs.2500/-.
(MRS. MRIDULA BHATKAR,J.) (MRS. V.K. TAHILRAMANI, J.)
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3 issues framed by the court
Whether the case constitutes murder under section 302 IPC or culpable homicide not amounting to murder under section 304 IPC.
Whether the appellant's evidence raised any doubt regarding the conviction.
Whether the appeal against conviction and sentence should be allowed.
1 provisions across 1 enactments
Nandkumar Tukaram Dupade
The State of Maharashtra
MRS. V.K. TAHILRAMANI
MRS. MRIDULA BHATKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
