Partly allowed

Dhakal Manglya Shelar v. the State of Maharashtra

Bombay HC10 Jun 2016APEAL/1065/2014

Case brief

AI extract

What is this about?

In a criminal appeal regarding the death of the appellant's wife, the High Court set aside the conviction under Section 302 IPC. Holding that the assault causing death falls under Exception 4 to Section 300 IPC, the court convicted the appellant under Section 304 I IPC and sentenced him to ten years imprisonment.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant convicted under Section 304-I IPC and sentenced to ten years' rigorous imprisonment.

Dhakal Manglya Shelar Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2016)

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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. 1065 OF 2014

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Dhakal Manglya Shelar

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Age - 43 Years, Occ. - Labourer, R/o. Rajawali, in the field of Shivram Bhoir, Tal. Vasai, Dist. Thane.

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Convict No. C-6983 lodged at Nasik Road Central Prison.

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.. Appellant (Org. Accused)

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Versus

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The State of Maharashtra

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Through Manikpur Police Station

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.. Respondent

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Appearances

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Ms. Rohini M. Dandekar Advocate (appointed) for the Appellant Mrs. A.S. Pai 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 : JUNE 10, 2016.

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

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This appeal is preferred by the appellant - original

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accused against the judgment and order dated 17.04.2008

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passed by the learned Additional Sessions Judge, Vasai, Dist.

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Thane in Sessions Case No. 200 of 2007 (Old S.C. No. 138 of

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2006). By the said judgment and order, the learned Session

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Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 10,000/-, in default R.I. for six months.

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The prosecution case briefly stated, is as under:

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(a) Deceased Janakibai was the wife of the appellant. The appellant was residing with his wife Janakibai and their daughter PW 7 Seeta in Village Rajawali, District Thane. Seeta was about 11 years old at the time of the incident.

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(b) On the day of the incident, Janakibai went to see picture shooting in the village. The appellant had brought home fish for his wife to cook, however, as Janakibai did not return home, Seeta cooked the fish, however, her father did not like the preparation made by Seeta.

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(c) Janakibai returned home at the time of dawn. When Janakibai returned home, the appellant started slapping her whereupon Janakibai ran out of the house. The appellant then chased Janakibai and brought her back in the house. Then he assaulted her with a grinding stone on the head. Due to this assault, Janakibai expired.

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(d) The Sarpanch of the village PW 1 Eknath was informed about the incident. He then lodged F.I.R. Exh. 10. Thereafter, investigation commenced.

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(e) The dead body of Janakibai was sent for postmortem. PW 5 Dr. Yadav conducted the postmortem on the dead body of Janakibai. Dr. Yadav noticed fracture of skull and two contusions on the skull of Janakibai. According to Dr. Yadav,

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the injury could be caused by hard and blunt object like grinding stone Article 9 and the injury

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was sufficient to cause the death and the cause of death was due to hemodynamic shock due to fracture of skull and injury to brain. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

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3. Charge came to be framed against the appellant under

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Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was 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 preferred by the appellant against his conviction and sentence.

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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,

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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 has caused

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the death of his wife Janakibai by assaulting her with a grinding stone.

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5. The conviction of the appellant is mainly based on the

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evidence of PW 7 Seeta who was the daughter of the appellant and deceased Janakibai. The appellant, his wife Janakibai and Seeta were residing at Village Rajawali, District Thane. Seeta has stated that on the day of the incident, her mother went to see shooting of a picture. Her father came home with fish and liquor. Seeta prepared food

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i.e fish, however, her father did not like the fish prepared by her. Her mother Janakibai returned home at the time of dawn. As soon as Janakibai came home, her father i.e appellant started slapping his wife Janakibai but Janakibai ran out. The appellant then brought Janakibai

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back in the house. Then he assaulted her with a grinding stone on the head. Due to this assault, Janakibai expired. Nothing has been elicited in cross-examination of Seeta so as to cause us to disbelieve her evidence. We find her evidence to be truthful and trustworthy, hence, we have no hesitation in relying on the same. The evidence of Seeta establishes that the appellant assaulted his wife on the head with a grinding stone.

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Ms. Dandekar, the learned Advocate (appointed) for the appellant submitted that even if it is accepted that the act of the appellant of assaulting his wife with a grinding stone resulted in her death, the case would not fall under Section 302 of IPC but it would fall under Section 304 Part II of IPC. She pointed out that the evidence on record shows that when the incident occurred, a quarrel was going on between the appellant and his wife Janakibai which has been stated by PW 7 Seeta. Ms. Dandekar drew our attention to the evidence of Seeta wherein Seeta has stated that her mother

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returned home at dawn. Thereafter Seeta has stated that it is true that after her mother returned back to the house, quarrel started between her mother and her father. Ms. Dandekar pointed out that the appellant gave just one blow on the head of Janakibai which is clear from the evidence of PW 7 Seeta. Ms. Dandekar submitted that this shows that it was not the intention of the appellant to cause the death of

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his wife. Ms. Dandekar submitted that if the appellant had intended to cause the death of his wife, he would not have been stopped after giving just one blow but he would have continued to assault her. The fact that he did not do so shows that he did not have any intention to kill his wife. She further submitted that the assault was not premeditated or preplanned but it happened on the spur of the moment in a fit of anger. Ms. Dandekar submitted that the fact that the appellant stopped after giving just one blow to his wife during the course of sudden quarrel would bring the case under Exception 4 to Section 300 of IPC and would thus be covered by Section 304 Part II of IPC.

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To bring a case within Exception 4 to Section 300 of

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IPC, all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section

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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

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that both the appellant and his wife had worked themselves

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into a fury on account of the quarrel going on between them. The appellant did not come to the spot armed with a weapon

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but he assaulted his wife with a grinding stone which was available at the spot. The fact that the appellant gave only one blow shows that he did not take any undue advantage or act in a cruel or unusual manner. However, we are not prepared to accede to the submission of Ms. Dandekar that

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the case would fall under Section 304-II of IPC. In our view,

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the case would fall under Section 304-I of IPC. 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 injury as seen from the medical evidence. The

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injury as seen from the evidence of PW 5 Dr. Yadav is excessive in nature. Looking to all these facts, we are of the considered opinion that the case would not fall under Section 304-II of IPC.

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Considering the evidence on record, we are of the view

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that Exception 4 to Section 300 of IPC would to the facts of

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the present case and the appropriate conviction would be under Section 304-I of IPC, hence, we proceed to pass the

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following order:-

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O R D E R

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i. Appeal is partly allowed.

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ii. The conviction and sentence of the Appellant under Section 302 of IPC imposed by the learned Additional Sessions Judge, Vasai, Dist. Thane vide judgment and order dated 17.4.2008 in Sessions Case No. 200 of 2007 (Old S.C. No. 138/2006) is set aside, instead, the appellant is convicted under section 304-I of IPC and sentenced to suffer R.I. for ten years and to pay a fine of Rs.10,000/- in default, R.I. for three months

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iii. Office to communicate this order to the concerned prison Authorities and to the Appellant who is in jail.

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We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Ms. Rohini Dandekar at Rs. 5000/-.

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

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Dhakal Manglya Shelar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Dhakal Manglya Shelar 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

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