The State of Maharashtra Vs Lakhanlal Vishnudeo… — Murder and Culpable Homicide | Bombay HC (2019)

The State of Maharashtra Vs Lakhanlal Vishnudeo… — Murder and Culpable Homicide | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

APPEAL NO.107 OF 1999

The State of Maharashtra ..Appellant (Org. Complainant)

Versus

Lakhanlal Vishnudeo Sharma Age about 67 years, R/o Udyanagar Hutment Near Maharashtra Mandal, Suryanagar Vikroli (W), Mumbai 400 083 ..Respondent (Org. Accused)

Mrs. A. S. Pai, APP for the Appellant - State. Mr. S. B. Chandan, Appointed advocate for the Respondent/Accused.

CORAM : PRADEEP NANDRAJOG, C.J. & SMT. BHARATI DANGRE, J.

DATE : 13^th AUGUST, 2019

ORAL JUDGMENT (Per Pradeep Nandrajog, C.J.)

1] Heard learned counsel for parties.

2] Charged for the offence of having murdered his wife in the matrimonial house at about 10.00 a.m. on 17.06.1996, the Respondent has been held responsible for the injuries caused to his wife leading to her death but has been convicted for the offence punishable under Section 326 of the Indian Penal Code (IPC). He

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has been sentenced to undergo rigorous imprisonment for 3 years and 6 months and pay fine in sum of ₹ 1000/-, in default to undergo simple imprisonment for a period of six months.

3] Examined under Section 313 of the Criminal Procedure Code (Cr.P.C.) and put the incriminating circumstances appearing against him in the evidence, to the last question being No.58, the accused stated that when he married the deceased she was already married and was addicted to alcohol. One Harish used to visit his wife and would have drinks with his wife. On the day of the incident, he was not feeling well since morning and after taking medicine had slept. At 12 Noon, he learnt that his wife was murdered.

4] The accused has obviously admitted his presence in the house.

5] Soon after 10.00 a.m. on 17.06.1996, Lalita (PW-1) daughter of the deceased born from her previous marriage reached Police Station, Vikhroli Parksite and made the statement Exh.7 informing that her step-father was an alcoholic and her mother was contemplating to take him to hospital for de-addiction. At a fight over alcohol in the morning her father stabbed her mother and even she received injuries when she intervened to save her mother. Woman police constable Minakshi Dhuri (PW-4) proceeded to the house where the Respondent resided with his wife and took the injured to the hospital and as deposed by Minakshi Dhuri the injured told her

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that the Respondent had stabbed her with a kitchen knife on being infuriated when she did not give him money to purchase alcohol.

6] The unfortunate lady could not survive and the reason whereof emerges from her postmortem report Exh.21. The same shows the left lung having collapsed on account of being pierced.

7] The dead body was sent to the mortuary of Rajawadi hospital where Dr. Balkrishna Hankare (PW-7) conducted the postmortem on 18.06.1996 recording under noted 17 injuries on the person of the deceased :-

“1) Stab injury on Rt. arm above elbow Jt. through and through from medical to lateral wound of entry 3 ½ cm. deep 9 cm. (wound) oblique, horizontal, reddish margins, sharp edges.

I.W. on flexer surface of wrist (Rt) Jt. 3 ½ cm x ½ cm. Muscle deep reddish edges.

Stab injury in intra-axillary region at 9^th C. C. x 2 x 0.5 x bone deep – in liver.

I.W. medical to injury No. 4-1 x 0.3 x 0.3 cm. Superficial.

Stab injury in Rt. side pelvic region 2 x 1 x 6 cm. deep in abdomen reddish margin gapping. (+).

I. W. on L/3 thigh (Anteritroly) oblique 4 x 0.5 x muscle deep.

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I. W. on Rt. Knee 2 x 0.5 x 5 cm. vertical.

I.W. on posters lateral aspect of Rt. thigh 2 x 05 x 05 cm. reddish margin. Bleeding not present.

Stab injury on Lt. upper arm posterior side through and through from lateral to medical direction wound gentry 5 cm x 1 cm x 7 cm deep horizontally and 2 C.C. wound of exist sharp edges, vertical.

Stab injury on Lt. side anterior chest below nipple at ant. A line horizontal in 5 I.C.C. 2 x 05 x 05 deep in chest. No bleeding.

I. W. injury below the injury No.10. Horizontal 9 cm x 1 cm muscle deep.

Stab injury below the injury No.11 costochondal junction and in A. A. line 4 x 05 x deep in abdomen cutting costal cartilage and 8^th rib.

Stab injury medical and above injury No.12 oblique, deep in abdomen, bleeding (-) sharp edges.

I.W. on medical side of injury No. 11 1 ½ cm x 05 x 1 cm semicircular, deep to muscle.

Stab injury below costal margin in M.C.L. line horizontal 2 x 1 deep in abdomen bleeding (+).

I. W. on flexer aspect of Lt. cubital fossa. 3 x 0.5 x deep upto veins S/o venisection.

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Mid-line surgical incision on the abdomen 18 cm.”

Internal examination as noted above reveals the left lung collapsed on account of the lower lung being pierced.

8] As required by law the scene of the crime was visited by the police. Blood stained clothes and a kitchen knife, stated to be a weapon of offence was seized in the presence of Harish Chandra (PW3).

9] The case of the prosecution obviously hinges on the testimony of PW-1 and PW-4 and therefore we need not burden our opinion with any other fact proved at the trial for the reason even the learned Trial Judge has held the prosecution to have proved that the Respondent caused the injuries to his wife as result whereof she died.

10] The testimony of PW-4 establishes a dying declaration made by the deceased to PW-4 in which she named the accused as her assailant. PW-1 the step-daughter of the Respondent and the daughter of the deceased from her previous marriage has deposed facts in sync with her statement Exh.P7, but with an addition. The addition is that her mother was to admit her father in a lunatic asylum for treatment of his mental disease since her father was behaving abnormally.

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11] Latching on to said statement made by PW-1 in her deposition, learned counsel for the Respondent urges that the same proves the fact that the Respondent was of unsound mind and therefore keeping in view Section 84 of the Penal Code, he cannot be held liable for what he did.

12] We have perused the statement Exh.P7 made by PW-1 based whereon the FIR was registered and note that in the said statement recorded in Marathi i.e. vernacular, she has stated that on account of her father's alcoholism her mother had decided to take her father to a hospital for de-addiction.

13] It appears that while translating in English while recording testimony of PW-1, a taint has taken place.

14] Be that as it may, the said statement made by PW-1 that her father was lunatic would not ipso facto be proof of the fact that the Respondent was of unsound mind.

15] It is possible that the young girl used the expression 'lunatic' (in Marathi 'Vedsar') in a loose manner.

16] From the testimony of PW-1, it emerges that the Respondent, who was alcoholic, demanded money from the deceased to purchase alcohol. The deceased objected. Provoked by the deceased not giving money the Respondent picked up a kitchen knife

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(handy object) and indiscriminately started stabbing his wife.

17] It is a case whereon Respondent did not act with any premeditation and losing his cool, at the spur of the moment launching the fatal attack on his wife.

18] The offence committed by the Respondent would obviously be culpable homicide not amounting to murder.

19] Keeping in view the injuries inflicted on the deceased, knowledge has to be attributed to the Respondent that he was likely by such acts to cause the death of the deceased.

20] Thus, the offence committed by the Respondent would be culpable homicide not amounting to murder punishable under Part II of Section 304 of IPC.

21] Case law on sentence pertaining to an offence punishable under Section 304 Part II of IPC shows that as a Thumb Rule, Courts have been awarding sentence to undergo rigorous imprisonment for five years. In the instant case, for the offence punishable under Section 326 of the IPC, the Respondent has been sentenced to undergo rigorous imprisonment for a period of 3 years and 6 months. At the time when crime was committed the Respondent was aged 69 years. As of today the Respondent would be nearing age of 90 years.

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22] Accordingly, allowing the Appeal and converting the conviction of the Respondent from the offence punishable under Section 326 of IPC to having committed an offence punishable under Section 304 Part II of IPC, we impose the sentence to undergo imprisonment for the period undergone.

SMT. BHARATI DANGRE, J

CHIEF JUSTICE

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