Partly allowed

Prakash Nair, Present Undergoing Sentence at Central Jail, Aguada., v. State of Goa, through Public Prosecutor.

Bombay HC5 Mar 2019CRIA/2/2018

Case brief

AI extract

What is this about?

In a criminal appeal against life imprisonment and fine for murder under Section 302 IPC, the High Court held the offense was culpable homicide not amounting to murder under Section 304 Part I IPC, quashing the murder charge but maintaining the conviction under Section 201 IPC and granting bail on fine deposit.

What did the court decide?

Conviction under Section 302 IPC set aside and substituted with Section 304 Part I IPC; conviction under Section 201 IPC maintained; appellant sentenced to fine and released on bail.

Prakash Nair, Present Undergoing Sentence at… — Murder and Culpable Homicide | Bombay HC (2019)

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 1 CRIA No. 2 of 2018

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IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 2 OF 2018

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Shri. Prakash Nair,
Presently undergoing sentence
at Central Jail, Aguada, Goa.

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....Appellant

¶5

Versus

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State of Goa,
Through Public Prosecutor,
Panaji, Goa.….Respondent

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Mr. Kaif Noorani, Advocate for the Appellant under Legal Aid
Scheme.

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Mr. S.R. Rivankar, Public Prosecutor for the Respondent-State.

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Coram : M.S. Sonak &
 Prithviraj K. Chavan, JJ.

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 Date : 05th March, 2019

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ORAL JUDGMENT :(Per M.S. Sonak, J.)

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 Heard Mr. Kaif Noorani, learned Counsel appointed under

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the Legal Aid Scheme for the appellant and Mr. S. R. Rivankar for
the Respondent-State.

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2.This appeal is directed against judgment and order dated

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 2 CRIA No. 2 of 2018

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04.06.2007 and 06.06.2007 made by Additional Sessions Judge, North Goa, in Sessions Case No. 5/2007, convicting the appellant under Section 302 of IPC, and sentencing him to undergo life imprisonment and payment of fine of 1,000/-, or in default, simple imprisonment for a period of six months. The appellant has also been convicted under Section 201 of IPC and sentenced to undergo imprisonment of five years and fine of 500/-, or in default, simple imprisonment for a period of three months. In terms of Section 31 (1) Cr.P.C., both sentences of imprisonment, were ordered to run concurrently.

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3.The charge framed against the appellant was that on
11.06.2006 at around 10.50 p.m., at Kumbharwada, Merces, the
appellant murdered one Salam, by intentionally causing his death and
thereby committing the offence of murder punishable under Section
302 of IPC. The appellant was also charged with causing the evidence
to disappear, by dragging and dumping the dead body of Salam into
the Temple pond nearby, thereby committing an offence punishable
under Section 201 of IPC. The appellant pleaded “not guilty” and
was therefore tried. The Prosecution examined 18 witnesses.
Thereafter, the statement of the appellant under Section 313 Cr.P.C.
came to be recorded. The appellant neither examined himself nor any
defence witnesses.

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 3 CRIA No. 2 of 2018

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4.Mr. Noorani, learned Counsel for the appellant, submits
that the testimony of the so-called eye witness Divakar Gawda
(PW12), is entirely unreliable and was incorrectly relied upon by the
learned Sessions Judge. He submits that, from his deposition it is
evident that, PW12 was not even in a position to see the alleged
incident. He refers to the sketch of the scene of offence in order to
elaborate this aspect. Mr. Noorani submits that a statement of PW12
was recorded under Section 164 Cr.P.C. before the Executive
Magistrate. He submits that there are contradictions between the
statement under Section 164 Cr.P.C., and the deposition of PW12
before the Sessions Court. He submits that if the testimony of PW12
is discarded, then, there is absolutely no evidence on record to link
the appellant with the alleged crime.

¶20

5.Mr. Noorani submits that the so-called recovery of the
weapon by the Police, was a total sham. He submits that the weapon
was allegedly recovered from the Temple complex, which was already
under the full control of the police authorities from the date previous
to the alleged recovery. He submits that when the site was already in
control of the police much prior to the alleged recovery, such recovery
can hardly be referred to any recovery, as contemplated by Section 27
of the Evidence Act.

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 4 CRIA No. 2 of 2018

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6.Mr. Noorani, in the alternate submits that, this is clearly
not a case of culpable homicide amounting to murder. He submits
that at the highest, this is a case which comes under Section 304 Part
II of IPC. He submits that the evidence in the present case, at the
highest, establishes that the culpable homicide was committed
without pre-mediation in the sudden fight, in the heat of the passion
upon a sudden quarrel, and without the appellant having taken any
undue advantage or acted in a cruel or unusual manner. He points
out that in the present case, the deceased Salam had himself come to
the appellant's house, started a fight with the appellant, and even
gone to the extent of catching hold the neck of the appellant. Mr.
Noorani submits that the appellant has undergone imprisonment for
almost over 13 years and therefore, this is a fit case to convert the
conviction from that under Section 302 of IPC, to Section 304 Part
II of IPC and thereafter order the release of the appellant.

¶23

7.Mr. Rivankar, learned Public Prosecutor defends the
impugned judgment and order on the basis of the reasoning therein.
He points out that the eye witness PW12 has deposed to seeing the
appellant actually committing the murder. He points out that the
testimony of PW12 has not at all been tainted in the cross-
examination. He points out that even PW5 has deposed to the scuffle
between the appellant and Salam, and has provided the motive for the

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 5 CRIA No. 2 of 2018

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murder. On this basis, Mr. Rivankar submits that there is really no
case made out to interfere with the conviction and the sentence.

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8.In response to the alternate contention of Mr. Noorani, Mr.
Rivankar submits that in the present case, the appellant stabbed the
deceased twice with a knife. Therefore, it is evident that the act by
which the appellant caused the death of Salam, was done with the
intention of causing death, or of causing such bodily injury, as is
likely to cause death. He therefore, without prejudice, submits that at
the highest, the case would fall under Section 304 Part I and not
Section 304 Part II, as urged by Mr. Noorani.

¶27

9. The rival contentions now fall for our determination.

¶28

10.In this case, there is absolutely no dispute that the death of
Salam was homicidal. The ocular evidence, as also the medical
evidence, makes this position clear. There was never any serious
challenge to this position, though, at one stage, there was a suggestion
that the death of Salam might be suicidal. However, according to us,
there is ample evidence on record to establish that the death of Salam
in the present case, was clearly homicidal.

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11. The star witness for the Prosecution, according to us, is

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 6 CRIA No. 2 of 2018

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PW12. In the first place, he has deposed that he knew the appellant,
as the appellant was working as a room boy at the same hotel at
which PW12 was working. He has also deposed that even after the
appellant left his job as a room boy, he used to come to the hotel to
take tourists staying at the hotel, for sight-seeing. There was
absolutely no challenge to this part of the testimony of PW12. The
testimony of Sheela (PW5), who used to stay with the appellant, also
corroborates this aspect.

¶32

12.Secondly, PW12 was a natural witness and has explained in
detail as to how he came to see the appellant stabbing Salam in the
stomach. PW12 has deposed that, he in fact shouted at the appellant
and told him to leave Salam or not to kill him. PW12 has then
deposed that the appellant came running towards PW12, and PW12
ran in the compound of the neighboring house, and even told the
neighbor as to what was happening.

¶33

13.There is absolutely no dent to the testimony of PW12 in
the course of cross-examination. Only denials were put to PW12 and
according to us, such denials are not at all sufficient to discard the
testimony of PW12. The testimony of PW12, according to us, is both
cogent as well as reliable. We do not agree with Mr. Noorani that
from the locations deposed to by PW12, this witness was not in a

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 7 CRIA No. 2 of 2018

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position to see the incident. There is evidence on record that the
incident took place on the night of Buddha Pournima. There is no
cross-examination on the aspect of the light being insufficient.
Besides, as noted earlier, PW12 knew the appellant, and the appellant
after stabbing Salam, actually rushed on PW12, when PW12 told
him to stop beating Salam. According to us, there are no serious
inconsistencies with the statement of PW12 recorded under Section
164 Cr.P.C., and his deposition before the Sessions Court. The minor
discrepancies pointed out by Mr. Noorani, are not at all sufficient to
discard the testimony of PW12 in the present case.

¶36

14.PW5 has also, to a certain extent, corroborated the
testimony of PW12. The testimony of PW12 finds corroboration in
the medical evidence of Dr. Sapeco (PW8) as well.

¶37

15.Therefore, according to us, there is no doubt that it was the
appellant, who stabbed Salam and later on, dragged him and threw
his body into the Temple pond. The medical evidence suggests that
Salam died on account of drowning, as well as the impact of the stab
injuries, which, were fatal in the ordinary course.

¶38

16.The only question which remains to be considered, is
whether, the evidence on record, suggests that this was a case of

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 8 CRIA No. 2 of 2018

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culpable homicide not amounting to murder, and if so, whether, the
appellant is required to be convicted under any of the parts of Section
304 of IPC and not under Section 302 of IPC.

¶41

17.In order to decide the aforesaid issue, reference is necessary
to the testimony of Sheela (PW5). She has deposed that from around
May 2006, she was staying in the rented room alongwith the
appellant while she was working as a maid servant with one family at
St. Cruz. She has deposed that she knew Salam who was residing in
another rented room in the same building and that Salam was a
labourer from Kerela.

¶42

18.As regards the incident of 11.06.2006, PW5 has deposed as
follows:

¶43

“On 11.6.2006, at around 10.00 p.m., at night,
after my dinner, I was sitting in our rented room. At
that time, Prakash Nair returned from his work and
entered the room. After about 15 minutes, the said
Salam came inside our room and started talking with
Prakash in Malyalam which language I do not
understand. They both started fighting with each
other with fist blows inside the room. Then Salam
caught hold of the neck of Prakash. I ran to inform
one Diwakar Gauda, who was working in the
international Hotel at Merces, which was close to our

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 9 CRIA No. 2 of 2018

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room. I could not meet Diwakar and then went to
Merces market to make a phone call to Police. But all
the shops were closed at around 10.30 to 11.00 p.m. I
then came back to our room and I did not see Prakash
nor Salam around.

¶46

The reason for the fight was as Prakashwas
having a doubt that I was having an affair with the
said Salam.”

¶47

19.In the course of cross-examination, PW5 has deposed
that when the appellant and Salam were fighting, she could hear her
name being mentioned by the appellant during the fight, and from
that, she understood that the fight was over her. She has clearly
deposed that the appellant used to doubt that she was having an affair
with Salam. She has deposed that on 11.06.2006, the appellant and
Salam fought with each other with fist blows inside the appellant's
room, in the presence of PW5. She has also deposed that Salam, in
fact, caught hold of the appellant's neck and then, PW5 ran to
inform Diwakar Gawda, (PW12), who was working in the
International Hotel at Merces, which was close to the room in which
they were staying. She has then deposed that despite efforts, she could
not make a phone call to the police to inform them about what was
happening, and by the time she returned, she saw neither the
appellant nor Salam.

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 10 CRIA No. 2 of 2018

¶49

20.According to us, this is a case which would fall under
Section 300 of the IPC, which provides that culpable homicide is not
murder if it is committed without premeditation, in a sudden fight,
in heat of passion, upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual manner.
The explanation to this provision states that it is immaterial in such
cases, which party offers the provocation or commits the first assault.

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21.From the evidence on record, it is apparent that this was
not some case of premeditation. In this case, it is not as if the
appellant went to the room of the deceased Salam, but rather, the
evidence indicates that it is Salam who came to the appellant's room
and started fighting with the appellant. PW5 has deposed to the
appellant and Salam fighting with each other with fist blows inside
the room. PW5 has deposed that it is the deceased Salam who caught
the neck of the appellant. This aspect is well corroborated by the
medical evidence of Dr. Sapeco (PW8). Obviously, this scared PW5
who ran out of the room to seek help of PW12, and because she
could not meet PW12, she even attempted to make phone calls to the
police. According to the testimony of PW12, it appears that the fight
in the room spilled over to the road, and it is here that the appellant
stabbed the deceased Salam in the stomach. The appellant, perhaps
thinking that Salam has succumbed to the injuries, then, dragged and

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 11 CRIA No. 2 of 2018

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dumped him in the nearby Temple pond. All this indicates that the
crime was committed without premeditation, in a sudden fight, in a
heat of passion, upon a sudden quarrel. From the nature of injuries
upon Salam, we cannot say that the appellant in the present case, has
taken any undue advantage or acted in a cruel or unusual manner.
Such matters can never be weighed in a golden scale. The
surrounding circumstances have to be taken into account. Therefore,
according to us, this is a case of culpable homicide not amounting to
murder, and accordingly, the conviction under Section 302 of IPC
warrants interference.

¶53

22.Again, from the nature of injuries on deceased Salam, we
cannot agree with Mr. Noorani that this was a case where the act, by
which the death was caused, was without any intention to cause
death, or to cause such bodily injury, as is likely to causedeath. The
appellant inflicted two stab wounds on the stomach of the deceased.
Therefore, this is a case which would come under Part I and Part II of
Section 304 of IPC, as urged by Mr. Noorani. This is punishable with
imprisonment for life, or imprisonment of either description for a
term which may extend to 10 years and shall also be liable to fine.

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23.Taking into consideration the aforesaid, there is really no

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 12 CRIA No. 2 of 2018

¶56

necessity to go into the issue of recoveries under Section 27 of the
Evidence Act. However, on the authority of Surendra Singh B. Sand
others Vs. The State of Maharashtra, 1986 1 Crimes 94, cited by
Mr. Noorani, we agree with the principle that where the premises are
already in control of the police much before discovery, such discovery,
would not entail any benefit under Section 27 of the Evidence Act.

¶57

24.Mr. Noorani also relied upon the ruling in Shri. Basant
Mahato Vs. State (Through Ponda Police Station), judgment and
order dated 18.08.2017 in Cr. Appeal No. 22 of 2015 in which,
one of us, (Prithviraj K. Chavan, J.) was a party, in support of his
alternate contention. According to us, this ruling is quite relevant,
and on the basis of the same, it would only be appropriate if the
conviction of the appellant under Section 302 of IPC is substituted
with conviction under Section 304 Part I of IPC, in the facts and
circumstances of this case.

¶58

25.For all the aforesaid reasons, we partly allow this appeal
by maintaining the conviction under Section 201 IPC, but
substituting the conviction under Section 302 of IPC, with
conviction under Section 304 Part I of IPC.

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 13 CRIA No. 2 of 2018

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26.As submitted by Mr. Kaif Noorani, the petitioner is in
prison since the date of his arrest on 13.06.2006. There is already an
order that his period of detention since the date of his arrest on
13.06.2006, shall be set off against the sentence of imprisonment, in
accordance with Section 428 Cr.P.C. There is also a direction that the
sentences under Sections 201 of IPC and 302 of IPC to run
concurrently. This means that the petitioner has suffered
imprisonment of almost 13 years by now.

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27. According to us, looking into the background of the appellant, and the circumstances in which the crime was committed, the ends of justice will be met, if the appellant is sentenced to suffer imprisonment for the period already undergone, and to pay fine of 1,500/- and in default, to suffer simple imprisonment for a period of one month.`

¶62

28.After the arguments concluded in this matter on
05.03.2019, we had pronounced the operative portion of the order
and therefore, we now reiterate the same.

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29.Accordingly, we dispose of this appeal with the following
order :-

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 14 CRIA No. 2 of 2018

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(A)The appeal is partly allowed.

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(B)The conviction under Section 201 of IPC is maintained.
However, the conviction under Section 302 of IPC is set aside and
instead, the appellant is convicted under Section 304 Part I of IPC.

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(C) The appellant is sentenced to suffer imprisonment for the period already undergone and to pay a fine of 1,500/- and in default, to suffer simple imprisonment for a period of one month.`

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(D) The appellant shall be set at liberty on deposit of the fine
(if not already deposited) and is not required in connection with any
other offence;

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(E)The order as regards the disposal of the muddemal
property is maintained.

¶70

30.We record our appreciation at the efforts put in this
matter by Mr. Kaif Noorani, who appears under the Legal Aid
Scheme on behalf of the appellant.

¶71

(Prithviraj K. Chavan, J.) ( M.S. Sonak , J.)

¶72

Dv*

Prakash Nair, Present Undergoing Sentence at Central Jail, Aguada., v. State of Goa, through Public Prosecutor.

Case brief

What is this about?

What did the court decide?

Prakash Nair, Present Undergoing Sentence at Central Jail, Aguada., v. State of Goa, through Public Prosecutor.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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