Partly allowed

Nandu Dada Survase v. the State of Maharashtra

Bombay HC3 Feb 2022APEAL/1106/2012

Case brief

AI extract

What is this about?

In appeal against murder conviction, the High Court held that the offence arose from sudden quarrel and grave provocation. It quashed murder conviction under IPC 302, convicting the appellant of culpable homicide not amounting to murder under IPC 304(II) and sentenced him to already undergone imprisonment with release.

What did the court decide?

Conviction for murder (IPC 302) quashed; convicted for culpable homicide not amounting to murder (IPC 304(II)); sentenced to period already undergone; released forthwith if not required in other offen

Nandu Dada Survase Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.1106 OF 2012

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Nandu Dada Survase

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Age – 45 yrs., Occu. - Agriculturist,
R/o. Ranjani, Tal. - Pandharpur,
Dist. - Solapur.…Appellant
At present in Sub-Jail, Pandharpur.(Orig. Accused No.1)
V/s.

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(Orig. Accused No.1)

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The State of Maharashtra

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…Respondent

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Ms. Shraddha Sawant, Appointed Advocate for the Appellant.
Ms. Veera Shinde, APP for the Respondent - State.

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CORAM:SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
DATE:3rd FEBRUARY 2022.

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ORAL JUDGMENT :

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1.The appellant herein is convicted for the offence
punishable under section 302 of the Indian Penal Code and sentenced
to suffer imprisonment for life and to pay a fine of Rs.5,000/- (Five

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Thousand only), in default to suffer further RI for three months vide
judgment and order passed by the learned Additional Sessions Judge,
Pandharpur in Sessions Case No.83 of 2009 in Crime No.232 of 2009.
Hence, this appeal.

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2.Such of the facts necessary for the decision of this appeal
are as under :-

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(i)On 28th August 2009, at about 1.00 pm, Narayan Salunkhe
lodged a report at Pandharpur Police Station alleging therein that his
daughter Shakuntala (deceased) was married to the present appellant.
The couple was blessed with two sons and a daughter who were
studying in Ashram School. Due to famine 4 to 5 years prior to 28th
August 2009, Shakuntala and Nandu had started residing at Anavali,
Taluka Pandharpur along with their cattle. A discordant note had
struck between the couple and thereafter, Shakuntala had started
residing with her parents. She was working as a house-maid.

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(ii)On 27th August 2009, on occasion of Gauri Ganpati Festival,
Shakuntala had gone to village Ranjani to meet her sister Rajabai.

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(iii) On 28th August 2009 at about 9.30 am, Rajabai, sister of the
deceased had rushed home and informed P.W.5 that on that day at
about 8.00 am when Shakuntala was at the bus stop the husband of
Shakuntala i.e. the present appellant approached her, abused her and
assaulted her. They rushed to the bus stop and noticed that Shakuntala
had sustained incised wound on her neck and she had succumbed to
the said injuries.

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(iv)On the basis of the said report, Crime No.232 of 2009 was
registered at Pandharpur Taluka Police Station for the offence
punishable under section 302 of the IPC.

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(v)At the trial, the prosecution examined as many as 11 witnesses to
bring home the guilt of the accused. The case of the prosecution rests
on the evidence of P.W.5 – Narayan Salunke, the complainant, P.W.6 –
Mahadeo Salunkhe, brother of the deceased, P.W.7 – Anand More, eye-
witness to the incident and P.W.8 – Rajabai, eye-witness to the incident

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- sister of the deceased.

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3.P.W.5 – Narayan Salunkhe, the complainant has proved the

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contents of the FIR. He has stated before the Court that his daughter
Shakuntala was being harassed and ill-treated at the hands of the
accused since he suspected her chastity. That, he used to abuse and
assault her under the influence of alcohol. It is in these circumstances
that she had withdrawn herself from the society of her husband and

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had started working as an agricultural labour. In the course of working
as an agricultural labour, on one occasion, her left hand was fractured.

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She was unable to work and therefore, she had started working as a
maid. She was residing at Karad Naka and her children were studying

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in Ashram School. However, her children visited her during the
vacation. That, on the eve of Gauri Ganapati, his daughter Shakuntala
had been to the house of Rajabai with idols of Laxmi. When she was at
the bus stop near Gandage vasti her husband gave her blow of scythe
on her neck, despite her cry for help nobody had rescued her.

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4.It is admitted by P.W.5 that by the time he reached the spot
of incident the police had arrived and people had gathered around.

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5.P.W.6- Mahadeo Salunkhe happens to be brother of the
deceased. His evidence corroborates the evidence of P.W.5. The witness
was confronted with his brother’s statement and he has denied to have
stated that he had disclosed to the police that Dnyanoba Ligade and
Ananda More have witnessed the prelude to the incident and assault.
He has denied the suggestion that when accused was on his way to the
work, the deceased had obstructed him by pulling his shirt and
shouting at him by alleging that he had stolen the money from his
house and that he is impotent and therefore, she was distracted and
was going out of the house. She had abused him. He has denied to
have stated that the independent witnesses had informed him that the
accused was trying to go away from the scene of offence but was

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obstructed and abused by the deceased by referring to him as
impotent, thief and all sorts of abuses. She was trying to snatch bags
from the bicycle and had repeated that he should not bother even if
she maintains illicit relations with others as that was none of his
business.

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6.P.W.7 – Ananda More is an independent eye-witness who

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was declared hostile by the prosecution. It is elicited in the cross-
examination that four to five years prior to the incident, Solapur
District was stricken by famine, hence, the Government had opened
cattle camps at village Anavali. He was confronted with his previous
statement and he has denied to have said the same. His statement is a
part of records and proceedings and the contradictions are marked at
Exh.A which read thus:-

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“That at about 8.30 am, the deceased Shakuntala was at the
bus stop. Her husband was proceeding for work. The
deceased obstructed his way by catching hold of his shirt and
questioned him as to why he had stolen money from her
house. She referred to him as impotent and started abusing
him. The accused had attempted to leave from the spot but
she continued to obstruct him by pulling the bag hanged to
the handle of his bicycle. Thereafter, the accused removed the
scythe from his bag and started assaulting his wife with the
scythe. The witness had tried to intervene. That, witness had
rushed to the village and informed the police patil as well as
Sarpanch Bhivaji Dandge and then left for work.”

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7.P.W.8 – Rajabai Ligade is an eye-witness to the incident. She

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has reiterated that the deceased was harassed by the accused since he
suspected her character. Therefore, she was constrained to leave her
matrimonial abode and had started residing with her father. Initially,
she was working as an agricultural labour and thereafter, she started
working as a maid in Manisha Nagar, Pandharpur. She was also selling
vegetables. The deceased had visited her house, thereafter, she wanted
to go to Pandharpur and therefore, was waiting at the bus-stop just
near the vasti of Ananda More – P.W.-7. She had forgotten her purse
and therefore, P.W.8 rushed to the bus-stop to hand over the said purse
and when she was near the vasti of Ananda More she saw that her
sister was being assaulted by the accused. She saw that her sister had
sustained injuries on her neck, face and hands. She, therefore,
informed her father that her sister was lying dead at the said spot.

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8.P.W.9 – Shankar Jirage happens to be the investigating

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officer. He has deposed before the Court the steps taken by him in the
course of investigation. He has proved the omissions and
contradictions in the evidence of P.W.6, P.W.7 and P.W.8. The learned

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counsel for the appellant has submitted before this Court that there is
no denial of the fact that the said incident had occurred. She has urged

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before the Court to take into consideration the circumstances in which
the said incident has occurred. According to her, the accused was
passing by the road on his own. He was working as an agricultural
labour and was engaged for cutting sugarcane. He was obstructed by
the deceased and she had levelled scathing remarks against his honour.
He had tried to proceed quietly, however, she continued to abuse him
in public and therefore, there was grave and sudden provocation due
to which the said incident had occurred and therefore, according to the
learned counsel, the offence committed by the appellant does not fall
under section 302 of IPC.

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9.Per contra, the learned APP has submitted that no doubt
there was grave and sudden provocation, but at the same time, the
accused should have had self-restraint. The learned APP has drawn
our attention to the column no.17 of the post-mortem notes which
clearly shows that the deceased had sustained as many as 10 injuries in
the nature of chop wounds. The injuries were so grave that the
oesophagus and trachea were also seen cut. It is therefore prayed that
the judgment of the trial Court does not call for any interference.

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10. With the help of the learned counsel for the accused and

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the learned APP, we have gone through the records and proceedings.
We agree with the learned counsel for the accused that it is necessary
to take into consideration the circumstances in which the said incident
had occurred. In fact, the couple was married for almost more than 15
years. The appellant was the father of three grown up children who
were staying in the Ashram School. Almost four years prior to the
incident, the couple had parted their ways and had started living
independently without interfering into each other’s life and in this
background, on the unfateful day, suddenly upon seeing the accused by
chance, the deceased had not just obstructed his way by holding his
neck, by pulling his shirt but had started hurling abuses and had
levelled scathing remarks by which self-esteem of the accused was not
only lowered in his own eyes but in public. The incident had occurred
on a busy road near the residential house of Ananda More. The loud
allegations made by the deceased were heard by one and all. It was
quite natural for the man to feel ashamed upon being referred as
impotent.

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11.The appellant was the father of three children. Despite that

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the deceased had not only stopped upon referring to him as impotent

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but had given it as an excuse for having illicit relations. She had
further stated that it is none of his concern as to how she lives her life.
There is no material to show that after parting ways the accused had
ever interfered with the lifestyle of the deceased.

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12.It is true that the incident of assault is outcome of a grave
and sudden provocation. The accused was deprived of his self-control
and hence, he could not have any restraint upon himself while
mounting assault. It was not a pre-meditated act. He was on his way
for work and therefore, was carrying a sickle in his bag. The offence
committed by the accused falls under Exception 4 to Section 300 which
reads thus:-

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“Exception 4 – Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner.”

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13.The accused has been in custody since 2009. He has
almost undergone 12 years imprisonment. In view of this and the
observations made hereinabove, the appellant deserves to be
convicted for the offence punishable under section 304(II) of IPC

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which would serve the ends of justice. Hence, we pass the following
order :-

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ORDER

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(i) The appeal is partly allowed;

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(ii)The conviction of the appellant for the offence punishable under section 302 of IPC vide judgment and order dated 28^th June 2012 passed by the Additional Sessions Judge, Pandharpur is hereby quashed and set aside;

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(iii)The appellant is convicted for the offence punishable under

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section 304 (II) of the IPC and is sentenced to the period already undergone;

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(iv)The appellant be released forthwith, if not required in any other offence;

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(v)The learned counsel Ms. Shraddha Sawant has assisted the Court to the best of her capacity and she is entitled to the professional fees;

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(vi)Appeal is disposed of.

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(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)

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Digitally signed by PALLAVI PALLAVIMAHENDRAWARGAONKAR MAHENDRAWARGAONKARDate:2022.02.09 12:02:38 +0530

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Nandu Dada Survase v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Nandu Dada Survase 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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