Preface
It definitely has to be acknowledged most gracefully that the Aurangabad Bench of the Bombay High Court in a most learned, laudable, landmark, logical and latest judgment titled Digambar @ Digu Baburao Shirole vs The State of Maharashtra & Ors in Criminal Appeal No. 151 of 2018 and which is cited in Neutral Citation:
2023:BHC-AUG:26251-DB that was reserved on December 8, 2023 and then finally pronounced on December 15, 2023 while taking a very balanced and pragmatic stand has very sagaciously set aside the murder’s conviction and instead sentenced a man for a rigorous imprisonment of eight years under Section 304 Part I of the Indian Penal Code (IPC) i.e., culpable homicide not amounting to murder due to the glaring fact that the occurrence of the incident took place all of a sudden and on pretty count.
It must be noted that the Aurangabad Bench was dealing with a criminal appeal that had been filed by a man who was very distraught with the judgment that had been delivered by the Trial Court by which he was convicted for the offence of murder under Section 302 of IPC and was sentenced most unjustly to imprisonment for life which was totally unwarranted and unjustified. We thus see that the High Court partly allowed the appeal.
Introduction
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice Abhay S Waghwase for a Division Bench of the Aurangabad Bench of Bombay High Court comprising of Hon’ble Smt Justice Vibha Kankanwadi and himself sets the ball in motion by first and foremost putting forth in para 1 that:
Feeling aggrieved and dissatisfied by the judgment and order of conviction passed by the learned District Judge-2 and Additional Sessions Judge, Shrirampur, Dist. Ahmednagar dated 08-02-2018 thereby convicting appellant for offence under Section 302 of the Indian Penal Code (IPC) and thereby sentencing him to suffer imprisonment for life and to pay fine, instant appeal has been preferred by the appellant.”
Case Of Prosecution In Brief
To put things in perspective, the Division Bench envisages in para 2 that, “Shrirampur Taluka Police Station chargesheeted appellant for offence under Section 302 of the IPC on the premise that on 20-12-2015 between 04:00 p.m. to 04:30 p.m. accused appellant came to the field of deceased Rajendra and demanded extra saplings from him. When deceased refused, quarrel took place and thereafter, appellant mounted attack on deceased by means of wooden handle of spade. He also used the handle for pressing neck of deceased Rajendra.
Deceased was shifted to hospital where Doctor examined and declared him dead. PW3 Ashok Shirole, brother of deceased , set law into motion on the strength of which, Shrirampur Taluka Police Station registered crime No.I-148 of 2015 and said crime was investigated and on its completion, appellant was chargesheeted. Prosecution adduced evidence of in all 13 witnesses and relied on documentary evidence like FIR, inquest panchanama, post mortem report, recovery panchanama etc. Defence denied to lead any evidence.
After appreciating evidence of prosecution and on hearing both sides, trial Judge held death of Rajendra to be homicidal one and also held charges proved and thereby convicted present appellant as above, which is now questioned by way of instant appeal.”
Observation About Homicidal Death
Briefly stated, the Division Bench observes in para 5 that:
After appreciating the submissions and on going through the record, from the evidence of PW8 Dr.Band, Autopsy Doctor, it appears that deceased Rajendra is shown to have suffered sixteen injuries on various parts of body. Autopsy Doctor has attributed probable cause of death due to liver injury due to hard and blunt trauma. Doctor has also noted three injuries to liver on internal examination and also found fracture to ribs of both sides and has further opined that all injuries are possible by use of wooden handle of spade.
In cross-examination, Autopsy Doctor has admitted that deceased was very thin in nature. That if a person is addicted of liquor, damage to liver can be in the nature of fatty liver cirrhosis. He is unable to state for how long liquor smell remain present in a person, who has consumed liquor before death. Therefore, taking into account Autopsy Doctor’s evidence, it appears that he has narrated both internal and external injuries and has opined that the injuries noticed by him are possible by use of wooden handle of spade.
However, Doctor is very categorical about his opinion that death is due to liver injury due to hard and blunt trauma. Lacerations of various measurements are reflected in paragraph no.4 of his evidence. But it is pertinent to note that in substantive evidence, Doctor has not categorically stated about death to be homicidal one or that in the ordinary course of nature, the injuries could cause death. Therefore, with such material on record, it cannot be said for sure that death is only and only homicidal and not otherwise. However, death is attributable to above quoted injuries.”
PROSECUTION EVIDENCE IN TRIAL COURT
Do note, the Division Bench notes in para 6 that:
Consequently, we are in now called upon to visit and consider other evidence adduced by prosecution in the trial Court. In support of its case prosecution has adduced evidence of in all 13 witnesses. Their status is as under :
- PW1 Balasaheb Murlidhar Wagh is Pancha to inquest panchanama Exh.50. His evidence is at Exh.49.
- PW2 Santosh Savleram Wagh is Pancha to seizure of clothes of deceased. His evidence is at Exh.52. Seizure panchanama is at Exh.53.
- PW3 Ashok Kachru Shirole is brother of deceased. He is informant. His evidence is at Exh.54.
- PW4 Raosaheb Narayan Adsare is Pancha to spot panchanama Exh.57. His evidence is at Exh.56.
- PW5 Sangita Subhash Chakranarayan is star witness. She is eye witness. Her evidence is at Exh.60.
- PW6 Prakash @ Babasaheb Laxman Shirole is cousin brother of deceased. His evidence is at Exh.63.
- PW7 Kailas Vitthal Ghadge is Police Head Constable. He is carrier. His evidence is at Exh.64.
- PW8 Dr.Yogesh Kisan Band is Autopsy Doctor. His evidence is at Exh.67.
- PW9 Vilas Rajaram Ghane is Police Head Constable, who prepared inquest panchanama. His evidence is at Exh.69.
- PW10 Dr.Sharad Madhavrao Satpute is Medical Officer, who initially examined the deceased. His evidence is at Exh.77.
- PW11 Sagar Ambadas Pawar is a labour. He has not supported prosecution. His evidence is at Exh.79.
- PW12 Jitendra Pandharinath Raut is Assistant Chemical Analyzer. His evidence is at Exh.84.
- PW13 Kishorkumar Bhimasing Pardeshi is Investigating Officer. His evidence is at Exh.92.
Analysis
Quite significantly, the Division Bench points out in para 10 that:
On critically evaluating above evidence, it is emerging that alleged incident has taken place in the field of very deceased Rajendra, who had engaged PW5 Sangita for plantation of onion saplings. PW5 Sangita seems to be the important witness as according to her, in her presence, appellant entered the field of deceased and put up a demand of extra bag of saplings.
Very case of informant and PW5 Sangita is that, on refusal to comply with the demand of extra saplings, quarrel erupted between accused and deceased and accused appellant had put to use very handle of a spade and beaten deceased. PW5 Sangita does not speak about appellant reaching to the field getting armed with any article.
He seems to have come there for raising a demand of extra saplings and getting annoyed for non-compliance, he seems to have beaten deceased. Apparently even PW5 Sangita speaks of assault being made by wooden handle of spade and medical expert also confirms injuries noticed by him are possible by wooden handle of spade.
Resultantly, incident is fallout of verbal altercation and therefore, in our opinion, there is no premeditation to do away deceased. Article already available at the agricultural field seems to have been put to use. Therefore, taking such material into consideration, in our opinion, it is not a case of homicide. Rather it is a case of culpable homicide not amounting to murder. Now, only it is to been seen whether Section 304 Part I or Section 304 Part II would be attracted.”
Most significantly, the Division Bench propounds in para 12 that:
Here the learned trial Judge has held accused guilty for offence under Section 302 of the IPC and there is serious challenge by the appellant to the same. Very recently the Hon’ble Apex Court has elaborately discussed subtle distinction between Section 304 Part I and Part II in the judgment of Anbazhagan v. The State represented by the Inspector of Police (Criminal Appeal no.2043 of 2023, decided on 20-07-2023). In paragraph no.60 of the said judgment the Hon’ble Apex Court has elaborately discussed applicability and attractability of Section 304 Part I / Part II. Certain principles are enunciated by referring to previous legal pronouncements.
Applying above law in instant case, it is manifest that occurrence took place all of a sudden, that too on petty count. Hence, we are of the firm opinion that, it is not at all a case attracting Section 302 of the IPC. Bearing in mind the circumstances in which incident in question took place, incident being a sudden one, it should attract offence under Section 304 Part I of the IPC only.”
Summation:
In sum, the Division Bench then succinctly concludes by holding in para 13 that, “Therefore, on meticulous re-examination, re-appreciation of available evidence on record, it appears that there was no motive, intention or premeditation. Incident has taken place all of a sudden only on refusal to comply with the demand of extra saplings.
Hence, occurrence having taken place suddenly, exception 4 to Section 300 of the IPC comes into play and it is not at all a case attracting Section 302 of the IPC as held by the learned trial Judge. Therefore, interference to that extent is called for. Accordingly, we proceed to pass following order :
ORDER:
- Criminal Appeal No.151 of 2018 is partly allowed.
- The conviction and sentence awarded to appellant – Digambar @ Digu Baburao Shirole by the District Judge-2 and Additional Sessions Judge, Shrirampur, Dist.Ahmednagar in Sessions Case No.9 of 2016 on 08-02-2018 for the offence punishable under Section 302 of the IPC, stand set aside.
- Appellant – Digambar @ Digu Baburao Shirole is hereby held guilty for committing offence punishable under Section 304 Part I of the IPC and is sentenced to suffer rigorous imprisonment for eight years.
- It is clarified that rest of the operative order of the impugned judgment passed by the trial Court is maintained.
- District Judge-2 and Additional Sessions Judge, Shrirampur as well as the concerned Jail Authority to take note of this judgment.
In essence, the key takeaway that must be taken from this most commendable judgment by the Aurangabad Bench of the Bombay High Court is that the Courts must desist from awarding death or life term in cases of death where fight occurred due to sudden fight and on petty count. In such cases the Court must take extra precautions to ensure that a person is not wrongly convicted and also is not punished more excessively than is needed in the given situation. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
