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2004(3) Supreme 652
SUPREME COURT OF INDIA
(From Bombay High Court)
Y.K. Sabharwal & Arijit Pasayat, JJ.
Shankar Narayan Bhadolkar -Appellant
versus
State of Maharashtra -Respondent
Criminal Appeal No. 309 of 1997
Decided on 9-3-2004
Counsel for the Parties :
For the Appellant : A.S. Bhasme, Advocate.
For the Respondent : Ravindra Keshavrao Adsure, Advocate.
(ii) Indian Penal Code, 1860-Sections 302, 201 and 304A-Deceased was invited by appellant to attend marriage ceremony-Appellant picked up gun, loaded it and fired at deceased-Conviction for offence of murder by Courts below-Appeal-Contention that act of accused would fall u/s 304A IPC-Section 304A IPC would apply where there was no intention to cause death and no knowledge that act done in all probabilities will cause death-Section 304A IPC had no application in the case. (Paras 18 to 20)
(iii) Indian Penal Code, 1860-Sections 302 and 201-Deceased was invited by appellant to join marriage ceremony-Deceased and others took meals and were to take bus for return journey-Appellant picked up a gun, loaded it with cartridge and pointed it towards deceased and fired it and deceased died on spot-Difference between culpable homicide and murder-It is the degree of probability of death which determines whether a culpable homicide is of gravest, medium or the lowest degree-Word "likely" in clause (b) of Section 299 IPC conveys sense of probable as distinguished from a mere possibility-In the scenario described by witnesses and evidence of ballistic report, offence committed by accused was covered by Section 304 Part II-Custodial sentence of 8 years would meet ends of justice. (Paras 26 and 36)
JUDGMENT
Arijit Pasayat, J. - Pandurang Varambale (hereinafter referred to as the deceased ) would not have in his wildest dreams on 8.5.1982 dreamt when he left home to attend the invitation extended by the appellant Shankar Narayan Bhadolkar (hereinafter referred to as accused A-1), that he would never return alive. The appellant allegedly shot him dead by a gun when the deceased was in his house in response to his invitation to attend a marriage celebration. The appellant along with his wife Laxmibai (A-4), son Dinkar (A-3) and one Sambhaji Mahadeo Patil (A-2) faced trial. They were charged for commission of offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC ). Appellant was alternatively charged for commission of offence punishable under Section 302, 201 and Section 25(1A) of the Arms Act, 1959 (in short the Arms Act ).
2. The trial Court found the appellant guilty of the offences punishable under Sections 302, 201 IPC and 25 of the Arms Act. The other three co-accused persons were acquitted. Appellant was sentenced to undergo life imprisonment, two years and six months respectively, with fines and default stipulations.
3. Prosecution version as unfolded during trial is as follows:
Complainant Dilip Shripati Dalavi (PW-2) had a laundry in the Shivaji Chowk, Kohlapur. There was also a hair cutting shop adjoining his laundry, which was run by Shantaram Mane (PW-4) and Ramchandra Mane. They are friends. The deceased was coming to the said hair cutting saloon and hence he had become their friend. Accused No.1-appellant was also visiting the said saloon and he had also become their friend. On 2.5.1982, accused No.1 had come to the shop of Dilip Dalavi (PW-2) and gave him invitation for dinner arranged in his house at Vadanage, near the limits of Nigave Dumala Village. The said invitation was for the dinner arranged on 8.5.1982. Besides the complainant, accused No.1 also invited Rajendra the brother of the complainant, Shantaram Mane (PW-4) and his brother Rama and another friend Dattu Kurane. Accused No.1 told him that in case they did not attend the dinner, then they will have to pay a penalty of Rs. 100/-. At that time, deceased had come to the saloon where this talk was going on. The deceased was also invited by accused No.1 for the said dinner.
4. On 8.5.1982 about 5.30 p.m. the complainant and others left for Vadanage to the village of accused No.1. After reaching the Mace, they moved around and thereafter took meals. A bus was to leave to about 8.00 p.m. for their return journey to Kolhapur. They finished their meals at about 7.30 p.m. Thereafter all the invitees came out of the house and they wanted to catch the bus.
5. One Sambhaji Patil (A-2) and one unknown person entered the house of accused No.1. Deceased also followed them and went inside. As there was some time for catching the bus, the complainant also entered the house of accused No.1 for chewing betal leaves. The bus stop was just in front of the house of accused No.1. The complainant sat on the cot. The deceased was standing on the threshold of the house. The unknown person was standing close to them. Accused No.2 was sitting on the chair in front of him.
6. Accused No.1 lifted the gun, loaded it with cartridge and pointed it towards the deceased and then fired it. The said shot hit on the left side chest of the deceased, who collapsed and blood started oozing. As soon as deceased fell down, he died instantaneously. As the complainant was afraid, he came out of the house. Rajendra, Shantaram, Ramchandra and Dattu Kurane were outside the house. As soon as he came out of the house, those persons enquired from him about the sound. He disclosed to them that accused No.1 had fired a gun hitting Pandurang. Thereafter they all started towards Vadanage. They went to the house of Sadashiv Khadaka to whom they narrated the incident, because he was their friend. The distance between his house and the house of a
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