Rajesh Anantram Thakur vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(Bom) 373

IN THE HIGH COURT OF BOMBAY
M.G. Chaudhari, J.
Rajesh Anantram Thakur.... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 335 of 1992, decided on 12-8-1992.
Advocates appeared :
Shirish Gupte with Mrs. Kalyani Pradhan, for the appellant.
Mrs. S.S. Keluskar, A.P.P., for the respondent.

Headnote:Section 360-Benefit under-Object of section-Conviction altered from Section 304. Part II to Section 325-Accused entitled to benefit of probation having regard to extent of punishment prescribed for offence, even though accused above 21 years of age-Fit ease to show leniency and sympathy to accused in exercise of discretion under section Benefit of section must be given In appropriate ease consistently with object behind it-Provisions mandatory.
       Since the conviction now bas been altered the appellant is entitled to be given benefit of probation having regard to the extent of punishment prescribed for the offence for which he is now convicted though be is above twenty one years of age, and that benefit can be extended in exercise of powers of High Court under sub-section (4) of Section 360 of the Code. This section is a piece of beneficent legislation the object of the section is to avoid sending the first offender to prison and thereby running the risk of turning him into a regular criminal. In the instant case this is the first conviction of the appellant. He is a student. He is in his twenties. He is not a person with criminal tendency. There is nothing to show that be is a person of bad character. He bas fixed place of abode. He is willing to compensate the family of the deceased. The circumstances in which the incident happened were unfortunate. This, thus is eminently a fit case to show leniency and sympathy to the appellant in the exercise of the discretion under the section. It is needless to emphasise that benefit of this section must be given in an appropriate case consistently with the object behind it. Indeed its provisions are mandatory.

       Sections 304 Part II and 325-Conviction under Section 304 Part II-Offence of culpable homicide not amounting to murder-Ingredients of see 304 part II-Not applicable in instant case-No intention to cause death or such bodily injury as was likely to cause death - Whether happening on spur of moment-Accused enranged by disparaging remarks passed by deceased Exchange of word and thereafter scuffle between both sudden quarrel Exchange of fists and kick-No arm with accused-No previous history to incident-No evidence that accused inflicted particular blows with knowledge that same would be fatal-Ordinarily appellant have knowledge that giving of fist or kick blows would be so serious as to result in causing death of deceased Held-Accused voluntarily caused grievous hurt in as much as hurt so caused endangered life of deceased-Accused would be guilty for committing offence punishable under Section 325-Conviction under Section 304 part II to be set aside.
       Section 304 part II Penal Code would apply more appropriately where culpable homicide not amounting to murder has been committed if act is done with knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.
       Section 325 of the Indian penal Code provides punishment for voluntarily causing grievous hurt. In the absence of any intention on the part of the appellant to cause death or knowledge that his act was likely to result in causing death, yet having regard to the nature of the injuries that were found to have been suffered by the deceased, the conclusion is inevitable that by giving fist and kick blows the appellant had voluntarily caused grievous hurt inasmuch as the hurt caused endangered the life of the deceased and therefore he would be guilty for committing offence punishable under section 325 I.P.C.

JUDGMENT - M.G. CHAUDHARI, J.:---When the appeal was placed for admission before me, I found it necessary to call for the record and proceedings and after perusing the same I am of the view that the appeal can be disposed of at this stage itself and need not be kept pending for years. Accordingly I have admitted the appeal. The learned Prosecutor waived notice and by consent the appeal was taken on board and is finally heard. The appellant is also present.

2. This appeal is directed against the judgment and order passed by the learned 8th Additional Sessions Judge, Thane on 29th June, 1992 convicting the appellant for the offence punishable under section 304 Part-II of the Indian Penal Code for which he has been sentenced to suffer rigorous imprisonment for five years.

3. The incident occurred in somewhat unfortunate circumstances. The appellant is a student and is presently reading for M.Com. examination. At the time of the incident he was a school going boy. Deceased Jaswant Singh Jogendra Singh Ramgadiah as well as the appellant were residents of Camp No. 3, Ulhasnagar. Both of them were working as labourers in the workshop of one Manvirsingh. The houses of both the parties were located in the vicinity of the workshop. They were knowing each other. On 10-4-1988 at about 1 O'clock in the afternoon the workers of the workshop of Manvirsingh known as Savindra Engineering Works had their lunch break. Manvirsingh, the owner of the workshop, had permitted the workers to get cooled water or ice from his house during the lunch break. On the aforesaid day appellant's brother Rocky went into the house of Manvirsingh and brought out ice from the refrigerator. However, the deceased Jaswant Singh threatened Rocky and asked him as to why and by whose permission he took the ice from Manvirsingh's house. It may be mentioned that Jaswant Singh was brother-in-law of Manvirsingh, the cousin sister of Jaswant Singh having been married to him. Rocky went to the house of the accused and informed him about the behaviour of Jaswant Singh with him. According to the prosecution when Jaswant Singh questioned Rocky as to how he was taking the ice from the house, Rocky had said that he was doing so at the instance of the appellant. It was alleged that Jaswant Singh had said to Rocky thereupon as to whether the appellant was the minister of that place. When this was conveyed to the appellant by Rocky he was infuriated and came out of his house. He went to Jaswant Singh and put a counter question to him as to whether he was the minister of the place. That led to a quarrel between them. Both of them grappled each other and gave fist and kick blows to each other. During that scuffle Jaswant Singh fell down on the ground. It was alleged that even thereafter appellant continued to give kick and fist blows to him on various parts of his body. Jaswant Singh complained of pain in his stomach and was carried to his house by his younger brother Baldev Singh and thereafter to central hospital, Ulhasnagar where he was treated. However, he died on the same night in the hospital. On the following day complaint was lodged at the Vitthalwadi Police Station by Jogendrasingh father of the deceased Jaswant Singh. Offence was registered against the appellant under section 302 I.P. Code and he was arrested. After completing the investigation the chargesheet was filed against him on 27-5-1988 and the case was committed to the Court of Session, Thane.

4. The appellant pleaded not guilty to the charge for offence under section 302 I.P. Code. In his statement under section 313 Criminal Procedure Code he denied that he had assaulted the deceased at the time of incident. According to him when Rocky was bringing the ice from the house of Manvirsingh he was allowed to do so by Manvirsingh who had taken no objection and as Rocky was threatened by deceased Jaswant Singh he came out of his house. There was exchange of words between him and Jaswant Singh. Jaswant Singh got angry and rush

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