Back
2011 ALL MR (Cri) 2313
In the High Court of Bombay at Aurangabad
NARESH H. PATIL & T. V. NALAWADE
Shrawan s/o. Dagdu Pawar
Versus
The State of Maharashtra
CRIMINAL APPEAL NO. 648 OF 2009
Decided on : 25-03-2011
Indian Penal Code, 1860 - Sections 96, 97, 99, 300 and 304-Culpable homicide-Right of private defence-Availability of-Benefit of exceptions in Section 300 of Code-Court, obliged to see whether special characteristic or elements mentioned in Section 300 to constitute offence of murder exists-Burden not lies on defence to show that it’s case comes under exceptions mentioned in Section 300 of Indian Penal Code.-
Indian Penal Code, 1860 - Section 304, Part-II-Conviction and sentence under-Culpable homicide of young boy-Appellant/accused belong to Backward class-His family have no support in village-Sentencing accused with R.I. for 7 years and fine would be just and sufficient.-Both the sides are heard on the point of sentence. For the State, it was submitted that young boy of 22 years was killed in the incident and Shrawan who was running a shoe-shop must have knowledge that the use of such dangerous weapon was bound to cause fatal injury. In view of the other record of the present case and the fact that the property of family of Dagdu was totally burnt there is clear probability that the side of the accused wanted to create fear in the mind of complaint’s side. Only because dangerous weapon was used and the injury has caused the death, the punishment needs to be given under Section 304-II of IPC. The appellant is from backward class and the record shows that his family had no support in the village. In view of these peculiar circumstances, this Court is of considered view that sentencing the accused Shrawan, with R.I. for seven years and fine would be just and sufficient.
Key Points: - (!) Explanations of Murder vs. Culpable Homicide and three degrees of culpable homicide under IPC 302, 304 I, 304 II. - (!) Exception 2 to Section 300 requires satisfying the ingredients of Sections 96 and 97 and respects Section 99 restrictions. - (!) Exception 4 conditions for sudden fight and lack of premeditation; distinction from murder. - [4000373100007] Right of private defence provisions 96-99 and four conditions for private defence to permit exception 2. - [4000373100008] Four conditions summarizing private defence limits (no fault in bringing about encounter, imminent peril, no safe retreat, necessity). - [4000373100010] Details on applying Exception No. 4 (sudden fight) and related case reasoning. - [4000373100032] Courts assess whether special characteristics of murder exist; burden not on defence to prove exceptions but for prosecution to prove murder prerequisites. - (!) - (!) Text of Sections 96-97 and restrictions of 99.
T.V. NALAWADE, J.
1. This appeal is filed against the judgment and order of Sessions Case No. 83/2006 decided by District Judge1 & Additional Sessions Judge, Shrirampur. By the decision dated 30.10.2009 the Trial Court has convicted and sentenced the appellant for the offence punishable under section 302 and also for the offence punishable under section 324 read with 34 of the Indian Penal Code (IPC).
2. In short, the factsleading to the institution of this appeal can be stated as follows :
(a) Shridhar Dhumal lives with his family in a house constructed in his field from Devgaon Shivar, Tahsil Newasa, District Ahmednagar. At the relevant time, his wife Sumanbai, his mother Housabai and his deceased son Ravindra alias Bhausaheb were also living in this house. The agricultural land of Dagdu Pawar, father of appellant Shrawan, is situated adjacent to the land of Shridhar. At the relevant time, Dagdu Pawar was living in his house with appellant, other son Ganesh and wife Mainabai. On north side of these two houses, there is Devgaon Saoundala cart road. One footpath starts from the house of Shridhar and it meets Devgaon Soundala road after passing by the side house of Dagdu Pawar. Deceased Bhausaheb was using this footpath for going to his college on bicycle. Other members of the family of Shridhar were also using this road for approaching Devgaon Soundala road.
(b) On the previous day of incident i.e. on 10.9.2006 Bhausaheb was intercepted on this road by appellant and his father and they said that Bhausaheb should not use this road. They gave threat to teach lesson to Bhausaheb on the next morning. This incident of evening was narrated by Bhausaheb to his parents after reaching home.
(c) The incident took place on 11.9.2006 at about 8 to 8.15 a.m. As the tire of bicycle of Bhausaheb was in punctured condition, he started on foot for college at about 8 a.m. When Bhausaheb was proceeding towards DevgaonSoundala road by using the disputed road, Sumanbai, mother of deceased was present on the terrace of the house. Sumanbai noticed that the appellant, his father and brother Ganesh had intercepted the deceased. Sumanbai rushed to her husband and she told about this incident to Shridhar. Shridhar and Sumanbai started on motorcycle for the spot and they reached spot within no time. Housabai, mother of Shridhar, started for the spot on foot.
(d) After reaching of Shridhar and Sumanbai to the spot, Dagdu Pawar, his wife, appellant and other son of Dagdu Pawar namely Ganesh started quarreling with Shridhar and his family members. Accused and the other persons of his house started rushing at Bhausaheb and they were holding weapons like sword, iron bar and stick. Appellant/accused was holding a sword which was small and it was looking like Gupti. Ganesh was holding iron bar and Dagdu was holding stick. Kiran Shinde and Kabir Sayyed were studying in the college of deceased and while proceeding towards college, they noticed that quarrel was going on by the side of Devgaon Soundala road. They learnt about the reason behind the quarrel. Dagdu Pawar and his two sons then attacked Shridhar, deceased and wife of Shridhar by using aforesaid weapons. When they were attacking, they were saying that they would not allow the family of Shridhar to use the disputed approach road. Shrawan used the sword against Bhausaheb, Shridhar and Sumanbai. Blows of sword were mainly given to Bhausaheb. One blow of sword was given on the head of Shridhar and one blow of the sword hit on right hand of Sumanbai. When Kiran Shinde and Kabir Sayyed tried to intervene in the incident, the appellant gave blow of sword on the right hand of Kiran Shinde. Dagdu Pawar gave blow of stick on the head of Kabir. Accused Ganesh gave blow of iron bar on the hands of Sumanbai and her bangles were broken in the incident. Dagdu Pawar gave blows of stick to Shridhar and his wife. Bhausaheb sustained bleeding injury below shoulder bone, in the chest due to use of sword. Bha
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
