2012 Supreme(Bom) 633

2012 ALLMR(Cri) 1869
In the High Court of Bombay at Goa
S.C. DHARMADHIKARI & U.V. BAKRE
Raghu Sarangi
Versus
State of Goa & Another
CRIMINAL APPEAL NO. 37 OF 2011
Decided on : 21-03-2012

Headnote:Criminal Procedure Code, 1973 - Section 374 - Appeal - Against conviction and sentence by accused - Accused convicted and sentenced by trial Court for offence under Section 302 of IPC for life Imprisonment and to pay fine of Rs. 10,000/- by judgment and order dated 22.2.2010 -Contention that, in absence of motive, accused, a laborour cannot be held guilty and in alternative the case is not of murder but of culpable homicide not amounting to murder - Considering entire material and evidence on record, death of deceased was homicidal proved - Deceased sustained, grievous bleeding injuries on his head - A cemented blood stained stone found at scene of offence - Accused also sustained various injuries - Only conclusion can be drawn that there was a fight between accused and deceased - Death of deceased caused due to assault by cemented stone on his head - Lack of proof of motive for accused not proves innocence of accused - Circumstances proved by prosecution one of guilt of accused - It proved beyond reasonable doubt that accused is author of injuries sustained by deceased, resulting into his death - Incident took place on 14.3.2008 - Deceased died on 7.4.2008 - Accused not carrying any weapon - In course of fight accused exceeded his right of private defence - Accused had no intention to kill deceased and thus act of accused falls under Section 304, Part II, IPC.

       Held - Conclusion of trial Court erroneous - Accused committed offence under Section 304-IIof IPC - Punishment of RI for 6 years and fine of Rs. 5,000/- would meet interest of justice -Impugned judgment and order quashed and set aside - Accused convicted under Section 304-Il, IPC and sentenced to undergo 6 years RI and to pay fine of Rs. 5,000/-- Appeal partly allowed.

       In the present case, it is proved beyond reasonable doubt that the accused is the author of the injuries sustained by the deceased, which resulted into his death.

       The last question that remains to be determined is whether the act of the accused, of causing injuries to the deceased which resulted into his death, amounts to murder.

       The incident of the assault took place on 14.3.2008 whereas the death of the deceased took place on 7.4.2008 i.e. after about 23 days. The death occurred due to septicemia shock in a person with crania cerebral damage vide injuries No. 1 and 2. The evidence on record duly proved that there was a fight between the accused and the deceased. The accused was not carrying any weapon prior to the incidence. The reason for the said fight is not known. The motive for the accused is not known. It can be said that in the course of the fight between the accused and the deceased, the accused exceeded his right of private defence and he fixed the head of the deceased to the ground whereas on the other side of the head of the deceased he hit the cemented stone. The evidence on record reveals that the accused and the deceased used to move around together, do some labour work for earning livelihood and together used to consume liquor and also sleep together night time.

       The act of the accused falls under Part II of Section 304 of the IPC. Such a view has been taken by the Hon’ble Supreme Court in somewhat identical circumstances in the case of Mavila T. Nambiar V. State of Kerala, AIR 1997 SC 687.

       The conclusion of the trial Judge is erroneous. Held that the accused has committed the offence punishable under Section 304, Part I of IPC, as the accused did not have intention of causing death of the decease, though he had knowledge that his act is likely to cause death.

       Looking to the status of the deceased and the accused person, as labourers having even no residence and the fact that they were otherwise staying together, the punishment of rigorous imprisonment for six years and payment of fine of Rs. 5,000/- would serve the purpose of interest of justice.

       Indian Penal Code, 1860 - Sections 302 and 304 Part-I - Conviction and sentence for murder. Where appellant was not carrying any weapon prior to incident and inflicted injuries on deceased, resulting into death of deceased after about 23 days from date of incident therefore appellant not liable to convicted under Section 302, IPC however, liable to be convicted under Section 304-Part-II of IPC.