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2017 Supreme(Bom) 2490
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. BHADANG, PRITHVIRAJ K. CHAVAN, JJ.
Mahesh Mahadev Tari, Son of Mahadev Tari – Appellant
Vs.
State Through Police Inspector, Shri C. L. Patil and others - Respondent
CRIMINAL APPEAL NO. 67 OF 2014
Decided on : 17-11-2017
Advocate Appeared:
For the Appellant :Shri Pavithran A. V., Advocate
For the Respondent: Shri S. R. Rivankar, Adv.
The main legal point established in the judgment is the application of Exception 4 to section 300 of the Indian Penal Code, which led to the modification of the appellant's conviction from section 302 to section 304 Part I.
Headnote:
Indian Penal Code - Conviction under section 302 modified to section 304 Part I - Summary of Acts and Sections: Indian Penal Code, section 302, section 304 Part I - The court found the appellant guilty under section 304 Part I of the Indian Penal Code based on the evidence of the sole eye witness and the circumstances of the case. The court applied Exception 4 to section 300 of the Indian Penal Code, ruling that the incident was a sudden quarrel without premeditation and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Fact of the Case:
The appellant was convicted for the offence under section 302 of the Indian Penal Code for assaulting and causing the death of the deceased. The prosecution's case was based on the testimony of the sole eye witness and the circumstances of the incident.
Finding of the Court:
The court found the appellant guilty under section 304 Part I of the Indian Penal Code based on the evidence of the sole eye witness and the circumstances of the case. The court applied Exception 4 to section 300 of the Indian Penal Code, ruling that the incident was a sudden quarrel without premeditation and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Issues: The main issue was the credibility of the sole eye witness and the interpretation of the evidence to determine the nature of the offence committed by the appellant.
Ratio Decidendi: The court relied on the evidence of the sole eye witness and the circumstances of the incident to conclude that the appellant's act fell under Exception 4 to section 300 of the Indian Penal Code, leading to a conviction under section 304 Part I of the Indian Penal Code.
Final Decision: The appellant's conviction under section 302 of the Indian Penal Code was modified to one under section 304 Part I. The appellant was sentenced to imprisonment for the period already undergone and to pay a fine of Rs.25,000.
C. V. BHADANG, J.
By this appeal, the appellant is challenging his conviction for the offence punishable under section 302 of Indian Penal Code (I.P.C, for short). The appellant has been sentenced to imprisonment for life and to pay a fine of Rs.10,000/-.
2. The prosecution case may be briefly stated thus:
That on 6/9/2011 at about 7.30p.m, the appellant along with now deceased Namdeo Tari were having a drink in 'Dattaprasad bar', at Tariwada, Shiroda, Ponda Goa. Shri Ashok Naik, (PW.5) was also in the bar having a drink. It is the prosecution case that a quarrel took place between the appellant and the deceased Namdeo Tari. The owner of the bar asked them to move out of the bar. After the appellant, the deceased and Ashok Naik, (PW.5) came out of the bar on the road, there was again a quarrel which took place between the appellant and the deceased wherein the appellant is said to have removed a knife from the pocket of his raincoat and stabbed Namdeo on the chest and the back side of the neck. As a result of the assault Namedo fell on the road in a pool of blood. The appellant threatened Ashok Naik (PW5) not to disclose the incident to anybody. Thereafter, (PW5) and the appellant went to their houses.
3. On the basis of a complaint lodged by Ankush Tari, (PW1), the brother of the deceased, an offence came to be registered with the Police Station Ponda under section 302 of I.P.C. During the course of the investigation, the Investigating Officer, (I.O) recorded the statements of the witnesses, drew the spot panchanama of the spot of occurrence. Incidentally, the knife which was used for the assault was found lying at the spot which was seized. The dead body of Namdeo was sent for postmortem examination. The seized articles were sent for the report of the chemical analyzer and on completion of the investigation, a charge sheet came to be laid which was committed to the Court of Sessions.
4. The learned Sessions Judge framed a charge against the appellant for the offence punishable under section 302 of I.P.C, to which the appellant pleaded not guilty and claimed to be tried. The defence of the appellant is one of total denial and false implication. As per the statement filed by the appellant as per section 313 (5) of Cr.P.C., the appellant claims that there was a quarrel between PW.5 and the deceased and it was (PW.5) who assaulted the deceased by means of a knife.
5. At the trial the prosecution examined as many as eleven witnesses including the sole eye witness Mr. Ashok Naik, (PW.5) and produced the record of the investigation. The appellant neither entered into the witness box nor examined any defence witness.
6. The learned Sessions Judge came to the conclusion that Namdeo died a homicidal death and it was the appellant who with the intention of causing death had assaulted Namdeo by means of a knife. In the face of the finding as above, the appellant came to be convicted and sentence as aforesaid.
7. We have heard Shri Pavithran, the learned counsel for the appellant and Shri Rivankar, the learned Public Prosecutor for the Respondent/State. With the assistance of the learned counsel for the parties we have gone through the evidence and the impugned judgment.
8. It is submitted by Shri Pavithran, the learned counsel for the appellant that the evidence of the sole eye witness Ashok Naik, (PW.5) is not acceptable and worthy of credence. The learned counsel has taken us through the evidence of (PW.5) in other to submit that there are various incongruities and improbabilities in the evidence of the said witness which require the evidence to be discarded. For instance, the learned counsel submits that (PW.5) states that the raincoat worn by the appellant had no pockets and there was no separate pant for the raincoat worn by the appellant. In the submission of the learned counsel for the appellant this would show that the prosecution case that the appellant drew a knife from the pocket of his raincoat in order to assault the decea
