The main legal point established in the judgment is the consideration of mitigating circumstances and previous judgments to convert the conviction from Section 302 to Section 304-II of the IPC based on the sudden fight, lack of premeditation, and absence of intention to kill.

JUDGMENT :

VANDANA KASREKAR, J.

1. The appellant has preferred the present appeal under Section 374 of Cr.P.C. being aggrieved by judgment dated 25.02.2011 passed by the Vth Additional Sessions Judge Khargone, District-Khargone in S.T. No. 207/2010, whereby he has been convicted for offence punishable under Sections 302 and 323 of the IPC and sentenced to undergo life imprisonment and three months: R.I. respectively with fine of Rs. 10,000/- and in default of payment of fine two years additional rigorous imprisonment. The sentences were directed to run concurrently.

2. Brief facts of the case in nutshell are that, on 27.8.2010 at around 8.00 p.m. when appellant-Hardas was hurling abuses to his second wife-Epubai in front of his house at that time, Mangibai, sister of Epubai with her husband-Sardar as well as their son-Vikram and son-in-law Govind came there to pacify the matter and they asked him to stop hurling abuses and being annoyed with this, accused-Hardas pulled out a knife from his pocket. Mangubai tried to catch the knife, due to which, she received injury on her left hand thumb. Thereafter, the accused pushing her aside with an intention to kill Sardar inflicted knife blow on the lower side of his neck and above the chest, as a result of which, Sardar fell down and blood started oozing from the wound and he died on the spot. Vikram and Govind tried to catch Hardas, but he ran away. Thereafter, Mangibai, wife of the deceased, narrated the story to Sarpanch-Ramsingh and the Sarpanch informed the incident to the Police on mobile phone. The Police reached on the spot and on the basis of the nehatinalishi (Ex.P/9) merge report (Ex.P/10) was recorded. On the next day morning i.e. on 25.8.2010 panchnama of the dead-body (Ex.P/2) was prepared and blood stained soil was collected from the incident spot. Spot map (Ex.P/12) was prepared and thereafter the dead-body was sent for postmortem Ex.P/21) and also recorded the statements of the witnesses. The accused was arrested on 27.8.2010. The investigation was launched and the offence was registered against the accused for offence under Sections 302 and 323 of the IPC and he was duly committed to his trial. The accused abjured his guilt and he has stated that he has been Jalsely implicated in the matter. On considering the evidence, the Trial Court has convicted and sentence the accused for the offence as hereinabove stated. Being aggrieved, the appellant has filed the present appeal.

3. Though the appellant has filed this appeal on various grounds, but during arguments learned counsel for the appellant submitted that, he does not want to press merits of the case and prayed that, the case of the appellant falls under Section 304, Part-II of the IPC, therefore, his conviction be converted to one under Section 304-II of the IPC. It is further submitted that, as the appellant is in custody since 27.8.2010 and has completed eight years nine months of jail sentence, therefore, he may be awarded imprisonment for the period already undergone.

4. Learned Government Advocate fairly admitted that, looking to the facts and circumstances of the case, the conviction of the appellant may be converted into one under Section 304, Part-II of the IPC.

5. We have considered the contentions of both the learned counsel for the parties.

6. In the case of Annamalai vs. State of Tamil Nadu, 2016 Cri. L.J. 2727, whereby the Division Bench of Madras High Court has considered the mitigating circumstances and has held in para-13 of the judgment as under:-

“Now turning to the punishment, the accused is the sole bread winner of the family. He has got three brothers. He has got a big family to take care. He has no bad antecedents. After the occurrence also, it is not reported that he was involved in any other crime. Further, there are lots of chances for reformation. So far as the aggravating circumstances are concerned, there was no premeditation for the accused to commit the murder of the deceased. Having regard to t