Saturday, 26 January 2019

When court should convert conviction from S 302 of IPC to S 304 of IPC?

We have gone through these two judgments. It is true
that the culpable homicide is defined in Section 299 of IPC. The

culpable homicide is a genus, whereas murder is it's species. All
murders are the culpable homicides, but all culpable homicides are
not murders. Defence can be successful in taking out the case from
the sweep of Section 300 of IPC in two contingencies. One is, if they
make out any exception given in Section 300 of IPC and, secondly, if
they make out a case of non-fulfillment of ingredients of clause firstly
to clause fourthly of Section 300 of IPC.
15] In those two contingencies, the culpable homicides will
not be murder and the accused is required to be dealt with as per
the punishment prescribed in Section 304 of IPC. In the judgments
referred above, there are certain guidelines as to how to appreciate
the evidence. There is emphasis on single blow of knife, no
argument or altercation immediately before the assault in between
the deceased and the appellant, the time of incident being night
time and absence of any motive. In the case of direct evidence, the
motive as a circumstance is not so important as in the case of
circumstantial evidence. So, in case of a case based on direct
evidence, there can be prosecution evidence on the point of motive
or it may not be there. If, however, such evidence is adduced, then
the duty of the Court is to assess the evidence. 

This would make us believe that it is

difficult to hold that there was any premeditation or pre-planning on
the part of the appellant to kill the deceased which would in turn
necessitate examining thoroughly the presence of intention or
knowledge as contemplated by Section 300 of IPC.

17] It is true that there are four injuries to the deceased. One
is abrasion on forehead that may be due to fall and there are stab
wounds on the chest and abdomen. The eye witnesses PW-4 Rafiq
and PW-7 Anushka have categorically stated about only one blow of
knife. It is very well true that the appellant has not given repeated
blows of knife on the deceased. It has also come in the evidence
that appellant ran away after the assault. The location of the injuries
on the body suggests that it was near a vital part of the body.
However, which part of the body, the assault would ultimately affect
would depend upon various factors i.e. the height of deceased and
the appellant, the distance in between them at the time of assault,
weapon used, the force applied and finally the intention of the
assailant. If the assault is from the very close distance, there is

likelihood of injuring the upper part of the body. Probably, if the
assault might have been on the abdomen or lower part of the body,
the result could have been different. Even though, the appellant had
brought knife along with him, we do not find that he intended to
cause death of deceased Shailesh. We are taking this view for the
reason that there is only single blow, that there is no argument or
altercation immediately earlier to the assault, that there are no
repeated blows even though opportunity was available and that
there is absence of evidence of expert suggesting that the injuries
were sufficient in the ordinary course of nature to cause death. 3rd
clause of Section 300 requires that the bodily injury intended to be
inflicted must be sufficient in the ordinary course of nature to cause
death and that means, it must be established by evidence. PW-10
Dr. Nilesh has been examined by the prosecution to prove the nature
of weapon used and it's connection with the stab injury. But, PW-10
does not say anything in this regard and his opinion vide Exh.66 is
also silent on this aspect of the matter. Merely because postmortem
is admitted (Exh.63) by defence, it does not relieve the prosecution
to prove the ingredients of Section 300 of IPC.
18] These facts create a doubt, in our opinion, about intention
of the appellant to inflict such injury as to cause the death of

Shailesh or the appellant having intention to deal such an injury as is
sufficient to cause death or the appellant having knowledge that in
all probability the injury caused by him would result in death of the
deceased. We infer that the appellant had intention to cause some
injury which possibly may not have caused the death and that it is
this element of uncertainty which takes the case out of the ambit of
Section 300 of IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.361 OF 2016

 Suresh s/o Sadhuji Ghogre, Vs  The State of Maharashtra,

C ORAM : S.B. SHUKRE & S.M. MODAK, JJ.

PRONOUNCED ON : 11 th JANUARY, 2019.



The appellant sole accused is convicted of committing the
murder of one Shailesh Balkrishna Junghare. He was assaulted with
the help of knife on 23/09/2014 at about 7.15 p.m. in front of house
of Rajesh Manohar Rendke. On the complaint of one Lukesh Pawar,
Kotwali Police Station, Nagpur initially registered an offence under
Section 307 of the Indian Penal Code (for short hereinafter referred
to as 'IPC'). Deceased Shailesh was first taken to the hospital of

Dr. Patil and he died there lateron. Police converted the offence to
Section 302 of IPC.
02] This appellant was named in the First Information Report.
He was charge-sheeted for the offence under Section 302 of IPC.
Additional Sessions Judge, Nagpur, convicted him to life
imprisonment and a fine of Rs.5,000/- on 30/06/2016.
03] We have heard Shri R.M. Daga, learned Counsel for the
appellant and Mrs. A.R. Kulkarni, learned Additional Public Prosecutor
for the respondent. They have taken us through the evidence. The
emphasis of the appellant is entirely on reducing the sentence from
life imprisonment to a lesser imprisonment. There is submission to
convert the conviction from Section 302 to Section 304 of IPC. The
defence has, however, opposed it.
MOTIVE
04] On going through the evidence, we find that there are six
eye-witnesses. In such cases, motive does not play any important
role. Though no motive was attributed, indirectly anger of the family
members of the appellant towards the family of deceased was
attributed. The appellant was having a son by name Jitendra. He

had committed suicide by poisoning. One Shrutika Junghare is the
daughter of brother of deceased Shailesh. They used to reside at
Nashik. Occasionally, Shrutika used to visit the house of her
deceased uncle at Nagpur. Shrutika and Jitendra came in contact
with each other and Jitendra used to visit the house of the deceased.
Deceased's family members were not comfortable. It was brought to
the notice of the appellant-accused. Family members of the
appellant blamed the family members of the deceased for the act of
commission of suicide by Jitendra.
05] On reading cross-examination of the witnesses, defence
has suggested dispute between deceased Shailesh on one hand and
Hiraman Nerkar and Hirabai Ugle on the other hand. It was on
account of construction of house of the deceased. Deceased was
constructing his new house. It is not in dispute that it was on the
verge of completion. Daughter Anushka [PW-7] and wife Reena [PW-
8] have admitted about this dispute and even filing of police
complaint by deceased (admitted by PW-8 Reena).
EVIDENCE
06] On going through the evidence of seven eye-witnesses,
we find that only PW-4 Rafiq Sheikh, PW-7 Anushka (daughter) and

PW-6 Rajesh Randke have supported the assault by the appellant on
the deceased. When the deceased visited his new house on
23/09/2014, the appellant assaulted him with the help of knife.
There is some variance about the exact place of assault, that is to
say the place where the deceased was putting a lock on the door of
the house or the spot where he was putting a lock to the compound
gate of the house.
POSTMORTEM EXAMINATION
07] When we have gone through the postmortem
examination report, we find four injuries mentioned in Column No.17.
There are three wounds, one is stab injury, second is surgical stab
intervention and third is incised wound, whereas there was one
contused abrasion on forehead. These three wounds are on chest,
abdomen and forehead. Doctor carrying out postmortem was not
examined, probably for the reason that the defence has admitted the
report. Final cause of death is 'stab injury to heart'. There was also
stab wound to valves and cartilages and it is corresponding to
external stab wound over front of chest on left side. Neither the
defence has disputed about homicidal death nor there is any other
contrary material. There is every reason to uphold the opinion of the
trial Court about homicidal death.

WEAPON
08] Even, there is a reason to uphold the knife as the weapon
for causing all these injuries. Dr. Nilesh Tumdam, who has examined
the seized knife for giving the opinion, was examined by the
prosecution. There is a reason to believe about spot of incident. It is
in front of the house of Rajesh Manohar Rendke on Dasra Road,
Pravin Kawale [PW-9] is the spot-panch.
EYE WITNESS
09] Out of the eye witnesses, PW-2 Pawankumar Jais and PW-
3 Rajesh Jain have resiled from their police statements. They were
examined on the point of witnessing the assault. Witness
Pawankumar Jais has totally resiled, whereas the witness Rajesh Jain
has at least deposed about shifting deceasd Shailesh from the spot
to the hospital in Auto-Rickshaw. The first informant Lukesh Pawar
[PW-5] has also resiled from the contents of the F.I.R. He and Raja
Rendke (probably PW-6 Rajesh) were chitchatting on 23/09/2014 in
between 07:00 p.m and 07:30 p.m. The first informant Lukesh has
deposed from the stage deceased Shailesh came running, whereas
PW-6 Rajesh deposed since the assault by the accused on the
deceased with the help of knife. During cross-examination, witness
Rajesh has given one answer. Defence has brought the same to our

notice. He heard the voice of deceased Shailesh “Mala Wachwa,
Mala Wachwa”.
10] Rafiq Sheikh [PW-4] and Anushka [PW-7] have also
deposed about witnessing the assault. Anushka had gone to the
spot for calling her father. Deceased had gone to the new house on
the fateful day. PW-4 Rafiq has simply stated about assault by the
appellant on the deceased. That is to say he has not narrated, how
the accused came there from, whether there were talks in between
them. Whereas, Anushka has deposed few particulars. The accusedappellant
patted the deceased and when the deceased took a turn,
appellant gave a blow of knife on his chest. About this particular fact
also, the appellant claims it as an improvement.
11] The evidence of Rafiq and Anushka was challenged on
the ground of delay in recording of statement and inaction/keeping
silent during that period. Reena, wife of deceased has not witnessed
the incident. She got knowledge from daughter Anushka. The knife
was recovered at the instance of the accused and Ravindra Gawane
[PW-1] is the panch. C.A. Report does not suggest of finding out
blood of deceased on that knife.

CONCLUSION
12] On reading the entire evidence, we do find that the
evidence of eye-witnesses (particularly of Rafiq and Anushka) proves
about the assault on the deceased by the appellant with the help of
knife. Then, we realize the approach of the defence in conducting
the appeal. They are fully aware about the evidence noted above.
For this reason, probably they have not pressed hard in allowing the
appeal in toto. Now, we will deal with the main thrust of the
appellant on converting the sentence.
CASELAWS
13] The appellant relied upon the judgment in the case of
Sunder Lal vs. State of Rajasthan reported in (2007) 10 SCC 371
and the case of Tularam vs. The State of Madhya Pradesh reported in
2018 ALL MR (Cri) 3161 (S.C.). In both these cases, the Hon'ble
Supreme Court converted conviction from Section 302 to Section 304
of IPC. The law on the point of culpable homicide amounting to
murder and that not amounting to murder is discussed therein. The
appellant wants us to give similar benefit to the appellant.
14] We have gone through these two judgments. It is true
that the culpable homicide is defined in Section 299 of IPC. The

culpable homicide is a genus, whereas murder is it's species. All
murders are the culpable homicides, but all culpable homicides are
not murders. Defence can be successful in taking out the case from
the sweep of Section 300 of IPC in two contingencies. One is, if they
make out any exception given in Section 300 of IPC and, secondly, if
they make out a case of non-fulfillment of ingredients of clause firstly
to clause fourthly of Section 300 of IPC.
15] In those two contingencies, the culpable homicides will
not be murder and the accused is required to be dealt with as per
the punishment prescribed in Section 304 of IPC. In the judgments
referred above, there are certain guidelines as to how to appreciate
the evidence. There is emphasis on single blow of knife, no
argument or altercation immediately before the assault in between
the deceased and the appellant, the time of incident being night
time and absence of any motive. In the case of direct evidence, the
motive as a circumstance is not so important as in the case of
circumstantial evidence. So, in case of a case based on direct
evidence, there can be prosecution evidence on the point of motive
or it may not be there. If, however, such evidence is adduced, then
the duty of the Court is to assess the evidence. Traces of such
evidence are present here. The love affair between Shrutika (niece

of deceased) and Jitendra (son of appellant) and displeasure from the
family members of the deceased is shown as a background. PW-8
Reena Junghare, wife of deceased, had given details of this
background. The intimacy in between Shrutika and Jitendra was in
the month of April, 2014. Shrutika had come to Nagpur to the house
of her deceased uncle. Then, she returned to Nashik. Jitendra, son
of the appellant, committed suicide in the month of April, 2014. The
prosecution claims that being disturbed due to untimely death of his
son Jitendra, the appellant used to abuse family members of the
deceased under the influence of liquor. After reading the evidence of
prosecution witnesses, we do not find the evidence satisfactory on
the point of motive. The prosecution having relied on the backdrop
of a particular relationship, could have brought on record the love
affair on one hand and commission of suicide of Jitendra on the other
hand. Even, Shrutika had committed suicide subsequently. But, the
evidence is not satisfactory on the point of connection between
commission of suicide by Jitendra and the appellant holding the
family members of the deceased accountable for that suicide on the
other hand. So, the connecting link is not established. Hence, we
feel that, motive for appellant to commit murder, being family
members of the deceased responsible for commission of suicide by
his son, is not established. This would make us believe that it is

difficult to hold that there was any premeditation or pre-planning on
the part of the appellant to kill the deceased which would in turn
necessitate examining thoroughly the presence of intention or
knowledge as contemplated by Section 300 of IPC.
16] In addition to the age of the appellant being senior citizen
is also cited for taking a lenient view. The age will come into picture
after final appreciation of evidence and that too if the offence will fall
under the category 'culpable homicide not amounting to murder'.
17] It is true that there are four injuries to the deceased. One
is abrasion on forehead that may be due to fall and there are stab
wounds on the chest and abdomen. The eye witnesses PW-4 Rafiq
and PW-7 Anushka have categorically stated about only one blow of
knife. It is very well true that the appellant has not given repeated
blows of knife on the deceased. It has also come in the evidence
that appellant ran away after the assault. The location of the injuries
on the body suggests that it was near a vital part of the body.
However, which part of the body, the assault would ultimately affect
would depend upon various factors i.e. the height of deceased and
the appellant, the distance in between them at the time of assault,
weapon used, the force applied and finally the intention of the
assailant. If the assault is from the very close distance, there is

likelihood of injuring the upper part of the body. Probably, if the
assault might have been on the abdomen or lower part of the body,
the result could have been different. Even though, the appellant had
brought knife along with him, we do not find that he intended to
cause death of deceased Shailesh. We are taking this view for the
reason that there is only single blow, that there is no argument or
altercation immediately earlier to the assault, that there are no
repeated blows even though opportunity was available and that
there is absence of evidence of expert suggesting that the injuries
were sufficient in the ordinary course of nature to cause death. 3rd
clause of Section 300 requires that the bodily injury intended to be
inflicted must be sufficient in the ordinary course of nature to cause
death and that means, it must be established by evidence. PW-10
Dr. Nilesh has been examined by the prosecution to prove the nature
of weapon used and it's connection with the stab injury. But, PW-10
does not say anything in this regard and his opinion vide Exh.66 is
also silent on this aspect of the matter. Merely because postmortem
is admitted (Exh.63) by defence, it does not relieve the prosecution
to prove the ingredients of Section 300 of IPC.
18] These facts create a doubt, in our opinion, about intention
of the appellant to inflict such injury as to cause the death of

Shailesh or the appellant having intention to deal such an injury as is
sufficient to cause death or the appellant having knowledge that in
all probability the injury caused by him would result in death of the
deceased. We infer that the appellant had intention to cause some
injury which possibly may not have caused the death and that it is
this element of uncertainty which takes the case out of the ambit of
Section 300 of IPC.
19] On going through the judgment of the trial Court, we do
not find that it has considered these aspects. We intend to disagree
with the finding of the trial Court on this aspect of the case. There is
every scope to say that appellant intended to inflict some injury on
the deceased and to the misfortune of both, it has resulted into his
death. So, we intend to convert the conviction from Section 302 to
Section 304 of IPC.
20] When we have read the judgment of the trial Court, we
do not find any discussion on the point of fulfillment of the conditions
of Section 300 of IPC. The learned trial Judge has discussed about
proof of all the circumstances. He was required to give findings
before coming to the conclusion about the guilt of the accused under
Section 302 of IPC. There can be punishment under Section 302 of

IPC only when the case falls under either of the clauses of firstly to
fourthly of Section 300 of IPC. Unfortunately, it is not there. For that
reason and for the reasons stated above, the appellant needs to be
given a benefit of doubt to the limited extent of his guilt under
Section 302 of IPC and thus we find that the prosecution has
succeeded only in proving the guilt of the appellant for an offence
which falls under the scope and ambit of Section 304(I) of IPC.
SENTENCING
21] When we talk about punishment prescribed under Section
304 (I) of IPC, it is of two kinds. One is life imprisonment or
imprisonment up to 10 years and second is fine. Court has to award
appropriate sentence which suits the interest of justice. Law has
evolved on mitigating and aggravating circumstances.
22] No doubt, the act is an offence against society. Anguish
of the appellant (due to commission of suicide by his own young son)
towards the family of deceased is portrayed as a motive, though, it is
not sufficiently proved. In nutshell, the incident happened due to
discord between families of appellant and deceased. These family
differences need to be considered as one of the mitigating factors.
Though murder took place on public road, it was not a cold blooded

murder. At the same time, age of appellant being of 60 years also
weighs in his favour. If he is inflicted with life imprisonment, there
are no good chances of his surviving the full term.
23] At the same time, the interests of legal representatives of
deceased need to be protected. As on record, Reena Shailesh
Junghare [PW-8] is the wife and Anushka Shailesh Junghare [PW-7] is
the daughter of deceased. There are no other legal representatives
who have come on record. Deceased was aged about 35 years. He
was having long life to live and he must be the breadwinner of the
family. His family members must be undergoing lot of
inconveniences after the murder.
24] So, when we have balanced all the factors, we feel that
seven years imprisonment will meet the ends of justice. At the same
time, wife Reena and daughter Anushka need to be compensated.
Considering the age of deceased and average earning, we quantify
the compensation to the tune of Rs.5,00,000/-. Appellant may
contend weak financial capacity. But, he cannot forget, he is
responsible for the death and ultimately, if he has to live his
remainder life openly, he has to arrange for resources.

25] We are awarding this compensation by invoking the
provisions of sub-section (1) to Section 357 of Cr.P.C. When there is
only sentence of fine or fine being part of whole sentence, Court has
to appropriate whole/part of fine amount towards compensation.
Whereas, when there is only sentence of imprisonment (without
fine), Court may impose compensation independently by invoking
the provisions of sub-section (3) to Section 357 of Cr.P.C.
26] For offence under Section 304(1) of IPC, there cannot
either be imprisonment only or fine only. Further, there are no
pecuniary limitations on the power of Additional Sessions Judge /
High Court so far as amount of fine is concerned. So, we also impose
a fine of Rs.5,25,000/- on the appellant. Out of this amount,
Rs.5,00,000/- be paid as compensation to wife Reena Shailesh
Junghare and daughter Anushka Shailesh Junghare in equal
proportion. If they will claim compensation through Civil Court, this
amount be considered. If there are other legal representatives of
deceased, their claim is not considered. If they desire, they may
approach the Civil Court as per law. Civil Court can decide the claim
of claimants and may consider this amount of compensation while
fixing the total compensation and it's shares, if any occasion arises.

For above reasons, we are allowing the appeal partly and passing
following orders :
i. Appeal is partly allowed.
ii. The appellant is convicted for the offence punishable
under Section 304(I) of IPC instead of offence punishable
under Section 302 of IPC.
iii. Appellant is directed to suffer rigorous imprisonment for
seven years and to pay a fine of Rs.5,25,000/-.
iv. Out of this fine amount, an amount of Rs.5,00,000/- be
paid to Reena Shailesh Junghare and Anushka Shailesh
Junghare in equal proportion.
v. If the appellant fails to pay the amount of fine of
Rs.5,25,000/-, he is further directed to undergo rigorous
imprisonment for two years.
vi. Sentences to run concurrently.
vii. Appellant be given benefit of set off.
viii. Amount of fine be deposited in District Court, Nagpur. As
and when deposited, compensation be paid to Reena

Shailesh Junghare and Anushka Shailesh Junghare on
proving their identity as per rules.
(S.M. Modak, J.) (S.B. Shukre, J.)

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