Baburao @ Baban Sarangdhar Khade vs State Of Maharashtra

1 Present application has been filed by the original accused (present appellant) for suspension of sentence awarded to him by learned Sessions Judge, Latur in Sessions Case No.21/2017, thereby convicting him for the offence punishable under Section 304 part II of the Indian penal Code. The present appellant has been sentenced to suffer rigorous imprisonment for 10 (Ten) years and to pay fine of Rs.20,000/- (Rupees Twenty Thousand only), in default to suffer rigorous imprisonment for 02 (Two) months.

2 Heard learned Advocate Mr. M.A. Tandale for appellant and learned APP Mr. P.G. Borade for respondent-State.

3 It has been vehemently submitted on behalf of the appellant that the learned Trial Judge has not appreciated the evidence properly. In fact, the accused was prosecuted for the offence punishable under Section 302 of the Indian Penal Code. The prosecution had come with a case that the informant Latabai Angad Garad is the sister of one Fulchand Megha Rathod. Fulchand was residing with his friend viz. Rani Ashruba Chavan nearby her house. Fulchand was originally resident of Jamal Tanda, Tq. Gangapur, Dist. Aurangabad. He was already married to one Jijabai and had four sons and two daughters. The relationship between Fulchand and his wife were not good. Therefore, since last four years he was residing at Borgaon (Kale), Tq. & Dist. Latur for labour work. Rani was from village Murud, where Latabai used to stay previously. Due to the frequent visits of Fulchand to Latabai's house, friendship developed between Rani and Fulchand and since last one year prior to the FIR, Fulchand and Rani started living as husband and wife. It was the case of the prosecution that Rani was having love affair with appellant. However, she left his company and started staying with Fulchand. Appellant went to Borgaon (Kale) on 04.12.2016. Appellant asked Rani to come along with him, however, Rani refused stating that now she is married to Fulchand. At that time, the appellant assaulted Fulchand with kick and blows and sat on his chest and started assaulting him. When Fulchand's condition appeared serious, at that time, the appellant ran away from the spot. Fulchand was then vomited blood and his neck was down. He was taken to hospital, however, he was declared dead. Thereafter, Latabai lodged report.

4 It has been further submitted on behalf of the appellant that the learned Trial Judge although accepted the death of the deceased is caused due to myocardial infarction, however, relying upon the eye witnesses it was observed, that since the blows have been given on chest, though he had no intention to kill him, the case is covered under Section 304 part II of the Indian Penal Code. The cross-examination of eye witnesses has not been considered by the learned Trial Judge. In fact, it ought to have been considered that the sand, which was seized from the spot, contained vomiting particles of the deceased. The vomiting particles can only be detected when a person is under the influence of liquor. The medical evidence clearly shows that the deceased Fulchand was excessively under the influence of liquor. The testimony of PW Rani would show, that her first marriage was performed with one Salim Shaikh. She has children from him. However, after staying for about seven years with him she left him. Thereafter, she begotten children from one Pappu Kasbe. Deceased Fulchand had told that he would transfer agricultural land in the name of her children, and therefore, she was staying with him. She has also stated that there was no quarrel between Fulchand and appellant, but she says that there was only scuffle. Her evidence is not believable. Other contradictions and omissions have not been considered, and therefore, the appellant has every hope of success in the appeal. There was no intention behind committing any offence. He is the only earning member of the family. Therefore, the sentence awarded against him deserves to be suspended.

5 At the outset, it is to be noted, that the accused was not released on bail throughout the trial. Though he was prosecuted for committing offence punishable under Section 302 of the Indian Penal Code, yet the offence, that has been held to be proved against him, is under Section 304 part II of the Indian Penal Code, and therefore, he has been sentenced to suffer rigorous imprisonment for 10 years. Technically it may be considered as short sentence, in view of the decision in Kiran Kumar vs. State of M.P., (2001) 9 SCC 211. Yet, it is to be noted that the said conviction is based on the testimony of the eye witnesses. Apart from PW 1 informant Lilabai and PW2 Rani, the incident has been seen by PW 3 Angad (husband of informant), PW 4 Ramesh Itkar (neighbour), PW 5 Rambhau Itkar and PW 6 Namdeo Sudake. All of them have stated, that after the appellant arrived Rani, he had asked her to come along with him and then she refused, on the ground that she is staying with Fulchand. Appellant assaulted Fulchand, sat on his chest and gave blows on his chest. Thereafter, Fulchand had vomited blood. The prosecution story is further supported by medical evidence i.e. PW 7 Dr. Prachi Haridas. Therefore, when there appears to be sufficient prima facie evidence, this is not a fit case where the sentence should be suspended, though case is made out for admit the appeal as arguable points are made. Hence, following order.

ORDER

1 Application stands rejected.