NITIN VISHNU SADAMAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The conviction and sentence under Sections 302 and 307 of the Indian Penal Code has been impugned in this Appeal. While the Appellant was found guilty of these charges, Accused no. 2, the brother of the Appellant, was acquitted.

(2.) The prosecution case is based on an incident which occurred on 5th June, 1999 at about 9.30 p. m. near the Takre Samaj Temple at Ganeshnagar, Bopodi near the Mumbai-Pune highway. The complainant who is P. W. 10 and the brother of the victim Sandeep heard that his brother-in-law Ajay Gaikwad, P. W. 6, had an altercation at the Jairam Carrom House with some persons present there. After having dinner with his parents and brothers Pramod p. W. 5 and Sandeep the victim, the complainant, as was his usual practice, went to his father- in-law's residence which was closeby and sat chatting with his brothers and P. W. 6 just outside his father-in-law's house. Accused no. 2 Sandeep arrived there and had a heated exchange of words with P. W. 6. The Appellant reached the spot soon thereafter and inflicted a knife blow in the armpit of Ajay Gaikwad. The complainant rushed to the spot on seeing this and held the blade of the knife with his left hand in order to prevent the Appellant from inflicting any more blows. The Appellant managed to free the knife and stabbed the complainant in his stomach. On seeing this, p. W. 5 Pramod and Sandeep, the victim, tried to intervene. Pramod was stabbed in the chest by Accused No. 1. The Appellant then inflicted stab wounds with the knife on the left side of sandeep's chest. Sandeep collapsed. The appellant and his brother ran away from the spot. The injured P. W. 5, P. W. 6 and P. W. 10 were removed to the hospital and the victim was declared dead on being taken to Sassoon hospital. On the complaint of P. W. 10 being recorded in the hospital, an offence was registered under Sections 302, 307 read with section 34 against the Appellant and his brother sandeep. The case was tried in the Sessions court, Pune. Sandeep was acquitted while the appellant was convicted under Sections 302 and 307. It is this judgment which is impugned in the present Appeal.

(3.) We have scrutinised the evidence led before the learned Sessions Judge and on reappraising the same, we find that the conviction of the Appellant under Section 302 must be set aside. We find that the offence which the Appellant has committed is punishable under Section 304, Part II. While confirming the judgment of the Sessions Court that the Appellant has committed the offence under Section 307, we are of the view that the conviction under Section 302 must be set aside and instead the Appellant should be punished under Section 304, Part II for the following reasons.