LAWS(BOM)-1995-6-30

PRABHAKAR Vs. MAHARASHTRA

Decided On June 22, 1995
PRABHAKAR Appellant
V/S
MAHARASHTRA Respondents

JUDGEMENT

(1.) THE Second Additional Sessions Judge, Chandrapur, on the strength of the testimony of P. W. 6 Jafrun, P. W. 7 Kamlabai and P. W. 8 Gita, recorded a finding of conviction against the appellant/accused for having committed murder of one Sheikh Samir on 10. 5. 1990 at 8. 00 A. M. at Ghugus, district Chandrapur. Shri Daga, learned counsel appearing for the appellant accused could not seriously challenge the involvement of the accused in the incident, resulting in homicidal death of Sheikh Samir. We have also perused the testimony of eye-witnesses. They are reliable, clinching and trustworthy. The only ground put forth by Shri Daga is, having regard to the nature of injury, the manner in which it was inflicted and the circumstances then prevailing, it could not be a case falling under section 302 of the Indian Penal Code. He, therefore, prayed for his acquittal of the offence under section 302 of the Indian Penal Code:

(2.) WE have also heard Shri Agrawal, learned Additional Public Prosecutor. He has resisted the submissions of Shri Daga. According to him, the assault on Sheikh Samir was without there being any provocation; it was merciless. At the relevant time, Shri Agrawal submitted, Sheikh Samir was a child aged about four years. The accused before giving the blow with a dagger lifted him by holding his hairs. In view of this merciless and heinous act; which has resulted in an instantaneous death of child Sheikh Samir, the accused has rightly been convicted for the offence under section 302 of the Indian Penal Code. In his submission, from the nature of injury, the accused was certainly intending to commit murder of Sheikh Samir and, therefore, the conviction as recorded does not warrant any interference. We have also heard Shri Daga, learned counsel for the appellant, on this aspect. We have closely scrutinised the testimony. Undisputedly, the prosecution could not bring any motive on record. Even otherwise, absence of motive, when there is direct evidence, becomes immaterial.

(3.) BUT, absence of motive sometime has a significance. We tried to examine whether the accused at the relevant time was intending to commit murder of Sheikh Samir. Undisputedly, the child was not involved in the dispute or controversy. There was no incident preceding the assault which could indicate motive of the accused. Moreover, it is a case of single blow and that too at the back of Sheikh Samir. Having regard to these circumstances, mainly absence of motive, and a solitary blow on the back we feel that the circumstances are not sufficient to indicate that the accused was intending to commit the murder. What is explicit to us from these circumstances that the accused intended to cause such bodily injury which would result in death of Sheikh Samir. Therefore, the conviction under section 302 of the Indian Penal Code cannot be sustained. We hold the appellant/accused guilty for the offence punishable under section 304, Part I, of the Indian Penal Code.