FAKIRA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE impugned finding of conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code is based on the dying declaration of Sindhu to P. W. 2 Pita, the Police Patil, and the extra judicial confession tendered to P. W. 3 Bhargavrao and P. W. 5 Sahebrao. Mr. Daga, learned counsel appearing on behalf of the appellant-accused, could not seriously challenge the appellants involvement of assault to Sindhu, his wife, on 3rd May, 1991 at about 12. 30 A. M. in the field of one Bhargavrao. However, according to the learned counsel, having regard to the nature of the incident and the events followed thereafter, the act of the appellantaccused could not be one punishable under Section 302 of the Indian Penal Code. According to him, the appellant could not be attributed to a definite intention to commit murder. The submission of the learned counsel is that the offence is punishable under Section 304 Part II of the Indian Penal Code. Having regard to the submission, as made, we have examined the substance of the prosecution case. Undisputedly, the appellant was the husband of deceased Sindhu. No intention or motive is brought on record for the assault. It is reported that at the relevant time, with the aid of pick-axe, the accused caused three injuries on the stomach of the deceased Sindhu. It is further reported that according to the doctor, the injuries were not sufficient to cause death in the ordinary course of nature. The peculiar feature is that after the assault, the appellant carries Sindhu to a doctor in a bullock-cart for the treatment. However, the doctor refused. He then took Sindhu in the same bullock-cart to another station. However, in the meanwhile, she breathed her last. It is probable, having regard to the circumstances, that before the assault, there could be a bickering on a sudden quarrel and upon a heat of passion the appellant-accused might have given the blow in question. Having regard to the circumstances, the submission as can vassed by the defence counsel on this line is probable. The conduct of the accused subsequent to the assault was more of repentance. He might have made hectic effort to save the life of Sindhu and then he wade the confession of his guilt to P. W. 3 Bhargavrao and P. W. 5 Sahebrao, which has become the basis of conviction. In view of this, we hold that the conviction for the offence punishable under Section 302 of the Indian Penal Code cannot be sustained. Instead we hold that the appellant-accused is guilty for the offence punishable under Section 304 Part II of the Indian Penal Code.

(2.) THE appeal is partly allowed. The finding of conviction for the offence, punishable under Section 302 of the Indian Penal Code and sentence are hereby set aside. Instead we hold that the appellant-accused is guilty for the, offence punishable under Section 304 Part II of the Indian Penal Code. It is reported that the appellant-accused is in jail since about six years. Having regard to the circumstances, we direct the appellant-accused to suffer sentence as already undergone. Appeal allowed partly.