http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (crl.)  402 of 2007

PETITIONER: Shankar Diwal Wadu

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 21/03/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (Criminal) No. 6240 of 2006)

MARKANDEY KATJU, J.

       Leave granted.

       This appeal is directed against the judgment and order dated  24.9.2004 of the Bombay High Court in Criminal Appeal No. 631 of 2000.

The prosecution version is that the accused Shankar Wadu is the  brother of Mahu Wadu who was assaulted by him, which assault resulted in  his death.  The incident occurred around 8.P.M. on 22.10.1995 at Kainad  Wadu Pada, Laluka Wada, District Thane, where both the accused and the  victim were residing along with other close relations.  According to the  prosecution case, the accused wanted to keep Kamlibai, the widow of his  brother Vasant, as his mistress, but she refused to be his mistress.  On the  day of the incident the appellant was forcibly trying to drag Kamlibai to his  house.  At that very time, he was told by his brother Mahu (the deceased)  that he could not force and drag Kamlibai to his house.  At this intervention,  the accused got enraged by such unwarranted advice and therefore lifted a  wooden plank (pat) and hit Mahu with it on his head, and also kicked and  punched him.  Mahu died on the spot.  Complaint of this assault was lodged  by one Yeshubai who is closely related to both the accused and the victim.   On receipt of this report the investigation was conducted and the accused  was arrested.  The prosecution examined as many as eight witnesses to prove  its charge of murder against the accused and the learned trial Judge on  appreciation of the evidence came to the conclusion of guilt and convicted  the accused and sentenced him to life imprisonment under Sections 302/506  IPC and also imposed a fine.

Against the judgment of the trial court, the appellant filed an appeal  before the High Court which has been dismissed by the impugned judgment  and hence this appeal by way of special leave.

We have gone through the record and we agree with the view taken by  the courts below that the appellant is guilty.  There are eye witnesses of the  incident and we see no reason to disbelieve their testimony.  These eye  witnesses also include Kamlibai (PW4).  The allegation of the prosecution  that it was because of Kamlibai that the incident occurred is proved by  Kamlibai herself who is corroborated in all material particulars by PW-1 and  PW-2.  PW-3 Yesubai is also an eye witness and we see no reason to  disbelieve her evidence.  The medical evidence corroborates the prosecution  case.  The post mortem report shows a fracture on the scalp of the deceased  caused by a hard and blunt object, and according to the doctor this was  sufficient to cause death. Both the courts below have carefully considered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

the evidence on record and we see no reason to take a different view.

However, we are of the opinion that the case comes under Section  304/Part 2 and not under Section 302 IPC since the incident occurred in a  sudden fit of anger.  The decisions cited by learned counsel for the appellant  vide Pappu vs. State of M.P. (2006) 7 SCC 391 and Sukhbir Singh vs.  State of Haryana (2002) 3 SCC 327 are apposite to this case.

Hence, we convert the conviction under Section 302 to Section  304//Part 2 IPC and quash the conviction under Section 506. The appellant  has already undergone 11 years’ imprisonment. Hence, we reduce the  sentence to the period already undergone and we quash the fine imposed.   The appellant shall be released from jail custody forthwith unless wanted in  connection with some other case.

The appeal stands disposed of accordingly.