Bombay High Court on Monday convicted and sentenced a South Mumbai hotelier to 10 years in prison for firing six bullets at his estranged elder sister on the night of October 27, 2007.
"No slightest doubt in our mind that the intention of the accused was to kill," Justices Prasanna Varale and NR Borkar observed, holding Lalit Timothi D'souza guilty of an attempt to murder under Section 307 of the IPC.
The court set aside the Sessions Court order acquitting Lalit of the graver charge under Section 307 (Attempt to murder) and merely sentencing him to three years in prison for grievous hurt in 2012. It allowed appeals filed by the Maharashtra Government and the victim sister Lorna D'Souza.
In October 2007, Lalit - who runs a chain of bars and restaurants across the city -- had opened fire on Lorna, with whom he had been fighting a property dispute since 2003.
Lorna argued with their Cuffe Parade building's watchman when she found her parking space blocked by Lalit's girlfriend's car. Lalit came downstairs, and the two quarreled before Lorna was shot.
She survived the shooting. Four bullets had ruptured her pancreas, liver and kidney. One bullet is still lodged in the right chest wall as it could not be removed. The doctor said Lorna was on the ventilator for 12 days.
Lalit surrendered to the police and was granted bail. However, citing lack of evidence, the Sessions Court convicted him only of "causing grievous hurt" and granted bail.
While admitting the case, the High Court suo motu issued notice to D-Souza on why his punishment should not be enhanced. However, since the court sentenced Lalit under 307, the suo motu appeal was disposed.
Verdict of the High Court
The High Court held that the trial court had ignored the well-settled legal position that the determinative factor for constituting an offence punishable under section 307 of the IPC is the intention and not injury.
The bench rejected Lalit's contention that he fired the six shots at his unarmed sister in self-defence and that she had come charging at him with an iron rod. The watchman in his testimony did not mention the iron rod despite witnessing the brother-sister fight, nor did the rod find mention in Lalit's first statement to the police, noted the Court.
Through his lawyers Sudeep Pasbola and Rahul Arote, Lalit argued that his father, a wealthy restauranteur, was shot at, and his fears should be seen from that prism.
As an alternate submission, Lalit's counsels claimed that the incident was without any premeditation, the intent not being to kill. Therefore, utmost he may be sentenced under Section 308 (Attempt to commit culpable homicide) of the IPC.
However, the bench accepted the prosecutor's argument that for an offence to fall under the 4th exception to 300 of IPC is accused should not act cruelly.
"In the present case, the accused had fired six gunshots at who was unarmed and thus acted in a cruel and unusual manner. The accused is, thus, not entitled to benefit of exception 4 to Section 300 of the IPC. The act of the accused is thus neither covered by exceptions to Section 300 of the IPC nor considering the facts and circumstances of the case clauses I to IV can be said to be not attracted in the present matter," the court held.
"The accused is convicted for the offence punishable under Section 307 of the IPC and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1 Lakh, out of which, Rs.50,000/- to be paid to PW 1 as compensation."
Case Title: Lalit Timothi D'souza vs The State of Maharashtra