1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.146 OF 2008 The State of Maharashtra Through : Osmanpura Police Station, Aurangabad ..APPELLANT (Ori. Complainant) VERSUS Santosh s/o Jagannath Jadhav, Age : 26 years, Occ. Labourer, R/o Vitkheda Zopadpatti, Tq. and Dist. Aurangabad ..RESPONDENT (Ori. Accused) Mr K.J. Ghute Patil, A.P.P. for the appellant; Mrs Kalpana Mutatkar, Advocate (appointed) for respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 27th January, 2010 ORAL JUDGMENT (PER HARDAS, J.) The State being aggrieved by the judgment of the Ad hoc Additional Sessions Judge, Aurangabad, dated 19.12.2007, rendered in Sessions Trial No.79 of 2007, acquitting the respondent/accused for an 2 offence punishable under section 302 of the Indian Penal Code and instead, convicting him for an offence punishable under section 324 of the Indian Penal Code and sentencing him to R.I. for three years and to pay fine of Rs.10,000/-, with a default stipulation of undergoing further R.I. for six months, has filed the present appeal. 2. When notice of this appeal came to be served on the respondent, it transpired that the respondent was undergoing the imprisonment in respect of his conviction for offence punishable under section 324 of the Indian Penal Code. It also appeared that the respondent had not filed any appeal questioning his conviction and sentence under section 324 of the Indian Penal Code. This Court, therefore, directed that though this was an appeal against acquittal, priority be accorded to this appeal and be treated as a jail appeal and heard forthwith. Accordingly, Advocate Mrs Kalpana Mutatkar came to be appointed as a Counsel to represent the respondent in this appeal before us. 3. The facts briefly stated and necessary for the decision of this appeal are as hereunder :- P.W.1 Kishor lodged his report at Exh.9 on the basis of which an offence came to be registered vide Crime No.78 of 2006, by the Osmanpura police station, Aurangabad, under section 302 of the Indian Penal Code. The investigation of the said crime came to be entrusted to 3 P.W.10 P.I. Kanchan Chate. On being entrusted with the investigation, P.W.10 P.I. Chate immediately proceeded to the scene of the offence and scene of the offence panchnama at Exh.19 came to be drawn in the presence of P.W.6 Baban . From the scene of the offence one blood stained stone came to be seized as well as samples of ordinary mud and mud containing blood. Statements of witnesses came to be recorded. Since Ravindra had died, the inquest panchnama came to be drawn. The clothes of deceased came to be seized and dead body was referred for post mortem examination . Post mortem came to be conducted by P.W.9 Dr. Sandesh Choudhari. P.W.9 Dr. Choudhari noticed the following external injuries :- i) Stab injury on lower part of back (lumber region) on left side of rib, elliptical in shape, obliquely placed of size 4 x 2 cm. Upper end of wound 9 cm. from mid line towards left and lower end, 2 cm. from highest point of iliac crest. On internal examination, it was noticed that the injury was cavity deep, piercing aorta. 1500 cc of clotted blood was collected in the retro-peritoneal space. ii) Contused Lacerated Wound over posterior aspect of left elbow, 2 x 0.5 cm. x muscle deep, obliquely placed. The said injury was not due to knife and may have been caused by the deceased falling on the ground after receiving injury no.1. 4 P.W.9 Dr. Choudhari , therefore, opined that cause of death was haemorrhagic shock due to the stab injury. The accused came to be arrested and during custodial interrogation the accused expressed his willingness to point out the place where the knife was hidden. Accordingly, memorandum at Exh.21 came to be drawn in the presence of P.W.7 Sandu. The accused led the police and the panch and accordingly produced a knife which came to be seized vide panchnama at Exh.22. The seized articles were referred to the Chemical Analyser and the report of the Chemical Analyser at Exh.28 shows that the knife was found stained with blood of "A" group. It appears that the clothes of deceased had been sent to the Chemical Analyser and they were found stained with blood of "A" group. Further to the completion of investigation a charge-sheet against the respondent came to be filed. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed a charge against the respondent/accused for offence punishable under section 302 of the Indian Penal Code. The accused denied his guilt and claimed to be tried. Prosecution examined 11 witnesses in support of the charge. The prosecution examined P.W.1 Kishor, P.W.2 Appasaheb and P.W.3 Gautam as eye-witnesses to the incident. The Trial Court accepted the evidence of the eye-witnesses and the discovery of the knife but came to the conclusion that an offence 5 punishable under section 324 of the I.P.C. was disclosed and accordingly convicted and sentenced the respondent/accused. 5. The entire prosecution case revolves round the testimony of the eye-witnesses. P.W.1 Kishor states that deceased Ravindra was his cousin and on 30.4.2006 marriage of one Raju Khotkar had been arranged in the village. He states that he and Ravindra were both present in the marriage. During the performance of the marriage ceremonies, a friend of Ravindra was also present. It appears that there was an exchange of abuses between the respondent and deceased on account of the pair of sun glasses which was in possession of the respondent/accused and which in fact belonged to the friend of the deceased. It appears that the accused asked for the pair of sun glasses but the friend of deceased declined to give it to the accused. The quarrel was defused and the warring parties were separated. Thereafter deceased was sent home and the accused went to his residence. While food was being served, the deceased as well as the accused were present in the marriage pendol. Deceased and the accused went towards the public latrine and there was an exchange of abuses between deceased and the accused. P.W.1 Kishor and others accordingly followed them. It appears that the principal cause of quarrel was on account of the pair of sun glasses. Suddenly the accused took out a knife and stabbed deceased on the left side back near the ribs. Deceased fell down on sustaining the injuries. Deceased was then placed in a 6 rickshaw and taken to the Ghati Hospital at Aurangabad. Efforts were made to apprehend the accused, however, since the accused was armed with a knife, none dared to apprehend the accused. Accordingly P.W.1 Kishor had gone to the police station and had lodged his complaint at Exh.9. P.W.1 Kishor has been extensively cross-examined and in the cross-examination the abuses uttered by the respondent/accused have been brought on record. It has also been brought on record that the deceased and the accused had gone towards the public latrine after one of them had tendered apology for the earlier incident. P.W.1 Kishor admits that because they had heard the exchange of words between the deceased and the accused that he had followed them towards the public latrine. It has also been brought on record that the quarrel between the deceased and the accused was going on on account of the refusal of the deceased to give the pair of sun glasses. P.W.1 Kishor admits in cross- examination that he was standing at a distance of 5 ft. from the deceased when the quarrel was going on. He has admitted in cross-examination that the accused came running towards the deceased from a distance of about 10 ft. and after taking out the knife stabbed the deceased. He has further admitted in the cross-examination that after stabbing the deceased the accused fled from the scene of the offence. The evidence of P.W.1 Kishor stands amply corroborated by the recitals in his first information report. 7 6. Prosecution has also examined P.W.2 Appasaheb, who has deposed on lines similar to that of P.W.1 Kishor. He has also been extensively cross-examined and in the cross-examination he has admitted that the accused had dealt only one blow of knife on the left side rib. He has admitted that deceased had not anticipated that the accused would stab him with knife. He has also admitted in cross-examination that he was at a distance of 7 to 8 ft. when the deceased was stabbed. He has admitted to have accompanied the deceased to the hospital in the rickshaw. 7. Prosecution has examined P.W.3 Gautam, another eye-witness who also deposes along the lines as deposed to by P.W.1 Kishor and P.W.2 Appasaheb. He too has been cross-examined at length and nothing of substance has been elicited in the cross-examination to disbelieve this witness. 8. Thus, from the evidence of the prosecution witnesses, particularly the eye-witnesses i.e. P.W.1 Kishor, P.W.2 Appasaheb and P.W.3 Gautam, according to us the prosecution has been able to establish that the accused had inflicted an injury by knife on the back of deceased. The sole question is whether it would be an offence punishable under section 302 or would be an offence punishable under section 324 of the Indian Penal Code. The Trial Court has come to the conclusion that it would be an offence punishable under section 324 of the Indian Penal Code as the 8 case of the accused would not fall in any of the exceptions and, therefore, the accused can be attributed with the fact that he had inflicted a simple injury by a dangerous weapon. 9. In the present case, the evidence of the Medical Officer, particularly P.W.9 Dr. Sandesh Choudhari and P.W.11 Dr. Kailas Zine does not indicate that the injury was sufficient in ordinary course of nature to cause death. However, both these witnesses have been cross- examined and the contention of the witnesses that the deceased had died on account of the injury has been established. The accused has not been able to establish death of deceased on account of any other intervening circumstance apart from the injury. However, the prosecution has not been able to establish that the injury which was inflicted by the accused was sufficient in ordinary course of nature to cause death. The injury had pierced and had cut the aorta and, therefore, the deceased had died. Unquestionably, therefore, the prosecution has been able to establish that the deceased had died on account of the injury sustained by him at the hands of the accused. The reasoning of the Trial Court for convicting the accused under section 324 of the Indian Penal Code is palpably erroneous and unsustainable in law. 10. The question which is next posed before us is what would be the offence which can be said to have been committed by the accused. Undisputedly, the accused has voluntarily caused an injury. It cannot be 9 said that the accused had intended to cause the death of deceased. Had the accused harboured that intention, the accused would have used the knife which was in his pocket at the earlier incident. The blow was also given on the back and not on either chest or on stomach. There is no evidence of the prosecution to indicate that the accused had intended to stab the deceased either on his chest or on his abdomen. The knife blow was inflicted on the back and, therefore, it cannot be said that the accused had intended to commit the murder of deceased Ravindra. Similarly, since the accused had stabbed the deceased on his back, it cannot be urged before us by the prosecution that the accused had inflicted the said injury with an intention of causing such bodily injury which the accused knew to be likely to cause death of the person. Apparently, except for the cutting of the aorta which proved to be fatal, no other vital organs were involved. As pointed out by us above, the knife blow was dealt on the back of deceased Ravindra. Similarly, since the prosecution has not been able to establish that the injury caused by the accused was sufficient in the ordinary course of nature to cause death, the ratio laid down by the Supreme Court in Virsa Singh vs. State of Punjab, AIR 1958 S.C. 465 would be of no assistance to the prosecution. Similarly also, according to us clause fourthly of section 300 of the Indian Penal Code would not be attracted. The act of the accused, therefore, would be one that would amount to culpable homicide not amounting to murder and, therefore, the punishment which is prescribed for culpable homicide not amounting to murder is one provided 10 under section 304 part I and II. Since the accused had no intention of committing murder of deceased Ravindra, nor had he any intention of causing such bodily injury as was likely to cause death, part I of section 304 of the Indian Penal Code would not be attracted. The accused would be liable to be convicted for an offence punishable under part II of section 304 of the Indian Penal Code as the accused can be attributed with the knowledge that the act of the accused was likely to cause death, though he may not have any intention to cause death. In that light of the matter, therefore, according to us the accused is liable to be convicted for an offence punishable under second part of section 304 of the Indian Penal Code. 11. It appears that the accused has already undergone a sentence of imprisonment of three years which was awarded by the Trial Court. Mrs Mutatkar, learned Counsel for the respondent/accused has urged before us to impose a sentence of imprisonment already undergone by the accused for an offence punishable under section 304 part II of the Indian Penal Code. Section 304 part II of the Indian Penal Code provides sentence of imprisonment of ten years or with fine, or with both. The accused has already undergone imprisonment of three years and according to us interest of justice would be subserved by sentencing the accused to undergo R.I. for five years while maintaining the sentence of fine imposed by the Trial Court. 11 12. We, therefore, partly allow Criminal Appeal No.146 of 2008 and quash and set aside the conviction of the respondent/accused for offence punishable under section 324 of the Indian Penal Code and instead convict the respondent/accused for an offence punishable under section 304 part II of the Indian Penal Code and sentence him to rigorous imprisonment for five years and to pay fine of Rs.10,000/-, in default of payment of fine to undergo further R.I. for six months. The respondent/accused would be entitled for the set off for the period of imprisonment already undergone by the accused. This appeal is accordingly partly allowed with the modified sentence as stated above. We quantify the fees payable to Mrs Kalpana Mutatkar, learned Counsel appointed on behalf of the respondent/accused at Rs.5,000/-. ( SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/cria146.08