{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.165 OF 2008 Pralhad s/o Namdeo Nagrale Age-35 years, Occ-Labour R/o Sataragaon (Khandoba), Tq & Dist-Aurangabad APPELLANT VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.S.Ghanekar, Advocate for the appellant Mr.K.B.Chaudhari, Addl.P.P. for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 23rd August 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. By the present criminal appeal, the appellant challenges the judgment and order dated 21.04.2008 passed by Adhoc Additional Sessions Judge, Aurangabad in Sessions Case No.153/2007. By the impugned judgment and order, the appellant is convicted for an offence punishable u/s 302 of the Indian Penal Code and is sentenced to life imprisonment and to pay a fine of Rs. 2500/-. {2} 2. We have heard learned counsel for the parties and we have also perused the Record and Proceedings. 3. It appears that the complainant Babita as well as the appellant, are residents of Sataragaon (Khandoba), Tq & Dist- Aurangabad. The alleged incident took place on 4th March 2007. It is alleged that deceased Ramesh, nephew of the complainant, had been to the house of the complainant Babita along with his mother. It is alleged that the complainant, at about 12 noon put one hook on the low tension electricity wire for the purpose of taking illegal electric supply and during that process, the hook put by the appellant detached from wire and the electricity supply of the house of the appellant stopped. Therefore, the appellant started abusing the complainant and the complainant apologized, however, the appellant and his wife-Aruna, started abusing and assaulting the complainant. Thereafter, husband of the complainant, Hari, came at the spot, however, he was also abused and assaulted by the appellant and his wife. On hearing the commotion, Ramesh and his mother tried to intervene and at that time, the appellant took out knife from his pocket and stabbed Ramesh on his abdomen. Due to the assault, Ramesh collapsed. The incident was reported to the police and police arrived at the place of scene in a police van. Thereafter, the police shifted the injured Ramesh, complainant and Sitabai to Ghati Hospital, Aurangabad where Ramesh was declared to be dead. Thereafter, {3} complainant Babita lodged report of the said incident to the police, on the basis of which CR No.47/2007 came to be registered with Osmanpura police station for an offence punishable u/s 302, 337, 323, 504 r/w 34 of the Indian penal Code against the appellant and his wife. It appears that thereafter Police Inspector, Narendra reached at the spot, prepared spot Panchanama and seized the articles, which were lying at the scene of offence. On the instructions of Police Inspector Narendra, Police Sub Inspector Srinivas visited Ghati hospital, where he drew inquest Panchanama of the dead body and the body was sent for Post Moretm. At the time of conducting PM, clothes on the persons of the deceased were removed and were handed over to PSI Srinivas, who seized the same under seizure Panchanama. Thereafter, after completing all the necessary formalities, the appellant and his wife came to be arrested. 4. It appears that during investigation statement of eye witnesses and injured witnesses came to be recorded. After completion of investigation and receiving CA report, charge sheet was filed against the appellant and his wife. It appears that during the trial, to substantiate the charges leveled against the accused, the prosecution examined in all 13 witnesses, including four eye witnesses, i.e. PW-1 complainant-Babita, PW-4 injured witness- Sitabai, PW-6 husband of the complainant-Hari and PW-7 mother of the deceased-Hausabai. {4} 5. From perusal of the impugned judgment and Record and Proceedings, it appears that the case of the prosecution rests on oral evidence of 4 eye witnesses, including injured eye witnesses as well as on the CA report along with oral testimony of medical officers. After completion of evidence of the prosecution, statements of the accused, u/s 313 of the Criminal Procedure Code, were recorded. Though the appellant has not disputed his presence at the spot at the relevant time, yet his defence was of total denial. The appellant had contended that he was not the author of the injuries sustained by deceased Ramesh. 6. Vide the impugned judgment, though the wife of the appellant is acquitted of all the charges, yet the appellant is convicted for an offence punishable u/s 302 of the Indian Penal Code and accordingly sentenced to life imprisonment and to pay a fine of Rs.2,500/-. 7. Learned counsel for the appellant contends that the case against the appellant falls under exception 4 to section 300 of the Indian Penal Code. According to the learned counsel, due to sudden provocation the appellant was unable to control his nerves and without any intention, he caused bodily injury to Ramesh, which has resulted into his death and hence the case of the appellant would cover by exception 4 to the section 300. Therefore, it is contended that offence punishable u/s 300 of the Indian Penal Code would not be established against the appellant {5} and taking into consideration the fact that the case of the appellant falls under exception 4 to the section 300, it is requested to acquit the appellant. 8. Per contra, learned APP supported the impugned judgment and has contended that the case of the appellant covers under “thirdly” to section 300 of the Indian Penal Code and hence he is rightly convicted by the trial court. Learned APP has urged to dismiss the appeal and confirm the sentence of the appellant. 9. PW-12, Dr.Sharad Kuchewar (Exhibit-33) has described the injuries on the person of the deceased thus - “Stab wound over chest, anterior aspect, 1 cm left to mid-lane, near xiphisternum vertically place, lower angle rounded (obtuse), upper angle acute, margin sharp, clean cut and reddish, size 1.5 X 0.7 cm. X cavity deep. Directed inward and backward. Evidence of a banded applied over infected wound over left sheen of tibia, middle third, size 2 X 2 cm unhealthy, granulation tissue present. No evidence of fracture and above mentioned injures are antimortem injuries. Internal Injuries : There was no evidence of injury over scalp, skull and brain, Track of stab – Skin -Xiphisternum – pericardium- entering right border of heart opening into right ventricle. Evidence of blood clot below sternum {6} corresponding to stab injury. Evidence of 200 cc of blood in pericardium cavity. Incised would (cut) over pericardium of size 1 X 03 c.m, margins clean cut, evidence of blood in pericardium cavity. Stab over right border of heart into right ventricle, 1 X 03 c.m. in to cavity deep, margins clean cut, upper angle acute, lower angle rounded.” 10. The Medical Officer, PW-12 has opined that the external injury mentioned in column No.17 and internal injury mentioned in column No.20 is corresponding injury and is suffice to cause death, as the death has caused due to stab injury to heart. He has deposed that he had collected blood sample of the deceased, which was of “A” group. We have also considered the lengthy cross examination of this witness, however, his evidence could not be shaken in the cross examination. Thus, it is clear from the evidence of PW-12 that the death of Ramesh was a homicidal one. 11. Blood of the appellant is of “B” group. CA report in respect of blood found on the knife and clothes of the appellant at the relevant time play vital role. The CA report (Exhibit-45) indicates that the blood found on the knife and clothes of the appellant, is of “A” group. Thus, this is additional circumstance about the involvement of the appellant in the said offence. 12. Presence of PW-1 Babita and PW-6 Hari at the spot at the relevant time appears to be natural as quarrel had taken place between the complainant and her husband Hari on one side and {7} appellant and his wife on the other. The evidence of these two eye witnesses is not shaken even in their respective cross- examinations. Thus, the evidence of eye witnesses has established that the injury sustained by Ramesh is due to the blow given by the appellant, which has resulted into the death of Ramesh. 13. Scope of section 300 “thirdly” is thoroughly discussed by the Apex Court in the matter of “Virsa Singh V/s State of Punjab” reported in AIR 1958 SC 465. In the said judgment the Apex Court has observed thus - “9. This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the “thirdly” would be unnecessary because the act would fall under the first part of the section, namely - ‘If the act by which the death is caused is done with the intention of causing death.’ In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: ‘If it is done with the intention of causing bodily injury to any person.’ It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the ram or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for {8} inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. 10. Once that is found, the enquiry shifts to the next clause :- ‘and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death’. The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it that is to say, if the circumstances justify an inference that a man’s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining- ‘and the bodily injury intended to be inflicted’ is merely merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts {9} about the nature of the injury and has nothing to do with the question of intention. 11. In considering whether the intention was to inflict the injury found to have been inflicted the enquiry necessarily proceeds on broad lines, as for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that ‘twelve good men and true’ could readily appreciate and understand. 12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S.300 “thirdly”; Firstly, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the {10} enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run round inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional” 14. We have re-appreciated the evidence recorded by the trial court in the light of the observations of the Apex Court in the matter of Virsa Singh, referred supra. The evidence recorded by the trial court clearly establishes and proves that during the said {11} incident altercation took place between complainant Babita and her husband on one side and appellant and his wife on the other. Minute examination of the evidence of the four eye witnesses, no where discloses that there was exchange of words between deceased Ramesh and the appellant. On the contrary, evidence of the eye witnesses clearly establishes that Ramesh and his mother (PW-7) came out of the house of Babita and tried to intervene and pacify the situation and in that process the appellant took out knife from his pocket and stabbed Ramesh, which resulted into his death. In the premise, though it is vehemently urged by leaned counsel for the appellant that the case of the appellant falls under exception 4 to section 300, yet according to us, the direct nexus is established between the injuries sustained by Ramesh, which resulted into his death, and the act proved against the appellant and hence the case of the appellant covers under “thirdly” of section 300 of the Indian Penal Code. 15. From the re-appreciation of the evidence, discussed above, coupled with the evidence of medical officer and the fact that blood group of the blood found on the knife and clothes of the deceased and appellant, seized at the instance of the appellant, are of “A” group, which is blood group of the deceased, the guilt of the appellant is established and proved. Thus, it can be concluded that the appellant and the appellant only is the author of the injuries found on the person of deceased Ramesh, which have resulted into his death. In this light of the matter, according to us, offence {12} punishable u/s 302 of the Indian Penal Code stands proved against the appellant. In the premise, the conviction recorded by the trial court, does not warrant any interference at the hands of this Court. 16. Consequently, the appeal fails and is dismissed accordingly. The conviction against the appellant, recorded by the trial court, for the offence punishable u/s 302 of the Indian Penal Code, stands confirmed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel165-08