1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 152 OF 2007 Kaka @ Anil Namdeo Magar, age 23 yrs, occ. Service, r/o Siddheshwar Ves, Latur, Dist. Latur. ...Appellant VERSUS The State of Maharashtra ...Respondent ..... Smt. Sadhana S. Jadhav, advocate for the appellant Shri S.D.Kaldate, APP for the respondent. ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 11.9.2009 DATE OF PRONOUNCING THE JUDGMENT : 30.9.2009 J U D G M E N T : (Per Shrihari P.Davare, J.) 1 Challenge in this appeal is to the judgment and order 2 rendered by the learned Adhoc Additional Sessions Judge-1, Latur, in Sessions Case No. 50 of 2006 on 23.2.2007, convicting the appellant/accused no.1 for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and also fine. 2 The factual matrix, as recited in the first information report, are as follows :- Complainant PW5 Gulab Rama Kamble is the resident of Siddheshwar Ves, Latur and was residing along with his family members consisting of his wife, namely PW1 Chandrabhaga and 7 sons and 2 daughters including the victim deceased Bharat, out of which, 4 sons and 1 daughter were married. The house of accused no.4, namely Nandeo Shekhaji Magar was situated in front of house of the complainant and accused no.4 is having 3 sons i.e. Accused nos. 1 to 3 herein, namely Kaka @ Anil Namdeo Magar i.e. appellant herein, Sunil Namdeo Magar and Ambadas Namdeo Magar, respectively. 3 It is alleged that on 24.3.2006 at about 7.00 a.m. the complainant, his sons including deceased Bharat and his wife and daughter-in-law were present in the house and deceased Bharat 3 was sitting in the door in front of the house. At that juncture, accused nos. 1 to 4 were abusing to deceased Bharat on the count that he used to stare at the wives (female folk) belonging to the accused persons. Due to the said quarrel, the complainant and others came outside the house and found that accused nos. 2 to 4 had caught hold of his son Bharat and accused no.1 i.e. appellant herein stated that he would not leave Bharat alive and inflicted a blow of knife on the stomach of victim Bharat from the front side. The complainant, his wife and their sons intervened and tried to rescue victim Bharat. PW1 Chandrabhaga sustained scratches of knife on her two fingers of left hand, as well as the complainant also sustained minor injuries to index finger near the thumb of left hand. 4 During the course of the said assault, the neighbourers, namely Savitra, Sarju, Rajaram gathered there, who rescued the quarrel. Since Bharat sustained serious injuries he was removed by auto rickshaw belonging to one Thakur to the Government Hospital, Latur and was admitted there and intimation thereof was given to Gandhi Chowk police station. However, during the treatment victim Bharat expired in the hospital at about 8.00 a.m. on the said date i.e. 24.3.2006. Thereafter the complainant reported to Gandhi Chowk police 4 station and filed the first information report on the same day, which was registered at C.R.No. 77 of 2006 and the investigation was commenced with. 5 It is the case of the prosecution that during the course of investigation, the investigating officer PW10 P.S.I. Vaijnath Shamrao Kendre prepared the inquest panchanama of the dead body of deceased Bharat and same was sent to postmortem purpose. The clothes of the deceased were seized under the panchanama as well as spot panchanama was prepared and statements of witnesses, namely PW1 Chandrabhaga, PW6 Savitrabai, Bandubai and Sandipan were recorded. He also collected medical certificates of PW1 Chandrabhaga and PW5 complainant Gulab. The postmortem notes were collected. The police personnel also arrested all the four accused on the same day and seized their clothes under the panchanama. The Investigating Officer also recorded statements of Sanju, Nagina, Mathurabai, Ginyan, Raju, Madhukar and Madhusing on 25.3.2006. 6 It is also alleged that on 27.3.2006 accused no.1 i.e. Appellant herein made the disclosure statement under Section 27 of the Evidence Act and the alleged incriminating weapon i.e. 5 Knife was seized at his instance under the memorandum panchanama Exh.65. The muddemal property was sent to the Chemical Analyser on 28.3.2006 and the investigating officer collected the chemical analysis report thereof on 12.6.2006. After completing of investigation, the charge sheet was filed against all the four accused on 20.6.2006 before the learned Chief Judicial Magistrate, Latur and since the accused were charged for the offence punishable under Section 302 of the Indian Penal Code, the case was committed to the court of Sessions, Latur on 18.7.2006. 7 The learned Adhoc Additional Sessions Judge-1, Latur framed the charge against accused nos. 1 to 4 at Exh.21 on 12.10.2006 for the offence punishable under Sections, 302, 323, 504 and 506 r/w Section 34 of the Indian Penal Code and they were tried thereunder in Sessions Case No. 50 of 2006 and appellant/accused no.1 was convicted for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and was sentenced to suffer life imprisonment and fine, but acquitted for the offence punishable under Sections 323, 504 and 506 r/w Section 34 of the Indian Penal Code, as well as accused nos. 2 to 4 were acquitted under the said Sections and for the offence punishable under Section 302 r/w Section 34 of the Indian Penal 6 Code by way of judgment and order rendered by the learned Adhoc Additional Sessions Judge-1, Latur on 23.2.2007. Being aggrieved and dissatisfied by the said judgment and order, accused no.1 i.e. appellant herein has preferred the present appeal assailing the same therein. 8 To unfold the case of prosecution and to substantiate the charges levelled against the accused persons, prosecution has examined in as much as 10 witnesses as mentioned below. No. and Name of the Witness Exh.No. PW1 Chandrabhaga Gulab Kamble – mother of deceased – eye witness 48 PW2 Dr. Laxman Sarjerao Deshmukh – doctor who examined the victim Bharat and injured PW1-Chandrabhaga 52 PW3 Dr.Pradeep Manmathappa Dhele – doctor who perfomed the postmortem on he dead body of deceased Bharat Gulab Kamble 54 PW4 Dr. Keshav Shivajirao Gite – doctor who examined the father of victim, namely PW5 Gulab 55 PW5 Gulab Rama Kamble – father of deceased Bharat 7 – eye witness 57 PW6 Savitrabai Mahadu Magar – maternal aunt of deceased Bharat – eye witness 59 PW7 Abdul Gafur – first panch to memorandum panchanama – turned hostile 61 PW8 Shaikh Nizam – second panch to memorandum panchanama – turned hostile 62 PW9 Smt. Mathurabai w/o Sopan Aavghade – neighbourer – turned hostile 63 PW10 P.S.I. Vaijnath Shamrao Kendre - investigating officer 64 9 The aforesaid witnesses can be classified in 3 categories as under :- Eye Witnesses PW1 Chandrabhaga Gulab Kamble – mother of deceased – eye witness 48 PW5 Gulab Rama Kamble – father of deceased Bharat – eye witness 57 PW6 Savitrabai Mahadu Magar – maternal aunt of deceased Bharat – eye witness 59 8 Medical evidence PW2 Dr. Laxman Sarjerao Deshmukh – doctor who examined the victim Bharat and injured PW1-Chandrabhaga 52 PW3 Dr.Pradeep Manmathappa Dhele – doctor who perfomed the postmortem on he dead body of deceased Bharat Gulab Kamble 54 PW4 Dr. Keshav Shivajirao Gite – doctor who examined the father of victim, namely PW5 Gulab 55 Evidence of Panch, Neighbourer and investigating officer PW7 Abdul Gafur – first panch to memorandum panchanama – turned hostile 61 PW8 Shaikh Nizam – second panch to memorandum panchanama – turned hostile 62 PW9 Smt. Mathurabai w/o Sopan Aavghade – neighbourer – turned hostile 63 PW10 P.S.I. Vaijnath Shamrao Kendre - investigating officer 64 10 The first and foremost question is whether deceased Bharat sustained homicidal death or not and in he said context the evidence of PW2 Dr. Laxman enlightens the said issue, who 9 stated that he examined Bharat on 24.3.2006 and found one stab wound on left side of the chest below nipple of surface size 2 x 1 cm. and he gave life saving treatment to the victim. Moreover, PW3 Dr. Pradeep Dhele, although stated in his testimony that he performed postmortem on the dead body of Bharat Gulab Kamble at about 12.00 noon and found stab injury over chest below left nipple oblique of size 3 x 1½ cm. And entering in thorasic cavity. He stated that the said injury was ante mortem and further stated that the cause of death was hemorrhagic shock due to visceral (heart) injury due to stab injury. He also stated that he prepared the postmortem notes and signed thereon which are produced at Exh.35. He further stated that the said injury was sufficient in the ordinary course of nature to cause death. He was shown the knife i.e. the incriminating weapon and he stated that the said injury can be possible by that knife. 11 Keeping in mind the said aspects and coming to inquest panchanama Exh.34, the contents thereof disclose that the dead body of Bharat Gulab Kamble bore injury of half inch on the left side of the chest and further discloses that the said injury was sustained by the deceased by way of knife as stated by his brother. The column no.17 of the postmortem notes Exh.35 also discloses that deceased Bharat sustained stab injury over chest 10 below left nipple obliquely of size 3 x 1½ cm. and entering in thorasic cavity and the cause of death was given as hemorrhagic shock due to visceral (heart) injury due to stab injury. Hence,it is amply clear from the testimony of PW2-Dr. Laxman, PW3- Dr.Pradeep and inquest panchanama and postmortem report that deceased Bharat died of stab injury and death of Bharat is homicidal death, since it cannot be construed as suicidal or accidental death and the learned Trial Judge has rightly concluded in that respect and no interference therein is warranted in the appellate jurisdiction. 12 That takes us to the direct evidence of PW1 Smt. Chandrabhaga Kamble i.e. mother of the deceased, PW5 Gulab Kamble i.e. father of the deceased and PW6 Savitrabai maternal aunt of deceased Bharat, who are alleged to be the eye witnesses to the occurrence of the incident. PW1 Smt. Chandrabhaga stated that the incident occurred on Friday i.e. on 24th at about 7.00 a.m. and all the accused were abusing deceased Bharat by saying that why he was looking towards their female members of the family. Hence, she, her husband, sons and daughter came at the spot i.e. near their house. At that time, accused nos. 2 to 4 had caught Bharat and accused no.1 said that he would kill Bharat and he would not leave him and by saying that accused 11 no.1 took out a knife and stabbed by that knife to the left side of ribs and inserted and took out the knife. She shouted what he was doing and proceeded to rescue him, but accused no.1 assaulted her near her left hand thumb and first finger. She also stated that her husband i.e. PW5 Gulab and son Sanju intervened to rescue Bharat, but her husband also sustained injuries to his left hand by means of knife. She further stated that Rajaram, Sarjerao and PW6 Savitrabai also came there to rescue, but the accused ran away. 13 During cross-examination PW1 Smt. Chandrabhaga stated that wife of accused no.1, namely Jaishree is a young lady and she further stated that husband must be annoyed if any other person stares at his wife. She further stated that she did not hear the words, “why you are always looking towards our female family members” and she also stated that she did not state before police while recording her statement before police that she heard the words, “why you are always looking towards our female family members” and the saids contents were marked as portion ‘A’ amounting to contradiction. Suggestion was also given to her that accused no.1 did not say that he would not leave Bharat alive, but same was denied by her. 12 14 As regards the testimony of PW1 Smt. Chandrabhaga, learned counsel for the appellant argued that the very prelude to the occurrence of the alleged incident i.e. ‘Bharat looking towards the female family members of accused’, comes under the suspicion, since the said very portion is the contradiction to her police statement and, therefore, the learned counsel submitted that accused no.1 never intended to commit murder of victim Bharat and/or never intended of causing such bodily injury and never knew that it be likely to cause death of victim Bharat to whom harm is caused and/or the appellant never intended of causing bodily injury to victim Bharat which was sufficient in the ordinary course of nature to cause death of deceased Bharat. The learned counsel admitted the occurrence of the incident, but stated that it occurred without any premeditation in sudden fight in the heat of passion upon sudden quarrel and he did not take any undue advantage thereof. 15 Keeping in mind the said aspects and turning to the deposition of PW5 Gulab Kamble i.e. father of deceased Bharat, who is the complainant in this case and who stated that the incident took place on 24.3.2006 at about 7.00 a.m. In front of his house and he and his family members were in the house and victim Bharat was sitting in the door of the house. He heard loud 13 voice of quarrel from his door and, therefore,he rushed there along with his family members and saw accused no.4, accused no.2 and accused no.3 had caught victim Bharat and accused no. 4 said to accused no.1 not to leave Bharat and accused no.1 stabbed Bharat by means of knife on left side of his chest. He and his wife i.e. PW1 Chandrabhaga went to rescue the quarrel and at that time they also sustained injuries and the accused ran away. 16 During cross-examination PW5 Gulab denied that abusement was going on, on the count that Bharat was looking towards the female family members of the accused and the said contents amounted to contradiction to the first information report lodged by him Exh.58. He further stated in cross-examination that he did state in his statement before police that accused Namdeo @ Kaka said Kaka to see towards Bharat and not to leave him, but such mention is not there in the first information report, which also amounted to omission in the first information report and improvement in his testimony. 17 As regards the testimony of PW5 Gulab, learned counsel for the appellant argued that again very prelude to the occurrence of the alleged incident, like deposition of PW1 14 Chandrabhaga i.e. “An abusement on the count that why Bharat was looking towards the female family members of accused” amounted to contradiction in the testimony of PW5 Gulab and the first information report lodged by him and also alleged instigation given by accused no.4 to accused no.1 not to leave victim Bharat comes under the omission, although in the incident accused no.1 never intended to murder victim Bharat. 18 That takes us to the testimony of PW6 Smt. Savitrabai, wherein she stated that all the accused were beating Bharat by kicks and fists and were abusing him. Accused no.4 said to stab Bharat and to kill him. Accused no.1 Kaka took the kinfe and stabbed Bharat and parents tried to rescue him. When Kaka was assaulting for second time, the mother of Bharat caught it, in the mean time, Bharat fell on the ground and when they were rescuing, all the accused ran away. However, during cross- examination, she denied recording of her statement by the police and stated that she did not state before that all the accused were beating Bharat by kicks and fists and she did not state before police that when Kaka tried to give second blow, mother Bharat caught the knife, in the mean time and Bharat collapsed and also she did not state before police that accused no.3 said to see Bharat. 15 19 Learned counsel for the appellant submitted that the contentions of PW6 Savitrabai in her testimony differ from the contentions of PW1 and PW5 in their testimonies, since PW6 Savitrabai stated that all the accused were beating Bharat by kicks and fists and PW1 and PW5 nowhere referred to the assault upon victim Bharat by kicks and fists by the accused. Learned counsel for the appellant further submitted that none of the witnesses stated that accused no.1 was carrying knife at the time of occurrence of the incident and hence, it is canvassed that there was no premeditation on the part of the accused persons. In fact, learned counsel for the appellant submitted that accused no.1 has narrated the occurrence of the incident in his statement under Section 313 of the Criminal Procedure Code and stated that deceased Bharat was armed with the knife and he proceeded towards the accused and abused him and sudden fight took place between them in the heat of passion upon a sudden quarrel and apprehending that Bharat would inflict blow of knife on the person of accused no.1, accused no.1 snatched the knife from Bharat’s hands and inflicted single blow thereof on the victim Bharat and the said assault was without any intention of committing murder of deceased Bharat. 16 20 Keeping in mind the afore said eye witnesses account in the testimonies of PW1 Chandrabhaga, PW5 Gulab and PW6 Savitrabai and the submissions advanced by learned counsel for the appellant and turning to the medical evidence i.e. the testimony of PW3 Dr. Pradeep Dhele, who has stated that he carried out the postmortem on the dead body of Bharat and found stab injury over chest below left nipple oblique in size 3 x 1½ cm. and entering in thorasic cavity. The said injury was ante mortem. The cause of death was hemorrhagic shock due to visceral (heart) injury due to stab injury. He prepared the postmortem notes under his signature, which is produced at Exh.35. He also stated that said injury was sufficient in the ordinary course of nature to cause death. He further stated that the incriminating weapon knife was shown to him and he stated that the said injury was possible by that knife. The postmortem notes Exh.35 and more particularly column 17 thereof discloses a stab injury over chest below left nipple oblique in size 3 x 1½ cm. and entering in thorasic cavity and the cause of death stated therein corroborates with the testimony of PW3 Dr. Pradeep Dhele. 21 As regards medical evidence, learned counsel for the appellant canvassed that the victim sustained only one injury i.e. Of single blow of knife i.e. single stab injury and during the 17 sudden fight upon sudden quarrel he did not have any specific choice of choosing particular part of the body of the victim for inflicting blow, and more pertinently, it is important to note that the appellant herein has not taken any undue advantage and acted in a cruel and unusual manner since he inflicted only a single blow upon the victim. Learned counsel further submitted that as stated by PW1 Smt. Chandrabhaga the honour of wife is precious to every male person and when accused no1. witnessed teasing of his wife by victim Bharat a sudden quarrel took place between victim Bharat and accused no.1, which led to sudden fight in the heat of passion which was without any premeditation, wherein the appellant gave a single blow of knife on the chest of the victim, but did not take the undue advantage or acted in cruel or unusual manner, since he inflicted single blow of the knife upon the victim and hence, learned counsel for the appellant canvassed that present case comes under the purview of Exception 4 of Section 300 of the Indian Penal Code without any intention to cause death of deceased Bharat. 22 To emphasize the defence of the appellant under Exception 4 of Section 300 of the Indian Penal Code and to distinguish the culpable homicide amounting to murder and culpable homicide not amounting to murder, learned counsel for 18 the appellant placed reliance upon the observations made by Honourable Supreme Court in the case reported at 2009 ALL MR (Cri) 2181 (S.C.), in the case of Pappu @ Hari Om vs State of Madhya Pradesh, which reads as under :- “......... .......... ........... .......... 7 This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice- versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder is culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 8 The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of 19 approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. --------------------------------------------------------------------------------- Section 299 Section 300 --------------------------------------------------------------------------------- A person commits culpable Subject to certain homicide if the act by which exceptions culpable the death is caused is done - homicide is murder if the act by which the death is caused is done - INTENTION (a) with the intention of (1) with the intention of causing death; or causing death; or (b) with the intention of (2) with the intention of causing such bodily injury causing such bodily as is likely to cause injury as the offender death: or knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or 20 KNOWLEDGE ***** (c) with the knowledge (4) with the knowledge that the act is likely to that the act is so cause death. Imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. --------------------------------------------------------------------------------- 9 Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not