1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.698 OF 2006 Baban Eknath Mali ..Appellant Age : 35 yrs, Occu : Labourer R/o.Nagargaon, Taluka Shirur, District Pune V/s. The State of Maharashtra ..Respondent Mr.A.G.Toraskar, advocate, for appellant Mr.P.S.Hingorani, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 30TH APRIL, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . The appellant/accused has challenged his conviction recorded in Session Case No.142 of 2003 dated 24th December, 2003 by IIIrd Ad-hoc Additional Sessions Judge, Pune, whereby the accused is directed and sentenced to suffer R.I for life and to pay fine of Rs.1000/- for the offence punishable under Section 302 of I.P.C and to undergo R.I. for one year for the offence punishable under Section 506(1) of I.P.C. The accused was acquitted of the charge under Section 504 of I.P.C. 2 2. FACTS :- The deceased Dilip is son of the complainant-Uttam Haribhau Mali that accused is also in his relation and resides in the same locality at a distance of 30 to 40 feet. The accused used to abuse Uttam Mali and his son Dilip, resulting in a quarrel ensued between Dilip sustaining stick blow Accused threatened him, one day he will kill by stabbing. After 7.30 P.M. on 29th December, 2002 the complainant, his wife, son Dilip, daughter-in-law Sunita, younger Son Santosh and wife of Santosh after dinner were chating at platform (Ota). At around 8.00 P.M, the accused under the influence of liquor came to said place, and without any provocation started abusing them, he aggrivated the situation by challenging Dilip to be a bastard. The accused threatened, he will sit on the chest of his mother. This was retorted by Dilip in the same coin. Uttam and his son Santosh tried to intervene feud. The accused whipped out a knife and inflicted bleeding injury at the abdomen chest of Dilip. Dilip having suffered the bleeding injury fell down. The accused though under influence could smell the gravity of situation to ran away from the spot. Dilip was moved to the Medical Officer Vadgaon in the tempo of Suresh Shitole. Thereafter, he was taken to Shirur and on examination Medical Officer opined that Dilip is no more. Consequently, F.I.R vide C.R.No.268 of 2002 (Exh.22) of complainant was recorded at Shirur Police Station. Inquest (Exh.12) on the dead body was drawn at the hospital. The dead body was sent for post mortem under Form (Exh.29). The spot panchanama (Exh.9) was drawn. Statement of the witnesses were 3 recorded. On 30th December, 2002 the accused was put under arrest. His apparels were taken charge under arrest panchanama (Exh.14). On 4th January, 2003 the knife was seized under panchanama (Exh.26 & Exh.27). The seized muddemal property was deposited with the writer (Exh.30). On 9th January, 2003 the accused was medically examined, his blood was collected. The C.A.reports about blood of the accused are at Exh.15 and Exh.16. The seized items were sent to the office of C.A for analysis and C.A.reports were received at Exh.54 and Exh.14. On completion of investigation, chargesheet came to be filed against the accused on 31st January, 2003. The case is committed to the Sessions Court. Charge below Exh.4 was explained to the accused in Marathi. He pleaded not guilty to the charge and claimed to be tried. 3. The accused claimed that he has been falsely implicated in the present case. The defence advocate argued before us that the accused was in drunken condition, there was scuffle. The deceased fell on Babhool tree and suffered abdomenal injury. 4. The following ten witnesses have unleashed the prosecution case. P.W.1 Dadabhau Namdeo Dhaphal has proved the panchanama (Exh.9), P.W.2 Lahu Gajaba Pawar is the eye witness however he did not support the prosecution. P.W.3 Hiraman Anna Pawar, reached the spot and noticed Dilip 4 lying in injured condition. P.W.4 Dr.Manoj Bapurao Ghuge performed post mortem on the dead body on 30th December, 2002 and (Exh.19). P.W.5 Uttam Haribhau Mali is father of victim, who lodged F.I.R against the accused, he saw accused sabbing his son Dilip. P.W.6 Santosh Uttam Mali is another son of the complainant and eye witness of the incident. P.W.7 Baban Rambhau Kolape, is the attesting witness of the memorandum of statement made by the accused under which the knife was taken charge vide panchanama (Exh.27). P.W.8 Shivaji Fakkadrao Joshi is the investigation officer. P.W.9 Kashinath Saudagar Talekar has referred the accused for extracting the blood. 5. The accused has examined Suresh Shitole, he says he is not having any tempo, nor he carried victim from the spot, to hospital or any place. This version of defence will not be reverting prospects of present case, as incident is not disputed by accused, but he has different version. 6. The evidence of P.W.5, father of the victim and P.W.6 Santosh, brother of the victim indicates that the accused inflicted a stab injury at stomach of Dilip. Consequently, he was shifted to hospital and Medical Officer declared him dead. Post moretm on the body was carried by Medical Officer P.W.4 indicating penetrating injury over left side of chest medial to sternum measuring 3cm x 1cm and deep. According to P.W.4, the injury was possible by the knife 5 (Article 8). The internal injury noticed and recorded by P.W.4 corresponds to the external injury. It is obvious, the injuries are sufficient to cause death of deceased. The contention of the defence that the deceased sustained such injury due to fall on Babhool tree is ruled by as P.W.4, as he claimed that such injury is not possible except if the, deceased fell against a sharp object with force. At the same time he did not agree that due to fall on Babhool tree such injury is possible. In the above situation it is established that death of the victim is unnatural and homicidal. 7. There is no doubt about interse identity and relations of the accused with the witnesses and/or with P.W.5 and P.W.6 in particular. The parties are residing in the huts and naturally, in the evening due to paucity of electricity are chating outside huts/houses. The incident of accused stabbing Dilip is pin pointedly demonstrated by P.W.5 and P.W.6. It was the accused who hurled the abuses when the family members with P.W.5 and P.W.6 were sitting on Ota infront of their room. The events of assault has taken very quickly. The witnesses intervened the scuffle, but could not succeed, hence, there will not be any iota of doubt to discard their evidence. We cannot enter into imaginary facts and conjectures. 6 8. We accept, the accused was in drunken state of mind and even unable to walk properly and his attempt to abuse the victim and also P.W.5 has created violence resulted in scuffle between the victim and the accused. The intervention by P.W.5 and P.W.6 did not yield any result. The accused all of sudden whipped out a knife from his pocket of pant and gave a blow at the chest of the victim resultently victim suffered and fell down. The accused ran away. The complainant, his son and other family members were more concerned about the precarious condition of the victim than resorting the matter to police or to locate whereabouts of the accused. Their evidence will have to be scanned with its intrinsic merit. The earlier incident of quarrel between the deceased and accused is also high lighted by these witnesses. 9. The defence advocate pointed out that the witnesses deposed, accused took away knife from the back side of his pant, but does not so stated in the F.I.R. In the F.I.R it is stated that accused took knife from pocket of his pant. The end reference of “back” will not turn down the situation due to version of P.W.5 and P.W.6. It will not be amounting to a development or exaggeration. The dead body was in fact carried to the police station which police then carried for inquest by the Investigation Officer (Exh.12). The inquest is also not disputed by the accused. There is no delay in the victim to be removed for medical assistance. Then the lodging of FIR could not be said to be with deliberation. 7 10. It was canvassed that the knife was folding and it was difficult for the accused to take it away, open & then stab the victim and then again put back in his pocket. However, unfolding of knife was to the exclusive knowledge of the accused which he successfully carried and then after stabbing, in the process of running he has fold it to the same position and ran away. 11. The evidence of eye witness referred above cannot be looked with any suspicion, to brand them as interested witness. In natural situation they were present at the ottla and at around 8.00 P.M they were chating at ottla with the deceased. They did not expect or dream sudden emergence of Accused to pick up quarrel. It is curious, their evidence which corroborate to the scuffle is even not disputed by accused. The claim that the accused was in drunken condition and due to scuffle the deceased fell on Babhool tree is a concocted aspect, and we outrightly reject the same. Even PW-4has discarded such eventuality, which in the light of injuries was the correct position. 12. The spot panchanama (Exh.9) and blood stains were noticed on the ground proved through P.W.1. P.W.3 saw the victim lying on the spot when he accompanied P.W.6 Santosh. The blood stained clothes of the victim are taken charge under panchanama(Exh.13). The panchanama of seizure of clothes of 8 Accused is at Exh.14 with blood stains. The accused made voluntary statement and at his instance vide panchanama Exh.27 the knife was taken charge from his room. If, P.W.7 says that police had taken his signature on a prepared panchanama, at the same time his evidence that he accompanied the accused to his house cannot be discarded. We have scrutinised the memorandum and evidence of Investigating Officer, which also lead us to believe the events and inspire a ring of truth. 13. The weapon taken charge at the instance of the accused under Panchanama Exhs.26 and 27 was sent to the office of C.A for analysis. The panchanama (Exh.14) of seizure of clothes of the accused is admitted by the accused. C.A.report at Exh.16 clearly establish that the blood stains on the knife & on the clothes of the accused is of “B” group while the blood group of the victim is also of the same origin which was even on his clothes. The presence of human blood of “B” group on the apparels of the accused cannot be simply discarded, in fact, it is strong circumstance against the accused as the accused has blood group 'O' (Exh.15). There is no explanation offered by accused for presence of human blood of “B” origin. The panch did not notice any injury to the Accused to suggest, the blood stain could be due to such injury. The entire analysis of evidence establish that it was the accused alone who has committed the offence and caused death of deceased. The accused extended abuse & 9 threats to victim & P.W.5 & P.W.6 and same proved germination for the incident of scuffle, it is thus proved, there was Criminal intimidation from accused. 14. The accused at the material time in the night without any provocation carried a knife in his pocket though, he was in drunken state of mind and even, unable to properly stand or walk. It was the accused who initiated the controversies and when tried to be intervened by P.W.5 and P.W.6, and whipped out a knife and pierced in the chest/abdomen portion of the victim at left side between rib No.5 and 6 resultently caused damage to the vital organs. 15. There is no pre-mediation in the act of accused. His physical condition, made him to cause attack with knife, he had knowledge of its consequences. The purpose apparently was to assault Dilip who retorted to accused, whether such revolt by Dilip is provocative enough to make a normal man in similar circumstances react so violently as to release his homicidal impulse. There was no time for the Accused to cool down. It is a single assault caused by the accused in the scuffle. The cause of death is due to stab injury. The accused could have continued to give blow to deceased till he died, however, the accused must in provoked condition gave one blow, and he had knowledge that such blow of knife is likely to cause death of victim. Such assault 10 by the accused at vital parts of the body of the deceased also cannot be skipped. There was no material that accused was bent up on killing Dilip in the quarrel. The accused has done act with intention of causing death or of causing such badly injury is likely to cause death. Consequently, the present case falls within the bracket of Section 304 part I of I.P.C and not under Section 302 of I.P.C. 16. Hence, we proceed to pass the following order. (i) The appeal is partly allowed. (ii) The conviction of the accused/appellant under Section 302 of I.P.C is set aside. (iii) The accused/appellant is sentenced for the offence punishable under Section 304 part I of I.P.C and he is directed to suffer R.I for a period of ten years and to pay fine of Rs.1000/- (Rs.One Thousand) in default to suffer further R.I for further period of 30 days. (iv) The accused is entitled for set of for the period which he has already undergone. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)