1 (APEAL 492.04) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.492 OF 2004 Sanjay Chauthi Soni ) Age : Adult, ) Permanently residing at ) Kurar Village, Visal Pada, ) Malad (East), Mumbai – 97 ) (at present lodged at ) Kolhapur Central Jail) ) .... Appellant. Versus The State of Maharashtra ) ..... Respondent. --- Mr. Nitin Sejpal & Ms. Pooja Bhojne for the appellant. Mr. P.S. Hingorani, APP for the State. --- CORAM: V. M. KANADE & K.K. TATED, JJ DATE : 19th December, 2011 ORAL JUDGMENT: (Per V.M. Kanade, J.) 1. Appellant has filed this appeal against the order of conviction passed by the Additional Sessions Judge, Greater Bombay. By the said judgment and order dated 19/12/2003, he was pleased to convict the appellant for the offence 2 (APEAL 492.04) punishable under section 302 of the Indian Penal code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs 1000/- and, in default, to undergo rigorous imprisonment for one month. Appellant was also convicted for breach of section 37(1)(a) Act No.XXII of 1951 of the Bombay Police Act and sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs 500/- and, in default of payment of fine, to undergo rigorous imprisonment for one month. 2. Prosecution case, in brief, is that Manojkumar Jaiswal was residing alongwith Ajay Bidwasi Singh at Bangali Pada, Malad and, on 2/2/2000, at about 9.00 P.M., when they were preparing food, accused Nos. 1 and 2 came there, dragged him out of the room, abused him and accused No.1, appellant herein, assaulted him with a knife and accused No. 2 assaulted him with bamboo stick. This incident was witnessed by Ramchandra, Ajay and Arunkumar Gupta. Manojkumar was taken in a rickshaw to Dindoshi Police Station by Shivaji Mane and Chandu Pawar and from there he was sent to the hospital where he was treated and, thereafter, his statement was recorded by P.S.I. Khade and after Manojkumar succumbed to the injuries, the FIR was registered for the offence punishable under section 302 of the Indian Penal Code. The inquest panchanama was drawn. Postmortem was performed by Dr Rambhau Sanap who gave an opinion that the injuries which were caused to the deceased were sufficient in the ordinary course of nature to 3 (APEAL 492.04) cause death and that the death was homicidal. 3. Prosecution examined 14 witnesses. Trial Court acquitted the accused No.2 – Lallan Chauthi Soni but, at the same time, convicted the appellant herein. 4. The learned Counsel appearing on behalf of the appellant has taken us through the judgment and order of the Trial Court and also the evidence which is adduced by the prosecution. It is submitted that there is only one eye witness to the said incident viz. P.W. 2 – Ajay Singh. It is submitted that P.W. 1 – Ramchandra Waghmare is not an eye witness and has not seen the actual assault. It is submitted that other eye witnesses have turned hostile. It is further submitted that recovery of knife is made from the place which is accessible to the public at large and, therefore, could not be relied upon. It is further submitted that the recovery was made after a considerable lapse of time after the arrest of the accused. It is also submitted that blood-stained knife was sent almost after one month to the Chemical Analyser and that the articles which were to be sent to Chemical Analyser were not sealed and were sent after considerable lapse of time. 5. The learned APP appearing on behalf of the State, on the other hand, submitted that the witnesses viz. P.W.1 and P.W.2 have clearly established that the appellant had assaulted the deceased with the knife. His presence had 4 (APEAL 492.04) been established by the evidence of P.W.1 and P.W. 5 – Arunkumar Gupta. He submitted that statement of the deceased was recorded by P.S.I. Khade and it was an additional piece of evidence. It is established that the appellant was a perpetrator of the crime. It is, therefore, submitted that no case is made out for interfering with the judgment and order passed by the Trial Court. 6. We have heard the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State and we have give our anxious consideration to the submissions made by both of them. 7. In our view, though the prosecution has established that the appellant had assaulted the deceased with the knife, his case would fall under exception-4 to section 300 and not under section 302 of the Indian Penal Code for the reasons stated hereinbelow. 8. P.W.1 – Ramchandra Waghmare has stated in his evidence that he was inside the house and he heard some commotion and, therefore, he came out and, at that time, he saw the appellant was sitting on the chest of the deceased Manojkumar who was lying on the ground and when he tried to stop him, he also threatened him with knife and, thereafter, he ran away. This witness, obviously, is not an eye witness to the incident of the appellant assaulting the deceased with knife. According to him, he only saw the 5 (APEAL 492.04) appellant sitting on the chest of the deceased with knife. It has to be noted here that, in the cross-examination, advocate for the defence has brought on record the contradiction in the statement recorded by the Police of this witness and his deposition in the court. The advocate for defence has proved this contradiction. The Investigating Officer has admitted that in the police statement P.W.1 has stated that he had seen the accused No.2 – Lallan sitting on the chest of the deceased and not Sanjay, the appellant herein. This contradiction is crucial contradiction and, as such, his entire testimony becomes doubtful and, therefore, no reliance can be placed on the testimony of this witness since in his evidence before the Court he states that the appellant was sitting on the chest of the deceased. He has not stated that he had seen the appellant assaulting the deceased with knife. No reliance, therefore, can be placed by the prosecution on his testimony. P.W. 2, however, has stated that he was cutting vegetables in the room and he also heard commotion and he has stated that he had seen the appellant assaulting the deceased with knife. He does not mention the presence of accused No.2. He has stated that there was sudden commotion and when he came out, he saw that the accused No.1 was assaulting the deceased with the knife. He has not given any details regarding the actual assault. He has merely stated that he had seen the appellant giving stab wounds to the deceased with his knife. He has admitted in cross-examination that his statement was not explained or read over to him by the Police, though 6 (APEAL 492.04) it was sought to be argued that since first statement was not read over and explained to him his entire testimony was not trustworthy. The said submission cannot be accepted. P.W. 2 is an eye witness and he has noted the presence of the appellant and has also observed him assaulting the deceased with knife and, as such, the prosecution has established this fact though his statement may not have been read over to him by the prosecution. On that ground, his testimony cannot be discarded. P.W. 5 has stated that when he came near the scene of offence, he saw the accused running away with blood-stained knife. In view of this testimony of P.W. 5 the presence of the accused/appellant at the scene of offence is established and the assault made by the accused/appellant on the deceased has been established on account of the evidence given by P.W.2. 9. The only question which remains to be considered is : whether the prosecution has established that the appellant had committed offence under section 302 of the Indian Penal Code? 10. In our view, taking into consideration the evidence of P.W. 2 and P.W.5 and the suggestions which are made by the defence, the case of the appellant would squarely fall under Exception-4 to section 300 of the Indian Penal Code which reads as under:- 7 (APEAL 492.04) “Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.” The Exception-4 to section 300 of the Indian Penal Code covers the act done in sudden fight. The said exception deals with the case of the prosecution not covered by the first exception. The Exception-4 is founded upon the principle of lack of premeditation and if it is established that the act was done in the heat of passion on some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet, subsequent conduct of both parties put them in respect of the guilt upon the equal footing. It has to be shown, therefore, that death was caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in cruel or unusual manner; and (d) the fight must have been with the person killed. 8 (APEAL 492.04) 11. In our view, taking into consideration the evidence on record, the present case would fall under exception-4 to section 300 and, therefore, the appellant will have to be convicted under section 304 Part-I of the Indian Penal Code and not under section 302. Both, P.W. 1 and P.W. 2 have stated in their evidence that there was huge commotion and there were exchange of abuses between the deceased Manojkumar and accused No.1 Sanjay and, thereafter, suddenly P.W. 2 heard the shouts of the deceased Manojkumar as “Bachav, Bachav”. This clearly shows that there was a sudden fight and exchange of abuses between the two which resulted in the death of Manojkumar. The Judgment and Trial Court, therefore, will have to be modified and the appellant will have to be convicted for the offence punishable under section 304, Part-I and not under section 302 of the Indian Penal Code. 12. In the result, the following order is passed:- O R D E R Appellant is acquitted of the offence punishable under section 302 of the Indian Penal Code. Appellant, however, is convicted for the offence punishable under section 304 Part-I of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years. 9 (APEAL 492.04) It has come on record that the appellant is in jail from the date of the incident i.e. from 2/2/2000 and it appears that he has already undergone more than 11 years of actual imprisonment since he was in jail throughout. Appellant, therefore, if he has already undergone the sentence of 10 years be released forthwith, unless he is required in any other case. Appeal is accordingly partly allowed and disposed of. (K.K. TATED, J.) (V.M. KANADE, J.) 10 (APEAL 492.04)