1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 622 OF 2007 Babu Abdul Sattar Shaikh, ] Convict No.2288,Kolhapur Central Jail, ] Kalamba, ] Kolhapur 416007 ] ...Appellant Versus The State of Maharashtra ] [at the instance of Cuffe Parade ] Police Station] ] ...Respondent Dr. Yug Mohit Chaudhary for the Appellant Mrs. A.S. Pai, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and A.R. JOSHI, JJ. DATE: JULY 29, 2009 ORAL JUDGMENT (Per Bilal Nazki,J.):- This is an appeal against the conviction and sentence of the appellant-accused in Sessions Case No. 17 of 2000. He was sentenced to imprisonment for life under Section 302 of the Indian Penal Code, and fined Rs.5,000/-, and in default, he had to 2 undergo rigorous imprisonment for 6 months. He was also convicted under Section 324, and sentenced to one year’s rigorous imprisonment, and fined Rs.5,000/-; in default, he had to undergo rigorous imprisonment for 7 days. 2. The allegations of the prosecution were that on 29th September, 1999 at about 2.30 a.m. at Dr. Babasaheb Ambedkar Nagar, before Hut No. 596, behind Jamna Grocery Shop, in front of Saibaba Temple, Cuffe Parade, Mumbai, the appellant-accused committed murder by intentionally causing death of one Shankar Jagannath Shetty by stabbing him with a knife on his chest. It was also alleged that during the same occurrence, the accused voluntarily caused hurt to one Gopal Manju Bhandari by biting on his left arm, and thereby committed an offence under Section 324 of the Indian Penal Code. 3. On the basis of these allegations, charges were framed under Sections 302 and 324. The accused pleaded not guilty, and claimed to be tried. The prosecution examined, in all, 7 witnesses. 3 4. The learned counsel appearing for the appellant has fairly stated that in view of the statement of two witnesses, who were eye-witnesses in the case, this case may not be a case of complete acquittal, but it would be a case which would fall under Section 304, Part II of I.P.C., since the events as disclosed by the eye-witnesses would show that the occurrence would fall within Exception 4 to Section 300 of I.P.C. This argument would have to be tested in the light of the evidence of P.Ws. 1 and 2. 5. Before coming to the testimony of these witnesses, it appears that the accused and the deceased were close friends for a long time. They used to play cards, more or less, regularly every day, and on the fateful day, there was a quarrel during playing of the cards between the accused and a third person. The deceased intervened and twice slapped the accused. The accused got enraged, went to his house, which was adjacent, brought a kitchen knife, and gave a blow on the chest to the deceased, who unfortunately died. 4 6. P.W. 1, Gopal Manju Bhandari, stated that in 1999, he was staying at Room No. 596, Ambedkar Nagar. He was living with Chandra Shetty. He had a pan stall. His pan stall would remain open from 6 a.m. to 11 p.m. Chandra Shetty was helping him in his business. The accused was also staying in his neighbourhood. The accused was a regular visitor to his shop. On 29th September, 1999, some people next to him were playing cards at his place. They were Shankar, Babu, Saji, Vargis and Khusha. Around 1 a.m. after he came out of his house, these people started playing cards. He went to his home at 2.15 a.m., and found that there was some trouble between Shankar and Babu. Babu was slapped on the cheek by Shankar, on which Babu came out of the house, and threatened “Tereko dekh lega”. Thereafter, Babu went home and brought a ‘suri’. On return, he tried to pacify Babu, and told him that they were all neighbours and there should be no fight between them. He saw the weapon in the hands of Babu and caught hold of him, on which he sliced the hand of the witness and, therefore, he loosened his grip and thereafter, the accused stabbed Shankar near the heart and the arm pit. After attack, Shankar collapsed and Babu left the place. 5 On seeing the condition of Shankar, he tried to help him and took him to the hospital as he was bleeding profusely. The witness took him to St. George Hospital. The doctor saw Shankar and declared him dead on admission. He himself received medical aid for his injury. Then, he was called to Cuffe Parade Police Station, where he made a statement. 7. In his further examination, he stated that he was not attacked by the accused, but he was bitten by teeth by the accused. He identified the knife as the same knife which was used by the accused, and it was exhibited as Article 1. He also exhibited other articles, being the clothes of the accused as Articles 2 and 3. 8. In his cross-examination, the witness further stated that the accused and the deceased had no enmity or fights before this incident, and they were good friends. 9. P.W. 2, Arakal Shahaji Vargis, was also living in the same area, and he stated that on the date of the incident, after his dinner, he went out to meet his friends, Babu, Balya, Khusha 6 and Shankar. As usual, on a holiday, they would gather to play cards in the premises above the shop of P.W.1. When they went there, they found Gopal and Shankar having dinner. Thereafter, Gopal went down, as he did not desire to play cards, and thereafter, they all started playing cards during which there was a quarrel between Balya and Babu. The same was resolved by Shankar. Gopal returned after a stroll, and at that time, there was a fight between Balya and Babu. Shankar tried to intervene, and slapped Babu twice. Babu came down, and threatened, “tu niche aa, mai tereko dikhata hoon”. Babu left, and went home. They came down, and Babu returned with a knife from his home. Gopal intervened, and caught hold of Babu. However, he was bitten on the left upper arm by Babu. As the grip was released by Gopal, Babu attacked Shankar near the heart. On account of that, Shankar collapsed, and they took him to St. George Hospital. The witness also stated that Gopal and Babu were friends and had no enmity earlier. 10. In the context of the arguments made by the learned counsel for the appellant, we feel that it will be only necessary for 7 us to consider the evidence of the doctor who conducted autopsy, and he is P.W. 5. 11. P.W.5, Dr. Dilraj Baburao Kadlas, stated that the body was brought before him by a policeman, and the body was identified by the brother of the deceased. Post mortem was conducted on 29th September, 1999. He noted the following external injuries:- “1. Incised wound, spindleshaped 4 x 1 x 1 c.m. (complete thickness) oblique sharp edges 4 cm below nipple 2. Abrasion 1 x 1 cm. Over right knee. Thorax- a- walls, ribs, cartilages Left side 5th rib sharp bone cut anteriolaterally (complete) b- Pleura Haemothorax left side about 2 litres of blood f- Pericardium Incised penetrating wound in the pericardium 3.5 x1 complete thickness. Pericardial cavity filled with blood clots. g- Heart with weight Incised stab wound over left side of left ventricle 3.5 cm x 1 cm – opening in ventricular cavity, spindleshaped.” 8 12. According to his opinion, the injuries could have been caused by Article 1. The injury shows that there was only one external injury, which confirms what the eye-witnesses had stated that there was only one blow given by the accused to the deceased. The knife was also a small kitchen knife, and it was unfortunate that the single blow went into the heart. It went into the depth of 4 cm., and thereby caused an open cut in the 5th rib, and also a penetrating wound in the pericardium and on the left side of left ventricle. 13. In view of the testimony of the two eye-witnesses and the autopsy report, we are of the view that this incident did not occur after any pre-meditation by the accused. Secondly, there was a fight between the accused and the deceased, and when the accused was fighting with a third person and when the deceased intervened, he slapped the accused twice, and there was a kind of provocation as well, and he left after the sudden fight to the adjacent room, got a kitchen knife and stabbed. 9 14. The attack on the deceased was a single blow. Although the accused could have given consecutive blows, but he did not give even a second blow. Therefore, we are of the view that this falls within Exception 4 of Section 300 of the Indian Penal Code. 15. The learned Additional Public Prosecutor has relied on a judgment of the Supreme Court in Vishal Singh v. State of Rajasthan reported in 2009 CRI. L.J. 2243. On the analysis of the principle laid down in the judgment, what we find is that the ingredients of Exception 4 to Section 300 are satisfied in the facts and circumstances of this case. 16. We, therefore, allow this appeal to the extent of setting aside the conviction and sentence under Section 302 of the Indian Penal Code, and convict the appellant-accused, Babu Abdul Sattar Shaikh, under Section 304 (Part II) to sentence already undergone, as we are told, in the open Court by learned counsel for the appellant as well as the learned Additional Public Prosecutor, that the accused has already undergone actual imprisonment of around 10 10 years. We further set aside the order of fine. In view of our order acquitting the accused-appellant under Section 302 and sentencing him to period already undergone under Part II of Section 304, which is almost 10 years, we do not think it necessary to give a separate sentence under Section 324. The fine imposed under Section 324 is, however, set aside. Appellant-accused, Babu Abdul Sattar Shaikh, be released forthwith, if not required in any other case. BILAL NAZKI, J. A.R. JOSHI, J.