Oral Judgment: (P.V. Hardas, J.)
The Appellant / original accused No.1 who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months, by the Sessions Judge, Sindhudurg, Oros, by judgment dated 17 December 2007, in Sessions Case No. 21 of 2007, by this Appeal questions the correctness of his conviction and sentence.
2. Facts in brief as are necessary for the decision of this Appeal may briefly be stated thus:
P.W. 11 Police Constable Nandkumar Gosavi who on 1 April 2007 was attached to Malwan Police Station, recorded the report of P.W. 1 Chandrakala at Exhibit 26. On the basis of the said report, he registered an offence against the accused and forwarded the papers to Police Station, Achara for further investigation.
3. P.W. 12 P.S.I. Krishna Kalantre, who was attached to Police Station, Achara, had received the papers from P.W. 11 Police Constable Nandkumar Gosavi on 2 April 2007 at about 1.00 a.m. On the basis of the report of P.W.1 Chandrakala, he registered an offence under Section 302 read with 34 of the Indian Penal Code vide Crime No.1 of 2007 against accused Nos.1 to 4. He thereafter proceeded to the scene of incident. On going to the scene of incident, which was pointed out by P.W. 1 Chandrakala, he drew the scene of incident Panchanama in the presence of panchas at Exhibit 32. From the scene of incident, he drew the sample of bloodstains which were sealed and seized under the said Panchanama. From the scene of incident he thereafter proceeded to the Rural Hospital at Malwan where the dead body of deceased Chandrashekhar was kept in the mortuary. In the presence of panchas, therefore he drew an inquest Panchanama of the deceased at Exhibit 29. Accused Nos.1 to 4 were arrested at village Achara under the arrest Panchanama and were referred to the Rural Hospital, Malwan for medical examination.
4. P.W. 10 Dr. Swapnil Pise had examined P.W. 5 Vishwas. P.W. 10 Dr. Pise had noticed that P.W. 5 Vishwas had sustained the following external injuries:
œ1. The deep bruise was found on bilateral parietal bone of the skull.
2. Superficial abrasion over right side dorsal aspect of forearm 10 cm from the wrist, lower, 1/3rd of forearm.
3. The tenderness was found on the right and left side of lumber vertebra 20 cm away from the spine.
4. Tenderness was found over bilateral testicles.?
5. He has opined that injuries 1 and 3 might have been caused by hard and blunt object. The aforesaid injuries were simple in nature. The superficial abrasion could be caused by hard and rough surface. The medical certificate of P.W. 5 Vishwas is at Exhibit 49.
6. On 3 April 2007 the statement of witnesses were recorded and the clothes of P.W.1 Chandtrakala and clothes of P.W. 2 Namrata were seized under seizure memo at Exhibit 39. The clothes of the accused were seized under seizure memo at Exhibit 30. The clothes indicated that they had been stained with blood. The report of the Chemical Analyzer, however, is inconclusive as the blood group on the clothes could not be determined.
7. On 8 April 2007 P.W. 12 P.S.I. Kalantre forwarded the seized articles to the Chemical Analyzer at Pune under requisition at Exhibit 52. The sketch of the scene of incident was drawn and further to the completion of investigation, a charge-sheet against the accused was filed.
8. The postmortem on the dead body of deceased Chandrashekhar was performed by P.W.9 Dr. Rajkumar Bothikar. P.W.9 Dr. Bothikar noticed the following external injuries:
œ1. Penetrating injury over right side of chest in the 2nd inter costal space, four finger above from right nipple (1 cm x 1 cm x 5 cm).
2. Imprint abrasion over right chest (2 cm long) and 2nd inter costal space, four finger above right nipple, close to injury No.1.?
9. He found that the said injuries were ante mortem injuries and on internal examination he noticed presence of blood in thorax. He also noticed one penetrating injury on the right side of the middle lobe of right lung of size 1 cm x 1 cm. Blood was noticed in pericardium. Opening in the ascending aorta of size 1 cm x 1 cm was noticed.
10. P.W.9 Dr. Bothikar therefore came to the conclusion that the deceased had died due to intrathorasic haemorrhage due to penetrating injury. The postmortem report is at Exhibit 45.
11. On committal of the case to the Court of Sessions, the Trial Court vide Exhibit 15 framed charge against the accused for offences punishable under Sections 302, 323, 324 read with 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. The prosecution in support of its case examined 12 witnesses. The defence of the accused was all denial. The Trial Court upon appreciation of the evidence convicted and sentenced the Appellant / accused No.1 as aforestated while acquitting the other accused.
12. In order to effectively deal with the submissions advanced before us by Mr. Kocharekar, counsel appearing on behalf of the Appellant and the learned Additional Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses.
13. P.W.1 Chandrakala, wife of deceased Chandrashekhar deposes that the Appellant is the cousin of deceased Chandrashekhar. The Appellant and deceased were residing in the same house which was partitioned. The Appellant and the deceased were therefore residing in their respective share. According to P.W. 1 Chandrakala on the day of the incident i.e. on 1 April 2007 at about 9.00 p.m. Chandrakala was cooking food for her husband Chandrashekhar. Since she could not prepare the Bhakri properly, the deceased abused her. On hearing the abuses, the Appellant who was residing in the adjoining area of the house came to the house of the deceased and asked him to come out of the house i.e. in the verandah. Deceased Chandrashekhar left his dinner and went out of the house. Accused Nos.1 to 4 caught him and dragged him away to the verandah. Accused No.2 gave a fist blow on the nose of deceased Chandrashekhar, while accused No.1 gave a blow of an iron bar on the right side chest of Chandrashekhar. On receiving the said injury, Chandrashekhar fell on the ground. Chandrakala rushed towards her husband, but accused No.3 pushed her away and accused No.1 pulled her sari. The other accused viz. accused Nos.3 and 4 then twisted the private part of deceased Chandrashekhar. Chandrashekhar was thereafter admitted in the Government Hospital at Achara. Upon examining Chandrashekhar, the Medical Officer advised P.W.1 Chandrakala to shift deceased Chandrashekhar to the Government Hospital at Malwan. Accordingly injured Chandrashekhar was then taken to the Government Hospital at Malwan. The Medical Officer on examining Chandrashekhar pronounced him dead. Chandrakala states that thereafter she had gone to the Police Station at Malwan and had lodged her report at Exhibit 26.
14. In the cross examination, Chandrakala has admitted that the house in which she was residing was partitioned in three parts. The northern portion was allotted to Keshav, who is a cousin of deceased Chandrashekhar. The middle portion of the house was partitioned between the Appellant and deceased Chandrashekhar. In further cross examination she had admitted that at the time of incident her daughter P.W.2 Namrata was also present. An omission has been elicited about the other accused then dragging deceased Chandrashekhar towards verandah. An omission has also been elicited that she had not stated that deceased Chandrashekhar on opening the door had gone to verandah. Overt acts alleged to have been attributed to accused Nos.2 and 4 have been elicited as omission. Certain omission is elicited in respect of the sequence of assault. She had further admitted that when she had returned, she had noticed her daughter and P.W. 5 Vishwas. She has denied the suggestion that on the day of incident deceased Chandrashekhar while in an inebriated condition, gave a blow of iron bar to accused No.1. The other accused had thereafter rushed to rescue accused No.1. She has also denied the suggestion that deceased Chandrashekhar has caused a bleeding injury to accused No.1. She has also denied the suggestion that when accused No.1 assaulted deceased Chandrashekhar, P.W. 5 Vishwas had assaulted accused No.2 by a stick. She then states that œthe iron bar which is at article No.1 is used for catching the crabs?. She has denied the suggestion that the iron bar belonged to her husband.
15. Prosecution has examined P.W.2 Namrata who also deposes on similar lines as that of P.W. 1 Chandrakala. In cross examination an omission has been elicited that she had not stated that the Appellant had come to the entrance of their house and asked deceased Chandrashekhar to come out of the house. An omission is elicited in respect of the exact place of the assault.
16. Prosecution has then examined P.W. 5 Vishwas, brother of deceased Chandrashekhar. P.W. 5 Vishwas deposes that he was taking his meal in the rear verandah of his house and had heard a quarrel and the exchange of abuses between the deceased and the Appellant. He therefore came towards the front portion of the house and when he had reached there, he had noticed accused No.1 while piercing the iron bar in the chest of deceased Chandrashekhar. He then deposes the over acts contributed to accused Nos.2 to 4. In cross examination, he was confronted with a portion marked 'A' from his statement wherein he had stated that deceased Chandrashekhar had gone from his residential house to the room occupied by the Appellant. He could not explain as to why the portion marked as A was recorded by the police. Certain omissions have been elicited about assault by accused No.1 to P.W. 5 Vishwas. He has then admitted that deceased Chandrashekhar used to frequently quarrel with his wife as he did not have a male issue.
17. Mr. Kocharekar, counsel appearing on behalf of the Appellant at the outset has urged before us that the evidence of P.W.1 and P.W. 2 forms one group of eye witnesses, while the evidence of P.W 5 Vishwas forms another group of evidence of eye witnesses. It is urged before us that the variance in the testimony of P.W. 1 and P.W.2 on the one hand and the testimony of P.W. 5 Vishwas on the other hand is irreconcilable. It is therefore urged before us by learned counsel for the Appellant that the Appellant is entitled to be acquitted. In the alternate, it is urged before us by counsel appearing on behalf of the Appellant that apparently the injury was inflicted by the Appellant in a sudden fight without the Appellant acting in a cruel manner or taking undue advantage of the deceased and the case of the Appellant would be governed by exception 4 to Section 300 and the Appellant would be liable to be convicted for an offence punishable under Section 304 part II of the Indian Penal Code. The learned Additional Public Prosecutor has opposed the alternate submission of counsel appearing on behalf of the Appellant and has urged before us for dismissal of the Appeal.
18. P.W. 1 Chandrakala deposes about the incident and her evidence is corroborated by the evidence of P.W.2 Namrata. In the cross examination of P.W.1 Chandrakala the presence of P.W.2 Namrata has been elicited. Thus, there can be no doubt about the presence of P.W. 2 Namrata at the scene of incident. The evidence therefore squarely establishes that the Appellant had stabbed stated the deceased with an iron bar in the verandah. The evidence of P.W. 5 Vishwas cannot be rightly left out of consideration. P.W. 5 Vishwas has been examined as a prosecution witness. The prosecution had not declared Vishwas as hostile and had not cross examined P.W.5 Vishwas. The admission given by P.W.5 Vishwas that the deceased had gone to the room of the Appellant therefore has to be accepted as the same has been elicited as a contradiction at portion marked A from the previous statement of P.W. 5 Vishwas. The prosecution thus cannot wish away the evidence of P.W.5 Vishwas. The prosecution is bound by the admissions given by P.W.5 in the cross examination. A reference at this juncture may usefully be made to the judgment of the Supreme Court in Javed Masoodv. State Rajasthan (AIR 2010 SC 979). In the said judgment the Supreme Court has held that if the prosecution witness supports the defence and if not declared hostile, the accused can certainly rely on such evidence.
19. The evidence of P.W.5 Vishwas therefore indicates that deceased Chandrashekhar had gone to the room occupied by the Appellant. The evidence of P.W. 1 Chandrakala and P.W.2 Namrata in that respect stands falsified that the Appellant on hearing the abuses had come to the house of the deceased and had challenged him to come outside in the verandah. It appears that P.W. 1 Chandrakala and P.W.2 Namrata have thus suppressed this part of the incident. If indeed the deceased had gone to the house of the Appellant and there was some scuffle between them and during this scuffle in the heat of moment the Appellant had stabbed deceased, the case of the Appellant would be covered by the fourth exception. The fact that the Appellant was not armed with any weapon has certainly been established as neither P.W. 1 Chandrakala nor P.W. 2 Namrata evenly remotely indicate that the Appellant when he had come to their house was armed with any weapon. It is apparent to us that the Appellant had no intention to kill deceased Chandrashekhar.
20. It is true that the Appellant had inflicted an injury which was sufficient in the ordinary course of nature to cause death and therefore according to learned Additional Public Prosecutor clause thirdly of Section 300 would squarely apply Clause thirdly of Section 300, as has been explained by the Supreme Court in ViraSingh v. The State of Punjab (AIR 1958 SC 465), requires the prosecution to establish that the injury which is inflicted by the accused is an intentional injury and was not an accidental injury. The prosecution then must establish that the injury was sufficient in the ordinary course of nature to cause death and the deceased had died on account of that. The Supreme Court then concluded that if these are established, it is immaterial if the intention of the accused was not to kill the deceased.
21. In the present case, we find that since the injury was inflicted during the scuffle in a heat of the moment, and there is nothing to indicate that the accused had intended to inflict the said injury, as there was scuffle between them, clause thirdly of Section 300 would not apply. The case of the Appellant would be squarely covered by the fourth exception to Section 300 which contemplates infliction of an injury in a sudden fight in the heat of moment without the accused taking undue advance or acting with any cruelty. Since the case of the accused would fall for the fourth exception, the conviction of the Appellant for offence punishable under Section 302 would be unsustainable. The Appellant would be liable to be convicted for an offence punishable under Section 304 (2) of the Indian Penal Code as knowledge can be attributed to the accused about the consequences of causing of the said injury.
22. In the light of what has been held by us above, we partly allow the Appeal and set aside the conviction of the Appellant for the offence punishable under Section 302 of the Indian Penal Code and instead convict the Appellant for offence punishable under Section 304 Part II of the Indian Penal Code. Counsel appearing on behalf of the Appellant has urged before us that the Appellant has been in jail since 2 April 2007 and continues to be in jail till today as the Appellant was not released on bail by this Court. The Appellant therefore has undergone more than six and half years of imprisonment. According to us, the aforesaid sentence would be an adequate sentence to be imposed for an offence punishable under Section 304 Part II of the Indian Penal Code. We, however, consider increasing the fine which has been imposed on the Appellant and further intend to direct that the fine, if recovered, be paid to P.W.1 Chandrakala, wife of deceased Chandrashekhar.
23. We accordingly partly allow this Appeal and set aside the conviction and sentence of the Appellant for offence punishable under Section 302 and instead convict him for offence punishable under Section 304 Part II of the Indian Penal Code and sentence him to rigorous imprisonment for six years and to pay a fine of Rs.10,000/-, in default of which to undergo further rigorous imprisonment for one year. Fine, if recovered to be paid to P.W. 1 Chandrakala. Since the Appellant has undergone the said sentence, the Appellant be released forthwith, if not required in any other case.