Judgment:
Vaidya, J.
1. The learned Additional Sessions Judge, Nasik had convicted the present appellant in Sessions Case No. 17 of 1988 on his file, of an offence punishable under section 302 of the I.P.C. and had sentenced him to suffer imprisonment for life.
2. The prosecution story as it emerges from the record is as follows :
The appellant is alleged to have murdered, on 21st Dec. 1987 at about 10 p.m. his wife's brother Ramdas Santu Pawar in front of the residences of both of them at village Lingame, Taluka Kalwan, District Nasik. Santu was the father of deceased Ramdas and several years ago, when Ramdas was a minor and Santu was ailing of some ailment. Santu had brought to his house the accused as an illatom son-in-law to look after Santu's agricultural property at Lingame. In course of time, the daughter of Santu, that is the elder sister of deceased Ramdas, was married to the appellant. About 9 or 10 years before the incident of offence, Santu had died. Till then, and for a few years after the death of Santu, the lands of the family of Santu were being cultivated jointly by the appellant and deceased Ramdas. Thereafter, they had separated and a separate portion of the residential house of Santu was given to the accused and his wife for their residence. A portion of about 3 acres of land also was separately given to the appellant for cultivation and for earning the livelihood of his family. The appellant lived in the house given to him with his wife Kamlabai and his son Shantaram. The portion of the house which was in the possession of deceased Ramdas and his family, (which consisted of his mother Sakhubai, wife Somibai, younger sister Suman and the children) was adjoining the portion allocated to the appellant. The relations between the two families were cordial, though at times there were reportedly some domestic quarrels here and there. On the date of the offence, i.e., 21st Dec. 1987, deceased Ramdas and his friends, including P.W. 2 Chintaman, had gone for purchase of onion seedlings. They returned to Lingame in the evening and thereafter, deceased Ramdas had invited P.W. 2 Chintaman and one Waman to his residence for food. P.W. 3 Somibai was informed of this at about 7 p.m. and thereafter, she had started cooking food. The food was ready within an hour or two and as it was being made ready, deceased Ramdas had himself personally gone out and brought to his house, in a short while, P.W. 2 Chintaman and their common friend Waman. It appears that, in the meanwhile, the appellant had learnt of the guests being invited to dinner. He had felt, probably, irritated over that fact itself and had then demanded from deceased Ramdas some amounts allegedly due to him for the agricultural work done by him and/or his son Shantaram in the field in the recent past. This resulted in some hot exchange of words. The inmates of the family had heard this hot exchange of words, and P.W. 3 Somibai, the wife of the accused, Kamlabai and Shantaram, the son of the accused, had tried to pacify him. They managed to take the appellant to his own residence. It also appears that P.W. 2 Chintaman had some problem about his bullock, that bullock being not keeping well, and that he had, therefore, asked for the bullock from deceased Ramdas. Deceased Ramdas had, therefore, untethered from the cattle shed a bullock belonging to the appellant and had brought it to the open space in front of the house and had tethered it there. The appellant, who was already irritated, then case out by the rear entrance of his house, armed with an axe, and had assaulted deceased Ramdas with it. The blow of the axe fell on the head of deceased Ramdas with such a force that the blade of the axe got stuck up in the head of deceased Ramdas. When P.W. 2 Chintaman tried to remove the axe, he could not do so. The appellant himself, therefore, removed the axe and withdrew himself to his own residence. Leaving the axe there only, the appellant had then left his house. Waman had withdrawn from the place as soon as the quarrel had started. P.W. 2 Chintaman, who was on the spot, then, rushed to the house of P.W. 1 Motilal Palvi and reported the matter orally to him. Motilal Palvi arrived on the scene, verified the facts reported to him and then proceeded with some persons around to Abhona police station, which was at a distance of about 20 kms. from Lingame. They went in a bullock cart and they took their own time to reach the police station. Having reached the police station, they could contact the P.S.I. only early in the morning and then the FIR Exhibit 19, was lodged before P.S.I. Lahare P.W. 7. The Offence was registered at 7.05 a.m. for an offence punishable under section 302 of the Indian Penal Code and the usual investigations were made. The P.S.I. had proceeded to the scene of offence and had made the formalities such as inquest panchnama, panchanama of the scene of offence, recording of the statements of the witnesses etc. In the course of doing so, he had searched the residence of the accused and had found therein the blood stained axe Art. 6. By the time the P.S.I. returned to the police station, the appellant also had reached at the police station to surrender himself to the police. The post-mortem notes were received in course of time and other investigations were completed. Finally, the appellant came to be charge-sheeted for the offence punishable under Section 302 of the I.P.C.
3. At the trial, the prosecution examined P.W. 2 Chintaman, P.W. 3 Somibai, who were the direct eye witnesses to the incident, and P.W. 2 Suman (a child witness) who was lying on a bad in the vicinity of the scene of offence, to prove the incident. Among other witnesses were P.W. 4 Dr. Patil who proved the post-mortem notes Exhibit 14, pench Kisan Palvi P.W. 6, in whose presence the blood stained axe was seized from the house of the appellant, and P.W. 1. Lahare. The learned Additional Sessions Judge found favour with the prosecution evidence and proceeded to convict and sentence the appellant as stated at the outset.
4. The appellant had not disputed that he was brought in the house by deceased Ramdas and his father Santu several years ago and that he had married the elder sister of the deceased. He admitted that after the death of Santu, the land was being cultivated jointly by him and deceased Ramdas and that thereafter he was given a piece of three acres of land for cultivation and a separate residential house adjoining the house of deceased Ramdas. He had admitted that deceased Ramdas had invited witness Chintaman and one Waman for food on the night in question, but he had contended that he had not seen Chintaman and Waman physically present in the house of deceased Ramdas. It was suggested to witness Chintaman that Chintaman himself had come to the scene of offence armed with an axe to side with deceased Ramdas in the quarrel and that in that process, he (Chintaman) had given anexe blow aiming at the appellant Kashinath. It was also suggested to him that due to mistake the blow had fallen on the head of deceased Ramdas so as to bring about his death. It was, further, suggested that having realised this mistake, Chintaman had rushed to the police patil, who was his cousin, and had reported the matter in such a manner as to implicate the appellant falsely in the present case. The appellant had denied to have committed any offence and had contended that he deserved to be acquitted and set at liberty.
5. In this appeal Shri Naik, the learned advocate (appointed) for the appellant, pressed for this defence, but ultimately contended that even if the fact that the appellant had assaulted the deceased with the axe as alleged by the prosecution was duly proved, the facts and the circumstances of the case clearly showed that there was certainly no intention on the part of the appellant to bring about the death of the deceased. He submitted that looking to the background of the relations between the parties, the conduct of the appellant on the scene of offence immediately after the fatal blow was given, and his conduct in surrendering to the police immediately on the following day, it could speak volumes for intention of the accused and that it was reasonable, in the present case, to hold that the intention of the appellant was, at the most, only to cause a hurt to the deceased with the axe with which the stroke was alleged to have been given. He submitted that in no case the appellant could be held, on proved facts, guilty of an offence of murder, and further, that the offence which was brought home to the appellant was not greater than the offence punishable under section 326 of the I.P.C., viz., causing grievous hurt by means of a sharp weapon. In this context, he relied upon some observations in Vishwanath v. State of Uttar Pradesh, : [1960]1SCR646 .
6. The fact that some quarrel had ensued between the appellant and the deceased, who were neighbours, in front of their own residential houses at the alleged time was not in dispute. From the suggestions made in the cross-examination of P.W. 2 Chintaman, to which we have referred already while narrating the defence of the appellant, did indicate that it was not even disputed that the appellant was present there and was a party to the quarrel. Indeed, it appears from the evidence of P.W. 3 Somibai that the cause of the quarrel was of a petty nature. She had told that a bullock of witness Chintaman was sick and that a bullock belonging to deceased Ramdas was required by him. It may be that this talk had taken place between deceased Ramdas and witness Chintaman sometime earlier. Witness Chintaman told in his examination-in-chief that, for a while, he and Ramdas were seated in the house of deceased Ramdas and that thereafter, Ramdas had gone out of the house to bring the bullock. He told that, in the meanwhile, some quarrel, and probably a scuffle, had ensued between deceased Ramdas and the appellant. He did not tell of any-physical violence between the two at that point of time. The particulars of the quarrel were overheard by P.W. 3 Somibai while she was busy with cooking. She told that appellant had said to the deceased Ramdas that he had money to feed his friends but not to pay the labour charges which were due to him for the work done during the earlier year. According to her, the wife of the appellant had come out and she had taken the appellant back to his house and had confined him in the house. She told that while she herself and Chintaman were standing outside the house, the appellant suddenly came there from the rear entrance of his house, armed with an axe, and hit the axe on the back side of the head of deceased Ramdas. Ramdas, it is told, then fell down and died almost instantaneously without being able even to drink a drop of water. Chintaman told that the axe which was hit on the head of the deceased got stuck up in the head and though he had attempted to remove the same, he was not successful in doing so. According to him, it was the appellant himself who had removed the axe and had then, withdrawn with it to his own residence. A minor contradiction from the police statement of witness Chintaman was brought on record in the context whether or not he had worked in his field for the whole day. Similarly, an omission was bought on record as to whether or not, Chintaman had gone with deceased Ramdas to Kanashi village to bring the seedlings of onion. None of them, in our view, could affect the varacity of the witness. The suggestion put to witness Chintaman that he came to the scene of offence armed with an axe to take side of the deceased Ramdas in the quarrel and that he had mistakenly given a blow on the head of deceased Ramdas due to over intoxication has no footing whatsoever in the evidence on record. Indeed, the appellant had admitted that Chintaman was invited to dinner at the residence of the appellant. If so, there was no reason for Chintaman to go there, at such odd hour of the day, armed with an axe. Much less was there any reason for Chintaman to involve himself in a petty domestic quarrel, and that too, in the manner that was suggested to him. The learned Additional Sessions Judge had carefully scanned the evidence of the two eye witnesses Chintaman and Somibai and had rightly believe them. P.W. 5. Suman was a child witness who had initially stated that the appellant had given an axe blow on the head of the deceased while she was sitting on a bed with her grandmother, who was asleep, near the scene of offence. The learned Additional Sessions Judge had observed that this child witness did not understand the sanctity of oath, and further, that she was capable of mixing together whatever she had really seen with whatever was being said about the incident on the scene of offence. Her evidence, therefore, had to be taken with a pinch of salt and it could be considered only to the extent of the corroboration that it lends to the presence of the appellant, the deceased, witness Somibai and witness Chintaman on the scene of offence at the relevant point of time.
7. Dr. Patil had conducted the postmortem examination on the dead body of the deceased between 12-40 p.m. and 2-30 p.m. on 22nd December 1987 and had found incised wound on the right side of the skull behind the ear on occipital region convexity facing up semi lunar 2.5' x 1' x 2.5', gaping at the centre and the fracture of the right side on the occipital bone 2' x 1' x brain deep. He was shown the axe Art. 6 in the Court and he told that such injuries were possible with the help of the said axe. According to him, the aforesaid injuries were sufficient, in the ordinary course of nature, to bring about the death of deceased Ramdas. The cross-examination of the medical officer ruled out the defence suggestion that deceased Ramdas had consumed liquor and was under intaxication. Nothing substantial came on record in the cross-examination of the medical officer which could displace his findings or the opinion recorded by him. Thus, the evidence of the medical officer did corroborate the evidence of the eye witnesses as to the cause of the fatal injury sustained by deceased Ramdas.
8. P.W. 1 Motilal also corroborated the evidence of the aforesaid eye witnesses because, he told that immediately after the death of deceased Ramdas had occurred, P.W. 2 Chintaman had gone to his (police Patil's) residence to report the incident to him and had, then, reported that the fatal blow was given by the appellant. The police patil told that he had, then, come to the scene of offence and had verified the facts. The police patil must have had taken quite some time in watching things on the scene of offence, arranging a bullock cart for him to go to Abhona police station and for collecting some persons to accompany him on the way. It is in the evidence on record that Abhona is about 20 to 22 kms. away from village Lingame. It is reasonable to suppose, in the circumstances of the case, that the police patil had reached Abhona in the early hours before dawn of the day and had taken some more time to get the P.S.I. at the police station for reporting the incident. The incident was reported to P.S.I. Lahare before 7 a.m. and the F.I.R. was reduced to writing. The offence was registered at the police station, according to the P.S.I., at 7.05 a.m. Under these circumstances, we do not think that there was any unexplained delay in lodging the FIR at the police station. There was a suggestion advanced to the police patil and witness Chintaman that both of them being cousins of each other, they had tried to implicate the appellant falsely in this case for a mistaken blow given by witness Chintaman. The suggestions were categorically negatived by the witnesses and, as already discussed above, they had no footing whatsoever in the circumstances of the case.
9. The next corroborating circumstance that has come on record is the finding of the blood stained axe in the house of the appellant himself and the seizure thereof under panchnama Exhibit 25 which was drawn between 2 p.m. and 2.30 p.m. on 22nd Dec. 1987 itself. The appellant was certainly not a hardened criminal. There was certainly no enmity between him and the deceased which could have induced him to bring about the death of deceased Ramdas, whom he had brought up almost like his younger brother and who was the son of a person who had brought the appellant himself to his present status. Withdrawal of the appellant with the axe to his house immediately after the incident in question was a fact deposed to by the eye witnesses Chintaman and Somibai and that fact was not displaced. Panch Kisan P.W. 6 who proved the panchnama was not even cross-examined on behalf of the defence. We, therefore, do not find any reason to suppose that finding of the blood stained axe at the residence of the accused in the circumstances stated by the panch Kisan and P.S.I. Lahare was not natural or not worths of safe reliance. The report of the chemical analyser Exhibit 17, which was admitted by the defence in evidence, proved that the clothes on the person of the deceased, the blood stained earth attached from the scene of offence as well as the axe Art. 6 did hear stains of human blood of 'A' group. This is also one of the circumstances which negatives the Suggestion that the axe which was used to give the fatal blow was brought by witness Chintaman to the scene of offence. Axe Art. 6 was identified by the eye witnesses Chintaman and Somibai as the axe used to assault deceased Ramdas.
10. Lastly, but not the least, is material to note that the appellant himself had surrendered to the police about 4 or 4.30 p.m. on 22nd Dec. 1987 and he was arrested by the P.S.I. at that time. It appears that after giving the fateful blow and seeing the unimagined consequences flown from it, the appellant had absented himself from the house also. He could not do that for long and had ultimately surrendered himself to the police who were not able to get him till then at village Lingame. The accused had no reason to know that witness Chintaman reported to the police patil that the fatal blow was given by the appellant or that the name of the appellant was disclosed by the police patil in the FIR. Despite the absence of this knowledge, he had appeared before the police and had surrendered himself. Of course, this is a circumstance which could show that, probably, the accused had surrendered before the police with some guilty conscience.
11. In view of the aforesaid evidence discussed so far, it is clear that a quarrel had ensued, that the temper of the appellant was suddenly lost in the course of it when he had seen that deceased Ramdas had taken him for granted and had removed his bullock from the cattle shed of the appellant for being delivered to witness Chintaman, and had, in the heat of the moment, come out picking up whatever instrument he could catch hold of from his house, and that he had given in indignation a blow of the axe to the deceased. It is also clear that it was that singular blow which had proved fatal and had brought about an instantaneous death of deceased Ramdas. It is also proved that the appellant himself had then removed the axe blade which was stuck up in the head of the deceased and had, then come to his own residence. It is also proved that after the time that he took for quieting down himself, he had himself appeared at the police station and had surrendered to the police. It is, therefore, duly proved by the prosecution evidence that the homicidal death of the deceased was caused on account of the axe blow given by appellant to the deceased.
12. Coming, then, to the question of the offence that can be said to have been constituted on the aforesaid facts, it is clear to us that, in the circumstances of the case, and on the background in which the appellant and the deceased had lived together as members of one and the same family over number of years, and further, looking to the paltry nature of the quarrel which had given rise to the fateful incident, there is no reason whatsoever to infer that the appellant had intended to cause the death of the deceased or, in the alternative, that the appellant had intention to inflict on the deceased an injury which he knew to be likely to bring about the death of the deceased. The case does not fall, quite clearly, within the purview of S. 302, or even S. 304 Part I, in spite of the fact that it is proved that a forceful axe blow was given by the appellant, and that it was given with such a force that the blade of the axe also had got stuck up in the head of the deceased. The appellant was in an irritant mood and his irritation had aggravated when he had noticed that deceased Ramdas had taken him for granted and had, without asking the appellant, untethered from the cattle shed the appellant's bullock to be lent for use to Chintaman. In that heated moment, the quarrel ensued and the appellant had lost control over his temper to such an extent that having picked up whatever he could pick up from his house, he had come out of his house and had given a blow thereof to the deceased. It is nobody's case that the appellant had premeditated his action. Further, there is hardly any reason to suppose that, at that late hour of the day, the appellant was selective in choosing for giving a blow of the instrument carried by him, a vital part of the body of the deceased so as to enable us to say that the blow of the axe was given with a knowledge that the appellant would thereby cause death of the deceased. In Vishwanath v. State of U.P., : [1960]1SCR646 , a question fell before the Supreme Court for decision whether or not the action of assault indulged into by the appellant before the Supreme Court fell within the restrictions prescribed by S. 99 of the Indian Penal Code. Apart from the context in which the observations were made, it was noted that the appellant had given only one blow with a knife which he happened to have had in his pocket. The Supreme Court felt that unfortunately that the blow had landed into the heart and had, therefore, brought about the death of the deceased who was concerned in that case. Considering the fact that the appellant had given only one blow with an ordinary knife, which, if it had been a little this way or that, could not have been fatal, the Supreme Court concluded that it could not be said that the appellant before them had inflicted more harm than that was necessary for the purpose of the defence. In this context, their Lordships of the Supreme Court referred to an observation in Amjad Khan v. The State, : 1952CriLJ648 which may be quoted here with advantage. It was observed in that case (at p. 850 of Cri LJ) :
'these things cannot be weighed in too fine a set of scales or 'in golden scales''.
In the present case also, if the axe blow had really fallen on a non-vital part of the body of the deceased, that could not have possibly brought about the death of the deceased, much less an instantaneous death. It was only unfortunate that the weapon which had fallen in the hands of the appellant at that passionate moment happened to be an axe, that the blow given by it was from the blade side of it, and further, that it did fall on a vital part like the head of the deceased. On taking a bird's eye view of the facts, we think that there is a reason to hold that everything had happened in a hurry, when the appellant was in a confused state of mind on account of the heat generated because of the sudden earlier quarrel and the shape that it had taken. The appellant had really fondled the deceased over a number of years as his younger brother and after the death of the appellant, as it has come on record, even the younger sister of the deceased has been living in the house of the appellant. The appellant himself appears to be the only man in the family who can possibly take care of the family as well as the property of the family. Under such circumstances, it is not possible for us to impute to him an intention which is in excess of an intention of causing grievous hurt. The case falls, in our view, within the purview of S. 326 of the I.P.C. because the act in question would fall within the ambit of the 7th and 8th Clauses of S. 320, I.P.C.
13. The learned Additional Sessions Judge had not considered the facts of the case in the aforesaid perspective and had wrongly convicted the appellant of an offence punishable under section 302 of the I.P.C. The appellant, however, deserves to be convicted of an offence punishable under section 326 of the I.P.C. only. Accordingly, the appeal will succeed in part and the conviction will have to be altered appropriately after setting aside the conviction for an offence punishable under section 302 of the I.P.C. Accordingly, we do so.
14. Coming, then, to the question of quantum of sentence, the appellant was all along in jail since 22nd Dec. 1987. He has already been in jail for a period of more than three years. In view of the circumstances referred to above, we think that the sentence already undergone by him should be an adequate sentence for him. Accordingly, we award him that much sentence and direct that the appellant be set at liberty forthwith, if not required in any other case.
The appeal is, therefore, allowed in part. The conviction of the appellant for offence punishable under section 302 of the I.P.C. stands set aside. The appellant stands convicted of an offence punishable under section 326 of the I.P.C. and he is sentenced to suffer R.I. for the period already undergone.
15. Order accordingly.