Ashok vs State of Maharashtra

A.P. Lavande, J.—By this appeal, the appellant (hereinafter referred to as "the accused") takes exception to the judgment and order dated 1.4.2002 passed by the Additional Sessions Judge, Bhandara in Sessions Trial No. 143/2000 convicting him for the offence u/s 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay fine of Rs.500/- and in default to undergo R.I. for a period of three months. In Sessions Trial No. 143/2000 the accused and his brother Ramkrushna were charged for the offence u/s 302 read with Section 34 of the Indian Penal Code for having committed murder of Rajendra Dattu Kodwate. Alternatively the accused was also charged u/s 302 of the Indian Penal Code. Ramkrushna was also charged for the offence u/s 323 of the Indian Penal Code.

Briefly, the prosecution case is as under:-

Deceased Rajendra was residing with his father Dattu at village Dodmazari On 30.7.2000 at about 7.00 p.m. PW3 Mahipal Uikey came to Dattu and informed him that the accused and his brother Ramkrushna had assaulted his son Rajendra in front of their house and he was lying near the compound. On receiving this information Dattu along with his wife Sitabai rushed to the spot of incident and he found that Rajendra was lying on the ''ground and his clothes were soaked with blood. They also noticed injuries on his chest Rajendra had died on the spot. Dattu was informed by PW2 Pramod Uikey and PW3 Mahipal Uikey that before the incident of assault deceased Rajendra was sitting on the Gram Panchayat platform near the house of the accused along with his friends. The accused - Ashok started giving filthy abuses after coming near the said platform. Rajendra asked him not to indulge in it since females were residing nearby. Thereafter, Rajendra along with Mahipal Uikey started going towards the pan shop. Ramkrushna, the original accused No.2 who was standing in front of his house dragged Rajendra in the courtyard. The accused came there and assaulted Rajendra with the sharp weapon and when Pramod intervened, brother of the accused Ramkrishna assaulted him with the help of torch on his forehead causing him injury.

Dattu rushed to the Police Station, Bhandara and lodged his report Pursuant to the said report Crime No.295/2000 was registered, both the accused were arrested on the same day and their clothes with blood stains were seized. Since it was night time spot panchanama was prepared on the next day. The inquest panchanama was also drawn and the dead body was referred for post-mortem examination. Upon disclosure made by the accused one knife (Article 16) was recovered from the house of the accused at his instance. After completing the investigation to charge-sheet was find against the accused and his brother. The case was committed to the Sessions Court.

In support of its case, the prosecution examined 10 witnesses and produced several documents to prove its case against the accused. The accused denied his complicity in the crime and alleged that on the day of the incident Pramod Uikey, Mahipal Uikey along with 2-3 boys came in front of his house and Pramod assaulted him with the sharp article like knife on his right thigh, on account of which he sustained injuries. The Trial Court after appreciating the evidence led by the prosecution convicted the accused for the offence u/s 302 of the Indian Penal Code and convicted his brother Ramkrushna for the offence u/s 323 of the Indian Penal Code.

We have heard Mr. Daga, learned counsel appearing for the appellant and Mr. Kankale, learned Additional Public Prosecutor appearing on behalf the respondent.

Mr. Daga, learned counsel appearing on behalf of the accused submitted that the prosecution has not been able to prove the offence of murder beyond reasonable doubt against the accused. He further submitted that two eye witnesses namely PW2 Pramod Uikey and PW3 Mahipal Uikey cannot be believed since their evidence suffers from several infirmities. According to Mr. Daga, the defence of the accused is probable, more particularly in the absence of arrest panchanama having been drawn at the tune of arrest of the accused which could have proved injuries caused to him by Pramod Uikey. According to learned counsel, the findings recorded by the Trial Court are contrary to the evidence on record and therefore, the accused deserves and therefore, the accused deserves to be acquitted, lastly, Mr. Daga submitted that even if two eye witnesses are believed at the most, an offence u/s 304 Part II of the Indian Penal Code is made out since fourth Exception to Section 300 of the Indian Penal Code is clearly attracted in the present case having regard to the prosecution evidence.

Per contra, Mr. Kankale submitted that the evidence of two eye witnesses inspires confidence and there is absolutely no reason to disbelieve both of them. He further submitted that Pramod Uikey himself being an injured witness, his evidence deserves more weight and his evidence deserves more weight and his evidence having been corroborated by Mahipal, the offence of murder is dearly made out against the accused. Lastly, he submitted that having regard to the evidence brought on record fourth Exception to Section 300 of the Indian Penal Code is not clearly attracted in the present case and as such this is not a case in which the accused deserves to be convicted for the offence u/s 304 Part II of the Indian Penal Code.

We have carefully considered the submissions made by learned counsel for the appellant/accused and learned Additional Public Prosecutor for the respondent. We have perused the records.

Having regard to the rival submissions made by the learned counsel, the following points arise for our determination:-

Whether the death of Rajendra was homicidal?

Whether the accused intentionally caused injuries to deceased Rajendra which were sufficient in the ordinary course of nature to cause his death?

If the assault by the accused with the knife on the deceased Rajendra is held to be proved whether at the most offence u/s 304 Part II of the Indian Penal Code is made out against the accused?

In order to ascertain whether the death of Rajendra was homicidal or not, it would be appropriate to refer to the evidence of PW7 Dr. Pradip Kukdey who at the relevant time was the Medical Officer at General Hospital, Bhandara. He deposed that on 31.7.2000 police referred dead body of Rajendra Dattu Kodwate for post-mortem examination which was carried out by him. He found the following injuries on the body:-

Incised wound on left side of the chest just above the level of Nipple near the lateral border of the sternum, elliptical shape 3.5cm. x 1cm. edges sharp stained with blood and heart deep.

Incised wound on left side of the chest in mid axillary line, in the 11 intercostal space, elleptical, mental collapse. 3.5cm x 1cm edges sharp. No visceral injury.

Incised wound 1.5cm. x 1/2cm., 3cm. above the injury No.2, muscle deep, elliptical in shape.

Incised wound 1,5cm. x 1/2cm, 4cm. below the injury No.2, elliptical in shape.

Incised wound 1.5cm. x 1/2cm. over the center of left Buttock, muscle deep elliptical in shape.

Incised wound 1/2cm. x 1/2cm. left side 4cm. behind the anterior superior iliac spine.

Multiple incised wound over the back on the left side of injury No.5, measuring about 1/2.cm. x 1/2cm, superficial injury below the angle of scapula.

Incised wound over the left olecranon process 3cm. x 1/2cm. Elliptical in shape, edges clean cut.

He deposed that all the injuries were ante-mortem and their age was within 6 to 12 hours. He further deposed that on internal examination he found a stab wound over the left Atrium, corresponding to injury No.2. According to him, injury No.2 was sufficient in the ordinary course of nature to cause death which was caused due to haemorrhagic shock, secondary to incised wound over the left atrium of the heart corresponding to injury No. 1. He confirmed the contents of post-mortem report (Exs.44) as correct. He further deposed that the injuries mentioned in column Nos. 17 and 20(G) of Ex.44 could have been caused by the knife (Article 16) which was shown to him.

In cross-examination he denied the suggestion that if a person falls on weapon like Article 16, Injury No. 1 mentioned in column No. 17 of the post-mortem, report was possible. Nothing tangible was brought on record in support of the defence in the cross-examination of this witness. Having regard to the evidence of this witness, we have no hesitation to hold that the death of Rajendra was homicidal.

In order to prove the complicity of the accused in the commission of the crime, the prosecution examined two eye witnesses. PW2 Pramod Uikey deposed that he knew both the accused and deceased Rajendra who were residents of his village Dodmazari. He further deposed that about a year ago on the day of Jiwati festival at about 7.30 P.M. he along with Mahipal Nyaymurti, Ramesh Khangar, Chaitram Shendre. Hiwraj Khangar and deceased Rajendra were sitting on the platform of Gram Panchayat located at a distance of about 100 steps from the house of title accused. At that time the accused came near the said platform started abusing in filthy language whereupon Rajendra asked him not to give abuses since females were residing in the locality. Thereafter Mahipal Uikey and Rajendra started going towards square in the village and they had just reached in front of the house of the accused at that time brother of the accused who was standing in front of the gate asked Rajendra as to why he had abused the accused as "Sale" to which Rajendra replied that he had not abused the accused. Thereafter Rajendra started pacifying him. Thereafter the accused came running from the platform towards the gate. He also followed the accused. Thereafter the accused and Ramkrushna started assaulting Rajendra. At that time there was no electricity on the spot of incident and it was dark. When the witness intervened Ramkrushna assaulted him with 4-5 blows of torch which he was carrying, on his head, on account of which he sustained injuries. At that time he and Mahipai caught Ramkrushna and the accused started assaulting Rajendra. He noticed that the accused was sitting on the chest of Rajendra but he could not see the weapon which was used by the accused. He then released Ramkrushna and pushed the accused. At that time he found that there were injuries on the portion of chest and on both sides of waist of Rajendra and blood was oozing from the injuries. He lifted Rajendra and raised shouts after which the accused and his brother fled away from the spot. Thereafter he went to police patil. The father of Rajendra also came to the spot. He accompanied police patil to Bhandara police station and lodged report about the incident he was referred by police to Government Hospital for treatment of his injuries. The witness has been confronted with the police statement in which it was mentioned that since Ramkrushna had released him he and Mahipai both went near Rajendra. The contradiction has also been duly proved. He denied all suggestions which were put to him in the cross-examination including the suggestion that it was Rajendra who assaulted Ashok./ The witness admitted that there was scuffle between deceased Rajendra, Mahipal Uikey, the accused and his brother Ramkrushna. He also admitted that he was prosecuted for assaulting his father with an axe and that thereafter the matter was settled.

PW3 Mahipal Uikey deposed that he knew the accused, his brother and deceased Rajendra. He deposed about giving of abuses in filthy language and Rajendra questioning the accused about the same. He further deposed that thereafter he along with Rajendra started going to pan shop and when they were passing in front of the accused, Ramkrushna asked Rajendra as to how he was concerned with the act of giving abuses by his brother. Thereafter there was scuffle between Ramkrushna and Rajendra and Rajendra was dragged inside the gate of his house. The accused also came there from Gram Panchayat platform and started assaulting Rajendra, on account of which Rajendra shouted "Melo Dhaw". At that time the accused and his brother were carrying articles like knife and it was the accused who assaulted Rajendra with the said weapon. Thereafter he raised shouts. At that time Pramod Uikey came running there and both of them caught the accused and Ramkrushna who was carrying torch assaulted him and Pramod with it on account of which he had injuries on the left portion of his head and on the portion below his left ear. Thereafter he noticed that deceased Rajendra had sustained injuries on the portion of his chest, abdomen and blood was oozing from the injuries. Thereafter the accused and his brother fled away from the spot and after some time he went to the house of parents of the deceased Rajendra to call them. In cross-examination he denied the suggestion that he was carrying stick and deceased Rajendra was carrying gupti and Mahipal Nyaymurti was carrying stick and all three of them assaulted the accused and his brother Ramkrushna or that there was scuffle between these persons. Nothing tangible has been brought on record in the cross-examination of this witness to discredit him.

The evidence of Pramod inspires confidence in as much as he candidly stated that he could not tell as to by which weapon the accused had assaulted the deceased on account of darkness. The witness appears to be truthful witness and therefore, we have no hesitation to rely upon his testimony.

Upon close scrutiny of the evidence of above two witnesses whose presence has not been disputed by the accused, it is dear that the evidence of Pramod is corroborated on material aspects by the evidence of Mahipal, No doubt, there is slight variation in the testimony of these two witnesses about the sequence of events. However, having regard to the circumstances in which the offence was committed, it is quite natural that there is slight variation in the evidence of those two eye witnesses. It is pertinent to note that the presence of these two witnesses at the tune of incident has not been disputed by the accused but on the contrary it is the specific case of the accused that there was scuttle between the accused and; his brother on one side and the two witnesses and two more persons on the other side. No doubt, there is some embellishment in the testimony of Mahipal. He states that both the accused were carrying articles like knife. It is to be appreciated that when the incident took place admittedly it was dark and therefore possible Mahipal mistook torch in the hand of Ramkrushna as knife cannot be ruled out. In our opinion, the evidence of these two witnesses which inspires confidence clearly establishes the assault by the accused by the knife (Article 16) on deceased Rajendra.

The evidence of these two eye witnesses is also corroborated by medical evidence as deposed by PW7 Dr. Pradip Kukdey which has already been discussed above. It is further corroborated by recovery of knife (Article 16) from the house of the accused pursuant to disclosure statement made by the accused on 1.8.2000. The evidence of PW6 Shamrao Lonare who was panch for the disclosure statement (Ex.40) as well as seizure panchanama (Ex.41) which is corroborated by the evidence of the Investigating Officer PSI Vinod Borkar establishes the fact that the knife (Article 16) was recovered at the instance of the accused. Thus, the evidence of two eye witnesses stands corroborated by recovery of knife at the instance of the accused. The presence of human blood on the knife as disclosed in the Chemical Analyser Report (Ex.58) also lends assurance to the prosecution case that it was the accused who assaulted deceased with the said knife. The fact that the blood group on the said knife could not be ascertained by itself would not come to the rescue of the accused since admittedly chemical analysis of the blood found on the said knife was done after a considerable length of time and probably because of lapse of time, blood group could not be ascertained.

The next question which arises is what offence is made out against the accused. According to Mr. Daga, Exception 4 to Section 300 of the Indian Penal Code is clearly attracted in the present case. Execution 4 to Section 300 of the Indian Penal Code, reads as under:-

"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."

From a bare perusal of Exception 4 to Section 300 of the Indian Penal Code, it is clear that in order to attract the said Exception the murder must have been 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. Therefore, the mere fact that there was a scuffle, by itself, is not sufficient to attract Exception 4 to Section 300 of [PC so as to bring down the offence to culpable homicidal not amounting to murder. The ocular evidence which has been discussed above clearly reveals that the accused assaulted deceased Rajendra with a knife not only on the chest but also on his backside as is evident from the post-mortem report. Injuries Nos.5 to 8 which are found on the deceased Rajendra by Dr. Pradip Kukdey were on the back side. Therefore, it is clear that the injuries were found not only on the chest but were on the backside and the said injuries were on vital parts of the body. Therefore, the injuries were inflicted with an intention to cause his death and further these injuries were sufficient in the ordinary course of nature to cause his death. Therefore, clause 3rdly to Section 300 of Indian Penal Code is clearly attracted and as such the accused is liable to be convicted for the offence u/s 302 of the Indian Penal Code. Having regard to the circumstances in which the accused assaulted the deceased, the weapon used by the accused and the nature of the injuries caused, we are unable to accept the submission of Mr.Daga that Exception 4 to Section 300 of the Indian Penal Code is attracted in the present case.

Insofar as the argument of Mr.Daga that since no arrest panchanama was drawn by the Investigating Officer at the time of the arrest of the accused and therefore, the version of the accused that there was a scuffle in which the accused was injured has to be accepted is concerned, we are unable to accept the same. No doubt, the Investigating Officer is required to draw arrest panchanama at the time of arrest of an accused. But the lapse on the part of the Investigating Officer in not drawing arrest panchanama cannot lead to the only conclusion that the defence of the accused is probable. There is absolutely no evidence brought on record by the accused which establishes the fact that any injury was caused to the accused. If the accused had suffered any serious injury in the scuffle as alleged by him surely the same would have been noticed by the Magistrate when the accused was produced before him for remand. Moreover, the accused would have also mentioned this fact to the Magistrate and the Magistrate would have referred him for medical examination. In the absence of any evidence being brought on record, we are unable to accept the defence of the accused that there was a scuffle in which he suffered serious injury.

Upon overall consideration of the evidence led by the prosecution, we have no hesitation to hold that the offence of murder is clearly made out against the accused. In our opinion, the findings recorded by the Trial Court are borne out of the evidence on record and therefore, no ground is made out for interference in the impugned judgment and order.

In view of the above, we do not find any merit in the appeal, we do not find any merit in the appeal. Consequently the appeal stands dismissed. The conviction and sentence imposed by the Trial Court for offence u/s 302 of the Indian Penal Code is maintained. The order passed by the Trial Court insofar as the disposal of the property is also maintained.