Bittu vs The State of Maharashtra

V.K. Tahilramani, J.—This appeal is preferred by the appellant - original accused against the judgment and order dated 30.6.2006 passed by the learned Additional Sessions Judge, Ichalkaranji in Sessions Case No. 31 of 2005. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 500/-, in default simple imprisonment for fifteen days.

The prosecution case briefly stated, is as under:

"(a) Deceased Nandkumar was a resident of village Korochi in district Solapur. He was residing there along with his wife and minor daughter. PW 2 Urmila was the sister of the wife of deceased Nandkumar. Urmila along with her husband PW 1 Laxman were residing about 100 feet away from the house of Nandkumar. At the relevant time, wife of Nandkumar had gone to her matrimonial house along with her minor daughter for the purpose of delivery, hence, PW 2 Urmila used to provide Nandkumar with food.

(b) The incident occurred on 28.6.2005. At about 8.00 p.m., a quarrel took place between deceased Nandkumar and Nandu More who was the brother of the appellant. Nandu More was demanding money from Nandkumar for liquor. Nandkumar told Nandu More that he did not have any money. On that count, a scuffle took place between Nandkumar and Nandu More. During the course of scuffle, Nandkumar slapped Nandu More across his face. This was witnessed by PW 7 Sakharam. Sakharam intervened and separated Nandkumar and Nandu More.

(c) At about 9.30 p.m., PW 2 Urmila took food to the house of Nandkumar. She was heating curry in the kitchen of Nandkumar. At that time, she heard sound of knocking on the door of Nandkumar, hence, she opened the door. She saw the appellant standing at the door. The appellant asked whether Nandkumar was present in the house. Urmila then went inside the house and informed Nandkumar that the appellant had come to his house. Nandkumar then went to the door of his house. The appellant asked Nandkumar why he quarreled with the appellant''s brother. Thereafter, the appellant assaulted Nandkumar by the handle of sickle. The handle was not covered with wood and only pointed portion of the metal handle of the sickle was there. PW 2 Urmila pushed away the appellant and started shouting. The appellant ran away from the spot. The husband of Urmila i.e. PW 1 Laxman came to the house of Nandkumar. Nandkumar was taken to the hospital where he was declared dead. Laxman then lodged F.I.R. Thereafter, investigation commenced.

(d) During the course of investigation, the appellant was arrested on 29.6.2005 at 3.00 a.m. The clothes on the person of the appellant which were blood stained were seized. The blood stained sickle was recovered at the instance of the appellant. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions."

Charge came to be framed against the appellant under Section 302 of IPC. The appellant/accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted Nandkumar with the sickle and caused his death.

The conviction is mainly based on the evidence of PW 2 Urmila who is an eye witness to the incident. Urmila was the sister of the wife of deceased Nandkumar. Urmila was residing about 100 feet away from the house of deceased Nandkumar. The wife of Nandkumar had gone for delivery to her matrimonial house, hence, Urmila used to provide food to deceased Nandkumar. The incident occurred on 28.6.2005. PW 2 Urmila has stated that at about 9.30 p.m., she took food to the house of Nandkumar. She was heating the curry in the house of Nandkumar. At that time, she heard the sound of knocking on the door of the house of Nandkumar. On opening the door, she saw the appellant standing in the door. The appellant asked her whether Nandkumar is present in the house. Urmila then went inside the house and informed Nandkumar that the appellant had come to his house. Nandkumar went to the door of his house. The appellant asked Nandkumar why Nandkumar had quarreled with the brother of the appellant. Thereafter, the appellant assaulted Nandkumar with the sickle, the handle of which not covered by wood. He inflicted blows on the chest, stomach and hand of Nandkumar. Urmila shouted shouting. Her husband PW 1 Laxman came to the house of Nandkumar. Meanwhile, the appellant ran away from the spot. Nandkumar was taken to the hospital. Nothing has been elicited in cross-examination of PW 2 Urmila to discredit her testimony, hence, we have no hesitation in relying on the same.

The prosecution is also relying on recovery of sickle at the instance of the appellant. PW 3 panch witness Suresh has deposed on this aspect. Suresh has stated that on 4.7.2005, he was called by the Police to Hatkanangale Police Station. In his presence, the appellant stated that he had kept the sickle in one house at village Korochi. The appellant led the police and panchas to Korochi. He then produced the sickle which was hidden below a gunny bag. The tip of the blade of the sickle was in broken condition and its wooden handle was missing. Blood was found on the handle of the sickle. PW 3 Suresh identified sickle Article 9 as the very same sickle which was recovered at the instance of the appellant. It may be noted that PW 2 has also identified sickle Article 9 as the very same sickle with which the appellant assaulted Nandkumar.

The sickle recovered at the instance of the appellant was sent to chemical analyzer. As per C.A. report Exh. 16, the sickle was stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh Vs. The State of Rajasthan, AIR 2001 SC 330 : (2001) CriLJ 487 : (2000) 3 JT 528 Supp : (2000) 8 SCALE 147 : (2001) 2 SCC 205 : (2000) 5 SCR 408 Supp : (2001) 1 UJ 299 : (2000) AIRSCW 4439 , wherein it has been observed as under:

"In view of the authoritative pronouncement of this Court in State of Rajasthan Vs. Teja Ram and Others, AIR 1999 SC 1776 : (1999) CriLJ 2588 : (1999) 2 Crimes 45 : (1999) 2 JT 279 : (1999) 2 SCALE 169 : (1999) 3 SCC 507 : (1999) 2 SCR 29 : (1999) AIRSCW 1514 : (1999) 3 Supreme 391 we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the ''origin of the blood, the trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant."

Similar view has been taken by the Supreme Court in the cases of R. Shaji Vs. State of Kerala, AIR 2013 SC 651 : (2013) 1 Crimes 217 : (2013) 2 JT 447 : (2013) 1 RCR(Criminal) 964 : (2013) 2 SCALE 186 : (2013) 14 SCC 266 : (2013) AIRSCW 1095 : (2013) 1 Supreme 545 and Molai and Another Vs. State of Madhya Pradesh, AIR 2000 SC 177 : (2000) CriLJ 392 : (1999) 4 Crimes 266 : (1999) 8 JT 361 : (1999) 6 SCALE 606 : (1999) 9 SCC 581 : (1999) 4 SCR 104 Supp : (1999) AIRSCW 4266 : (1999) 8 Supreme 669 . It is pertinent to note that the appellant has not given any explanation for the finding of human blood on the sickle Article 9 which was recovered at his instance.

In addition to the above evidence, the prosecution is relying on circumstance of seizure of blood stained clothes on the person of the appellant at the time of his arrest. The appellant was arrested on 29.6.2005 at about 3.15 a.m. At the time of arrest, the appellant was found wearing half pant and banyan. Panch witnesses PW 4 Rajendra and PW 5 Sanjay have been examined to support the seizure of blood stained clothes from the person of the appellant at the time of his arrest. Both these panch witnesses have turned hostile and have not supported the prosecution, however, PW 10 PSI Yadav who is the investigating officer has deposed that on 29.6.2005 at about 1.35 a.m., he took over the investigation in the present case. He searched for the accused and traced him and arrested him at 3.15 a.m. on 29.6.2005. PSI Yadav has further stated that in presence of panchas, he seized one sando baniyan and one half pant which were on the person of the appellant. These clothes had blood stains over it. PW 4 Rajendra and PW 5 Sanjay were the panch witnesses. He then prepared panchnama and seized the clothes which were on the person of the appellant. In the decision of the Supreme Court in the case of Mohd. Aslam Vs. State of Maharashtra, (2000) 8 JT 104 : (2004) 2 SCALE 242 : (2001) 9 SCC 362 , it was contended that as the panch witness has turned hostile, the evidence of the Investigating Officer was unsupported and hence, it cannot be relied upon. The Supreme Court observed thus:

"We cannot agree with the said contention. If panch witnesses turned hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. Nor do we agree with the contention that his testimony is unsupported or uncorroborated. The very fact that PW 34 produced in the Court lethal weapons recovered is a very formidable circumstance to support his evidence."

Thus, it was held in the case of Mohd. Aslam that evidence of police officer effecting recovery would not stand vitiated by reason of panch witnesses turning hostile.

In the case of Modan Singh Vs. State of Rajasthan, AIR 1978 SC 1511 : (1978) 4 SCC 435 : (1979) SCC(Cri) 56 , the Supreme Court observed that if the evidence of the Investigating Officer who recovered the material object is convincing, the evidence as to recovery need not be rejected on the ground that seizure witness does not support the prosecution version. Similar view was taken by the Supreme Court in the case of Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarat, (2010) 11 JT 605 : (2010) 11 SCALE 120 : (2011) 11 SCC 111 : (2011) 3 SCC(Cri) 102 : (2010) 9 UJ 4764 : (2011) AIRSCW 378 : (2010) 7 Supreme 859 .

On going through the evidence of the investigating officer PW 10 PSI Yadav, we find that nothing has been elicited in his cross-examination which would cause us to disbelieve his testimony, hence, we have no hesitation in relying on the same. Blood stained clothes which were on the person of the appellant were sent to C.A. As per C.A. report Exh. 16, the clothes were found stained with human blood. For relying on this circumstance of human blood being found on the clothes of the deceased, same reasons would apply which we have discussed in paragraph 7 above in relation to human blood being found on the sickle recovered at the instance of the appellant.

It is the prosecution case that the appellant assaulted Nandkumar with the metal handle of the sickle. Wooden handle of the sickle was missing and the pointed metal handle was in open condition with which the appellant assaulted Nandkumar. This is corroborated by the medical evidence. PW 12 Dr. Narvekar conducted the postmortem on the dead body of deceased Nandkumar. On external examination, he found following injuries on the dead body:--

"(1) Stab injury over left anterior chest wall of chest of size 1 cm. laterally to the left nipple over 5th inter costal space of size 2 cm x 1/2 cm. Shape of injury was oval.

The above said injury was vertically in direction and deep upto the heart. Clotted blood was present around the injury.

(2) Incised above left iliac crest 3 cm size 1 1/2 x 1/2 cm. Oblique in direction muscle deep. Fresh injury clotted with blood.

(3) Incised wound over left surface of elbow joint size 2 cm x 1/2 cm. oblique in direction. Fresh with clotted blood."

On internal examination, Dr. Narvekar found stab injury over left anterior chest wall, laterally to the left nipple over 5th intercostal space with lung and heart rupture. Intercostal muscle torn in left 5th intercostal space, 1 cm. laterally to the nipple. Pleura is injured upper lobe of left lung. Stab injuries over anterior surface of upper lobe of left lung 1/2 cm of size passed through lung. Injured surface is necrosed. There is hemothorax on left side of the left lung. One litre blood in clotted form was found in left thoracic cavity. Pericardium was injured over left ventricle of heart. Stab injury was found over anterior surface of left ventricle size 1 cm x 1/2 cm. Minimum blood was found in the heart. According to Dr. Narvekar, all internal injuries correspond with the single external stab wound and the probable cause of death was hemorrhagic shock due to injury to heart and lung. Dr. Narvekar further opined that the injuries found over the dead body were probably due to sharp and pointed weapon and all the injuries are possible due to the pointed handle of the sickle. According to Dr. Narvekar, the above said injuries are sufficient to cause death in ordinary course of nature and injury No. 1 with corresponding internal injuries is sufficient to cause death in ordinary course of nature.

Mr. Sale, learned Advocate for the appellant, submitted that even if it is accepted that the act of the appellant of assaulting Nandkumar with the sickle resulted in his death, the case would not fall under Section 302 of IPC but it would fall under Section 304 Part II of IPC or at the most under Section 304 Part I of IPC. Mr. Sale drew our attention to the evidence of PW 2 Urmila where she has stated that she shouted when the quarrel started between the appellant and Nandkumar. She stated that the quarrel was going on at the door of the house of Nandkumar. Thus, from the evidence of PW 2 Urmila, it is an admitted fact that the incident took place during a sudden quarrel. Mr. Sale pointed out that the evidence of Urmila shows that when the appellant came to the house of Nandkumar, he was not carrying a weapon in his hand. Mr. Sale further submitted that there was no premeditation or pre-plan but it happened on the spur of the moment in a fit of anger. Mr. Sale reiterated that the fact that the appellant assaulted Nandkumar during the course of sudden quarrel would bring the case under Exception 4 to Section 300 of IPC and would thus be covered by Section 304 Part II of IPC.

To bring a case within Exception 4 to Section 300 of IPC, all the ingredients mentioned in it must be found. It is to be noted that the word ''fight'' occurring in Exception 4 to Section 300 of IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence of Urmila shows that quarrel had taken place between both the parties. The appellant did not come the spot with a weapon in his hand but only after a quarrel took place, he took out the sickle which may have been tucked at his waist as is done by many agriculturists and assaulted Nandkumar. The evidence clearly shows that the incident occurred during a sudden quarrel, however, we are not prepared to accede to the submission of Mr. Sale that the case would fall under Section 304-II of IPC. In our view, the case would fall under Section 304-I of IPC because we are of the opinion that the appellant did not just have the knowledge that his act is likely to cause death, as contended by Mr. Sale but in fact, the appellant intended to cause the death of Nandkumar. We say so, on the basis of the weapon used, the part of the body where the injury was inflicted, the force used while assaulting and the nature of the injury. The injuries as seen from the evidence of PW 12 Dr. Narvekar are extensive in nature. Looking to all these facts, we are of the considered opinion that the case cannot fall under Section 304-II of IPC.

Considering the evidence on record, we are of the opinion that Exception 4 to Section 300 of IPC applies to the facts of the present case and the proper conviction would be under Section 304 Part I of IPC. Hence, the conviction and sentence of the appellant under section 302 of IPC imposed by the learned Additional Sessions Judge, Ichalkaranji vide judgment and order dated 30.6.2006 in Sessions Case No. 31 of 2005, is set aside, instead, the appellant is convicted under section 304-I of IPC. In our view, custodial sentence of 10 years rigorous imprisonment and fine of Rs. 1000/-, in default simple imprisonment for 15 fifteen days would meet the ends of justice.

The appeal is allowed to the aforesaid extent.