Dadasaheb Tukaram Gavade vs The State of Maharashtra

Vishnu Sahai, J.—Through this appeal, the appellant challenges the Judgment and order dated 30.9.1995 passed by the Additional Sessions Judge, Satara in Sessions case No. 215 of 1994, whereby he has been convicted and sentenced in the manner stated hereinafter:

(i) u/s 302 of the I.P.C. to suffer imprisonment for life and to pay a fine of Rs. 50O/- in default to undergo one month S.I.; and

(ii) u/s 504 of the I.P.C. to suffer one month R.I. and to pay a fine of Rs. 100/- in default to undergo S.I. for 7 days.

The prosecution case in short is as under:-

On 25.7.1994 at about 9 p.m. Bhagwan P.W-2 along with his elder brother Raosaheb P.W. 5 went towards Bhairoba temple situated in village Shere, Taluka Karad, District Satara. At that time, their brother Vasant P.W. 3 was in his shop situated near the said temple. At the said time, the appellant, who was passing, came to worship in the temple. Bhagwan asked him as to why and whom he was abusing. Thereupon the appellant told him that it was not his concern. Bhagwan asked the appellant not to abuse anybody. At that juncture, the deceased Eknath came there and told the appellant and Bhagwan not to quarrel. Thereupon, the appellant went running towards his house which was situated hardly 15 feet away; returned with a gupti; and inflicted a gupti blow on the left side of the chest of Eknath. As a consequence of the assault, Eknath received a bleeding injury and collapsed shouting "Oh mother I am dead." This incident was seen by Bhagwan, Vasant and Raosaheb. Immediately after the incident Bhagwan went and informed Eknath''s father about it. Thereafter he went and informed Dr. Jaywant Satpute P.W. 4.

The evidence of Dr. Satpute P.W. 4 shows that on 25.7.1994 at about 9.15 p.m. Bhagwan came to his dispensary and informed him that Eknath had been stabbed by the appellant and requested him to come with his car for taking him to Krishna Hospital at Karad. Consequently, he came out of his dispensary. He saw that Dadasaheb and others were bringing Eknath towards his dispensary. In his car. he took Eknath to Krishna Hospital at Karad.

The evidence of Dr. (Mrs.) Vaishali Salunkhe P.W. 7 shows that on 25.7.1994, at about 10.25 p.m. Eknath Satpute was brought to Krishna Hospital. She examined him and found on his person, an injury on the left side of his chest fifth intercostals space mid auxiliary line which was 3 cm. x 2 cm. She stated that there were other injuries 011 his person but, they were surgical.

The evidence of P.H.C. Pandurang Shinde P.W. 10 shows that on 26.7.1994, at about 8 a.m. while he was at duty at Krishna Hospital at Karad, he received papers from the PSO Karad city police station that Eknath Satpute had been admitted in the said hospital. He proceeded to record Eknath''s F.I.R. His evidence shows that on 26.7.1994, he recorded his F.I.R. Exhibit 39. In the said F.I.R., Eknath stated that he was, stabbed by a gupti by the appellant.

The evidence of P.S.I. Ishwar Sutar P.W. 11 shows that on the basis of the F.I.R., he first registered an offence u/s 324 of the I.P.C.; later on, altered it to Section 326 I.P.C.; and later on pursuant to the death of Eknath, on 7.8.1994 converted it to Section 302 of the I.P.C.

The autopsy on the corpse of the deceased was performed by Dr. (Mrs.) Lila Salunkhe P.W. 8 who found on it the following injuries:

Oval shape injury in left auxiliary area, in 5th intercostals space, oblique 1 1/2" x 1" x cavity deep margins irregular, stuff and pus present.

Circular injury over right chest wall in 2nd intercostals space anterially in midclavicular line-1" in diameter. Margins irregular, stuff and pus present cavity deep.

Circular injury in right mid auxiliary line in 5th intercostals space 1" in diameter, margins irregular, cavity deep, stuff and pus present.

Sutured wound between xipisternum and umbilicus in the midline 3 Va" in length, sutures were present, edges non-united, no signs of infection.

Circular injury in left hypochondriac region, laterally 1/3rd inch in diameter, one suture present, non-infected.

On internal examination, Dr. Salunkhe found cut in diaphragm on left side, and injury to medial lobe on lower lung, lower and medial aspect.

In the opinion of Dr. Salunkhe, the deceased died on account of septicemia shock, following injury to left lung, right lung and oesophagus.

She also opined that the injury No. 1 was sufficient to cause death in the ordinary course of nature. She candidly stated that injury Nos. 2 to 5 were surgical wounds.

In her cross-examination, Dr. Salunkhe stated that septicemia led to the death.

The investigation was conducted in the usual manner by PSI Ishwar Sutar P.W. 11 and ASI Yeshwant Salunkhe, P.W. 12.

On 31.7.1994, in the presence of public pancha Mohan Salunkhe P.W. 1 and ASI Yeshwant Salunkhe, the appellant stated that he could show the place where the gupti was concealed. Consequently, the said willingness was recorded under a panchanama and thereafter in the presence of the said public pancha, and ASI Salunkhe the appellant took out a blood stained gupti from the heap of small stones lying behind Bhairoba temple. The said recovery was effected under a panchanama.

On completion of the investigation, the appellant was charge-sheeted.

The case was committed to the Court of Sessions in the usual manner where the appellant was charged for the offence u/s 302 of the I.P.C. to which charge he pleaded not guilty. His defence was of denial.

During trial, in all the prosecution examined 12 witnesses. Three of them namely Bhagwan P.W. 2, Vasant P.W. 3 and Raosaheb P.W. 5 were examined as eyewitnesses. In addition, the prosecution led evidence u/s 32 of Evidence Act in the form of the F.I.R. lodged by the deceased and also evidence u/s 27 of the Evidence Act in the form of recovery on the pointing out of the appellant. The learned trial Judge believed the evidence, adduced by the prosecution and convicted and sentenced the appellant in the manner stated in para 1, above.

We have heard learned Counsel for the parties and perused the entire material on record. Mr. Bhosale learned Counsel for the appellant first tried to assail the conviction of the appellant on merits but, later on finding that his submissions were not creating any impression on us, switched on to the alternative submission that only an offence u/s 304(11) of the I.P.C. would be made out against the appellant.

Having gone through the entire material on record, we find merit in Mr. Bhosale''s alternative submission.

So far as the involvement of the appellant in the incident is concerned, the same in our view is established through the credible evidence adduced by the prosecution in the form of Bhagwan P.W. 2, Vasant P.W. 3 and Raosaheb P.W. 5, all being real brothers of the deceased Eknath. It is on the basis of the recitals contained in their examination-in-chief that we have set out the prosecution story in para 2 of this Judgment and hence, do not intend to reiterate the recitals contained in it. In short, they stated that the appellant came on the date, time and place of the incident; started abusing; and when Bhagwan P.W. 2 asked him not to abuse, told him to mind his own business. In the meantime, the deceased Eknath came and asked the appellant and Bhagwan P.W. 2 not to quarrel. Thereupon, the appellant went towards his house situated about 15 feet; brought a gupti and inflicted a blow with the same on the left side of the chest of Eknath who died 15 days later as a consequence thereof.

We have examined the account furnished by the said witnesses and find that it inspires confidence. In the first place, they have explained their presence on the place of the incident. Bhagwan P.W. 2 and Raosaheb have alleged that after taking their dinner, they went towards Bhairoba temple. Vasant stated that at the time and place of the incident, he was in his shop situated in front of Bhairoba temple.

The manner of assault furnished by the three witnesses who stated that the appellant inflicted a gupti blow on the left side of chest of the deceased Eknath, is corroborated by the medical evidence which shows presence of injury attributable to gupti on the said part of the body of Eknath.

Evidence of these witnesses in respect of the place of the incident is corroborated by the circumstance that the Investigating Officer found blood there.

It is true that all these witnesses are interested witnesses but, on that score, their evidence has only to be scrutinised with caution and not mechanically rejected. We have examined their evidence with caution arid find that it inspires confidence.

Assurance to the ocular account is lent by the circumstance that the F.I.R. of the incident which was recorded by P.H.C. Pandurang Shinde P.W. 10 on the information given by the deceased Eknath, is a dying declaration. The version of the incident given out in the said F.I.R. is identical to that given out by the three eye witnesses. In our view, the deceased like the eye witnesses, would not have excluded the real assailant and falsely implicated the said appellant. In our view, the said dying declaration also inspires confidence.

There is yet another piece of evidence which connects the appellant with the crime. As mentioned earlier, on 31.7.1994, in the presence of the public panch, Mohan Salunkhe P.W. 1, the appellant first expressed his willingness to get the gupti recovered and thereafter on his pointing out, a blood stained gupti was recovered from the heap of stones behind Bhairoba temple. It is pertinent to mention that willingness of the appellant to get the gupti recovered and the actual recovery is recorded in separate panchanamas. It is also significant to point out that the said gupti was sent to the Chemical Analyst who found on it, human blood. It is true that group of the blood could not be determined but, as the Supreme Court observed in para 10 of the oft-quoted case of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, presence of human blood on a recovered article is also a incriminating circumstance.

It is pertinent to mention that defence of the appellant contained in his written statement filed by him in the Trial Court on 19.9.1995 is a tissue of lies. In his written statement, the appellant stated that on the night of 25.7.1994, while he was going towards Bhairoba temple, Eknath who was armed with a gupti along with three brothers namely Bhagwan, Vasant and Raosaheb charged upon him with an intention to kill him and inflicted blows with fists and kicks on his person. They pushed him to the ground. Eknath set out to kill him with the said gupti. At that time, there was a scuffle between him and Eknath as a result of which, the appellant pushed the hand in which Eknath was carrying the gupti and in the process the said gupti pierced the left side of the chest of Eknath.

We make no bones in observing that the said written statement is a tissue of lies and was the last desperate act of the appellant to save himself from the gallows. It is pertinent to mention that it saw the light of the day for the first time on 19.9.1995 i.e. nearly 14 months after the incident. Had it been true, the appellant would have lodged an F.I.R., or at any rate, come out with it much earlier. Apart from it, the circumstance that the appellant did not get himself medically examined also belies the correctness of this defence.

For the said reasons, in our view, the learned trial Judge acted correctly in finding the involvement of the appellant proved in the incident, beyond reasonable doubt. We however, feel that he erred in convicting the appellant for the offence u/s 302 of the I.P.C. The evidence on record does not show any pre-existing enmity or illwill between the appellant and the deceased Eknath. It shows that when Eknath intervened in the quarrel between his brother Bhagwan and the appellant, the appellant ran to his house situated about 15 feet away; brought a gupti; and inflicted a solitary blow with the same on left side of the chest of the deceased. In our view, had the appellant wanted to commit the murder of deceased, he would have repeated the blow. It is pertinent to mention that the deceased did not succumb to his injuries on the spot, but died two weeks later, on 7.8.1994.

A perusal of the evidence of the Autopsy Surgeon Dr. (Mrs.) Lila Salunkhe P.W. 8 shows that Eknath did not die directly as a consequence of his injuries. In her examination-in-chief, Dr. Salunkhe stated that he died on account of septicemia shock, following injury to left lung, right lung and oesophagus.

In her cross-examination, she candidly stated that septicemia led to the death.

The act of the appellant in inflicting a solitary gupti blow on left side of the chest of the deceased, in the aforesaid factual matrix, would not fall within the dragnet of any of the four clauses of Section 300 of the I.P.C. the breach of which is punishable u/s 302 of the I.P.C. but, would fall within that of clause thirdly of Section 299 of the I.P.C., the breach of which is punishable u/s 304(II) of the I.P.C. We feel that when in the aforesaid factual matrix the appellant inflicted a solitary gupti blow on the left side of chest of the deceased, he had the knowledge of his death as contemplated by clause thirdly of Section 299 of the I.P.C.

We make no bones in observing that v/e do not find any merit in Mr. Shringarpure''s contention that since the Autopsy Surgeon stated that injury No. 1 suffered by the deceased was sufficient in the ordinary course of nature to cause death, the act of the appellant would fall within the four corners of clause thirdly of Section 300 of the I.P.C. It is well-settled that for the application of the said clause, two things have to be established namely:-

(i) there should be an intention to inflict the injury which has been inflicted; and

(ii) the injury inflicted should be sufficient in the ordinary course of nature to cause death.

It is only when (i) and (ii) co-exist, would clause thirdly of Section 300 of the I.P.C. have application.

In our view, in the factual matrix, in which the incident took place, it cannot be said that the appellant had the intention to inflict the injury which he inflicted.

We are fortified in our view, by the decision of the Supreme Court in Kulwant Rai Vs. State of Punjab, . In the said case, the accused who was aged about 20 years, without any pre-meditation and prior enmity, after a short quarrel inflicted a solitary blow with a dagger which landed on the epigastrium region. The deceased died as a result of the said injury. The Supreme Court took the view that in the factual matrix, in which the said injury was inflicted, it cannot be said that the accused intended to inflict the said injury. Consequently, it converted the conviction of the appellant from Section 302 to 304(11) of the I.P.C.

We feel that the ratio laid down in the said case would squarely apply to our case. The Judgment of the Trial Court shows that the appellant was aged 23 years, at the time when it was delivered, meaning thereby, that he was aged about 22 years at the time of the incident and was a college-going student.

For the said reasons, we reject the said submission of Mr. Shringarpure.

We however, feel that the conviction of the appellant for the offence u/s 504 of the I.P.C. suffers from no infirmity and nor can it be said that the sentence awarded to him on that count, is excessive.

This leaves us with only one question namely the sentence to be awarded to the appellant for the offence u/s 302 of the I.P.C. Mr. Bhosale, learned Counsel for the appellant urged that since the evidence shows that the appellant was a college-going student; was aged about 22 years, at the time of the incident; and had been in jail for nearly five years and eight months, his sentence be reduced to the period already undergone. We regret that considering the extremely serious injury which the appellant for a very paltry reason inflicted on a vital part of the body of the deceased, it would not be possible to accede to this submission. But, be that as it may, in our view, a sentence of seven years R.I. for the offence u/s 304(11) of the I.P.C. would meet the ends of justice.

In the result this appeal is partly allowed. Although we maintain the conviction and sentence of the appellant for the offence u/s 504 of the I.P.C. but, we set aside his conviction and sentence for the offence u/s 302 of the I.P.C. We instead find him guilty for the offence u/s 304(11) of the I.P.C. and sentence him to undergo seven years R.I. for the same. The sentences of the appellant shall run concurrently. The appellant is in jail and shall serve out his sentence.

In case he has paid the fine for the offence u/s 302 of the I.P.C., the same shall stand refunded to him.