Shankar Kondiba Gore vs State of Maharashtra

Sahai, J.—The appellant aggrieved by the order dated 13th November 1992 passed by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 782 of 1989 convicting him u/s 302 of IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo SI for two months, has come up in appeal before us.

The prosecution case in brief, as contained in the FIR lodged by PW 1 Govind Tukaram Deogikar is that the decessed Arun Kisan Bhosale and the appellant belonged to the village of the informant. The deceased was working in Shrikrishna Tea House, Vithalwadi, Kalba Devi. He, the informant and some others used to sleep in the same compound. The appellant is said to have been working at Hanuman Tea House, C.P. Chawl, Abdul Rahman street. It is said that the appellant and the deceased were friends and used to have a common lunch; each bringing his own tiffin. It is stated that about 9 to 10 days prior to the incident, which is alleged to have taken place, on 17-04-1989, the appellant had asked the deceased to bring his tiffin box and the latter had not brought it. Consequently, the appellant had beaten the deceased and also torn his Baniyan. It is said that the deceased too in return had beaten the appellant. On the night of 16/17-4-1989 the deceased, informant PW 1 Govind Tukaram Deogikar and two other witnesses of fact, namely PW 3 Suresh Raghunath Dindale and PW 6 Prakash Laxman Koditkar, are said to have slept within close proximity of one another. It is alleged that at about 5-5-30 a.m. the informant woke up and after responding to the call of nature again lay down on his bed. About half an hour later i.e. at about 6-00 a.m. the informant heard the deceased shouting ''Pakya'' and on his aforesaid shouts the attention of the informant was drawn in the direction in which the deceased was sleeping and he saw that the appellant was standing near the deceased, with a knife in his hand. Thereafter the appellant is alleged to have run away. The attention of the other two witnesses of fact is also alleged to have been attracted on hearing the shouts of the deceased and they are said to have seen the appellant running away from the place of the incident with a knife in his hand. An endeavour was made by the witnesses to catch the appellant but he managed to run away.

After the appellant had run away the informant and others offered some water to the decceased, who was still alive. Thereafter PW 6 Prakash brought a taxi and on the same Arun was taken to J.J. Hospital. On the way, he is said to have been repeating, at last Shankar stabbed me by a knife. In the hospital Arun was admitted in Ward No. 4 where after some time (at 7-10 a.m.) he succumbed to his injuries.

The post-mortem examination of the dead body of the deceased Arun was conducted by Dr. Ramkrishna Govindram Bhusale - PW 8. On the dead body the doctor found the following two ante-mortem injuries :

Penetrating injury (Stab injury) over Abdomen above epigastric region, 3 cm above umbilicus in mid-line obliquely vertical 1.5 cm x 1 cm spindle shaped.

Cut incised wound on left arm lower part just above elbow, medial surface 2 cm x 1 cm reddish in colour.

On internal examination the only damage which the doctor found was that the right artery was punctured at ileum. In the opinion of the doctor the deceased died on account of stab injury to the abdomen, namely ante-mortem injury No. 1. The doctor also opined that the aforesaid injury was sufficient in the ordinary course of nature to cause death.

On the basis of the FIR lodged by PW 1 Govind Tukaram Deogikar at 5.10 p.m. the same day (17-4-1989) a case u/s 302, IPC. was registered against the appellant.

The investigation took place in the usual course and after its completion the charge-sheet was submitted against the appellant.

In the trial Court a charge u/s 302, IPC. was framed against the appellant to which he pleaded not guilty and claimed to be tried. In the trial Court, the prosecution examined as many as 15 witnesses out of which three were witnesses of fact namely, Govind Tukaram Deogikar, Suresh Raghunath Dindale and Prakash Laxman Koditkar, P.Ws. 1, 3 and 6 respectively. The prosecution also examined Dr. Ramkrishna Govind Bhusale, PW 8 who had conducted the post-mortem examination of the dead body of the deceased. In defence no witness was examined.

The learned trial Judge believed the prosecution witnesses and passed the impugned order.

We have heard Mr. R. V. Kini, the learned counsel for the appellant and Mr. D. G. Bagawe, the learned Additional Public Prosecutor for the State of Maharashtra, at considerable length. We have gone through the depositions of the witnesses examined in the trial Court as well as the various exhibits tendered and proved by the prosecution during the trial. After giving our anxious consideration to the matter, we are of the opinion that this appeal deserves to succeed only on the question as to what offence is made out.

We may straightway mention that there is good, cogent, reliable and dependable evidence in support of the prosecution case. There is evidence of Govind Tukaram Deogikar who is alleged to have been lying at the place where the deceased was lying and whose attention was attracted when the deceased shouted ''Pakya'' (the nick name of PW 6 Prakash). He is alleged to have seen the appellant standing by the side of the deceased with a knife in his hand and thereafter with the aforesaid knife, he is said to have seen him running away. The other two witnesses namely PW 3 Suresh Raghunath Dindale and PW 6 Prakash Laxman Koditkar were also sleeping near the very place where the deceased was sleeping and their attention was attracted on the aforesaid shouts, of the deceased and they are alleged to have seen the appellant running away with a knife in his hand.

After going through the evidence of the aforesaid three witnesses, we find that the same does not contain any such infirmity which would militate against the core of the prosecution case. We find that all these witnesses were natural witnesses of the incident and had no axe to grind against the appellant. The presence of knife injuries on the person of the deceased lends credence to their evidence.

For the aforesaid reasons we feel that there is ample truthful evidence to the effect that on the date, time and place mentioned above the appellant committed the murder of Arun.

The question which remains is as to whether the learned trial Judge was justified in convicting the appellant u/s 302, IPC. In the earlier part of our Judgment, we have mentioned the ante-mortem injuries suffered by the deceased. We have noticed that the autopsy surgeon PW 8 Dr. Ramkrishna Govind Bhusale found two ante-mortem injuries on the person of the deceased - one of which was an incised wound on the left arm - lower part above elbow and the other was a stab injury, on the abdomen. As mentioned earlier the opinion of the autopsy surgeon was that the death of the deceased was on account of the stab injury on abdomen. We have perused the statement of the doctor as well as the original post mortem report and we find that the only internal damage found by the doctor was that the right artery was punctured at ileum.

In our opinion looking to the ante-mortem injuries suffered by the deceased and the circumstance that the death of the deceased appears to have been caused as a result of right artery being punctured at ileum the learned trial Judge was in error in convicting the appellant u/s 302, IPC. In our view, the appellant could not be fastened with the intention of puncturing right artery at ileum. That being so, he could not in terms of Section 300, IPC. be said to have intended causing the death of the deceased or intended causing such injury which he knew was likely to cause his death, or intended causing such injury which was sufficient in the ordinary course of nature to cause his death. It could not be said that the appellant had the requisite intention contemplated by the first three clauses of Section 300, IPC or the knowledge contemplated by the fourth clause of Section 300, IPC to the effect that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. He could only be saddled with the knowledge of causing the death of the deceased, as contemplated by Section 299, IPC. When he assaulted the deceased with a knife on abdomen he could be fastened with the knowledge that by his act he could rupture an artery thereby killing him. Hence the offence would fall within the ambit of Section 304, Part II, IPC and not u/s 302, IPC.

We are fortified in our view by the decision of the Apex Court reported in Laxman Kalu Nikalje Vs. The State of Maharashtra, in the case of Laxman Kalu Naikalje v. The State of Maharashtra. In the aforesaid case, the appeal lent Laxman Kalu Nikalje with a knife had assaulted the deceased on chest resulting in his auxiliary artery being out. As a result of that artery being cut and consequential bleeding, the deceased is alleged to have died. The contention advanced on behalf of the State was that the offence committed by the appellant Laxman Kalu Nikalje would squarely fall within the ambit of Clause 3 of Section 300. IPC which reads thus :

S. 300 - 3rdly

"If it is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."

Repelling the aforesaid submission Chief Justice Hidayatullah, observed that for the application of clause thirdly not only the intention to inflict the external injury (that intention was certainly there) was required but the intention to inflict the internal injury was also required. He observed that the appellant could not be fastened with the intention of cutting the auxiliary artery. In his opinion, however, when the appellant assaulted the deceased on his chest region he had the knowledge contemplated by Section 299, IPC. that by his act he was likely to cause his death. In that view of the matter he set aside the conviction of the appellant u/s 302, IPC and converted it into one u/s 304, Part II, IPC.

The proposition laid down in the aforesaid case has been followed by the Supreme Court in the case of Gokul Parashram Patil Vs. State of Maharashtra, . In that case the superior vernacular which was situated on the left clavicle was cut and the Apex Court on the reasoning advanced by Hidayatullah, Chief Justice, referred to above set said the conviction of the appellant u/s 302, IPC and sentenced him u/s 304, Part II IPC.

In our opinion the ratio laid down in the aforesaid two cases of the Apex Court squarely applies to the facts of the instant case and consequently on a parity of reasoning we fell that the conviction of the appellant u/s 302, IPC is unsustainable and should be converted to one u/s 304, Part II, IPC. We may mention that the aforesaid view which we have taken is also strengthened by the circumstance that the motive suggested by the prosecution was too paltry to infer any intention to kill the deceased and that if the appellant really wanted to kill the deceased, he could have given him another blow on any vital organ of his body. The evidence on record does not show that any hindrance was caused to him by the witnesses, in doing so.

In the result, this appeal is partly allowed and partly dismissed. We set aside the conviction of the appellant u/s 302, IPC and the sentence awarded to him on that count. Instead, we convict the appellant u/s 304, Part II, IPC. for which offence, in our opinion, a sentence of five years RI would meet the ends of justice. It is stated by Mr. Kini that the appellant has already been in Jail over five years. If he has completed his sentence of five years, he shall be released forthwith unless wanted in some other case. Fine if paid be refunded to the appellant. We direct the Office to forthwith send a copy of the operative part of our order to the Superintendent of jail in which the appellant is detained.

Order accordingly.