1997 ALL MR (Cri) 891
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHNU SAHAI AND R.P. DESAI, JJ.
Vishnu Daga Pagar And Ors. Vs. The State Of Maharashtra
Criminal Appeal No.435 of 1984
14th February, 1997
Petitioner Counsel: Mr. P. P. HUDLIKAR with Mr. P. N. JOSHI
Respondent Counsel: Mr. V. T. TULPULE
(A) Penal Code (1860), S.34 - Applicability - All that is required to be proved is that the offence was committed in furtherance of common intention of more than one person.
For the application of S.34 IPC all that is necessary to establish that a criminal act was performed in furtherance of common intention of more than one person. In the instant case the following facts were clear pointers that the three accused shared the common intention with respect to murder of deceased :- (a) they came armed (one with a stick and another with an axe) on the place of the incident along with the third who was armed with a sickle; (b) they assaulted three persons who rushed to the rescue of the deceased who died afterwards in the same evening; and that they ran away from the place of the incident after assaulting the three persons who came to the rescue of the deceased. [Para 10]
(B) Criminal P.C. (1973), Ss.378(1), 401(3) - Powers of High Court in appeal against acquittal - High Court cannot convert acquittal into a conviction. (Para 11)
(C) Evidence Act (1872), S.3 - Appreciation of evidence - Wound on the head - Doctor opining that it was an incised wound - It could not be disbelieved on the ground that it was the general opinion of the doctor given without examining the wound with lens. (Para 15)
(D) Criminal P.C. (1973), S.154 - Delay in lodging F.I.R. - Delay of five hours satisfactorily explained - Delay cannot be held as adverse to prosecution case. (Para 19)
(E) Penal Code (1860), S.300 - Expression 'in the ordinary course of nature' - May at best envisage a high probability of death.
The words used in clause thirdly of Section 300 IPC are about the sufficiency of the injury of causing death in the ordinary course of nature. The expression 'ordinary course of nature' means normal course or due course. At the best it may envisage a high probability of death. On the converse the word always means inevitably or invariably. In our Judgment, the expression "sufficiency in the ordinary course to nature of cause death" only means in normal or due course or at the best may envisage a high probability of death but certainly does not mean that the injury should invariably or inevitably lead to death. The distinction between the expressions high probability of death and death invariably or inevitably taking place though fine is substantial and if over looked may result in gross-miscarriage of justice.
AIR 1967 All 495; AIR 1966 SC 148; AIR 1944 Mad 223 Rel. on. [Para 27]
(F) Penal Code (1860), S.300 Cl. Thirdly - Offence under - Only one blow of sickle given from the reverse side - Deceased not dying on the spot - Facts have bearing only on the quantum of sentence. (Para 30)
(G) Penal Code (1860), S.300 Clause Thirdly - Offence under - What must be proved.
The only two requirements for application of clause thirdly of Section 300 IPC are :-
(a) intention to inflict the injury caused. The injury inflicted should not be accidental; and
(b) the sufficiency of the injury inflicted to cause death in the ordinary course of nature. [Para 31]
(H) Penal Code (1860), S.302 r.w. 34 - Offences under - Erroneous acquittal of two out of three accused - Third accused who had committed the offence in furtherance of common intention can be convicted notwithstanding acquittal of two others.
1991 SCC (1) 519; 1991 SCC (Cri) 2031; 1996 SCC 1235 Rel. on. (Para 35)
AIR 1958 SC 465 [Para 25]
1995 SCC (Cri) 231 [Para 25,31]
AIR 1967 Allahabad 495 [Para 28]
AIR 1966 SC 148 [Para 28,29]
AIR (31) 1944 Madras 223 [Para 28]
1991 SCC (Vol.1) 519 or 1991 SCC (Cri) 2031 [Para 35]
1996 SCC (Cri) 1235 [Para 35]
VISHNU SAHAI, J. :- By means of this Appeal, the Appellants impugn the Judgment and order dated 17-5-1984 passed by the Additional Sessions Judge, Nasik in Sessions Case No.83 of 1983, convicting and sentencing them in the manner stated hereinafter.
i) Vishnu Daga Pagar
Under Section 302 IPC to imprisonment for life;
ii) Dilip Daga Pagar
Under Section 323 IPC; and
iii) Shenaji Daga Pagar
Under Section 324 IPC.
The learned trial judge instead of sentencing the appellants Dilip and Shenaji, released them on probation of good conduct on each of them furnishing a bond of Rs.700/- and to appear and receive sentence as called upon during the period of two years, from the date of the order, and in the meantime to keep peace and be of good behaviour. We are informed that the appellants Dilip and Shenaji have furnished the required bonds. He however, acquitted them under section 302 read with 34 I.P.C.
By the said judgment he acquitted Balu Chavan, Arjun Ahire and Rupchand Pagar on all the counts.
The informant Kalu Nathu Kapandnis, P.W.1 had three sons namely Gaman Kalu (deceased) Abhiman (P.W.2) and Bhagwan (P.W.3). Yamunabai P.W.4, was his wife. Bagabai P.W.11 wife of Abhiman was his daughter-in-law. The informant, deceased and others on one side and the appellants and the acquitted accused on the other were residents of a common village-Utarane which was situated in District Nasik. Till a day prior to the incident, relations between the informant and others on one hand and the appellants on the other were cordial. It is said that on the morning of the date of the incident viz. 14.3.1983, the deceased Gaman told Bhagwan P.W.3 that the bund between their field and that of appellant Vishnu had been destroyed by the latter. Gaman also told Bhagwan that boundary stones were lying helter-skelter. Abhiman P.W.2 told Bhagwan that he would go to appellant Vishnu and ask him as to why the boundary stones had been uprooted. The evidence is that at about 7 a.m. he proceeded towards village Utarane where Vishnu resided. He questioned him as to why he had broken the bund. This has come in para 7 of the evidence of Abhiman. After some time, Abhiman returned to the threshing floor. There, Bhagwan and Gaman were present. Yamunabai, Abhiman's wife, Bhagabai and Sumanbai were present at the hut which was in the immediate proximity of the threshing floor. The time was about 8 a.m. At the said time, a bullock cart driven by Sharawan Gaikwad (Approver) came and stopped nearby. In the said bullock-cart, the appellants, as also the acquitted accused, Balu Chavan, Arjun Ahire, and Rupchand Pagar were sitting. The appellant Vishnu called Gaman who was also known by the name of Anna. Gaman thereupon, went to Vishnu. Immediately, thereafter Vishnu inflicted a sickle blow on the head of Gaman. Thereafter, Yamunabai, Bhagabai Abhiman and Bhagwan, rushed to the rescue of Gaman. They tried to save Gaman. Appellants Senaji and Dilip assaulted them with an axe and stick respectively. While the appellants and others were assaulting the victims, the acquitted accused Rupchand was exhorting others to finish all of them. Apart from Abhiman, Bhagwan, Yamunabai and Bhagabai, this incident was witnessed by Sahabrao P.W.8 and Karbhari P.W.9.
It is pertinent to note that some amongst the eye-witnesses stated that Dilip and Shenaji also assaulted Gaman.
After assaulting Gaman and others, the appellants and the acquitted accused persons ran away from the place of the incident.
3. Immediately after the incident, a bullock-cart was called for and in the same, the victims were first taken to Dr. Kamlakar Pagare, P.W.5, a Medical practitioner who was also residing in village Utarane. Dr. Kamlakar advised that he could not treat the injuries suffered by them and they should be removed to Nampur. Consequently, they were removed to Nampur.
It may be stated that the evidence of some of the witnesses is that appellants Vishnu and Shenaji put Gaman in the bullock-cart and the latter accompanied them upto Nampur and wanted Abhiman and others to proceed to the village and compromise the matter.
On the person of Gaman Kalu, he found the following injuries :-
(1) Incised wound on the frontal region of the scalp and suspected fracture;
(2) Swelling to the left eye.
He sutured the head injury. The injury report of Gaman is Exhibit 69.
On the person of Abhiman, he found the following injuries :-
(1) Incised wound on the vertex;
(2) Contused lacerated wound on occipital region of the scalp.
On the person of Bhagwan, he found an incised wound on occipital region of scalp 2" x 1"x 1/4". The injury report of Bhagwan is Exhibit 71.
On the person of Yamunabai, he found a incised wound on the frontal region of scalp with suspected fracture and a swelling on the left eye. The injury report of Yamunabai is Exhibit 72.
Dr. Mukund Deshpande, referred all of them to Civil Hospital, Nasik. The evidence is that in a taxi, from Nampur, the victims were taken there. At the said Hospital, they were admitted. The same evening Gaman succumbed to his injuries.
5. Going backwards, the prosecution case is that Kalu Kapadnis P.W.1, father of Gaman Kalu, Abhiman and Bhagwan, who was not an eye witness of the incident, was informed about it by his daughters-in-law Bhagabai, P.W.11 and Suman. He learnt that Gaman and others had been shifted in a bullock-cart to Dr. Kamlakar's dispensary. Accordingly he went there. Dr. Kamlakar advised Gaman to be shifted to Nampur Primary Health Centre. He then took Gaman and others to Nampur and from there, to Civil Hospital, Nasik.
6. The Police came at Civil Hospital, Nasik and took him to Jaikheda Police Station, Head Constable Suryavanshi recorded his F.I.R., the same day at 1.15 p.m. and on its basis Cr.No.29 of 1983 was registered. This has come in para 18 of the evidence of the Investigating Officer Circle Inspector Balkrishna Sanap P.W.14.
7. The investigation was conducted by Circle Inspector Sanap. His evidence is that Dy. S. P. of Manmad Division asked him to carry it out because Police Sub-Inspector of Jaikheda Police Station was investigating an offence of murder. Consequently, he went and took over the investigation from Head constable Suryavanshi that very day. That day, he recorded the statement of the informant; prepared panchanama of the scene of the incident; recorded the statement of some other witnesses; and searched for the accused persons.
Between 16-3-1983 and 20-3-1983, he arrested the appellants and the acquitted accused persons. During the course of the investigation on the pointing out of appellants Vishnu, Shenaji and Dilip and the acquitted accused Balu Chavan and Arjun Ahire, recoveries were made under panchanamas.
From the Vine-yard of Shenaji; from beneath the heap of bajra, at his pointing out a shirt and a pant was recovered.
From the southern corner of the same Vine-yard; from beneath some earth, which was dug, a sickle was recovered on the pointing out of Vishnu.
From the bajra heap, in the same Vine-yard on the pointing out of Dilip, a shirt, pant and a small stick was recovered.
We are not referring to the recoveries made on the pointing out of Balu and Arjun as the same are not relevant for disposal of this appeal.
During the course of investigation he sent the recovered articles to the Chemical Analyst.
After completing the investigation Circle Inspector Sanap submitted the charge sheet on 12-6-1983.
" 1. Stiched wound on frontal region of 2.75 inches in length. There were blood clots. Both eye lids of left eye swollen."
On internal examination, he found depressed fracture of frontal bone on the anterior part of vault of skull. The longer limb of the fracture was on the right side. He also found that coverings of brain below the fracture were torn; there was intra-cranial haemorrhage; and the frontal lobe was lacerated. In the opinion of Dr. Ashtaputre, the deceased died on account of shock due to fracture of skull and intra-cranial haemorrhage and his injuries were sufficient in the ordinary course of nature to cause his death.
On being shown the sickle - article 18, Dr. Ashtaputre, categorically opined that the injuries of the deceased could not be caused by it. On being shown the axe, he stated that the injuries of the deceased could be caused by that axe.
Under sections 148, 302 r/w 149 IPC in the alternative 302 read with 34 IPC, 307, read with 149 IPC, in the alternative 307 read with 34 IPC and 323 read with 149 IPC.
To the said charges, they pleaded not guilty and claimed to be tried.
During the trial, the prosecution examined 16 witnesses. 7 of them namely, Abhiman, Bhagwan, Yamunabai, Sahebrao Kapadnis, Karbhari Pagar, Shrawan Gaikwad and Bhagabai Kapadnis, P.Ws. 2, 3, 4, 8, 9, 10 and 11 respectively were examined as eye-witnesses. The prosecution also tendered and proved a number of exhibits.
In defence the acquitted accused Balu Chavan examined D.W.1 Dr. Prakash Pawar to prove his alibi; that being on the date of the incident he was admitted in his hospital. The learned trial judge for very cogent reasons mentioned in paragraph 30 of his judgment rightly rejected the said plea.
After recording the evidence adduced by the prosecution, the statement of the appellants under section 313 Cr.P.C.; and hearing the learned counsel for the parties, the learned trial judge convicted and sentenced the appellants in the manner stated in para 1 of this judgment. As stated in the said para, he acquitted Balu Chavan, Arjun Ahire and Rupchand Pagar. We may mention that neither the acquittal of the said three persons on all the counts, nor that of appellants Dilip and Shenaji under section 302 r/w 34 IPC has been challenged by the State of Maharashtra by means of an appeal under section 378(1) Cr.P.C.
10. We have no reservations in observing that for wholly untenable reasons contained in paragraph 27 of the impugned judgment, the trial judge has acquitted Dilip and Shenaji for the offence under section 302 r/w. 34 IPC. He was mainly influenced by the circumstance that the medical evidence revealed that they did not assault the deceased. He overlooked the fact that their assaulting the deceased was not necessary for their conviction under the said count. For the application of Section 34 IPC. all that is necessary is to establish that a criminal act was performed in furtherance of common intention of more than one person. In the instant case the following circumstances were clear pointers that they shared the common intention. With respect to Gaman's murder :- (a) they came armed (Dilip with a stick and Shenaji with an axe) on the place of the incident along with appellant Vishnu who was armed with a sickle; (b) they assaulted Yamunabai, Abhiman and Bhagwan when they rushed to the rescue of Gaman who was alive (the evidence is that he died the same evening); and they ran away from the place of the incident along with Vishnu after assaulting the injured witnesses named in (b).
11. In the absence of an appeal by the State of Maharashtra under section 378(1) Cr.P.C., impugning the acquittal of appellants Dilip and Shenaji for the offence under section 302 read with 34 IPC. we are helpless for the legal embargo contained in section 401(3) Cr.P.C. is that the High Court cannot convert a finding of acquittal into one of conviction. However it is well settled that the advantage of an erroneous acquittal of a co-accused person would not accrue to a convicted accused. We will deal with this proposition, in detail, in paragraph 35.
12. We have heard Mr. P. P. Hudlikar with Mr. P. N. Joshi for the appellants and Mr. V. T. Tulpule Public Prosecutor for the respondent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the appellants recorded under section 313 Cr.P.C., and the impugned judgment. After deliberating over the matter we are squarely satisfied that there is no merit in this appeal. As a logical imperative it has to be dismissed.
13. There are two questions which crop up for determination in this appeal. The first is whether the prosecution has proved the involvement of the appellants in the crime. The second is that in case it has what is the offence made out against appellant-Vishnu.
We first take up the first question. In our judgment, there is not even an iota of doubt that the prosecution has proved the involvement of the appellants in the crime. It has proved it by examining as many as 7 eye-witnesses namely, Abhiman, Bhagwan, Yamunabai, Sahebrao, Karbhari, Shrawan Gaikwad (Approver) and Bhagabai, P.Ws. 2, 3, 4, 8, 9, 10 and 11 respectively. We may mention that three of them namely Abhiman, Bhagwan and Yamunabai are injured witnesses; having such injuries on their person which cannot be assailed as being manufactured.
In our view the testimony of injured witnesses, save in view of exceptional infirmities in their evidence which militate against the core or meat of the prosecution case, should not be rejected. This is because injuries guarantee the presence of a witness and once that is ensured the only question which remains is that pertaining to the credibility or the truthfulness of the witness. In this case we are implicitly satisfied that the evidence of not only the injured witnesses but also that of the other eye-witnesses is trustworthy and credible vis-a-vis the appellants.
14. It is on the basis of the averments emanating from the deposition of these eye-witnesses that we have set out the prosecution case, in para 2 of this judgment. In our view, no purpose would be served by repeating it verbatim. In short, the prosecution case is that the bund between the fields of the informant and others on the one hand and that of Vishnu on the other was broken sometimes on the night of 13.3.1983 and 14.3.1983 or in the early hours of the morning of 14.3.1983, by the appellants Vishnu. On the date of the incident, (14-3-1983) at about 7 a.m. Abhiman went to protest to Vishnu. It appears that this protest bruised the ego of Vishnu. Consequently, thereafter, Vishnu came to the vineyard, asked Shrawan Gaikwad P.W.10 (approver) to yoke the bullock-cart. This has come in the evidence of Shrawan Gaikwad. His evidence further is that appellants Dilip and Shenaji and all the acquitted accused came there; and weapons like sickle, an axe and sticks were kept in the bullock-cart. Vishnu asked him to take the bullock-cart to his field. When the bullock-cart had reached near the hut of the informant Kalu, Vishnu asked him to stop the bullock-cart. The evidence of the eye-witnesses is that Vishnu called Gaman. Gaman came there. He inflicted a sickle blow on his head. The evidence of some eye-witnesses is that Dilip and Shenaji also assaulted Gaman. The ocular account consistently deposed to by all the eye-witnesses is that when Abhiman, Bhagwan and Yamunabai tried to rescue Gaman, Dilip and Shenaji assaulted them.
15. The account furnished by the eye-witnesses, in our judgment, is corroborated by the medical evidence. We may straight away mention that we are not inclined to accept the evidence of the Autopsy Surgeon Dr. Ashtaputre, P.W.16 to the effect that the injuries of the deceased could not be caused by the sickle (article 18) shown to him.
In paragraph 24 of the impugned judgment the learned trial judge has also taken the same view and rightly in our judgment. He has observed that the autopsy surgeon without caring to open the stiched wound of Gaman (Dr. Deshpande P.W.15 after examining it had stiched it), gave his opinion. It is significant to point out that Dr. Deshpande who was the first doctor who had examined Gaman had found an incised wound on his head. And it is common knowledge that incised wound would be caused if the sharp-side of the sickle strikes. We do not endorse the finding of the learned trial judge that the incised wound found on the head of Gaman by Dr. Deshpande was not an incised wound. The reason stated by him is that Dr. Deshpande did not examine it with a lens but has only expressed a general opinion. Dr. Deshpande's evidence shows that he was aged 42 years. This means he had considerable experience. And if in his observation of the injury he found it to be an incised wound his opinion cannot be ignored in the cavalier manner in which the trial judge has ignored it.
There is another reason as to why we are not inclined to give weightage to Dr. Ashtaputre's opinion. It is common knowledge that if the blunt side of the sickle struck the head of the deceased, a contused lacerated wound would be caused as a result thereof. There is no evidence that it was the sharp side of the sickle which struck the deceased.
16. In our view the contused lacerated wound sustained by the deceased could be caused by the sickle (article 18) and the manner of assault given out by the eye-witnesses in respect of the injuries, inflicted on Abhiman, Bhagwan and Yamunabai is corroborated by the medical evidence. We feel that the medical evidence lends tremendous assurance to the ocular account.
17. Assurance is also lent to the ocular account by the circumstance that on the place of the incident, the Investigating Officer, Circle Inspector Sanap P.W.14 found blood. This is borne out not only from his evidence but, from a perusal of the spot panchanama which he prepared on the date of the incident itself. A perusal of the spot panchanama also shows that broken pieces of bangles were found on the place of the incident and this again corroborates the prosecution case. It appears that when Yamunabai, wife of the informant, was trying to rescue Gaman and was attacked by the appellants, her bangles were broken.
18. The circumstance that the FIR was lodged promptly also establishes the truthfulness of the prosecution version. It has come in para 18 of the evidence of Circle Inspector Sanap that the FIR of the incident was lodged at 1.15 p.m. on 14.3.1983 (the same day) by Kalu Kapadnis, P.W.1 and on its basis, C.R. No.29 of 1983 was registered. It is true that the incident took place at 8 a.m. and apparently there is a time-lag of five hours and 15 minutes between the incident and lodging of the FIR. But, this time-lag has been explained in the statement of Kalu P.W.1 and that of the other eye-witnesses. The evidence of Kalu P.W.1 is that immediately after the incident, his daughters-in-law Bhagabai, P.W.11 and Suman told him about the incident and about Gaman and others being taken to Dr. Kamlakar's dispensary. Consequently and naturally like any father, Kalu decided to first go to Dr. Kamlakar's dispensary in the village itself. At the said dispensary, Dr. Kamlakar told him that the injuries of Gaman and others were serious and he should take them to Nampur. Consequently, he took them to Nampur. Evidence of Dr. Mukund Deshpande, P.W.15, Medical Officer, Primary Health Centre, Nampur, is that he examined the four victims at the centre, and thereafter, advised that they be taken to the Civil Hospital. It is natural that some time must have been taken to bring the victims to Nampur. There some time must have been taken by Dr. Deshpande in examining them and then again, some time must have been taken in bringing them from Primary Health Centre to the Civil Hospital, Nasik. Again, it was natural that only after his sons had been admitted in the said hospital that Kalu could think in terms of lodging FIR.
19. In the circumstances detailed above the delay of five hours and 15 minutes in the lodging of the FIR has been satisfactorily explained. We would like to emphasise that it is not delay simplicitor in the lodging of the FIR which casts a shadow of doubt on the averments contained in the FIR. It is only where delay is inordinate, and has not been satisfactorily explained, do courts construe the circumstance of the FIR being delayed as being adverse to the prosecution case.
20. Assurance is also lent to the ocular account by the circumstance that there was an immediate motive for the appellants; especially Vishnu, for committing the crime in question. The evidence is that the informant and others had a feeling that sometimes during the night hours of 13th/14th, March 1983, or in the early hours of the morning of 14th March 1983, Vishnu had damaged the boundary wall between the fields of the informant and his. On account of this, Abhiman, P.W.2, the son of the informant, went to Vishnu's house to protest an hour before the incident, (at about 7 a.m.). It was this protest of Abhiman which seems to have bruised the ego of Vishnu. Consequently, Vishnu went to his vineyard and asked P.W.10 Shrawan Gaikwad (approver) to yoke the bullocks. There, in the vineyard, the appellants Dilip and Shenaji and the acquitted accused came. All of them sat in the bullock-cart with weapons, and thereafter assaulted Gaman and others in the manner stated above. We have found the evidence in respect of motive to be cogent. It is contained in para 7 of the statement of Abhiman and in para 3 of the statement of Bhagwan. We find no reason to disbelieve these injured witnesses.
22. The next question is what is the offence which is made out against the appellant Vishnu. Mr. P.P. Hudlikar, learned counsel for the appellants is not contending that appellants Dilip and Shenaji should not have been convicted under sections 323 and 324 IPC respectively.
23. The contention of Mr. Hudlikar is that even if the entire prosecution case is accepted on its face value, no offence under section 302 IPC is made out against the appellant Vishnu. In his contention, only an offence under section 304(2) IPC is made out against him. Mr. Hudlikar banks upon three circumstances to drive home the said submission.
He firstly urged that only a solitary blow was inflicted by the appellant Vishnu with a sickle on the deceased Gaman. He urged that if he wanted to kill him, he would have repeated the blow. He also stressed on the fact that the evidence is that Gaman was not done to death on the spot but, died the same evening at the Civil Hospital, Nasik.
He secondly urged that the circumstance that the solitary injury found on the deceased Gaman was a contused lacerated wound shows that the sickle was not used from the sharp side but, from the blunt side. In his contention, if Vishnu wanted to commit Gaman's murder, he would have inflicted a blow from its sharp side.
He thirdly urged that during his cross-examination, Dr. Ashtaputre, P.W.16 admitted that :
" Fracture of vault though dangerous does not always end in death. Modi had seen cases in which recovery occured after the vault of the skull was fractured."
24. We have carefully considered the said submission of Mr. Hudlikar and we regret that we do not find any merit in it. We feel that none of the circumstances pointed out by him take out the act of the appellant Vishnu from the dragnet of section 300 IPC; the breach of which is punishable under section 302 IPC. In our view, the act of this appellant would be squarely covered by clause thirdly of section 300 IPC. But before we come to clause thirdly, we would like to have a second look at the injuries sustained by the deceased Gaman. As mentioned earlier, Gaman in his life time was medically examined by Dr. Deshpande, P.W.15 who found the following injuries on his person :-
1. Incised wound on the frontal region of the scalp and suspected fracture.
2. Swelling to the left eye.
The evidence of Dr. Deshpande is that he stiched the head injury of Gaman.
The post mortem report of Gaman shows that he had sustained the following injuries :-
"Stiched wound on frontal region of 2.75 inches in length. There were blood clots. Both eye lids of left eye swollen."
It also shows that the internal damage comprised of depressed fracture of frontal bone on the anterior part of vault of skull, and coverings of brain below the fracture were torn and the frontal lobe was lacerated. The opinion of Autopsy Surgeon, Dr. Ashtaputre is that the deceased died on account of fracture of skull and intra-cranial haemorrhage and his injuries were sufficient in the ordinary course of nature to cause death.
"Except in the cases hereinafter excepted, culpable homicide is murder if the act by which death is caused ........
3rdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
A perusal of the said clause would show that in order to bring an offence within its mischief, two things have to be established by the prosecution. They are :-
(a) There should be intention to cause the bodily injury which has been actually caused to a person. In other words, the bodily injury caused should not be accidental; and
(b) The injury caused should be sufficient in the ordinary course of nature to cause death.
Our view is based on the observations contained in para 12 of the oft-quoted Judgment of the Apex Court reported in AIR 1958 Supreme Court page 465 Virsa Singh Vs. State of Punjab and para 4 of the Judgment of the Apex Court reported in 1995 Supreme Court cases (Cri) page 231 State of Karnataka, Appellant Vs. Vedanaygam, Respondent, wherein Virsa Singh's case has been relied upon. In 1995 Supreme Court cases (Criminal) page 231, supra, in para 4, the Apex Court observed thus :-
" If such and intention to cause that particular injury is made out an if the injury is found to be sufficient in the ordinary course of nature to cause death; then clause thirdly of section 300 IPC is attracted " ..........
The evidence of the eye-witnesses excluding Yamunabai, is that the appellant Vishnu assaulted with a sickle on the head of the deceased Gaman. In other words, the evidence is that he intended inflicting that injury. There is nothing in the evidence to show that the appellant Vishnu did not intend inflicting that injury or that the injury was accidental. The second element namely of the sufficiency of the injury inflicted by the appellant Vishnu to cause death of the deceased in the ordinary course of nature, is also borne out from the evidence on record. Dr. Ashtaputre, P.W.16 the Autopsy Surgeon, in his examination-in-chief stated that the injuries suffered by the deceased were sufficient to cause his death in the ordinary course of nature.
27. It is true that during his cross-examination, in para 3, Dr. Ashtaputre, stated that fracture of vault of skull does not always end in death but that would not take out the offence from the mischief of clause thirdly. The words used in clause thirdly of section 300 IPC are about the sufficiency of the injury of causing death in the ordinary course of nature. The expression 'ordinary course of nature' means normal course or due course. At the best it may envisage a high probability of death. On the converse the word always means inevitably or invariably. In our judgment, the expression "sufficiency in the ordinary course of nature to cause death" only means in normal or due course or at the best may envisage a high probability of death but certainly does not mean that the injury should invariably or inevitably lead to death. The distinction between the expressions high probability of death and death invariably or inevitably taking place though fine is substantial and if overlooked may result in gross-miscarriage of justice.
The first is reported in AIR 1967 Allahabad page 496 (Thakur Das and another, Appellants Vs. State, Respondent). In para 20, Their Lordships of the Allahabad High Court have observed thus :-
" It is not necessary for the application of clause (3) of section 300 IPC that the injury must be such as would make it impossible for the injured to escape death. All that is required is that the injury intended must be such as would in the ordinary course of nature be sufficient to cause death. There may be a case in which even though the injury was sufficient in the ordinary course of nature to cause death the injured may escape death but, if he dies as a result of such an injury the offence would be covered by cl (3) of section 300 IPC and be murder. If however, the injury is of such a nature as is only likely to cause death and would not in the ordinary course be sufficient to cause death, it would be culpable homicide not amounting to murder."
It would also be apposite to refer to the Judgment of the Apex Court reported in AIR 1966 Supreme Court 148 Anda and others, Appellants Vs. The State of Rajasthan, Respondent. Speaking for the Apex Court. M. Hidayatullah, J (as then he was) in para 7 observed thus :-
" The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be said to be sufficient, in the ordinary course of nature to cause death, that is to say, the probability of death is not so high, the offence does not fall within murder but, within culpable homicide not amounting to murder or something less."
The third authority and a very apt one in our judgment is the decision of the Madras High Court rendered in AIR (31) 1944 Madras 223 In re Singaram Padayachi and others ------- Appellants, Their Lordships have observed thus :-
" We are not prepared to assent to any agreement that an injury sufficient in the ordinary course of nature to cause death is an injury, which inevitably and in all circumstances must cause death. If the probability of death is very great, then it seems to us the requirements of thirdly under Sec.300 are satisfied, and the fact that a particular individual may by the fortunate accident of his having secured specially skilled treatment or being in possession of a particularly strong constitution have survived an injury which would prove fatal to the majority of persons subjected to it, is not enough to prove that such an injury is not sufficient 'in the ordinary course of nature' to cause death."
29. If the norms laid down in the said cases are examined in the facts of this case, the inescapable conclusion would be that the act of the appellant Vishnu would fall within the mischief of clause thirdly of section 300 IPC. It admits of no dispute that from those injuries which result in fracture of frontal bones on the anterior part of the vault of the skull, in coverings of brain below the fracture being torn; and the frontal lobe being lacerated, it can be safely presumed that there is a high probability of death, as observed by the Apex Court in para 7 or the Judgment reported in AIR 1966 Supreme Court, 148 supra.
30. We wish to emphasise the circumstances urged by Mr. P. P. Hudlikar, the learned counsel for the appellants, that only one blow from the reverse side of the sickle was given to the deceased who was not done to death on the spot are extraneous, so far as the offence falling within the ambit of clause thirdly of section 300 IPC is concerned. At the best, they may have bearing on the quantum of sentence. They may persuade the court to opt for a sentence of imprisonment for life instead of death.
We may straight away mention that there is no evidence that appellant Vishnu inflicted the blow from the reverse side of the sickle. The evidence only is that he inflicted a blow with a sickle on the head of the deceased Gaman. It is common knowledge that while being attacked the victim does not remain stationary; he tries to save himself. It might be that as a result of Gaman trying to avoid the sickle blow the blunt side of the sickle may have struct his head. However, in our view, even if it is assumed that Vishnu inflicted a blow from the reverse side of sickle, it would make no difference as regards the offence.
(a) intention to inflict the injury caused. The injury inflicted should not be accidental; and
(b) the sufficiency of the injury inflicted to cause death in the ordinary course of nature.
Both the requirements are satisfied. The evidence of the eye-witnesses, excluding Yamunabai, is that appellant Vishnu inflicted a sickle blow on the head of the deceased. This means that he intended causing the injury which he caused. The evidence of the Autopsy Surgeon Dr. Ashtaputre is that the injury of the deceased was sufficient to cause death in the ordinary course of nature. It may be that appellant Vishnu inflicted only a blow; may also be from the reverse side of the sickle but, its severity was such that collossal internal damage involving fracture of frontal bone; in coverings of the brain being affected; and frontal lobe being lacerated, was the result. The injury was so lethal that the deceased succumbed to it the same evening.
The passage which we have extracted from the decision of the Apex Court rendered in 1995 S.C.C. (Criminal) page 231 in para 25 of our Judgment completely annihilates the submission.
32. We now propose considering some of the other submissions canvassed by Mr. Hudlikar. He firstly urged that in view of the categorical evidence of Dr. Ashtaputre, the Autopsy Surgeon, that the injury of the deceased could not be caused by the sickle shown to him (Article 18) appellant Vishnu could not be capable for the murder of Gaman and would only be capable for his individual act, which was of assaulting some of the witnesses. In paragraph 15, we have given our reasons for rejecting the said statement of Dr. Ashtaputre. Consequently, we reject this submission of Mr. Hudlikar.
33. The second submission canvassed by Mr. Hudlikar is that the medical evidence shows that only one injury was inflicted on the deceased Gaman and in-as-much as some of the eye-witnesses have stated that appellant Dilip and Shenaji also assaulted Gaman with stick and axe respectively, it cannot be said with definitiveness that appellant Vishnu was responsible for the solitary injury suffered by Gaman and that being so, he deserves to be acquitted under section 302 IPC.
To elucidate his submission, Mr. Hudlikar first invited our attention to the evidence of Yamunabai. He pointed out that Yamunabai did not attribute any overt act of assault to appellant Vishnu. Instead she stated that it was appellant Shenaji who gave the sickle blow on the head of Gaman. He thereafter, invited our attention to the evidence of some other witnesses. He pointed out that P.W.2 Abhiman stated that Vishnu gave two blows with a sickle on the head of Gaman and thereafter appellants Dilip and Shenaji assaulted Gaman with a lathi and an axe respectively. He then referred to the statement of P.W.3 Bhagwan who stated that whereas Vishnu assaulted Gaman with a sickle, Shenaji him with an axe.
34. We have examined the said submission of Mr. Hudlikar and find it without substance. It is significant to point out that excepting Yamunabai P.W.4, all the eye-witnesses have categorically stated that the first blow on the deceased was inflicted by appellant Vishnu who assaulted him on his head. In this connection, we would specifically like to refer to the statements of eye-witnesses Sahebrao, Karbhari, Shravankumar (approver) and Bhagabai P.Ws. 8, 9, 10 and 11 respectively.
In paragraph 2, Sahebrao stated as follows :-
" Then I saw that accused no.1 Vishnu Daga was inflicting blow on the head of Gaman with sickle."
In paragraph 1, Karbhari stated thus :-
" Accused no.1 Vishnu dealt a blow with sickle on the head of Gaman."
During his cross-examination, in paragraph 3, he stated that "Accused no.1 Vishnu gave only one blow on the head of Gaman with sickle as a result of which he fell down."
Shravan Kumar, P.W.10 in paragraph 2 stated as under :-
" Then accused no.1 Vishnu Daga called out 'Gaman come here'. Accordingly, Gaman came there. Accused no.1 Vishnu Daga dealt a blow with sickle on the head of Gaman. That time I was standing near the cart. Then Gaman fell down."
Finally, P.W.11 Bhagabai wife of P.W.2 Abhiman stated thus :-
" When Gaman was drawing near accused no.1 Vishnu, he dealt a blow with sickle on the head of Gaman as a result of which he fell down.
The learned trial Judge believed the evidence of Abhiman, Bhagwan, Sahebrao, Karbhari, Shravan Kumar and Bhagabai, all of whom to repeat, stated that Vishnu gave the first blow on the head of Gaman. The evidence of the last four shows that Vishnu's blow actually struck the deceased and he fell down thereafter. In para 22, the trial Judge has given reasons for not placing reliance on the sole testimony of Yamunabai as against that of the six other eye-witnesses; they being :-
(a) She was aged about 54 years and on seeing her son being assaulted must have become flabbergasted and confused; and
(b) She is an illiterate lady who had given evidence after a lapse of 13 or 14 months, and therefore, some allowance must be given for her lapse of memory.
We find the said reasons to be perfectly tenable.
It is true that some witnesses have stated that Dilip and Shenaji also assaulted the deceased but, in the teeth of the evidence of a large number of eye-witnesses, that the sickle blow inflicted by Vishnu struck the deceased on his head who fell down as a result thereof, we reject that evidence on a two-fold reasoning:-
(a) those witnesses are exaggerating when they say that Dilip and Shenaji also assaulted Gaman; and
(b) the blows inflicted by Dilip and Shenaji did not strike the deceased.
At any rate, as the Apex Court has repeatedly observed that the principle 'Falsus uno falsus omnibus' is not applicable to our country.
The said evidence in our view, would have no adverse effect on the overwhelming ocular account that it was the sickle blow inflicted by appellant Vishnu which struck the deceased on his head.
35. Even assuming for arguments sake, it is true that it is not clear as to whose blow struck the deceased, the appellant Vishnu, in our Judgment, can still be convicted under section 302 read with 34 IPC. He, appellants Dilip and Shenaji were all charged under section 302 read with 34 IPC.
In paragraphs 10 and 11 (after assigning reasons) we have candidly observed that the acquittal of Dilip and Shenaji under section 302 read with 34 IPC was bad in law but, in the absence of an appeal against acquittal, we expressed our helplessness to interfere with it.
So far as appellant Vishnu is concerned, the position is different. He was convicted by the trial court under section 302 IPC. In our view, the evidence shows that the murder of the deceased Gaman was committed by the appellant Vishnu in furtherance of common intention of appellants Dilip and Shenaji. Since appellant Vishnu was charged under section 302 read with 34 IPC, we can convict him in the alternative on that count even though appellants Dilip and Shenaji have been acquitted on the said charge. Their erroneous acquittal would not be hindrance in our way. We are fortified in our view by the observations of the Apex Court in the case of Brathi Vs. State of Punjab 1991 S.C.C. (Vol.1) page 519 or 1991 S.C.C. (Cri) Pg. 2031. They read thus:-
" In the matter of appreciation of the evidence the powers of the appellate court are as wide as that of the trial Court. It has full power to review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate Court to indirectly or incidentally find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. Where the evidence examined by the appellats court unmistakably proves that the appellant was guilty under section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding."
The said observation were quoted with the approval by the Apex Court in the case of Golla Pullanna & anr. ..Appellants Vs. State of A.P. ..Respondent (1996 S.C.C. Cri. page 1235).
36. Pursuant to the above discussion, we find appellant Vishnu guilty of an offence punishable under section 302 IPC; in the alternative for an offence punishable under section 302 read with 34 IPC. We find appellants Dilip and Shenaji guilty of offences punishable under sections 323 and 324 respectively.
37. Before parting with the Judgment, we would like to express our anguish that the learned trial Judge was wholly oblivious of the provisions contained in section 34 IPC. On account of his ignorance and failure of the State of Maharashtra in impugning the acquittal of appellants Dilip and Shenaji under section 302 read with 34 IPC, they have got away only with a slap. For that they should thank their starts.
38. In the result, this appeal is dismissed. We confirm the conviction and sentence of life imprisonment of the appellant Vishnu Daga Pagar for an offence punishable under section 302 IPC; in the alternative we convict him under section 302 read with 34 IPC and sentence him to undergo imprisonment for life. His sentences on both the counts shall run concurrently. We also confirm the convictions and sentences of appellants Dilip Daga Pagar and Shenaji Daga Pagar for offences punishable under sections 323 and 324 of IPC respectively.
Appellant Vishnu Daga Pagar is on bail. He shall be taken into custody forthwith to serve out his sentence.
We direct that a copy of this Judgment should be sent within two weeks from today to :-
(i) Secretary, Law and Judiciary Department, Government of Maharashtra, Mantralaya, Bombay;
(ii) Principal/Home Secretary, Government of Maharashtra, Mantralaya, Bombay;
(iii) Chief Secretary, Government of Maharashtra, Mantralaya, Bombay;
(iv) Advocate General, Maharashtra; and
(v) Director General of Police, Maharashtra.
We do this with the hope and trust that the State of Maharashtra would evolve a better mechanism for screening acquittals in grave cases (specially murder cases) so that in cases like the present, appeals are filed. It is true that the discretion to prefer an appeal against acquittal vests with the State Government but, if in an appropriate case, it does not exercise it the offender goes scot-free. And that is distressing, from the angle of the society.
In case an application for a certified copy of this Judgment is preferred, the same shall be issued on an expedited basis.