2000 ALL MR (Cri) 1721
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

R.K. BATTA AND P.S. BRAHME, JJ.

Shamrao Raghuji Dhote. Vs. State Of Maharashtra.

Cri.Appeal No.144 of 1995

21st September, 2000

Petitioner Counsel: Mrs MEGHNA MUNSHI
Respondent Counsel: Mr S.S.DOIFODE

Penal Code (1860), S.300 - Murder - Intention to kill - Accused giving axe blow on head of victim - Accused's act premeditated and blow given with great force - Intention to kill is clear - Conviction for murder and sentence under S.302 is proper.

The accused in the case in question started taking eatables from the hotel of the deceased which was objected to as a result of which the accused left. However, he returned back after about half an hour with an axe hidden under his clothes and assaulted with the said axe on the head of the deceased and also caused other injuries. The act of the accused was pre-meditated; the weapon used is axe; part of the body on which blow was given is head which is vital part of human body and what is pertinent is that the said blow was given with great force resulting in compound fracture of right frontal bone as a result of which bones broke into pieces in the area of 3" x 1" and the bone was separated from the vault. Besides this, there was fissured fracture radiating from the margine of cut end of vault linear; contusion with blood clots in anterial cranial fossa corresponding to right orbit blood clots adherent as well as contusion of brain in right fronto-parito-temporalo region of base of brain. Medical Officer categorically opined that the death was due to head injury. The intention to kill is thus apparent. It is not a case of single blow or a blow having been given either on the spur of moment in a sudden quarrel or as a result of provocation, but it is a pre-meditated act of the accused who returned back after about half an hour of the initial incident with an axe hidden in his clothes and assaulted with great force with axe on the head of deceased resulting in injuries leading to the death of deceased. The offence in question clearly falls under Section 302 since there is intention on the part of the accused to kill the deceased. Therefore, the offence could not be scaled down to S.326 or 304, Part I of Penal Code. [Para 9]

JUDGMENT

BATTA, J. :- The appellant was tried for murder of Anjanabai under Section 302 of the Indian Penal Code. Briefly stated the prosecution case is that the appellant who is a Police Constable had gone to the hotel run by deceased Anjanabai and he lifted eatables and started eating the same. It appears that the deceased Anjanabai objected to the same and scolded the police constable. The appellant then went to the Pan Shop of Sheikh Shakil Ahmad (PW 1) which is adjoining to the said hotel and demanded pan. P.W.1 Shakil asked the appellant to bring change and then only he would give Pan to him. Appellant left the Pan Shop. After about half an hour, the appellant returned to the hotel run by deceased Anjanabai, took out an axe which was hidden in his clothes and assaulted with axe Anjanabai on the head. Besides this, the appellant also gave other blows to Anjanabai. The assault took place on 16.7.1986. The prosecution had examined twelve witnesses in support of the charge including three eye witnesses besides two witnesses in support of dying declaration of the deceased. The dying declaration was not relied upon by the Trial Court. The testimony of three eye witnesses was accepted on the basis of which the Trial Court convicted the appellant and sentenced him to undergo imprisonment for life and pay a fine of Rs.2000/-, in default to suffer further rigorous imprisonment for six months under Section 302 of the Indian Penal Code. The same is subject-matter of challenge in this appeal.

2. We have heard learned Advocate for the appellant and learned Addl. Public Prosecutor for State.

3. Learned Advocate for the appellant has urged before us that there are contradictions in the testimony of witnesses; that two of the prosecution witnesses, viz. P.W. 1 Shakil Ahmad and P.W. 6 Madhura have stated that their attention was drawn to the incident after deceased Anjanabai had fallen on the ground. In respect of testimony of P.W. 5 Vilas, it is urged that this witness had not stated before the police that the appellant had inflicted blow of an axe on her head and as such, this witness was confronted with the statement in respect of which he could not assign any reason. It is also urged by learned Advocate for the appellant that the appellant had neither intention to kill nor there is any evidence on record to suggest that the injuries caused were sufficient in ordinary course of nature to cause death. According to her, the injured had died after about eight days of the incident and in the circumstances, the offence in question would not fall under Section 302 of the Indian Penal Code and at the most, it may be a case of causing grievous hurt under Section 326 of IPC or alternatively, it may fall under Section 304, Part-II of IPC. She, therefore, contends that the conviction and sentence imposed by the Trial Court cannot be sustained.

4. On the other hand, learned A.P.P. urged before us that three eye witnesses have categorically proved the involvement of the appellant in the crime in question; that the axe blow was given with such a great force that there were compound fractures of right frontal bone resulting in bone pieces in the area of 3" x 1" which was separated from the vault. Besides this, there was fissured fracture radiating from the margine of cut-end of vault and in the brain there was contusion with blood clots in anterial cranial fosa corresponding to right orbit blood clots adherent and contusion of brain in right fronto-parito-temporal region of the base of brain. It was also pointed out by him that the assault was pre-meditated as the appellant had brought the axe hidden in his clothes and he assaulted Anjanabai with the same. According to him, the offence squarely falls under Section 302 of the Indian Penal Code as the intention to kill can be inferred from the circumstances of the case. He, therefore, contends that no interference is called for in the impugned order of conviction and sentence.

5. The prosecution had examined three eye witnesses of the incident. P.W. 6 Madhura Chhatrapal was working as a hotel boy in the hotel run by Anjanabai. He has stated that the accused came to the hotel and demanded "Bhaje". Anjanabai gave him "Bhaje". He again demanded "Bhaje", but Anjanabai scolded him after which the accused went away. He has further stated that after about half an hour, the accused returned and at that time, the deceased was preparing tea. The accused inflicted blow of an axe on her head and she fell down. During the cross-examination he has stated that Anjanabai was standing near the counter of the tea at the time of assault; the assailant was on the front side of Anjanabai when the blow was inflicted; he was holding axe by both hands; he gave the blow from the front side of the deceased and that the blow was given by him from his right side i.e. by raising the axe by his right side. Thus, this witness has vividly given details as to how the deceased was assaulted by the accused. An isolated sentence in his deposition that his attention was drawn when deceased fell down on the ground, cannot be given much credence. When the evidence of this witness is read as a whole, we are convinced that not only this witness is a truthful witness, but there is ring of truth in the testimony of this witness. The testimony, in our opinion, does not suffer from any infirmity.

6. The evidence of P.W. 6 Madhura gets support from the evidence of P.W.5 Vilas. P.W. 5 Vilas has stated that he had gone to the hotel for taking tea at about 1.45 p.m.; the mother of Baburao i.e. deceased was standing near counter; accused came in that hotel and on taking out axe, he gave blow on her head. Thereafter, Shri. Ingle, PSI came there and snatched the axe from the accused. During cross-examination, he gave further details of the assault when he stated that the accused gave blow on the head of Anjanabai while she was standing and that the accused gave blow while she was facing towards the hotel. Much capital is sought to be made by the defence on the ground that this witness had not stated before the police that the accused had inflicted blow of axe on her head. Unfortunately, the Trial Court has not properly confronted the witness in respect of the omission nor the Public Prosecutor conducting the trial has cared to intervene. The statement of this witness before the police reveals that he had in categorical terms stated that the accused had assaulted the deceased with an axe and that as a result of the axe blow, the deceased has received bleeding injury on the head. The omission which was sought to be brought about is, therefore, no omission at all and it is on account of the incorrect manner of confronting with the contradiction of this witness, it appears that there is an omission. Therefore, nothing material turns out insofar as this statement is concerned. P.W. 5 Vilas has categorically stated that the accused has assaulted with an axe on the head of the deceased. P.W. 5 Vilas has also stated that axe was snatched from the hands of accused by PSI Ingle which fact has not been challenged at all by the accused.

7. The prosecution case is further supported by the evidence of P.W. 1 Shakil Ahmad who has a Pan Shop adjoining the hotel run by Anjanabai. He has stated that accused Shamrao came to the hotel and started eating some eatables which were kept in the hotel and mother of Baburao, viz. deceased Anjanabai asked as to why he was eating the same without permission. Accused then came out of hotel and came to his Pan Shop and this witness told him to bring change and then he would give Pan. Then accused went away. After about half an hour, he returned back, went to the hotel near mother of Baburao "Maji" (referring to the deceased), took out axe like weapon from the back side of collar and then inflicted blow on the head of Maji. He stated that accused then gave two blows, but he did not know where the said blows had fallen on the person of the deceased. As a result of the assault, she fell down. He saw one Police Officer and Constable Shoukat who caught hold of the accused. The axe was removed, but the accused was abusing and threatening Shakil (P.W.1) to kill him. During the cross-examination, he stated that deceased was preparing tea when accused inflicted blows of an axe. According to him, his attention was attracted when he heard shouts of Maji (Anjanabai) and he had seen that she was lying on the ground. He saw one hotel boy present in the hotel. He further stated that accused did not give blow on deceased after she fell down. Thus, the assault by appellant on deceased is duly established with the evidence of three witnesses.

8. The ocular evidence is supported by medical evidence on record. Dr.Ajay Kewalia who found three external injuries on the person of the deceased, viz.

1. Stitched wound over right frontal region 7 cm x 1.5 cm situated 2 inches above right eye-brow. Soft tissue and fluid exuding out from the stitched site. Deformity of bone evident associated with injury underneath, age can be about 1 week.

2. Somewhat triangular shaped injury over right shoulder at base of neck 1 inch x 1/2 inch size at maximum breadth which is lateral in position part nearer to the medical aspect is less in breadth lessoning gradually upto muscle deep age about 1 week.

3. On palpation compound communicated fracture at right frontal region corresponding to injury no.1 was noted.

He also found the following internal injuries:-

Internal damage as in column no.19 reads as follows:

1. Hemotoma under scalp in right partio-temporal region 3 inches x 2 inches size.

2. Compound fracture right frontal bone, pieces in area of 3 inch by 1 inch separated from the vault.

3. Fissured fracture radiating from the margine of cut end of vault linear size 1 inch in length approximately.

4. Laceration of frontal lobe of brain on right side in area of 3 inch.

5. Contusion with blood clots in anterial cranial fossa corresponding to right orbit blood clots adherent.

6. Contusion of brain in right fronto-partio-temporal region of base of brain.

7. Meninges were congested.

8. Yellowish coloured pus was present in posterior cranial fossa.

The cause of death, according to him, was head injury and injuries were possible by axe, Article "1" before the Court. On the axe, blood of "B" group was found by the Chemical Analyst and the blood group of the deceased is also "B".

9. Learned Advocate for the appellant has urged before us that the doctor has no where stated that the injury on the head was sufficient in the ordinary course of nature to cause death and that taking into consideration the fact that the victim survived for eight days, intention to kill cannot be attributed to the appellant. Intention has to be gathered from the attending circumstances in a given case. In the case under consideration, the appellant started taking eatables from the hotel of the deceased Anjanabai which was objected to as a result of which the accused left. However, he returned back after about half an hour with an axe hidden under his clothes and assaulted with the said axe on the head of the deceased and also caused the other injuries. The act of the accused was pre-meditated; the weapon used is axe; part of the body on which blow was given is head which is vital part of human body and what is pertinent is that the said blow was given with great force resulting in compound fracture of right frontal bone as a result of which bones broke into pieces in the area of 3" x 1" and the bone was separated from the vault. Besides this, there was fissured fracture radiating from the margine of cut end of vault linear; contusion with blood clots in anterial cranial fossa corresponding to right orbit blood clots adherent as well as contusion of brain in right fronto-parito-temporalo region of base of brain. Medical Officer has categorically opined that the death was due to head injury. The intention to kill is thus apparent from the above circumstances. It is not a case of single blow or a blow having been given either on the spur of moment in a sudden quarrel or as a result of provocation, but it is a pre-meditated act of the accused who returned back after about half an hour of the initial incident with an axe hidden in his clothes and assaulted with great force with axe on the head of Anjanabai resulting in injuries leading to the death of deceased. In our opinion, the offence in question clearly falls under Section 302 of the Indian Penal Code since there is intention on the part of the accused/appellant to kill the deceased. In view of this, we do not find any merit in the submission of learned Advocate for the appellant that the offence in question needs to be scaled down to Section 326 IPC or 304 Part-I IPC.

10. For the aforesaid reasons, we do not find any merit in this appeal and the appeal is hereby dismissed.

Appeal dismissed.