Criminal Appeal No.255 of 1999

20th January, 2004

Petitioner Counsel: Shri. JOYDEEP CHATTERJI
Respondent Counsel: Shri. N. N. JADHAV

Cases Cited:
State of Karnataka Vs. Shivlingayya, AIR 1988 SC 115 [Para 10]
Surinder Kumar Vs. Union Territory of Chandigarh, AIR 1989 SC 1094 [Para 10]

JUDGMENT

MARLAPALLE, J. :- This Criminal Appeal arises from an order of conviction and sentence passed by learned II Additional Sessions Judge, Jalna in Sessions Case No.29/94 and the appellants accused were convicted for an offence punishable under Sections 302 r.w. 34 of I.P.C. (hereinafter referred to as the Code for short) and they have been sentenced to suffer life imprisonment and to pay a fine of Rs.1,000/- each in default to suffer further R.I. for one year.

2. The prosecution case unfolds thus :

The accused nos.1 and 2 are husband and wife and resident of village Motigavan in Jalgaon district. The deceased Asaram was married in the same village and continued to stay there. He was working with accused no.1 and was on visiting terms with the accused. The accused no.2 had alleged that on 27-8-93 deceased Asaram had entered her house in the absence of her husband and children at about 6 p.m. when it was running heavily and raped her. On the next day morning i.e. on 28-8-1993, while the accused were proceeding to report to the police station, deceased Asaram prevented to bring them from going to the police station to lodge a complaint and he started scuffling with the accused no.1. The accused no.2 therefore, noticing that deceased Asaram had over powered the accused no.1 caught hold of his genitals and facilitated accused no.1 to give blows by a knife (article no.1). This incident was witnessed originally by the complainant Madhav Gore who died during the pendency of the trial as well as Kisan Mohite (P.W.2), Pandurang (P.W.3) and Pralhad Mohite (P.W.4). The victim was taken to the hospital at Jalna in a tractor and on the other hand the accused went to the police station at Moujpuri and lodged a complaint (Exh.52) against deceased Asaram for an offence punishable under Section 376 of the Code and also stated that Asaram was injured by knife blows and the knife was produced before the P.S.I. Andhale (P.W.8). Seizure panchanama (Exh.37) was made. The head constable Babulal Labhange (P.W.7) who visited village Motigavan and undertook further investigation while he was proceeding towards the said village he met the injured who was being transported to Jalna by a tractor and recorded his dying declaration at Exh.40 at about 10.45 a.m. on the same day. The doctor at Jalna hospital directed that the victim be taken to Government Medical College Hospital at Aurangabad as he was in serious condition. Then the victim was brought by the police to the Ghati hospital at Aurangabad. The doctor on examination declared him dead. Madhav the complainant filed his complainant at Exh.42 which came to be registered as F.I.R. for an offence punishable under Sections 307 r.w. 34 of the Code. However, on the demise of the victim Asaram said complaint was converted for an offence punishable under Sections 302 r.w. 34 of the Code. However, investigation was conducted by Venkat Andhale (P.W.8). Blood stained clothes of the deceased were sent for chemical analysis alongwith weapon (knife) as well as blood samples of the deceased and accused. The dead body was sent for post mortem and Dr. Anil Digambarrao Jinturkar (P.W.5) performed post mortem between 7 to 8 p.m. on 28-8-93 (vide Post Mortem Notes, Exh.32). The accused came to be arrested on the same day and on completion of investigation charge-sheet came to be filed as the offence was triable by the Sessions Court.

3. The Judicial Magistrate, First Class committed the case to the Sessions Court at Jalna on 19-2-94. Charge was framed at Exh.11 against both the accused under Sections 302 r.w. 34 of the Code on 14-8-96 and the accused denied the charge and claimed to be tried.

4. In addition to the 3 eye-witnesses referred to hereinabove panch witness P.W.1 Fakir Mohite examined to prove spot panchanama. Damodhar Adhane who had prepared inquest panchanama Exh.35 were also examined. The knife (article no.1) was found to be stained with blood on its blade and handle and the blood group was 'B' which was also the blood group of deceased and the accused. It is pertinent to note that the accused had taken specific plea that the deceased had raped accused no.2 on 27-8-93 in her house and when the accused questioned him on the next day at about 8 a.m. he got enraged and picked up a quarrel with the accused. In the scuffle he fell down and sustained injuries by knife which he was holding. The accused no.2 examined herself in support of this defence at Exh.58. She admitted that she had held the genitals of the deceased and she did this as the deceased had over powered the accused. She also stated that the incident of rape was told by her to accused no.1 after his arrival at about 7 p.m. and they did not approach to the police patil or sarpanch of the said village nor they went to enquire from the deceased as to why he committed such an offence. In justification of this failure it was stated by her that as it was raining heavily they could not approach any of the villagers or the police station. By considering the evidence of the eye-witnesses the trial Court did not agree with the same justification provided by the accused no.2 in her deposition.

5. Dr. Anil Jinturkar (P.W.5) in his deposition before the trial Court stated that the following external and internal injuries were noticed by him on the deceased :

"EXTERNAL INJURIES :

1. An elliptical obliquely placed stab wound over the chest and right side, anteriorly in the 8th intercostal space, at midclavicular line, it was 2" x 0.75" x lung deep, it was directed medially and upwards, torn tags of underlying pleura were found to be protruding out of the wound, there was oozing of dark reddish colour blood through wound, margins clean cut, inverted, surrounding skin shows blood stains.

2. An elliptical obliquely placed stab wound over the chest and right hypochohorium of abdomen just about 1/2" below and lateral to the injury no.1 and in the 9th intercostal space, it was 2" x 0.75" x liver deep, directed medially downwards in slightly oblique manner, underlying tissue and dark reddish blood oozing out of the wound substance. Margins clean cut inverted, bevelling noticed at left margin of wound, dried blood stains seen over skin in vicinity.

3. I.V. injection sites seen at both cubital fossae.

INTERNAL INJURIES :

03. On internal examination I found congestion of meninges, brain was pale.

04. On internal examination thorax I found that thorasic wall on right side showed the corresponding elliptical stab wound at all layers beneath injury Nos.1 and 2 of col. no.17. Pleura shows clean cut elliptical stab below injury nos.1 and 2 as described in col. no.17, with collection of 310 ml. of reddish fluid blood in right plural cavity, trechea contains reddish frothy blood.

05. Right lung shows collapsed appearance and an oblique stab wound of 2" x 0.75" in size at its lower lobe, dark adherent blood clots seen at this site, involved tissue was friable.

06. Left lung was pale in appearance, pericadium showed petechial hemorrhage.

07. Heart was contracted and right side contained scanty blood left side was empty."

He further stated that the walls showed corresponding stab injury at all the layers beneath injury no.2 of col. no.17. Peritoneum was cut obliquely at right hypondrium and it was measuring 2" x 0.75" in dimension. Peritoneal cavity contained about 450 ml. of dark reddish blood and plenty of blood clots. Liver showed clean cut through and through stab injury of size 2" x 0.75" at its supero lateral aspect of right lobe of liver. Right lung was also damaged. He further stated that these injuries were possible by means of knife and they were sufficient in ordinary course of nature to cause death. These injuries would have been caused within 6 to 12 hours before the post mortem and in his cross-examination, is specifically denied the suggestion that injuries 1 and 2 were possible by means of fall over the knife or in the scuffle. This evidence clearly supports the findings recorded by the trial Court that Asaram died homicidal death on account of the injuries sustained by him by means of sharp weapon like knife on 28-8-93.

6. Coming to the ocular evidence Pandurang Pawar (P.W.3) who was working with Pralhad Mohite (P.W.4) stated that it was a Saturday when the incident had taken place and he was fetching water through the tap infront of the house of his master at a distance about 10 feet towards north side. He noticed that Asaram was proceeding towards the Mangwada alongwtih she-goats and the witness heard shouts and he rushed towards Asaram. He found that accused no.2 had caught hold of the genitals of Asaram and accused no.1 had caught hold of his collar by one hand while he was holding knife in his other hand. Thereafter, accused no.1 inflicted injury by means of knife in the stomach of Asaram which resulted in a bleeding injury and at that time Pralhad (P.W.4) and Kisan Mohite (P.W.2) also rushed to the spot. Asaram fell on the ground while accused nos.1 and 2 went away with the knife. In the cross-examination he stated that deceased Asaram and accused no.1 were on friendly terms and there was no rain during the earlier night though it had rained after the incident on 28-8-93. He denied a specific suggestion that Asaram was holding knife and he was to give a knife blow to the accused in this scuffle that had taken place between them. He also denied that Asaram had taken out knife from his hand and assaulted to accused no.1. Further suggestion that accused no.1 snatched knife from the hand of Asaram while proceeding towards police station was also denied by the said witness.

The evidence of Pralhad Mohite (P.W.4) and Kisan Mohite (P.W.2) supported the descriptional incident as narrated by Pandurang Pawar (P.W.3). It is pertinent to note that in the complaint at Exh.42 filed by Madhav names of Pralhad Mohite as well as Kisan Mohite were set out and so far as the third eye-witness Pandurang (P.W.3) is concerned he was named as servant of Pralhad Mohite. These witnesses had while describing the blows inflicted on Asaram by accused no.1 by knife had stated that he inflicted a blow on his chest/stomach. They did not specify whether multiple blows were inflicted whereas it has come in the evidence of Dr. Anil Jinturkar (P.W.5) that atleast 2 blows were inflicted on Asaram by knife. One was on the chest and the other one was at the junction of the chest and abdomen. These minor variations regarding description of the injuries need not come in the way of accepting their testimony as reliable as has been accepted by the trial Court and more so when the medical evidence corroborated the attack described by each one of them.

7. The medical evidence also shows that the injuries found on the person of deceased Asaram can be sustained by sharp edged weapon like knife. The said weapon (Article No.1) was produced by Pralhad the accused no.1 himself. He went with accused no.2 to lodge a complaint at the Moujpuri Police Station and it was seized under seizure panchanama at Exh.37. The cause of death as described by doctor was hemorrhagic shock due to stab injury of chest and abdomen involving liver and lung.

8. The accused having taken specific defence plea were required to prove the same and in that zeal the accused no.2 examined herself before the trial Court. Whereas the accused no.1 declined to examine any defence witness. In reply to question no.17 in his statement recorded under Section 313 of Cr.P.C. he described the incident to have occurred in the following manner :

"One day prior to the incident i.e. on Friday in the evening at about 6.7 p.m. deceased Asaram committed rape on accused no.2. In the evening at about 7 p.m. when I came to the house accused no.2 disclosed about the rape. Therefore, I asked to accused no.2 to go to police station in the morning on next day. Therefore, in the morning at about 8 a.m. I alongwith accused no.2 proceeded towards police station but on the way Asaram prevented us. Therefore, scuffle took place between me and deceased Asaram. At that time rain was showering. Due to muddy earth Asaram slipped and fell on the ground and got sustained injury from his knife. Thereupon he got up and rushed towards me. Thereupon I snatched the same and rushed towards the police station."

9. The defence plea as raised by accused no.1 has been falsified by ocular evidence of (P.W.2) Kisan and Pandurang (P.W.3) and Pralhad (P.W.4). The defence did not bring on record any evidence to show that any of them were interested witnesses or they have any reason to involve the accused in false incident of assault. The evidence of these 3 eye-witnesses is not impaired in any manner and the defence as put up by accused no.2 had contradicted her own statement made in the complaint Exh.52. In the said statement she had clearly concluded that while she was proceeding to the police station alongwith her husband deceased Asaram was present opposite the house of Dr. Jagan and at that time there was some argument between the two in which Asaram was assaulted by the accused. The story of Asaram being aggressive and armed with knife including his sustaining the injury by the very same knife when he fell down on the ground is total improvisation and therefore, the trial Court rightly rejected the said defence.

10. Coming to the issue of sentence Shri. Chatterji, learned counsel for the accused submitted that the incident taken as it appears to have been at the spur of the moment and accused were provocated by deceased. The offence would therefore at the most fall within the ambit of Section 304, Part-I or Part-II of the Code and in any case not under Section 302 of the Code. He further submitted that if the case of accused no.2 is taken as it is she was not armed with any weapon. She has not caused any injuries that resulted in the death of Asaram. Therefore, there is no case of offence under Section 302 of the Code involving her. In support of these arguments reliance has been placed on the decision in the case of State of Karnataka Vs. Shivlingayya reported in AIR 1988 SC 115. These arguments do not convince to us more particularly by taking into consideration the alleged earlier incident that had purportedly taken place in the house of the accused. The accused no.1 was armed with a deadly weapon and we had occasion to see the same when the muddemal article was produced before us. The spot of incident is about 15 feet away from the house of the accused and accused no.2 by holding genitals of the deceased had virtually disarmed him and therefore, the accused no.1 could catch hold of the collar of the deceased by one hand and inflicted blows with the knife by his right hand. It was premeditated act to attack the deceased and the accused no.1 did not stop on giving single blow. This issue was considered by the trial Court at great length by referring to different enunciations. The facts as obtained in the instant case clearly show that the decision relied upon by Shri. Chatterji does not apply. Shri. Chatterji relied upon in the case of Surinder Kumar Vs. Union Territory of Chandigarh reported in AIR 1989 SC 1094. The Exception 4 to Section 300 of the Code has been illustrated and it has been stated that to invoke this Exception four requirements must be satisfied viz. (I) It was a sudden fight (II) There was no pre-meditation (III) The act was done in heat of passion and (IV) Assailants had not taken any undue advantage or acted in cruel manner. None of these 4 Exceptions are present in the instant case.

11. It will not be possible to distinguish and support the case of accused no.2 from accused no.1. The common intention which they shared in committing the offence had developed right in their house and translated in public road about 15 feet away from their house. The possession of the deadly weapon with accused no.1 clearly indicated that there was pre-meditation of minds to carry out the common intention of assaulting the deceased Asaram in which he lost his life. The injuries inflicted were on vital parts and though injuries were attributed to accused no.1, there is no doubt that the accused no.2 participated in the crime and facilitated the accused no.1 in inflicting multiple blows. The intention was writ large and accused succeeded in their mission. On the basis of the defence that had taken the trial Court on one more reason to draw inference and rightly rejected the plea of diluting the sentence. The view taken by the trial Court is well reasoned and sound and therefore, we confirm the same.

12. In the result the Appeal fails and the same is hereby dismissed. The order of conviction and sentence dated 21-4-99 in Sessions Case No.29/94 passed by the learned II Additional Sessions Judge at Jalna is hereby confirmed.

13. The accused no.2 has been released on bail. The bail order is hereby cancelled and she is directed to surrender to undergo the sentence forthwith. Accused No.1 has been reportedly absconding for the last about 2 and 1/2 years. The D.I.G. Prisons, Aurangabad and the District Superintendent of Police, Jalna are hereby directed to take the accused in custody and commit him to the jail concerned for undergoing the sentence as ordered by the trial Court. This shall be done within a period of 4 weeks and the officers concerned shall submit a compliance report to the registry of this Court through the learned Additional Public Prosecutor.

Appeal dismissed.