2007 ALL MR (Cri) 1581
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

A.S. BAGGA AND S.P. KUKDAY, JJ.

Dnyaneshwar Ramdas Gadhve & Anr. Vs. State Of Maharashtra

Criminal Appeal No.716 of 2004,Cri. Revision Application No.485 of 2004

24th November, 2006

Petitioner Counsel: Shri. R. N. DHORDE,Shri. U. S. MALTE
Respondent Counsel: Shri. P. M. SHINDE,Shri. N. C. GARUD

(A) Penal Code (1860), S.302 r/w. S.34 - Common intention - Murder case - Common intention presupposes prior consent - It requires a pre-arranged mind and prior meeting of minds - The inference of common intention cannot be reached unless it is necessary inference deducible from the circumstances of the case. (Para 13)

(B) Penal Code (1860), S.302 - Murder case - Single blow - It cannot be said as a rule of universal application that whenever one blow is given S.302 is ruled out. 2006 AIR SCW 3419 - Ref. to. (Para 14)

(C) Penal Code (1860), S.300, Thirdly - Murder case - Intention to inflict injury - Question is not whether the person intended to inflict a serious injury or a trivial one, but whether he intended to inflict the injury that is proved to be present.

Under clause "thirdly" of Section 300 of the Indian Penal Code, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. The question is not whether the person intended to inflict a serious injury or a trivial one, but whether he intended to inflict the injury that is proved to be present. The question so far as the intention is concerned, is not whether he intended to kill or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question once the existence of the injury is proved, the intention of cause, it will be presumed unless the evidence or circumstances warrant an opposite conclusion. 2007 ALL SCR (O.C.C.) 33 - Rel. in. [Para 16]

Cases Cited:
Virsa Singh Vs. State of Punjab, 2007 ALL SCR (O.C.C.) 33 : AIR 1958 SC 465 [Para 15]
Bunnilal Chaudhary Vs. State of Bihar with Magister Chaudhary Vs. State of Bihar, 2006 ALL MR (Cri) 2640 (S.C.)=2006 AIR SCW 3419 [Para 18]


JUDGMENT

A. S. BAGGA, J.:- This appeal and the revision application are directed against the judgment and order dated 29-10-2004, passed by learned 2nd Ad-hoc Additional Sessions Judge, Ahmednagar in Sessions Case No.162/2003, whereby the appellants (original accused Nos.2 and 3) have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and each of them is sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer further R.I. for one month. By the same judgment, the original accused No.1 Ramdas is acquitted. The original accused Nos.2 and 3 namely Dnyaneshwar and Raghavendra @ Sopan have preferred appeal against their conviction while the revision application has been filed by the complainant, who is aggrieved by the order of acquittal of original accused No.1 Ramdas.

2. The prosecution case, briefly stated, is as follows :

The complainant Shivdas happens to be brother of the deceased - victim Shambhudas. Their father Shankar (examined as P.W.12) happens to be real brother of original accused No.1 Ramdas. Original accused Nos.2 and 3 are the sons of original accused No.1 Ramdas. The relations between Shankar, his son complainant Shivdas and deceased Shambhudas on the one hand and the accused persons on the other were strained. There were serious disputes between them over partition and allotment of portion of land Gat No.1053. Though the land had been partitioned, their father, long back, amongst three brothers i.e. Shankar (examined as P.W.12 - father of complainant Shivdas) and Ramdas (original accused No.1) and the third brother, who was step-brother namely Pandurang, but the accused persons demanded reopening of the partition. Not only there was litigation but there were threats given by the accused persons for fulfilling their demands.

3. The incident in question took place on 12-7-2003 at about 11.30 a.m. in the land Gat No.1053, known as "Wagh-dara", situated at village Ranjangaon Mashid, Taluka Parner, District Ahmednagar. It is stated that Shambhudas (deceased victim), the brother of complainant Shivdas, accompanied by servant (Salkari) Narayan Sakharam Sidankar (examined as P.W.9), had gone to the field for carrying agricultural operations in the morning. Thereafter at about 11.30 a.m., Shivdas, the complainant went in the field along with meals for the victim Shambhudas and Salkari. He saw that Shambhudas (deceased) was being beaten by the accused persons. He also tried to separate the quarrel. The accused persons, it is stated, agitated and demanded as to why the complainant and his father and brother were not repartitioning the land. It is stated that, the original accused No.2 Dnyaneshwar caught hold of Shambhudas and original accused No.3 Raghavendra suddenly took out a knife from his pocket and inflicted stab injury on Shambhudas. On sustaining injury, Shambhudas fell on the ground and the accused persons ran away from the spot. The knife which was used for the commission of offence was left on the spot.

4. Shivdas (complainant) made hue and cry. Hearing this, Raosaheb Vithal Gadhve (examined as P.W.11), working in the nearby field, came on the spot. Shivdas first went to the village and requested Siddheshwar Nagnath Shete (examined as P.W.13) to inform the police station about the occurrence. Siddheshwar accordingly gave telephone message to the police. Shivdas informed about the occurrence to his father Shankar (P.W.12) and they came to the spot again.

5. The Police Inspector Lawange of Parner Police Station, in pursuance of the telephonic message from Siddheshwar Shete, recorded complaint of Shivdas and got the offence registered. Inquest on the dead body of the deceased was conducted between 2.15 and 3.30 p.m. on the same day and the spot panchanama was drawn. Post-mortem on the dead body was conducted at 4.30 p.m. on the same day by autopsy surgeon Dr. Dangre, attached to Public Health Centre, Parner.

6. During investigation, the blood stained clothes of the complainant were seized. The blood stained clothes of the deceased were also seized on 12-7-2003. Accused Nos.2 and 3 were arrested on 19-7-2003. It was at the instance of Raghavendra (original accused No.3) that the knife was recovered in pursuance of disclosure statement of original accused No.3 Raghavendra.

7. Charge-sheet was filed and all the original accused Nos.1 to 3 came to be tried before learned Sessions Judge. Before learned trial Judge, apart from panch witnesses and other witnesses, the oral evidence of complainant Shivdas was recorded. Their servant Narayan Sakharam Sidankar (P.W.9), neighbour Raosaheb Vithal Gadhve (P.W.11), Siddheshwar Nagnath Shete (P.W.13), who informed the police on telephone and Shankar, father of the complainant were examined. Apart from these witnesses, one Babai Wagale (P.W.8), who happens to be the elder sister of accused No.1 as also the father of the victim were examined in support of the prosecution case about the quarrel between the brothers with regard to the partition and the motive for the crime. Learned trial Judge accepted the evidence as was led by the prosecution. The learned Judge was satisfied that the original accused persons had gone to the field Gat No.1053 at about 11.30 a.m. and it was there that Raghavendra (original accused No.3) had inflicted blow on the deceased with knife, as a result of which the deceased died. Learned Judge, however, found in evidence that there was no specific act done by original accused No.1. Holding that the witnesses have vaguely stated that the accused persons beat the deceased and the witness No.2. Since the evidence was led that the accused No.2 Dnyaneshwar had caught hold of the victim and accused No.3 Raghavendra had given stab by knife, learned Judge proceeded to acquit the original accused No.1 Ramdas, the father of original accused Nos.2 and 3. Both the brothers (original accused Nos.2 and 3), however, were found guilty and they have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code as stated by us in the initial paragraph of this judgment. Hence the appeal against conviction by original accused Nos.2 and 3 and the revision by the original complainant against the order of acquittal of original accused No.1.

8. We have heard Shri. R. N. Dhorde, learned counsel for the appellants in Criminal Appeal No.716/2004, Shri. N. C. Garud, learned counsel for the petitioner in Criminal Revision Application No.485/2004 and Shri. P. M. Shinde, learned A.P.P. in the matter. We have gone through the oral evidence recorded in this case as also the documents exhibited and proved. The statement of accused persons recorded under the provisions of Section 313 of the Criminal Procedure Code are looked into by us, finally we have perused the impugned judgment.

9. At the outset, it would be noted that the original accused No.1 Ramdas happens to be real brother of the father of complainant Shivdas. The original accused Nos.2 and 3 are sons of original accused No.1. The deceased Shambhudas was the real brother of complainant Shivdas and Shankar (P.W.12) is real brother of original accused No.1. It has come in the evidence of Shivdas, the complainant that his father Shankar (P.W.12), their servant Narayan (P.W.9) and most importantly in the evidence of Babai (P.W.8), who happens to be the sister of original accused No.1 Ramdas and also of Shankar (P.W.12) that there was dispute between the accused persons on the one hand and the complainant party on the other, with regard to the land and its partition. That there was litigation and the accused had demanded reopening of the partition. There were threats given by accused persons if their demand was not fulfilled.

10. The prosecution case with regard to the assault on the deceased has been narrated in para No.3 of the judgment. The incident, as stated in that para, took place on 12-7-2003 at about 11.30 a.m. in Gat No.1053, known as "Wagh-dara". The case of the prosecution is that deceased Shambhudas, who happens to be brother of complainant Shivdas, examined as P.W.2, accompanied by servant (Salkari) Narayan Sakharam Sidankar, examined as P.W.9, had gone to the field for carrying out agricultural operations. On the point of assault on the deceased Shambhudas, the prosecution has, therefore, examined Narayan Sidankar (P.W.9), who is said to have accompanied the deceased Shambhudas. Complainant Shivdas (P.W.2) is said to have gone to the field with lunch box for them. There is direct evidence of Shivdas and Narayan on the point of assault. We have perused the evidence of P.W.2 Shivdas, the complainant as also of Narayan Sidankar (P.W.9). Shivdas has stated that when he reached the field, he saw that Shambhudas was being beaten by the accused with fist. He tried to intervene but the accused persons pushed him. He further stated that it was accused No.3 Raghavendra @ Sopan who took out a knife out of his pocket from his pant and assaulted the deceased on the left portion of his chest, as a result of which deceased Shambhudas fell on the ground and that he (Shivdas) took Shambhudas on his left leg and Shambhudas died. Narayan admittedly was in the field, who has been examined as P.W.9 as stated earlier and he corroborated the version of Shivdas as far as assault by original accused No.3 Reghavendra with knife on the deceased is concerned. The evidence of both these witnesses is not only natural but is further corroborated by evidence of P.W.11 Raosaheb, a neighbouring cultivator, who arrived there on account of shouting by complainant and Narayan. The complainant has deposed to have left the place and contacted Siddheshwar Shete (P.W.13) and requested him to inform the police. There is evidence of Siddheshwar that he informed the police on telephone. The telephone message was received by P.I. Kalyankumar Lawange (P.W.15). He also stated to have received such message. This P.I. Lawange reached the spot and recorded F.I.R. of Shivdas, which is on record at Exhibit 52. The contents of F.I.R. recorded by P.I. Lawange also supports the version of complainant. Spot panchanama and inquest panchanama, which is recorded by P.I. Lawange, lends credence to the prosecution case. We do not see any reason as to why the oral evidence of witnesses Shivdas (complainant), his servant Narayan (P.W.9) and neighbouring cultivator Raosaheb (P.W.11) should not be accepted. There is nothing in the cross-examination of these witnesses which would make their evidence doubtful. On the contrary, we find the evidence in sequence and reliable and trustworthy. On close scrutiny of the evidence of the eye-witnesses, complainant Shivdas and Narayan; and the evidence of recovery of the weapon, we find that the injury on the deceased was caused by original accused No.3 Raghavendra @ Sopan. About the recovery of weapon at the instance of accused No.3, there is evidence of P.I. Lawange (P.W.15) and Santosh (P.W.10). The weapon has been shown to the medical officer, who has stated that the injury found on the person of deceased could have been caused by the said weapon. Learned trial Judge has rightly rejected the suggestion that the injury on the person of the deceased could have been caused by fall on the standing Khurpe. Finally, the presence of complainant Shivdas is also ensured on account of the fact that his clothes were stained with blood. The complainant, in his evidence, stated that he had taken the injured on his leg and, therefore, his clothes were found stained with blood.

11. Dr. Bimbisar Dongre, the autopsy surgeon, who is examined as P.W.3, has proved the post mortem notes, which are on record at Exh.55. On perusal of the post mortem report, it is seen that there is penetrating incised stab wound on the left side of chest admeasuring 5 cm. x 2 cm. It is opined by the autopsy surgeon that the deceased died on account of haemorrhagic shock and due to injury on vital organ - heart by sharp edged weapon. The surgeon has also stated that the injury is homicidal and has been caused by weapon like muddemal knife.

12. On perusal of the evidence of the doctor and post mortem notes and the oral evidence on record, it would be seen that it is a case of serious chest single injury and that the injury has been caused by original accused No.3. Learned trial Judge has found original accused No.1 as not guilty and has proceeded to convict the present appellants with the aid of Section 34 of the Indian Penal Code.

13. Learned counsel for the appellants has argued that since it is a case of single injury and the injury admittedly had been inflicted by original accused No.3 and the fact that the original accused No.3 suddenly took out knife from his pocket, the other accused could not have been convicted with the aid of Section 34 of the Indian Penal Code. In other words, the argument is that the original accused No.2 did not share common intention. It is well settled that common intention presupposes prior consent. It requires a pre-arranged mind and prior meeting of minds. The inference of common intention cannot be reached unless it is necessary inference deducible from the circumstances of the case. In the present case, the evidence is that, all the three original accused arrived and they started beating the deceased with fist. It is stated by complainant Shivdas and Narayan that injury by knife is caused by original accused No.3 Raghavendra @ Sopan. It has been stated by complainant Shivdas that the accused No.3 took out knife suddenly from his pocket. Though Shivdas states in evidence that deceased was held by original accused No.2 when the injury was inflicted by accused No.3, this is not stated by Narayan (P.W.3). Further, it is not stated in the F.I.R. also by Shivdas. Therefore, the oral evidence of Shivdas that the original accused No.2 had held the deceased when original accused No.3 inflicted knife blow is an improvement subsequently made in the evidence. Assuming for a moment that original accused No.2 had held the deceased when the injury was inflicted by original accused No.3, that would not be sufficient to hold that the accused No.2 shared common intention with the accused No.3 particularly in view of the fact that the evidence of Shivdas is that original accused No.3 suddenly took out the knife from his pocket. Further, it was the case of the witnesses that the deceased was initially assaulted by fists. In our considered view, it is difficult in this case to hold that original accused No.2 shared common intention with the original accused No.3. The original accused No.2 (present appellant No.1), therefore, will have to be acquitted of the offence punishable under Section 302 of the Indian Penal Code.

14. The next argument by learned counsel for the appellants is that the offence which is committed by the accused No.3 may not fall under the provisions of Section 302 of the Indian Penal Code. In other words, the contention is that it is an offence of culpable homicide not amounting to murder. True it is that it is a single injury case. It cannot, however, be said as a rule of universal application that whenever one blow is given, Section 302 is ruled out. We have discussed the injuries in earlier paragraphs of this judgment. The injury is caused by knife (Article 6) and the injury is penetrating incised stab wound admeasuring 5 cm. x 2 cm. The injury is caused on left side of chest and it is on the vital organ i.e. heart.

15. In Virsa Singh Vs. State of Punjab (AIR 1958 SC 465 : 2007 ALL SCR (O.C.C.) 33), the Court explained the meaning and scope of clause (3) of Section 300. The prosecution is required to prove the following facts before the case could be brought under Section 300 "thirdly". It must be established quite objectively that the bodily injury is present; secondly the nature of the injury must be proved and thirdly it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

16. The test laid down by Virsa Singh's case for the applicability of clause "thirdly" now ingrained in our legal system and has become part of the rule of law. Under clause "thirdly" of Section 300 of the Indian Penal Code, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. The question is not whether the person intended to inflict a serious injury or a trivial one, but whether he intended to inflict the injury that is proved to be present. The question so far as the intention is concerned, is not whether he intended to kill or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question once the existence of the injury is proved, the intention of cause, it will be presumed unless the evidence or circumstances warrant an opposite conclusion.

17. In the present case, as discussed by us earlier, the injury is penetrating injury caused with the weapon, which is knife and the injury is penetrating stab injury admeasuring 5 cm. x 2 cm. and it is on the chest and it has damaged the heart. The injury, in our considered opinion, is sufficient to result in death. This injury has been caused by original accused No.3 (present appellant No.2 Raghavendra @ Sopan). It is not the case that Raghavendra @ Sopan caused the injury with some agricultural instrument found in the field. We have already held on the basis of material on record that Raghavendra @ Sopan inflicted the injury with knife which he had in his pocket. He went to the field of the complainant along with others with the weapon in his possession. He caused injury which has been described hereinbefore. We are not inclined to hold in this case that the result in death would not amount to murder. We are of the considered view that this case squarely falls under the clause "thirdly" of Section 300 of the Indian Penal Code and is punishable under Section 302 of the Indian Penal Code. The learned trial Judge is right in convicting the present appellant No.2 (original accused No.3) for the offence of murder. We do not accept the arguments of Shri. Dhorde, learned counsel for the appellants in this regard that the accused never intended to cause death and that had he really intended to cause death, he could have inflicted further blows on the deceased.

18. The argument that it was a single injury case and that the death resulted because vital organ of the deceased was injured and, therefore, the case would amount to culpable homicide not amounting to murder, is unacceptable. Learned counsel for the appellants, for his argument, placed reliance on certain reported cases including the case between Bunnilal Chaudhary Vs. State of Bihar with Magister Chaudhary & Ors. Vs. State of Bihar (2006 AIR SCW 3419 : 2006 ALL MR (Cri) 2640 (S.C.)). We have gone through this case which is cited before us. We would like to repeat here that it is not a rule of universal application that whenever one blow is given, Section 302 of the Indian Penal Code is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered. Though in the cases cited before us, the Court, for reasons recorded in those cases held that the offence amounted to culpable homicide not amounting to murder, the present case, for the reasons recorded by us, squarely falls under Section 300 of the Indian Penal Code. We find that the original accused No.3 has been rightly convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

19. In the result, the revision application is dismissed. Criminal Appeal No.716/2004 is partly allowed. Conviction of appellant No.1 Dnyaneshwar Ramdas Gadhve (original accused No.2) for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is set aside and he is acquitted. His bail bonds stand cancelled. The appeal of appellant No.2 Raghavendra alias Sopan Ramdas Gadhve is dismissed. Conviction of appellant No.2 Raghavendra alias Sopan Gadhve (original accused No.3) for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and the sentence imposed upon him is hereby maintained and confirmed.

Order accordingly.