Criminal Appeal No.64 of 2005

21st February, 2008

Petitioner Counsel: Ms. M. T. BIRADAR
Respondent Counsel: Shri. S. D. KALDATE

Cases Cited:
Chinnathaman Vs. State, Rep. by Inspector of Police, 2008 ALL MR (Cri) 565 (S.C.) [Para 16]
G. S. Walia Vs. State of Punjab, 1998 CRI.L.J. 2524 [Para 16]
Brij Lal Vs. State, 2004 CRI.L.J. 1873 [Para 16]
Kabiraj Tudu Vs. State of Assam, 1994 CRI.L.J. 432 [Para 16]
Virsa Singh Vs. State of Punjab, 2007 ALL SCR (O.C.C.) 33 : AIR 1958 SC 465 [Para 17]

JUDGMENT

P. R. BORKAR, J.:- Accused Ganesh has filed this appeal being aggrieved by his conviction under Section 302 of Indian Penal Code (IPC) for causing death of Devidas Rajaram Gaikwad and under Section 326 of IPC for causing grievous hurt to Nandabai Santosh Wagh with knife; and sentenced for offence under Section 302 of IPC to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- in default to suffer further rigorous imprisonment for one year and for offence under Section 326 of IPC to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- in default to suffer further rigorous imprisonment for six months. The order of conviction and sentence is passed by IVth Ad-hoc Addl. Sessions Judge, Jalgaon on 30.06.2004 in Sessions Case No.172 of 2003.

2. The prosecution case is that Ratnabai is sister of appellant Ganesh. On 14.10.2003 Ganesh was working as a Cook in Gulmohor Hotel at Kingaon, Tal.-Yawal, Dist.-Jalgaon. At that time Ravindra Kisan Bhoi (P.W.4) was working there as a Waiter. Deceased Devidas Gaikwad, Dipak Bhoi (P.W.2) and one Imran Khatik had gone to the hotel on 14.10.2003 and they were taking meals. At that time Ravindra (P.W.4) asked deceased Devidas as to who had given him bracelet (chain). Deceased Devidas replied that it was given to him by his sister's friend Ratna. Appellant Ganesh questioned Devidas why he was defaming his sister and there was scuffle between deceased Devidas and appellant Ganesh. They were separated by owner of the hotel. They went away.

3. On 15.10.2003 at about 6.30 p.m. in front of the house of appellant Ganesh, he stabbed Devidas with knife on his abdomen, chest, back etc. On seeing this, Nandabai who is sister of deceased Devidas intervened. According to her the quarrel was on account of bracelet. When she rescued Devidas, appellant Ganesh also stabbed her on left side of abdomen. She fell down. Devidas also fell down on sustaining injuries. Appellant Ganesh ran away with the knife. Nandabai (P.W.1) so also deceased Devidas were shifted to Civil Hospital, Jalgaon. Both were unconscious. Nandabai regained consciousness on 17th October, 2003 and police recorded her statement in the Civil Hospital. She was in hospital for eight days. Devidas was also unconscious till 18.10.2003. Statement of Nandabai (P.W.1) was treated as FIR and offences under Section 307, 504, 506 of IPC were registered. Devidas died on 24.10.2003 at 2.30 p.m. in the Civil Hospital and thereafter offence under Section 302 of IPC was registered.

4. Main evidence against the appellant is evidence of eye-witnesses Nanda (P.W.1) and Dipak Bhoi (P.W.2). Both stated as per prosecution case narrated above. Dipak Bhoi (P.W.2) was present in the Gulmohor Hotel when there was scuffle between appellant Ganesh and deceased Devidas. Absolutely, there is no reason to disbelieve either of the two eye-witnesses. Ravindra (P.W.4) has supported the incident in the hotel which took place on earlier day. The accused/appellant in his statement under Section 313 of Cr.P.C. while answering question No.43 stated that deceased Devidas had defamed his sister and she had no love affairs with Devidas and the incident occurred due to anger on his part. While answering to question No.40 the accused/appellant stated that on 15.10.2003 Devidas had come to his house at 7.00 p.m. and the appellant asked why he was defaming appellant's sister. At that time deceased told the appellant that his sister had given him chain (bracelet) and then started abusing him. It is case of the appellant that it was deceased who took out knife and there was scuffle between the two. By that time Nanda also came and she received injury of knife which was in the hand of Devidas. Appellant did not stab Devidas, but during scuffle Devidas fell on appellant and therefore he might have sustained injury with knife. No such case was put to either Nanda (P.W.1) or Dipak (P.W.2) who were eye witnesses to the incident. Their cross-examination is just full of denials.

5. The evidence of Nanda (P.W.1) is supported by her statement recorded by police immediately after she regained consciousness which is treated as FIR. The appellant and said witnesses are residing in same village nearby house of Nanda (P.W.1). Distance between her house and house of the appellant is about 100 ft. and they were knowing each other from childhood. According to Nanda (P.W.1), the incident took place soon after sunset and there was slight darkness and it was not that there was total darkness. Nanda (P.W.1) further identified her own clothes, clothes of deceased, knife and clothes on the person of appellant, which were of bloodstained.

6. If we consider injuries on the person of deceased Devidas, the defence does not appear to be true. It is afterthought defence. Dipak Bhoi (P.W.2) stated that at the time of incident he was sitting near Samaj Mandir along with 3-4 persons and it was about 50-60 ft. distance from the spot of incident and they had taken both injured Devidas and Nanda to the Civil Hospital.

7. Dr. Wani (P.W.12) stated that on 15.10.2003, he was on duty as Medical Officer at the Civil Hospital, Jalgaon. Devidas Rajaram Gaikwad was brought to hospital. He had several injuries and they were as follows :-

(1) Stab wound over abdomen in epigastric region with expulsion of omentum and intestine by 4" x 2" with clear-cut margins.

(2) Stab wound over chest 3rd & 4th intercostal region of sternum with clean cut margins 2" x 1" with fresh blood oozing.

(3) Dislocation of left elbow with fracture left radius and ulna shaft at lower third.

(4) Incised wound over right thigh antero lateral surface 1" x 1/2" transverse.

(5) Stab wound over greater curvature of stomach with 4 cm in diameter.

(6) Stab wound over pylorus 2.5 cm in size.

(7) Several lacerations on first part of mesentery with one litre of blood in peritoneal cavity.

Doctor further stated that nature of injuries at Sr. Nos.1 to 3 and 5 to 7 were grievous and probable cause was due to hard, sharp and pointed object. He further stated that Devidas died on 24.10.2003 at about 2.30 a.m.. He died due to above said multiple injuries due to septicemia. He further stated that the injuries caused to Devidas were sufficient in the ordinary course of nature to cause death. There is no cross-examination of Dr. Wani.

8. Dr. Wani (P.W.12) also proved injury to Nanda (P.W.1) and it was one stab wound on left side chest just below tenth rib on right lateral surface oblique in direction admeasuring 3 cm x 2 cm x 2 cm and fresh blood was oozing. The injury was caused within six hours. He proved Injury Certificate at Exh.42. He further stated that injury to Nanda was on vital part of the body and she would have died if medical treatment had been given to her immediately. This evidence of the Doctor also went unchallenged as his cross-examination was declined.

9. The injuries to Devidas and Nanda as stated above cannot be said to be accidental injuries with knife in the hands of deceased Devidas, particularly, injury No.7 to Devidas was several lacerations on first part of mesentry with one litre of blood in peritonial cavity. It is not a case of one or two injuries, but there are more than seven injuries to Devidas and one injury to Nanda. We cannot accept defence story which is afterthought, disclosed for the first time in statement recorded under Section 313 of Cr.P.C. The appellant did not sustain any injury. Moreover, no reason is given why Devidas should go to the house of appellant and question him or abuse. The incident of the earlier day shows that it was the appellant who was aggrieved because according to him by taking name of his sister, falsely, she was being defamed by the deceased.

10. So far as the statement of the accused that the incident had taken place due to anger is concerned, one night and almost a day had passed after the incident in the hotel and there was no reason to attack Devidas and cause him so many injuries and also to inflict injury to Nanda merely because she had intervened. Not only the injuries were sufficient in the ordinary course of nature to cause death, but they indicate that there was intention to cause death of Devidas. Moreover, injury to Nanda is concerned, it was grievous and it was likely to cause death. Dr. Wani has stated that injury to Nanda would have caused her death, had she not received treatment in time and therefore injury to Nanda comes under Section 320, Clause eighthly of IPC as hurt was endangering life of Nanda. It was caused with a deadly weapon viz. knife. Therefore, offences under Sections 302 and 326 of IPC are proved by the prosecution.

11. Moreover, there is also corroboration to above said evidence by way of Dying Declaration of deceased Devidas. P.I. Devendra Shinde, who is examined as P.W.11 at Exh.30 has stated that he took over investigation from Mr. Patil on 18.10.2003. On the same day he visited the Civil Hospital, Jalgaon, contacted Medical Officer on duty. The Doctor certified after examination that Devidas was conscious and fit to give statement and accordingly he recorded Devidas's statement, which is proved at Exh.31. It is also stated that after recording the contents, the contents were read over to Devidas. He admitted the same to be correct and thereafter signed the statement. Absolutely, there is no cross-examination on this point. P.I. Shinde stated that no relative of Devidas was present when he recorded statement of Devidas. Dr. Pankaj Wadile who is examined as P.W.16 at Exh.53 has corroborated the said Dying Declaration. He stated that when he was on duty, Police Officer came. The Police Officer wanted to record statement and therefore Dr. Wadile examined the patient Devidas Gaikwad and found him in conscious and fit to give statement and able to speak properly. Thereafter, in his presence his statement was recorded. The statement was read over and it was admitted to be correct by Devidas. His signature was obtained. The Doctor proved said statement Exh.31, on which there is his endorsement which is given Exh.54. The Doctor denied that Devidas was not unconscious and was not able to speak. There is no cross-examination on this point.

12. Besides this the prosecution has examined panch witness Narayan Salukhe to prove spot panchanama (Exh.16). It was drawn on 18.10.2003. Since it was drawn after three days, no indications of the incident were there, however, Grampanchayat tap was seen nearby. That supports the case of Nanda that she had gone to fetch water and on seeing the incident, tried to intervene. The incident took place in front of house of one Ashok Sonawane. House of the accused/appellant is also on one side of the place of incident.

13. The accused had admitted post-mortem notes at Exh.46 and the probable cause of death was stated to be shock due to septicemia due to peritonitis due to stab injury. According to Police, the accused/appellant discovered knife and his blood-stained clothes. However, panch Ganesh Bhoge (P.W.7) has turned hostile. However, Investigation Officer has supported about said discovery.

14. The Chemical Analyser report is also produced on record. The muddemal articles were sent to Chemical Analyser. Clothes of accused/appellant were bloodstained. The accused/appellant was arrested on 18.10.2003 and not immediately after the incident.

15. Absolutely, there is no reason shown to disbelieve evidence of Nanda (P.W.1) and Dipak (P.W.2), who are eye-witnesses. Coupled with other evidence on record, in our opinion the prosecution has successfully proved the incident.

16. Some authorities were cited before us by learned advocate for the appellant and stated that the offence is not punishable under Section 302 of IPC, but it would be lesser offence.

First case cited is Chinnathaman Vs. State, Rep. by Inspector of Police, 2008 ALL MR (Cri) 565 (S.C.). In that case, there was no premeditation or pre-plan on the part of the accused. The deceased had asked accused to talk in a decent manner and had hardly turned his back to leave the field when accused delivered a blow with sickle on the back of deceased. The case is said to fall under exception 1 to Section 300 of IPC and therefore the accused was punished under Section 304, Part II of IPC.

Second case cited is G. S. Walia Vs. State of Punjab and others, 1998 CRI.L.J. 2524. In that case the accused used iron bar and axe. Deceased died as a result of injuries caused to him. However, para 6 shows that as per evidence of Doctor, death was on account of Pulmonary Embolism which means blocking of the main artery to the lungs by a piece of clot detached from any other part of the body. This is remote complication of prolonged bed rest which was in that case due to the multiple injuries. The injuries themselves were not sufficient to cause death in the ordinary course of nature and were only indirectly responsible to cause death due to a remote complication which in that case was unavoidable. So in the fact of the case the accused was convicted under Section 325 r/w. 149 of IPC.

The third case cited is Brij Lal Vs. State, 2004 CRI.L.J. 1873. The Allahabad High Court considered case of solitary blow on abdomen which was caused with knowledge that it would cause death. In the facts of the said case, it is held that there was no intention to cause death. So, punishment was awarded for offence under Section 304, Part II of IPC.

The last case cited before us is Kabiraj Tudu Vs. State of Assam, 1994 CRI.L.J. 432. In that case the accused who was armed with bow and arrow chased his wife and shot arrow causing injury to her resulting into death. It was held that though accused was not having any intention, but having knowledge of every likelihood of causing death and so conviction was altered from Section 302 to Section 304, Part II of IPC.

In our opinion, none of these cases are applicable to the case before us.

17. In the facts and circumstances of the present case, there was necessary motive in as much as the appellant was angry because he felt that deceased Devidas was defaming his sister Ratna. There was quarrel on earlier day. Thereafter, about 24 hours had elapsed. As many as seven injuries were caused on deceased Devidas with deadly weapon like knife. The injuries were on vital parts and so offence committed by the accused/appellant is under Section 302 of IPC. He caused injuries which were sufficient in ordinary course of nature to cause death and he had also intention to cause death. Here we may refer to case of "Virsa Singh Vs. State of Punjab" AIR 1958 SUPREME COURT 465 : [2007 ALL SCR (O.C.C.) 33]. In that case the Court considered clause Thirdly of Section 300 of I.P.C.. Paras 12 & 13 of that case lay down that if it is proved that there was an intention to inflict a particular bodily injury, and if nature of the injury is such as that in the ordinary course of nature, it is sufficient to cause death, that would be sufficient.

18. Learned Advocate also referred to plea taken by the appellant in Criminal Application No.1870 of 2006 filed in this Criminal Appeal, that the appellant was less than 18 years of age on the date of incident. Copy of judgment delivered by Division Bench on 21.12.2006 in Criminal Application No.1870 of 2006 is on record. Not only the claim of the appellant of he being below 18 years was found to be false, but in view of the manipulation of false date of birth by incorporating correction in birth register, this Court directed prosecution of father of the appellant i.e. Yuvraj Tayade. It also directed enquiry to be made by the District Magistrate, Jalgaon against Executive Magistrate who ordered correction in the registration of birth date. The Court also found that absolutely on flimsy material the order was passed by the Executive Magistrate that too after decision of Sessions Court, simply to help the appellant.

19. In the facts and circumstances of the case, in our opinion, there are no merits in the appeal and in the submissions made before us by the learned Advocate for the appellant. This appeal deserves to be dismissed.

20. In the result, the Criminal Appeal is dismissed.

Appeal dismissed.