2016 ALL MR (Cri) 2448
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V. K. TAHILRAMANI AND B. P. COLABAWALLA, JJ.

Dinesh Shankar Aakode Vs. The State of Maharashtra

Criminal Appeal No.738 of 2014

25th March, 2015

Petitioner Counsel: Shri ABHAYKUMAR APTE
Respondent Counsel: Shri A.S. SHITOLE, A.P.P.

Penal Code (1860), Ss.302, 304 Part II - Murder or culpable homicide - Determination - Prosecution case that appellant assaulted deceased with gupti on his chest and caused his death - As deceased was having affair with wife of co-accused/informant, both deceased and appellant had worked themselves into a fury on account of verbal altercation - On that count, quarrel took place between deceased and appellant - Then, appellant took out a gupti and gave just one blow on chest of deceased, clear from evidence of eye witnesses and medical evidence - Appellant did not take any undue advantage or acted in a cruel or unusual manner - However, weapon used, part of body where blow was inflicted, nature of injury inflicted and force used while assaulting, would show that appellant intended to cause death of deceased - Thus, case would fall u/S.304 Part I and not u/S.304 Part II or u/S.302 of IPC - Conviction converted accordingly. 2001 ALL MR (Cri) 764 (S.C.) Ref. to. (Paras 13, 14)

Cases Cited:
Gura Singh Vs. State of Rajasthan, 2001 ALL MR (Cri) 764 (S.C.)=(2001) 2 SCC 205 [Para 10]


JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- The Appellant - original Accused No.1 has preferred this Appeal against the judgment and order dated 11th October 2013 passed by the learned Sessions Judge, Greater Bombay in Sessions Case No.402 of 2013. By the said judgment and order, the learned Sessions Judge convicted the Appellant under section 302 of IPC and sentenced him to RI for life and fine of Rs.1,000/-, in default, RI for three months.

2. The prosecution case briefly stated is as under :-

PW 1 - Chanda was married to original Accused No.2 - Hussain Shaikh. Two years after Chanda's marriage with Hussain Shaikh, Hussain was arrested in a case of theft. He was convicted and sent to jail. During that period, Chanda fell in love with Krishna (deceased) and she started residing with him. From Krishna, she had one daughter who was named Pooja. After Hussain was released from jail, he threw Chanda out from the house and told her to go and stay with Krishna. Hence, Chanda started residing with Krishna. As Krishna was addicted to liquor and ganja, quarrels used to take place between Chanda and Krishna. Chanda got fed up with these quarrels, hence she again went and started residing with Hussain. During the period when Chanda was residing with Hussain, Krishna used to come to their house to meet his daughter Pooja. Hussain used to suspect that Chanda was having illicit relations with Krishna. The Appellant was the friend of Hussain.

The incident occurred on 18th February 2013. At about 7.00 p.m. Krishna came to meet his daughter Pooja in slum area under Wadala Bridge. At that time, Chanda was sitting in the house of her brother. Krishna came there, meanwhile at about 7.30 p.m. Hussain went to drink liquor. Thereafter, the Appellant Dinesh asked Chanda with whom she wanted to reside, whether she wanted to reside with Krishna or Hussain. Chanda told Dinesh that she will stay with whosoever she wants. Dinesh then told Chanda not to talk too much, otherwise he will give her a slap. At that time, Krishna who was sitting there tried to convince Dinesh. Dinesh then took out a gupti and assaulted Krishna with gupti on his chest. Krishna fell down. Chanda then went running to Wada Police station and informed them about the incident. Police came to the spot and took injured Krishna to hospital. Police recorded the FIR of Chanda which is at Exh.8. After lodging of FIR, investigation commenced. During the course of investigation, the appellant and co-accused Hussain Shaikh were arrested. The weapon i.e. gupti was recovered at the instance of the Appellant. It was sent to Chemical Analyzer. After completion of investigation, the charge-sheet came to be filed.

3. Charge came to be framed under section 302 r/w 34 of IPC against the Appellant - original Accused No.1 and Hussain Shaikh - original Accused No.2. In addition charge was framed against the Appellant u/s 37(a) of the Bombay Police Act. The accused pleaded not guilty to the said charge and claimed to be tried. The defense of the accused was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted Accused No.2 - Hussain Shaikh, however, the learned Sessions Judge convicted and sentenced Appellant - original Accused No.1 as stated in paragraph 1 above. Hence this Appeal.

4. We have heard the learned Advocate for the Appellant and the learned APP for the State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the below mentioned reasons, we are of the opinion that the Appellant assaulted Krishna with gupti due to which Krishna died.

5. The conviction of the appellant is mainly based on the evidence of three eye-witnesses i.e. PW 1 - Chanda, PW 3 - Aniket and PW 4 - Hamida Khatun. At the time of incident, PW 1 - Chanda was residing with her husband - original Accused No.2 Hussain Shaikh in the slum area near Wadala Bridge, Mumbai. Chanda has stated that she was married to Hussain Shaikh - original Accused No.2. She had one daughter from Hussain Shaikh. Two years after her marriage, her husband was arrested for the offense of committing theft and he went to jail. During that period, she started residing with Krishna. A daughter named Pooja was born to Chanda and Krishna. As Krishna was addicted to liquor and ganja, quarrels used to take place between Chanda and Krishna. Chanda got fed up with these quarrels, hence she again went and started residing with Hussain. During the period when Chanda was residing with Hussain, Krishna used to come to their house to meet his daughter Pooja. Hussain used to suspect that Chanda was having illicit relations with Krishna. The Appellant was the friend of Hussain. Chanda has further stated that on 18th February 2013 at 7.00 p.m. Krishna (deceased) came to meet Pooja. At that time, Chanda was sitting in the house of her brother. Krishna came there, meanwhile at about 7.30 p.m. Hussain went to drink liquor. Thereafter, the Appellant Dinesh asked Chanda with whom she wanted to reside, whether she wanted to reside with Krishna or Hussain. Chanda told Dinesh that she will stay with whosoever she wants. Dinesh then told Chanda not to talk too much, otherwise he will give her a slap. At that time, Krishna who was sitting there tried to convince Dinesh. Dinesh then took out a gupti and assaulted Krishna with gupti on his chest. Krishna fell down. After the incident, Chanda ran to Wadala Police Station and informed the Police about the incident.

6. PW 3 - Aniket was also residing under Wadala Bridge where Chanda was residing alongwith her husband Hussain Shaikh. Aniket has stated that he knew the Appellant, deceased Krishna, Hussain Shaikh (original Accused No.2), Chanda and Hamida who were residing in his area. Aniket has stated that the incident took place on the night of 18th February. At night, he was sitting on a heap of scrap material alongwith Krishna, Hussain, Chanda and Dinesh. A quarrel took place between Chanda and Dinesh. Dinesh asked Chanda whether she wants to reside with Hussain or Krishna. Chanda told him why he was interfering as it was a private matter. Krishna also said that it was a private affair between him and Chanda. On this count, a quarrel took place between Krishna and Dinesh. Then Dinesh took out a gupti and assaulted Krishna on the chest. Chanda then went to the Police Chowki. Meanwhile, Hussain Shaikh and Dinesh ran away. Police came to the spot and took injured Krishna to the Hospital.

7. The last eye-witness is PW 4 - Hamida. Hamida was also residing in the slum area under Wadala Bridge. She was residing there since five years prior to the incident. Hamida has stated that she knew Hussain, Chanda, Dinesh, Krishna and Aniket as they reside in her area. Hamida has stated that Chanda was married with Hussain. Chanda was also married to Krishna. Hamida has further stated that the incident took place at about 9.30 p.m. on 18th February 2013. She has stated that Dinesh, Krishna, Aniket and Chanda were present. Verbal altercation took place between Chanda and Dinesh. It was on account of Krishna coming to meet his daughter Pooja. Dinesh asked Chanda whether she wants to reside with Hussain or Krishna. Thereupon, Chanda said that it was their private affair and Dinesh should not intervene. Dinesh then told Chanda not to talk too much otherwise he would give her a slap. Chanda then again said that it was their private affair and Dinesh should not interfere. Krishna also started convincing Dinesh saying "BHAI JANE DENA, CHOD DE KYU BAT BADHA RAHA HAI, YE HAMARA APAS KA MAMLA HAI". Dinesh then threatened Krishna and assaulted Krishna with gupti on his chest. Chanda went to the Police Station. Police came to the spot and took Krishna with them. Thus, the evidence of PW 1 Chanda, PW 3 - Aniket and PW 4 - Hamida shows that the Appellant assaulted Krishna on the chest with a knife. Nothing has been elicited in the cross-examination of these three eye-witnesses so as to cause any doubt regarding their testimony.

8. It the prosecution case that the appellant assaulted Krishna with a gupti on the chest and caused his death. This is borne out by the medical evidence. PW 5 - Dr Devkar conducted the post mortem on the dead body of Krishna. On examination, he found the following injuries :-

"A spindle shaped stab wound, 2 cm x 1 cm x cavity deep obliquely placed over left side of chest between 6th and 7th ribs, surrounded by abrasion collar for 0.5 cm upper angle situated 08 cm below suprasternal notch and 2 cm lateral to mid line. Lower corner situated 11 cm below suprasternal notch and 4 cm lateral to mid line. Margins are regular and clean cut and shows presence of blood infiltration. Both angles are acute."

In the opinion of Dr Devkar, injuries sustained by Krishna were sufficient in the ordinary course of nature to cause death and the cause of the death was Cardiac tamponade as a result of Haemopericardium due to stab injury of heart. The cause of death was thus unnatural. According to Dr Devkar, the injuries mentioned in P.M. Report are possible due to the assault by weapon - gupti and the injuries found on the body of the deceased are possible by the sharp side of gupti - Art.1."

9. In addition to the above evidence, the prosecution is relying on the circumstance of recovery of gupti at the instance of the Appellant. PW 2 - Maqbul is the panch witness who has deposed about this recovery. Maqbul has stated that on 22nd February 2013 he was in Wadala Police Station at about 1.15 p.m. The Appellant - Dinesh was present in the Police Station. The Appellant gave a statement that he has concealed the weapon of assault i.e. gupti under the Wadala Bridge and he is ready to produce it. The appellant then led the Police and panchas to column No.4 of Wadala Bridge. He then produced the gupti from one green colour plastic crate. The gupti was seized and sealed on the spot by the Police. PW 2 - Maqbul has identified the gupti Article 1 as the same gupti which was recovered at the instance of the Appellant. It may be noted that PW 1 - Chanda and PW 3 - Aniket have identified gupti Article 1 as the same weapon with which the appellant assaulted Krishna. It may further be noted that PW 5 Dr Devkar has stated that the injuries sustained by Krishna were possible due to assault by gupti Article 1.

10. The gupti recovered at the instance of the Appellant was sent to the Chemical Analyser. As per the Chemical Analyser's report (Exh.16), the gupti was stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case of Gura Singh Vs. State of Rajasthan, reported in (2001) 2 SCC 205 : [2001 ALL MR (Cri) 764 (S.C.)], wherein it has been observed as under :-

"In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507) we do not find any substance in the submissions of the learned counsel for the appellant that in the absence of the report regarding the 'original of the blood', the trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant."

11. Mr Apte, learned Advocate for the Appellant submitted that even if it is assumed that the Appellant assaulted Krishna with a gupti and caused his death, the case would not fall under section 302 of IPC but it would fall under section 304 Part II or at the most 304 Part I of IPC. Mr Apte pointed out that the evidence on record shows that a quarrel was going on between the Appellant and the deceased which has been deposed about by PW 3 - Aniket. Mr Apte pointed out that the evidence of Aniket shows that a quarrel took place between Chanda and Appellant Dinesh. Dinesh asked Chanda whether she wants to reside with Hussain or Krishna. Chanda told him why he was interfering when it was a private affair. Krishna also said that it was a private affair between him and Chanda. Aniket has further stated that on that ground a quarrel took place between Krishna and Dinesh. Then Dinesh took out a gupti and assaulted Krishna. Mr Apte further pointed out that the Appellant gave just one blow on the chest of Krishna which is clear from the evidence of PW 1, PW 3, PW 4 and the medical evidence. Mr Apte submitted that this shows that it was not the intention of the appellant to cause death of Krishna. He submitted that if the Appellant had intended to cause death of Krishna, the Appellant would not have stopped after giving just one blow to Krishna but he would have continued to assault Krishna. The fact that the appellant did not do so shows that the Appellant did not have any intention to kill Krishna. Mr Apte further submitted that the assault was not pre-meditated or pre planned but it happened on the spur of moment in a fit of anger. Mr Apte reiterated that the fact that Appellant stopped assaulting after giving just one blow to Krishna during the course of a sudden quarrel would make the case fall under exception 4 to section 300 of IPC and thus the offence would fall under section 304 Part II of IPC.

12. Looking to the evidence on record, we find much merit in the submission that the case would not fall under section 302 of IPC but it would fall under exception 4 to section 300 of IPC i.e. assault by an accused during sudden quarrel in the heat of passion.

13. To bring a case within Exception 4 to section 300 of IPC, all the ingredients mentioned in it must be found. It is to be noted that the word 'fight' occurring in Exception 4 to section 300 of IPC is not defined in the IPC. It takes two or more persons to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence shows that both Dinesh and Krishna had worked themselves into a fury on account of verbal altercation going on between them. However, for the application of Exception 4 to section 300 it is not sufficient to show that there was a sudden quarrel and there was no pre-meditation, but it must further be shown that the offender has not taken any undue advantage or acted in a cruel or unusual manner. The fact that the Appellant gave only one blow shows that he did not take any undue advantage or acted in a cruel or ususual manner. However, we are not prepared to accede to the submission of Shri Apte that the case would fall under section 304 Part II of IPC. In our view, the case would fall under section 304 Part I of IPC because we are of the opinion that the Appellant did not just have the knowledge that his act is likely to cause death but in fact, the Appellant intended to cause death of Krishna. We say so on the basis of the weapon used, the part of the body where the blow was inflicted, the nature of injury inflicted and the force used while assaulting. The injuries as seen from the evidence of PW 5 - Dr Devkar are extensive in nature, hence looking to all these facts, we are of the considered opinion that the case cannot fall under section 304 Part II of IPC.

14. Considering the evidence on record, we are of the view that Exception 4 to section 300 of IPC applies to the facts of the case and the appropriate conviction would be under section 304 Part I of IPC. Hence, conviction and sentence of the Appellant under section 302 of IPC is set aside, instead the appellant is convicted under section 304 Part I of IPC. In our view, custodial sentence of eight years RI and fine of Rs.2,000/-, in default SI for two months would meet the ends of justice.

15. The Appeal is allowed to the aforesaid extent.

16. Office to communicate this order to the Appellant who is in Kolhapur Central Prison and to the Superintendent of Kolhapur Central Prison, Kolhapur.

17. We quantify legal fees to be paid to Advocate Mr. Abhaykumar Apte by the High Court Legal Services Committee at Rs. 5,000/-.

Ordered accordingly.