ORDER
Vishnu Sahaj, J.
1. The appellants aggrieved by the Judgment and Order dated 13-9-1994 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 155 of 1993 and Sessions Case No. 746 of 1993, convicting and sentencing them to undergo a sentence of imprisonment for life for the offence under section 302 r/w 34 I.P.C., have come up in appeal before us :–
2. In short, the prosecution case runs as under :–
The deceased Ramsingare, the informant Rajeshwar Nisar P.W. 2, Ram Achal Nisar P.W. 1 and Pramod Vishwakarma P.W. 3 resided in the same hut in Radhakrishna Chawl, Gautam nagar, Kandivli (East) Bombay at the time of the incident. The appellants resided in a contiguous hut.
It is alleged that sometimes before November, 1992 the informant and others had raised the height of their hut resulting in monsoon water falling from the roof of their hut on that of the appellants. On that score, relations between the informant and others on one hand and the appellants on the other became strained.
On 20-11-1992, at about 9.30 p.m. when the deceased, informant, P.W. 1 Ram Achal Nisar and P.W. 3 Pramod Vishwakarma were taking meals, the appellant-Kailashprasad came to their hut and abused them. He challenged all of them to come out. The deceased Ramsingare came out first. The appellants Kailashprasad and Dharamraj caught hold of his hands and the appellant-Avadesh inflicted a solitary knife blow on the right side of his abdomen as a consequence of which, he fell down. Thereafter, the appellants ran away.
The appellant-Avadesh thereafter, went to the hut of Binvender (Birendra) Sahani P.W. 4 who lived in his vicinity and told him that he had stabbed Ramsingare. He forcibly put the knife which he was carrying in his hand and went away. The said knife was put by Birendra “on the roof of the hut of the appellant-Avadesh.
Immediately after the appellants and others had run away, the informant and others hired a rickshaw and carried Ramsingare to Bhagwati Hospital where he was medically examined and operated upon. The doctor who medically examined and operator him, has not been examined by the prosecution:
The evidence of P.I. Suresh Bhumkar P.W. 6 of Kandivli (East) Police Sta-tion is that on 21-11-1992, at 00-40 hours, he received a message from Bhagwati
Hospital that a person by name of Ramsingare was admitted, as a stabbing case. Consequently, P.S.I. Gurav (not examined) rushed to Bhagwati Hospital.
3. The F.I.R. of the incident was recorded by P.S.I. Gurav on the information given by Rajeshwar Nisar P.W. 2. On its basis, a case under section 326 r/w 34 I.P.C. was registered at 3.05 a.m. at Bhagwati Hospital. The evidence of P.I. Suresh Bhumkar P.W. 6 shows that Ramsingare succumbed to his injuries at 8. IS p.m. sic a.m. on 21-11-1992 at Bhagwati Hospital, and on the said information, he converted the offence to one under section 302 r/ w 34 I.P.C.
4. The autopsy on the corpse of Ramsingare was conducted on 22-11-1992, between 1.40 p.m. and 2.45 p.m. by Dr. Baban Shinde P.W. 5 who found on it, a surgical incised sutured wound, admeasuring 3.5 cm x 2.08 cm x cavity 4 cm below and 3 cm to the left of umbilicus.
In the opinion of Dr. Shinde, the said injury could be caused by a weapon like knife and was sufficient in the ordinary course of nature to cause death.
5. The investigation was conducted in the usual manner by P.I. Suresh Bhumkar P.W. 6. Pursuant to his arrest, the appellant Avadesh admitted that he could get the weapon of assault namely knife recovered. The said information was recorded under a panchanama. Thereafter, the appellant led P.I. Bhumkar to his hut and from its roof, produced a knife.
After completing the investigation. P.I. Bhumkar submitted the charge-sheet against the appellants.
6. The case was committed to the Court of Sessions in the usual manner where the appellants were charged for an offence punishable under section 302 r/w 34 I.P.C. to which they pleaded not guilty and claimed to be tried.
During trial, in all, the prosecution examined six witnesses. Three of them namely the informant Rajeshwar Nisar P.W. 2, Ram Achal Nisar P.W. 1 and Pramod Vishwakarma P.W. 3 were examined as eye-witnesses.
In defence, no witness was examined. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated above.
7. We have heard Counsel for the parties and perused the entire material on record. After utmost circumspection, we are of the judgment that this appeal deserves to be partly allowed.
8. In our judgment, the appellants Kailashprasad Sahani and Dharamraj Sahani deserve the benefit of doubt and instead of an offence punishable under section 302 r/w 34 I.P.C., the appellant-Avadesh Sahani is guilty for one under section 302 I.P.C.
9. As mentioned above, the prosecution examined three eye-witnesses namely the informant Rajeshwar Nisar P.W. 2, Ram Achal Nisar P.W. 1 and Pramod Vishwakarma P.W. 3. The evidence of these witnesses is that they and the deceased used to reside in the same hut which was contiguous to that of the appellants and since they had raised the height of their hut, rainwater from their hut used to fall on the roof of the hut of the appellants. Hence, there was enmity between them and the appellants.
In respect of the main incident, there is discrepency between the evidence of these eye-witnesses.
Ram Achal Nisar P.W. 1, the real brother of the deceased, stated that on the date of the incident at about 8 p.m. the appellant-Dharamraj came, slapped and abused Rajeshwar, whereupon Ramsingare said that since they belong to the same village, they should not quarrel. Thereafter, the appellant Avadesh stabbed Ramsingare on right side of his abdomen and thereafter, run away.
P.W. 2 the informant Rajeshwar Nisar and P.W. 3 Pramod Vishwakarma stated that on the date of the incident at about 9 p.m. the appellants came; appellant-Kailashprasad and Dharamraj caught hold of the hands of Ramsingare; and the appellant-Avadesh inflicted a solitary knife blow on the right side of his abdomen.
10. Since in the evidence of P.W. 1 Ram Achal Nisar, there is no mention of the appellants Kailashprasad and Dharamraj catching hold of the hands of the deceased Ramsingare, while the appellant-Avadesh was assaulting him, it would be unsafe to accept the story of catching hold given out by the other two witnesses because, between them and the said appellants, the relations were strained on account of the rain water from their hut falling on that of these appellants.
Experience also shows that the role of catching hold is often made use to inflate the number of participants in the incident and to invoke the application of section 34 I.P.C.
For the said reasons, it would not be safe to accept the prosecution case that while the appellant-Avadesh assaulted Ramsingare with a knife, the appellants-Kailashprasad and Dharamraj were catching hold of him. 10-A.Once the story of catching hold is rendered doubtful, then there is nothing to show that the appellants-Kailashprasad and Dharamraj shared the common intention with respect to the assault on the deceased. The Privy Council in the oft-referred case of Mahbub Shah v. Emperor, has observed as under:-
“the inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.”
It is well-settled that mere presence will not invoke the application of section 34 I.P.C.
Hence, these appellants deserve to be acquitted for offence under section 302 r/w 34 I.P.C.
11. This leaves us with the case of the appellant-Avadesh. Against him, there is the consistent evidence of all the three eye-witnesses in terms that he stabbed the deceased with a knife. His stabbing the deceased is corroborated by the evidence of the Autopsy Surgeon Dr. Baban Shinde who found on the person of the deceased a surgical incised sutured wound 3.5 c.m. x 0. 8 cm x cavity deep 4 cm below and 3 cm to the left of umbilicus, which in his opinion could be caused by a knife.
The ocular account of these witnesses also receives assurance from the circumstance that the F.I.R/ of the incident was lodged the same night within five hours of the incident, and in it also the appellant-Avadesh has been assigned the role of inflicting a knife blow on the deceased.
The place of the incident given out by the eye-witnesses is also fixed by the circumstance that on the same, the Investigating Officer found blood which he sent to the Chemical Analyst who reported it to be human. A very
clinching assurance to the ocular account is also afforded by the circumstance that the knife which the appellant had handed over to Birendra @ Binvender P.W. 4, was recovered on his pointing out under a panchanama by the P.I. Suresh Bhumkar on 25-11-1990.
12. In our view, although the involvement of the appellant in the incident is established, but, it cannot be held that he committed the offence punishable under section 302 I.P.C. Apart from the circumstance that motive for the incident was a paltry one the informant Rajeshwar Nisar P.W. 2 in his cross-examination in para 12 admitted that prior to the appellant stabbing the deceased, there was a quarrel between him (the deceased) and others on one side and the appellants on the other lasting for five to ten minutes. Bearing this in mind, as also the circumstance that the appellant-Avadesh only inflicted a solitary stab wound on the person of Ramsingare, and did not kill him on the spot, it would be reasonable to hold that when he inflicted a solitary knife blow on the abdomen of Ramsingare, he had the knowledge of his death within the terms of section 304(2) I.P.C.
The Supreme Court in the oft-quoted case of Jawaharlal v. State of Punjab, in para 15 has held that the mere circumstance that a blow was inflicted on a certain part of the body, divorced from the circumstances under which it was given, would not be sufficient to conclude that it was intended to be inflicted on that part of the body.
13. It is true that the Autopsy Surgeon Dr. Shinde has stated that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause his death but, merely on that account case of the appellant-Avadesh will not fall under the mischief contemplated by Clause Thirdly of section 300 I.P.C.
For the application of the said clause, it has to be established that there was an intention to inflict the injury which was sufficient to cause death in the ordinary course of nature.
On the facts of this case, it would unsafe to hold that the said intention was there.
14. For the said reasons, in our view, the appellant- Avadesh would be guilty for an offence punishable under section 304(2) I.P.C. and not under section 302 I.P.C.
15. We now come to the question as to what sentence should be awarded to the appellant-Avadesh for an offence under section 304(2) I.P.C. Ms. Prabha Mane learned Counsel for the appellants informs us that he is in jail since 23-11-1992 and his sentence be reduced to the period already undergone. We have reflected over her submission. In our view, the ends of justice would be satisfied if the appellant-Avadesh is sentenced to undergo six years and six months for the offence punishable under section 304(2) I.P.C.
16. In the result, this appeal is partly allowed. We acquit the appellants Kailashprasad Paleprasad Malta @ Sahani and Dharamraj Bunile Malla @ Sahani for the offence under section 302 r/w 34 I.P.C. and set aside their convictions and sentences on the said count. They are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged.
We also acquit the appellant Avadesh Paleprasad Malla @ Sahani for the offence under section 302 r/w 34 I.P.C. and set aside his conviction and
sentence on the said count. However, we find him guilty for the offence under section 304(2) I.P.C. and sentence him to undergo six years and six months R.I. for the same. He is in jail and shall be released therefrom after he serves out his sentence, if not wanted in any other case.
17. Appeal allowed partly.