1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 308 of 2003
Appellant : Manik son of Ganpatrao Taiwade, aged about 38
years, resident of Mouza Dhotiwada, Tahsil
Katol, District Nagpur (Presently in jail)
versus.
Respondent : The State of Maharashtra
Mr Sudhir Malode, Advocate for appellant.
Mr Y.B. Mandpe, APP for State.
______
Criminal Appeal No. 354 of 2003
Appellant : Ramdas s/o Shankarrao Madavi, aged about
35 years, resident of Mouza Dhotiwada, Tahsil
Katol, District Nagpur (Presently in Jail)
Mr Mahesh Singh, Advocate for appellant.
Mr S.S. Doifode, APP for State.
::: Downloaded on – 09/06/2013 13:52:42 :::
2
Coram : K.J. Rohee and
A.P. Bhangale, JJ
Dated : 18th September 2008
Judgment (Per A.P. Bhangale, J)
1. By these appeals, the original accused have challenged the
judgment and order of conviction and sentence passed by 2nd
Additional Sessions Judge, Nagpur in Sessions trial No. 670 of 2000.
Upon conviction for the offence punishable under Section 302 read
with Section 34 of the Indian Penal Code, the appellants have been
sentenced to suffer imprisonment for life and to pay a fine of Rs.
3000/- each, in default, to undergo rigorous imprisonment for six
months.
2. Appellant Ramdas Shankarrao Madavi in Criminal Appeal
No. 354 of 2003 is original accused no.1 while appellant Manik
Ganpatrao Taiwade in Criminal Appeal No. 308 of 2003 is original
accused no.2. Appellants are hereinafter referred to as per their
original status in sessions trial.
3. Accused no. 1 Ramdas and victim in this case viz. deceased
::: Downloaded on – 09/06/2013 13:52:42 :::
3
Madhukar were related to each other while accused no.2 Manik was
their common friend, residing in village Dhotiwada. On the fateful
day, accused persons took in their company said Madhukar from his
house. After some time, Nandlal, resident of the same village, came
to PW 1 Sudhakar (elder brother of Madhukar) and informed him
that Madhukar was lying in a pool of blood in Gondpura, village
Dhotiwada. PW 1 Sudhakar rushed to the spot and removed
Madhukar to Primary Health Centre, Kondhali where Madhukar was
declared as brought dead.
4. It appears from the evidence of PW 2 Ramkrishna that at
the relevant time, there was exchange of words between accused and
Madhukar who was in their company. Madhukar gave a slap to
accused no. 1 Ramdas asking him as to why he (accused no.1) had
beaten his relative Kanthya. This witness separated quarrel and went
to his house. Later, he came to know through Dashrath Madavi and
Bhaurao Ivnate that accused no.1 Ramdas had inflicted knife blow to
Madhukar. Further, it is disclosed from the evidence of PW 3
Homeshwar that he followed the trio and saw that after touching the
::: Downloaded on – 09/06/2013 13:52:42 :::
4
feet of Madhukar near the house of Dhanraj Patte, accused no. 1
Ramdas inflicted knife blow in the chest of Madhukar who started
running and fell down near the house of Krishna Madavi from where
PW 4 Ganesh with the help of some persons, brought Madhukar near
School.
5. PW 1 Sudhakar Madavi, brother of deceased Madhukar
lodged report of incident to Police Station, Kondhali on 15.8.2000 at
about 03.00 o’ clock.
Dead body of Madhukar was sent for post-
mortem examination. Dr Misbahul Haque Ansari (PW 11) performed
post-mortem examination.
6. On the basis of information lodged by PW 1 Sudhakar,
investigation was undertaken by PSI Ramesh Deshmukh (PW 14)
charge-sheet was placed before the Judicial Magistrate, First Class,
Katol giving rise to Sessions Trial No. 670 of 2000 against accused
persons. The accused were charged on the ground that they, in
furtherance of their common intention, committed murder of
Madhukar Madavi by giving knife blow in his chest and thereby
committed offence punishable under Section 302 read with Section 34
::: Downloaded on – 09/06/2013 13:52:42 :::
5
of the Indian Penal Code. The accused pleaded not guilty and
claimed trial.
7. The prosecution examined 14 witnesses to substantiate
the case. Accused denied their culpability in their statements
recorded under section 313 of the Criminal Procedure Code.
8. The prosecution rested upon direct evidence of PW 2
Ramkrishna, PW 3 Homeshwar, PW 4 Ganesh, PW 5 Sahudas and PW
6 Liladhar
apart from panch witnesses, CA report and medical
evidence of Dr Ansari (PW 11). The learned trial Judge accepted
evidence qua the appellants and held them guilty for having
committed murder of Madhukar Madavi and on conviction under
Section 302 read with Section 34 of the Indian Penal Code, sentenced
them as aforesaid.
9. We have heard learned Advocate Shri Sudhir Malode for
appellant No.1; and learned Advocate Shri Mahesh Singh for
appellant no. 2; as also learned A.P.P. S/Shri Y B Mandpe and
S.S.Doifode, representing the State of Maharashtra.
10. The evidence of homicidal death is revealed from the
::: Downloaded on – 09/06/2013 13:52:42 :::
6
evidence of PW 11-Dr.Ansari, who conducted autopsy on the dead
body of deceased Madhukar. According to Dr.Ansari, she found a
stab injury located at left front side of chest which was 8 cm. x 4
cm. cavity deep between second and fourth rib; vertical in
direction 2 cm. above and 2 cm. below is incised wound described as
muscle deep margins clean cut; lower angle clean cut and upper
angle contuse on left side; third rib fractured, margins clean cut,
fourth rib upper half cut margins clean cut. The witness opined
that injury was ante-mortem. She noted following two injuries and
found two litres of blood and blood clots in thorasic cavity:-
(i) pericardium ; cut present;
(ii) stab injury right ventricle 2 cm. in length/ cavity deep;
Thus, the Doctor’s finding furnished medical evidence that external
injury was corresponding to internal injury (i) and (ii) and that
cause of death was shock due to stab wound and the injuries were
sufficient in the ordinary course of nature to cause death and,
furthermore, that the injuries were possible by knife (Article 9).
The medical evidence also clearly indicates that above injuries noted
::: Downloaded on – 09/06/2013 13:52:43 :::
7
were the result of a single blow only. Although alternative possibility
is suggested to Dr.Ansari that a person running and falling
forcefully on a sharp object may suffer such injury, we do not find
enough ground to believe such a possibility in view of direct ocular
evidence in this case. After considering post-mortem notes
(Exh.50) in the light of Dr. Ansari’s evidence, we have no doubt in
our mind that the prosecution has succeeded in establishing
homicidal death of Madhukar beyond reasonable doubt.
11. Turning now to the direct and circumstantial evidence led
in this case, we have scrutinised it by giving our anxious and
thoughtful consideration in the light of rival contentions. PW 1 –
Sudhakar, threw light upon genus of the incident. According to
him, both the accused had come at about 7.30 p.m. on 14.8.2000
and had called deceased Madhukar for some work. Madhukar had
gone with A/1 Ramdas and A/2 Manik towards school. Later PW
1 Sudhakar came to know from one Nandlal about the incident that
A/1 Ramdas had given knife blow to Madhukar. The witness
frankly admitted in cross-examination that there was no enmity
::: Downloaded on – 09/06/2013 13:52:43 :::
8
between A/1 Ramdas and Madhukar and that they were on good
talking terms. It also appears that A/1 Ramdas had taken Madhukar
by “friendly style”. Contents of oral report (Exh.17) which was
lodged by PW 1 Sudhakar on 15.8.2000 at Kondhali Police
Station also corroborates the evidence given in Court by him.
According to PW 2-Ramkrishna on 14.8.2000 about 8.00 p.m., he
had witnessed exchange of words between A/1 Ramdas and
Madhukar ( deceased) in front of the house of one Dhanraj Patte.
PW 2 Ramkrishna had seen Madhukar giving slaps to appellant
no.1 questioning him as to why appellant no.1 had beaten Kanthya
(relative of Madhukar). PW 2 Ramkrishna had intervened in the
quarrel and taken Madhukar up to a shop and then left for his
house. Later on, PW 2 Ramkrishna came to know about the
incident that A/1 Ramdas gave knife blow to Madhukar. The
witness clarified in cross-examination that there was no hot exchange
of words between Madhukar and appellant no.1, when he saw A/1
Ramdas and Madhukar. PW 3 Homeshwar deposed that he had
followed Madhukar ; A/1 Ramdas and A/2 Manik ( appellant no.2)
::: Downloaded on – 09/06/2013 13:52:43 :::
9
when they went together in friendly manner. When they reached
near the house of Dhanraj Patte, A/1 Ramdas was seen paying
respect at the feet of Madhukar and thereafter asked him to count
persons there and gave knife blow to the chest of Madhukar
(victim), who started running and fell down near the house of
Krishna Madavi. PW 3 -Homeshwar did not try to intervene nor
called for help. But he cannot be disbelieved merely for this reason
as one may out of fear of the assailant, choose not to intervene or to
raise shouts after witnessing a stabbing incident one may leave
the spot without making hue and cry. There cannot be a set
reaction from an eyewitness. The statement of PW 3 Homeshwar
was also recorded by learned Judicial Magistrate, First Class, Katol
under section 164 Cr.P.C. and we find ample corroboration to the
evidence deposed by PW 3. Furthermore, PW 4 Ganesh had also
seen both the accused catching hold of Madhukar when Madhukar
gave slaps to A/1 Ramdas ; A/2 Manik instigated him and then A/1
Ramdas took out knife and gave knife blow to the chest of
deceased Madhukar. Madhukar ran down chased by A/1 Ramdas
::: Downloaded on – 09/06/2013 13:52:43 :::
10
while A/2 Manik went to his house while Madhukar fell down near
the house of Krishna Madavi. The statement of PW 4 Ganesh was
recorded u/s 164 of Cr.P.C. by learned JMFC Katol on 7.9.2000.
We do find corroboration in respect of material particulars of
incident that A/2 Manik had instigated A/1 Ramdas to assault
Madhukar and had run away after A/1 Ramdas assaulted on
Madhukar’s chest with knife. For the reasons stated above, we are
not prepared to
give much importance to omissions brought out in
the course of cross-examination, more particularly bearing in mind
that rustic witness from village may be overawed by the court
atmosphere and may be led to give certain admissions in the nature
of omissions or contradiction which may or may not affect root of
the prosecution’s case. The facts and circumstances are needed to
be considered in totality. PW 5 Sahudas was declared hostile
witness and chose not to support prosecution case. PW 6-Liladhar
had seen A/1 Ramdas stabbing Madhukar with knife and when
Madhukar started running away A/1 Ramdas had followed him,
Madhukar had fallen down near house of Kisan Madavi.
::: Downloaded on – 09/06/2013 13:52:43 :::
11
12. We do find ample corroboration to the ocular evidence in
medical evidence of PW 11 -Dr.Ansari as well as in the evidence of
recovery of weapon of offence under Panchnama (Exh.55). PW 13
Subhash deposed that in his presence A/1 Ramdas had led police to
the field of one Patil towards Dhotiwada and had taken out and
produced knife (Art.9) from a channal ( embankment). Chemical
Analyser’s report (Exh.74) in respect of viscera preserved from
victim Madhukar’s body
ig do indicate that ethyl alcohol was present
indicating that prior to the incident, Madhukar had consumed
alcohol, noted as 140, 106 and 122 milligrams per 100 milliliter
found in viscera and blood sample of deceased sent for CA’s report.
The finding by C.A. do furnish reason to believe that deceased
Madhukar might have slapped A/1 Ramdas while under the
influence of alcohol, giving rise to fury between them and A/2
Manik who instigated A/1 Ramdas that Madhukar shall be beaten.
The panchnama about scene of offence (Exh.38) indicating
presence of trace of blood at various places also corroborate direct
evidence that deceased tried to run away. Further, corroboration is
::: Downloaded on – 09/06/2013 13:52:43 :::
12
seen from the CA’s report (Exh. 75) indicating that clothes of the
victim recovered; earth sample (Exh.6) ; weapon recovered
(art.9); stones recovered from spot (Exh.9 and 11) were found
stained with human blood of Group “A”.
13. With such overwhelming evidence to indicate culpability
of accused nos. 1 and 2 for assaulting Madhukar in furtherance of
their common intention shared between them, we cannot accept
alternative possibility suggested by defence counsel that Nilkanth or
Kanthya might have assaulted deceased Madhukar. Prosecution
has examined PW 10 -Nilkanth also who once had quarreled with
the deceased to overrule such alternative possibility. Another
criticism from defence counsel is that witnesses who deposed having
witnessed the incident, were relatives and neighbours and, therefore,
interested witnesses. This contention also does not impress us. In our
opinion, evidence of such witnesses cannot be brushed aside because
they would never spare the real culprits. Another contention is that
there are omissions or discrepancies which can uproot the cart of
the prosecution case. We are unable to accept the argument that
::: Downloaded on – 09/06/2013 13:52:43 :::
13
prosecution story is totally shattered in cross-examination. Another
contention is that the prosecution ought to have examined more
witnesses, namely, Dashrath Madavi, Bhaurao Ivnate; Dhanraj Patte,
Manohar Patte etc. and that non-examination is fatal to the
prosecution case. We cannot accept this contention also because, it
is quality of the evidence and not the quantity that matters. The
prosecution is not expected to examine all and sundry once
prosecution has unfolded its material narrative evidence on facts that
accused nos. 1 and 2 in furtherance of their common intention,
had assaulted victim Madhukar. Even assuming for the sake of
argument that some more witnesses could have been examined by the
prosecution nothing prevented the defence to apply to the trial Court
to get them summoned as essential court witnesses. Defence
cannot dictate as to which witnesses shall be examined by the
prosecution. The remedy available under section 311 Cr.P.C. was
neither applied for nor availed of by the defence. In our opinion, the
prosecution could not have been compelled to examine witnesses
dropped or cancelled by it unless ordered by the trial Court. For the
::: Downloaded on – 09/06/2013 13:52:43 :::
14
aforesaid reasons, as a rule it is discretion of the Public Prosecutor
concerned to lead as much evidence as is necessary to unfold the
prosecution case.
14. Lastly, it is contended that the incident had arisen due
to hot exchange of words without any premeditation and a single
stab injury was caused on the spur of the moment and there was no
intention to cause death or to commit murder. Learned counsel
Mr.Mahesh Singh relied upon
ig the judgment in the case of Deepak
Bhikaji vs. State of Maharashtra reported in 2003 (1) Crimes 191
(SC). We have gone through the citation. It is true that when an
act is committed without premeditation in a sudden fight, in the heat
of passion arising from sudden quarrel without the offender having
acted in cruel or unusual manner, the offence would be culpable
homicide not amounting to murder. In the facts and circumstances of
the present case, we do find from the genus of the incident that
deceased Madhukar had accompanied with accused nos. 1 and 2
in friendly manner. Although A/1 Ramdas may have carried the
knife in his pocket, or near waist side, there is no material on
::: Downloaded on – 09/06/2013 13:52:43 :::
15
record to establish positively that it was a deadly or dangerous
weapon and forcibly used while causing injury. It appears that
deceased had gone with A/1 and A/2 in friendly manner. There
may not be premeditation between A/1 and A/2, but they shared
common intention on the spur of the moment and acted in the course
of sudden quarrel which developed on the spot. We may also infer
from the evidence that the deceased Madhukar who might have used
abusive words under the influence of alcohol. It is one of the
special circumstances brought to our notice. The sample of viscera
was sent for expert’s opinion and it is in evidence that ethyl alcohol
was found present in the viscera as well as blood sample sent for
analysis, we have referred to findings and opinion disclosed from CA
report (Exh.74). Therefore, there is reason to believe that the
deceased must have been in drunken condition at the time of the
incident. Such circumstance cannot be overlooked because a
drunken man under the influence of alcohol may talk irrelevant or
abusively or may behave in irresponsible manner which may
irritate immediately or provoke even a friendly person to develop
::: Downloaded on – 09/06/2013 13:52:43 :::
16
fury and incite crime before passions can cool down. A/1 Ramdas
may have got furious due to heat of passion and with timely
instigation from A/2 Manik, it cannot be said that A/1 Ramdas took
undue advantage or acted with cruelty or in an unusual manner. A
single blow given under the circumstances indicate that offenders
did not take undue advantage. For these reasons which may be
considered as mitigating the penal liability, in view of the exception
(4) to section 300 IPC which reads thus :
“300: MURDER: Except in the cases hereinafter
excepted … …… ……. ……. …..
Exception 4 – Culpable homicide is not murder if itis committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarreland without the offender having taken undue
advantage or acted in a cruel or unusual manner…..
(Explanation- It is immaterial in such cases which
party offers the provocation or commits the first
assault.)" .... ...... .......
15. We must therefore conclude that Exception 4 to Section
::: Downloaded on – 09/06/2013 13:52:43 :::
17300 IPC is attracted and conviction and sentence imposed upon A/1
Ramdas and A/2 Manik needs to be altered from Section 302 read
with section 34 IPC to section 304 Part I read with section 34 IPC
and, in lieu of sentence of imprisonment for life imposed by the trial
Court, we feel that sentence of rigorous imprisonment of ten years
for both for each of the accused-appellants will meet the ends of
justice.
16.
The Appeals are, therefore, allowed to aforesaid extent.
However, we do not propose to interfere with the sentence of fine
as imposed by the trial Court which shall be in addition to the
imprisonment as above.
The accused no.2 Manik who is on bail shall surrender
within four weeks to serve out the remainder of the sentence of
imprisonment. His bail bonds shall stand cancelled.
JUDGE JUDGE
::: Downloaded on - 09/06/2013 13:52:43 :::