JUDGMENT
V.G. Palshikar, J.
1. Being aggrieved by the order of conviction and sentence dated 18.11.1198 passed by the learned Additional Sessions Judge, Bombay in Sessions Case No. 796/1995 against the appellants, the appellants have preferred this appeal on the grounds mentioned in the memo of appeal.
2. With the assistance of the learned advocate for the appellants and the learned Public Prosecutor we have scrutinized and reappreciated the evidence on record.
3. The prosecution story briefly is that on 16.3.1995 which was a Holi day the incident occurred in Panchambhayya Chawl, Ghatipada, Mulund Wels, Mumbai where there was a quarrel between the victim and the accused over petty matter of sprinkling water on that day. The quarrel was repeated in the evening and the accused Nos. 1 and 2 immediately after the quarrel stabbed the deceased Babasaheb Kharat as a result of which he died. The accused were therefore arrested and prosecuted. The prosecution examined in all nine witnesses to prove its case. These nine witnesses include one eye witness and two other witness who claim to be on the spot of offence after occurrence of the offence. The learned trial Judge on appreciation of this evidence came to the conclusion that the accused persons were guilty for the offence punishable under Section 302 of Indian Penal Code and they had shared the common intention of causing death by stabbing. Accordingly he convicted them under Section 302 read with section 34 of Indian Penal Code to suffer imprisonment for life. In an appeal preferred by both the accused, accused No. 1 who is son of accused No. 2 was refused bail whereas accused No. 2 was granted bail.
4. This judgment and order is assailed before us in this appeal. Learned counsel appearing on behalf of the appellants submitted stating in nut shell the following points:
i) that there is no corroborative evidence to the sole testimony of P.W. 1- Anusaya Kharat and except that evidence there is no evidence of the accused having stabbed the deceased. There is therefore no question of these persons being held guilty;
ii) even if the evidence of the prosecution is accepted it cannot be a case of murder as there was no intention to cause death in either of the accused persons and therefore conviction under Section 302 read with Section 34 of is bad;
iii) there is no evidence on record regarding both the accused sharing common intention of causing injury or death. There is no overtact on the part of accused No. 2 and therefore conviction of accused No. 2 under Section 302 read with Section 34 IPC improper;
iv) the recovery of the weapon used in offence as accepted by the learned trial Judge is wrong. The recovery is not in accordance with the provision of Section 27 of the Indian Evidence Act. It was made from an open ground and therefore the recovery is liable to be rejected and if it is so rejected there is nothing to connect the accused with the stabbing and therefore they are entitled to acquittal;
v) in any event, it is the case of a single injury following a quarrel on petty matter and therefore it cannot be a case under Section 302 of IPC. At the most accused can be convicted under Section 304 Part II there being likelihood or knowledge that injury may result in death.
5. These submissions were countered by the learned additional Public Prosecutor appearing on behalf of the State. It was the submission of the learned additional public Prosecutor that the evidence of P.W. 1- Anusaya Kharat which is duly corroborated by P.W. 2- Vishwanath Tarlekar and P.W. 3- Madhukar Shirtode who claim to be on the scene of offence immediately after occurrence is enough circumstantial and ocular evidence to sustain the order of conviction. She particularly relied upon deposition of P.W. 1- Anusaya Kharat to spell out the existence of intention to commit murder as also existence of common intention amongst the accused. According to her the order of conviction is proper and well reasoned.
6. We have to decide these rival contentions in the light of evidence which we have reappreciated and scrutinized again. P.W. 1- Anusaya Kharat with her relations was staying in Panchambhayya chawl, Ghatipada, mulund (West), Bombay for several years. The accused were also residing in that chawl. The victim Babasaheb Kharat is the real brother-in-law of the witness and all of them were staying jointly in the house. This witness has deposed in extenso to the quarrel which preceded the assault, the manner of assault, the manner in which the assault, the manner in which the assault was committed with common intention. The witness has been extensively cross examined and we will consider the entire evidence of this witness in details. In para 4 of her testimony the witness describes the incident. She has deposed about the quarrel which took place in the after noon and the quarrel which preceded the assault. She has explained that the quarrel was set at rest by police constable Madhukar Shirtode who stays nearby. Then the witness proceeds to tell as to what happened around 6.15 p.m. when the victim returned home. When the victim was washing himself the accused Nos. 1 and 2 who were standing outside started abusing the victim. The witness came out on hearing abuses. The witness then accosted accused No. 2 as to shy she was abusing on which the reply of accused was that these people (members of the witness family) have become swollen headed and they require to be chastetized properly. In verbatim: “Nalayak tumko bahot charbi hain” tumarhee charbi utarjaiagee.” Then according to this witness accused No. 2 said to him do not leave them, in verbatim: “Use chhodna mat, dekh lena.” These words of incitement demonstrate the common intention of accused Nos. 1 and 2 of teaching the victim a lesson. Then accused No. 1 stabbed the victim his chest. Both the victim and the witness shouted and hearing shouts the constable Shirtode, Tarlekar and Kadam came out. They saw the victim falling down and took the victim to the hospital. The victim was declared dead on admission. This witness has been extensively cross examined. The cross examination though it is very extensive does not shake the testimony of the witness. In fact it brings out vividly the quarrel which took place between the family. In the cross examination witness has stated that the height of the deceased must be 5′ 5″ but has said that she does not know her own height and admits that Babasaheb the victim was taller than the witness. It will therefore be seen that the argument advanced on behalf of the accused that since the witness cannot embrace the victim it was impossible to cause chest injury is incorrect. Such stab injury could caused. The testimony of this witness therefore clearly shows that there was a quarrel between the family of the accused and family of the complainant which led to a certain fight resulting in the deceased being stabbed on complete instigation by accused Nos. 1 and 2.
7. The criticism of the learned counsel regarding acceptance of evidence of this witness in not correct. Apart from the fact that the witness is coherent, narrative and inspire confidence it also has inherent and intrinsic support in the evidence of P.Ws. 2 and 3.
8. P.W. 2- Vishwanath Tarlekar who on hearing the shouts of P.W. 1- Anusaya Kharat came out of the house to fine accused No. 1 with knife in hand and noticed Babasaheb shouting and calling for help holding his hands to his chest. He also noticed P.W. 1 there and noted that she was crying. He mentions then that Shirtode was standing at the scene of offence. He then deposes as to how he with the help of Shirtode and Kadam removed Babasaheb to the hospital. From the evidence of this witness who also was extensively cross examined it is obvious that the witness did see accused No. 1 with knife in his hands, accused No. 2 standing nearby, heard Babasaheb shouting, saw him holding his chest, saw P.W. 1 crying and identified accused in Court. He also mentions presence of Shirtode at the scene of offence. He thus offers substantive corroboration to the testimony of the P.W. 1 P.W. 1 says accused No. 1 came with knife and stabbed Babasaheb. This witness says that he saw the accused with knife and Babasaheb injured, shouting for help, he speaks of help rendered by this witness to the victim by taking him to the hospital and giving other help. P.W. 1 is thus supported and corroborated on each material point by P.W. 2. The cross examination of this witness is aimed at proving that the quarrel was on petty matter and insufficient to give rise to intention to commit murder. But the cross examination does not shake the veracity of the statement made by the witness.
9. That takes us to consider another corroborrarting witness P.W. 3- Madhukar Shirtode who is a police constable residing in the same chawl. He states that when he came home around 1.15 in the afternoon and was present in the house when he heard commotion outside the house and came out of the house and noticed that Babasaheb victim was laying in a pool of blood. He also noticed Anusaya- P.W. 1 standing there and crying. He noticed then accused No. 1 who was carrying gupti in his hand and was running away from the scene of offence. He then deposes as to how he and P.W. 2 took the victim to the hospital where he was declared dead. He is a witness to other formalities also. Thus this witness also corroborates P.W. 1 on all material points and thus the prosecution has succeeded in establishing beyond reasonable doubt that there was a quarrel, preceding assault, that the assault was intentional and had resulted in death of the victim Babasaheb. We see no reason therefore to interfere with the findings of the learned trial Judge that homicidal death of Babasaheb was caused by accused persons and they had common intention to do so.
10. That brings us to the question as to whether the homicidal death amounted to murder or culpable homicidal not amounting to murder. The consequent question is whether they are liable to be punished under Section 302 or Section 304. For such consideration the question of intention becomes material as also the medical evidence. We have noted above in varbatim the utterances of accused persons. Accused No. 2 said “Nalayak tumko bahot charbi hain”, tumarhee charbi utarjaiagee” and when accused No. 1 came out with knife said “Use chhodna mat, dekh lena”. The fact of bringing out knife and the fact of telling accused No. 1 by accused No. 2 that “Use chhodna mat, dekh lena” clearly spells out common intention of the parties to tech the victim a lesson. Then immediately thereafter accused No. 1 stabs the victim who falls to ground and accused runs away. The learned counsel appearing on behalf of appellants relief upon several decisions of this Court and Supreme Court of India to contend that this cannot be a case of murder punishable under Section 302 but a case of homicidal death not amounting to murder punishable under Section 304 part II. The first judgment relied upon by the learned counsel is the judgment of Division Bench of this Court in the case of Manoj Shivaji Trimukhe v. State of Maharasthra 1997 Cri. L. J. 178 where this Court has observed that where there was exchange of abuses and scuffle prior to assault and in the heat of the moment inflicting a solitary knife blow on the deceased, it was clearly a case of culpable homicide not amounting to murder and therefore punishable under Section 304 Part II. To a similar effect is the judgment of the Supreme Court of India reported in the case of Kulwant Rai v. State of Punjab, . There the Supreme Court has observed that when a quarrel was followed by assault and the accused gave deceased on blow with dagger, in such a case it cannot be inferred that there was no intention on the part of accused to cause death and therefore Section 302 would not be attracted. According to the Supreme Court the case was covered by Section 304 Part (II). Reliance was also placed on few more judgments of the Supreme Court of India to the said effect contention being that where it is a case of single injury following on petty quarrel resulting in sudden heat between the parties it cannot be a case of intentional death requiring penalty for murder.
11. The learned additional public prosecutor relied heavily on the deposition of P.W. 1 and quoting the inciting words of accused No. 2 contended that this was a clear indication of intention to commit murder and in the facts. From the circumstances of the case and the narration of facts by P.W. 1 himself it is obvious to us that the intention was not to commit murder but was to teach the victim a lesson of his life. They did not anticipate that such an assault may result into death but certainly they had the knowledge that such assault may cause death. In our opinion, therefore it is a fit case where conviction should be under Section 304 Part II.
12. We therefore allow the appeal partly. The order of conviction and sentence under Section 302 read with section 34 of IPC is set aside and instead both the accused are convicted under Section 304 Part II read with Section 34 of IPC and are liable to be punished accordingly.
13. Accused No. 1-Indersen @ Vakil Ramsurat Yadav was in jail from the date of his arrest till today. In our opinion, interest of justice would be made if he is sentenced to suffer rigorous imprisonment for nine year under Section 304 Part II. Accused No. 1 being in jail for all this time may be entitled to be released immediately. Appropriate action in this regard may be taken by the Appropriate Authority.
14. The case of accused No. 2-Indravati Ramsurat Yadav is however different. She was released on bail by this Court when the appeal was admitted and therefore she had been in jail only for few months. Interest of justice requires that she is sentenced to suffer imprisonment for nine years. She being on bail is granted 15 days time to surrender to bail. If she does not so surrender appropriate Police Authorities to take immediate steps for her arrest. She will have to undergo remaining sentence immediately thereafter.
15. In the result, therefore appeal stands partly allowed as mentioned above. Appeal accordingly stands disposed of.