R.K. Batta, J.
1. The appellant was tried for the murder of Akash alias Bhakchand S/o Tilakchand Ambule, aged 27 years under Section 302 of the Indian Penal Code.
2. The prosecution case, in brief, is that the appellant had assaulted the deceased with an axe as a result of which the deceased had died within a period of 10 hours of the assault. The prosecution had examined 11 witnesses including 3 eye witness, three doctors, pancha of recovery of axe under Section 27 of the Indian Evidence Act, besides other witnesses including the Investigation Officer.
3. The trial court, after assessment of the evidence on record came to the conclusion that the prosecution had duly established the charge against the accused and as such, the appellant was held guilty under Section 302 I.P.C. and was sentenced to undergo R.I. for life which is the subject matter in this appeal.
4. Learned Advocate for the appellant urged before us that essentially. It is a case of one blow only even though other minor injuries have also been caused in the process of assault; that the appellant had used the blunt side of the axe and that there was no intention to kill. He placed reliance on three judgments of the Apex Court in the case of Hardev Bhanji Joshi v. State of Gujarat . Madhusudan Satpathy v. State of Orissa and Panchaiah v. State of Karnataka . Accordingly, he argued before us that in the facts and circumstances. The offence which may be made out would only be under Section 304 I.P.C.
5. Learned A.P.P. urged before us that the prosecution has established that the appellant had intention to kill the deceased through the evidence of three eye witnesses and that the appellant even tried to threaten the eye witness Ramchandra (P.W.3) who wanted to intervene in the matter, when the appellant not only showed him axe, but stated that he will murder everybody one by one and after that the appellant ran away. It was also pointed out by him that according to Doctors P.W.7 Dr. Dilip and P.W.8 or Satish, injury No. 2 out of the four injuries on the person of the deceased, was sufficient in the ordinary course of nature to cause death and that there is no case for interference or to bring down the offence from Section 302 I.P.C. to Section 304 I.P.C.
6. We have gone through the evidence on record. As we have already stated above that the prosecution has examined three eye witnesses, we shall make a brief reference to their testimony at this stage.
7. P.W.3 Ramchandra has stated that he was in his milk dairy and Akash was sitting in the shop of Dilip Sonewane. The accused was also in the shop of Dilip Sonewane. Akash was sitting on the bench and the accused was standing on his back with an axe in his hand. There was some talk between them. But, this witness could not hear what transpired. Thereafter, Akash started going towards the bus top and the accused followed him. Then, the accused gave one axe blow on the head of Akash due to which Akash fell down. After Akash fell down, the accused kept his leg on the leg of the deceased and he gave him two or three blows on his head and face. When Ramchandra (P.W.3) ran after the accused who had in the meantime started running, the accused uttered that nobody should touch him. He showed axe to Ramchandra and stated that he will murder everyone else. Ramchandra (P.W.3) was naturally frightened and did not run after the accused. According to this witness, Jivan was in his pan shop. He identified the axe (Article 14). Eventhough, this witness was cross-examined at length, yet his testimony could not be shaken.
8. The testimony of P.W.3 gets complete corroboration from the testimony of P.W.4 Dilip and P.W.5. Jivan. P.W. 4 Dilip has stated that he heard shouts of Akash after he started going towards Bus Stand from his shop. Thereafter, P.W.4 Dilip saw Akash lying on the ground and the accused was seen running. He saw accused giving one blow with the axe on the head of Akash and at that time, Akash was on the ground. P.W. 5 Jivan has stated that Akash was sitting in the shop of Dilip Sonewane. He got up and started going towards bus. Accused came from behind Akash and gave axe blow on the head of Akash. Ramchandra (P.W.3) tried to run behind the accused, but the accused abused and threatened, due to which Ramchandra stopped. P.W.5 Jivan saw Akash lying injured and he also saw the accused giving three axe blows on Akash. Both these witnesses P.W.4 and P.W.5 were cross-examined at length, but their testimony could not be shaken in the cross-examination.
9. The medical evidence on record shows that four injuries were found on the person of the deceased. According to Dr. Satish Jaiswal (P.W.8.) who conducted the post mortem, there were five injuries on the person of the deceased viz.
1) Incised wound on Rt. Midlateral side of parietal region upto Rt. Lateral occipital region. 2 in number one on another obliquely placed. 3″ x 1/2″ deep upto Brain and cutting skull a big size 3″ x 1/2″ Haematoma is present.
2) Incised wound on behind Rt. ear near Mastoid bone 2″ x 1/2″ deep upto inner nerve with cut through skull and mastoid bone obliquely.
3) Lacerated wound with abrasions with contusion on left lateral side of fore head above and on left eye brow. 1/2″ x 1/2″ deep upto bone.
4) Block eye left
5)Abrasion on nose.
According to Dr. Satish (P.W.8), the said injuries were sufficient to cause death. He has explained as to how he has described injuries Nos. 1 and 2 as incised injuries. According to him, the said injuries are skull injuries and the skull breaking always creates sharp edges. According to him, the axe which is before the court could cause the said injuries from the blunt side and not from the edges side. The post mortem report shows that there was compound multiple fracture of skull bones including right temporal, parietal and occipital with mastoid bone and the bone was cut into several pieces. According to Dr. Satish (P.W.8). the probable cause of death was head injury leading into multiple fracture of skull and brain damage with severe blood loss leading into shock and death. Dr. Dilip (P.W.7) also found similar injuries on the person of the deceased. According to him also, the injuries were caused by hard and blunt object. He also stated that injury No. 1 was sufficient in the ordinary course of nature of cause death and the injuries are possible by the axe before the court, but not from a sharp edged side. According to him, the patient was not in a condition to talk. The deceased, as we have already stated, died within 10 hours of the assault. Thus, the fact that the death is homicidal and that it is as a result of assault by the accused with axe is duly established with the evidence of witnesses P.W.3 Ramchandra, P.W.4 Dilip and P.W.5 Jivan.
10. The police had also recovered that axe at the instance of the accused. The prosecution has examined P.W.10 Kuwarsingh Panch Witness of this aspect who has stated that the accused had stated that he had hidden the axe in one ditch on Kawlewada Paldongri road in shrubs known as Sadasoli. Thereafter, the accused led the police party to the place. There was one big ditch of the diameter of about 60 to 70ft. That ditch was by the side of embankment of the tank. There was water of about 1 to 1 1/2 ft. in the ditch. There were shrubs of Sadasaoli in that water. From beneath that water and shrubs. The accused took out the axe. The Chemical Analyser found human blood on the said axe.
11. Thus, with the help of evidence referred to above, the prosecution duly established that the accused had caused the injuries on the person of the deceased as a result of which the deceased died within 10 hours of the assault.
12. Learned Counsel for the appellant has urged before us that the offence does not fall under Section 302 I.P.C. It may fall only under Section 304 I.P.C. and in support of his submissions. It has been urged by him that it is a case of one blow only. We cannot agree with the learned Advocate for the appellant on this aspect since it cannot be said to be a case of one blow only as the prosecution has been able to establish that the accused had inflicted four blows on the person of the deceased. The fatal blow of course was on the head of the deceased which, according to the Doctors, was sufficient in the ordinary course of nature to cause death. Beside that, the other blows were inflicted on the vital parts of the body viz. fore head and near the ear region. Injury No.2 was behind the right ear near Mastoid bone with cut throughout the skull and Mastoid been obliquely injury No. 3 was on the left lateral side of fore head above and on the left eye brow. As we have already pointed out. Dr. Satish (P.W.8.) who conducted post mortem, found compound multiple fracture of skull bones including right temporal, parietal and occipital with Mastoid bone and bone cut into several pieces. This means that the blow was given with great force on the vital part of the body which resulted in compound multiple fracture of the skull and damage to the brain. The intention to cause death is, therefore, crystal clear. In the assault which was made by the appellant on the deceased, the assault was with a deadly weapon, though, of course, sharp side was not used. There is nothing on record to show that there was any provocation or any quarrel prior to the incident. The rulings upon which reliance was placed are not attracted to the case under consideration since the said cases have been decided on the facts. In the case of Hardev Bhaji Joshi v. State of Gujarat 1993 Cri LJ 64 (SC) (Supra), it was a case of sudden quarrel as a result of which the offence fell under Section 302 Part II I.P.C. Likewise in the case of Madhusudan Satpathy v. State of Orissa, 1994 Cri LJ 144 (SC) (supra) there was a scuffle between the accused and the deceased and no deadly weapons was used. In the case of Panchaiah v. State of Karnataka 1994 Cri LJ 1213(SC) (supra) also. It was a case of bitter enmity between two groups where no deadly weapons were used and in the facts and circumstances, no intention to cause death could be inferred. Nevertheless, in the case before us. It is clear that the accused intended to kill. as a result of which, he had not only used a deadly weapons but had inflicted the blow with such a force that there was multiple fracture of the skull and brain damage. The accused did not stop after giving one blow on the head as a result of which the deceased had fallen, but even after the deceased had fallen, the accused inflicted three other blows.
13. In view of the above, we find that the conviction and sentence of the appellant for the offence of murder under Section 302 I.P.C. is well founded and it does not call for any interference whatsoever. The appeal is accordingly dismissed.