JUDGMENT
Vishnu Sahai, J.
1. By means of this appeal the appellant has challenged the judgment and order dated 25th June, 1982, passed by the learned Additional Sessions Judge, Pune, in Sessions Case No. 189 of 1981, convicting and sentencing him to undergo imprisonment for life under section 302 I.P.C.
Along with the appellant two others viz., Balu Shivji Jagtap and Mumtaz Kasam Shaikh were also tried; whereas the latter was acquitted the former was convicted under section 352 I.P.C. and was sentenced to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for one month. However he has not preferred any appeal challenging his conviction and sentence.
2. Briefly stated the prosecution case runs as follows:
In the red light area of the Budhwar Peth, Pune is situated a “B” Grade hotel called ‘Samadhan’ hotel. At the time of the incident the manager of the said hotel was one Devidas Keshav Waghavkar P.W. 8. A number of waiters, including Maruti Asaram Shinde P.W. 4, Mahatma Manikrao Balgir P.W. 13, Karim Abdul Shaikh (the deceased), Arun and Panchappa used to work in the said hotel which was situated in Dhamdhere Lane, wherein the appellant, Balu Jagtap and Mumtaz Kasam Shaikh used to live. The appellant and the said co-accused were known to Maruti Shinde P.W. 4 and Mahatma Balgir P.W. 13, from about 7 months prior to the incident.
On 7-10-1981 as usual Samadhan hotel opened at 5 a.m. At about 5.30 a.m. the appellant, Balu Jagtap and Mumtaz Kasam Shaikh came and ordered ‘poha’ (a salted rice preparation) and ‘sheera’ (a sweet preparation). The same were served to them by the waiter Karim Abdul Shaikh. It is alleged that after consuming poha and sheera the appellant and others without paying the bill left the hotel. Naturally Karim Abdul Shaikh followed them and after some time returned and told Maruti Shinde, Mahatma Balgir, Panchappa and Arun that the appellant and others were not making the payment. Thereupon, the said persons along with Karim Abdul Shaikh came out of the hotel and entered the lane leading to Shrikrishna talkies. It was about 6 a.m. at that time. They came to the appellant and others Karim Abdul Shaikh said to them. “Thumara Baapa ka mal hai kya”. On that Balu Jagtap turned round and caught hold of him by the wrist and said that they were not going to make the payment. He also abused Karim Abdul Shaikh. At that time Mumtaz Shaikh picked up a stone and the appellant whipped out a knife and inflicted a solitary blow on the chest of Karim Abdul Shaikh with the same as a result whereof he fell down. Thereafter the appellant and others ran inside the Dhamdhere lane. This incident is also alleged to have been seen by Vijaya Tukaram Shinde, a prostitute.
3. Immediately after the incident Maruti Shinde, Mahatma Balgir, Panchappa and others came back to the hotel. They woke up the hotel manager Devidas Keshav Waghavkar P.W. 8. Mahatma Balgir informed him that Karim Abdul Shaikh had been stabbed by a customer.
Devidas Keshav Waghavkar thereupon informed the police control room. His telephone was received by P.S.I. Vasant Vithal Punekar, P.W. 14. The evidence of P.S.I. Punekar is that the information conveyed to him on telephone was that a waiter in Samadhan hotel had been stabbed by a customer. Immediately thereupon P.S.I. Punekar sent the wireless vehicle (Alpha), which was at Umbrya Ganpati Chowki and directed it to proceed to Samadhan hotel. He also informed P.S.O. Jagtap of Pharaskahana Police Station about the incident. At about 6.18 a.m. Alpha reached Samadhan hotel. Thereafter along with some police personnel Devidas P.W. 8 went in the lane leading to Shrikrishna talkies. He and the police lifted Karim Abdul Shaikh who was lying there and put him in the police van. Immediately the police van was rushed to Sassoon hospital. There Devidas and others were informed that Karim Abdul Shaikh was dead.
In the meantime, one of the waiters Panchappa suggested to Maruti Shinde and Mahatma Balgir P.W. 13 that they should ask Vijaya Shinde who was present on the place of the incident the names of the assailants of the deceased. Hence they went to Dhamdhere lane where Vijaya lived. Panchappa went inside Vijaya’s room and she gave out to him their names. Thereafter they asked her to accompany them to the police chowki, Shukrawar Peth. At the police chowki the Sub-Inspector of Police was not present. At about 6.45 a.m. P.S.I. Krishna Ganpati Magdoom P.W. 16 of Shukrawar Peth chowki which was under Pharaskhana Police Station received information about the incident. He rushed to the chowki and found Vijaya present there. The evidence is that after leaving Vijaya at Shukrawar Peth chowki, Maruti, Mahatma, Panchappa and others had gone back to the hotel. After making enquiries from Vijaya P.S.I. Magdoom immediately left for Sassoon Hospital. He met Devidas Waghavkar the manager of Samadhan Hotel who reported that Karim Abdul Shaikh was dead.
4. The written F.I.R. of the incident was made by P.S.I. Magdoom P.W. 16 at Pharaskhana Police Station. In the F.I.R. the facts mentioned in paragraphs 2 and 3 and the names of the appellant, co-accused Balu Jagtap and Mumtaz Kasam Shaikh, are mentioned. On the basis of the F.I.R. a case under section 302 read with 34 I.P.C. was registered at 8 a.m. at Police Station Pharaskhana the same day.
5. Immediately after lodging the F.I.R. P.S.I. Magdoom proceeded to the place of the incident and drew up the spot panchnama. Thereafter he recorded the statement of Vijaya Tukaram Shinde. He learnt that the appellant and others had gone to the house of the maternal uncle of co-accused Balu Jagtap in Khed. He directed Head Constable Devidas Khadtare P.W. 10 to produce them before him. Thereafter he recorded the statements of Mahatma, Maruti, Arun and others. The same day the clothes of the deceased which were seized under a panchanama were produced before him. That day he directed police constable Hundal of the anti-corruption branch to draw the sketch of the scene of offence.
At 4 p.m. the appellant and co-accused Balu Jagtap who had been arrested earlier in the day by H.C. Khadtare were produced before him. Under a panchanama Exhibit 18, in the presence of public panch Sudhir Keshavrao Taur P.W. 5, a medical practitioner, a blood stained shirt and a blood stained pyjama which the appellant was putting on was seized. Under the same panchanama a full sleeves shirt which was blood stained and which co-accused Balu Jagtap was wearing was also seized. A full pant which Balu Jagtap was wearing was also seized but there is no mention in the recovery memo of its being stained with blood.
The appellant was interrogated and during the course of interrogation he disclosed that he could get the weapon of assault recovered. Consequently, under a panchnama Exhibit 21, in the presence of public panch Arun Shinde P.W. 6 the same day, a blood stained knife was recovered. The said recovery was affected on the pointing out of the appellant from behind the empty cardboard box which was kept on the loft of the Government country liquor shop in House No. 930 at Ramoshi Ali in Khed. The said knife was found to be stained with blood.
6. On 8.10-1981 the investigation of the case was taken over by P.S.I. Madhukar Jadhav. Nothing significant appears to have been done by him, excepting that he submitted the charge-sheet against the appellant, Balu Jagtap and Mumtaz Kasam Shaikh under section 302 read with 34 I.P.C. and under section 142 of the Bombay Police Act.
7. Going backwards the autopsy on the dead body of the deceased Karim Abdul Shaikh was conducted between 10 a.m. to 11 a.m. on 7.10.1981 by Dr. Laxmikant Kashinath Bade P.W. 1. Dr. Bade found on the corpse a Stab injury transversely placed on front of chest 1/2″ above xiphoid process measuring 1.6″ x 0.6″ Margins and Angles clean cut at the level of 5th rib.
On internal examination he found fracture of sternum; stab injury on the right side of pericardium; and stab injury on the right side of heart involving right auricle, vertical and pulmonary trunk also.
In the opinion of Dr. Bade the deceased died on account of shock as a result of the stab injuries to the heart. He also opined that the injuries sustained by him could be caused by the knife (Article 11) shown to him (Article 11 is the knife which was recovered on the pointing out of the appellant). He further opined that the injuries of the deceased were sufficient in the ordinary course of nature to cause death.
8. The case was committed to the Court of Sessions in the usual manner. In the trial Court the appellant, co-accused Balu Jagtap and Mumtaz Kasam Shaikh were charged under section 302 read with 34 I.P.C. In the alternative the appellant was charged under section 302 I.P.C. simpliciter. To the charges the appellant and others pleaded not guilty and claimed to be tried.
In the trial Court, apart from proving some documentary evidence the prosecution examined as many as 18 witnesses. Out of them two namely, Maruti Asaram Shinde P.W. 4 and Mahatma Balgir P.W. 13 were examined as eye-witnesses. In defence no witness was examined.
The learned trial Judge after considering the evidence on record and hearing submissions of learned Counsel for the parties convicted and sentenced the appellant in the manner stated above.
Hence this appeal.
9. We have heard Mrs. Anita Agarwal for the appellant and Mrs. Jyoti S. Pawar Additional Public Prosecutor for the State of Maharashtra, at considerable length. We have also gone through the material exhibits tendered by the prosecution; the deposition of the prosecution witnesses; the statement of the appellant recorded under section 313 Cr.P.C.; and the impugned judgment. After giving our anxious consideration to the matter we are of the opinion that this appeal deserves to be partly allowed in-as-much as, in our view, the appellant deserves to be acquitted under section 302 I.P.C. and instead should be convicted under section 304 Part II I.P.C.
10. The first question to be examined is whether the evidence adduced by the prosecution against the appellant inspires confidence or not? In the instant case prosecution has adduced evidence of a dual nature: (a) the ocular account furnished in the form of evidence of Maruti Shinde P.W. 4 and Mahatma Balgir P.W. 13; and (b) circumstantial evidence in the form of recovery of blood-stained clothes from the person of the appellant and recovery of knife on the pointing out of the appellant; both on the date of the incident itself.
11. We would first like to take up the ocular account furnished by Maruti Shinde and Mahatma Balgir. It is on the basis of the averments contained in their examination-in-chief that we have set out the prosecution story in paragraphs 2 and 3. In our view no useful purpose would be served by reiterating the same.
In short both these eye-witnesses have stated that they, the deceased Karim Abdul Shaikh, Panchappa and Arun were waiters in Samadhan hotel and the said hotel used to open at 5 a.m. They also stated that on 7-1-1981 at about 5.30 a.m. the appellant Suresh, Balu Jagtap and Mumtaz Shaikh came to the said hotel and had Poha and Sheera. The same was served to them by the waiter Karim Abdul Shaikh who was attending on them. They further stated that after consuming Poha and Sheera the appellant and others without paying the bill left the hotel. Immediately on their leaving Karim Abdul Shaikh enquired at the counter from Shantaram whether they had made the payment of bill. Shantaram replied in the negative. On that Karim Abdul Shaikh came out of the hotel and started following them. At some distance he accosted them and asked them to make the payment. The same was refused by them. Thereupon Karim Abdul Shaikh immediately came back to the hotel and told them that the appellant and others were not making the payment. Thereupon, all of them came out of the hotel and rushed towards appellant and others. They asked them to make payment. Appellant and Balu Jagtap refused to make payment and instead abused them. Thereafter Balu Jagtap caught hold of the wrist of Karim Abdul Shaikh, Mumtaz picked up a stone and the appellant who was carrying a knife whipped out the same and inflicted a solitary blow on the chest of Karim Abdul Shaikh. Karim Abdul Shaikh fell down as a consequence of the aforesaid blow. Thereafter they came back to the hotel and woke up the hotel manager Devidas Keshav Waghavkar P.W. 8 and informed him about the incident who in turn informed the police control room.
12. We have gone through the statements of both Maruti Shinde P.W. 4 and Mahatma Balgir P.W. 13 and find them to be reliable witnesses. The manner of assault, as deposed to by them is corroborated by the medical evidence. Both of them deposed that the appellant inflicted a solitary knife blow on the deceased and the autopsy surgeon Dr. Bade, P.W. 1, found a stab wound on the left side of the chest of the deceased which he opined could be caused by the knife shown to him (Article 11 recovered on the pointing out of the appellant).
Assurance is lent to the claim of these witnesses of having seen the incident by the circumstance that they were interrogated on the date of the incident itself prior to 4 p.m. by P.S.I. Magdoom P.W. 16. Criminal Courts attach great importance on the prompt interrogation of witnesses under section 161 Cr.P.C. as the same substantially eliminates an adulterated account creeping in, in the statements of witnesses.
Assurance is also lent to the claim of these witnesses of having seen the incident by the circumstance that from the place of the incident the Investigating Officer recovered earth smeared with blood.
It is also significant to point out that both these witnesses are independent witnesses and had no axe to grind against the appellant. In the absence of any enmity on their part against the appellant we are not prepared to believe that they would have falsely implicated him.
It is also significant to point out that Samadhan Hotel where both these witnesses were working as waiters is in the immediate proximity of Dhamdhere lane in which the appellant and the co-accused persons resided. Hence we find no difficulty in accepting their statement in the trial Court to the effect that they knew the appellant and others from about 7 months prior to the incident.
13. We may also mention that during the course of cross-examination of Maruti Shinde a suggestion of right of private defence of person on behalf of accused was given. One of the questions put to Maruti Shinde P.W. 4 was that Karim Abdul Shaikh himself came with a knife and raised the same and then one of the accused persons snatched it and stabbed him. This suggestion was denied by Maruti Shinde. Another suggestion made in the next breath to Maruti Shinde was that a struggle took place between the waiter (Karim Abdul Shaikh) and the customer (one of the accused persons) for possession of the knife and during the same the waiter was accidently stabbed. This was also denied by him. The said suggestion of right of private defence of person given to Maruti in our view lends assurance to the account of incident given by him pertaining to the presence of the accused persons on the spot.
Assurance to the claim of Mahatma P.W. 13 of having seen the incident is lent by the fact that in his examination in chief he stated that the appellant was putting on a pyjama and a biscuit coloured shirt at the time of the incident and a perusal of the recovery panchanama of the clothes of the appellant and the evidence of the recovery witness, Sudhir Keshavrao Taur P.W. 5, a doctor by profession, shows that a blood stained biscuit coloured shirt and pyjama which the appellant was wearing was seized by P.S.I. Magdoom at 4 p.m. on the date of the incident from the appellant.
14. We now take up the clinching circumstantial evidence adduced by the prosecution against the appellant in the instant case. On the date of the incident i.e. on 7-10-81 the appellant along with co-accused Balu Jagtap was arrested by Head Constable Phadtare, P.W. 10. After apprehending them he took them to Pharaskhana Police Station. At the said police station the appellant and Balu Jagtap were produced before P.S.I. Magdoom P.W. 16. Under a panchanama in the presence of public panch Sudhir Taur, a medical practitioner, P.S.I. Magdoom recovered the blood stained shirt and the blood stained pyjama which the appellant was putting on. During the course of interrogation that day the appellant informed P.S.I. Magdoom that he could get the weapon of assault viz. the knife, recovered. Pursuant to that information P.S.I. Magdoom along with recovery witness Arun Shinde P.W. 6 and some police personnel left in a jeep towards Khed. On reaching Khed the appellant took them to a Government country liquor shop situate in house No. 930 at Ramoshi Ali. Inside the said shop from behind an empty card board box which was kept on the loft of the shop he produced the blood stained knife.
It is pertinent to note that the shirt, the pyjama and the knife were sent to the Chemical Analyst who found blood of group ‘B’ on them. The clothes of the deceased were also sent to the chemical Analyst who found the same to be stained with blood of group ‘B’. The sample of blood of the appellant was taken by Dr. Madhukar Sonawane P.W. 17 and sent to the Chemical Analyst who found it to be of group ‘A’. In our judgment the presence of blood of ‘B’ group on the shirt, pyjama and knife; the first two having been recovered from the person of the appellant and the third on his pointing out is a very clinching piece of evidence against the appellant for his blood group was ‘A’ and that of the deceased ‘B’. It appears that while the appellant was assaulting the deceased with a knife he came into very close contact with him and hence the blood of the deceased fell on his clothes and the knife.
It is significant to point out that the knife recovered on the pointing out of the appellant, Article 11, was shown to the autopsy surgeon Dr. Bade, P.W. 1, during the course of his statement in the trial Court and he categorically stated that the ante mortem injuries sustained by the deceased could be caused by it.
15. We have gone through the evidence in respect of recovery of clothes which the appellant was putting on and also that of the knife which was recovered on his pointing out. As said earlier, in respect recovery of clothes, apart from P.S.I. Magdoom, we have the evidence of P.W. 5 Sudhir Taur who is a medical practitioner. We have gone through his statement and we find that the same inspires implicit confidence. In our view, veracity of this witness could not be discredited in any manner. He is a wholly independent witness and had no axe to grind against the appellant. A man of his standing, to our thinking, would never have falsely deposed about the said recoveries. We also find the evidence of P.S.I. Magdoom in respect of the recovery of shirt and pyjama to be reliable. Again he too had no reason to falsely implicate the appellant.
We also find the evidence in respect of recovery of knife to be cogent and convincing. Apart from P.S.I. Magdoom, prosecution examined Sudhir Shinde, a public panch of the said recovery. He appears to be a wholly independent witness. In our view unless knife was recovered at the pointing out of the appellant he would not have falsely deposed this. His evidence could not be discredited in any manner. Even in respect of recovery of knife we find the evidence of P.S.I. Magdoom convincing. Both Sudhir Shinde and P.S.I. Magdoom are wholly independent witnesses and had no rancour or malice against the appellant. It is significant to point out that the knife was recovered from behind the cardboard box, from the loft of the Government country liquor shop in Khed on the pointing out of the appellant. This place of recovery was in the exclusive knowledge of the appellant. Hence the knife recovered cannot be said to be planted.
16. In our view, even had there been no ocular account in the instant case, the circumstantial evidence adduced by the prosecution against the appellant conclusively establishes his involvement in the crime. To sum up the said circumstantial evidence is – (a) within ten hours of the incident the appellant was apprehended and produced before P.S.I. Magdoom and under a panchanama in the presence of public panch Sudhir Taur P.W. 5 a blood stained shirt and pyjama which he was putting on were recovered; (b) immediately after the seizure of blood stained clothes from the appellant, the appellant expressed his willingness to produce the weapon of murder viz. knife and the same day the knife was recovered on the pointing out of the appellant under a panchanama, from a place which was within his exclusive knowledge, in the presence of public panch Arun Shinde, P.W. 6; (c) on the pyjama, shirt and knife blood of group ‘B’ was found by the Chemical Analyst; (d) on the clothes of the deceased the chemical analyst also found blood of group ‘B’; (e) the sample of blood of the appellant was taken by Dr. Sonavane P.W. 17 and sent to the chemical analyst who opined that it was of group ‘A’; and (f) the autopsy surgeon Dr. Bade P.W. 1, when shown the knife during the course of his deposition emphatically stated that the injury of the deceased could be caused by it. In our view the said circumstances are wholly and only compatible with the inference of the guilt of the appellant and incapable of being explained on any other hypothesis excepting that of his guilt. To us they appear to be wholly incompatible with the innocence of the appellant.
17. In our judgment there was sufficient evidence, both ocular and circumstantial to establish the involvement of the appellant in the incident and the learned trial Judge rightly concluded to this effect.
18. We now propose to consider the manifold submissions made before us by Mrs. Agarwal, learned Counsel for the appellant. Mrs. Agarwal firstly urged that Vijaya Shinde, the prostitute, who is alleged to have seen the incident and from whom the waiter Panchappa came to know the names of the appellant and others was a witness whose evidence was essential to the unfolding of the narrative and her non-examination has caused prejudice to the appellant. There can be no quarrel with Mrs. Agarwal’s contention that Vijaya was a witness whose evidence was essential to the unfolding of the narrative. However, we find that the prosecution has furnished a cogent explanation for her non-production. Police Constable Gajanan Pawar P.W. 15 was directed to serve summons on Vijaya for giving evidence in the case. He stated that he went to 351 Budhwar Peth, where Vijaya’s used to reside and which was the address given in the summons. When he reached there he learnt that she was not residing there since the last two to three months. The said constable also stated that for finding out and serving summons on Vijaya he made enquiries on several places in Budhwar Peth and Shukrawar Peth but his endeavour failed. He also stated that as there was possibility of finding her at Dahiwadi he enquired there but she could not be found. He finally stated that he made an enquiry with the landlord of the house and even recorded his statement.
It appears from the evidence of Constable Pawar that he made every possible endeavour to trace Vijaya. And if in the end Vijaya could not be traced out the blame could not be laid up on the prosecution.
We believe the evidence of constable Pawar. He is a wholly independent witness and had no axe to grind against the appellant and others. To our dismay we find that not a single question was put to this witness in cross-examination to discredit his evidence.
In such a situation we are constrained to observe that we find no merit in the first submission of Mrs. Agarwal and reject the same.
Secondly, Mrs. Agarwal urged that Panchappa to whom Vijaya disclosed the names of the appellant and others inside her room was also a witness whose evidence was essential for the unfolding of the narrative and we should draw an adverse inference against the prosecution for not examining him. We are not inclined to accede to this contention either. The thing to be borne in mind is that Maruti Asaram Shinde P.W. 4, Mahatma Manikrao Balgir P.W. 13 and Panchappa were eye-witnesses of the incident and in our view since the prosecution examined Maruti and Mahatma it was not incumbent for it to examine Panchappa. After all the production of Panchappa would only have multiplied the ocular account and it is well settled that evidence has to be weighed and not counted. Apart from this it appears that this was not one of those cases in which the prosecution did not want to examine Panchappa but since the latter had suddenly disappeared it was not able to do so. Mahatma P.W. 13 has stated in his examination in chief (in para 3) that since yesterday Panchappa is not available. In these circumstances Panchappa could not be produced. If the defence felt that it was incumbent to produce him the defence counsel should have made an application to the trial Court for his production. This has not been done in the instant case. Even assuming for arguments sake that Panchappa was an essential witness, in our view, his non-examination would not wash off the weight of the ocular account given by Maruti Asaram Shinde P.W. 4, and Mahatma Manikrao Balgir P.W. 13 and the clinching circumstantial evidence adduced by the prosecution in this case.
Thirdly, Mrs. Agarwal contended that inasmuch as the evidence on record is that neither Maruti Asaram Shinde P.W. 4, nor Mahatma Manikrao Balgir P.W. 13 knew the appellant by name and his name was only learnt by them from Panchappa who was informed by Vijaya Tukaram Shinde it was obligatory for the prosecution to have got the identification of the appellant done. We do not find any merit in this contention either. Both Maruti Asaram Shinde P.W. 4, and Mahatma Manikrao Balgir P.W. 13 have stated in their statements that they knew the appellant from 7 months before the incident. We are inclined to believe them because the evidence is Dhamdhere lane where the appellant lived was contiguous to Samadhan hotel where Maruti Asaram Shinde and Mahatma Manikrao Balgir worked as waiters. Mahatma P.W. 13 has also stated that he had seen the appellant at the police station in the evening, on the date of the incident itself. In such a situation the identification of the appellant, in our opinion would have been a farce. Even assuming for arguments sake that it was necessary to hold test identification, in our view, the failure of the prosecution to do so would not make inadmissible the evidence of identification of the appellant in the Court by Maruti Asaram Shinde P.W. 4 and Mahatma Manikrao Balgir P.W. 13. In the Court both these witnesses have identified the appellant and his associates as the very persons who participated in the incident. We are fortified in our view by the observations of their Lordships of the Apex Court in paragraph 5 of their judgment , Kanta Prasad v. Delhi, Administration, which are to the following effect:
“(5) As for the test identification parade, it is true that no test identification parade was held. The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance. It would no doubt have been prudent to hold a test identification parade with respect to witness who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.”
Hence this contention of Mrs. Agarwal also fails.
Fourthly, Mrs. Agarwal contended that the information given by the manager Devidas Waghavkar P.W. 8 on telephone to the police control room was that a waiter in Samadhan Hotel had been stabbed by a customer. Mrs. Agarwal urged that this is not under-standable because in his cross-examination Waghavkar has stated that prior to his informing the police control room he had learnt the names of the appellant and others from Panchappa. We also do not find any merit in this contention of hers. In our view the aforesaid statement was made by Devidas Waghavkar under some confusion.
The prosecution case is that subsequent to the telephonic information sent by Devidas P.W. 8 to the police control room the police van arrived and in the same Devidas P.W. 8 and Karim Abdul Shaikh proceeded for Sassoon hospital. During cross examination Mahatma Balgir stated that 10 to 15 minutes after the police van had left, he along with Panchappa left to the house of Vijaya Tukaram Shinde. The prosecution case is that the names of the accused persons were learnt by Panchappa from Vijaya in the room of the latter. In this factual matrix it becomes crystal clear that the telephone by Devidas P.W. 8 to the police control room preceded Panchappa’s visit to Vijaya’s room where Panchappa learnt the names of the accused from Vijaya. In these circumstances it was only natural that the names of the accused persons should not have found place in the telephonic message sent by Devidas Waghavkar P.W. 8 to the police control room. Hence this contention of Mrs. Agarwal also fails.
19. We now turn to the real bone of contention between the counsel for the parties namely whether an offence under section 304 Part II I.P.C. is only made out as emphatically contended by Mrs. Agarwal or one under section 302 I.P.C. as equally emphatically repudiated by Mrs. Jyoti S. Pawar, the Additional Public Prosecutor.
Mrs. Pawar vehemently urged that the offence in this case would squarely fall within the ambit of Clause thirdly of section 300 I.P.C., the breach of which is punishable under section 302 I.P.C.
Now we propose examining the said contention of Mrs. Pawar. Section 300 I.P.C. provides:
“300. Murder-Except in the cases hereinafter excepted, culpable homicide is murder….
Thirdly-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death”……
The magnum opus on Clause thirdly of section 300 I.P.C. is the decision of the Apex Court Virsa Singh v. State of Punjab. Bose, J., speaking for the Court in the context, when Clause thirdly would apply, observed thus:
“12) To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300 “thirdly”;
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.”
20. The contention of Mrs. Pawar is that all the elements necessary for the application of Clause thirdly are established in the instant case. She urged that—
(a) there was an injury; (b) the injury was on a vital and dangerous part of the body namely, the left side of the chest; (c) when the appellant assaulted the deceased with a knife on the left side of chest it can safely be inferred that he intended causing that injury and there is nothing to indicate that the injury inflicted by the appellant was accidental or unintentional; and (d) the opinion of Dr. Bade who performed the autopsy on the deceased was that the injury suffered by the deceased was sufficient in the ordinary course of nature to cause his death.
Mrs. Pawar urged that the opinion of the autopsy surgeon that the injuries of the deceased were sufficient in the ordinary course of nature to cause his death is based on sound data. In order to adjudicate upon her submission we had a second look at the autopsy report and found that the autopsy surgeon Dr. Bade found on the person of the deceased the following injuries:—
Stab injury transversely placed on front of chest 1/2″ above xiphoid process measuring 1.6″ x 0.6″ Margins and Angles clean cut at the level of 5th rib.
On internal examination the doctor found:—-
a) clean cut fracture of the body of sternum measuring 2″ in length;
b) stab injury on R.T. side of pericardium measuring 2″ in length; and;
c) stab injury R.T. side of heart measuring 2″ in length involving R.T. auricle, ventricle and pulmonary trunk also.
Looking to the evidence of Dr. Bade, P.W. 1 and a bare perusal of the injuries sustained by the deceased there cannot even be an iota of doubt that the injuries suffered by the deceased were definitely sufficient to cause death in the ordinary course of nature as urged by Mrs. Pawar. We even go to the extent of saying that even if Dr. Bade not stated this we would have concluded that the injuries of the deceased were sufficient in the ordinary course of nature to cause his death on the injuries suffered by him.
Hence Mrs. Pawar urged that the learned trial Judge acted correctly in convicting the appellant under section 302 I.P.C.
21. Mrs. Pawar also urged and with her customary tenacity too, that right from 1958 till the present day the decision in Virsa Singh’s case continues to control the field on the question as to when Clause thirdly of section 300 I.P.C. would have application. She invited our attention to the decision of the Apex Court State of Karnataka v. Vedanayagam, wherein the view taken by the Apex Court in Virsa Singh’s case has been reiterated.
22. There can be no quarrel with Mrs. Pawar’s contention that the decision of the Apex Court in Virsa Singh’s case still continues to hold the field on the question of the conditions necessary for application of clause thirdly.
23. It is true that Virsa Singh’s case continues to hold the field on clause thirdly as urged by Mrs. Pawar.
But we would like to emphasise that Virsa Singh’s case and Clause thirdly of section 300 I.P.C. would only have application if the prosecution establishes beyond any shadow of doubt that the four prerequisites laid down in it by Bose J., which have been spelt out in paragraph 19 of this judgment, are established by the prosecution.
Mere presence of a injury on a vital part of the body coupled with its sufficiency to cause death in the ordinary course of nature is not enough to bring an act within the mischief of Clause thirdly of section 300 I.P.C. For the application of Clause thirdly of section 300 I.P.C. the prosecution has to establish that the injury inflicted by the accused was actually intended to be inflicted by him. In other words it was not unintentional or accidental. This question often is a thorny one and the answer is not easy to give. And this is the bone of contention between Mrs. Pawar and Mrs. Agarwal; whereas Mrs. Pawar vehemently contends that there was an intention on the part of the appellant to inflict the particular bodily injury which he actually inflicted in terms of Virsa Singh’s case; Mrs. Agarwal equally vehemently repudiates that it is not established beyond reasonable doubt that the appellant intended inflicting the injury which he actually inflicted.
As said earlier Mrs. Pawar contends that the appellant intended inflicting the injury which he actually inflicted because in her contention the injury must have been aimed at the chest for there is nothing to indicate that it was accidental or unintentional. On the converse Mrs. Agarwal urges that the mere fact that the solitary knife blow inflicted by the appellant landed on the left side of the chest of the deceased should not be construed as an index of the intention to inflict it.
24. We would like to emphasise that the question whether there is an intention to inflict the particular injury which has been inflicted is always a question of fact and not one of law. The answer to it would depend on the peculiar facts of a case and it has been aptly said that facts of no two cases are similar.
25. In the instant case on the facts found, in our view, it cannot be safely concluded that the injury inflicted by the appellant on the deceased, was actually intended to be inflicted by him.
Let us now recapitulate the circumstances in which the incident took place.
On 7th October 1981 at about 5.30 a.m. the appellant, Balu Jagtap and Mumtaz Shaikh came to Samadhan hotel and had poha and Sheera. After eating the same the appellant and others without paying the bill left the hotel. Immediately thereafter Karim Abdul Shaikh, the waiter who was attending upon them, enquired at the counter from Shantaram whether they had made the payment of bill. Shantaram replied in the negative. On that Karim Abdul Shaikh started following them and at some distance he accosted them and asked them to make the payment. The same was refused by them. Thereupon Karim Abdul Shaikh immediately came back to the hotel and told Maruti Shinde, Mahatma Balgir, Panchappa and Arun that the appellant and others were not making the payment. Thereupon all of them came out of the hotel and rushed towards the appellant and others to ensure that they made the payment. The appellant and Balu Jagtap refused to make the payment and instead abused them. Balu Jagtap caught hold of the wrist of Karim Abdul Shaikh, Mumtaz picked up a stone and the appellant who was carrying a knife whipped out the same and inflicted a solitary blow on the chest of the deceased. All this happened on 7th October, 1981 at 6 a.m. which according to the eye-witnesses was the time of the incident. At that time the light must have been hazy.
26. The question is whether in the aforesaid factual matrix can it be said that the appellant intended inflicting the injuries which he actually inflicted. Our answer to this question is in the negative for the following reasons:
(a) there was no prior enemity between the appellant and the deceased and the assault on the deceased was a sequel to his insisting for the payment of bill by the appellant and others;
(b) the incident took place at 6 a.m. on 7th October, 1981 when the light must have been hazy. In that state of light the appellant might not have noticed that he was assaulting the deceased on his chest;
(c) only one injury with a knife was inflicted by the appellant on the deceased; and
(d) the appellant was aged about 21 years at the time of the incident is apparent from a perusal of his statement, recorded under section 313 Cr.P.C. (the Apex Court in the decision Raisul v. State of U.P., has observed that the estimate of age given in statement under section 313 Cr.P.C. should be accepted as true). In our view, on the aforesaid facts it cannot be said that the appellant intended to inflict the injury which he actually inflicted. Merely because the blow landed on the chest of the deceased cannot be construed as an index of the appellant’s intention to cause that injury.
27. We are fortified in our view by some decisions of the Apex Court which we now propose citing.
The first decision which we would like to refer to is the decision of the Apex Court Jawahar Lal and another v. State of Punjab. In the said case the facts have been mentioned in paragraph 3 of the judgment of the Apex Court. A perusal of the same would show that as a sequel to some quarrel which had taken place earlier, in a premeditated assault launched on the deceased (Darshan Singh) the appellant inflicted a solitary blow with a dagger on the chest of Darshan Singh and immediately after the incident Darshan Singh was rushed to the hospital where he was pronounced to be dead by the Medical Officer. A perusal of para 4 would show that Darshan Singh sustained an incised stab wound 4 1/2 cm. x 2 1/2 cm. on left side chest at 6 O’clock position, 3 1/2 cm. below left nipple oblique in direction. It would also show that the medical evidence was that the said injury was sufficient in the ordinary course of nature to cause death.
A contention similar to the one canvassed by Mrs. Pawar was advanced before the Apex Court viz. that the act of the appellant would fall squarely within the ambit of Clause thirdly of section 300 I.P.C. It was urged that Jawahar Lal intended to cause the particular injury which he actually inflicted and since the medical evidence showed the said injury was sufficient in the ordinary course of nature to cause death Clause thirdly would apply. Repelling the said contention the Apex Court in paragraph 15 observed thus:—
“Following a trivial dispute, 1st appellant a young immature boy aged about 19 years, gave one blow with a knife. The incident occurred at about 10.00 p.m. The light available was from an electric lamp post in the street. In this light upon a trivial quarrel, only one blow without any attempt at giving a second blow, was inflicted and that fell on the chest. Could it be said that the injury which was inflicted was the particular injury which was intended to be inflicted? If the answer is in negative and it is ought to be so, the important requirement in the first part of para 3 would not be satisfied. Merely because the blow landed on a particular spot on the body, divorced from the circumstances in which the blow was given, it would be hazardous to say that the 1st appellant intended to cause that particular injury. The weapon used was the usual handy weapon, a Punjabi generally carries a knife. The 1st appellant was near the shop. He did not attempt to inflict any more harm. In the available dim light, the blow landed on the chest. In our opinion, in these circumstances, it would be difficult to say that the 1st appellant intended to cause that particular injury, even if the injury inflicted proved to be fatal, the case would not be covered by para 3 of section 300”.
It would be apposite to refer to the decision of the Apex Court Kulwant Rai v. State of Punjab. In that case at the time of the offence the appellant was aged about 20 years; there was no prior enmity; a short quarrel had preceded the assault; and a solitary blow with a dagger was inflicted on the epigastrium region of the deceased. It appears that the contention canvassed by the defence counsel before the Apex Court was that the offence would not fall within the ambit of section 300 I.P.C. as found by the Sessions Court and the High Court but would fall within the four corners of section 304 Part II I.P.C. It appears that on the other hand the State Counsel contended that the act of the appellant would fall squarely within the ambit of Clause thirdly of section 300 I.P.C. Repelling the said contention the Apex Court observed in paragraph 3 thus:—
“3. When the matter was before the High Court it was strenuously urged that in the circumstances of the case Part I of section 300 would not be attracted because it cannot be said that the accused had the intention to commit the murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by part 3 of section 300 Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstances in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case part 3 of section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under section 304 Part II Penal Code.”
28. A perusal of the decisions (supra) and (supra) would show that the circumstances in which the Apex Court held that there was no intention to inflict the injury which was actually inflicted also exist in the present case. Applying the considerations detailed in the said decisions for determining the question whether the injury inflicted was the injury intended to the facts of the present case, we have our doubts whether the appellant intended to inflict the injury which he had actually inflicted on the person of the deceased, in terms of (supra). And the reasons for that doubt have been assigned by us in paragraph 26.
29. Since in our view the appellant did not intend to inflict the particular injury which he actually inflicted the ratio laid down in (supra) would have no application and that laid down in (supra) and (supra) would be squarely applicable. Hence the appellant would only be guilty for an offence under section 304 Part II I.P.C.
There is no escape from the inference on the facts found in this case, that when the appellant inflicted a solitary knife blow on the deceased he had the knowledge of his death contemplated by section 304 Part II I.P.C.
30. Mrs. Pawar placed reliance on a decision (supra) to press home her submission that the appellant intended inflicting the injury which he actually inflicted. We regret that we cannot accede to her contention that the said authority is squarely applicable to our case. In that case the Apex Court felt that there was an intention to cause the particular injury which the accused had actually caused because prior to stabbing the deceased on the left side of the chest he had uttered the words “You have defamed me, I would not leave you, I will kill you”. This aspect of the matter has been dealt by the Apex Court in para 7 of the said judgment. In the teeth of this exhortation made by the accused prior to his inflicting the solitary dagger blow on the left side of the chest of the deceased the Apex Court concluded that the appellant intended to inflict the particular injury which he actually inflicted. On facts found in the present case aforesaid decision cited by Mrs. Pawar is distinguishable. Here no such exhortation was either made by the appellant or by any of the two co-accused persons prior to the appellant inflicting a solitary knife blow on the deceased. As said earlier the question whether a particular bodily injury was intended is always a question of fact and not one of law. We have already given our reasons supported by the precedents of the Apex Court as to why in our opinion it has not been established beyond reasonable doubt that the appellant intended inflicting the particular injury which he actually inflicted. For this reason also the above decision of the Apex Court cited by Mrs. Pawar would have no application.
31. The question which arises is as to what should be the quantum of sentence which should be awarded to the appellant under section 304 Part II I.P.C. Mrs. Agarwal, learned Counsel for the appellant vehemently urged that in the two decisions of the Supreme Court viz. (supra) and from which we have drawn support for our judgment, the Supreme Court had awarded a sentence of 5 years R.I. and consequently we should also award the same quantum of sentence to the appellant. We regret that it is not possible for us to accede to her contention.
In our view there can be no precedent on the question of sentence for that is a matter of discretion of the sentencing Court. What sentence should be awarded in a given case would depend on the peculiar facts of that case. The motive for the incident, the manner in which the crime was committed, the weapon used, the citus and the gravity of the injury/injuries inflicted and the age of the accused are some of the considerations to be borne in mind while deciding the question of quantum of sentence.
In the instant case, in our view, a stringent sentence should be awarded to the appellant. The act of the appellant was certainly very high – handed. Firstly he along with his associates ate poha and sheera in the Samadhan hotel; immediately when the waiter Karim Abdul Shaikh went to ask for the payment he and his associates refused to make it; and thereafter when Karim Abdul Shaikh along with Maruti, Mahatma and others again went to ask for the payment, his associate Balu Jagtap caught hold of his wrist and hurled foul abuse on him and thereafter the appellant inflicted a solitary knife blow on Karim Abdul Shaikh. Not only was the act of the appellant in not making the payment and his carrying a knife shows that he was a desperado but also the injury which he inflicted was extremely grave and serious inasmuch as the sternum, pericardium, the right side of the heart, including the right auricle and ventricle were punctured, leading to practically instantaneous death of Karim Abdul Shaikh. That this happened in the heart of Pune town is also disturbing to us. In our view if leniency to such persons in the matter of sentence is shown it would provide impetus to people to commit crimes. In our view such acts have to be punished with a deterrent sentence.
In view of the facts mentioned above we are not inclined to accede to the submission of Mrs. Agarwal that since the incident took place nearly 15 years ago we should take a lenient view in the matter of sentence.
After giving our thoughtful consideration to the quantum of sentence we are of the view that a sentence of 7 years R.I. under section 304 Part II I.P.C. would meet the ends of justice.
32. In the result this appeal is partly allowed and partly dismissed. Although we acquit the appellant under section 302 I.P.C. and set aside his sentence of life imprisonment on that count we convict him for an offence under section 304 Part II I.P.C. and sentence him to undergo 7 years R.I. for the same. The appellant is on bail. He shall be taken into custody forthwith to serve out the sentence awarded to him.
At this stage Mrs. Agarwal made a oral prayer that since after a period of 15 years the appellant is being sent to jail we should give him some time to surrender. In our view it would not be proper to accede to her submission. After deciding the appeal of an accused person and finding him guilty it is not open to this Court to suspend the operation of its judgment for a limited period, which actually granting time to the appellant to surrender, would amount to. Further we cannot lose sight of the fact that if we do this in one case we would be opening the flood gates for in every matter in which the appeal of an accused is either dismissed or partly allowed, (as is the case here), such a request would be made. This is the last thing which we would like should happen. Hence this prayer of Mrs. Agarwal is rejected.
Before parting with this judgment we would be failing in our fairness if we do not mention that this appeal has been argued with great skill, both on facts and on law, by the learned Counsel for the parties. Their assistance has facilitated this judgment.