ORDER
Vishnu Sahai, J.
1. The appellant aggrieved by the judgment and order dated 6-1-1987 passed by the llnd Additional Sessions Judge, Thane, in Sessions Case No. 223 of 1986, convicting and sentencing him to undergo imprisonment for life under section 302, Indian Penal Code has come up in appeal before us.
2. In shod, the prosecution case is that about two and a half months prior to the
incident, a quarrel had taken place between the appellant and the deceased Pandurang,
in connection with the business of selling fish, and the former had threatened the
latter that he would see how long he would carry on the business of selling fish.
At about 5.00 p.m. on 25-3-1984 Pandurang told his wife Ladkai PW. 1 that he was going in the village and took a sum of Rs. 5/- from her. He thereafter went to the shop of Latif Abbas P.W. 6 and purchased Bidis and Ghana.Thereafter he left the shop and proceeded to road which passes by the cattle pound. At that time Shivda P.W. 2, Manvat P.W. 3 and Krishna P.W. 4 were following him. At about 7.00 p.m. when Pandurang came near the cattle pound, the appellant came from the opposite side. On seeing Pandurang the appellant took out a knife and inflicted a blow on the left side of the chest of Pandurang who shouted loudly and fell down on the ground. The appellant thereafter, ran away.
Marvat and Shivda went to the house of P.W. 5 Khalid Patel and told him about the assault made by the appellant on Pandurang. Thereafter, all of them came to the place of incident. By that time Pandurang had died. The Deputy Sarpanch Dundya Gowari was also called on the spot and on his advice, Shivda and Marvat went to the house of the deceased and informed Ladkai, his wife.
3. The F.I.R. of the incident wherein the appellant is named was lodged by Ladkai
P.W. 1 at about 12-30 a.m. on 26-3-1984 at Police Station Manor. It was recorded by
P.S.I. Maruti N. Sanap P.W. 9. On the basis of F.I.R. C.R. No. 53/84 was registered.
4. The investigation was conducted by P.S.I. Maruti N. Sanap P.W. 9 in the usual
manner. On 26-3-1984 itself he arrested the appellant. At that time, he was carrying a
knife in the pocket of the underpant. The said knife was seized under a panchanama. After
completing the investigation P.S.I. Sanap submitted chargesheet against the appellant.
5. Going backwards the post-mortem examination of the dead body of Pandurang
was conducted on 26-3-1984 by Dr. H.D.Singh (not examined). The doctor found that
the deceased had sustained a contused lacerated wound on the left side of chest of
the dimensions of 1 cm. x 1 1/2 cm. x 8 cm. depth.
6. The case was committed to the Court of Sessions in the usual manner. In the
trial Court in all 9 witnesses were examined by the prosecution. Three of them viz.
Shivda, Marvat and Krishna PWs. 2, 3 and 4 respectively gave ocular account. !n
defence one witness viz. Dr. Arvind D. Rekhade P.W.1 was examined to prove the
plea of insanity pleaded by the appellant.
The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above.
Hence, this appeal.
7. We have heard Mr. U.V. Nikam holding for Mr. A.P. Mundargi for the appellant
and Mr. D.S. Mhaisapurkar for the respondent. We have also perused the evidence
on record. In our judgment, this appeal deserves to be partly allowed.
So far as the involvement of the appellant in the incident is concerned, we do not have any iota of doubt. It is proved by the evidence of three eye witnesses viz. Shivda, Marvat and Krishna P.Ws. 2, 3 and 4 respectively. The said witnesses have explained their presence on the place of incident when the deceased was fatally assaulted. Their version that the appellant gave a blow to the deceased with a knife is corroborated by the ante-mortem injury suffered by the deceased. The said injury could be caused by a knife, in the opinion of Dr. Lalasaheb Shilvant P.W. 8 who was examined to prove the post-mortem report prepared by Dr. H.D. Singh as he was familiar with his handwriting.
Although these witnesses were subjected to a searching cross-examination, nothing could elicited therefrom which would impair their veracity. In our view, the learned trial Judges acted correctly in believing their evidence.
8. Assurance to the ocular account is lent by the circumstance that the F.I.R. of
the incident was lodged within five and a half-hours of the incident taking place by Ladkai
P.W. 1, the wife of the deceased and therein she has categorically stated that these three eye-witnesses informed her that the appellant stabbed the deceased with a knife.
A perusal of panchanama of the scene of offence shows that blood was found at the place where the eye-witnesses allege that the incident had taken place. The said blood was collected by the Investigating Officer and was sent to the chemical analyser whose opinion was that it was human. Recovery of human blood from the place of the incident adds weight to the ocular account.
Assurance is also forth-corning to the ocular account by the circumstance that there was enemity between the appellant and the deceased on account of selling fish and that led the former to kill the latter. The said enemity has been proved by Ladkai the wife of the deceased and we have no reason to disbelieve her evidence.
9. It is true that the learned trial Judge did not give any importance to the
circumstance that the chemical analyser found human blood on the knife recovered
from the appellant because in the recovery panchanama it was not mentioned that
the knife was having blood stains. Even if the said circumstance is excluded the
ocular account in our judgment, is sufficient for holding the involvement of the appellant in the incident.
10. In our view for the reasons mentioned in paragraphs 20 to 26 of the impugned judgment the learned trial Judge was fully justified in holding that the appellant had failed to prove that at the time of the incident on account of insanity he was incapable of understanding the nature and consequences of his act and what he was doing was contrary to law and therefore he was justified in not giving him the benefit of the plea of insanity under section 84 I.P.C.
11. This leaves us with only one question namely that of offence. In the instant case, as stated by the eye-witnesses whose account is corroborated by the post mortem report the deceased suffered a solitary injury. That injury unfortunately resulted in rupture of the major artery of the deceased and proved fatal. No other internal damage was caused to the deceased.
The Supreme Court in the decision Laxman Kalu Nikatje v. State of Maharashtra, wherein a knife blow which was 4 ins. in depth was inflicted on the chest of the deceased and had resulted in the auxiliary .artery being severed, observed in paragraph 11, that there could be no intention to cut the auxiliary artery and therefore inspite of medical evidence to the effect that the injury was sufficient in the ordinary course of nature to cause the death converted the conviction from section 302 I.PC. to 304 Part II I.P.C. on the ground that the appellant did not intend to inflict the internal injury which was sufficient to cause death in the ordinary course of nature and hence Clause Thirdly of section 300 I.P.C. will not apply but when he inflicted the injury on the said part of the body he had the knowledge that he was likely to cause the death of the deceased in terms of section 299(s/c 300) (Clause Thirdly) of the I.P.C.
The principle laid down in (supra) was followed by the Supreme Court in the case of Gokul Purshram Patil v. Stare of Maharashtra, . In that case as a sequel to a solitary knife blow given by the accused the superior venacava was cut and the medical evidence was that the injury which caused death of the deceased was sufficient in the ordinary course of nature to cause the death. Relying on the analogy in (supra), the Supreme Court altered the conviction from 302 I.P.C. to 304 Part II I.PC.
12. The ratio laid down in (supra) and (supra) is squarely applicable to the facts of the present case. The post-mortem report does not show any internal damage, excepting rupture of major artery. In our view the appellant could not have any intention to cause rupture of the major artery and hence it cannot be said that he intended to inflict the internal injury which was sufficient in the ordinary course of nature to cause death. Hence Clause Thirdly of section 300 I.P.C. would not be attracted. He could only be fastened with the knowledge of death contemplated by Clause Thirdly of section 299 of I.P.C. in terms that when inflicting a solitary knife blow on the chest of deceased he knew he was likely to cause his death. In that view of the matter, inspite of the medical evidence being to the effect that the injury suffered by the deceased was sufficient in the ordinary course of nature to cause death. We feel that the conviction of the appellant cannot be sustained for an offence under section 302 I.P.C. and only an offence under section 304 Part II I.P.C. is made out against him.
13. Coming to the question of sentence in our view since the major artery was ruptured the ends of justice will be satisfied if the appellant is awarded 7 years R.I. for the offence under section 304 Part II I.P.C.
14. In the result this appeal is partly allowed and partly dismissed. We acquit the appellant for the offence punishable under section 302 I.P.C. and set aside his sentence of imprisonment for life on that count. We convict him instead for the offence punishable under section 304 Part II I.P.C. and sentence him to undergo 7 years R.f. It appears that the appellant has already undergone 7 years’ R.I. If that be so, the appellant, who is in jail shall be released forthwith unless his detention is required in some other case.
Office is directed to communicate the operative part of this judgment forthwith to the concerned authorities.
Before parting with the judgment, we would !ike to record our appreciation for the act of Mr. U.V. Nikam in arguing this brief at hardly any notice.
15. Appeal partly allowed.