Bombay High Court
Shri Mirchu Gumanmal Damnani vs State Of Maharashtra on 30 June, 1998
Equivalent citations: (1998)100BOMLR55
Author: T.K. Chandrashekhara Das
Bench: Vishnu Sahai, T.K. Chandrashekhara Das
JUDGMENT T.K. Chandrashekhara Das, J.
1. As this matter is very old and it has been shown on the board for last several dates, we have took up this appeal for hearing on 23.06.1998. Since the counsel for the appellant was absent on that day, we partly heard this case for some time with the assistance of the A.P.P. and adjourned the matter to the next date. Since then, it has been shown on the board as a part heard matter. Today also, when we took up the matter for further hearing, learned Counsel for the appellant was absent. Therefore, we proceed with hearing of the appeal and deliver the judgment on merits in the absence of the counsel of the appellant. We are justified in resorting to this course of action, particularly in view of the decision Bani Singh and others v. State of U.P. . The said decision is cautioning the appellate Court against the dismissal of appeal for default in the absence of the counsel concerned.
2. We have read the judgment of the Court below and perused the records and evidence in this case. The appellant was convicted and sentenced for the offence under Section 302 of I.P.C. for life by the Additional Sessions Judge, Pune in Sessions Case No. 38 of 1984.
3. According to the prosecution the incident happened in the public place in Sant Kavalram Square in Plmpri area at 6.45 p.m. on 17th October, 1983. The accused and the deceased are the residents of that area. It is a busy and centrally located junction of the town. It is an important business area with several shops and theatres. At about 6,30 to 6.45 p.m. on 17th October, 1983, deceased Narayan Chawade who was fully drunk and was shouting loudly under the influence of liquor in the said square. He was using filthy language of abuses against whomsoever comes to him and try to persuade him to leave the place. One Mr. Mangalsingh Chavan, P.W. 1 Jiu alias Jayram Tirthane P.W.Z. Amrit Naiclu P.W. 3 were also there among the persons who had tried to persuade the deceased Narayan not to shout and leave the place, but he refused to leave the place and continued his shouting. The accused also joined them in persuading the deceased to go away. Then deceased Narayan started abusing the accused person in filthy language involving his mother and sister, which annoyed the accused person. The accused took out a knife from hip pocket and assaulted Narayan. Knife blow was given on the back of the deceased Narayan. He fell on the ground. Thereafter accused hit several blows with the knife on deceased on his chest, stomach, arms as well as head. The incident took place in the crowded place. When accused was giving knife blows on the deceased, some body from the crowd shouted about arrival of the police. The accused person took the knife and ran away towards Pimpri Railway Station. Police Sub Inspector Sanjiv More P.W. 4 who was coming on that way while returning to his quarters on scooter after making some purchase in the market, went to see the reason for gathering of the crowd. At that time he saw accused person stabbing Narayan with the knife. When accused saw, P.S.I. More, he ran away. But ultimately the accused went to Pimpri Police Chowki and surrendered himself before P.S.I. Gorde, inchargee of the police Chowki. In the meantime, P.S.I. More saw Narayan Chawde lying in the pool of blood in the public road. He summoned auto rickshaw and took Narayan Chawde to Pimpri Police Chowki. In the police chowki P.S.I. More saw that the accused person was present at the police chowki, his clothes were soaked with blood and blood stained knife was on the table of the chowki. P.S.I. Gorde was informed of the incident by the accused person. An ambulance was immediately summoned when the deceased was brought in auto rickshaw. The deceased Narayan Chawde was thereafter sent by the ambulance to Sasoon Hospital, Pune, escorted by one police constable. However, the deceased Narayan was declared dead at Sasson Hospital at 8.05 p.m.
4. On the basis of information given by the accused, P.S.I. Gorde has sent his report to Pimpri Police Station for registration of the offence punishable under Section 307 I.P.C., which was subsequently altered into the offence under Section 302 of the I.P. Code. After that investigation started, P.S.I. Gorde seized the clothes of the accused as well as knife produced by him under panchanama and he was arrested. Since there were couple of minor injuries on the left hand of the accused, he was also sent to Sassoon Hospital for medical examination with police escort. The investigation was taken over by Police Inspector Mr. Jadhav, in charge of Pimpri Police Station at about 8.45 p.m. Inspector Mr. Jadhav then visited the scene of offence accompanied by P.S.I. More who was also the eye witness of the incident. Panchanama of the scene of offence was made. Sample of dry blood lying on the spot was also taken. P.I. Jadhav recorded statements of six witnesses including Mangalsing, Jiu, Amrit Naidu as well as Sanjiv More. In Sassoon Hospital, Pune the dead body was sent for post mortem. The post mortem was performed on the body of the deceased Narayan on 18th October, 1983 after receipt of the post - mortem report and after completion of the investigation, charge-sheet has been filed before the Judicial Magistrate, First Class, Kirkee on 26.12.1983 who committed the case to the Sessions Court, Pune for trial. The accused denied the charges which ensued the trial,
5. At the trial, the feeble defence that has been pleaded by the accused was he was falsely implicated because he was victim of rivalry between two groups in that area indulging in illicit liquor business and the prosecution witnesses are all out to spite the accused. This defence is however, rejected by the Court below, according to us, rightly. It has come out from the ocular account of the eye witnesses that the deceased Narayan was died on account of the injuries inflicted by the accused. The version of the eye witnesses is so credible that inspires confidence. The offence was committed in the broad day light in the crowded area of the city of Pune, P.S.I. Mr. More has himself witnessed commission of the offence by the accused. Even if other eye witnesses could be discarded, presence of P.W. 4, P.S.I. Mr. More cannot be doubted. As per the post-mortem report, the deceased was having 22 injuries. Almost all the injuries are incised and all are certified to be anti mortem. The report also indicate internal damages. According to P.W. 6 Dr. Laxman who did the autopsy of the corpse, intern costal muscles were cut at few places. Ribs were cut. There was hemorrhage on both the side of chest cavity. The diafgrarn of the left side is cut through and through. The lungs were collapsed and showed cuts at 8 places. The heart was showing cut on the under surface of the left ventricle. The internal injuries are corresponding to external injuries mentioned at Sr. Nos. 3, 4, 5, 6, 7, 8 and 9. According to Dr. Laxman, the cause of death of the deceased was traumatic and hemorrhagic shock due to multiple stab injuries on chest and abdomen and the said injuries are possible with a knife article 1. The Chemical Analyser's report shows the knife contain blood stains of the deceased. The injuries on the person of accused was explained by the doctor who examined him as only minor and it was due to handling of the knife with which the accused have committed the offence. Therefore, from medical evidence it can be safely concluded that the death of the deceased was an homicidal death. The ocular account of the eye witnesses fully corroborate with medical evidence.
6. But one should look the offence in all its perspective. Though the Court below has rejected the defence taken by the accused, it has failed to notice an important aspect of this case. It is established that the deceased was notoriously using filthy language to those persons who tried to pursuade him to stop shouting and told him to go away. It was at crowded corner of the town. When the accused also told the deceased the same way as others did and persuaded the deceased to stop shouting and go away from that place, the deceased has used filthy language involving his mother and sister. Naturally the abusive words involving one's mother and sister will definitely provoke a human being, though impact of the provocation and the intensity of the emotions developed in a particular individual may vary on such provocation from person to person. Overt act or reaction of such person who hears such vulgar out burst may not always be uniform. However, it definitely will make the person suddenly provocated. All the witnesses in this case are unanimous on the fact that the deceased was using filthy language and abusive words on the mother and sister of the accused. These abusive words must have created a sudden and immediate provocation in the accused to commit the offence. Therefore, on the facts and circumstances of this case, it is clear that the appellant is entitled to the protection of Exception 1 of Section 300 of I.P.C. which reads as follows:
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
7. The limitations put to this Exception clause I of Section 300 has no relevance as far as commission of the offence in this case is concerned. None of the provisos to Exception I is happened in this case. Therefore, the abusive words used by the deceased will be sufficient to deprive of the power of self control of the accused by grave and sudden provocation. Therefore, the matter has squarely come under Exception Clause I of Section 300 of I.P.C.
8. However, that does not mean that the accused is entitled for an acquittal in view of this clause. It is the ocular account of all the witnesses that the accused has given blows thick and fast with the knife. They also stated with first blow with the knife, the deceased fell down on the ground. The post-mortem report shows that about 22 injuries on the deceased which are all anti mortem. Therefore, there is no justification for his acquittal, even if he is entitled to the benefit of Exception under Clause I of Section 300 of I.P.C. because for all other injuries he had inflicted on the deceased is not justified on any count. Even if we find that the appellant will not be liable under Section 302 of I.P.C., we have no hesitation in our mind to hold him guilty under Section 304 Part I of I.P.C. In the facts and circumstances of the case, it is proved beyond reasonable doubt that accused has committed the offence of culpable homicide not amounting to murder as he has inflicted as many as 22 injuries on the deceased out of anger. In view of this we hold that he is liable for the punishment under Section 304-Part I of I.P.C. and sentence him to undergo R.I. for five years. The conviction and sentence awarded by the Court below on the appellant has thus been modified to the extent as indicated above,
9. In the result, appeal is partly allowed and partly dismissed.
The conviction and sentence of imprisonment for life awarded to the appellant by the trial Judge for the offence Under Section 302 of I.P.C. is set aside. Instead he is convicted and sentenced to undergo 5 years R.I. for the offence Under Section 304-Part I, I.P.C. The appellant is on bail and he shall be taken into custody forthwith to serve out the sentence.