Bombay High Court
Dayaram @ Jayaram Parshuram Pawar vs The State Of Maharashtra on 29 March, 1996
Equivalent citations: 1996(5)BOMCR727
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellant aggrieved by the Judgment and order dated 28th September, 1995, passed by the III Additional Sessions Judge, Thane in Sessions Case No. 95 of 1994 convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- under section 302 I.P.C. has come up in appeal before us.
2. The prosecution case in brief runs as under:---
The deceased Ram Dagdu Jadhav was the husband of P.W. 1 Nirmala Ram Jadhav and the brother of P.W. 4 Manohar Dagdu Jadhav. On 21-8-1993 at about 7-45 p.m. while the deceased and his brother Manohar were returning after a stroll and had reached near Saibaba Mandir, the brother of the deceased inadvertently pushed the appellant. Thereupon the appellant started abusing them. The deceased asked the appellant not to abuse them. Thereupon the appellant took out a knife and inflicted two blows with the same on the deceased. In the meantime P.W. 1 Nirmala Ram Jadhav, the wife of the deceased, whose house was situated in immediate proximity of the place of incident, Edward Lone (P.W. 5), Vishal Jadhav (P.W. 7) and Tuljaram Jadhav (P.W. 10) are also said to have reached the place of incident and seen the incident. After assaulting the deceased, the appellant is said to have run away from the place of the incident.
3. Thereafter Nirmala Jadhav, Manohar Jadhav and the deceased, who was still alive, went to Police Station, Ambernath. As the injuries of the deceased were profusely bleeding the police advised them to remove the deceased to the hospital. They took him to Chaudhary Hospital. There P.W. 3 Dr. Virendranath Srivastav, at about 9-45 p.m. medically examined the deceased. He found the following two injuries on his person:---
(1) Clean out wound about 4" x 1" x 1" left cheek oblique going downwards. Bleeding present.
(2) Oblique clean cut wound about 4" x 1/2" bone deep 2" below and parallel to right clavicle on the chest wall. Bleeding present.
According to Dr. Srivastav both these injuries were caused by sharp weapon.
At the hospital Dr. Srivastav stitched the injuries of the deceased and administered I.V. fluid to him.
In Chaudhary Hospital, the same day the deceased is said to have succumbed to his injuries at 10-50 p.m.
4. After the death of the deceased the informant Nirmala Jadhav made her complaint (i.e. the F.I.R.). The complaint was registered by Senior Police Inspector Prakash Ramji Ade P.W. 11 on 21-8-1993 at 11-40 hours.
The investigation in the instant case was conducted by Senior P.I. Prakash Ramji Ade. After registering the F.I.R. he proceeded to Chaudhary Hospital (Anand Hospital). By that time the deceased had expired. He conducted the inquest panchanama over the dead body. After completing the panchanama at 1.00 a.m. on 22-8-1993, the appellant was produced before him by Head Constable Kadam. He effected the arrest panchanama and took the appellant into custody. Then he recorded the statement of some witnesses. He went for the place of the incident and from there took plain soil and pieces of tiles stained with blood, in his possession.
On 24-8-1993 the appellant made a statement that he could produce the knife. He drew up a panchanama. Thereafter he, the appellant, P.W. 6 Dattu Shivram Jadhav, (the public punch) and some police personnel left in a jeep. The appellant took them to the house of one Sunita Chavan in Kantavli Chowk. Thereafter from inside that house, from beneath a roof of tin sheet, he took out the knife. There were blood stains on the knife. The knife was seized under a panchanama. The knife, clothes of the appellant and some articles were sent to the Chemical Analyser. Finally after completing the investigation on 17-11-1993 he submitted the charge-sheet.
5. Going backwards, the postmortem examination of the dead body of the deceased was conducted on 22-8-1993 between 4 a.m. to 5 a.m. by P.W. 9 Dr. Bahubali Nagaonkar. The doctor found two stitched wounds, one each on the left cheek and right side of chest and one abrasion on the right shoulder. The doctor also found there were multiple lacerations to all lobes of right lung.
In the opinion of the Doctor the deceased died on account of Cardio respiratory failure resulting from multiple lacerations of the lungs.
6. The case was committed to the Court of the Sessions in the usual manner, where a charge under section 302 I.P.C. was framed against the appellant to which he pleaded not guilty and claimed to be tried.
In the trial Court, apart from tendering some documentary evidence, as many as eleven (11) witnesses were examined by the prosecution. Out of them five namely:-Nirmala Jadhav, Manohar Jadhav, Edward Londe, Vishal Jadhav and Tuljaram Jadhav, P.Ws. 1,4,5,7 and 10 respectively were examined as eye witnesses and the remaining witnesses included the two Doctors, the investigating officer and some panchas. In defence no witness was examined.
The learned trial Judge believed the evidence adduced before him and passed the impugned order. Hence this appeal.
7. We have heard Mr. P.M. Pradhan for the appellant and Mr. S.R. Borulkar for the State. We have also perused the deposition of the witnesses, the material exhibits, the statement of the appellant and the impugned judgment. After giving our anxious consideration to the matter we are of the opinion that sofar as the involvement of the appellant in the instant crime is concerned it has been squarely brought home by the prosecution. However, in our view, the learned trial Judge erred in convicting the appellant under section 302 I.P.C. and instead should have convicted him under section 304, Part-II I.P.C.
Mr. P.M. Pradhan, learned Counsel for the appellant first strenuously submitted for a clean acquittal but subsequently realising that the submissions were not making any impact switched on to the wiser course of assailing the conviction of the appellant under section 302 I.P.C. and urged that at the worst only an offence under section 304 Part-II, I.P.C. was made out against him.
8. We may straight-away mention that so far as the appellant's involvement in the instant case is concerned there is sufficient trust-worthy evidence. There are as many as five witnesses of the incident namely Nirmala Jadhav, Manohar Jadhav, Edward Londe, Vishal Jadhav and Tuljaram Jadhav, P.Ws. 1, 4, 5, 7 and 10 respectively. We have been taken through their evidence and we find the same to be implicitly reliable. All of them have uniformly stated that on account of the appellant being inadvertently pushed by Manohar Jadhav, the brother of the deceased, the appellant started abusing them and when the deceased asked him not to abuse them, he took out a knife and inflicted two blows with the same on his person. The manner of assault deposed to by these witnesses is corroborated by the medical evidence.
As seen earlier Dr. Virendranath Srivastav P.W. 3 who medically examined the deceased in his lifetime found two clean cut wounds on his person. There is no quarrel about the possibility of these wounds being caused with a knife. In our view the evidence of these witnesses inspires confidence.
In addition we find that the statement of the deceased prior to his death was taken down by Head Constable Hari Chavan, P.W. 2 in the Chaudhary Hospital. That statement, which is admissible as dying declaration is Exhibit "20". Therein also the victim has deposed about the incident in the same manner as the eye witnesses.
In our view thus there was ample trustworthy evidence justifying the trial Court to conclude about the appellant's involvement in the instant crime.
9. The only question which remains is that pertaining to offence. Mr. P.M. Pradhan, learned Counsel for the appellant strenuously urged that even if the prosecution case is accepted in its entirely, the liability of the appellant would not travel beyond that contemplated under section 304, Part--II of the I.P.C. In this connection he invited our attention to the following circumstances. He firstly urged that there was no background of malice or ill-will between the appellant on one side and the deceased Ram Dagdu Jadhav on the other side. He secondly contended that it was while the deceased and his brother Manohar Jadhav were returning after a stroll did the latter inadvertently push the appellant who thereupon started unleashing abuses. Then Ram Dagdu Jadhav the deceased asked him not to abuse them and at that he gave two blows with a knife to the deceased. He thirdly contended that although two injuries were inflicted on the person of the deceased but one of them, which was on the left cheek, was simple in nature and the other injury, which was on the right side of chest, was also not very serious. He invited our attention to the fact that the doctor only found lacerations on the right lung. He also urged that the doctor nowhere stated in his deposition that the injuries of the deceased were sufficient in the ordinary course of nature to cause his death. He urged, that being so, the case of the appellant would neither fall in the ambit of Clause 3 of section 300 I.P.C. nor in that of the remaining three clauses. He further urged that the maximum which can be said against the appellant when he assaulted the deceased with a knife on the right side of his chest was the knowledge that the deceased could die as result of such an assault.
On the other hand Mr. S.R. Borulkar, learned Additional Public Prosecutor vehemently submitted on the basis of the decision of the Apex Court reported in 1995 Supreme Court Cases Page 231 The State of Karnataka v. Vedanayagam, that the case of the appellant would squarely fall within the ambit of the third clause of section 300 I.P.C. and, therefore, the appellant has been rightly convicted under section 302 I.P.C.
10. We regret that we are unable to accede to the submission canvassed Mr. Borulkar for the four reasons mentioned hereinafter. We firstly find that unlike the case before the Apex Court wherein the medical evidence was to the effect that the injury was sufficient in the ordinary course of nature to cause death there is no such evidence in the case before us. Mr. Borulkar urged that even in the absence of medical evidence to such an effect, there was nothing which could preclude the Court from inferring that the injuries were sufficient to cause death in the ordinary course of nature. There can be no quarrel with the proposition that in an exceptional case, in the interest of justice, the Court can reach its own conclusion on the issue of sufficiency of injuries to cause death, in the ordinary course of nature. But this should be done rarely and within permissible limits, for two reasons;
(i) It is well settled that the burden is on the prosecution to lead evidence in respect of the offence for which the charge has been framed against the accused. Since the charge in this case was framed against the appellant under section 302 I.P.C. it was ordinarily the duty of the prosecution to have asked the Autopsy Surgeon Dr. Bahubali Nagaonkar (P.W. 9) in his examination-in-chief whether the injuries were sufficient in the ordinary course of nature to cause his death. That obligation the prosecution has failed to discharge;
(ii) Secondly it is the Medical Expert (Autopsy Surgeon) who is qualified on account of his expert knowledge to know whether the injuries are sufficient to cause death in the ordinary course of nature in a given case. Unless the injuries per se appear to be fatal, as was in the decision reported in 1995 Supreme Court Cases Page 231 (supra), it would be hazardous for the Court to assume the task of an expert for that may result in injustice. In the instant case a perusal of the injuries does not per se lead to the inference that they were sufficient in the ordinary course of nature to cause death. After all the only internal damage found was lacerations in the right lung. Their extent has not been indicated in the post-mortem report. No other vital organ was damaged. Hence we cannot conclude with certainty as to whether the injuries were sufficient to cause death in the ordinary course of nature. If there is a doubt about the sufficiency of injuries to cause death in the ordinary course of nature the benefit of that doubt has got to go to the appellant.
It would be appropriate to point out that the decision of the Apex Court Brijbhukan & others v. State of U.P. & others, wherein their Lordships have laid down the principle that even in the absence of medical evidence to the effect that the injuries were sufficient to cause death in the ordinary course of nature nothing precludes the Court from reaching that conclusion if injuries so warrant, only applies to those case where injuries are per se capable of causing death in the ordinary course of nature.
We secondly find that the facts in the decision of the Apex Court cited by Mr. Borulkar were materially different from those found in the instant case. Although in the case before the Apex Court there was a solitary injury namely a punctured but it was caused on the left side of the chest with such great force that it had entered the thoracic cavity, passed through the substance of the sternum, 2nd costal cartilage anterior border of the lower lobe of the left lung and had entered the chamber of the right ventricle 2". In the present case the injury found on the dead body of the deceased is certainly nowhere near in terms of seriousness to that found by the Apex Court. We thirdly find that in the case before the Apex Court the death of the deceased was instantaneous whereas the evidence in the case before us is that the deceased died nearly three hours after the incident. We finally find that in the case before the Apex Court prior to assaulting the deceased the accused had shouted that "You have defamed me. I would not leave you. I will kill". In other words there was an intention to kill the deceased as contemplated by clause firstly of section 300 I.P.C. also. Here no instigation preceded the assault on the deceased.
11. For the reasons mentioned in the preceding paragraph we are of the view that the decision cited by Mr. Borulkar is not applicable to the facts of the present case.
12. It would not be out of place to mention that even if it is assumed for arguments sake that the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature still no offence under section 302 I.P.C. would be made out. When in the absence of any enemity with the deceased, in the heat of the moment, after an exchange of abuses with the deceased, occasioned by the fact that the brother of the deceased Manohar Jadhav inadvertently pushed the appellant, the appellant inflicted two knife blows on the deceased, out of which one was simple in nature, it cannot be said that he had the intention to inflict an injury which was sufficient in the ordinary course of nature to cause death. Here it would be appropriate to refer to the observations of their lordships of the Apex Court, contained in paragraph 15 of the Judgment , Jawaharlal & others v. State of Punjab, which read as under:---
"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".
Inspite of the fact that Jawaharlal assaulted the deceased with a dagger and the injury was sufficient to cause death in the ordinary course of nature the Apex Court converted the conviction from 302 I.P.C. to that under section Part II I.P.C. On the ground that there was no intention to inflict such an injury.
13. In our view the appellant has been wrongly convicted by the learned trial Judge for an offence under section 302 I.P.C. and we feel that he deserves to be acquitted on that count and instead should be convicted under section 304 Part-II I.P.C. for which offence, considering the totality of circumstances, a sentence of five years R.I. would meet the end of justice.
14. Thus this appeal is partly allowed and partly dismissed. Although we acquit the appellant under section 302 I.P.C. and set aside his conviction and sentence on that count but we convict him under section 304 Part II, I.P.C. for which offence we award him a sentence of five years R.I. We are informed that the appellant is in jail. He shall continue to remain there till he serves out his sentence. In case he has paid the fine under section 302 I.P.C. it shall stand refunded to him.