Bombay High Court
Subrao Chintu Sathe vs The State Of Maharashtra on 23 April, 1999
Equivalent citations: 1999(5)BOMCR816
Author: Vishnu Sahai
Bench: Vishnu Sahai, Ranjana P. Desai
ORDER Vishnu Sahai, J.
1. Since these connected criminal appeals arise out of the same set of facts and a common impugned judgment we are disposing them off by one judgment.
2. Through these appeals the appellants challenge the judgment and order dated 28-12-1994 passed by the Additional Sessions Judge, Sangli in Sessions Case No. 137 of 1994, convicting and sentencing both of them to undergo imprisonment for life and to pay a fine of Rs. 5000/- in default to undergo one years R.I. for the offence under section 302 read with 34 I.P.C.
3. In short the prosecution case runs as under:
The appellants and the deceased Bapu Sathe were real brothers and used to reside in separate huts, situate in immediate proximity, in Pare, Taluka Khanapur, Dist. Sangli. On the date of the incident i.e. 29-4-93 at about 10 a.m. the sons of the deceased Santosh and Deepak were quarreling on account of note book and pen. At that time appellant Subrao came to the hut of the deceased and gave one slap to Santosh which was not liked by the wife of the deceased Suman Sathe P.W. 1, the first informant. Suman Sathe in no uncertain terms told the appellant Subrao that he should not have assaulted her son and she could have taken care of the quarrel between her sons. On that appellant .Subrao also gave one slap to her. Thereafter he went away.
Suman sent her son Santosh to call Bapu. When he came she narrated the incident to him. He asked her to lodge an F.I.R. against appellant Subrao. Consequently the same day at 4 p.m. she lodged an F.I.R. against him.
That evening at about 8 p.m. when Suman along with children and husband Bapu was sitting in front of her house, the appellants came to the pan-patti shop situate in front of her house and called her husband Bapu. On that Suman told them that, they should come and talk with Bapu. Consequently the appellants came near the place where Bapu was sitting. Bapu got up on seeing them coming. Appellant Sampat Sathe caught hold of him and appellant Subrao took out a knife, which was concealed under his waist and inflicted a solitary blow with the same on Bapu's stomach. Thereafter both the appellants ran away.
Apart from Suman this incident was seen by Popat Kamble P.W. 5, the owner of the pan-patti shop.
The evidence of Suman is that immediately after the appellants had run away she rushed to Dr. Thombare. Dr. Thombare came, examined Bapu and informed her that Bapu was dead.
4. The F.I.R. of the incident was lodged by Suman P.W. 1 at 8.45 p.m. the same day at Vita Police Station. It was recorded by A.S.I. Mustafa Shaikh, P.W. 6. The investigation was conducted in the usual manner by P.S.I. Khanderao Vidhate P.W. 7, who during the course of it recovered a blood stained knife from the house of appellant Subrao Sathe under a panchnama. After completing the investigation, on 25-7-1994, he submitted the chargesheet.
5. Going backwards the autopsy on the corpse of the deceased Bapu Sathe was conducted on 30-4-1994 between 9 a.m. and 10 a.m. by Dr. Kulkarni P.W. 2, who found on it an incised stab wound, size 11/4 x 1/2 x 7" deep over the abdomen, 2" above the umbilicus in the midline, blood seen, mesentery protruded out of the wound on section underlying small intestine and mesentic blood vessels found cut. It was an ante mortem injury and caused due to hard and sharp instrument, like knife. The age of the injury was within 24 hours of post mortem examination. In his statement in the trial Court Dr. Kulkarni stated that the said injury could be caused by Article No. 5 (knife and was sufficient in the ordinary course of nature to cause death.
6. The case was committed to the Court of Sessions in the usual manner where the appellants were charged under section 302 read with 34 I.P.C. to which they pleaded not guilty and claimed to be tried.
During trial in all the prosecution examined 7 witnesses out of which two viz. Suman Sathe P.W. 1 and Popat Kamble P.W. 5 gave occular account of the incident. The learned trial Judge believed their evidence and convicted and sentenced the appellants in the manner stated above.
Hence this appeal.
7. We have heard learned Counsel for the parties and perused the entire material on record. In our view, inasmuch as only an offence under section 304 Part II read with 34 I.P.C. is made out against the appellants these appeals deserve to be partly allowed.
8. So far as the involvement of the appellants in this case is concerned the same is established beyond any shadow of doubt by the evidence of Suman Sathe P.W. 1 and Popat Kamble P.W. 5. The evidence of Suman Sathe is that on the date of the incident at about 10. a.m. there was a quarrel between her two sons Santosh and Deepak. Appellant Subrao who was the real brother of the deceased came and slapped Santosh to which she protested. The appellant Subrao also gave her a slap. She informed the deceased about this and on his asking lodged an F.I.R. at 4 p.m. Her evidence shows that this irked both the appellants. Both of them, the same evening, at about 8 p.m. came to the pan-patti shop which was in front of her house. At that time she, her husband (deceased Bapu Sathe) and children were sitting in their house. The appellants called her husband at the pan-patti shop. Suman insisted that they should come to their house. When they came her husband got up. Appellant Sampat Sathe caught hold of her husband and appellant Subrao inflicted a solitary knife blow on his stomach.
Popat Kamble the owner of the pan-patti shop corroborated the account furnished by Suman Sathe in respect of the main incident.
9. We have gone through the statements of Suman Sathe and Popat Kamble and we find them to be reliable. The manner of account furnished by them receives assurance from medical evidence. They have stated that the appellant Subrao, while appellant Sampat was catching hold of the deceased, inflicted a knife blow on the deceased Bapu Sathe and the autopsy Surgeon Dr. Kulkarni found a incised stab wound on the abdomen of the deceased which in his opinion could be caused by the knife shown to him (Article 5), which was recovered from the house of appellant Subrao Sathe. It is significant to point out that Suman Sathe being the sister in law of the appellants would not have falsely implicated them unless they would have murdered her husband in the manner deposed to by her. It is pertinent to point out that although she was cross-examined but nothing could be extracted from her which would impair her credibility.
It is also necessary to mention that Popat Kamble is not only a natural witness of the incident but a wholly independent one. He was the owner of the pan-patti shop in front of which the appellants came and stood before the incident. Although he was subjected to cross-examination but nothing could be extracted there-from which would either show that he was not present on the place of the incident or that he had reason for falsely implicating the appellants.
Assurance to the occular account is lent by the circumstances that the F.I.R. of the incident was lodged within an hour of the incident, (at 8.45 p.m. the same day). In the F.I.R. the appellants are named and the broad features of the prosecution case have been set out.
For the said reasons we feel that the involvement of the appellants in the incident has been established beyond any shadow of doubt.
10. The question which remains is that of offence (sic sentence).
We feel that the learned trial Judge erred in convicting the appellants under section 302 read with 34 I.P.C. and instead should have convicted them under section 304 Part II read with 34 I.P.C.
It should be borne in mind that both the appellants and the deceased Bapu Sathe were real brothers and there was not even an iota of enmity or malice between them. In this connection it would be pertinent to refer to paragraph 5 of the cross-examination of Suman Sathe, the wife of the deceased, wherein she has admitted that "prior to the incident, there were no quarrels in between accused persons and my husband." From her evidence it appears that infuriated by the morning incident and her lodging a F.I.R. in respect of it the appellants came to the pan-patti shop and called the deceased who was sitting with her at the house; she insisted that they come to her house; on that they came; and thereafter appellant Sampat Sathe caught hold of her husband and appellant Subrao Sathe inflicted a solitary knife blow on his stomach. Her evidence also shows that neither the blow was repeated nor the deceased succumbed to his injury on the spot.
The autopsy surgeon Dr. Kulkarni P.W. 2, in his cross examination, in para 5 has stated that "It is difficult to say whether one could survive with instant medical aid on receiving injuries in question."
In the factual matrix in which the incident took place, bearing in mind the said opinion of the autopsy surgeon and the circumstance that although the deceased did not die on the spot but only a solitary knife blow was inflicted on him by appellant Subrao, while appellant Sampat, was catching hold of him, an offence under section 304 Part II read with section 34 I.P.C. would be made out against the appellants and not one under section 302 read with 34 I.P.C. inspite of the autopsy surgeon's opinion that the injury of the deceased was sufficient in the ordinary course of nature to cause death. In our view, on the facts of this case, there was no intention on the part of the appellants to inflict an injury which was sufficient in the ordinary course of nature to cause death and hence Clause Thirdly of section 300 I.P.C. would have no application. Neither would any of the other clauses have application.
The Supreme Court in the case Jawahar Lal v. State of Punjab, , has laid down that the mere circumstance that a blow landed on a certain part of the body, divorced from the circumstances in which it was inflicted, cannot be construed that it was intended to be inflicted on that part of the body.
In that case also there was no enemity between the appellant Jawahar Lal and the deceased and the former inflicted a solitary dagger blow on the chest of the deceased which in the opinion of the autopsy surgeon was sufficient to cause death in the ordinary course of nature and the Supreme Court brushed aside the contention of the prosecution that since the appellant inflicted an injury which was sufficient in the ordinary course of nature to cause his death his act fell in the ambit of Clause Thirdly of section 300 I.P.C. and he was rightly convicted for the offence under section 302 I.P.C. It instead converted his conviction to one under section 304 Part II I.P.C.
In our opinion the ratio laid down in the said case is fully applicable to the facts of our case.
11. The question which remains is the quantum of sentence which should be awarded to the appellants for the offence under section 304 Part II I.P.C. read with 34 I.P.C. In our view a sentence of 6 years R.I., coupled with a fine of Rs. 5000/- and one year R.I. in default, would be an adequate sentence.
12. In the result these appeals are partly allowed. We acquit the appellants for the offences under section 302 read with 34 I.P.C. and set aside their convictions and sentences on the said count. We instead find them guilty for the offence under section 304 Part II read with 34 I.P.C. and sentence them to undergo 6 years R.I. and to pay a fine of Rs. 5000/- each within 6 months from today, in the trial Court, failing which the defaulting appellant or appellants, as the case may be, would undergo a sentence of one year's R.I. The fine deposited would be paid in entirety as compensation to Suman Sathe P.W. 1, the widow of the deceased. As soon as it is deposited, the trial Court shall inform her about this compensation and pay the same to her.
The appellants are in jail and shall be released therefrom after they have served out their sentence.
13. Appeal partly allowed.