Bombay High Court
Premchand S/O Chandrabhan Charde (In ... vs State Of Maharashtra, Thr. P.S.O. ... on 6 August, 2019
Author: Pushpa V. Ganediwala
Bench: P.N.Deshmukh, Pushpa V. Ganediwala
1 cri.apeal211.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 211 OF 2016
Premchand s/o Chandrabhan Charde
Aged about 65 yrs.
R/o Chandika Ward, Dodkipura,
Katol Road, District-Nagpur
Presently incarcerated at Central Prison,
Nagpur
.... APPELLANT
VERSUS
State of Maharashtra,
through P.S.O. Katol,
District- Nagpur
.... RESPONDENT
______________________________________________________________
Shri R.M. Daga, Advocate for appellant
Mr. S.D. Sirpurkar, A.P.P. for respondent/State
______________________________________________________________
CORAM : P.N.DESHMUKH &
PUSHPA V. GANEDIWALA, JJ.
DATE OF RESERVE : 16/07/2019.
DATE OF PRONOUNCEMENT : 06/08/2019.
ORAL JUDGMENT (Per Smt. Pushpa V. Ganediwala, J.) :
This appeal is directed against the judgment of conviction dated 30/04/2016 passed by the Court of Additional Sessions, Nagpur in Sessions Trial No. 72/2014 for the offence punishable under Sections ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:51 ::: 2 cri.apeal211.16 302 and 307 of the Indian Penal Code in Crime No. 171/2013 registered at Police Station Katol, District Nagpur.
2. In the aforesaid judgment, the appellant-accused is directed to undergo sentence of life imprisonment for the offence punishable under section 302 IPC and fine of Rs. 6000/- with default sentence of one year; and to undergo sentence of 7 years R. I. for the offence punishable under section 307 IPC and fine of Rs. 4000/- with default sentence of nine months.
3. The prosecution case, in brief, is as under:
In the year 2002, Shri Namdeo Korde (PW-2), father of the deceased Nandkishor had purchased a shop block from the accused- appellant wherein the deceased Nandkishor was doing business under the name and style as "Shubham Pashu Khadya Bhandar". The accused- appellant is residing on the first floor of the said building and the shop of the deceased is on the ground floor. The house of Vilas Charde (PW-
3) is adjacent to the shop of deceased Nandkishor and thereafter there is a hair cutting saloon of Kunal Babhulkar (PW-4). At the time of purchase of the said shop block, there was an altercation between PW-
2-Namdeo Korde and the accused-appellant with regard to the terms of purchase and since then both are in inimical terms.
4. As per prosecution story, the incident is of 26/09/2013 at around 5.00 p.m. in front of the shop block of Namdeo Korde (PW-2). Namdeo Korde (PW-2), Vilas Charde (PW-3), Kunal Babhulkar (PW-4) and Nandkishor received stab injuries by knife at the hands of accused- appellant which resulted in the death of Nandkishor Korde.
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5. As per prosecution, the incident occurred like this:
(i) On 26/09/2013 deceased Nandkishor Korde opened his shop at 9.00 a.m. and closed at 12.00 noon and after lunch went to his field. Since deceased Nandkishor Korde did not turn up from the field, father of deceased-Namdeo Korde (PW-2) opened the shop at about 4.30 p.m. and sat in front of his shop reading newspaper.
Shankarrao Fartode, Umrao Charde and Ramesh Karade also came to sit in front of his shop.
(ii) At that time the accused-appellant was sitting in the opposite saloon shop of Baburao Sawarkar. The accused then went home and within a short time came back with a knife. He came towards Namdeo Korde (PW-2) and suddenly assaulted him on his left shoulder, neck and left hand fingers with knife. As Vilas Charde (PW-3) tried to rescue Namdeo Korde (PW-2) the accused assaulted him too with knife. Nandkishor who was in the saloon of Kunal Babhulkar rushed to rescue, the accused-appellant gave blows with knife on his neck, chest and other parts of his body. On hearing noise, Kunal Babhulkar (PW-4) came out of his shop and started shouting. To this, accused went to him and gave blow with knife on his neck. Kunal Babhulkar (PW-4) was trying to snatch the knife from the hands of the accused, there was grappling between them. Kunal Babhulkar (PW-4) succeeded in snatching the knife and threw it away. He removed wooden rafter from the roof of Vilas Charde (PW-3) and gave blows to the accused due to which accused fled away from the spot.
6. All the injured were taken to Rural Hospital, Katol. After providing first aid there, they were shifted to Government Medical ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 4 cri.apeal211.16 College, Nagpur. On the way to the hospital Nandkishor Korde succumbed to the injuries. On the report of wife of Namdeo Korde i.e. Rekhabai Korde (PW-1) offence came to be registered against the accused at Police Station Katol.
7. Police Inspector Bharat Thakre visited the spot and drew spot panchnama in presence of pancha witnesses. He seized from the spot blood stained knife which was lying near bicycle and wooden stick (balli) stained with blood alongwith other articles i.e. pairs of Chappals, spects etc. He also collected blood stained earth and simple earth from the spot and sealed all the articles. A.P.I. Anil Mandve (PW-7) collected injury certificate of the injured from Rural Hospital, Katol. He also recorded statements of injured witnesses who were admitted in Government Medical College, Nagpur.
8. On the same day, the accused came to be arrested. As the accused had also received injuries, he was referred to Rural Hospital, Katol. Inquest Panchanama of the body of Nandkishor Korde was performed and body was sent for autopsy. The cause of death as per autopsy report (Exh-35) is due to stab injury to the neck of the deceased. The seized weapons were sent for medical opinion. The seized articles were also sent for Chemical Analyzer's Report.
9. After completion of investigation, the charge-sheet came to be filed before the Court of Judicial Magistrate First Class, Katol against the appellant-accused. As the offence of murder is exclusively triable by the Court of Session, the case was committed to the Sessions Court, Nagpur. Learned Additional Sessions Judge framed charge against the accused and read it over to the accused in his vernacular. The accused ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 5 cri.apeal211.16 denied the charge. His plea was recorded. In order to prove guilt against the accused, prosecution has examined in all eight witnesses.
PW-1 - Rekhabai Korde (informant) PW-2 - Namdeo Korde (injured) PW-3 - Vilas Charde (injured witness) PW-4 - Kunal Babhulkar (injured witness) PW-5 - Dr. Rushikesh Pathak (Medical Officer) PW-6 - Vinayak Fartode (panch witness) PW-7 - Anil Mandve (Investigation Officer) PW-8 - P.I. Bharat Thakre (Investigation Officer)
10. The learned trial court recorded statement of the accused- appellant under Section 313 of the Code of Criminal Procedure. The accused has also placed on record his Written Statement vide Exhibit-
96. In his written statement the accused stated that he resides at Nagpur with his daughter and used to come to Katol in two to three months for collecting rent. On 26/09/2013, he came to Katol and while he was climbing the stairs, deceased Nandkishor spat on seeing him and gave threats of life. At around 11 or 12 he saw Namdeo sitting on his staircase. At around 4.30 pm Namdeo Korde gave signal to Nandkishor and Kunal Babhulkar about his coming. On seeing him, Nandkishor took out knife and Kunal Babhulkar took out rafter from the roof of Vilas Charde and started beating him. In the scuffle he tried to snatch knife to defend himself and in that process Namdeo Korde, Nandkishor, Kunal Babhulkar and Vilas Charde received injuries. He also received grievous injuries on fingers of his both hands, thumb and chest by knife and blunt trauma over his chest and shoulder by rafter.
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11. He further stated about inimical relations with the deceased and the witnesses and therefore they conspired to kill him and involved him in the false case hand in glove with police. He has admitted altercation at the time of sale of shop block to Namdeo Korde. It is further stated that after the incident he went to Police Station to lodge report but police did not take his report and proceeded to spot. He was referred to hospital late at 10 p.m.
12. The learned Additional Sessions Judge on hearing both the sides and on the basis of material brought on record, convicted the accused for the offence punishable under Section 302 and Section 307 IPC and sentenced him for life and 7 years imprisonment respectively and fine with default stipulations.
13. The impugned judgment and order is challenged in this appeal. We have heard Shri R.M. Daga, learned Counsel for the appellant-accused and Shri Sirpurkar, learned A.P.P. for the State. We have also perused the record.
14. Learned Counsel Shri Daga vehemently argued on the point of injuries received to the accused during the incident and the prosecution is silent on these injuries. The accused-appellant sustained four injuries out of which two injuries are grievous in nature. The prosecution has failed to explain the injuries suffered by the accused and non-explanation of the same, according to him, would show that evidence of prosecution witnesses relating to the incident is not proved or at any rate not wholly true. It is also submitted that the prosecution has not examined the doctor who examined the injuries received to the ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 7 cri.apeal211.16 accused. It is further argued that the prosecution has suppressed the genesis and the origin of the occurrence and has failed to present the true version.
15. It is further submitted that the Investigating Officer did not feel it necessary to inquire with the injured witnesses as to how the accused had received the injuries. Learned Counsel read over the relevant part of the evidence of the witnesses and brought to our notice that as per PW-6 (spot pancha) broken piece of balli and broken piece of stick having blood stains were found from the spot which shows accused was assaulted with knife as well as hard and blunt object as the accused had suffered injuries caused by sharp as well as blunt object. In conclusion learned counsel submitted that the prosecution has failed to prove its case beyond reasonable doubt against the accused and therefore accused is entitled to be acquitted. In support of his submissions, the learned counsel relied on the following authorities:
(i) Lakshmi Singh & ors. versus State of Bihar, AIR 1976 SC 2263
(ii) Kumar versus State represented by Inspector of Police 2019 (1) Mh.L.J. (Cri.) (SC) 210
(iii) Suresh Maruti Shinde (Waikar) versus State of Maharashtra, 2018 ALL MR (Cri) 3328
(iv) Subramani & ors. Versus State of Tamilnadu AIR 2002 SC 2980
16. Shri Sirpurkar, learned A.P.P. on behalf of the State while supporting the impugned judgment and order submitted that the prosecution has with consistent and cogent evidence proved the charge ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 8 cri.apeal211.16 of murder against the accused and all the eye witnesses who are also the injured witnesses supported the prosecution story and unerringly brought on record the happening of the actual incident. The witness Kunal Babhulkar (PW-4) testified about the scuffle between PW-4 and the accused for snatching of the knife and in that process the accused received injuries to his thumb. Kunal Babhulkar (PW-4) also testified about taking out of wooden rafter from the roof of Vilas Charde (PW-3) and gave blow on the accused and therefore it cannot be said that injuries on the accused are not explained. Learned A.P.P. prayed to dismiss the appeal.
17. We have considered the submissions on behalf of both the parties and perused the record minutely.
18. At the outset, Rekhabai Korde (PW-1), the informant is wife of Namdeo Korde (PW-2). She is not an eye witness to the incident. Her testimony could be relied only on the point of inimical relations of the accused with Namdeo Korde (PW-2) since the time of purchase of shop block. The defence even does not dispute the inimical relations between them.
19. With regard to the incident she testified that she came to know about the incident from one-Durgesh Parbat while she was on the way to Sai Mandir at about 5.30 p.m. She immediately reached the spot on the motorcycle of Durgesh and saw blood stains in front of their shop. Police had already reached the spot. The injured Nandkishor and Namdeo were not there. She was taken to Police Station and there she lodged the report (Exhibit 13).
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20. Namdeo Korde (PW-2), Vilas Charde (PW-3) and Kunal Babhulkar (PW-4) are the injured eye witnesses. Namdeo Korde (PW-2) also testified about purchase of shop block and his inimical relations with the accused. He further testified that after purchase of the said shop block his son started running shop under the name and style as Shubham Pashu Khadya Bhandar. Accused was also residing on the first floor of the building where the shop block is situated. House of Vilas Charde (PW-3) is adjoining his shop block. The hair cutting saloon of Kunal Babhulkar (PW-4) is abutting the house of Vilas Charde (PW-
3).
21. PW2 further deposed that His son Nandkishor Korde (deceased) used to open shop at 9.00 a.m. and used to close it at 9.00 p.m. Sometimes, he used to sit in the shop. As regards the incident, the relevant para in his evidence reads thus :
"On 26/09/2013 I came to my shop at about 4.30 p.m. I opened the shop and immediately thereafter my son deceased Nandkisor came to the shop. Then Nandkishor went to the adjoining saloon shop of Kunal Babhulkar. On that day Nandkishor had opened the shop at about 9.00 a.m. and closed it at about 12.00 noon and after taking lunch he went to the field. Since Nandkishor did not come back from the field I had opened the shop at about 4.30 p.m. After I opened the shop Shakarrao Fartode, Umrao Charde and Ramesh Karade came to sit in front of my shop. I was also sitting with them while reading newspaper. At that time accused Premchand Charde was sitting in the saloon shop of Baburao Sawarkar which was opposite to our shop. Accused then went ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 10 cri.apeal211.16 home and immediately again came back taking knife with him. He came over to me and all of a sudden assaulted me on the left shoulder, neck and left hand finger with knife. I had received serious bleeding injuries. I fell down. Vilas Charde on seeing the incident came to my rescue. Vilas Charde reside adjacent to my shop. Vilas Charde tried to pacify the accused but accused had assaulted him too with the same knife. He had received injuries. Since I was assaulted by the accused, my son Nandkishor also came to my rescue. My son had asked accused as to why he was assaulting me, but accused without saying anything started assaulting my son with knife. Accused had given blows with knife on the chest of my son. On receiving the injuries my son Nandkishor fell down in the pool of blood. Accused then went to the shop of Kunal Babhulkar and assaulted him with the same knife. He had also received injuries. Kunal Babhulkar had protested the accused on receiving the injuries and he had chased the accused. While accused was running away the knife in his hand had fallen down in front of the shop of Kunal Babhulkar. After giving the blow with knife to Kunal Babhulkar, accused started to run away. Kunal Babhulkar could not chase him. Accused had fled away from the spot of incident...."
22. Vilas Charde (PW-3) the injured eye witness in his testimony as regards the incident stated that he saw accused coming from his house with kinfe and suddenly assaulted Namdeo Korde (PW-
2) with knife on neck. On seeing this he rushed to the rescue of Namdeo Korde. Accused gave two blows on his neck and two blows ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 11 cri.apeal211.16 below right arm with knife. He received bleeding injuries. On seeing this Nandkishor Korde who was sitting in the shop of Kunal Babhulkar rushed to their rescue. Accused gave blows with knife on the chest and neck of Nandkishor Korde and caused him serious injuries. Thereafter, accused went to the shop of Kunal Babhulkar and gave him blows with knife on his neck. As Kunal Babhulkar had snatched knife from accused due to which Kunal Babhulkar received injuries to his fingers, Kunal Babhulkar threw knife towards bicycle which was on the road near the spot of the incident. Thereafter, accused fled away.
23. Kunal Babhulkar (PW-4) the injured eye witness in his testimony as regards the incident deposed that Nandkishor was sitting on the chair in his shop. Then Nandkishor Korde went towards his shop. When he heard noise of quarrel, he came out of the shop and saw accused hitting Nandkishor with knife on his neck. On seeing this he raised shouts, the accused rushed towards him with knife and inflicted injury on his neck. He further deposed that no sooner did the accused inflicted injury on his neck, he got hold of the blade of knife due to which he received injuries to his fingers. He pushed the accused backward and snatched the knife from his hand and threw it away near the bicycle. He deposed that all the three Nandkishor Korde, Namdeo Korde and Vilas Charde were lying in injured conditions. He took one log of the thatched roof of Vilas Charde and hit on the back of accused to save himself and on receiving the blow accused fled away from the spot. The log /rafter was dropped by him on the spot of incident itself.
24. On collective reading of the depositions of the aforestated injured eye witnesses, their presence on the spot at the relevant time have been firmly established. All these three witnesses alongwith ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 12 cri.apeal211.16 Nandkishor received bleeding injuries by means of knife in sequence of events. PW2 Namdeo and PW3 Vilas Charde saw accused coming with knife from his house. Suddenly, he attacked on Namdeo Korde (PW-2). When Vilas Charde (PW-3) came to the rescue of Namdeo Korde (PW-
2), accused assaulted him too with the same knife. Namdeo Korde (PW-
2) and Vilas Charde (PW-3) in similar tone deposed that when Nandkishor rushed to rescue them, accused gave blows with knife on the chest of Nandkishor. On receiving injuries Nandkishor fell down in pool of blood. The accused then assaulted Kunal Babhulkar with same knife. Kunal Babhulkar protested the accused on receiving injuries. The evidences of these witnesses are mutually corroborating with regard to the sequence of events and the injuries received to them at the hands of accused.
25. It is the defence of the accused that in order to save himself, the witnesses and the deceased received the injuries. This establishes the presence of accused and the witnesses including the deceased on the spot. The learned counsel Shri Daga emphatically relied on the injury certificates (Exhibit 52 to 56), issued by Katol Rural Hospital. However, these certificates do not reflect the correct picture of injuries. Evidently, at Katol Hospital the injured and the deceased were only for the purpose of first aid. Within a short period, there could not have been proper examination of the injuries when four injured with serious injuries were admitted at a time, for treatment. Rural Hospitals have their own limitations. There are inconsistencies in the ocular evidence, injuries as per P.M. report and discharge summaries issued by Nagpur Hospitals vis-a-vis the aforesaid injury certificates issued by Rural Hospital. Therefore, it is not safe to rely fully on these certificates for the purpose of number, nature and spot of injuries.
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26. For ready reference and for better appreciation of right of private defence it would be necessary to have a glance at the injury certificates of the accused, witnesses and the deceased.
INJURY CERTIFICATE (Exhibit 52)
Nandkishor Korde (deceased)
Sr. Nature of Injury Dimension and Time of Injury Simple or Nature of
No. Situation of Wound Grievous Object
1. Incised wound 2cm x 10 cm x Before half Grievous Sharp
0.5mm hour
2. Blunt trauma over Before half Simple Hard and
chest hour blunt
Refer to GMC,
Nagpur for CT Scan,
Head.
INJURY CERTIFICATE (Exhibit 53)
Namdeo Korde (PW-2)
Sr. Nature of Injury Dimension and Time of Injury Simple or Nature of
No. Situation of Wound Grievous Object
1. Incised wound over 0.5cm x 1 cm Before half Grievous Sharp
neck hour
2. Incised wound over 0.5cm x 2 cm Before half Simple Hard and
right lower lobe of hour blunt
chest
3. Right shoulder tiny 0.5cm x 1 cm Before half Simple Hard and
punctured hour blunt
INJURY CERTIFICATE (Exhibit 54)
Vilas Charde (PW-3)
Sr. Nature of Injury Dimension and Time of Injury Simple or Nature of
No. Situation of Wound Grievous Object
1. Punctured wound 0.5cm x 3 cm x 0.2cm Before half Grievous Sharp
over around neck hour
2. C.L.W. over left arm 0.5cm x 1 cm Before half Simple Hard and
hour blunt
3. C.L.W. over right 0.5cm x 0.5 cm Before half Grievous sharp
lower lobe of chest hour
(punctured wound)
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INJURY CERTIFICATE (Exhibit 55)
Kunal Babhulkar (PW-4)
Sr. Nature of Injury Dimension and Time of Injury Simple or Nature of
No. Situation of Wound Grievous Object
1. Incised wound 0.5cm x 4cm Before half Grievous Sharp
around neck hour
2. Blunt trauma over Urgently refer to Before half Simple Hard and
back upper both GMC, Nagpur of CT hour blunt
sides Scan Brain, Back and
Chest
(Expert man of
physician and
surgeon)
INJURY CERTIFICATE (Exhibit 56)
Premchand Chandrabhan Charde (accused)
Sr. Nature of Injury Dimension and Time of Simple Nature of
No. Situation of Wound Injury or Object
Grievous
1. Incised wound over 0.5cm x 2cm Before four Grievous Sharp
left thumb 0.5cm x 1cm and half hours
2. Multiple punctured 0.5cm x 0.5cm Before four Grievous Sharp
wound 0.5cm x 0.5cm hours
0.5cm x 0.5cm
3. Blunt trauma over 0.5cm x 1 cm Before four Simple Hard and
chest hours blunt
4. Blunt trauma over left Simple Hard and
side of upper chest blunt
27. It is contended that the prosecution did not examine the medical officer from Rural Hospital, Katol who issued the aforesaid injury certificates. The accused does not dispute the injuries on the persons of the witnesses and the death of deceased Nandkishor due to injuries. All the injury certificates of the witnesses, deceased and the accused have been admitted by the accused during the trial and probably for that reason the medical officer was not examined by the prosecution as the fact admitted need not be proved.
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28. Examination of the accused in the Rural Hospital, Katol was on his arrest by the Police on the same day at 10 p.m.
29. It is vehemently argued on behalf of the defence Counsel that there is no explanation at all from the side of prosecution about the injuries to the accused which are of grievous in nature. As per Exhibit-56, the injury certificate of the accused, grievous injuries are shown to be on the left thumb and multiple punctured wound with sharp object. As rightly observed by learned Trial Court that these injuries do not fit in the definition of grievous injuries under Section 320 of the Indian Penal Code. To make it more clear, as per Section 320 of the Indian Penal Code, the following injuries are considered as grievous injuries :
i) Emasculation.
ii) Permanent privation of the sight of either eye.
iii) Permanent privation of the hearing of either ear.
iv) Privation of any member or joint.
v) Destruction or permanent impairing of the powers of any
member or joint.
vi) Permanent disfiguration of the head or face.
vii) Fracture or dislocation of a bone or tooth.
viii) Any hurt which endangers life or which causes the sufferer
to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
30. None of the injuries to the accused fit in the above list as per section 320 of the Indian Penal Code. The injuries on the accused i.e. injury on his thumb, punctured injuries and blunt trauma over left ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 16 cri.apeal211.16 side of chest vis a vis the injuries received to the witnesses and the deceased on their chest, neck etc. which includes deadly injury to deceased-Nandkishor would reveal apparently who was more aggressive. The injuries on these witnesses and the deceased, as stated earlier, were inflicted in sequence and while Kunal Babhulkar (PW-4) protested the assault there was grappling between the accused and Kunal Babhulkar (PW-4) and in that process, as rightly observed by the learned trial court that the accused might have received injury to his thumb. Obviously injury to the thumb cannot be the life threatening injury. The second injury is a multiple punctured wound that too in our opinion cannot be said to be the life threatening injuries warranting accused to use his tool of private defence by inflicting injury to the deceased of the nature sufficient to cause his death.
31. It is strange that even after receiving such injuries, the accused did not approach the hospital immediately. He was referred to Rural Hospital, Katol only after his arrest. Had he not fled away from the spot, he also would have been taken to the hospital alike other injured witnesses. The conduct of the accused reflects his corrupt mind. The sequence of events as deposed by the witnesses by no stretch of imagination indicate any use of private defence by the accused. The accused proved to be the initiator and more aggressive. There was no opportunity to the initial three injured persons to do anything after receiving injuries on their vital parts one by one. Only PW4 Kunal Babhulkar could protest the assault by accused and in that process the accused received the injuries and he fled away.
32. The evidence as regards injuries to the witnesses and the deceased vis-a-vis injuries to the accused does not indicate any use of ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 17 cri.apeal211.16 private defence by the accused to save himself. In the above conspectus, in our opinion, it is firmly established that the accused inflicted injuries to the witnesses and Nandkishor which resulted in the death of Nandkishor.
33. Now, the primary question that falls to be considered in this appeal is, whether the present act of the accused constitute 'murder' or 'culpable homicide not amounting to murder' ?
34. Before adverting to discuss the evidence on record in this perspective, it would be beneficial to first see the settled law on the subject.
35. Section 299 of the Indian Penal Code defines offence of culpable homicide. It consists in the doing of an act: a) with the intention of causing death; b) with the intention of causing such bodily injury as is likely to cause death; c) with the knowledge that the act is likely to cause death.
36. If the act of the accused comes within any of five exceptions specified in Section 300 of the Indian Penal Code, then the offence committed is not murder but culpable homicide not amounting to murder.
37. To decide the question whether the offence is murder or culpable homicide not amounting to murder, the Hon'ble Apex Court in the case of State of Andhra Pradesh vs. R. Punnayya, reported in AIR 1977 SC 45, held that the question to be considered in three stages. First, whether the accused has done an act by doing which he has ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 18 cri.apeal211.16 caused the death of another person. Proof of such casual connection between act of the accused and death leads to second stage for consideration whether that act of the accused amounts to "culpable homicide", as defined in Section 299 of IPC. If the answer of this question is prima facie found in the affirmative, the stage is reached for considering the operation of Section 300 of IPC. This is the stage at which the Court should determine whether the acts proved by the prosecution being the case within the ambit of any of four clauses of the definition of murder contained in Section 300 of IPC. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder punishable under the First or Second Part of Section 304 of IPC, depending respectively on whether second or third clause of Section 299 of IPC is applicable. If the question is found to be positive, but case within any of the exceptions enumerated in Section 300 of IPC, the offence would still be culpable homicide not amounting to murder punishable under First Part of Section 304 of IPC.
38. In the instant case, as per autopsy report Exh. 35 the following ante mortem injuries are mentioned in clause 17 of the report:
i) Stab wound present over left chests, of size 5cm x 1cm x cavity deep, vertically oblique, margins clean cut, both ends sharp, directed medially downwards.
ii) Incised wound present over left side of chin, of size 1.5cm x 0.2cm x muscle deep, vertically oblique.
iii) Stab wound present over left lateral aspect of neck, with ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 19 cri.apeal211.16 medial end placed just besides lower 1/3rd part of sternocleidomastoid muscle, of size 2.5cm x 0.3cm x muscle deep, horizontally oblique, margins clean cut, both ends sharp, directed medially and straight on neck dissection, soft tissues and jugulocarotids vessels on left sides cut through and through along with track of stab wound with cuts ends retracted, extravesaction of blood present along with track of stab wound.
iv) Stab wound present over anterior aspect of left shoulder, of size 3cm x 1cm x muscle deep, horizontal margins clean cut, both ends sharp, directed backwards, downward and straight.
v) Incised wound present over dorsum of right ring finger, upper 1/3rd of size 2 cm x 0.2 cm x muscle deep, vertically oblique.
Probable age of injuries : Fresh Probable cause : pointed sharp cutting object
39. Evidently, these injuries have been caused by the accused with knife and the act of the accused does not fall in any of the exceptions as mentioned in Section 300 of the IPC. As stated earlier, the accused was in inimical terms with Namdeo Korde and his son Nandkishor. The accused does not dispute this fact. As per testimony of PW-2, just before the incident, the accused went to his house, brought knife, came to Namdeo (PW-2) and gave sudden blows with knife on his neck and other parts of body. He thereafter injured Vilas Korde (PW-3), deceased Nandkishor and Kunal Babulkar (PW-4). Injury No. ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 20 cri.apeal211.16 3 in clause 17 of post mortem report of the deceased Nandkishor, as per medical opinion, PW-5 Dr. Rushikesh Pathak is sufficient in ordinary course of nature to cause death of a person.
40. As per clause 'thirdly' of Section 300 of IPC, to prove charge of culpable homicide amounting to murder, it requires 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.
41. The facts as has been brought on record by the prosecution, though do not reflect the intention of the accused to cause the death of Nandkishor, however, in view of the nature of injury No. 3 in P.M. Report Exh. 35, that too on the vital part i.e. on neck with knife of size 2.5 cm x 0.3 cm x muscle deep horizontally oblique, clearly suggests his intention of causing bodily injury, which is sufficient in the ordinary course of nature to cause death.
42. In case of Thangaiya v. State of T.N. (AIR 2005 SC 1142) relying upon a celebrated decision of this Court in Virsa Singh v. State of Punjab 1958 SCR 1495, the Division Bench observed:
"17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singhs case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 21 cri.apeal211.16 the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted.
18. Thus, according to the rule laid down in Virsa Singhs case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point."
43. Coming again to the three stages aforestated, in the instant case, the act of the accused resulted in death of Nandkishor. As stated earlier, the said act of the accused was done with an intention of causing such bodily injury, which is sufficient in the ordinary course of nature to cause death. The said act could not be shown to have come in any of the exceptions enumerated in Section 300 of IPC. It is neither the result of sudden provocation nor done in the heat of passion during quarrel and, therefore, we have no hesitation to hold that the death of Nandkishor is culpable homicide amounting to murder, committed by the accused. It is not the case of single blow. There were multiple blows with knife. One of them proved fatal. The relation between them was strained consistently. The blows were on the vital part of the body.
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44. It is pertinent to note that had it been a case of single blow in the heat of passion to the witness who came to the rescue of other, who had no animosity with the accused, the effect would have been different and which may have fallen under 304 part two of IPC i.e. culpable homicide not amount to murder. But that is not the case here, in the background of the above facts on record.
45. As regards the offence punishable under Section 307 of IPC is concerned, the Injury certificates and more particularly discharge summaries of PW Nos. 2, 3 & 4 show incised wound on neck of PW- 2 & 4 and punctured wound around neck of PW-3 which are shown as grievous. In our opinion, these injuries are sufficient to prove the charge of attempt to murder. The death of Nandkishor occurred due to neck injury which was found to be sufficient in the ordinary course of nature for causing death. The injuries to the necks of the witnesses PW2 to PW4, though fortunately not resulted into their deaths, can not be said to be less fatal than the injury to the deceased Nandkishor.
46. The learned counsel for the appellant -accused argued that the trial Court did not agree with the nature of injury to the accused being grievous in view of Section 320 of IPC, however, injuries on the witnesses according to the trial court fall within the purview of Section 320 of IPC. This argument cannot be accepted. Firstly, there is a vast difference between incised wound on neck and incised wound on thumb. Secondly, as stated earlier, the injury certificates issued by the Rural Hospital, Katol do not depict the true picture of the injuries for the reason that evidently, only the first aid was offered to the injured in that hospital. Immediately, the injured were referred to GMC, Nagpur. The Autopsy report- Exh.35 of the deceased shows as much as 5 stab ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 23 cri.apeal211.16 ante mortem injuries on his body while the injury certificate Exh. 56 issued by Katol Hospital shows only one or two injuries. Furthermore, the witnesses i.e. the panch witness PW 6 and the investigating officer PW 8 during their cross admitted that the accused received minor injury to his thumb. The accused too in his written statement states about sutured wound to his thumb.
47. In addition to this, the accused during the trial admitted all the injury certificates issued by Rural Hospital, Katol. The discharge summary issued by Rahate Hospital, Nagpur, for the patient Vilas Charde (PW-3) shows multiple stab with lacerated wound over neck, right arm, chest etc. Discharge summary from Rahate Hospital, Nagpur of PW-2 shows assault with stab wound on left arm, neck and left thumb. Both the patients were discharged against medical advise.
48. In the light of the testimonies of the injured eye witnesses, which are cogent, consistent, mutually corroborated and supported by Medical and forensic evidence we have no hesitation to hold that the prosecution has succeeded in establishing the charge against the accused.
49. The authorities (supra) relied on by learned counsel Shri Daga in support of his argument of private defence and the unexplained injuries to the accused in the light of cogent evidence on record would not be helpful for creating doubt in the prosecution story. Prosecution witness No. 4 clearly deposed that there was grappling between him and the accused and he snatched the knife and threw it away. Thereafter, he took out wooden rafter from the roof of Vilas Charde (PW-3) and gave blow to the accused and therefore the accused fled ::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 ::: 24 cri.apeal211.16 away.
50. In view of the clear evidence about receipt of injuries to the accused during the incident, it cannot be said that the injuries of the accused have not been explained by the prosecution and therefore, the evidence of the prosecution witnesses cannot be relied on.
51. Strong reliance was placed by the defence Counsel on the case of Lakshmi Singh and Ors. vs State Of Bihar reported in AIR 1976 SC 2263. In Lakshmi Singh's case, there was no explanation at all from the side of prosecution to the injuries suffered by the accused. Apart from unexplained injuries to the accused, there were other circumstances for not relying on the prosecution story. Facts in that case are distinguishable from the facts in the case in hand.
52. In the case of Takhaji Hiraji Vs. Thakore Kubersing Chamansing & ors., reported at (2001) 6 SCC 145, the Hon'ble Apex Court has observed that there is no doubt that the prosecution is obliged to explain the injury on the accused person but where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject a testimony of the prosecution witnesses and consequently the whole of the prosecution case.
53. The Supreme Court in the case of in the case of Amar Malla & Ors vs State Of Tripura reported at 2002 (7) SCC 91 observed thus:
::: Uploaded on - 06/08/2019 ::: Downloaded on - 07/08/2019 04:46:52 :::25 cri.apeal211.16 "It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eyewitnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the Investigating Officer."
54. The other authorities (supra in para 15) which are relied on by the learned defence Counsel are distinguishable on facts involved in the present case. They are of little use to the defence. In the above circumstances, we have no hesitation to hold that the prosecution has proved its case beyond reasonable doubt. The learned trial Court has appreciated the evidence on record in its correct perspective. Criminal Appeal is devoid of any merit warranting any interference and, therefore, it needs to be dismissed and the same is accordingly dismissed.
JUDGE JUDGE
D.S.Baldwa.
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