Bombay High Court
Gulab Saheblal Shaikh vs The State Of Maharashtra on 16 October, 1997
Equivalent citations: 1998BOMCR(CRI)~
Author: Vishnu Sahai
Bench: Vishnu Sahai, T.K. Chandrasekhara Das
ORDER Vishnu Sahai, J.
1. Through this appeal, the appellant challenges the judgment and order dated 2-4-1994, passed by the Additional Sessions Judge, Pune, in Sessions Case No. 102/1993, whereby he has been convicted and sentenced in the manner stated hereinafter:---
(i) Under section 302 I.P.C. to undergo imprisonment of life and to pay a fine of Rs. 1,000/- i.d. to undergo 1 month R.I. ; and
(ii) Under section 326 I.P.C. to 5 years R.I. and to pay a fine of Rs. 2,000/-
i.d. to undergo 3 months R.I. The substantive sentences were directed to run concurrently.
2. In short, the prosecution case runs as under :---
The informant-victim Rashida Shaikh P.W. 1 was the second wife of Nazir Shaikh, real brother of the appellant. Nazir's first wife Niyamatbi was residing separately in Ganesh Peth, Pune. The appellant at the time of the incident, was working in Metal Works Factory which was located near the house of Niyamatbi. From a reading of the evidence, it appears that he was financing Niyamatbi.
From the evidence of the informant, it appears that periodically, the appellant used to take money from her to give to Niyamatbi. It appears that the informant stopped giving money to the appellant and this irked him.
The informant and her husband used to sell fruits at Paud Phata on a hand-cart, between 8 a.m. to 9 p.m. every day. On 1-12-1992, at about 10.30 a.m. the informant was selling fruits kept in her hand-cart at Paud Phata. At that time, her daughter Minazbi Nazir Shaikh aged 2 1/2 years, was in her arms. The appellant holding a glass in his hand, came there and threw its contents on the informant saying it was wine and as a result of thereof, the informant sustained burns on the left side of her face, left hand and left breast and Minazbi was also burnt. (It is said that both the informant and Minazbi lost their eyesight, as a result of the appellant's act.) On being burnt, the informant and Minazbi cried loudly. The informant's husband Nazir Shaikh who was present by her side, also received some burns on left side of his face.
Amongst others, this incident is alleged to have been seen by Chandrakant Datar, P.W. 4 and Suresh Pujari, P.W. 6.
It is alleged that after throwing the contents of the glass, the appellant tried to run away but he was apprehended near the place of the incident with the glass in his hands by police constable Balasaheb Chavan, P.W. 8.
3. The F.I.R. of the incident was lodged by the informant Rashida Shaikh the same day at police station, Kothrud. On its basis, C.R. No. 473 of 1992, under section 307 I.P.C. was registered at Kothrud Police Station.
4. The evidence is that the informant Rashida and her daughter Minazbi after the incident, were taken to Sasoon Hospital. There, they were medically examined. However, the doctor who had examined them, has not been produced in the instant case. The evidence is that Minazbi succumbed to her injuries on 27-12-1992, at home.
5. The investigation was conducted in the usual manner by P.I. N.L. Shinde, P.W. 9. His evidence is that P.W. 8 Balasaheb Chavan, produced the appellant along with a glass, containing 2 ounces of liquid, like acid. He poured the contents of the said glass into a small bottle, and prepared the recovery memo of the seizure. From the place of the incident, he seized 8 articles, including soil mixed with acid, a small piece of tile, one piece of blouse-sari and half burnt piece of small frock. He sent the seized articles to the Chemical Analyst.
After completing the investigation, he submitted a charge sheet against the appellant.
6. The post mortem examination on the corpse of Minazbi was conducted on 28-12-1992 by S.A. Sami Gulab AN P.W. 7. Dr. Sami found superficial to deep burns about 20% over the face, neck, limbs, chest, abdomen, back and lower limbs of the deceased. He stated that there was a likelhood of the injuries suffered by the deceased of causing her death in view of the circumstance that she was aged about 2 1/2 years.
In the opinion of Dr. Sami, the deceased died on account of shock due to burns.
7. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellant was charged on two counts namely under section 302 I.P.C. in respect of causing death of Minazbi and section 307 I.P.C. in respect of attempt to commit murder of Rashida Shaikh. During trial, in all, the prosecution examined 9 witnesses, out of which, 3 namely Rashida Shaikh, Chandrakant Datar, and Suresh Pujari, P.Ws. 1 and 1, 4 and 6 respectively were examined as eye-witnesses and one namely Balasaheb Chavan, P.W. 8, was examined to prove the arrest of the appellant immediately after the incident. In defence, no witness was examined. The trial Judge believed the evidence of the prosecution witnesses, and convicted and sentenced the appellant, in the manner stated in para 1.
8. We have heard Mr. A.R. Shaikh for the appellant and Mr. S.R. Borulkar, Additional Public Prosecutor for the respondent. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution; the statement of the appellant recorded under section 313 Cr.P.C.; and the impugned judgment. After thoughtfully reflecting over the matter, we are squarely satisfied that there is no merit in this appeal and the same deserves to be dismissed.
9. So far as the involvement of the appellant in the incident is concerned, the same has been established by the prosecution beyond any shadow of doubt by the evidence of the three eye witnesses, namely Rashida Shaikh, Chandrakant Datar, and S.A. Pujari (Suresh Pujari) P.Ws, 1, 4 and 6 respectively. In para 2, we have given out the prosecution case on the basis of the averments contained in their examination-in-chief and hence, we do not propose graphically narrating the same.
These witnesses have explained their presence on the place of the incident namely Paud Phata, when the incident took place at 10.45 a.m. Rashida Shaikh has stated that she along with her husband was selling fruits, on a hand-cart; Chandrashekar Datar has stated that he was in his bakery known as 'Naaz Frozen Foods' located nearby; and S.A. Pujari has stated that he was in his paan shop situated nearby. All these three witnesses have stated that at the said time, the appellant came carrying a glass in his hand and threw the contents of the same, on Rashida, who at the said time was holding her daughter Minazbi, aged 2 1/2 years, in her arms and as a result of the act of the appellant, Rashida and Minazbi got burnt. The appellant tried to run away but was apprehended by constable Balasaheb Chavan P.W. 8 near the place of the incident with a glass containing some liquid and was taken to police station, Kothrud where the contents in the glass were seized under a panchanama. It is pertinent to point out that the contents of the glass were sent to the Chemical Analyst, who found them to be sulphuric acid. This obviously means that sulphuric acid had been thrown by the appellant on Rashida and Minazbi.
10. The manner of the incident as deposed to by the three eye witnesses, is corroborated by the ante-mortem injuries found on the person of the deceased Minazbi by the autopsy surgeon. As mentioned above, the autopsy surgeon found burns on the vital parts of the body of Minazbi. It is common knowledge that burns can be caused by sulphuric acid.
It is true that the doctor who medically examined the informant Rashida, has not been produced by the prosecution but, since the injuries to her, were caused in the same transaction, as Minazbi, it can be safely presumed that they were also attributable to sulphuric acid.
11. It is significant to point out that two of the three eye-witnesses namely Chandrashekar Datar and S.A. Pujari were wholly independent witnesses having no axe to grind against the appellant. They had no rancour against the appellant and that being so, we are not prepared to believe that they would have falsely implicated him unless, he had really thrown acid on Rashida and Minazbi.
It is true that Rashida Shaikh being the sister-in-law of the appellant and mother of the deceased Minazbi was an interested witness, but we fail to understand that in the absence of any plausible reason, for falsely implicating the appellant, she would have foisted a false accusation against him.
In our view, evidence of the three eye-witnesses inspires implicit confidence.
12. Assurance is lent to the ocular account by the circumstance that immediately after the incident, the appellant was arrested from near the place of the incident by constable Balasaheb Chavan P.W. 8 with a glass in his hand containing sulphuric acid. The said witness too had no axe to grind or any rancour against the appellant and in our view, his evidence clinches the participation of the appellant in the crime.
13. There are two other circumstances which lend credence to the ocular account.
Firstly, from the place of the incident , earth mixed with acid was recovered by the Investigating Officer. The same was sent to the Chemical Analyst who found that it contained sulphuric acid. This shows that the incident took place at the place alleged by the eye-witnesses.
Secondly, the FIR of the incident was promptly lodged by Rashida and in the same, the prosecution case against the appellant, as un-folded by the eye-witnesses is incorporated.
14. In our view, the trial Judge acted correctly in holding the involvement of the appellant in the incident.
15. This leaves us with only one question namely that of offence. So far as the act of the appellant, in throwing acid on Rashidabi is concerned, we find that the trial Judge has rightly convicted him for an offence under section 326 I.PC. In this connection, it would be pertinent to refer to the evidence of Rashidabi who has stated therein that as a result of the appellant, throwing acid, her left eye and left ear were completely damaged.
16. Mr. Shaikh learned Counsel for the appellant urged that the trial Judge erred in convicting the appellant for an offence under section 302 I.PC. and should have only convicted him for that under section 304(2) I.P.C.. He urged that acid was thrown according to the prosecution by the appellant on Rashida and not on Minazbi. Consequently, he contended that at the most the appellant can only be fastened with the knowledge of Minazbi's death in terms of section 304(2) I.P.C. and therefore the act of the appellant would not fall in the four clauses contained in the section 300 I.P.C., the breach of which is punishable under section 302 I.P.C.
On the other hand, Mr. Borulkar, Additional Public Prosecutor for the respondent urged that the act of the appellant would fall squarely within the ambit of clause thirdly of section 300 I.P.C.
17. To adjudicate upon the rival submissions a perusal of the provisions contained in section 300 I.P.C. is necessary. We are extracting the relevant part of the said section, which reads thus :---
"300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
3rdly - If it is done with the intention of causing bodily injury to any person and the bodly injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly- If the person committing the act knows that it is so imminently dangerous that it must, in all probablity cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid....."
17-A. In our view, the act of the appellant would not fall within the ambit of first three clauses of section 300 I.P.C. In our judgment, it would fall within fourth clause of the said section.
We feel that in the factual matrix of the instant case, it cannot be said that there was an intention on the part of the appellant to have caused the death of Minazbi Shaikh. There was not even any iota of enmity between the appellant and Minazbi from which, it could be inferred that the appellant, intended to kill her.
Again, from the evidence on record it appears that Minazbi was not the intended victim. The intended victim was her mother Rashida Shaikh, P.W. 1. Evidence shows that acid was thrown at Rashida Shakh. In this view of the matter also, it cannot be said that the appellant intended to kill Minazbee.
18. The act of the appellant, would also not fall within the ambit of clause secondly of section 300 I.P.C. We feel that the evidence on record does not show that the appellant threw acid on Minazbi with an intention to cause such bodily injury as he knew was likely to cause her death. To repeat, throwing of acid by the appellant was not intended on her, but on her mother, Rashida. We also find that there is no evidence on record to show that when the appellant threw acid upon Rashida, he had the knowledge that death of Minazbi would be caused.
The expression 'offender knows' as used in clause secondly connotes, a positive knowledge on the part of the offender that he is likely to cause death. We feel that it can safely be said that when the appellant threw acid on Rashida, he had the positive knowledge that hurt may be caused to Minazbi who was in her arms, but, it would be too far- fetched to hold that he had the positive knowledge that her death would be caused.
19. We feel that the act of the appellant would also not fall within the ambit of clause thirdly of section 300 I.P.C. for the following reasons :---
(a) the Autopsy Surgeon Dr. Sami did not state that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death; and
(b) the injuries of the deceased were not accompanied by any internal damage on the basis of which it could be inferred that they were sufficient in the ordinary course of nature to cause death.
On the converse, the medical evidence is that the deceased received only 20% burns and some of them had already healed.
It should also be borne in mind that the deceased succumbed to her injuries about one month after the incident at her home. This obviously means that her condition had improved and therefore, she was discharged from hospital.
In view of the said circumstances, we find that in the absence of the opinion of the doctor that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death, it would be hazardous to hold that they were.
20. We now come to clause fourthly of section 300 I.P.C. In our view, the act of the appellant falls within its ambit.
Let us have a second look at the provisions contained therein. Clause fourthly reads thus :---
4thly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Its perusal shows that in two situations, an act of a person may fall within its ambit.
Firstly, where a person knows that perse, his act is so blatantly perilous that it must in all probability cause death. The illustration contained in (d) of section 300 I.P.C., which reads thus, affords an example of this:---
"A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."
Secondly, an act of a person, would come within the mischief of the clause, if the said person knew that on the face of it, his act was so reckless that it must in all eventuality cause such bodily injury as is, likely to cause death.
There is a condition precedent common to both the situations which has to be fulfilled before clause fourthly can be invoked, and that is the act should have been committed by the person, without any excuse in incurring risk of causing death or such injury as is aforesaid. In other words, there should be no justification in law for committing the act committed.
21. The expression used in clause fourthly that the act 'must in all probability cause death" is invariably treated to be synonymous by laymen and often by men of law with the expression, "such bodily injury as likely to cause death" used in the said clause. The two expressions are distinct in law. The distinction between them is real and substantial in law.
The expression "it must in all probability cause death" applies to those situations, where the degree of probability of death is at the highest; just a shade short of certainty. On the other hand, the expression "such bodily injury is likely to cause death" contemplates of a situation where the probability of death is lesser.
22. In the instant case, it cannot be said that when the appellant threw acid on Rashida, he knew that his act was so perse perilous or imminently dangerous that there was the highest probability of Minazbi's death being caused by it.
However, we feel that when the appellant threw acid upon Rashida, it could be reasonably inferred that he knew that some of it, may fall on her daughter Minazbi, aged 2 1/2 years, who was in her arms, and she may on account of her tender age, suffer such bodily injury as was likely to cause her death.
Since there was no excuse or justification for the said act of the appellant in our view, his act would fall squarely within the ambit of clause fourthly of section 300 I.P.C.
23. For the said reasons, we reject the submission of Mr. Shaikh and hold that the appellant has been rightly convicted for the offence under section 302 I.P.C.
24. In the result, this appeal is dismissed. The conviction and sentence of the appellant for offences under sections 302 and 326 I.P.C., recorded vide the impugned judgment is confirmed. He is in jail and shall remain there till he serves out his sentence.
25. Appeal dismissed.