Bombay High Court
Christopher Philips Cardoz vs The State Of Maharashtra on 14 October, 1992
Equivalent citations: 1993(1)BOMCR380
JUDGMENT H.H. Kantharia, J.
1. This appeal arises from the judgment and order dated July 1, 1987 passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No. 494 of 1985 convicting the appellant-accused (hereinafter referred to as 'the accused') and sentencing him to suffer rigorous imprisonment for life for an offence of murder.
2. The facts disclose that deceased Philips Cardoz had four sons, (i) the accused Christopher, (ii) Justin (P.W. 1) (iii) Anthony and (iv) Francis. Anthony was working in Saudi Arabia and Francis was staying in Yeshwant Nagar behind the Church in Vakola locality. And the deceased was staying in his house along with 2 sons i.e. the accused and prosecution witness Justin in Room No. 2, Anusayabai Chawl, Khandwala Compound, Datta Mandir Road, Vakola, Santacruz (East), Bombay. The said room was divided into three compartments in order to accommodate three families of the deceased, the accused and prosecution witness Justin. The front portion of the room was used by Justin along with members of his family. The middle portion was occupied by the deceased and his wife and the third portion (hereinafter referred to as 'the rear portion) was occupied by the accused along with the members of his family.
3. The unfortunate incident took place on July 10, 1985 at about 8.30 p.m. It appears that the members of all the three families had said their evening prayers and were about to take their dinner when the accused had still not come back home. When he came back home at about 8.30 p.m. he was drunk. Soon after he entered his portion of the room, he started abusing his wife Jenith Cardoz (P.W. 4). The deceased who was 75 year old man intervened and scolded him saying that he was not doing any work and was unnecessarily harassing his wife. The accused did not take scolding of his father kindly. He became angry and tried to assault his father. Justin (P.W. 1) who was present in the front portion of the room along with the members of his family intervened and separated the father and the son i.e. the deceased and the accused. He then went back to his room and started taking meals. The deceased, however, continued scolding the accused while sitting on a stool in the portion of the room occupied by the accused. Soon thereafter, Justin heard the cries of the deceased "Aaa". Therefore, he rushed inside the room of the accused and noticed that the deceased had fallen in the arms of his daughter-in-law Jenith (P.W. 4), wife of the accused, and there was blood coming out of his body. The accused was also lying on the floor. The backside of the banian of the deceased was bloodstained and there was pool of blood on the floor. Immediately, the other prosecution witnesses, including Jasintha (P.W. 3), wife of Justin, also went there and there was a commotion as these persons started crying. Hearing such noise, Gajanan Mahadik (P.W. 5) and Suhasini Redkar (P.W. 6) from the neighbourhood also rushed there. Refial Cardoz (P.W. 2) who was popularly known as Franky, son of the accused, aged about 17 years, was asked to hire a taxi which was done and injured Philips was taken to Vakola Police Station from where he was accompanied by a Constable and taken to Cooper Hospital where he was declared dead.
4. Police Sub-Inspector Ankush Yadav (P.W. 14) of Vakola Police Station soon went to Cooper Hospital and coming to know that Philips had died recorded the first information report (Exh. 5) of Justin Cardoz (P.W. 1) and registered the offence. Further investigation was commenced. On completion of the investigation, the accused was charge-sheeted and his case was committed to the Court of Session where he was tried for an offence of murder and was convicted by the learned trial Judge for an offence of murder and sentenced, as stated hereinabove.
5. The defence of the accused was one of denial. According to him, his brother Justin was dealing in illicit liquor. He used to take help of his son Franky who was a school going boy which was not liked by him (accused). He therefore, objected to Justin making use of Franky to sell illicit liquor. However, his wife was of the opinion that they were getting some money from the work done by Franky and as such the accused should not object to Franky helping his uncle in selling illicit liquor. Therefore, according to the accused, his brother Justin, his son Franky and his wife Jenith were against him and gave false evidence. About Gajanan Mahadik it was the say of the accused that he used to go to Justin to take illicit liquor and, therefore, he has given false evidence against him. The accused did not adduce any defence evidence.
6. Now, the star witness of the prosecution is Justin Cardoz (P.W. 1). His evidence shows that at the relevant time he was in his portion of the room along with his wife and children and his parents were in the middle portion of the room. The accused who was drunk arrived home at about 8.30 p.m. and started abusing his wife for no rhyme or reason. His father, therefore, intervened and asked him not to abuse his wife and there was hot exchange of words between both of them. The accused had gone in the middle portion of the room and actually there was a struggle between the accused and the deceased. Justin further deposed. He, therefore, went there and separated the deceased and the accused. He made his father sit on the bench and asked the accused to go to his portion of the room. The accused thereafter went to his room and the deceased was sitting on a bench in the middle room, Justin went back to his room and started taking his food. Soon thereafter, within five minutes, he heard a cry of his father coming out from the room of the accused. He, therefore, rushed there and saw that his father was lying in the arms of the wife of the accused and was unconscious. He noticed that blood was coming out from the front part of his body. He therefore, asked Franky (P.W. 2) to bring a taxi which was done. The deceased was put in the taxi and taken to Vakola Police Station from where he was taken to Cooper Hospital where he was declared dead. The police thereafter came to the hospital and recorded his statement at about 9.00 p.m. which was treated as first information report (Exh.5).
7. This witness was subjected to lengthy cross-examination but nothing was brought out in the cross-examination to shake his credibility. On the contrary, he reiterated the prosecution case further in the cross-examination and also stated that the wife of the accused was serving somewhere and supporting the family. A perusal of the first information report which is a contemporaneous record shows that the evidence given by Justin in the Court gets complete support from it. In other words, the case of the prosecution which Justin had disclosed in his first information report is the same as the evidence that he has given in the Court. From his evidence read with the averments made in the first information report, therefore, makes it crystal clear that the incident had taken place in the rear portion of the room occupied by the accused and the members of his family. An inference from this evidence is also inevitable that the author of the injury caused to the deceased could be no one but the accused because it is nobody's case that the other occupants of the room viz., accused's wife Jenith (P.W. 4) and/or his son Refial (P.W. 2) were the persons responsible for causing injury to the deceased. It is also nobody's case that somebody else went there to assault the deceased. In the background of the earlier incident of the accused abusing his wife and the deceased scolding him and going upto the extent of asking the accused to leave the house and soon thereafter the deceased going to the room of the accused and further scolding the accused and then crying out "Aaa" and soon found in the arms of his daughter-in-law Jenith in an injured condition leaves no manner of doubt that the accused and the accused alone was responsible for causing the injury to the deceased.
8. However, three other prosecution witnesses viz., son of the accused Refial (P.W. 2), the wife of P.W. 1---Jasintha (P.W. 3) and the wife of the accused -Jenith (P.W. 4) gave evidence to the effect that the incident did not take place in the rear portion of the room occupied by the accused but in the middle portion of the room occupied by the deceased and his wife. These witnesses, therefore, changed the place of offence while giving evidence in the Court. However, their statements recorded by the Police under section 161 of the Criminal Procedure Code disclose a different picture inasmuch as their case then was that the scene of the offence was the rear portion of the room occupied by the accused and not the middle portion of the room occupied by the deceased. These witnesses were permitted to be cross-examined by the learned prosecutor appearing in the trial Court and were confronted with the statements made by them before the police and through the Investigating Officer Babasaheb Chaugule (P.W. 15). Inspector of Police of Vakola Police Station, the contradictions were proved. The said proved contradictions are on record at Exhibit Nos. 30, 31 and 32 respectively a perusal of which shows that initially the case of these witnesses before the police was that the incident had taken place in the rear portion of the room occupied by the accused and not in the middle portion of the room as the witnesses have tried to show in the Court. The reason is obvious for these witnesses to make improvement in their evidence that in all probability they wanted to save the accused who is their closest relative and more particularly of Jenith and Refial whose husband and father he is admittedly. Exhibits 30 and 32 clearly show that Refial and Jenith had, as a matter of fact, seen the accused giving a knife blow to the deceased and perusal of Exhibit 31 shows that Jasintha had seen her sister-in-law Jenith crying and saying that the accused had assaulted the deceased with a knife. Since the incident had taken place in the portion of the room that was occupied by the accused in which, at the relevant time, Refial and Jenith were present along with the accused, naturally they were the eye-witnesses to the incident but for the obvious reason they did not oblige the prosecution by speaking the whole truth. There is absolutely no doubt in our mind that the story of Refial, Jasintha and Jenith that the incident had taken place in the middle portion of the room is false because the panchanama of the scene of offence (Exh. 19) proved by panch witness Vithal Shetty (P.W. 10) shows that the place of the offence was the rear portion of the room occupied by the accused and the members of his family. The evidence of Vithal Shetty and the averments made in the panchanama (Exh. 19) show that there was one small wooden stool kept close to the western wall of the entrance with a blue rexin cover on which there were blood-stains and it is the prosecution case that the deceased at the relevant time was sitting on the said stool. There was also a small green colour school bag lying over there which was also stained with blood. There was a napkin soaked with blood lying on the iron cot kept in this room in the south-north directions close to the western wall. A small gunny bag with blood stain was also found there. A blood-soaked banian was also found from the spot. There was a patch of blood measuring 0.20 x 0.20 metres at the centre of the said room. All this goes to show that the place of offence was the rear portion of the room in question and not the middle one as contended by Refial, Jasintha and Jenith in the Court. Thus, the evidence of these four prosecution witnesses viz. Justin (P.W. 1), Refial (P.W. 2), Jasintha (P.W. 3) and Jenith (P.W. 4) when read together makes it absolutely clear that the incident took place in the rear portion of the room occupied by the accused and the members of his family and the author of the injury caused to the deceased was none else but the accused to whom in fact his wife and son had seen inflicting a knife blow to the deceased.
9. In addition, the evidence of Gajanan Mahadik (P.W. 5) and Suhasini Redkar (P.W. 6) from the neighbourhood shows that soon after the incident the wife of the accused had said that the deceased was assaulted with a knife by the accused. In fact, the words uttered by Jenith have a tale-telling force inasmuch as she stated "ik;-ik; ik;p jxr y fLVu ljk ekjyh." The deceased was popularly called "Paay". The learned trial Judge was, therefore, not wrong in coming to the conclusion that the author of the injury caused to the deceased was the accused and none else.
10. The prosecution also relied upon a circumstance regarding the recovery of a kitchen knife at the instance of the accused. The said knife (Article 4) was blood-stained. Thus, the evidence of panch witness Anthony Koreian (P.W.8) read with the evidence of investigating officer Babasaheb Chaugle(P.W.15) shows that the accused made a certain statement, soon after his arrest, in consequence of which he led the police and the panchas to the rear portion of the room occupied by him and sat on the floor and searched under the iron cot and took out a kitchen knief (Article 4) and produced it before the police. Similar avernment is found in the recovery panchanama (Exh.15). His evidence further shows that the kitchen knife (Article 4) was bloodstained. The report of the Chemical Analyser shows that the knife was stained with human blood. The learned trial Judge rejected this evidence adduced by the prosecution and did not accept the recovery evidence because, in his opinion, the knife could have been well seen and recovered at the time of making the panchanama of the scene of offence (Exh. 19) especially when the portion of the room in question was so small that anyone could have easily noticed the knife lying under the cot if it was really there. We are unable to pursuade ourselves to agree with the reasoning of the learned trial Judge in this regard for the simple reason that the evidence does not show that the knife was so openly lying under the cot that anyone could have easily seen and picked it up. The evidence of panch witness Anthony Koreian and the investigating Officer Babsaheb Chaugule and the averments made in the panchanama (Exh. 15) clearly show that the accused had to sit on the floor and make search for sometime and then take out the knife from under the cot which means that the knife was hidden or concealed and none could have done it but the accused who had the exclusive knowledge about it and that is how he could produce it before the police. The kitchen knife (Article 4) which was stained with human blood and recovered at the instance of the accused from the place of the incident is certainly a clinching circumstance which the prosecution proved against the accused. The learned trial Judge was not correct in rejecting this evidence.
11. The other circumstance proved by the prosecution that very much goes against the accused is that soon after the incident the accused who was found lying near the place where the deceased was lying after receiving the knife blow disappeared from there and was not available for quite sometime. It is only when the first information report was lodged and his name was disclosed that Police Constable Vishnu Talekar of Vakola Police Station was ordered by his superiors to trace out the accused in consequence of which he went out during the night and found out the accused in a dark place sitting in front of the left side corner of the ground floor of a building under construction from where he was picked up and brought to the Police station. In other words, the accused who should have been normally with his father, had he been innocent, was hiding himself behind a building under construction which is also a circumstance that goes against him.
12. The prosecution had relied upon a circumstance of the recovery of bloodstained shirt (Article 5) of the accused at the time of his arrest. He was arrested by Vishnu Talekar (P.W. 11) a Police Constable attached to Vakola Police Station at about 12.30 in the mid-night on the night of the incident. Ganpat Powlekar (P.W. 9) is a panch witness in whose presence the said shirt of the accused was taken charge of under a panchanama (Exh. 17). This shirt was sent to Chemical Analyser for examination and the report of the Chemical Analyser (Exh. 29) shows that it was stained with human blood. The learned Sessions Judge was, however, not wrong in not accepting this evidence because the further evidence adduced by the prosecution through Dr. Mrs. Mangala Ragte (P.W. 16) shows that on the same night of the incident at about 1.40 a.m. she had examined the accused at Cooper Hospital and had noticed that he had suffered a contused lacerated would admeasuring 21/2 inches x 1/2 inch, muscle deep on the left parietal region. This was a bleeding injury and it is quite possible that the shirt of the accused was bloodstained on account of this injury. It is further important to note that admittedly the group of the blood of the deceased was "O" whereas the group of the blood found on the shirt of the accused could not be ascertained nor was it ascertained as to what was the blood group of the accused and therefore, it cannot be said that the blood-stains found on the shirt of the accused were those of the deceased. This was certainly not a circumstance with which the accused could be connected and the learned trial Judge was right in not accepting this evidence.
13. From the above evidence, we are more than satisfied that the author of the injury caused to the deceased was none else but the accused and it is not in dispute that the deceased met with a homicidal death on account of the said injury. But he could not have been convicted for an offence of the murder and the same should have been for culpable homicide not amounting to murder. In this connection, we may first of all refer to the medical evidence adduced by the prosecution through Dr. Subhash Khanolkar (P.W. 12). This witness deposed that he had carried out post mortem examination on the dead body of Philips Cardoz on July 11, 1985 and had noticed the following six external injuries which he had noted down in column No. 17 of the post-mortem notes (Exh. 23).
"1. Abrasion right forehead 0.5 cm. X 0.2. cm.
2. Scratch abrasion left upper arm 2.5 x 0.5 cm.
3. Scratch abrasion left deltoid region 0.5 x 0.3 cm.
4. Incised would left arm lateral aspect mid 1/3, 3.0 cm. x 0.5cm. x sD.
5. ISW back of chest on left side transverse, over scapular region, 8.0 cm away from midline. 2 x 0.5 x would entered in left thoracic cavity.
6. Incised wound 7.0 cm. below left axilla, transverse, 2 x 0.5 cm. x sD."
On internal examination he noticed the following injuries.
"1. Wound found in left 7th intercostal space transverse 2.0 x 0.5 cm., 2.0 away from vertibral column. The wound was in relation to external injury No. 5.
2. Wound found on left lung lower to be posterior aspect 2 x 1.0 cm. in relation to external injury No. 5. Lung tissue pierced was 2.0 cm. Large number of blood clods found in left thoracic cavity. Total depth of injury No. 5 found was 11.0 cm."
According to him, the injuries were antemortem and there was large amount of blood found on the left thoracic cavity because of the internal injuries. He also deposed that except injury No. 5, all other external injuries were simple. In his opinion, the cause of death was haemorrhage and shock due to stab injury with sharp edged weapon which could have been caused by Kitchen knife (Article 4) shown to him in the Court. He also opined that external injury No. 5 along with the internal injuries was sufficient in the ordinary course of nature to cause death. This evidence, therefore, shows that there was only one knife blow given by the accused to the deceased which caused external injury No. 5 and the other superficial or simple skin deep injuries were ancillary or collateral to the main injury. In fact, the medical evidence clearly shows that the fatal injury was only external injury No. 5. In other words, the accused who was angry with his father as he had scolded him merely wanted to chastise the old man and picked up the kitchen knife which perhaps was readily available in the small room and gave a blow which unfortunately turned out to be fatal. Then the evidence of Justin shows that the deceased not only scolded the accused for having come home drunk and abusing his wife but also said to him that if he was indulging in such behaviour time and again he better leaves the house which made the accused quite angry. Not only that, thereafter the deceased once again went to that portion of the room which was occupied by the accused and sat on the stool and continued scolding the accused saying that if he wanted to indulge in abusing his wife he better leaves the house which further angered the accused. The evidence of Justin also shows that there was exchange of hot words between the accused and the deceased and also a struggle. All this goes to show that there was no premeditation on the part of the accused and that the incident took place, in the heat of passion, upon a sudden quarrel and it cannot be said, from the facts and circumstances, that the accused took undue advantage of the situation and acted in a cruel or unusual manner inasmuch as had the accused an intention to kill the deceased he would have inflicted any number of knife blows on the 75 year old man who was helplessly sitting on a stool there. But the angry accused inflicted only one blow which goes to show that he did not act in a cruel manner. This case, therefore, is covered by exception 4 to section 300 of the Indian Penal Code according to which culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acting in a cruel or unusual manner. The accused, therefore, could have been convicted only under Part II of section 304 of the Indian Penal Code.
14. In the result, we partly allow the appeal. The conviction of the accused recorded by the learned trial Judge for an offence of murder and sentence of life imprisonment inflicted on him is set aside. He is acquitted of an offence of murder and instead stands convicted for an offence of culpable homicide not amounting to murder, punishable under section 304, Part II of the Indian Penal Code. After hearing the learned Additional Public Prosecutor and the learned defence advocate, we are of the opinion that the sentence so far undergone by the accused will serve the ends of justice as he has already remained in jail right from the day of his arrest on 11-7-1985 which means that he has undergone sentence of seven years and three months by now.
15. The accused is thus convicted for an offence of culpable homicide not amounting to murder, punishable under section 304, Part II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and three months which sentence he has already undergone and is, therefore, entitled to set off under section 428 of the Criminal Procedure Code. Hence, we order that he shall be set at liberty forthwith unless required in some other case.