Bombay High Court
Sangit S/O Rajaram Ingle (In Jail) vs The State Of Maharashtra, Thr. P.S.O. ... on 15 March, 2019
Author: S.M. Modak
Bench: Sunil B. Shukre, S.M. Modak
apeal195.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 195 OF 2016
Sangit s/o Rajaram Ingle,
aged about 35 years,
occupation - Labourer,
r/o Varvat Bakal, Tq.
Sangrampur, District -
Buldhana, (presently in
Buldhana Prison). ... APPELLANT
Versus
The State of Maharashtra,
through Police Station
Officer, Police Station,
Tamgaon, District - Buldhana. ... RESPONDENT
Shri S.V. Sirpurkar, Advocate for the appellant.
Mrs. M.H. Deshmukh, APP for the respondent - State.
.....
CORAM : SUNIL B. SHUKRE &
S.M. MODAK, JJ.
DATE OF RESERVE : FEBRUARY 13, 2019.
DATE OF PRONOUNCEMENT : MARCH 15, 2019.
JUDGMENT :(PER S.M. MODAK, J.) This Appeal is filed by the accused against his conviction for the offence punishable under Section 302 of the Indian Penal Code (IPC) by the Court of Additional Sessions Judge, Khamgaon. He was convicted for committing murder of ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 2 one Ganesh Ingale. The appellant was convicted on 28.03.2016 in S.T. No. 45 of 2012. He was sentenced to life imprisonment and imposed the fine of Rs.500/-.
2. There was trifle incident prior to the incident of murder. Both the incidents took place on 17.01.2012 but their timings are different. Trifle incident took place at 6.30 PM whereas main incident took place at about 8.30 PM on the road outside the house of the deceased at village - Varvat Bakal, Tq.
- Sangrampur, District - Buldhana.
3. Smt. Ranjana Ganesh Ingale is the victim of the first incident. On her way to tuition class of her son Gyansingh, accused questioned her about going in front of her house. Accused slapped and abused her. It resulted into filing of complaint by Smt. Ranjana at Tamgaon Police Station. The police registered non-cognizable complaint under Sections 323, 504 and 506 of the Indian Penal Code. The accused came to know about this fact and he decided to question First Informant Ranjana (PW-1).
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4. On 17.01.2017 at 8.30 PM, the deceased Ganesh came out of the house for urinating. First informant Ranjana and her son Mangesh (PW- 2) also came out of the house. Accused took a chance. He questioned PW-1 about lodging of police complaint. The deceased tried to convince accused. Accused got annoyed and pierced a Gupti (which he had brought along with him) into the abdomen of the deceased. There was one more blow on back of the deceased.
5. Witnesses shouted. Neighbours - Kishor Ingale (PW-3 - cousin brother) and Ramrao Ingale (PW-9) gathered there. Accused ran away. The deceased was taken to hospital at Varavat Bakal. In the intervening night of 17.01.2012 and 18.01.2012, he was transferred to Civil Hospital, Akola.
6. First informant - Ranjana (PW-1) filed complaint at Tamgaon Police Station on 18.01.2012. It was registered under Section 307 of IPC. While undergoing treatment, the deceased succumbed to injuries on 21.01.2012. Septicemia was the cause of death. Accused was charge-sheeted for the offence ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 4 punishable under Section 302 of IPC.
7. Accused was put to trial. The prosecution examined 14 witnesses. Trial Court held him guilty for the offence punishable under Section 302 of IPC.
8. Shri Sirpurkar, learned counsel argued on behalf of the appellant - accused. His main thrust is on nature of offence. It should have been under Section 304 rather than under Section 302 of IPC. Mrs. Deshmukh, learned Additional Public Prosecutor for the respondent - State, supported the judgment. With their assistance, we have gone through the record.
9. Amongst 14 witnesses, Ranjana (PW-1) is the wife; Mangesh (PW-2) is the minor son of the deceased. They are the witnesses to the incident. PW-3 - Kishor (cousin brother) of the deceased has also witnessed the assault. PW-4 - Ramrao is the neighbour, who came to the spot on hearing shouts. PSI
- Pinjarkar is the Investigating Officer. He expired prior to ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 5 giving evidence. His writer P.C. Kharkar (PW-11) is examined.
10. Usual panchnamas were carried out. In all five panchas were examined. Statement of deceased could not be recorded for want of fitness. The evidence of Medical Officer is important in this case. He is PW- 14 - Dr. Sayeed Hussaini.
EYEWITNESSES ACCOUNT
11. We have gone through the evidence of four eyewitnesses. They were knowing the accused earlier to the incident. They are resident of same locality. The spot is situated in front of the house of the deceased. It is a public road. There are houses abutting that road. From the spot, nothing incriminating was seized (except saree of Ranjana PW- 1 stained with blood and that too from her room). Apart from witnessing the incident, Ramrao (PW-9) offered his services as a panch witness.
12. Ranjana (PW-1) and Mangesh (PW-2) are the ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 6 relatives of the deceased. They are natural witnesses. There is a consistency in their evidence (with minor variation). There is consistent version about the accused questioning Ranjana about lodging of report against him. There is consistent version that when the deceased tried to convince him, the accused pierced gupti in the abdomen of the deceased. There are multiple injuries on abdomen. Considering the total injuries and their area, we do not find inconsistency between oral version (second blow on back of the deceased) and medical evidence.
13. As said above, the Investigating Officer - PSI Pinjarkar expired, he was not available for evidence. Certain facts could not be brought on record. It has caused certain prejudices to prosecution and certain prejudices to defence. It is but natural for the relatives, first to pay attention to medical treatment to the deceased and then to lodge police complaint. It is a natural conduct. Even though Mangesh (PW-2) is a child witness, he had given all the particulars of the incident. There are no short comings in his evidence.
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14. Third eyewitness is Kishor Ingole (PW-3). He is the cousin brother of the deceased Ganesh. He resides in the vicinity. While passing through the house of the deceased, he saw the incident. He may not be knowing about the conversation between Ranjana (PW-1), deceased on one hand and the accused on the other hand. There are certain improvements in this evidence. These imprisonments need to be excluded (as Investigating Officer is not available). In spite of their exclusion, it does not touch the details about the incident given by the witness. After the incident, he chased the accused. It needs to be excluded. He was seriously cross examined on the possibility of his travel through the road in front of house of the deceased. However, defence is not successful in making us disbelieve his possible travel. The details of assault given by him corroborates with other two earlier witnesses.
15. Last eyewitness is PW-9 - Ramrao Ingale. His house is not abutting main road. From his house, one cannot see the house of the deceased. He heard the shouts of Ranjana ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 8 (PW-1) and then he came to the spot. He had seen two blows given by the accused on the deceased. There are certain improvements in his evidence. Before the Court, he said blow of gupti on the stomach but before the police, he has not referred to part of body i.e. stomach. Defence tried to show enmity with the accused. It could not be sufficiently brought on record. He is the first who took deceased to hospital at Varvat and then to Akola. PW-3 also accompanied. He heard the shouts when he was on road and not from the house.
16. In nutshell, there is satisfactory oral evidence to show assault by the accused on the deceased by gupti on abdomen.
OTHER EVIDENCE ABOUT INVOLVEMENT OF ACCUSED
17. At the instance of accused, gupti was seized on 19.01.2012 from a water pond situated on road going from Varvat to Sangrampur. Panch witness (PW-6 - Vikar Bharsakde) has turned hostile. PSI - Pinjarkar has expired. His ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 9 writer P.C. Kharkar has assisted Investigating Officer. He has given details. We find very strange thing. On one hand there is evidence to suggest that gupti was recovered from water pond and there was mud attached to it, so there are fewer chances of blood stains to continue on it. On the other hand Chemical Analyser report Exh. 16 (Article gupti at Exh. 6) suggests it was stained with blood on blade. How come there can be blood. Even memorandum panchnama does not mention of blood. We can draw only a conclusion that different gupti must have been sent. There has to be some connection with seized weapon and same weapon used for crime. It is not there. Hence, we are discarding this piece of evidence. The trial Court has not considered this aspect.
SEIZURE OF CLOTHES AND BLOOD STAINS
18. Though Yuvraj Wankhede (PW-8) has not supported, through ASI - Deshmukh (PW-10), seizure of blood sample and clothes of the deceased is proved. They are collected from Medical Officer of Civil Hospital, Akola. The ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 10 Chemical Analyser has ascertained blood group of the deceased as "B".
19. Admittedly, blood group "B" is not noticed on the clothes seized from the person of the accused. PW-5 Shaikh Rafiq Shaikh Ibrahim has supported the case. Though PSI - Pinjarkar has expired, his writer PW-11 - Kharkar has participated in the panchnama of seizure of clothes of accused. There is human blood noticed on the clothes of the accused. Trial Court has considered it as a circumstance against the accused. There is no burden on the accused to explain blood on his clothes. It is a human blood and not of the deceased. It is but likely that a person may be having his own blood on his clothes. We disagree with the trial Court. We reject this piece of evidence.
HOMICIDAL DEATH
20. There is no area of doubt about unnatural death of Ganesh. Evidence of PW-14 - Dr. Sayeed Shaikh is sufficient to infer about homicidal death. He has noticed seven external injuries mostly on abdomen of different dimension. They are ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 11 sutured wounds. It is but natural. Because the deceased took treatment there. There are also internal injuries. He had given the details. We don't want to reiterate them. No poison is detected in the viscera report. Doctor has opined 'septicemia due to multiple stab injuries' as a cause of death. So, there is no iota of doubt about homicidal death of Ganesh. Though trial Court framed a point on this issue, there is no discussion. It is also admitted fact that Ganesh was treated from 18.01.2012 till 21.01.2012 at Civil Hospital, Akola. It is also admitted fact that neither medical papers during that period were produced nor any Medical officer who treated the deceased is examined.
21. Defence has lent more stress on it in order to buttress their submission about lesser offence being disclosed. We are posed with the question, just because there is intervening gap between assault and death, whether the accused has committed no murder ? Shri Sirpurkar, learned counsel argued that there were intervening circumstances which also caused death and unless and until they are removed, the appellant cannot be held guilty of murder. He relied upon ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 12 some citations.
CITATIONS
22. In case of Dashrath Singh vs. State of U.P., reported at (2004) 7 SCC 408, the Hon'ble Apex Court held the appellant guilty for the offence punishable under Section 326 of the Indian Penal Code instead of Section 302 of IPC. The deceased was alive for 23 days after the surgery. The prosecution did not adduce any evidence to show post- operative condition of the patient. It was held necessary to rule out any intervening ailment which is not connected to injury. In that case post mortem was not conducted.
23. So also in case of Jayaraj vs. State of Tamil Nadu, reported at (1976) 2 SCC 788, the Hon'ble Apex Court convicted the appellant under Section 304, Part I of IPC. The deceased died after 10 days. The question was whether the act falls within the purview of clause (b) of Section 299 or clause (3) of Section 300 of IPC. Sufficiency to cause death in ordinary course is the test for application of clause (3) of Section 300 of IPC. Medical Officer has not candidly opined ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 13 about that and he simply opines "likely to cause death". It weighed the mind of the Hon'ble Apex Court.
OUR OBSERVATIONS
24. In the present case, the facts discussed earlier would show that the death has not occurred either instantaneously or almost immediately after the infliction of the injuries. There was some time gap and it was about four days in between the date of the assault and the date on which the death occurred. It is also an established fact that the cause of death has been shown to be the septicemia due to multiple incised wounds and stabbed injuries. This is the cause of death mentioned in the postmortem report as per the opinion of the Doctor. This opinion would disclose that the septicemia was the immediate cause of death, although the septicemia arose because of the incised wounds and stab injuries.
25. So, the next question would be as to whether or not the stab injuries and incised wounds were sufficient in the ordinary course of nature to cause death as required under the ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 14 third circumstance of Section 300 of IPC, which defines that on presence of any of the four circumstances mentioned therein, a culpable homicide would be murder. Admittedly, the opinion given by the Doctor regarding injuries being sufficient in the ordinary cause of nature came from the Doctor, who conducted postmortem examination and not from the treating Doctor. Admittedly, the MLC reports of the deceased and the summary of the treatment given during the period of four days to the deceased have not been adduced in evidence by the prosecution. The Doctor, who gave his opinion regarding sufficiency of the injuries to cause death in the ordinary course of nature also does not clarify that he had examined the MLC reports of the deceased and also the record of the treatment administered to him during the period of his hospitalization. In short, this Doctor, who had no opportunity of seeing for the first time the injuries inflicted and then treating them, now says that those injuries were sufficient in the ordinary course of nature to bring about death. Such opinion has to be treated as an opinion given without any basis and, therefore, no credence could be given to such an opinion. We have already said so. ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 15 So, the present case would be out of the third circumstance of Section 300 of IPC.
26. This case can also not be said with any definite certainty as having been covered by the first circumstance of Section 300 of IPC, which is about the intention of causing death. After all, intention is the state of mind and, therefore, it has to be gathered only through the mental process of interpretation and perception of the facts and circumstances of the case. The facts and circumstances of the case which we have discussed at length earlier, would show that they hardly provide any guidance to the Court on the aspect of presence of intention to cause death. That would mean that even the first circumstance of Section 300 of IPC is absent here.
27. This would leave us to consider the second and forth circumstances of Section 300 of IPC. We would discuss these two circumstances separately in the foregoing paragraphs.
28. The second circumstance is about doing of an act ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 16 with an intention of causing such bodily injury as the offender knew to be likely to cause death of the person to whom the harm is caused. For this circumstance, a certain degree of knowledge possessed by or attributed to the offender is necessary. The nature of the knowledge contemplated here is that the offender must know that the injury that he has caused or inflicted is likely to cause death of the person to whom it is caused by him. Such knowledge could be attributed to the appellant in the present case but not without the aid of the other facts and circumstances of the case sufficiently indicating presence of such knowledge. One of the circumstances relevant here would be the area of the body where the injury is inflicted. In the present case, this area is abdomen of the deceased and apparently abdomen is the vital part. But, it cannot be denied that vitality of this part is not so fragile as to be seriously affected even by some superficial injuries. If the injury caused is deep enough as also to cut through the vital organs within the abdomen, then only such knowledge as contemplated by the second circumstance could be said to be possessed by or attributed to the offender. But, in the present case, as the ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 17 treating Doctor has not been examined and even the MLC reports and other reports regarding the treatment given to the deceased have not been tendered in evidence, it cannot be known as to what kind of internal injuries which ultimately had resulted from the stabbing done on the abdomen and therefore, we are of the considered view that even the second circumstance is absent here.
29. As regards the forth circumstance, the requisite condition is that the injury caused must be of such a nature as to put the offender in such a state of mind as would suggest that it was well within his knowledge when he committed the act that the injury was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and even then he inflicted injury without any excuse for incurring the risk of causing death or such injury or to say in simple words without any justification for inflicting such an injury. Here again, for investing the offender with such a knowledge, it is necessary for the prosecution to establish on record the nature of the injuries inflicted to the deceased by the ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 18 appellant and this could have been done by the prosecution only by examining the treating Doctor and producing the necessary medical papers, which the prosecution has utterly failed in the present case. So, even the forth circumstance of Section 300 of IPC is not involved in the present case.
30. Having seen that none of the four circumstances of Section 300 of IPC is present in this case, we are constrained to find that culpable homicide found to be committed by the appellant would only be covered by the definition of "culpable homicide" simplicitor as given under Section 299 and then with the ingredients of Section 300 having not been made out in this case, we would only have to consider that provision of law which prescribes punishment for commission of the culpable homicide not covered by Section 300 of IPC. This provision is of Section 304 of IPC.
31. Thus, we find that the evidence brought on record by the prosecution takes the guilt of the appellant as regards commission of culpable homicide by him only to the area covered by Section 304 of IPC. Now it has to be seen as to ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 19 which of the two parts of Section 304 of IPC would cover the present case.
32. The evidence discussed earlier would show that the act of stabbing has been done by the appellant not with only the knowledge of causing such bodily injury as is likely to cause death but with the intention of causing such bodily injury as is likely to cause death. This is obvious from the fact that the appellant had come to the spot of the incident already armed with a dagger (Gupti) and it was he who drew the first blood. So, this case would be covered by Part I of Section 304 of IPC.
EXCEPTION
33. Shri Sirpurkar, learned counsel also pleaded exception No. (1) to Section 300 of the Indian Penal Code. Admittedly, when the appellant came there, altercation started not with the deceased but with his wife Ranjana. The accused questioned her about lodging of police complaint. There is an argument that main incident took place at 8.30 PM whereas the ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 20 trifle incident took place at 6.30 PM. How come the appellant will come to know about this police complaint during short period. Even though it may be probable, fact remains that the appellant went towards the house of the deceased. Eyewitness account impeccably says about presence of the appellant.
34. Shri Sirpurkar, learned counsel for the appellant argued that the accused had never gone to the spot for quarreling with the deceased and at the most it can be said that he had gone there for questioning Smt. Ranjana. When altercation was going on in between Ranjana (PW-1) and the appellant, the deceased tried to pacify the appellant. If husband tried to convince the deceased, it cannot be treated as provocation. The appellant cannot succeed in bringing his case under this exception. The act of convincing cannot be treated as sufficient to compel the appellant to lose his temperament and take law into his own hands. Exception (1) is not applicable. We are rejecting those arguments.
TRIAL COURT FINDING ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 21
35. Unfortunately, there is no discussion on this issue. Even there is no discussion, how Section 302 of IPC is applicable. That does not prevent the appellate Court to appreciate the evidence. We hold that the appellant has committed an offence punishable under Section 304 of IPC.
SENTENCE
36. We hold that as the offence falls under Section 299 of Indian Penal Code, he is liable under Section 304 (I) of Indian Penal Code. There is life imprisonment. We do not intend to award maximum sentence. Both the appellant and deceased were below 40 years of age. The family of the deceased has lost their male member. He is survived by wife and three sons. So also the appellant is having long life to live. Since 2012, the appellant is in jail. He must have undergone seven years up-till now. We intend to reduce the rigour of the sentence. After undergoing that sentence, he will be set free and can lead normal life. We think he also needs to compensate the family members of the deceased. We quantify it ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:45:54 ::: apeal195.16 22 to be of Rs.2,00,000/- (Rs. Two lakh only) owing to financial capacity of the appellant. At the same time, there has to be some fine amount. So, we quantify fine of Rs.5,000/- (Rs. Five thousand only). Ultimately, the appellant will be set at liberty early otherwise he has to undergo life imprisonment as per rules. So to certain extent, he need to compensate. The appellant is doing labour work and may not be having much earning to pay more compensation. About the sentence, we find that imposition of sentence of 10 years will serve the purpose. The amount of compensation be paid to PW-1 - Ranjana Ganesh Ingale. Hence, we proceed to pass the following order :
(i) Criminal Appeal is partly allowed.
(ii) The appellant is held guilty of the offence
punishable under Section 304, Part (I) of Indian Penal Code.
(iii) The appellant is sentenced to undergo Rigorous Imprisonment for 10 years and to pay the fine of Rs.2,05,000/- (Rs. Two lakh five thousand only).
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(iv) In case of default to pay fine amount, he is further sentenced to Rigorous Imprisonment for two years.
(v) The amount of fine be deposited in
Khamgaon Sessions Court. Once deposited, an
amount of Rs.2,00,000/- (Rs. Two lakh only) be paid to Ranjana Ganesh Ingale, as per rules.
(vi) She will hold that amount for herself and three sons and also decide about its appropriation.
(vii) The appellant is entitled to set off for the period of detention already undergone.
(viii) Fine amount paid, if any, be adjusted.
JUDGE JUDGE
******
*GS.
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