Mangesh Vs State of
Maharashtra
JUDGMENT
Dr. B.S. CHAUHAN, J.
1.
Leave
granted.
2.
This
appeal has been preferred against the judgment and order dated 25.8.2009 passed
in Criminal Appeal No.242/04 by the High Court of Judicature at Bombay, Nagpur
Bench, affirming the judgment and order dated 16.3.2004 passed by 2nd
Additional Sessions Judge, Nagpur, in Sessions Trial No.366/03 convicting the appellant
under Section 302 of Indian Penal Code, 1860 (hereinafter called IPC) and
awarding the sentence of life imprisonment and, in addition thereto a fine of
Rs.1000/- had also been imposed and in default of payment to undergo further
rigorous imprisonment for the period of one year.
3.
Facts
and circumstances giving rise to this appeal are that the appellant's sister
Sandhya had a love affair with Prashant (deceased)which continued for 2-3
years. The appellant was fully aware of the said affair and expressed his
displeasure, having had altercations with Prashant (deceased) several times. On
30.4.2003, the appellant saw Prashant (deceased) and his sister Sandhya chatting
with each other at about 9.15 p.m. at a short distance from his house. He
assaulted Prashant (deceased) with the knife thrice and ran away from the spot.
4.
The
appellant's sister Sandhya (PW.6) called the police jeep passing through the
road. The police shifted Prashant, injured, to hospital and while going to the
hospital Prashant made a statement to PSI Bhaurao Meshram (PW.7) which was
treated to be an FIR under Section 307 IPC. As subsequently, Prashant died, the
FIR was converted to one under Section 302 IPC. Prashant made two dying declarations
(Exh. 20 and 26), one to PSI Bhaurao Meshram (PW.7)on 30.4.2003 and another to
Mr. Prakash, Special Judicial Magistrate (PW.3) on 1.5.2003 to the effect that
the appellant had caused knife injuries to him.
5.
After
conclusion of the investigation, charge sheet was filed against the appellant
under Section 302 IPC. In support of the case, the prosecution examined several
witnesses, however, the eye-witnesses including Sandhya (PW.6) did not support
the case of the prosecution and they were declared hostile. The trial Court
after considering the evidence on record and the arguments made by learned counsel
for prosecution as well as the defence, convicted the appellant under Section
302 IPC vide judgment and order dated16.3.2004 awarding the life imprisonment
and a fine of Rs.1000/- and in default of payment to undergo further rigorous
imprisonment for the period of one year.
6.
Being
aggrieved, the appellant preferred Criminal AppealNo.242/04 which has been
dismissed vide impugned judgment and order dated 25.8.2009. Hence, this appeal.
7.
Shri
Gaurav Agrawal, learned counsel appearing for the appellant has made large
number of submissions regarding the veracity of the evidence on record; pointed
out contradictions in two dying declarations; prosecution case was not
supported by any of the eye-witnesses including Sandhya (PW.6) who had called
the police jeep which had taken Prashant (deceased) to the hospital; and the panchnama
witnesses of the recovery of knife also did not support the case of the
prosecution. However, realising the fact that there have been concurrent
findings of fact by the two courts below, where in after considering the
contentions of the defence in detail the courts have recorded the finding that
there was no material contradiction in both the dying declarations and the
conviction could be based solely on the said dying declarations, he restricted
his case only to the nature of offence. It has been submitted by Mr. Agrawal
that as the act of the appellant had not been pre-meditated and it all happened
because of sudden provocation, conviction could be only under Section 304,Part
I IPC and not under Section 302 IPC.
8.
Mr.
Shabkar Chillarge, learned counsel appearing for the State has submitted that
considering the gravity of injuries, no interference is required with the
impugned judgment by this Court. The appellant has rightly been convicted under
Section 302 IPC. The appeal lacks merit and is liable to be dismissed.
9.
We
have considered the rival submissions made by learned counsel for the parties
and perused the record.
10.
The
admitted facts, in the case, have been that the love affair of Sandhya, sister
of the appellant, continued with Prashant (deceased)for 2-3 years. The
appellant did not like the relationship and had altercations with Prashant
(deceased) several times. On seeing both of them together at an odd hour i.e.
9.15 P.M. on 30th April, 2003, he suddenly assaulted Prashant with knife and
caused stab injuries. Lateron, Prashant (deceased) succumbed to the said
injuries and died on 2ndMay, 2003. The following injuries were found on his
body as per the postmortem report:
i.
Stitched
wound over left side of chest 9th inter costal space in posterior auxiliary
line of size 1 cm x 0.5 cm angles and margins clear cut cavity deep.
ii.
Continued
abrasion left shoulder, anterior aspect 3 cm x 0.5 cm, reddish.
iii.
Grazed
abrasion over left arm, anterior aspect 4 cm x 3 cm, reddish brown.
iv.
Contused
abrasion over dorsum of left hand, 3 cm x 2 cm, reddish brown.
v.
Stab
wound in the mid of right thigh medial aspect 1.5 cm x 0.5 cm x muscle deep,
angles and margins clean.
vi.
Stab
wound over right thigh, lateral aspect in its middle 4.5 cm x 1.5 cm, muscle
deep, angles and margins clear cut. Doctor Amit Kumar (PW.1) found the
following internal injuries :
a. Internal injuries to
thorax cut injury to the parietal pleura corresponding to the injury no. 1.
b. Internal injury to
diaphragm cut injury through and through corresponding to injury no. 1.
c. Peritoneum cut injury
to peritoneum corresponding to injury no. 1.
d. Cut injury to left
gastric artery, cut injury to outer layer of stomach cut injury to peritoneum
corresponding to injury no. 1. Cause of death was opined to be hemorrhagic
shock due to stab injury. In the opinion of the doctor, injury no.1 was of
grave nature and proved to be fatal. Injury nos.2, 3, and 4 were simple
injuries. Injury nos. 5 and 6 did not cause any internal damage.
11.
In
both dying declarations made by Prashant (deceased), the contradiction had been
regarding place of injuries and nothing else which has been held by both the
courts below to be immaterial. What is material in both the dying declarations
that on seeing Prashant, deceased and Sandhya together, appellant got annoyed
and immediately took out the knife which he had with him and gave three blows
on the body of deceased.
12.
It
is evident from the medical report that the appellant has not given the knife
blow with full force. Otherwise, the depth of the injury No.1 would have been
more than just "cavity deep". The fact that the appellant stabbed the
deceased twice in the thigh and only once in the chest is indicative of a lack
of intention to cause death. Had the appellant intended to kill the deceased,
it is unlikely that he would flee from the scene without having inflicted more
injuries on the deceased.
13.
The
judgment cited by the learned counsel for the State, Pulicherla Nagaraju alias
Nagaraja Reddy v. State of A.P., AIR2006 SC 3010, is quite distinguishable from
the present case as in that case the knife blow that caused death was given
with full force and the single injury was found to be 12 c.m. deep. Even in
that case the law has been laid down as under: 7
"The intention
to cause death can be gathered generally from a combination of a few or several
of the following, among other, circumstances: (i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v) whether the act was in the
course of sudden quarrel or sudden fight or free for all fight; (vi) whether
the incident occurs by chance or whether there was any premeditation; (vii)
whether there was any prior enmity or whether the deceased was a stranger; (viii)
whether there was any grave and sudden provocation, and if so, the cause for
such provocation; (ix) whether it was in the heat of passion; (x) whether the
person inflicting the injury has taken undue advantage or has acted in a cruel
and unusual manner; (xi) whether the accused dealt a single blow or several
blows. The above list of circumstances is, of course, not exhaustive and there
may be several other special circumstances with reference to individual cases which
may throw light on the question of intention".
14.
This
Court has re-iterated the same view in Sridhar Bhuyan v. State of Orissa, AIR
2004 SC 4100; and Gali Venkataiah v. State of Andhra Pradesh, AIR 2008 SC 462.
15.
It
is not the case even in any of the dying declarations that the appellant had
premeditated or preplanned his actions or was having any information prior to
the incident that the deceased would be with his sister Sandhya at the place of
occurrence. Their meeting might have been taken by the appellant as temerity.
Therefore, it is a clear cut case of loss of self control and in the heat of
passion, the appellant caused injuries to Prashant (deceased). By no means, can
it be held to be a case of premeditation. The appellant did not cause all the
injuries on the vital part of the body. Nor the appellant caused the fatal
injury No.1 with full force, otherwise the said injury could have been very
deep. On examining the weapon, Dr. Amit Kumar (PW.1)opined that injury Nos. 1,
2 and 3 could be caused by handle of the knife. Death of Parshant (deceased)
was not instantaneous rather he died on third day of the incident. The
appellant has not taken anyundue advantage or acted in cruel or in unusual
manner.
16.
Undoubtedly,
injury No.1 had been caused on the vital part of the body of the deceased but
it must also be borne in mind that when a person loses his sense he may act
violently and that by itself may not be a ground to be considered against him
while determining the nature of the offence. Each case is to be considered on
its own facts, however, taking a holistic view of the matter. In such a case,
the entire attending circumstances must be taken into consideration in order to
find out the nature of the actual offence committed. (See: Kailash v. State of
M.P., (2006 (11) SCC 420; and Karuppusamy & Anr. v. State of Tamil Nadu,
(2006) 11 SCC459.)
17.
Thus,
the facts and circumstances of the case require alteration of conviction of the
appellant from Section 302 IPC to Section 304Part-I IPC and ends of the justice
would be met by awarding ten years rigorous imprisonment to the appellant.
Ordered accordingly. The appeal is disposed of.
..................................J.
(P. SATHASIVAM)
..................................J.
(Dr. B.S. CHAUHAN)
New
Delhi,
January
5, 2011
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