State of Maharashtra v. Prakash — 1989 DIGILAW 359 (BOM)

JUDGMENT (ORAL) M.S. Deshpande, J. - By this appeal, the State challenges the acquittal of the respondent of the offence under Section 302 of the Indian Penal Code. 2. The incident occurred on January 19, 1983. Prakash Bodhaji Askar (P.W. 1) heard a commotion at about 8-00 or 8-30 p.m., while he was in his house in Dangari Ward at Hinganghat, and when he came out, he saw a quarrel going on between the respondent and Prakash, the deceased Narayan Ambatkar, Baben Ambatkar (P.W. 3). Bhaiyaji Chirkute and Suresh Chirkute. With the intervention of the persons of the locality, persons, who were engaged in the fight, were separated and Prakash Askar, Narayan Ambatkar and Baban Ambatkar come to the road near deceased Narayan's house. At the instance of Narayan, they went for buying Pans, while Baban returned to his house. While Prakash Askar and Narayan were proceeding towards the Pan Stall near Shriram Talkies, Zitru (P.W. 2) joined them, and when they reached near Dangari Ward Bridge, the respondent-Prakash came from behind and questioned Narayan, why he had assaulted him, but Narayan said that the incident should he forgotten. However, on being challenged, Narayan took out his shirt and there was a scuffle in which the respondent whipped out a dagger and struck Narayan with it on the left side of the chest. He then took out the dagger and ran towards Dangari Ward Bridge. While Narayan lay injured at the place, Prakash Askar and Zitru were returning to their houses and they met Baban on the way and informed Baban of the incident. They went with, Baban to that place. On seeing Narayan's condition, Baban went to the Police Station nearby and lodged his report at about 9-35 p.m. The police arrived at the place and removed Narayan to the hospital. 3. Dr. Kamble (P.W. 6), who examined Narayan at about 9-35 p.m., found him to be dead. In the post-mortem examination, which was performed on the next day, he noticed a stab-wound on Narayan's chest anteriorly on the 4th Intercostal space, 2 cms. below the left nipple and found internally a stab-wound over the right ventricle anteriorly 3 cms. above the heart. In his opinion, the cause of death was shock and haemorrhage due to the injury on the vital organ, i.e. the heart, and the injury was sufficient in the ordinary course of nature to cause death. below the left nipple and found internally a stab-wound over the right ventricle anteriorly 3 cms. above the heart. In his opinion, the cause of death was shock and haemorrhage due to the injury on the vital organ, i.e. the heart, and the injury was sufficient in the ordinary course of nature to cause death. 4. Upon his arrest, the respondent was also examined by Dr. Kamble, and it was found that he had abrasions over the left matacarpal joint of the left thumb, left fore-arm and infra scapular region of the back. 5. Aftercomp1eting the investigation, the respondent was put on trial. He abjured the guilt and characterised whole of the evidence as false. The learned Sessions Judge found that Narayan met with a homicidal death, but found the evidence of the eye-witnesses to be unreliable and acquitted the respondent of the charge under Section 302 of the Indian Penal Code. 6. In this Court, we are satisfied that Narayan Ambatkar met with a homicidal death and this position was not questioned before us by the learned counsel for the respondent. It was, however, urged that the view taken of the evidence of the eye-witnesses by the learned Sessions Judge was one which was possible and that we should be slow in setting aside the acquittal of the respondent. 7. We have gone through the entire evidence. It is apparent from the evidence of Prakash Asker (P.W. 1) that the second incident, which resulted in the death of Narayan, was preceded by an earlier incident in which the deceased Narayan and his uncle Baban as well as the respondent Prakash were involved. They were separated by the persons from the locality. P.W. 3 - Baban's account shows that while he was returning home at about 8-00 or 8-15 p.m., after answering the ca1l of nature, the respondent's elder brother Suresh came from the opposite direction and when he asked him whether he had consumed liquor, Suresh gave him a ran on the hand in which he was holding a tin-pot and when he bent for picking up the tin-pot, Suresh kicked him and there was a scuffle between him and Suresh. He was also beaten in that incident by the respondent-Prakash and his brothers, but later, deceased Narayan rescued him. He was also beaten in that incident by the respondent-Prakash and his brothers, but later, deceased Narayan rescued him. With regard to the first incident, the evidence of the two witnesses was quite consistent and we see no reason why their evidence should be disbelieved on that point. In fact, this was the incident which led to the latter incident in which Narayan received the serious injury. 8. P.W. 1 Prakash's version with regard to the second incident, in which the respondent abused and challenged him, is supported by Zitru (P.W. 2). Zitru happened to meet Prakash while he was proceeding with Narayan towards Shriram Talkies and accompanied them, when the respondent questioned him about the earlier incident and asked him why he had assaulted him. However, a scurffe followed and during the scuffle, Narayan bad taken out his shirt and kept it on the ground, and after the scuffle continued, the respondent whipped out a dagger and stabbed Narayan on the left side of the chest. With regard to this incident, it was urged on behalf of the respondent that it was quite unlikely that Prakash Askar and Zitru might have witnessed any incident, because on their own showing, they did not intervene in this scuffle and did not go to the rescue of Narayan, though he lay injured, but proceeded to return to their houses, and it was only by accident, Baban is said to have met them on the way. Their account with regard to meeting Baban on the way and informing him of what had occurred, is supported by the First Information Report which Baban gave at about 9-35 p.m., i.e. soon after the incident, in the Police Station. The First Information Report discloses the name of Prakash (P.W. 1) as the person who had witnessed the occurrence. The learned counsel for there respondent urged that it was curious that neither Prakash (P.W. 1) nor Zitru (P.W. 2) should have accompanied Baban to the Police Station, though they had been such a ghastly incident, but considering that Baban proceeded on a bicycle to the Police Station, which was about a for long away, after he saw Narayan in the injured condition, we do not think that there was anything unnatural in Prakash Askar and Zitru staying back. From their non-intervention, no inference can be drawn, because it was obvious that they did not have the courage to intervene since the respondent was armed with a dagger and was in no mood to tolerate any interference. Baban's conduct in proceeding to the Police Station and reporting the Police and his restraint in not trying to play the role of an eye-witness, though he could have assumed that role, is another circumstance which would lend an assurance that he was a witness of truth. The learned Sessions Judge has criticised the evidence of Prakash Askar and Zitru and drawn inferences which were entirely untenable. We find that their evidence is trustworthy and their account does not suffer from any infirmity. 9. We must refer to two more circumstances which tend to corroborate the eye-witness account with regard to the involvement of the respondent. From the evidence of Ramkrishna (P.W. 3), it is apparent that in the morning of 20-1-1983, the respondent's Manila and full-pant (Articles 9 and 10) were seized under a Panchanama. The report of the Chemical Analyser (Exhibit 61) shows that Article 9 was. stained with human blood. Ramkrishna’s evidence further shows that while in police-custody, at about 9-30 a.m. on 20-1-1983, the respondent made a statement that he would produce a dagger which was concealed in Sathe Engineering Works, and he produced it from the western side of Sathe Engineering Works, and this again is supported by the memorandum (Exhibit 42) and Panchanama (Ex. 43). The Chemical Analyser's report shows that the dagger was stained with human blood. The respondent has not explained the stains of human blood which were found on the dagger and Article 9, but contended himself by saying that, that evidence was false. The order-sheet, doted 14-12-1984, shows that P.S.I. -Gautam could not be produced as a witness, because his whereabouts were not known, in spite of the attempts made by the prosecution to procure his evidence. In this background, there was no reason why the circumstances, to which we have referred, should have been ignored by the learned Sessions Judge. 10. Once the involvement of the respondent in the incident is established, the next question, which arises, is what is the offence committed by him. In this background, there was no reason why the circumstances, to which we have referred, should have been ignored by the learned Sessions Judge. 10. Once the involvement of the respondent in the incident is established, the next question, which arises, is what is the offence committed by him. Obviously, the scuffle between the respondent and Narayan was preceded by another incident and it was as a sequel to the earlier incident that respondent went after. Narayan and challenged him. Narayan too engaged himself in the scuffle and in the midst of the scuffle, took out his shirt and continued the scuffle. It is obvious from the evidence of the eye-witnesses that the scuffle was actually a fight between the respondent and Narayan and none of those persons, who witnessed the fight, dared to intervene. During the fight, the respondent took out the dagger and hit Narayan on the chest. Shri Daga, the learned counsel for the respondent, urged that this was a case of single blow and even the learned Sessions Judge has observed that the intention of the respondent could not have been to cause the death of Narayan and it was only after the fight continued for sometime that he whipped out the knife. This points to the intention to cause bodily injury by means of the knife, having been entertained quite late after the fight continued. It is quite possible that during the fight, the knife may have struck Narayan on the chest and it is difficult, in these circumstances, to attribute to the respondent, the intention of inflicting the particular bodily injury which was found on the person of the deceased. We are, therefore, of the view that the present case would not be covered by any of the clauses of Section 300, but all the same the knowledge, that the injury was likely to cause death can be attributed to the respondent. We, therefore, find that the proper provision under which the conviction can' be imposed would be only Part- II of Section 304 of the Indian Penal Code. 11. In the result, we allow the appeal, set aside the order of acquittal and while convicting the respondent under Part-II of Section 304 of the Indian Penal Code, impose the sentence of imprisonment for three years. 11. In the result, we allow the appeal, set aside the order of acquittal and while convicting the respondent under Part-II of Section 304 of the Indian Penal Code, impose the sentence of imprisonment for three years. The respondent to surrender to his bail before the Sessions Judge, Wardha, on or before 20th of December, 1989. Appeal partly allowed.