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2005 DIGILAW 1212 (BOM)

Keshao v. State of Maharashtra

2005-09-14

J.N.PATEL, R.C.CHAVAN

body2005
Judgment J. N. PATEL, J. ( 1 ) IN Sessions Trial No. 609 of 1992, the appellant/accused keshao was tried on a charge that he on or about 10th May, 1992 at about 9. 00p. m. at Shaniwarpeth, Kondhali, committed murder by intentionally and knowingly causing the death of his brother Shriram s/o Santoshrao Tingle by means of bichwa and thereby committed an offence punishable under Section 302 of ipc. The learned Trial Court by its judgment and order dated 29th June, 1995 found appellant/accused Keshoao guilty of having committed offence under Section 302 of IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 2000/- in default to suffer further r. I. for one month, which is challenged in this appeal. ( 2 ) IT is the prosecution case that the appellant/accused, deceased shriram and Harihar (PW11) are real brothers. Out of them, appellant/accused keshao is the eldest and PW 11 Harihar is the youngest. That appellant/accused keshao insisted for partition during the life time of their parents and on the day of incident i. e. 10-5-1992 the appellant/ accused Keshao quarrelled with his parents in the Chappari of Harihar on account of partition of joint family property and, therefore, deceased Shriram intervened and reprimanded the appellant/ accused Keshao as to why he was always quarrelling for partition of property. On this, the appellant/accused Keshao supposed to have called upon the deceased shriram that their parents are not prepared to partition and he should do it. After some time appellant/accused Keshao went to his shop and deceased Shriram returned to his house. While deceased shriram along with his wife PW 10 gitabai were sitting in the Chappari of harihar, appellant/accused Keshao is alleged to have assaulted deceased shriram with a knife on his left thigh. This was witnessed by PW 10 Sau geetabi, wife of deceased Shriram and pw7 Ku. Ranjana, daughter of deceased shriram. On being assaulted, deceased shriram shouted "melo Re Bappa" which attracted the attention of their parents as well as neighbours. The son of the deceased namely Sanjay immediately rushed and tried to catch hold of appellant/accused Keshoa but the appellant/ accused escaped, giving a jerk to him and ran away. The deceased Shriram having suffered bleeding injuries on his groin, collapsed on ground. The son of the deceased namely Sanjay immediately rushed and tried to catch hold of appellant/accused Keshoa but the appellant/ accused escaped, giving a jerk to him and ran away. The deceased Shriram having suffered bleeding injuries on his groin, collapsed on ground. PW 10 Gitabai, wife of deceased Shriram, bandaged the injury and injured Shriram was taken to hospital. A report in the matter came to be lodged by Harihar (PW 11), the youngest brother of deceased Shriram. P. S. I. Ramnath Awasthi (PW 13) also received telephone from Kondhali Primary Health center that there was a matter of stabbing and victim was expired. Therefore, he visited the hospital along with complainant Harihar. After confirming that shriram has died and lying in the hospital, P. S. I. Ramnath Awasthi took down the oral report of Harihar and treated it as F. I. R. (Exh. 46 ). On the basis of the f. I. R. he registered a crime No. 76/02 under Section 302 of IPC against appellant/ accused Keshao. On 11. 5. 1992 PSI awasthi prepared a inquest panchanama (Exh. 17) in the presence of panchas and seized the articles from the person of the deceased under the seizure panchanama (Exh 36 ). The dead body of Shriram was referred to Medical College, Nagpur for post-mortem. He also prepared spot panchanama (Exh. 27) of the place where the incident had occurred and collected sample of blood stained earth and other things from the spot. He also seized blood stained saree of the wife of deceased shriram and other clothes, which were used for the bandage of the wounds under panchanama (Exh. 17 ). In the course of investigation the statements of witnesses came to be recorded. On 11. 5. 1992 at about 1. 00 p. m. the appellant/accused was arrested and at his instance a knife came to be discovered, which was seized under the panchanama (Exh. 30 ). There were blood stains on the blade of the knife. The appellant/accused was also referred for medical examination and for collecting his blood sample. All the articles seized, during the course of investigation, were sent to Forensic Science laboratory. The plan of the spot came to be prepared. 30 ). There were blood stains on the blade of the knife. The appellant/accused was also referred for medical examination and for collecting his blood sample. All the articles seized, during the course of investigation, were sent to Forensic Science laboratory. The plan of the spot came to be prepared. It appears that further investigation in the matter was handed over to PSI Meshram, who, after completing the investigation, filed charge sheet in the court, who committed the case to the court of Sessions for trial. ( 3 ) IN reply to the charge, appellant/accused Keshao pleaded not guilty. It was his case that he has been falsely implicated in the case at the instance of wife of the deceased and one Dharme and took plea of alibi that on the day of incident at the relevant time, he was working in his shop and he came to know about the incident of his deceased brother through Ranjana, daughter of deceased. In support of his defence, he has also examined DW 1 Tulshiram Bhadduji bhole, who claimed that the appellant/ accused was in his tailoring shop stitching his clothes from 5. 00 p. m. to 10. 00 p. m. ( 4 ) ON conclusion of the trial the appellant/accused was found guilty and convicted for having committed an offence punishable, under Section 302 of I. P. C. ( 5 ) MR. M. R. Daga, the learned counsel appearing for the appellant/accused submitted that the eye witnesses to the incident are interested witnesses namely pw 10 Gitabai, PW 4 Sanjay Tingne, and pw 7 Ranjana, as they are the wife and children of the deceased. In so far as PW 6 Sampatrao Dharme is concerned, it is submitted that he was on hostile terms with appellant/accused Keshao and, therefore, at his instance appellant/accused has been falsely implicated in the case. ( 6 ) THE learned counsel further submitted that in absence of any independent evidence and for want of corrobo- ration, it would be most unsafe to rely on interested witnesses to arrive at a finding that it is the appellant/accused, who is guilty of committing murder of his younger brother. ( 6 ) THE learned counsel further submitted that in absence of any independent evidence and for want of corrobo- ration, it would be most unsafe to rely on interested witnesses to arrive at a finding that it is the appellant/accused, who is guilty of committing murder of his younger brother. ( 7 ) THE learned counsel further submitted that in the alternative, if the prosecution case is accepted, then taking into consideration that the appellant/ accused is alleged to have given a blow of knife on the lower part of the body of deceased Shriram, which is not vital, and as it was out of sudden quarrel, which had taken place on account of demand for partition by the appellant/accused on one side and his brothers and parents on the other side, then the prosecution has at the most made out a case, which will fall within exception 4 of Section 300 of ipc and, therefore, taking into consideration all these aspects, the conviction of the appellant/accused under Section 302 of IPC is not justified. ( 8 ) MR. T. A. Mirza, the learned additional Public Prosecutor, appearing for the respondent submitted that the evidence of eye witnesses stands corroborated by FIR, medical evidence and forensic evidence. , from which it transpires that it is the appellant/accused, who is the assailant. Further blood stained knife has been recovered at the instance of the appellant/accused and, therefore, it cannot be said that he has been falsely implicated in the case by the wife and children of deceased Shriram and one dharme. ( 9 ) IT is submitted by learned additional Public prosecutor, that the defence of alibi taken by the appellant/accused is not useful for him because his presence at the scene of occurrence is proved by the eye witnesses. Mr. Mirza further submitted that it has been sufficiently established that the clothes of the deceased and his wife and the knife, which was seized at the instance of the appellant/accused were found stained with blood of a group, which was that of the deceased Shriram. , and this sufficiently corroborates the prosecution case and the learned trial court was justified in holding the appellant/accused guilty for having committed an offence under Section 302 of IPC and, therefore, appeal deserves to be dismissed. , and this sufficiently corroborates the prosecution case and the learned trial court was justified in holding the appellant/accused guilty for having committed an offence under Section 302 of IPC and, therefore, appeal deserves to be dismissed. ( 10 ) THE eye witnesses to the incident are PW 10 Smt. Gitabai, widow of deceased Shriram, PW 7 Ku. Ranjana, daughter of deceased Shriram , and PW 4 sanjay, son of deceased Shriram. Though pw 4 Sanjay has not actually seen the incident but he has witnessed the quarrel preceding the incident and at the relevant time when he heard his fathers shout, he rushed to the scene of occurrence and tried to catch hold of the appellant/accused. At that time appellant/accused was holding a knife in his hand and he gave jerk to him and ran away. PW 6 Sampatrao Dharme, who is related to them being maternal uncle of appellant/accused made an attempt to grab the appellant/accused but the appellant/accused was successful in absconding. ( 11 ) ON going through the evidence of PW 10 Gitabai and PW 7 Ranjana, we have no hesitation to hold that it is the appellant/accused, who is the author of the injury, which caused death of deceased Shriram. Their evidence as regards the quarrel with the appellant/accused had with his family members, particularly with his parents, for demanding partition and subsequently having stabbed deceased Shriram with the knife is cogent, consistent and reliable, as same stands corroborated by the FIR, evidence of PW 11 Harihar and the other witnesses i. e. neighbours, who rushed to the scene of occurrence. ( 12 ) THE evidence of these witnesses also stands corroborated by the medical evidence, particularly that of PW dr. Arvind Dhawad, who was on duty at kondhali Primary Health Center, as a medical officer. He has deposed before the court that one injured person was brought to his hospital in a rickshaw and the persons, who were accompanied injured, informed him that real brother of the injured person asaulted him with a knife. He gave instructions to the staff for emergency treatment and examined the patient, but it was unfortunate that patient was no more in the world. He declared the patient dead and immediately he gave information to P. S. I. Kondhali Police station. He stated that the name of the patient was Shriram Tingne. He gave instructions to the staff for emergency treatment and examined the patient, but it was unfortunate that patient was no more in the world. He declared the patient dead and immediately he gave information to P. S. I. Kondhali Police station. He stated that the name of the patient was Shriram Tingne. He stated that on his report P. S. I, came to his hospital and requested him to take the measurement of the wound, which was on the person of the deceased. During his examination, he noticed that there was injury on left thigh below waist admeasuring 1 cm. x 3/8 cm. 1 cm and in the opinion of Dr. Dhawad, said wound was inflicted to him with the help of sharp edged weapon, which could be caused by a weapon like a knife. Further Dr. Sunil sanghai (PW 12), who conducted autopsy on the dead body of deceased Shriram, has also stated that on examination he observed one wound on left thigh, upper 1 / 3rd, lateral aspect, oblique of size 3 x 0. 5 cm. It was cavity deep and it was directed upward medially and posteriorly, both angles and margins were cleancut. On dissection he found that the external iliac vessels were cut 2. cm above the inguinal ligament, 3/4 th of the lumen was open and haematoma was present. On the internal examination when abdomen was open, one cut mark was present at left lower inferior aspect of the peritoneum sac about 1000 c. c of blood and blood clots were present inside the abdominal cavity. ( 13 ) IN the opinion of Dr. Sanghai, the injury mentioned in Column No. 17 was individually sufficient to cause death in the ordinary course of nature. Injuries, which have been mentioned in column nos. 17 and 21 are corresponding to each other and they were collectively sufficient to cause death. He has prepared post-mortem report (Exh 24 ). Dr Sanghai expressed that it is less likely that the injury mentioned in the post-mortem report would have been caused by weapon (Article 9), unless it is used twice and with a considerable force. He was also suggested that if such a patient gets immediate and appropriate medical aid, in such event he can survive, which he has accepted, and further that injury was not on the vital organ. ( 14 ) THE Chemical Analysers report (Exh. He was also suggested that if such a patient gets immediate and appropriate medical aid, in such event he can survive, which he has accepted, and further that injury was not on the vital organ. ( 14 ) THE Chemical Analysers report (Exh. 58), as rightly submitted by the learned Additional Public Prosecutor, corroborates the fact that the deceased was assaulted and suffered bleeding injuries, and that the articles seized from the deceased and the wife of the deceased i. e. saree, which was stained with blood, including the knife, seized at the instance of the appellant/accused, were found stained with blood of a group, which was that of the deceased. Therefore, we have no hesitation to hold that the author of the injury, which caused death of deceased Shriram , was appellant/ accused keshao. ( 15 ) THE point which arises for reconsideration as to whether the facts and circumstances, under which the offence has been committed, establish the charge against the appellant/accused of having committed murder of his brother. What we find from the prosecution case, in the account given by the eye witnesses, is that the appellant/accused inflicted a knife blow on the victim in the heat of passion in a sudden fight without any premeditation and without any intention that he would cause death by inflicting that injury and, therefore, his case will be covered within exception 4 of Section 300 of IPC. In this case, the eye witnesses has specifically stated that the appellant/ accused has given only one blow upon the deceased and that too on his left leg near the groin, due to altercation between them, on the issue of partition of joint family property and, therefore, this is a fit case where the conviction of the appellant/accused must be altered from section 302 of IPC to Section 304 Part II of IPC. Therefore, following order. The appeal is partly allowed. We hold that the offence committed by the appellant falls within exception 4 of section 300 of IPC and it is punishable under Part-II of Section 304 of IPC and, therefore, conviction and sentence of the appellant/accused under Section 302 of ipc is altered to part II of Section 304 of ipc and the appellant/accused is convicted to suffer rigorous imprisonment for five years and to pay a fine of rs. 5000/-, in default to undergo rigorous imprisonment for six months. 5000/-, in default to undergo rigorous imprisonment for six months. In case the appellant/accused pays fine, the same be paid to the legal representatives of the deceased Shriram santoshrao Tingne. The appellant/accused shall be entitled for set off under Section 428 of Cr. P. C. for the period he was in detention before his conviction by Trial Court. The appellant/accused shall surrender before the Trial Court on or before 30th September, 2005 to undergo the remaining sentence. Appeal partly allowed.