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2008 DIGILAW 305 (BOM)

Rajesh s/o Gorelal Gupta v. State of Maharashtra

2008-02-22

A.B.CHAUDHARI, A.P.LAVANDE

body2008
Judgment (Per A.P.Lavande,J) Both these appeals are being disposed by common Judgment and order since they arise out of the Judgment and order dated 27.11.1996 passed by the Additional Sessions Judge, Gondia in Sessions Trial No. 87/92. 2. The accused has preferred the Criminal Appeal No. 385/1996 being aggrieved by the Judgment and order dated 27.11.1996 passed by the Additional Sessions Judge, Gondia in Sessions Trial No. 87/92 convicting him for the offence punishable under Section 304 Part I of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 2000/- and in default to undergo simple imprisonment for 6 months. 3. The accused has been acquitted for the offence punishable under Section 302 of the Indian Penal Code. The State of Maharashtra being aggrieved by the order of acquittal of the accused for the offence punishable under Section 302 of the Indian Penal Code has preferred Criminal Appeal No. 85/1997. 4. Briefly, the prosecution case is as under: Deceased Madanlal Gupta was running a hardware shop styled as 'Jagdamba Iron Stores' which was situated in one gala in a shopping complex of Municipal Council, Gondia on the western side of south north road. Gorelal the father of the accused was having his shop styled as 'Jay Durga Irons' adjoining the shop of Madanlal. There was a long standing dispute on account of area of the shops and there were litigations between Gorelal and Madanlal. Both the shops have an open ota towards east side of the shops facing to the road on which they used to keep their benches for displaying their hardware articles. Gorelal and Madanlal used to quarrel claiming that articles of one were mixing with those of another. 5. On 2.6.1992 in the morning there was a quarrel in which Virendra relative of deceased was assaulted by accused. It is further the case of the prosecution that deceased Madanlal had summoned P.W. 3 Ramawatar Gupta and P.W.4 Rambharoselal Mohbiya since he wanted them to intervene and settle the dispute amicably. It was decided to fix tin sheets on the boundary of both the shops so as to avoid any dispute regarding mixing of their articles. Deceased Madanlal had also employed a worker for fixing tin sheets but Municipal authorities intervened and objected to the same and hence the work was stopped. It was decided to fix tin sheets on the boundary of both the shops so as to avoid any dispute regarding mixing of their articles. Deceased Madanlal had also employed a worker for fixing tin sheets but Municipal authorities intervened and objected to the same and hence the work was stopped. P.W.2 Munnalal Patle was serving in the shop of deceased Madanlal. P.W.1 Harishkumar the son of deceased Madanlal was also helping Madanlal in the business. The shop of Ramawatar was opposite the shop of Madanlal. At about 8.30 p.m. on the same day P.W. 3 Ramawatar and P.W. 4 Rambharoselal were standing in front of the shop of Ramawatar and discussing in what manner they could settle the dispute. Soon thereafter Madanlal closed his shop. Shops of Gorelal and Ramawatar were open. Gorelal along with his two sons was present in the shop. Deceased Madanlal asked Harishkumar to go home and told him that he will come soon. Harishkumar and Munnalal had just crossed about 15 paces from the shop. All of a sudden, the accused who was holding a weapon in his hand was seen by Harishkumar and Munnalal rushing towards deceased Madanlal. Harishkumar alerted his father saying 'Papa Bacho'. When Madanlal turned his back, accused suddenly attacked him and gave a blow of Gupti in the groin. Ramawatar rushed and caught hold of the accused and gave a jerk to the arm of the accused because of which the weapon was released from the grip of the accused and it fell on the bench. Deceased Madanlal went forward for about 5 to 6 paces and collapsed. The accused ran away. Ramawatar and Harishkumar took the deceased to the hospital where he was declared dead. Deceased Madanalal had suffered injuries on the thigh. 6. Harishkumar lodged F.I.R. (Exh. 13). The investigation was taken up by P.W. 6 P.I., Pandagale. After completing the investigation, the charge sheet under Section 302 of the Indian Penal Code was filed against the accused. The case was committed to the court of sessions. 7. In the trial the prosecution examined six witnesses. The defence of the accused was that he was not concerned with the shop Jay Durga Irons but he was running another shop on Balaghat Road. The case was committed to the court of sessions. 7. In the trial the prosecution examined six witnesses. The defence of the accused was that he was not concerned with the shop Jay Durga Irons but he was running another shop on Balaghat Road. It was also suggested that when the accused had gone for movie in the night he was assaulted by one Anand, a brother of Madanlal and, therefore, in order to save his life the accused came to the shop of his father and he happened to dash against deceased Madanlal on account of which Madanlal fell on the angles which were being raised for the purpose of partition and received injuries. According to the accused a false case was filed against him. The accused did not lead any defence evidence. 8. The trial court after appreciation of the evidence held that the offence punishable under Section 304 (I) of the Indian Penal Code was made out against the accused and consequently convicted and sentenced the accused as above. 9. Mr. Gupta, learned counsel for the appellant submitted that the prosecution has not been able to prove the offence punishable under Section 304 Part I of the Indian Penal Code against the accused beyond reasonable doubt. He submitted that the evidence of P.W. 1 Harishkumar, P.W. 2 Munnalal Patle, P.W. 3 Ramawatar and P.W. 4 Rambharoselal does not inspire confidence and, therefore, the conviction of the accused is not sustainable in law. According to Mr. Gupta, the defence of the accused is probable and, therefore, the accused deserves to be acquitted. In alternative, Mr. Gupta submitted that even if the evidence of the eye witnesses is accepted as it is, at the most offence punishable under Section 304 Part II of the Indian Penal Code is made out against the accused and, therefore, conviction under Section 304 Part I is not sustainable in law. He further urged that the sentence imposed upon the accused is harsh since he was hardly 19 years old at the time of commission of the offence and as such the same deserves to be set aside. Mr. He further urged that the sentence imposed upon the accused is harsh since he was hardly 19 years old at the time of commission of the offence and as such the same deserves to be set aside. Mr. Gupta further submitted that since the accused was hardly 19 years old at the time of the alleged commission of the offence the sentence imposed on accused be reduced and fine amount be increased substantially and the same be ordered to be paid to the legal representatives of deceased Madanlal Mohanlal Gupta as compensation. 10. In support of his submission, Mr. Gupta relied upon the following authorities: i) Mahesh Jagan Morade and others vs. The State of Maharashtra. 1998 ALL MR (Cri) 1173. ii) Chandrakant Baburao Wadkar vs. State of Maharashtra 2004 ALL MR (Cri) 2734. iii) Ashok Soma Misal vs. State of Maharashtra 2006 ALL MR (Cri) 333. iv) Vishnu Govarya Jadhav vs. The State of Maharashtra 1998 ALL Mr (Cri) 397. v) Vijay Ramchandra Diwar vs. State of Maharashtra 2006 ALL MR (Cri) 3329. vi) Harjinder Singh vs. Delhi Administration AIR 1968 Supreme Court 867, and vii) Gokul Parashram Patil vs. State of Maharashtra AIR 1981 Supreme Court, 1441. 11. Per contra, Mr. Mirza states that the acquittal of the accused for the offence punishable under Section 302 of the Indian Penal Code is unsustainable inasmuch as the evidence on record establishes beyond reasonable doubt that the accused intended to cause murder of deceased Madanlal. He further submitted that having regard to the weapon used by the accused and injuries caused to deceased Madanlal the intention on the part of the accused to commit murder of deceased Madanlal is clearly established and mere fact that the assault was on the groin does not exonerate the appellant of the offence of murder. Mr. Mirza further submitted that the evidence of the three eye witnesses is natural and cogent and as such inspires confidence and their presence at the spot is quite natural. In the alternative, Mr. Mirza submitted that the evidence on record clearly establishes the offence punishable under Section 304 Part I and 304 Part II as contended by Mr. Gupta. 12. We have carefully considered the submissions made by Mr. Gupta and Mr.Mirza and perused the records and the Judgments relied upon by Mr. Gupta. 13. In the alternative, Mr. Mirza submitted that the evidence on record clearly establishes the offence punishable under Section 304 Part I and 304 Part II as contended by Mr. Gupta. 12. We have carefully considered the submissions made by Mr. Gupta and Mr.Mirza and perused the records and the Judgments relied upon by Mr. Gupta. 13. In so far as the homicidal death of deceased Madanlal is concerned there is no serious dispute. The prosecution has relied upon the evidence of P.W. 5 Dr. Dilip who conducted post mortem on the dead body of deceased Madanlal. Upon external examination he found stab wound of 1. x ½ '' on front of right thigh below mid ingenial region. Wound was through and through from front of thigh opening at back of thigh. Wound of the back of thigh was 1. x ½. caused by sharp object within 24 hours. The injury was ante mortem. The cause of death was heamorrhagic shock due to cutting of femoral vessels. He confirmed that he had opined vide Exh. 40. He further stated that cutting of femoral vessels is enough for causing death. The witness identified the weapon (Gupti . Article 5) which was referred to him for opinion. In crossexamination he admitted that the weapon was sharp on both sides. He admitted that in column 17 he had not mentioned that the edges of weapon were were clean cut. He admitted that a stab wound caused by pointed and cutting instrument has clean cut edges. It is not always that entrance wound is bigger than the exit wound. In the particular case both the entrance and exit wounds are of same size. He further admitted that the entrance wound varies in size if a person pierced the weapon and takes out in the same direction but there is change in direction, the entrance would be larger. He further stated that it depends upon the offender how he drags out the weapon. He further stated that it was likely that when third person pulls the assailant and by that force or pull the weapon is dragged out the size of entrance would is bigger than exit. He had seen the throughness of the injury by using the glass rod but he had not mentioned the same in the report. According to the witness, normally the probable cause of death is based on opinion. He had seen the throughness of the injury by using the glass rod but he had not mentioned the same in the report. According to the witness, normally the probable cause of death is based on opinion. He further admitted that in internal examination he had not mentioned that femoral vessels were cut and that a layman may not know that cutting femoral vessels would be fatal and sufficient to cause death and there is also no likelihood of knowing about the location of vessels. He further submitted that immediate treatment or surgical aid might have saved the person from death. 14. The careful scrutiny of the above evidence clearly discloses that the deceased Madanlal died on account of the injuries caused to his thigh which was through and through which could have been caused by the weapon shown to the witness. That the injury caused ultimately resulted in immediate death of the victim. Thus, the prosecution has been able to establish beyond reasonable doubt that the death of Madanlal was homicidal. 15. To prove the complicity of the accused in the commission of the crime the prosecution relied upon four eye witnesses viz. P.W. 1 Harishkumar, P.W. 2 Munnalal Patle, P.W. 3 Ramawatar Gupta and P.W. 4 Rambharoselal. The prosecution was permitted to cross-examine Rambharoselal by the prosecution and he has also supported the prosecution case to some extent. 16. P.W.1 Harishkumar deposed that the deceased was his father who was running a shop in Loha Lines Gondia styled as Jagdamba Iron Stores. The shop of Gorelal styled as Jay Durga Irons was by the side of their shop and accused is the son of Gorelal. He deposed that on 2.6.1992 incident took place at about 8.30 p.m. to 9.00 p.m.. After closing the shop they had just crossed about 10 to 15 paces. At that time he along with his father P.W. 2 Munnalal Patle, P.W. 3 Ramawatar Gupta and P.W. 4 Rambharoselal were present in their shops. At that time his father and others were present. They were standing in front of the shop and inspected the site where a tin partition was to be installed. At that time he noticed the accused armed with gupti rushing towards his father. At that time electric lines were on. The accused was wearing a shirt with checks. The accused crossed him. He alerted his father to save himself. They were standing in front of the shop and inspected the site where a tin partition was to be installed. At that time he noticed the accused armed with gupti rushing towards his father. At that time electric lines were on. The accused was wearing a shirt with checks. The accused crossed him. He alerted his father to save himself. His father turned back. The accused gave a blow of gupti in the groin. Ramawatar caught hold of the accused and separated him. Accused threw Gupti on the bench which was lying in front of their shop. His father walked for about 5-6 paces towards southern side i.e. towards Pritam chowk. Therafter, Ramawatar lifted him and in a rickshaw took him to KTS Hospital. The Doctor who attended the deceased Madanlal declared him dead at about 10 pm. The police arrived at the hospital. Thereafter, he gave his report to the police. He identifies his signature on the said report as well as on the printed F.I.R. (Exh. 31). He confirmed the contents of the report as correct. He further deposed that on 3.6.1992 police came there with two panchas and on the spot he was present and he pointed out the spot. There was blood on the road. There were two pair of chappals; one belonging to his father and one belonging to the accused. Iron gupti was found on the bench which was seized. The witness identified the gupti Article 5 as the same gupti as well as the pair of slippers belonging to his father and accused (articles 3 and 4). He further deposed that there was civil dispute between his family and the family of accused in respect of the common wall and case was pending in the court. He further stated that during the investigation his statement was recorded by the Special Judicial Magistrate. The accused in the cross14 examination was suggested that there was a scuffle between the accused on one side and his father, Ramawatar, Rambharoselal and Satish on the other side and in that scuffle his father received injuries on account of piercing of rod of the angle in his thigh. The evidence of this witness is cogent and, therefore, inspires confidence and is also corroborated by P.W. 2 Munnalal Patle and P.W. 3 Ramawatar Gupta on material aspects. The evidence of this witness is cogent and, therefore, inspires confidence and is also corroborated by P.W. 2 Munnalal Patle and P.W. 3 Ramawatar Gupta on material aspects. The evidence of P.W. 2 Munnalal and P.W. 3 Ramawatar also establishes the assault by the accused with gupti on the thigh of Madanlal. In the cross-examination of these two witnesses also nothing tangible has been brought on record either to discredit their version or to probabilise the defence version that there was a scuffle as suggested to P.W. 1 Harishkumar. The evidence of all these three witnesses also stands corroborated on some aspects by P.W. 4 Rambharoselal who was allowed to be cross-examined by the prosecution. He also in the crossexamination at the instance of the prosecution confirmed his presence on the spot and presence of deceased Madanlal, P.W. 1 Harishkumar, P.W. 2 Munnalal Patle. In the cross-examination by the accused nothing tangible has been brought on record to disbelieve that part of the evidence brought on record in the cross-examination by the prosecution which corroborates the evidence of the other three witnesses. Thus, the prosecution has clearly established beyond reasonable doubt that the accused assaulted deceased Madanlal on his thigh with gupti causing injuries which resulted in his death within a short period. 17. The next question arises for consideration is what offence is made out against the accused. According to Mr. Mirza, the learned A.P.P. the offence of murder is made out whereas according to Mr.Gupta at the most an offence punishable under Section 304 Part II is made out against the accused. The trial court upon appreciation of the ocular as well as medical evidence has held that the offence punishable under Section 304 Part I of the Indian Penal code is made out on the ground that the prosecution evidence did not establish that the accused intended to cause murder of deceased but the accused intention to cause such bodily injury which was likely to cause his death. 18. We have perused all the Judgments relied upon by Mr. Gupta in support of his contention that at the most the offence punishable under Section 304 Part II is made out against the accused and that lenient view may be taken while imposing sentence. The facts in the present case are almost similar to the facts in the case of Harjinder Singh (supra). Gupta in support of his contention that at the most the offence punishable under Section 304 Part II is made out against the accused and that lenient view may be taken while imposing sentence. The facts in the present case are almost similar to the facts in the case of Harjinder Singh (supra). In the said case also the accused inflicted a single blow with a knife on the left thigh of the deceased which resulted in the death of deceased Kewalram. In the said case also the death was due to haemorrhagic shock on account of injury to femoral vessels by stab wound on the thigh. The Apex Court held that the offence punishable under Section 304 (I) was made out and not punishable under Section 302 of the Indian Penal Code and sentenced the accused to 7 years rigorous imprisonment. In the case of Mahesh Jagan Morade and others (supra) the Division Bench of this Court convicted the accused Santosh for the offence punishable under Section 304 Part I of the Indian Penal Code. In the said case single gupti blow was given on the chest of the deceased. After holding the accused guilty for the offence punishable under Section 304 Part I of the Indian Penal Code, this court sentenced him to undergo five years rigorous imprisonment and to pay a fine of Rs. 25000/- and in default to undergo rigorous imprisonment for two years. The consideration which weighed with the Division Bench of this court was that at the time of commission of the offence the accused was 17 years old. In the present case the record discloses that at the time of framing of the charge on 3.9.1994 the accused was 21 years old. The offence was committed on 2.6.1992 and, therefore, at the time of the commission of the offence the accused was hardly 19 years old. 19. No doubt the offence punishable under Section 304(I) of the Indian Penal Code is punishable with life or imprisonment either description for a term which may extent to 10 years and also fine. However, considering the age of the accused we are of the considered opinion that this is a fit case in which the sentence of imprisonment deserves to be reduced to 5 years and the fine deserves to be substantially increased. However, considering the age of the accused we are of the considered opinion that this is a fit case in which the sentence of imprisonment deserves to be reduced to 5 years and the fine deserves to be substantially increased. In a criminal trial no doubt if the offence is proved the accused has to be punished for the crime by imposing appropriate punishment but at the same time the court must also try to compensate the victim and in case he is dead, his legal representatives. Considering all these aspects we are of the considered opinion that it would be just and proper to impose fine of Rs. 1 lacs and in case of default to direct the accused to suffer rigorous imprisonment for one year and further direct that in the event the accused deposits the fine amount the entire amount shall be paid to the legal representatives of deceased Madanlal Mohanlal Gupta. We do not deem it necessary to refer to the other authorities relied upon by Mr. Gupta since the facts situation in all those authorities are entirely different. 20. In the result, therefore, we uphold the conviction of the accused for the offence punishable under Section 304(I) of the Indian Penal Code. However, the sentence imposed upon him by the trial court is modified and the accused is ordered to undergo rigorous imprisonment for 5 (five) years and to pay fine of Rs. 1 lac and in default to undergo rigorous imprisonment for one year. In the event the fine amount is deposited, the entire amount shall be paid to the legal representatives of deceased Madanlal Mohanlal Gupta. The bail bond executed by the accused stands discharged. The accused to surrender before the trial court to undergo the sentence imposed on him by this court. 21. The accused shall deposit the fine amount of Rs. 1 lac within a period of 12 weeks in the trial court and in case the fine amount is deposited by the accused the trial court shall hold inquiry as to who are the legal representatives of deceased Madanlal Mohanlal Gupta and pay the amount to them in proportion they are entitled to. 22. Criminal Appeal No. 385/1996 stands disposed of in the above terms. Criminal Appeal No. 85/1997 filed by the State is dismissed. 23. 22. Criminal Appeal No. 385/1996 stands disposed of in the above terms. Criminal Appeal No. 85/1997 filed by the State is dismissed. 23. At this stage Shri Gupta, learned counsel for the appellant seeks time of eight weeks for the appellant Rajesh Gupta to surrender before the trial Court. Time of eight weeks is granted to the appellant to surrender before the trial Court. Bail bond of the appellant shall stand discharged only after the appellant surrenders before the trial Court. In case the appellant does not surrender within a period of eight weeks, the trial Court shall take steps to take the appellant in custody.