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2008 DIGILAW 626 (BOM)

Shrawan Sadu Sormale v. State of Maharashtra

2008-04-28

S.R.DONGAONKAR

body2008
JUDGMENT This appeal has been preferred by the appellant Shrawanto challenge his conviction for the offence under section 304 Part II of I.P.C. and sentence for this offence to suffer R.I. for 10 years and to pay fine of Rs.2000/- in default to suffer R.I. for two months. 2. Brief facts leading to the prosecution of the appellant may be stated thus. The appellant is the resident of village Rasa. He was residing in front of the house of the complainant – Sau. Shami Kawdu Kasar. On the date of incident i.e. 10.4.2005, at about 1.30 to 2.00 in the afternoon appellant started abusing her husband – deceased Kawdu. He was saying that the daughter of said Kawdu conceives and he gets her aborted. Thereafter, her husband i.e. deceased Kawdu objected. On that appellant threatened that he would kill him and immediately thrusted spear (ballam) in his stomach, as a result of which his intestine came out of stomach and he sustained grievous injury. Thereafter, the deceased was taken to Kalamb Hospital. He was admitted there. He was thereafter taken to Yavatmal Hospital. he was there for about 5-6 days. He was operated, later on he was discharged and then he went to stay with his daughter at village Bodgavan. However, due to injuries he died. Initially the offence under section 307 of the I.P.C. was registered bearing Crime No.41/2005, the investigation was conducted. During investigation, statements of the witnesses were recorded. Spot panchnama was prepared. Weapon found on the spot, was seized. Blood stained weapon was sent for examination. Statement of the injured was also recorded. After the death of the deceased the offence was converted into one under section 302 of the I.P.C., the postmortem examination was conducted and after due investigation the appellant was charge-sheeted for the offence under section 302 of I.P.C. 3. The appellant pleaded not guilty to the charge. Defence of the appellant is that of total denial. 4. In order to bring home guilt of the accused the prosecution has examined in all six witnesses. P.W. 1 is Shami wife of the deceased. She is an eye witness to the incident. She has also lodged report to Police Station. P.W. 2 Subhash Nagorao Maskar is panch witness to the seizure of the spear from the spot. The said spot panchnama is Exh.17. P.W. 1 is Shami wife of the deceased. She is an eye witness to the incident. She has also lodged report to Police Station. P.W. 2 Subhash Nagorao Maskar is panch witness to the seizure of the spear from the spot. The said spot panchnama is Exh.17. P.W.3 Gangaram Somaji Borkute is alleged witness to the incident, however, he has turned hostile to the prosecution. P.W. 4 Sau. Parwatibai w/o Nagorav Shivankar is neighbour of the deceased. She is also an eye witness to the incident,but she has turned hostile to the prosecution. P.W. 5 Dr. Sau. Urmila Vitthalrao Patil has conducted postmortem on the body of the deceased Kawdu. Said postmortem report is at Exh.27. According to her; deceased had died due to septicemia followed by abdominal injury. P.W. 6 P.I. Murlidhar Jagan Nale is the Investigating Officer. 5. The appellant though claimed his innocence, did not adduce any defence evidence. According to him, he has filed case against the deceased and the complainant, so they are deposing false. 6. Learned trial Judge after considering the contentions of the rival parties, came to the conclusion that the offence u/s 302 of the I.P.C. is not established against the applicant. He however, found that the offence u/s 304 Part II of the I.P.C. is established and so he convicted the appellant for the said offence and sentenced him accordingly. 7. This judgment of conviction and sentence is assailed by the appellant. 8. Learned counsel for the appellant Shri Mardikar has submitted that evidence of Shami – complainant i.e. wife of the deceased is not supported by other independent evidence on record. According to him, none of the eye witnesses except the complainant has supported the prosecution and therefore she being closed relative of the deceased; the evidence of the complainant is not sufficient to hold the appellant guilty of the offence charged. Further according to him, the use of the weapon as an instrument of offence is not proved. According to him, panch witness P.W. 2 Subhash has stated that panchnama was already prepared by police and nothing was done in his presence and therefore no value to seizure Exh.17 can be attached. He has also submitted that the evidence of P.W. 5 Dr. Urmila Patil and the P.M. Report Exh. 27 do not show that the injury found on the person of the deceased was sufficient to cause death. He has also submitted that the evidence of P.W. 5 Dr. Urmila Patil and the P.M. Report Exh. 27 do not show that the injury found on the person of the deceased was sufficient to cause death. On the contrary the fact is that deceased was discharged from the hospital within 4-5 days and he died at the village Bodgavan due to septicemia. Therefore, there is no nexus between the injury caused and the death of the deceased. It is also contended that the deceased had tried to assault the appellant due to previous enmity and therefore, appellant was entitled to right of private defence and therefore, conviction recorded by the learned trial Judge is incorrect and illegal and therefore, it is liable to be set aside by allowing this appeal. In the alternative relying on 1988 Mh.L.J. 147 State of Maharashtra ..vs.. Kallappa Devu Girmal And another, he contended that the offence u/s 304 Part II of the I.P.C. is not made out. The offence can be only one under section 326 of the I.P.C. Therefore, it is submitted that the conviction should be altered to the offence u/s 326 of the I.P.C. and accordingly the sentence should be reduced. 9. Learned A.P.P. Mrs. S.S Wandile, has contended that the learned trial Judge has rightly relied on the evidence of P.W. 1 Shami. She is an eye witness to incident and wife of the deceased. In the circumstances of case she cannot depose false, just to implicate appellant falsely. Therefore, even if other alleged eye witnesses have turned hostile to the prosecution, she being truthful witness, conviction can be based on her evidence. Further according to her, the evidence of this witness is corroborated by the medical evidence on record and as such the conviction and sentence recorded by the trial judge are justified. As such she submitted that the appeal should be dismissed. 10. In order to appreciate the rival contentions of the parties, it is necessary to closely peruse the evidence of P.W. 1. She has stated that, at the time of incident her husband was standing in the courtyard. At that time her husband convinced the accused, not to abuse in such language and instantly the accused ran to the home, took out a spear (Ballam) and inflicted the blow by that spear to her husband stomach, due to which his intestine came out. At that time her husband convinced the accused, not to abuse in such language and instantly the accused ran to the home, took out a spear (Ballam) and inflicted the blow by that spear to her husband stomach, due to which his intestine came out. He immediately fell down on the ground. She immediately rushed her husband to Kalamb Hospital, where he was admitted. Thereafter, police came and recorded her statement, she impressed her thumb print on that report, she also testified that the contents of her report are correct. She further deposed regarding seizure of spear, plain soil and blood stained soil from the spot. She has identified spear before the court i.e. Article – A. Learned counsel for the appellant has contended that there are material improvements in her evidence. She was pointed out that she did not state before police that her husband was standing in the courtyard and that accused went running to his house and took out spear and inflicted in stomach of her husband. Further that she did not tell before police that her husband took out spear from his stomach, she was also pointed out that she did not state before police that she was at home at the relevant time. The material suggestions are denied by her. 11. Learned counsel for the appellant has invited my attention to the statement of this witness in the cross examination that she goes for labour work in other field and she go in the morning and work there till 7.00 p.m. It is tried to suggest that this means she might not be present in the house at the relevant time. 12. On close perusal of the omissions cited by the learned counsel for the appellant, it would be seen that those omissions cannot be said to be material, considering the nature of the incident to as to discredit her version. it is difficult to believe that she would implicate the appellant falsely taking advantage of injury caused to her husband by anybody else or by an accident. 13. Further merely because she used to go to the work as labourer in other field in day time that fact by itself will not lead to inference that she was not present in the house. It is pertinent to note that P.I. Nale has recorded statement of this witness in Rural Hospital Kalamb. 13. Further merely because she used to go to the work as labourer in other field in day time that fact by itself will not lead to inference that she was not present in the house. It is pertinent to note that P.I. Nale has recorded statement of this witness in Rural Hospital Kalamb. The offence is registered on the same day. Therefore, the presence of the witness in the hospital immediately when her husband was taken to the hospital is apparently proved. There is no sufficient reason as to why she should state false against the appellant at that time. Her report corroborates her evidence. Therefore, there is no sufficient reason to disbelieve her evidence. 14. Other witnesses have not supported the prosecution case. It appears that P.W. 3 Gangaram and P.W. 4 Parwatabai have stated that they have not seen the incident. The suggestions given by the learned A.P.P. that they have seen the incident have been denied, but it does not appear from their evidence as to where were they at the relevant time. Their evidence cannot be said to be supporting the appellant. 15. One more reason which makes the evidence of P.W.1 Shami acceptable is the evidence of P.W. 5 Dr. Urmila Patil. She has deposed about the cause of death of the deceased. She has stated that on external examination she noticed following antemortem injuries: “Stitch Scar extending from xiphisternum to public symphysis (9 ½ inches) and another horizontal stitch scar extending Lt. Laterally towards mid-clavicular line (5 inches). According to her probable cause of death was septicemia followed by abdominal injury. She has also stated that no case history was received along with the dead body. It does not establish that the death was due to reasons of unsuccessful operation. 16. Turning to the evidence of the I.O., P.I. Nale, it would be seen that he has stated in cross examination that on the report lodged by the accused; offence was registered against deceased under section 324 of the I.P.C. but as deceased died , it was produced as abated summary. At that time accused was also admitted in the hospital in the injured condition. Therefore, it is obvious that the presence of the appellant on the spot has been suggested. In the circumstances of the case it would be only the appellant who could cause the injury to the deceased. At that time accused was also admitted in the hospital in the injured condition. Therefore, it is obvious that the presence of the appellant on the spot has been suggested. In the circumstances of the case it would be only the appellant who could cause the injury to the deceased. Therefore, the evidence of P.W. 1 Shami can be accepted as regards the occurrence of the incident i.e. causing injury on the stomach of the deceased by Ballam whereby intestine of the deceased had come out. 17. Learned counsel for the appellant has also contended that the statement of the deceased which was recorded did not came on record. In this behalf, cross examination of I.O. Nale shows that he had made arrangement for recording the D.D. of the injured, Tahsildar was also requested for recording the D.D., but his statement was not recorded at Kalamb. There is no doubt that there is some missing link, but considering the circumstances of the case, it is difficult to say that the appellant might have been falsely implicated. As such the case of the prosecution regarding incident has to be accepted. 18. This takes me to consider as to what offence is made out against the appellant. Learned trial Judge has held that the offence under section 304 Part II I.P.C. is made out. Learned trial Judge has observed “13- No doubt, it is demonstrated on record that there was a quarrel in between the parties and probably in the hit of passion or in a spur of moment accused took out a spear and inflicted the blow into the stomach of the deceased which consequently resulted in the death of deceased. As such the circumstances do not indicate the fact that accused had any intention to commit culpable homicide amounting to murder of the deceased. However, infliction of blow on such a vital part would definitely within the knowledge of accused, that, if such blow could have been dealt with, it may result in a grievous hurt or the death of the deceased. Accordingly, looking to the circumstances and the evidence put forth before me, I am inclined to hold that accused had no intention to cause the death of the deceased or had caused such injury with an intention to commit culpable homicide. Accordingly, looking to the circumstances and the evidence put forth before me, I am inclined to hold that accused had no intention to cause the death of the deceased or had caused such injury with an intention to commit culpable homicide. However, the injury so inflicted on the part of the body of the deceased could be very well within the knowledge of the accused which would result in the death of the deceased. Accordingly, I am inclined to hold that the prosecution has partly proved the case under section 304 Part II of the Indian Penal Code and not under section 302 of the Indian Penal Code. Accordingly, I convict the accused under section 304 Part II of the I.P.C.” He has observed that there may not be any intention of the appellant to cause the murder of the deceased, but infliction of blow on the vital part was definitely with the knowledge of the appellant, that if such blow could have been dealt with, it may result in injury sufficient to cause or death of the deceased. 19. As stated above, the learned counsel for the appellant has relied on the judgment of this court in 1998 Mh.L.J. 147 State of Maharashtra ..vs.. Kallappa Devu Girmal and another wherein it has been observed in paragraph 18 thus: “18- Now comes the discussions as to the exact offence committed by the accused and the sentence they merit. Once it is held that Parisha died as a result of the operation or post operative complications, he death cannot be laid at the door of the accused. However, the accused would be guilty of having committed grievous hurt by dangerous weapons. They had endangered the life of Parisha, and in so doing they had used lethal weapons like an axe or a sickle or scythe. The postmortem note shows that eight injuries sustained by the deceased had been caused by sharp and cutting substances and were also the result of his having been struck by a hard and blunt substance. The offence having been committed in furtherance of a common intention, both the accused would be liable under section 326 read with 34 of the Penal Code.” In the present case, it is necessary to note that only suggestion given to the medical witness is that no case history was received along with dead body. The offence having been committed in furtherance of a common intention, both the accused would be liable under section 326 read with 34 of the Penal Code.” In the present case, it is necessary to note that only suggestion given to the medical witness is that no case history was received along with dead body. It is true that this witness has stated that the probable cause of death was septicemia followed by abdominal injury, but there is nothing on record to suggest that septicemia was possible by any operational negligence or any lapse therein. The injury so caused on the stomach was by Ballam i.e. spear and therefore, it can not be said that the appellant had no knowledge that such attack to cause fatal injury on the stomach, would not have resulted into death of the deceased. Merely because the deceased had died after some days after his discharge from the hospital and due to septicemia; it does not mean that the injury was not sufficient to cause death, particularly when it was inflicted on the vital part of the body and when as per the evidence the intestine of the deceased had come out. In my opinion, the observations in the aforesaid judgment of this court are not attracted. In that case it was held that the deceased had died as a result of operation or because of the post operation complication. In my opinion, therefore, the facts of that case are distinguishable. Therefore, the finding recorded by the learned trial Judge that the appellant is guilty of the offence punishable u/s 304 Part II I.P.C. cannot be said to be incorrect on this count. 20. It is necessary to note the provisions of section 304 II I.P.C., which read thus: “with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death” Here is a case where act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as it is likely to cause death. Facts would clearly show that the appellant must have knowledge that by such assault and injury on stomach, he would cause the death of the deceased. The knowledge can clearly be attributed to the applicant in this regard, if not an intention. I therefore, hold that conviction recorded by learned trial Judge is correct. 21. This takes me to consider the question of quantum of sentence to be imposed on the appellant. The appellant has been sentenced for R.I. for 10 years. As stated above offence under section 304 II of the I.P.C. is established. State has not preferred any appeal to challenge the acquittal of the appellant for the offence u/s 302 of the I.P.C. The sentence provided for the offence under section 304 II I.P.C. is maximum 10 years. The circumstances in which alleged offence is committed can be gathered from the evidence of the I.O. The I.O. P.W. 6 Nale has stated that on the report lodged by appellant, offence was registered against deceased u/s 324 of I.P.C., but as deceased died, he submitted abated summary. It is also stated by him that the appellant was also admitted in the hospital in an injured condition and he was under medical treatment, though he has further stated that he has not produced any medical certificate along with charge sheet. This would mean that the appellant had also suffered injury in the incident. Therefore, in my opinion maximum sentence as provided under section 304 II of the I.P.C. is not called for. It will have to be reduced. I reduce it to R.I. of 5 years. Rest of the sentence as regards the fine etc. is maintained. 22. As such, in the result, the appeal is partly allowed. Conviction of the appellant for the offence punishable under section 304 Part II of the I.P.C. is maintained. His sentence, however is modified to R.I. for five years. Sentence of fine and in default sentence of R.I. for 2 months is maintained. Ordered accordingly. The fee of the learned counsel for appellant Shri Anil Mardikar is quantified to Rs.1500/- . Office to take action.