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2009 DIGILAW 379 (BOM)

Assis Cardoz v. State of Goa

2009-03-20

N.A.BRITTO

body2009
JUDGMENT N.A. Britto, J.- This appeal is by the accused who has been convicted for second degree murder i.e. under Section 34 (Part I), IPC and sentenced to undergo R.I. for a period of ten years and fine of Rs. 1000/- in default to undergo S.I. for a period of one month. 2. The accused was charged and tried with the allegation that on 8.6.2005 at about 22.00 hours at Ecoxim, Bhattan, the accused committed murder intentionally and knowingly causing the death of Vikram Eknath Phadte. 3. The accused was about 55 years of age at the relevant time while the deceased was 30 years of age and both were stated to have taken drinks together, prior to the incident, and both were seen arguing with one another. The accused was heard saying "Tuka hanv dakoita" ("I will show you") to which the deceased is stated to have replied "tum kitem moje shenttam dakoitolo" at which time the accused removed something from his pocket and gave a blow on the chest of Vikram. A knife was seen in the hands of the accused. The deceased was taken in a car to Porvorim Police Station after the incident and thereafter to Goa Medical College, Bambolim. On the way the deceased told repeatedly that the accused had stabbed him with a knife. The deceased died at 2.00 a.m. on 9.6.2005. 4. A post mortem conducted showed that the deceased died due to haemorrhagic shock as a result of penetrating injury to lung and heart vide injury No. 1 which was ante mortem and fresh at the time of death and fatal in the ordinary course of nature. Although the case of the accused was one of denial simpliciter, the accused came to be convicted, after prosecution had examined 17 witnesses. The learned trial Court came to the conclusion that death of Vikram was homicidal and was caused by the accused with the knife/MO5. The learned Session Judge noted that the evidence showed that the accused was b abusing Vikram Phadte at the relevant time and the latter had replied in an abusive manner but there was no evidence to show what was behind the said abuses and the reason why the accused had said to the deceased "tuka hanv dakoita". The learned Session Judge noted that the evidence showed that the accused was b abusing Vikram Phadte at the relevant time and the latter had replied in an abusive manner but there was no evidence to show what was behind the said abuses and the reason why the accused had said to the deceased "tuka hanv dakoita". The learned Sessions Judge also took note that the accused had sustained an abrasion below the left eye and there was no explanation of the said injury either from the prosecution or from the accused and further observed that the possibility of sudden physical scuffle could not be ruled out. The learned Sessions Judge also noted that the case was of a single blow with a knife and in case the accused had acted with premeditation, he would have given more blows of the said knife on the deceased. The learned Sessions Judge concluded that the injury was caused without premeditation, in the heat of passion and upon a sudden quarrel and thus the case was one of culpable homicide punishable under Section 34(I), IPC. 5. At the hearing of this appeal, Shri Arun Bras De Sa, learned Counsel on behalf of the accused has made a twofold submission, based on various judgments cited by him. According to the learned Counsel, the learned trial Court ought to have scaled down the conviction to Section 304(II) and sentenced the accused to 5 years as d the incident had occurred in sudden fight at the spur of the moment and a single injury was caused. Learned Counsel further submits that the accused has already undergone imprisonment for five years and therefore ought to be released. 6. On the other hand. Ms. Winnie Coutinho, learned Public Prosecutor has not made any submission to the contrary, but has left the matter to be decided by this Court. 7. The sequence of facts reproduced herein above, and, as rightly noticed by the learned Sessions Judge begin from a point where the accused abused the deceased stating that "I will show you" (tuka hanv dakoita) and the deceased stating as to what he could show him, whereupon the accused removed the knife and gave a singular blow on the chest of the deceased. Learned counsel appearing on behalf of the accused has relied on several cases contending that on similar' fact situation the Apex Court has convicted the accused under Section 304(II) and sentenced the accused with imprisonment of 5 years. 8. The first three of such cases cited on behalf of the accused are Khanjan Pal v. State of Uttar Pradesh, 1990 STPL (LE) 15590 SC Supreme Court of India, Tholan v. State of T.N., 1984 STPL (LE) 11857 SC Supreme Court of India and Hem Raj v. State (Delhi Administration, 1990 STPL (LE) SC Supreme Court of India. 9. In the first case of Khanjan Pal v. State of Uttar Pradesh (supra) the accused and the deceased were working in a factory, and on 8.4.1972 the accused is stated to have said to the deceased that he had illicit relationship with one Tara whereupon the deceased replied that he considered Tara to be his sister which was followed by an altercation and in the course of the altercation the accused stabbed the deceased with a knife which caused a punctured wound penetrating into the chest cavity. The Hon'ble Supreme Court in the background of the aforesaid facts observed that the offence committed was not of murder and it would fall under Section 304(Part II), IPC. The Hon'ble Supreme Court further observed that the evidence clearly established that the whole incident was a sudden development and that the accused had acted at the spur of the moment and without any premeditation. There had been no ill-will or enmity between the two. A casual remark made by the accused provoked the deceased and the altercation ensued which culminated in the stabbing with knife. The accused used the knife only once and did not act in any cruel manner. It was in the sudden quarrel in heat of passion that the accused inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased. In such circumstances, the act of the accused fell under Exception 4 to Section 300, IPC and the accused is liable to be convicted only under Section 34(Part II) IPC. In such circumstances, the act of the accused fell under Exception 4 to Section 300, IPC and the accused is liable to be convicted only under Section 34(Part II) IPC. As regards the sentence the Apex Court took note of the fact that the accused had undergone imprisonment for one year and thereafter was released on d bail and was at large for 12 years and was a young man who could not be committed to prison for any further period and therefore the Apex Court imposed a fine upon him of Rs. 50,000/- in addition to the term of imprisonment he had suffered and in default directed him to undergo further imprisonment of 6 months. 10. In the case of Tholan v. State of T.N. (supra) the accused is stated to have come near the house of the deceased Sampat complaining against the organisers of the chit and was in front of the house of one Palaniammal who on hearing the shouts of the accused asked him to go away and the accused in turn abused Palaniammal at which time the deceased Sampat came out of the house and cautioned the accused not to indulge in abusive language, as the ladies were present, and told him to go away and the accused questioned the authority of the deceased to ask him to go away. Both were remonstrating with each other when the accused took out a knife from his waist and stabbed deceased Sampat on the right side of his chest and left him there and went away. Deceased Sampat succumbed to a his injury which in course of post-mortem examination was found to be an incised gaping wound obliquely placed in front of the chest 1 cm. away from the right sternal box on the 4th intercoastal space and 5 cms. medial to the right nipple of six 2 cms. x 1 cm. at the maximum point. The depth was not probed. The external wound was spindle shaped with clear-cut edges on both sides and sharp point on either ends with blood cots. On internal examination fracture of 9th and 6th ribs were noticed. The depth of the wound was proved up to middle lobe of the right lung and proceeding up to right atrial cavity. The depth was not probed. The external wound was spindle shaped with clear-cut edges on both sides and sharp point on either ends with blood cots. On internal examination fracture of 9th and 6th ribs were noticed. The depth of the wound was proved up to middle lobe of the right lung and proceeding up to right atrial cavity. The cause of death was stated to be shock and haemorrhage on account of the stab injury and the corresponding internal injury to vital organs like the heart and the lung which was sufficient in the ordinary course of nature to cause death. It was submitted before the Apex Court that the accused when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. The Apex Court noted that on this aspect, the decisions are legion and it is not necessary to recapitulate them to cover idle c parade of familiar knowledge. A number of decisions were taken note of and the Apex Court observed that having regard to the ratio of each of those decisions. they were satisfied that even if Exception I was not attracted, the requisite intention cannot be attributed to the accused and in such a situation he could be attributed with the knowledge that he was likely to cause an injury which was likely to cause death and in such a situation he would be guilty of committing an offence under Section 304(Part II), IPC. The Apex Court having regard to the circumstances of the case concluded that 5 years could be quite adequate. 11. In Hem Raj v. State (Delhi Administration) (supra) the Apex Court noted, like in the present case, that a true and accurate version of the prosecution as to the origin and genesis of the occurrence was not brought out clearly. That was a case where during the course of the sudden quarrel that the accused gave a single stab which unfortunately landed on the chest of the deceased causing an injury which was sufficient in the ordinary course of nature to cause death. That was a case where during the course of the sudden quarrel that the accused gave a single stab which unfortunately landed on the chest of the deceased causing an injury which was sufficient in the ordinary course of nature to cause death. The Apex Court noted that it was inferable from the circumstances that the occurrence had happened in a spur of moment and in the heat of passion upon a sudden quarrel and the said inference was fortified by the admission admitting that both the accused and the deceased suddenly grappled each other and the entire occurrence was over within a minute and thus it was clear that it was during the course of a sudden quarrel that the accused gave a single stab which unfortunately landed on the chest of the deceased causing injury. The Apex Court noted that the totality of the established facts and circumstances show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the accused caused a solitary injury and in such situation he could not be imputed to cause death of the deceased or with the intention to cause that particular fatal injury but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. In the absence of any positive proof that the accused caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death neither Clause I nor Clause III of Section 300, IPC will be attracted. The Apex Court referred to a series of decisions and came to the conclusion that the ratio of the said decisions was that the offence committed by the accused was one punishable under Section 304(part II), IPC and not under Section 302, IPC. As far as the sentence is concerned, the accused was directed to undergo R.I. for a period of 7 years. 12. As far as the sentence is concerned, the accused was directed to undergo R.I. for a period of 7 years. 12. In the case of Jagtar Singh v. State of Punjab, 1983 STPL (LE) 11210 SC, the deceased Narinder Singh accompanied by Romesh Kumar were proceeding towards Nandan Cinema and were passing in front of the house of the accused when deceased Narinder Singh was c injured by the projecting parnala of the house of the accused whereupon deceased Narinder Singh protested to the accused and asked him to raise the height of the parnala. There was exchange of abuses in this background and the accused and Joginder Singh caught hold of Narinder Singh and on being instigated by Joginder Singh the accused Jagtar Singh gave one blow with knife which landed on the chest of Narinder Singh and after some time Narinder Singh succumbed to his injury. The accused had also caused injury to the said Narinder Singh. The accused was convicted under Section 302 IPC but the Apex Court took note of the fact that a quarrel had taken place on the spur d of the moment. The accused never expected to meet the deceased. When the deceased was just passing by the road in front of the house of the accused his forehead dashed with the parnala of the house of the accused which provoked the deceased to remonstrate the accused. There was evidence to show that there was exchange of abuses and at that time the accused gave a blow with a knife which landed on the chest of the deceased. The Apex Court again referred to a number of decided cases and following the ratio laid down in the said cases, convicted the accused under Section 34(Part II), IPC and sentenced him to undergo imprisonment of five years. 13. Learned Counsel on behalf of the accused 'has also placed reliance on two cases of the Division Benches of Orissa and Andhra Pradesh reported in Bishnu Charan Das v. The State, 1985 STPL(LE Crim) 14474 Ori) and The Public Prosecutor; High Court of A.P. Hyderabad v. Gali Suryanarayana, 2000 STPL(LE-Crim) 2168 AP) wherein the convictions were also reduced to Section 304(Part II) , IPC and a sentenced to R.I. from seven years and five years, respectively. 14. 14. As already stated considering the ratio of the judgments of the Apex Court, referred to herein above there is a scope for scaling down the conviction from Section 304(1) to Section 340 (II), IPC. In imposing the sentence on the accused, the learned Sessions Judge took note of the fact that the deceased was 30 years of age and thus deprived him of enjoyment of life at a very young age, and that the accused had not shown any extenuating circumstances in reducing the sentence below 10 years. The accused was arrested on 10.6.2005 and has been in custody since then. In my view, a sentence of 6 years of R.I. in addition to the fine imposed by the learned Sessions Judge, would meet the ends of justice, considering the facts and circumstances of the case, including that the deceased lost his life at a very young age of 30 years. 15. Consequently, the appeal is allowed partly. The conviction of the accused is reduced from Section 304(I) to Section 304(II) IPC, and the sentence is modified, in that the accused shall undergo R.I. for a period of six years and in addition pay a fine of Rs. 1000/-, and in default to undergo S.I. for a period of one month. Appeal partly allowed.