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2013 DIGILAW 1814 (BOM)

Raju Hari Bhavsar v. State of Maharashtra

2013-09-04

R.C.CHAVAN

body2013
JUDGMENT This appeal is directed against the appellant's conviction for the offence punishable under Section 304 (Part-I) of the Indian Penal Code (for short, "IPC") and Section 66(1)(b) of the Bombay Prohibition Act (for short, "the BP Act") and sentence of rigorous imprisonment for five years with fine of Rs.1,000/- on the first count and rigorous imprisonment for three months with fine of Rs.500/- on the second count inflicted upon the appellant by the learned Additional Sessions Judge, Nashik on conclusion of Sessions Case No.1 of 1993 before him. 2. Facts which led to prosecution of the appellant and the material for deciding this appeal are as under : The appellant's brother runs a liquor joint at Panchavati, Nashik. On 26-6-1992, at about 9:30 p.m., the appellant was manning that shop. Balu Hullade and victim Bhausaheb Changale came to the shop and purchased two bottles of liquor which they started consuming nearby the shop itself. Their friend, one Balasaheb Chaudhari who is known as Balu Don, also came there and joined them. Naturally, some more liquor was required. Victim Bhausaheb Changale went back to the appellant's shop and sought two bottles of liquor on credit which the appellant refused to give. An altercation ensued in which the victim is supposed to have slapped the appellant. Thereafter, when the victim and his friends were walking away, the appellant rushed at them and pointed a knife at the neck of victim Bhausaheb Changale asking whether he wanted liquor on credit. But he did not cause any injury to the neck. Thereafter, as the victim turned around, the appellant gave a blow by the knife on the victim's stomach, leading to a serious injury. The victim was first carried to the dispensary of Dr. Bhangade by his friends and from there to the Civil Hospital at Nashik, where the victim was pronounced dead. The police were informed and on the report of Balu Hullade an offence was registered and investigation commenced. The appellant was arrested. The police had caused the body of the victim to be sent for post-mortem examination after performing the inquest and had also seized the clothes of the victim. In the course of interrogation of the appellant, the appellant agreed to produce the knife which he claimed to have concealed under a layer of bricks. The knife was recovered at the instance of the appellant. In the course of interrogation of the appellant, the appellant agreed to produce the knife which he claimed to have concealed under a layer of bricks. The knife was recovered at the instance of the appellant. The property seized was sent to the Forensic Science Laboratory which included the clothes of the appellant. On completion of the investigation the police filed charge-sheet against the appellant for offence of murder as well as possession of illicit liquor, punishable under Section 66(1)(b) of the BP Act, and for possession of knife, thereby committing the offence punishable under Section 135 of the Bombay Police Act. The learned Judicial Magistrate, First Class, Nashik, in whose Court the charge-sheet was filed committed the case to the Court of Sessions at Nashik. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellant of offences punishable under Section 302 of the IPC, Section 66(1)(b) of the BP Act and Section 135 r/w Section 37(1) of the Bombay Police Act for breach of prohibitory orders. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all eight witnesses in its attempt to bring home the guilt of the appellant. The appellant took a defence of denial and also took a vacillating defence of having been at Malegaon on the incidental day, which he could not prove. After considering the prosecution evidence in the light of the defence of denial, the learned Judge held the appellant guilty of the offence punishable under Section 304 (Part-I) of the IPC and sentenced him to suffer imprisonment and to pay fine, as indicated above. He also convicted the appellant of the offence punishable under Section 66(1)(b) of the BP Act but acquitted the appellant of the offence punishable under Section 135 of the Bombay Police Act. Aggrieved by his conviction and sentence, the appellant is before this Court. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor (for short, "APP") for the State. With the help of both, I have gone through the evidence on record. 5. PW-1 Dr. Pagare conducted the post-mortem examination on the body of the victim and found a superficial incised wound on the left side of the neck of the dimension 3” x ¼” X ¼”. With the help of both, I have gone through the evidence on record. 5. PW-1 Dr. Pagare conducted the post-mortem examination on the body of the victim and found a superficial incised wound on the left side of the neck of the dimension 3” x ¼” X ¼”. There was also an incised wound on the right hypochondriac region of the size 2” x l” x 4”. On dissection he found that the right lobe of the liver was torn and there was one liter of blood in the peritoneum cavity. The contents of the stomach also gave out smell of alcohol. He found that the injury to the hypochondriac corresponding to internal injury to liver was sufficient in the ordinary course of nature to cause death. He proved his notes of post-mortem examination at Exhibit-l7. He seems to have been cross-examined at length which does not bring out anything to discard the observations of the doctor & conclusions drawn by him. 6. PW-2 Balu Hullade is the victim's friend and an eye-witness to the incident who also gave a report of the incident vide Exhibit-22. PW-4 Balasaheb Chaudhari alias Balu Don is the other eye-witness to the incident. They state that the victim had gone again for getting some more liquor on credit which the appellant refused to give. An altercation ensued and the victim gave a slap on the face of the accused. They state that when they started going back, the appellant rushed towards them and touched the blade of the knife to the neck of the victim and asked the victim whether he wanted liquor on credit. The appellant then shifted the knife from the point of contact on neck and struck it in the abdomen of the victim. The victim fell on the ground and the appellant fled with the knife towards the river side. In the cross-examination PW-2 Balu Hullade stated that the river was about a furlong away from the spot. In the cross-examination of these two witnesses, it was sought to be brought out that there was some contradictions about the quantity of liquor consumed or the number of bottles purchased, which the learned trial Judge did not find to be significant. It was also sought to be brought on record that Balu Don was six feet in height and a hefty fellow. It was also sought to be brought on record that Balu Don was six feet in height and a hefty fellow. Possibly it was tried to be suggested that in the presence of Balu Don the appellant could not have dared to hit his friend. The cross-examination also revealed that there were another customers sitting about 25-30 feet away from the two witnesses and the victim. While PW-2 Balu Hullade stated that the victim had administered one slap to the appellant, PW-4 Balasaheb Chaudhari stated that the appellant had first slapped the victim and then the victim gave back. But by and large the two witnesses are consistent that it was the appellant who hit the victim with the knife on the victim's abdomen. 7. PW-3 Shripad Kulkarni and PW-8 PSI Kathwate state about recovery of the knife at the instance of the appellant in the presence of Shripad by PSI Kathwate vide Exhibits-24 and 25. In the cross-examination PW-3 Shripad stated that the knife was under a heap of 7 to 8 bricks whereas PW-8 PSI Kathwate stated that the knife was below 2 to 3 bricks and the learned counsel for the appellant sought to make much about this discrepancy. However, the evidence about the memorandum which led to discovery of the knife is consistent and was rightly believed by the learned trial Judge, as submitted by the learned APP. The learned counsel for the appellant also submitted that the story about the knife being concealed under a heap of bricks is itself unnatural, since the appellant had an opportunity to throw the knife in the river which was just a furlong away rather than carry and conceal it under the bricks for being recovered by the police. Now how a person would react in a situation cannot be predicted and it is not that miscreants always act in a very logical manner. Therefore, merely because it was possible for the appellant to throw the knife in the river, the discovery of the knife could not have been disbelieved and therefore was not disbelieved by the learned trial Judge. 8. The evidence of PW-5 Rajendra Shetye about the oral dying declaration was not believed by the learned trial Judge. Therefore, merely because it was possible for the appellant to throw the knife in the river, the discovery of the knife could not have been disbelieved and therefore was not disbelieved by the learned trial Judge. 8. The evidence of PW-5 Rajendra Shetye about the oral dying declaration was not believed by the learned trial Judge. The learned counsel for the appellant submitted that it would be difficult to expect the victim to make a disclosure to PW-5 when the victim had sustained such a serious injury and in fact died soon after the incident. The learned trial Judge, however, seems to have relied on the evidence of PW-l Dr. Pagare that the victim would not have become unconscious within a minute after sustaining the injury. The learned counsel for the appellant may be right in submitting that the evidence about this dying declaration was not foolproof, since it was not a question of making an oral dying declaration within a minute of sustaining the injury. PW-5 in fact states that when the victim was being taken in a rickshaw to the dispensary of Dr. Bhangade, he went running to the rickshaw, saw the victim in the rickshaw and asked the victim as to what had happened and then the victim stated that the appellant had stabbed him. It is worthy of note that when the victim was taken to the hospital, he was possibly dead or pronounced dead on arrival. Therefore, the ability of the victim to make such a dying declaration is not free from doubt. All the same, there is evidence of PW-2 Balu Hullade which is duly corroborated by his FIR at Exhibit-22 and which was rightly relied on by the learned trial Judge. 9. PW-7 Balasaheb Changale is the victim's brother who came to know of the incident after the incident and his evidence is insignificant. As already stated, PW-8 PSI Kathwate is the investigating officer. 10. The attempt of the learned counsel for the appellant to discredit the evidence of the prosecution witnesses on the ground that there were contradictions like, how many bottles of liquor were consumed or how many layers of bricks concealed the knife has to fail because these are minor contradictions. No reason has been brought forth to show that the witnesses would falsely state about the complicity of the appellant. No reason has been brought forth to show that the witnesses would falsely state about the complicity of the appellant. As to the opportunity to the appellant to throw the knife in the river, the foregoing discussion would show that it is not necessary that a miscreant will always act rationally after such a ghastly act committed by him. The learned counsel for the appellant also submitted that since several persons were sitting by the liquor joint, they could have been examined by the prosecution as independent witnesses. There can be no doubt that the prosecution could have tendered the evidence of other witnesses who may have been present at the spot. But merely because these persons are not examined, the evidence of the first informant and the eye-witness to the incident cannot be thrown out. The contention of the learned counsel for the appellant that falsity of defence cannot be a ground for conviction, is correct. But here there is no question of falsity of the defence or failure to prove the alibi. The defence itself was vacillating and its evaluation would lead the Court nowhere. Since the evidence of the eye-witnesses clearly pointed to the complicity of the appellant in the assault leading to the death of Bhausaheb Changale, the learned Judge rightly held the appellant to be the author of the injury which led to Bhausaheb's homicidal death. 11. The learned counsel for the appellant next submitted that even the learned trial Judge had held in para 17 of the Judgment that the accused had an opportunity to stab the victim on the back of the neck and the accused did not do so. He also observed that there might be movements of the accused, deceased Bhausaheb and the witnesses and in the scuffle the appellant may have given a blow on the victim's stomach which led to tearing of the liver and proved fatal. The learned counsel pointed out that therefore the learned trial Judge had held that the act would not amount to a murder but a culpable homicide not amounting to murder, punishable under Section 304 (Part-I) of the IPC. The learned counsel pointed out that therefore the learned trial Judge had held that the act would not amount to a murder but a culpable homicide not amounting to murder, punishable under Section 304 (Part-I) of the IPC. Relying on a Judgment of the Supreme Court in Chenda @ Chanda Ram v. State of Chhatisgarh {Criminal Appeal No.1285 of 2013 arising out of S.L.P. (Criminal) No.3028 of 2012}, decided on 278-2013 : (2013 ALL SCR 3372], the learned counsel submitted that in such circumstances the learned trial Judge ought to have in fact convicted the appellant for offence punishable under Part-II of Section 304 of the IPC, rather than Part-I, as had been done in the decision cited above. In that case there had been an altercation, in the course of which the appellant had hit the victim on the head with a piece of wood used for supporting of bullock-cart. The victim died about four hours after the incident of head injury, involving five fractures. The appellant had been convicted by the trial Court for offence punishable under Section 302 of the IPC and the conviction had been maintained in appeal by the High Court. The Supreme Court referred to a landmark Judgment of the Court in Virsa Singh v. State of Punjab, reported in (1958) 1 SCR 1495 : [2007 ALL SCR (O.C.C.) 33], where four steps which were required to be proved were outlined as under : “i. first, whether bodily injury is present; ii. second, what is the nature of injury; iii. Third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. second, what is the nature of injury; iii. Third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.” The Supreme Court also held, relying on the Judgment in Gurmukh Singh v. State of Haryana, reported in (2009) 15 SCC 635 , and applying it to the facts unfolded in the case before the Court that there was no enmity, no premeditation, that the incident had occurred during a scuffle, there was no evidence to show that the appellant intended to hit on the head only and not elsewhere on the body and since the parties in scuffle were in motion, the injury on the head could have been caused unintentionally. The Court then altered the conviction to offence punishable under the Second Part of Section 304 and sentenced the appellant therein to rigorous imprisonment for ten years with fine of Rs.50,000/-. Incidentally, that case also arose from an incident which took place in the year 1993. 12. The learned counsel for the appellant next submitted that in this case the learned trial Judge has in fact considered all this but wrongly came to the conclusion that the offence was one punishable under Section 304 (Part-I) of the IPC when he should have in fact held that the offence made out was one punishable under the Second Part of Section 304 of the IPC, since no intention of causing death or causing such bodily injury as is likely to cause death could have been attributed to the appellant. She submitted that if the learned trial Judge had concluded that the parties were scuffling and that though the appellant had an opportunity to stab the victim on the back of the neck, had not done so and that in the course of the scuffle the knife in the hand of the appellant came to pierce the abdomen of the victim, the learned trial Judge had to hold that the act could, at the worst, be said to be done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause bodily injury which was likely to cause death. The learned APP could not show any flaw in the logic propounded by the learned counsel for the appellant and the conviction would therefore have to be altered to one punishable under Section 304 (Part-II) of the IPC. 13. This takes me to the question of sentence. The learned counsel for the appellant submitted that at the time of the incident the appellant was 20 years old. The appellant has been living under the shadow of conviction and therefore the appellant could be let off on the period for which the appellant had been in prison, which comes to about less than a year. She relied on a Judgment of this Court in Prakash Waman Shejul v. State of Maharashtra, reported in 2004 (Supp.) Bom.C.R. 353 in support of her contention. The learned APP submitted that the sentence of rigorous imprisonment for five years is the standard sentence in such cases and points out that even the Supreme Court had, in the case cited by the learned counsel for the appellant, imposed a sentence often years and therefore there was no warrant for reducing the sentence any further. However, the learned counsel for the appellant is right in submitting that if the learned trial Judge had come to hold that sentence of rigorous imprisonment for five years was justified for an offence punishable under Section 304 (Part-I) and if the conviction is altered to one for offence punishable under Section 304 (Part-II), some reduction of sentence would be warranted in any case because of the young age of the appellant at the time of commission of offence, absence of his involvement in any crime in all these twenty years and his living under the shadow of conviction for all these years. However, the sentence cannot obviously be reduced to the period already undergone which is negligible. The option of increasing the fine and reducing the sentence cannot also be invoked because the sentence undergone by the appellant is so negligible that no amount of increase in the fine would compensate for the sentence which the appellant is supposed to suffer. In view of this, considering the alteration in the offence for which the appellant is now being held guilty and the sentence initially imposed for a graver offence by the learned trial Judge, the sentence could be reduced to rigorous imprisonment for three years with fine of Rs.10,000/- or in default rigorous imprisonment for a period of one year. 14. As far as the conviction of the appellant for the offence under Section 66(1)(b) of the BP Act is concerned, the learned counsel for the appellant is right in submitting that this conviction is presumptive which is based on the assumption of the learned Judge that the appellant was in fact possessed of any illicit liquor. No such liquor has been seized or sent to the Laboratory even after the matter was reported to the police. Merely because the witnesses state that they purchased liquor from the appellant and the post-mortem notes show that the victim had consumed liquor, it would not be enough to prove that the appellant was in possession of illicit liquor. Hence, the conviction and sentence for the offence punishable under Section 66(1)(b) of the BP Act would have to be set aside. 15. In the result, the appeal is partly allowed. The conviction of the appellant for the offence punishable under Section 66(1)(b) of the BP Act and the sentence of rigorous imprisonment for three months with fine of Rs.500/- or in default rigorous imprisonment for one month are set aside. He is acquitted of the said offence. The conviction of the appellant for the offence punishable under Section 304 (Part-I) of the IPC is altered to that of offence punishable under Section 304 (Part-II) of the IPC and the sentence is reduced from rigorous imprisonment for five years to rigorous imprisonment for three years while increasing the fine from Rs.l,000/- to Rs.10,000/- and imposing a sentence in default of R.I. for one year. The appeal accordingly stands disposed of. Ordered accordingly.