High Court
Facts
APEAL-1034-19.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 1034 OF 2019Siddheshwar Ramrao ChavanAge: 35 years, Occu.: Agri.,R/o Kumbephal, Tq. Sindkhedraja,Dist. Buldhana..APPELLANTVERSUSState of MaharashtraThrough Police Inspector,Mantha Police Station,Tq. Mantha, Dist. Jalna..RESPONDENT....Mr. A.R. Shaikh, Advocate for appellantMr. A.R. Kale, A.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 14th JUNE, 2024PRONOUNCED ON : 19th JUNE, 2024JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The challenge in this appeal is to the judgment and order dated13th September, 2019 passed by Additional Sessions Judge, Jalna inSessions Case No. 158 of 2017. Vide the impugned judgment and order, theappellant has been convicted for the offence punishable under Section 302of the Indian Penal Code (‘I.P.C.’), and therefore, sentenced to sufferimprisonment for life and fine of Rs.10,000/- with default stipulation. Theappellant was also prosecuted for the offences punishable under Sections324, 504 and 506 of the I.P.C., wherefrom he has been acquitted. Neitherthe State nor the victim has preferred appeal against acquittal.1 / 17
Legal Reasoning
APEAL-1034-19.odt22.Considering the nature of weapon, it being a single blow givenbelow the left chest and that too after his mother-in-law (deceasedSumanbai) tried to catch hold of him, indicate that he did not intend to kill her.The appellant could, however be attributed with knowledge that with such actdeath would likely to cause. In our view, therefore, it is a case of offence ofculpable homicide not amounting to murder, punishable under Section 304Part II of the I.P.C.23.The appellant is in jail since 17th June, 2017. Considering thenature of offence and the fact that he had come to get his wife back to hishouse for cohabitation and further more his both children were with him, wepropose to impose sentence of eight years rigorous imprisonment. With this,appeal partly succeeds in terms of following order :-ORDER(I)Criminal appeal is partly allowed.(II)Judgment and order dated 13th September, 2019 passed byAdditional Sessions Judge, Jalna in Sessions Case No. 158of 2017, thereby convicting and sentencing the appellant forthe offence punishable under Section 302 of the IndianPenal Code is hereby set aside. He stands acquittedthereof.(III)The appellant is convicted for the offence punishable underSection 304 Part II of the Indian Penal Code, and therefore,sentenced to suffer rigorous imprisonment for eight years16 / 17 APEAL-1034-19.odtand pay fine of Rs.5,000/- (Rupees Five Thousand), indefault to suffer rigorous imprisonment for six months.(IV)Since the appellant is behind the bars from the date of hisarrest i.e. 16th June, 2017 till date, he be given set off underSection 428 of Code of Criminal Procedure.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD17 / 17
Arguments
APEAL-1034-19.odt2.A short question for consideration in this appeal is as to whetherthe act of the appellant, causing death of his mother-in-law, constitutes anoffence of murder punishable under Section 302 or under Section 304 Part IIof the I.P.C., as has been urged by learned counsel for the appellant.3.The facts in brief giving rise to the present appeal are as follows :-The appellant married P.W.4 – Vaishali about twelve years before14th June, 2017 (fateful day). The couple was blessed with two children.Vaishali is the daughter of maternal uncle of the appellant. After quite a longhappy married life, the appellant allegedly got addicted to alcohol. He wouldharass and ill-treat Vaishali. Two months before 14th July, 2017, Vaishali hadreturned to the house of her parents at Malegaon, Tq. Mantha, Dist. Jalna.The appellant came to the house of his parents-in-law on the given day i.e.on 14th June, 2017 by 06:00 p.m. to get his wife (Vaishali) back to hermatrimonial house. P.W.1 – Rohit (informant), brother-in-law of the appellantrefused to send Vaishali with him (appellant). A quarrel-cum-scuffle tookplace between the two. The appellant then left the house of his parents-in-law. He returned after a while armed with a knife and said, “I will see you allone by one”. Sumanbai (deceased), mother-in-law of the appellant tried tohold the appellant. He gave a knife blow on her chest. She thereby sufferedbleeding injury. When Vaishali and P.W.1 – Rohit intervened to save her,they too suffered injuries. Sumanbai was rushed to the Government Hospital,Mantha. The medical officer there declared her dead on admission. P.W.1 –Rohit, on the following day i.e. 15th June, 2017 lodged the F.I.R. (Exh.14).2 / 17 APEAL-1034-19.odtBefore registration of the crime, inquest (Exh.23) and autopsy (Exh.38) wereconducted on 15th June, 2017. A scene of offence panchanama (Exh.17)was drawn. The knife stained with blood came to be seized from the crimescene. Clothes on the person of the deceased and that of the appellant wereseized. Statements of the persons acquainted with the facts andcircumstances of the case were recorded. C.A. reports (Exh.29 to 31) werereceived.4.Upon completion of investigation, the appellant was proceededagainst by filing the charge-sheet before the Court of J.M.F.C., Mantha,which in turn, committed the case to the Court of Session. The case wasassigned to the Additional Sessions Judge, Jalna for trial in accordance withlaw. Charge (Exh.7) was framed against the appellant for offence punishableunder Sections 302, 324, 504 and 506 of the I.P.C. The appellant pleadednot guilty. His defence was of false implication. According to him, P.W.1 –Rohit, his brother-in-law assaulted him with a kitchen knife while he had beento his residence to get his wife back. His mother-in-law and wife intervened.Mother-in-law suffered injury, accidentally.5.To bring home the charge, prosecution examined six witnessesand produced in evidence certain documents. The trial Court, on appreciationof the evidence in the case, convicted the appellant and consequentlysentenced as stated above.3 / 17 APEAL-1034-19.odt6.Learned counsel for the appellant would submit that the appellantwould reside at village Kumbephal, Tq. Sindkhedraja, Dist. Buldhana. Hehad come to the house of his parents-in-law on 14th June, 2017 to get backhis wife, P.W.4 – Vaishali. P.W.1 – Rohit, his brother-in-law refused to sendVaishali back to her matrimonial house. A quarrel ensued between the two.It was his brother-in-law, who fetched a kitchen knife from the kitchen of hisown house. Sumanbai (deceased) and Vaishali intervened. Sumanbai thussuffered injury which proved fatal. He would, in the alternative, submit that itwas a case of single blow. The appellant did not have intention to kill hismother-in-law or anyone else. The kitchen knife, with which the appellantassaulted his mother-in-law, was shown to us to indicate it was not adangerous weapon. According to learned counsel, the injury was below leftchest, near to the stomach. The cause of death is hemorrhagic shock due tostab injury. He then adverted our attention to the injury certificate of theappellant (Exh.41). Our attention was also drawn to certain portion of thecross-examination of P.W.1 – Rohit, who admitted in no uncertain terms thatin the village where he resides, no knife was available for sale. Learnedcounsel meant to say that the kitchen knife was in the house of the informanthimself. Since the appellant did not have intention to kill anyone, he did notfetch any such knife from outside. According to him, all the witnessesexamined by the prosecution are interested. He was not resident of villageMalegaon whereat the incident took place. He, therefore, ultimately urged forconverting the conviction of the appellant from Section 302 to Section 304Part II of the I.P.C. and imposing proportionate sentence.4 / 17 APEAL-1034-19.odt7.Learned A.P.P. would, on the other hand, submit that theappellant was addicted to alcohol. When he came to the house of hisparents-in-law to get his wife back, a quarrel-cum-scuffle took place betweenhim and P.W.1 – Rohit (informant), his brother-in-law. Thereafter he left thehouse and returned with a knife and said, “I will see you all one by one”.Same indicates his intention was to commit murder. Learned A.P.P. wouldfurther submit that it is not that every case of a single blow resulting intodeath would fall under Section 304 Part II of the I.P.C. He relied on thejudgment of the Apex Court in case of Pulicherla Nagaraju @ NagarajaReddy Vs. State of A.P., 2006 AIR (SC) 3010 to ultimately urge fordismissal of the appeal.8.Considered the submissions advanced. Perused the evidence onrecord and the judgment impugned herein. Let us advert thereto andappreciate the same.9.Admittedly, marriage between the appellant and P.W.4 – Vaishalitook place twelve years before June 2017. The couple was blessed with twochildren. The appellant has his residence at village Kumbephal, Tq.Sindkhedraja, Dist. Buldhana, while the house of his parents-in-law is atvillage Malegaon, Tq. Mantha, Dist. Jalna. Vaishali is the daughter ofappellant’s maternal uncle. The case of the prosecution that the appellantwas addicted to alcohol is evident from his injury certificate (Exh.41) admittedby the appellant himself. The injury certificate (Exh.41) indicates that while5 / 17 APEAL-1034-19.odtthe medical officer examined him, the appellant was found drunk andintoxicated. After having a long happy married life, P.W.2 – Vaishali appearsto have left her matrimonial house and came back to her parents’. Ithappened just two months before 14th June, 2017 (fateful day). From theevidence on record it indicates that there-before no complaints were made byVaishali in relation to harassment and ill-treatment by the appellant. Be thatas it may.10.Admittedly, the incident took place on 14th June, 2017, little past06:00 p.m. According to the informant, P.W.1 – Rohit, the appellant came tohis house. All his family members were present in the house. He (appellant)abused all of them on having questioned as to why they did not send his wifeVaishali to his house. It is further in his evidence that he refused to sendVaishali with the appellant as he would harass and ill-treat her under theinfluence of liquor. Therefore, there was scuffle between him and theappellant. The appellant then left the house. It is further in his evidence thathe then called P.W.3 - Sevakram Shriram Rathod, Sarpanch of the villagewith a view to inform him about the incident and then inform to Bit Jamadar,Mantha Police Station. Sevakram accordingly came to his house. Theappellant thereafter again returned armed with a knife. He told them, “I willsee you all one by one”. It is further in his evidence that when his motherSumanbai (deceased) tried to hold the appellant, at that time he gave a knifeblow on her chest. Sumanbai thereby suffered bleeding injury. Vaishaliintervened. She too suffered knife injury. When he (P.W.2) intervened, he6 / 17 APEAL-1034-19.odttoo suffered injury to his hand. Then all of them, except the appellant, wentto Mantha Police Station. The police station officer referred them toGovernment Hospital, Mantha for medical treatment. The doctor theredeclared Sumanbai dead on admission.11.P.W.2 – Chinchole, is a witness to the crime scene panchanama(Exh.17) besides two more panchanamas relating to seizure of clothes of thedeceased and that of the appellant (Exh.18 and 19) respectively.12.P.W.3 – Sevakram was not a witness to the earlier incident, whichallegedly took place at 06:00 p.m. It was a scuffle between the appellant andP.W.1 – Rohit. His evidence indicates that he had come to the house ofShriram Rathod on the request of Nitesh, brother of P.W.1 – Rohit. Herequested to contact Bit Jamadar of Mantha Police Station. He tried tocontact him on his cell phone, however the call was not completed. It is inhis evidence that all the family members of P.W.1 – Rohit were present in thehouse. It is further in his evidence that the appellant came with a knife andassaulted on the chest of Sumanbai therewith. He, therefore, accompaniedall of them, except the appellant, to Mantha Police Station and then toGovernment Hospital, Mantha. The defence version of the appellant was putto him in his cross-examination. He denied each and every suggestion.13.P.W.4 – Vaishali (wife of the appellant) testified that on the fatefulday the appellant had come to get her back for cohabitation. Her brother,7 / 17 APEAL-1034-19.odtNitesh refused to send her back with him. The appellant gave a push toNitesh and left. It is further in her evidence that Nitesh called P.W.3 –Sevakram to their residence. Sevakram came. Thereafter the appellantcame back holding a knife in his hand and having seen the appellant, hermother – Sumanbai stood up. The appellant gave a blow on her chest withthe knife. When she and her brother, P.W.1 – Rohit tried to separate thequarrel, both of them suffered injury to their hands. All of them, except theappellant, then went to Mantha Police Station and thereafter to GovernmentHospital, Mantha.14.She was subjected to a searching cross-examination. She deniedto have never been subjected to harassment by the appellant. She deniedthat she left the matrimonial house leaving the children behind. She deniedthe defence questions put to her during cross-examination.15.P.W.6 – Alamgir was a police officer, who recorded the F.I.R.lodged by P.W.1 – Rohit. It is P.W.5 – Rafiq who did the investigation of thecrime and filed the charge-sheet.16.What can be disclosed from the evidence on record is that therewas a long standing marital relationship (about twelve years) between theappellant and P.W.4 – Vaishali. The couple was blessed with two children.There is some evidence to indicate the appellant would consume alcohol.There is, therefore, every reason for us to infer that Vaishali might have lefther matrimonial house and started residing at the house of her parents’ at8 / 17 APEAL-1034-19.odtvillage Malegaon. There is further evidence on record to indicate that boththe children of the couple are staying with the appellant at his native place.On the given day i.e. 14th June, 2017, the appellant had admittedly come tothe house of his parents-in-law to get his wife back for cohabitation. Samesuggests that he had not come with an intention to kill anyone of his in-laws.It is true, that intention to kill can be developed on the spot. The evidence,however indicate that the prosecution witnesses were somewhat economicalwith the truth. According to P.W.1 – Rohit, there was scuffle between himand the appellant by 06:00 p.m. and then the appellant left the house. Whileas per the version of P.W.4 – Vaishali, it was the appellant, who gave push toNitesh, her another brother, and left the house.17.In our view, there must have been some scuffle. The appellanttoo was assaulted. It is not known whether he was assaulted first or he firstassaulted his mother-in-law. P.W.1 – Rohit has admitted in his evidence thatno knife is available for sale at his Tanda (vicinity, a place whereat he wasresiding). The weapon of assault is a kitchen knife. It’s one side is blunt. Itdoes not have a plain sharpness since the side of knife with which cuttingcould be made has teeth. As such, it was admittedly a kitchen knife. Theinvestigating officer appears to have not made investigation to findwherefrom the appellant could secure the kitchen knife. Even we accept theprosecution case as it is, what P.W.1 – Rohit testified is that when theappellant returned with a knife, his mother – Sumanbai tried to hold theappellant. The same indicates that action of Sumanbai to catch hold of the9 / 17 APEAL-1034-19.odtappellant was preceding the assault. It is not in the evidence of any of theprosecution witnesses that the appellant on his return with a knife straightaway assaulted Sumanbai therewith. The witnesses found to be economicalwith the truth since P.W.1, 3 and 4 denied the appellant to have beenassaulted. The evidence of P.W.5 – Rafiq indicates that he had referred theappellant, Sumanbai (deceased), P.W.1 – Rohit and P.W.4 – Vaishali to theGovernment Hospital, Mantha for medical examination at one and the sametime. After realising the consequences of his admission, he testified that hedid not recollect as to whether he referred the appellant for medicalexamination. The evidence on record indicates that all of them wereexamined by the medical officer one after the other. The injury certificate ofthe appellant (Exh.41) suggests that he suffered following two injuries :-TypeofinjurySite of part of thebody on whichinflicted & extentSizeSharpmarginDirectionetc.Age oftheinjuryType ofprobableweaponusedNatureof theinjuryCLWLeft lathal thighupper 1/3rd 2 x 2 cmSharpRecentSharp &pointedSimpleCLWRight hand atbase of proximalphalanx of rightmiddle & indexfinger 7 x 0.5 x 5cmIrregularRecentSharp &pointedSimpleThe appellant was even referred to Civil Hospital, Jalna for furthertreatment. The same suggests that the appellant must have been assaultedby P.W.1 – Rohit with sharp and pointed weapon. As such, first it is a caseof an incident taken place in a spur of moment. Although the appellant hadreturned armed with a knife, it is only when his mother-in-law stood up and10 / 17 APEAL-1034-19.odttried to catch hold of him, he gave her a kitchen knife blow. It is not that nosooner the appellant returned with a knife, he started assaulting one after theother indiscriminately.18.Each case has to be decided on its facts and circumstances. Wehave perused the judgment in case of Pulicherla Nagaraju @ NagarajaReddy (supra) relied on by the A.P.P. The facts therein indicate that it was acase of long standing dispute between the two families. Although it was acase of single assault, the same was made with a dangerous weapon likebarisa. In the case in hand, we do not find the kitchen knife could be such adangerous weapon. Learned A.P.P. has specifically relied on paragraphno.17 which reads thus :-“17. It would thus be seen that in all these cases, the accused landing asingle blow was only one of the several circumstances which persuadedthis Court to hold that the offence did not fall under Section 302 but fellunder Section 304 Part I or Part II. The fact that the accused gave onlyone blow, by itself, would not mitigate the offence to one of culpablehomicide not amounting to murder. There are several cases wheresingle blow inflicted by the accused, resulting in death have been foundto be sufficient for conviction under Section 302. We may refer to a fewof them, namely, Virsa Singh v. State of Punjab (AIR 1958 SC 465),Gudar Dusadh v. State of Bihar (AIR 1972 SC 952), Vasanta v. State ofMaharashtra (1984 Supp. SCC 648), Jai Prakash v. State (DelhiAdministration) [1991 (2) SCC 32] and State of Karnataka v.Vedanayagam [1995 (1) SCC 326]. 17.1) In Virsa Singh (supra), this Court held that a culpablehomicide is a murder under Section 300 clause Thirdly, if theprosecution should establish four elements (i) the presence of a bodily11 / 17 APEAL-1034-19.odtinjury, (ii) nature of such bodily injury, (iii) intention on the part of theaccused to inflict that particular bodily injury, that is to say, that it wasnot accidental or unintentional, or that some other kind of injury wasintended; and (iv) the injury was sufficient to cause death in theordinary course of nature (this part of enquiry being purely objectiveand inferential, nothing to do with the intention of the offender).Dealing with the question, as to how intention is to be inferred, VivianBose, J. succinctly stated :"...In considering whether the intention was to inflict the injury found tohave been inflicted, the enquiry necessarily proceeds on broad lines as,for example, whether there was an intention to strike at a vital or adangerous spot, and whether with sufficient force to cause the kind ofinjury found to have been inflicted x x x x The question is not whetherthe prisoner intended to inflict a serious injury or a trivial one butwhether he intended to inflict the injury that is proved to be present. Ifhe can show that he did not, or if the totality of the circumstancesjustify such an inference, then, of course, the intent that the sectionrequires is not proved. But if there is nothing beyond the injury and thefact that the appellant inflicted it, the only possible inference is that heintended to inflict it. Whether he knew of its seriousness, or intendedsome consequences, is neither here nor there. The question, so far asthe intention is concerned, is not whether he intended to kill, or toinflict an injury of a particular degree of seriousness, but whether heintended to inflict the injury in question; and once the existence of theinjury is proved the intention to cause it will be presumed unless theevidence or the circumstances warrant an opposite conclusion. Butwhether the intention is there or not is one of fact and not one of law.Whether the wound is serious or otherwise, and if serious, how serious,is a totally separate and distinct question and has nothing to do with thequestion whether the prisoner intended to inflict the injury in question."17.2) The following legal position regarding single blowinjury, was summed up in Jagrup Singh v. The State of Haryana (AIR12 / 17 APEAL-1034-19.odt1981 SC 1552) thus :"There is no justification for the assertion that the giving of a solitaryblow on a vital part of the body resulting the death must alwaysnecessarily reduce the offence to culpable homicide not amounting tomurder punishable under section 304, Part II of the Code. If a mandeliberately strikes another on the head with a heavy log of wood or aniron rod or even a lathi so as to cause a fracture of the skull, he must, inthe absence of any circumstances negativing the presumption, bedeemed to have intended to cause the death of the victim or such bodilyinjury as is sufficient to cause death. The whole thing depends upon theintention to cause death, and the case may be covered by either clauseFirstly or clause Thirdly. The nature of intention must be gathered fromthe kind of weapon used, the part of the body hit, the amount of forceemployed and the circumstances attendant upon the death."19.True, intention to commit murder can be ascertained from thefacts viz. nature of weapon used, number of blows inflicted and body part onwhich the assault/s was/were made. We are also of not a view that everysingle assault resulting into death could necessarily be an offence fallingunder Part II of Section 304 of the I.P.C.20.As such, it is a question of fact whether the appellant had madeassault by the knife with an intention to commit murder of his mother-in-law.As per the postmortem report (Exh.38), Sumanbai died due to hemorrhagicshock due to stab injury. Although the postmortem report has been admittedin the defence, it was incumbent on the part of the prosecution to examinethe medical officer, who conducted the postmortem examination. By non-examination of the medical officer, this Court has no material before it to find13 / 17 APEAL-1034-19.odtwhether bodily injury intended to be inflicted was sufficient in the ordinarycourse of nature to cause death. For better appreciation, we need to refer toSections 299, 300 and 304 Part II of the I.P.C. They are, therefore,reproduced below :-“299. Culpable homicide. - Whoever causes death by doing an act withthe intention of causing death, or with the intention of causing suchbodily injury as is likely to cause death, or with the knowledge that heis likely by such act to cause death, commit the offence of culpablehomicide.300. Murder. - Except in the cases hereinafter excepted, culpablehomicide is murder, if the act by which the death is caused is done withthe intention of causing death, or 2ndly. - If it is done with the intention of causing such bodily injury asthe offender knows to be likely to cause the death of the person towhom the harm is caused, or3rdly. - If it is done with the intention of causing bodily injury to anyperson and the bodily injury intended to be inflicted is sufficient in theordinary course of nature to cause death, or4thly. - If the person committing the act knows that it is so imminentlydangerous that it must, in all probability, cause death or such bodilyinjury as is likely to cause death, and commits such act without anyexcuse for incurring the risk of causing death or such injury as aforesaid.Section 304, Part II is attracted when it is proved that even if theaccused had no intention to cause such bodily injury as was likely tocause death but had the knowledge that the injury was likely to causedeath. ….”21.On appreciation of the evidence on record, we find it to be a casefalling under Section 304 Part II of the I.P.C. Admittedly, the appellant hadcome to the house of his parents-in-law to get his wife back. His brother-in-law (P.W.1 – Rohit) refused to send his (appellant) wife with him. Thereason therefor that the appellant was addicted to alcohol and would harass14 / 17 APEAL-1034-19.odther under the influence thereof. While the appellant was at the house of hisparents-in-law in the evening, according to P.W.1 – Rohit, a minor scufflebetween him and the appellant took place. While as per the evidence ofP.W.4 – Vaishali, the appellant gave Nitesh, her another brother, push andleft the house and returned with a knife. As per the evidence of P.W.1 –Rohit, no knife was available for sale at the Tanda whereat he was residing.It is not known wherefrom the appellant had secured the kitchen knife. Noinvestigation in that regard was made. The appellant too suffered twoinjuries referred to above. The first injury was suffered with a pointed andsharp weapon. It is not known whether any other weapon was thereavailable for P.W.1 – Rohit to assault the appellant. The injury suffered bythe appellant could not be said to have been self-inflicted. It is also not thecase of prosecution. Had the appellant really intended to kill anyone of hisin-laws or his wife on his return armed with a knife, he would have startedassaulting them indiscriminately and even without waiting for a minute. Evenif we accept the evidence of P.W.1 – Rohit that the appellant on return statedthat now he will see each and everyone one after another, the same does notindicate his intention was to kill his in-laws. It is only when his mother-in-lawtried to catch hold of the appellant, he gave her a kitchen knife’s blow belowthe left chest, close to the stomach. Had he really intended to kill, he wouldhave given further blows. The prosecution appears to have suppressed verymany facts and particularly who caused the injuries to the appellant with asharp and pointed weapon. The appellant had suffered those injuries in theincident that took place at the house of his in-laws.15 / 17