Manik S/O Ramchandra Yadao vs The State Of Maharashtra Through ...
2002 Latest Caselaw 646 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant alongwith three others was tried for murder of Mahadoji Ramble under Section 302 read with Section 34 of the Indian Penal Code and also assault on others for which separate charge was framed besides other charges. The learned Additional Sessions Judge, Washim, by Judgment dated 21.2.97, convicted the appellant of the charge of murder under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life. He was acquitted of other charges. The other co-accused were acquitted of all the charges. The appellant challenges his conviction in this appeal.

2. The prosecution case, as revealed from evidence on record, is that there was litigation pending between the deceased family and the family of the appellant and in that connection the son of the deceased alongwith his wife and his mother had gone to Washim Court on the previous day of the incident. In that case, statement of Vimal (P. W. 1), daughter of the deceased was recorded. The appellant, alongwith others, gave threats to Vimal (P.W. 1), her husband Prakash (P. W. 2) and Jijabai (P. W. 3), on account of which they had to halt for night at the house of their relative at Washim. On the next day morning, they returned home and at about 10.00 a. m. the appellant came alongwith other co-accused and questioned the deceased as to how his daughter had lodged false report and had given false evidence. The deceased told him to forget the past events and begged pardon by folding hands, upon which the appellant took out an axe from his back side and gave axe blow on the head of the deceased, as a result of which, he fell down and later died. The prosecution had examined three eye witnesses of the incident namely P. W. 1 Vimal Prakash Khandare, daughter of the deceased, P. W. 2 Prakash Pundlik Khandare, son-in-law of the deceased and P. W. 3 Jijabai Mahadu Kamble, wife of the deceased. The fourth eye witness P. W. 7 Gangadhar Mahadu Kamble, did not support the prosecution case. On the basis of evidence of eye witnesses and other evidence on record, the Trial Court recorded finding of conviction under Section 302 of the Indian Penal Code against the appellant. The other co-accused were ordered to be acquitted since the evidence against them was not found sufficient.

3. The learned Advocate for the appellant took us through the evidence on record and more particularly the evidence of eye witnesses and urged before us that one of the eye witnesses has not supported the prosecution case and the other eye Witnesses are closely related to the deceased and being interested witnesses, their evidence cannot be accepted. He also pointed out that in any case the version of the eye - witnesses cannot be accepted since according to them the blow of axe was given by the appellant while standing in front of the deceased, on account of which the blow could never fall on the occipital region of the deceased. He also contended that the appellant is said to have inflicted only one blow, as a result of which, the bone of the occipital region had fractured which was brittle on account of the age of the deceased who was 70 years of age. He, therefore, contends that the appellant be acquitted of the charge or at any rate the offence in question does not fall under Section 302 of the Indian Penal Code but may, at the most, come under Section 304 Part I of the Indian Penal Code.

4. The learned A. P. P., on the other hand, urged before us that the incident took place in the background of previous litigation and on the previous day of the incident, P. W. 1 Vimal had deposed in the Court at Washim against the appellant and the appellant alongwith other had threatened Vimal (P. W. 1), her husband Prakash (P. W. 2) and the wife of the deceased Jijabai (P. W. 3). He further argued that the appellant came with an axe to the house of the deceased and questioned him as to why P. W. 1 Vimal had deposed against him and, thereafter, inflicted the fatal axe blow on the head of the deceased, as a result of which, he died. Therefore, according to the learned A. P. P., in the background of the case and evidence on record, it is a case of premeditated assault since the appellant came with an axe in his hand with which he assaulted the deceased, as a result of which Mahaduji died. According to the learned A. P. P. the intention to kill is, therefore, amply proved in the light of the evidence on record and there is no case for interference in the Judgment of the Trial Court as also there is no case of scaling down the offence of murder to culpable homicide not amounting to murder.

5. The prosecution has examined three eye witnesses, who are, no doubt, closely related to the deceased, on account of which their testimony requires close scrutiny. P. W. 1 Vimal has stated that on the previous day of the incident she alongwith her mother Jijabai (P. W. 3) and husband Prakash (P. W. 2) had gone to Washim Court, where her statement was recorded in the Court in a case against appellant Manik and others. She has further stated that Manik and others had given threat on the day of her evidence, on account of which they had to halt at the house of her relative at Washim. She has also stated that on the next day morning when they came to the house, their father namely deceased Mahaduji informed that Manik was taking rounds during the night time near their house. This evidence of P. W. 1 has not even been challenged during the cross-examination. The testimony of this witness on this aspect is fully corroborated by her husband Prakash (P.W. 2) and also Jijabai (P. W. 3). Both of them have stated that they alongwith Vimal (P. W. 1) had gone to the Washim Court for evidence on the previous day and the accused had given threat, on account of which they had to stay at Washim for the night. P. W. 3 Jijabai has also stated that her husband had informed her that the accused persons were taking rounds at the house. The statements of these witnesses were also not challenged during the cross-examination. The facts prove motive for the assault by the appellant.

6. P. W. 1 Vimal has further stated that at about 10.00 a. m. appellant came to their house and told her father that she had lodged a false report and has given false evidence. Her father told him to forget it and forget the past events and her father begged pardon by folding hands. At this stage, the appellant took out an axe from the back side and gave axe blow on the head of her father. There has been no cross-examination on this material particulars, except for bare suggestions which have been denied. It was suggested to this witness that in a scuffle the axe of her husband namely, Prakash (P.W. 2) hit on the head of the deceased, which was denied by her. It was also suggested to her that at the time of the incident, Manik had taken the axe from the hand of her husband and whirled it, and thus, sought to explain the blow by Manik on the head of the deceased. The learned Advocate for the appellant has urged before us that when the blow was given by the appellant Manik from the front side of the deceased, it is not possible that the blow would fall on the occipital region of the deceased. The evidence of P. W. 1 Vimal, P. W. 2 Prakash and P. W. 3 Jijabai shows that the deceased begged pardon with folded hands, told the appellant to forget what had happened and in such situation as it happens normally, it appears that deceased had bent while begging pardon by folding hands and the appellant Manik took out an axe from the back side and gave blow on the head of deceased due to which he fell down. The testimony of this witnesses on this aspect is fully corroborated by her husband P. W. 2 Prakash and also her mother-in-law P. W, 3 Jijabai. P. W. 3 Jijabai has stated that appellant Manik came to her husband and said that her daughter had lodged false case and had given false evidence and her husband namely deceased told her let us forget the past and begged pardon with folded hands and at this stage, Manik had taken out an axe from his back side and gave axe blow on the head of her husband. P. W. 2 Prakash came to the spot after hearing the shouts and he saw the injury on the head of his father and the appellant was having an axe and he was trying to run away.

7. The evidence of these three eye witnesses, therefore, duly establishes involvement of the appellant, P. W. 7 Gangadhar Kamble, who was another eye. witness, did not support the prosecution case. He stated that Vimal daughter-in-law of the deceased was his step sister; due to discord with them, he shifted to another locality; his relations are cordial with the accused which shows the reasons as to why this witness has not supported the prosecution case. This witness has tried to suppress the truth from the Court when he said that though he found Mahaduji lying down, he did not even know whether blood was oozing from his head.

8. The appellant had one injury on his forehead, which according to P. W. 8 Nagorao Thorat, was possible with a sharp edged weapon. There is no doubt that the prosecution has not given any explanation for the injury on the appellant but the appellant has also not attributed this injury to the deceased. P. W. 1 Vimal has denied that her husband had given the axe blow on the head of Manik. She has also denied that her father had given stick blow to Manik which hit on his thumb. It was initially suggested to P. W. 2 Prakash that he came out of the house with a stick in his hand, but subsequently it was suggested to him that he and Gangadhar had assaulted Suresh and appellant Manik with an axe. If as per the defence case the said witness Prakash initially came with a stick in his hand, it is not explained any where as to how axe came into the hand of P. W. 2 Prakash, for the purpose of giving suggestion that he alongwith Gangadhar had assaulted Suresh and the appellant Manik with an axe. He denied that while assaulting Manik, his axe hit his father-in-law. P. W. 3 Jijabai has also denied that Prakash was having an axe. Though she was questioned about the injury to Manik, the appellant, and others, but she was not cross-examined on the question as to who had caused the said injuries nor any suggestion was given to her. She denied the suggestion that her husband was having a stick. The appellant/ accused in his statement u/s 313 of the Cr. P. C. does not also attribute injury on his person to the deceased.

9. In addition to the eye-witnesses account, the shirt Exh. 6 of appellant which was attached by the police had innumerable blood stains ranging from 0.1 to 10 cms. diameter spread all over. The blood was of human origin. Surprisingly the report of Chemical Analyser does not at all speak of blood grouping in respect of the same, but innumerable blood stains ranging from 0.1 to 10 cms. spread all over shirt (Exh. 6) is incriminating circumstance against the appellant, in addition to the eye witness account of the witnesses which could not be shakened during the course of cross-examination.

10. Coming to the submission relating to single blow and that the offence would at the most fall u/s 304 Part 1 of the Indian Penal Code, we shall first refer to the law laid down by the Apex Court in this respect. The Apex Court in Mahesh Balmiki alias Munna v. State of Madhya Pradesh , has laid down as under :

There is no principle that in all cases of single blow Section 302 of the I. P. C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 of the 1. P. C. in some cases under Section 304 of the I. P. C, and in some other cases under Section 326 of the I. P. C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him.

The same principle was reiterated in the case of Mahesh Balmiki alias Munna v. State of Madhya Pradesh . In this case, it was found that even though a single blow was given with knife, the said blow was given on the chest on the left side of the sternum between the costal joint of the 6th and 7th ribs, fracturing both the ribs and the said injury had gone through the sternum, pericardium, anterior and posterior after passing the ribs and thereafter entering the liver and perforating a portion of stomach. The total depth of the wound was 19 cm. It was held that exception 4 would not be applied to the facts of the case.

11. In the case before us the incident in question had taken place in the background of the earlier litigation and the threat given by appellant and others on the previous day of the incident on which day P. W. 1 Vimal alongwith P. W. 2 Suresh and P. W. 3 Jijabai, had gone to Washim Court where she deposed against the appellant and others. The appellant and others threatened them as a result of which they had to stay over night at Washim. The appellant was seen making rounds near the house of the deceased. Ultimately he not only came to question the deceased but he also brought an axe alongwith him and he assaulted the deceased with the sharp edge of the axe on the vital part of the body namely 'Head'. Doctor Vilas Rajaram Ingale who conducted post-mortem found incised wound on occipital region transverse 3" x 2" x 1" margin sharp, underlying skull fracture. Beside that he found other two injuries. According to him, injury No. 1 could be caused by hard and sharp object and was possible by axe in question. He also stated that the injury No. 1 was sufficient to cause death in the ordinary course of nature. Thus, the assault was not only premeditated but with the sharp edge of the axe which is a deadly weapon on the head region of the deceased which is vital part of the body and as a result of the axe blow, not only the skull was fractured but there was subdural haemotoma with laceration 4" x 3" on the occipital lobe. Thus, the intention to kill is established by the prosecution as against the appellant.

12. For the aforesaid reasons, we do not find any merit in this appeal and the appeal is hereby rejected.