Pramod Alias Balya S/O Vithal ... vs State Of Maharashtra
2002 Latest Caselaw 680 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant had been tried and held guilty for the murder of Sanjay Jagannath Khobragade under Section 302 of the Indian Penal Code. The prosecution in all examined seven witnesses in support of the said charge, out of which, four prosecution witnesses did not support the prosecution case, three of the said witnesses are panchas and one of them namely, P.W. 1 Ganesh Dadarao Kamble was an eye-witness. The trial Court, however, has accepted the evidence of P.W. 2 Dr. Arvind Nilkanthrao Bhure, P.W. 6 Usha Vishwanath Ramteke and P.W. 7 Gangaprasad Sarjuprasad, Gautam.

2. The prosecution case mainly rests on the dying declaration recorded by P.W. 7 Gangaprasad Sarjuprasad Gautam in the presence of P.W. 2 Dr. Arvind Nilkantrao Bhure, as also oral dying declaration made to P.W. 6 Usha Vishwanath Ramteke,

3. The case of the appellant is that before the date of the incident there was quarrel between him and Sanjay Khobragade when he had come to his house and abused his sister and on the date of the incident he was demanding money from him, as he was owing some amount to him but they did not assault him.

4. Learned Advocate for the appellant urged before us that P.W. 2 Dr. Arvind Nilkanthrao Bhure has not certified that the deceased was conscious and in mentally fit condition at the time of recording of dying declaration; that the dying declaration has been recorded by Police Officer even though two Executive Magistrates were available at the station and even though the Police Officer had asked P.W. 2 Dr. Arvind Nilkanthrao Bhure to record the dying declaration, but he did not do so. According to him, the dying declaration cannot be accepted nor oral dying declaration alleged to have been made by the deceased to P.W. 6 Usha Ramteke, who is related to the appellant. Alternatively, it was argued that only one fatal injury was inflicted in a scuffle and that the appellant had no intention to kill, on account of which, the offence would fall under Section 304, Part-II of the Indian Penal Code, even if the prosecution case is accepted in toto. In support of his submission he relied upon in Masumsha Hasanasha Musalman v. State of Maharashtra, and Bhera v. State of Rajasthan, .

5. Learned A.P.P., on the other hand, has urged before us that P.W. 2 Dr. Arvind Bhure has categorically stated that he had examined the deceased who was conscious and mentally fit to record dying declaration; that , the Police Officer tried to obtain the presence of the Executive Magistrate did not come and that the Police Officer had also made request to P.W. 2 Dr. Arvind Bhure to record the dying declaration, who declined and in the circumstances the dying declaration was recorded by the Police Officer P.W. 7 Gangaprasad Gautam in presence of P.W. 2 Dr. Arvind Bhure. There is absolutely no reason to discard the same. He also states that the prosecution case is further corroborated by oral dying declaration made by the deceased to P.W. 6 Usha Ramteke. On the alternate submission made by the learned Advocate for the appellant, it is urged that there was no scuffle and the deceased was only demanding money given by him to the appellant and the appellant repeatedly stabbed him with knife resulting in four injuries on his person. He, therefore, contends that the appellant killed the deceased and the question of single blow, as argued by learned Advocate for the appellant, does not arise. He has placed reliance on the judgment of Apex Court in Mahesh Balmiki v. State of M.P., . He, therefore, contends that the appeal be dismissed.

6. We have already pointed out that the prosecution case rests upon the dying declaration as well as oral dying declaration. In respect of the written dying declaration the prosecution has examined P.W. 2 Dr. Arvind Bhure and P.W. 7 Gangaprasad Gautam. Therefore, we shall now refer to the evidence of these witnesses. The P.W. 7 Gangaprasad Sarjuprasad Gautam has stated that on 8-7-96 at about 8.45 p.m. Sanjay Khobragade was brought by autorickshaw to Police Station by Usha and one Vishwanath. The condition of Sanjay was very much critical and therefore, he took Sanjay to hospital immediately. Sanjay was taken to the hospital and P.W. 7 Gangaprasad also immediately went to the hospital. He made enquiries with Medical Officer Bhure, as to whether Sanjay was in a condition to make a statement. P.W. 2 Dr. Arvind Bhure examined Sanjay and he found that he was in a fit condition; to give statement. P.W. 2 Dr. Arvind Bhure advised him to record the dying declaration of Sanjay immediately as his condition was serious. Accordingly, P.S.I. P.W: 7 Gangaprasad Gautam recorded dying declaration of Sanjay in questions and answers form in the presence of P.W. 2 Dr. Arvind Bhure. In this dying declaration, the deceased stated that the appellant stabbed with knife on abdomen and Other parts of the body and the reason for assault was in respect of amount due. PSI Gangaprasad Gautam obtained certificate from Dr. Arvind Bhure that the patient was conscious during recording of dying declaration. To a Court question, he stated that he had orally instructed Police Head Constable to arrange for Executive Magistrate to record dying declaration. When he reached the Hospital, he found that the condition of Sanjay was very critical. Till that time Executive Magistrate had not reached the hospital, on account of which, he recorded the dying declaration of Sanjay. He admits that this fact is not mentioned in the station diary and mere fact that the name was not mentioned in the station diary is not sufficient to discard his testimony that he did make an attempt to requisition the Executive Magistrate for the purpose of recording dying declaration, but in view of the critical condition of the deceased, he had no other option but to record the dying declaration. He also stated in cross-examination that he had requested Medical Officer to record dying declaration of Sanjay, but in turn, he requested him only to record the dying declaration. Accordingly, dying declaration was recorded by PSI P.W. 7 Gangaprasad Gautam in presence of Dr. Arvind Bhure, who fully supports and corroborates what is stated by PSI P.W. 7.

7. P.W. 2 Dr. Arvind Nilkanthrao Bhure found the following injuries on the person of the deceased.

1) Stab wound over left abdominal flank in left renal area, 3 cms x 1 1/2 cms x cavity deep.

2) Incised wound over left arm ovel shaped middle l/3rd 2 1/2 cms x 1 cm, muscle.

3) Incised wound on left axilla pit verticle 2 1/2 cms x 1 cm, muscle deep.

4) Incised wound on left infra-axillary region verticle 1 cm x 1/2 cm, muscle deep, 5 cms below injury No. 3.

8. According to him the injuries in question were possible by weapon Article 1 namely 'knife'. He has further stated that at about 8.55 p.m. P.S.O. Mr. Gautam came to Hospital to record dying declaration of Sanjay Khobragade and he certified that he was in a fit condition for recording dying declaration. He further stated that he thoroughly examined Sanjay Khobragade and found that he was fit to record statement. He also stated that the patient was conscious and mentally fit to record dying declaration. He further clarified that fit means he was conscious and mentally fit. He also confirms that the dying declaration was recorded in his presence and that Sanjay Khobragade had stated that Pramod Shendre (accused) assaulted him by knife on his abdomen and hand half before an hour as he was demanding due amount. He also stated that the thumb impression of Sanjay was obtained by P.S.I. on the dying declaration. He further states that at the end of dying declaration, he made endorsement that Sanjay was fit during and after recording statement.

9. In view of the above, there is absolutely no reason to discard the testimony of PS1 P.W. 7 Gangaprasad Gautam or P.W. 2 Dr. Arvind Bhure. The dying declaration, therefore, stands proved. In addition there is oral dying declaration which is made by the deceased before P.W. 6 Usha Ramteke, who is related to the deceased. She has stated that her son Atish came and informed that Sanjay had been assaulted. He went to the spot where Sanjay was lying injured, said Sanjay told her that Pramod Shendre (accused) stabbed him by knife and that the assault was on account of point of money. There was no challenge that no such statement was made by the deceased to P.W. 6 Usha Ramteke. There is no reason whatsoever to discard her statement which stands proved inasmuch as the deceased had made oral statement to P.W. 6 Usha Ramteke informing her that Pramod Shendre (appellant) had stabbed by knife on account of money.

10. The appellant has, in fact, in his statement under Section 313 of the Code of Criminal Procedure, to question No. 45, stated that on the date of the incident deceased Sanjay was demanding money from him but he denied to have assaulted him. The presence of the appellant is thus admitted as also that the deceased was demanding money from him. The prosecution case is that the deceased had given money to the appellant which he was demanding and on account of the same appellant gave him four knife blows. The appellant has nowhere stated nor it was suggested to anyone that there was any scuffle. The appellant speaks about a scuffle of some other day when Sanjay came to his house. The story of scuffle put forth by the learned Advocate for the appellant has no foundation whatsoever. Coming to the alternate plea put up by the learned Advocate for the appellant, learned Advocate for the appellant has relied upon Masumsha's case (AIR 2000 SC 1876) (cited supra). In this case, the appellant is said to have inflicted three incised wound with jambiya, out of which one blow was fatal, as also number of abrasions. The Apex Court found that the trial Court has taken the view that the other injuries could have been caused during the scuffle. In the case before us no scuffle had taken place and the appellant straightway inflicted four knife blows on the person of the deceased who demanded his money back. The appellant was carrying his knife with him and upon demand of money instead of returning the money, he inflicted four knife blows on the person of the deceased to silence him for ever, so that he cannot in future make any demand for money. The intention to kill is, therefore, clear. The ruling upon which reliance has been placed by the learned Advocate cannot be applied to the case under consideration.

11. Likewise the other ruling on which reliance has been placed by the learned Advocate for the appellant cannot be applied to the facts and circumstances of the case which are different. In that case there was a quarrel and accused suddenly took out knife and in anger gave one blow of knife on chest. In these circumstances, it was held that requisite intention to kill was absent.

12. The Apex Court in Mahesh Balmiki alias Munna v. State of M.P., , has laid down :

"... There is no principle that in all cases of a single blow Section 302, IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302. IPC, in some cases under Section 304. IPC and in some other cases under Section 326, IPC. 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 nonvital 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...."

13. The facts and circumstances referred to above clearly establish that the appellant had intention to kill the deceased. Therefore, the conviction and sentence under Section 302 of the Indian Penal Code by the impugned judgment cannot be interfered with.

14. The appeal is accordingly dismissed.