Arun Kisan Madavi vs The State Of Maharashtra
2002 Latest Caselaw 622 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant was tried for the murder of Prem Haridas Dhole under Section 302 of the I.P.C. The learned Additional Sessions Judge, Nagpur vide judgment dated 30th September, 1997 found the appellant guilty under Section 302 of the I.P.C. and sentenced him to rigorous imprisonment for life as also to pay fine of Rs. 5.000/-, in default to suffer rigorous imprisonment for one year. The period during which the appellant was in custody during trial was set off under Section 428 of the Cr.P.C.

2. The prosecution case, in brief, is that about 15 days prior to incident in question one Omprakash father-in-law of the appellant was arrested by the Government Railway Police, Nagpur in a case of theft of lacs of rupees. In connection with the said fact, the deceased who was a porter of Railway Station, Nagpur was asked by G.R.P. Police to keep a watch on the appellant, being son-in-law of Omprakash. The appellant came to know of the same and on 15.6.1996, he came to the house of the deceased and threatened his wife, informing her that her husband Prem Dhole - deceased was acting as informer for Railway Police and he would teach a lesson to him. On 18.6.1996, at about 8.00 a.m., the deceased - Prem Dhole had gone from his house towards the house of the appellant and within 15 minutes or so, he was found murdered. It appears that the incident was seen by number of eye witnesses, but all turned hostile and they did not support the prosecution case. The prosecution case mainly rests upon the testimony of P.W. 1 - Rajesh Dhole, brother of the deceased, the testimony of P.W. 3 - Shashikala wife of the decease, P.W. 5 Sopan Khobragade co-brother of the deceased, and recovery of the dagger as also blood stained banian of the appellant recovered at his instance from his house, in respect of which panch P.W. 2 Diwakar has been examined. The learned Additional Sessions Judge, accepted the evidence of the said witnesses and has recorded the conviction of the appellant which is the subject-matter of challenge before us.

3. Learned Advocate for the appellant took us through the evidence of the witnesses an i urged before us that the incident dated 15.6.1996 has not been proved through any independent evidence in as much as the prosecution has not examined anyone from GRP to suggest that the deceased was asked to keep watch over the appellant. He has next contended that the evidence of P.W. 5 Sopan does not prove that the appellant had inflicted the injuries with the knife on the deceased and his evidence is not sufficient in order to prove the charge of murder as against the appellant.

4. It is next contended by learned Advocate for the appellant that even though the blood was detected on the dagger as also the banian of the appellant, yet the blood grouping has not been proved, as a result of which the circumstance cannot be used against the appellant. Lastly, it is urged before us that even according to the prosecution case there was a quarrel between the appellant and the deceased and it is in this quarrel that the appellant is alleged to have given a knife blow to the deceased, which unfortunately landed on his chest and even though the injuries was only cavity deep yet it had cut pericardial and the left ventricle of the heart. He, therefore, contends that alternatively, the case of the appellant comes under exception 4 of Section 300 of the I.P.C., as a result of which the offence would fall under Section 304 Part I at the most, since intention to murder cannot be attributed to the appellant in the circumstances.

5. Learned A.P.P., on the other hand, urged before us that on account of the past record of the appellant, the eye witnesses were scared as a result of which they have not supported the prosecution case. In this respect, learned A.P.P., has pointed out that the appellant had been convicted earlier for offence under Section 307 of the I.P.C. and had undergone sentence of seven years. Besides that the appellant was externed from Nagpur District for two years in the year, 1989, besides a number of other prosecution cases were against him. According to learned A.P.P., the evidence of P.W. 1 Rajesh Dhole and P.W. 3 Shashikala proves that on 15.6.1996, the appellant had threatened the wife of the deceased that he would teach the deceased a lesson, since he was acting as informer for Railway Police. Learned A.P.P., has further submitted before us that the appellant was seen running with a knife after the deceased by P.W. 5 Sopan. His statement had been recorded by the Police on the date of the incident itself and when Sopan P.W. 5 raised shouts, the appellant returned back. This dagger has been identified by P.W. 5 Sopan, on which human blood was found. It is also pointed out that on the banian of the appellant, which was attached at his instance from his house, blood of human origin was found, though blood grouping was inclusive. According to her, the evidence on record establishes that the appellant is the author of the injury who was running after the deceased with the dagger in his hand with a view to assault him further, but on account of shouts raised by P.W. 5 Sopan, he had to go back. According to learned A.P.P., the appellant had the intention to kill. Even on 15.6.1996, he had threatened the wife of the deceased that he would teach the deceased a lesson; and that the injury was inflicted on the heart region which cut the pericardial ventricle, resulting in death. Therefore according to her the case squarely falls under Section 302 of the I.P.C. and no case is made out for interference.

6. The prosecution had relied upon the testimony of number of eye witnesses namely P.W. 6 Siddharth, P.W. 10 Raju, and P.W. 11 Kadu but none of them supported the prosecution case. The prosecution case, therefore rests upon the testimony of P.W. 1 Rajesh, P.W. 3 Shashikala and P.W. 5 Sopan; recovery of dagger as also banian on which stains of blood were found. In respect of which Panch P.W. 2 has been examined.

7. P.W. 3 Shashikala has stated that on 15.6.1996, in the afternoon at about 3.30 p.m. to 4.00 p.m., the appellant who is the son-in-law of Omprakash had come to her house. The said Omprakash was arrested by the Police in connection with theft committed by him in the Railway Station, and the Police had made enquiries of Omprakash and the appellant from her husband. The appellant had been to her house on 15.6.1996 and had threatened that her husband was acting as informer for Railway Police and he would teach a lesson to him. There is no cross-examination whatsoever on this part of the deposition of P.W. 3, in this respect. The prosecution has also examined P.W. 1, Rajesh who is the brother of the deceased, who has stated that Omprakash known as 'Doctor' has committed theft in Railway Station and he was arrested by Railway Police about 15 days prior to the murder of his brother. He further states that when his brother was serving as Coolie in Nagpur Railway Station, he was asked by GRP Police to keep a watch on the accused being the son-in-law of Omprakash. According to him his brother had gone to the house of the appellant on 2 to 4 occasions. On 15.6.1996, the appellant had been to his brother's house and had abused his wife and had given threatening of which Shashikala had reported to P.W. 1 Rajesh. There is no cross-examination on this part of the testimony of P.W. 1 Rajesh.

8. In view of the testimony, of P.W. 1 Rajesh and P.W. 3 Shashikala it stands proved that on 15.6.1996, the appellant had threatened P.W. 3 Shashikala because the deceased was acting as informer for Railway Police that he would teach him a lesson.

9. Coming to the incident which had happened on 18.6.1996, both P.W. 1 and P.W. 3 have stated that they were informed of the assault by the appellant on the deceased and when they went to the spot they saw that the deceased Prem was having an injury on his chest and he was already dead. According to both these witnesses, the appellant had gone towards the house of the deceased and after 15 to 20 minutes it was reported to them that the deceased had been assaulted by the appellant. In this respect, the evidence of P.W. 5 Sopan is of considerable importance. He has stated that the incident happened on 18.6.1996 at about 8.00 p.m. and he noticed that the deceased came running from the side of Dahikar Zenda and fell in front of the house of Vijay. He noticed that the appellant had followed the deceased and the appellant was having a dagger in his hand. P.W. 5 Sopan raised shout, as a result of which the appellant returned back. He went near the deceased and he found blood near his chest and he was found dead. The only improvement which was brought in his deposition before the Court was that he had not stated before the Police that the deceased had come from the side of the Dahikar Zenda. There was practically, no cross-examination on the deposition of this witness that he had seen the appellant following the deceased with a dagger in his hand and when he raised shout, the appellant returned back except for bare suggestion which was negatived by the witness. The evidence of this witness assumes importance because the Police had recovered the dagger as also the blood stained banian of the appellant from his house, which is spoken by pancha P.W. 2 and proved of by him. The Chemical Analyser's Report shows human blood on the dagger and also on the banian of the appellant. According to the Chemical Analyser's Report, the dagger was stained with human blood on blade and banian of the appellant Exh. 4 had moderate number of blood stains ranging from about spread mostly on front lower portion and appear to be washed thoroughly which means that attempt was also made to destroy the evidence. The evidence is thus that the appellant was seen running with a dagger after the deceased and upon P.W. 5 shouting the appellant, he returned back. The deceased fell down and immediately thereafter, P.W. 5 Sopan saw the injuries on the chest of the deceased. Blood was found on the dagger. The dagger has been identified by P.W. 5. Blood was also found on banian of the appellant. From this evidence the inescapable conclusion is that it is the appellant who is the author of the injury on the chest of the deceased.

10. Learned Advocate for appellant has urged before us that keeping in mind that there is only single blow, it can be said that the appellant had no intention to kill the deceased and that the said injury even according to the prosecution case has been caused in a quarrel between the appellant and the deceased. Though P.W. 1 Rajesh and P.W. 3 Shashikala have spoken of the fact that they were informed that there was a quarrel going on between the deceased and the appellant, yet the said evidence is hearsay in nature. In fact, P.W. 3 had spoken of some quarrel at the public tap between the appellant and the deceased, but during cross-examination it was brought on record that she had not stated this fact to the Police and as such it was improvement and the deposition on the Court could not be considered. Besides this, a simple quarrel would not justify inflicting of a knife on the vital part of the body and we have to view the entire episode in the background that the appellant had on 15.6.1996 threatened that he would teach the deceased a lesson, since he was acting as informer for the Railway Police. In these circumstances, it cannot be said that the appellant had acted without pre-meditation or had not taken undue advantage. The appellant had already made his intention clear on 15.6.1996 that he is going to teach a lesson to the deceased and it is under this pretext, he assaulted the deceased with a knife on the vital part of his body. The injury was inflicted in the chest region and had torn plura, pericardium and left ventricle of the heart was punctured. The death was due to shock and hemorrhage on account of the injury to the heart, which according to P.W. 7 was sufficient in ordinary course of nature to cause death. According to him, the injuries in question was possible by dagger (Article 3). The intention has to be gathered from the weapon used, the part of the body on which the injuries are inflicted as also the force with which it is used. In the case under consideration, the plura and pericardium region and left ventricle of the heart were cut. There is also evidence on record that the appellant was still chasing the deceased even after infliction of one injury on his chest and he was running after the deceased with a dagger in his hand, which was obviously to inflict another injury, but on account of the intervention of P.W. 5, he had to retreat. Thus, the intention of the appellant was to kill the deceased. We, therefore, did not find any merit in the submission of the learned Advocate for the appellant that the offence would at the most fall under Section 304 Part I and not under Section 300 of the I.P.C.

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