Jagdishkumar Rambabu Jat vs The State Of Maharashtra
2012 Latest Caselaw 396 Bom

PPD

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                                                                  APEAL.1524-04.JUDGMENT.doc



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION




                                                                                   
                          CRIMINAL APPEAL NO.1524 OF 2004
                                 [THROUGH JAIL] 




                                                           
       

      Jagdishkumar Rambabu Jat,                        ]
      Nasik Road Central Prison, Nasik                 ]               ..Appellant




                                                          
                                                                       [Orig. Accused]
                 Versus

      The State of Maharashtra                         ]               ..Respondent




                                            
                              ig      ....
      Mr.  Arfan Sait, Advocate (appointed) for the Appellant.
      Mr. S.A. Shaikh, APP for the Respondent - State.
                                      ....
                            
                               CORAM :   SMT. V. K. TAHILRAMANI, &  
                                             A. R.  JOSHI,  JJ. 

DATE : 26th NOVEMBER, 2012

ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]

1. The appellant/orig. accused has challenged the

judgment and order dated 27.7.2004 passed by the learned

Additional Sessions Judge, Greater Bombay in Sessions Case

No.211 of 2000. By the said judgment and order, the learned

Sessions Judge convicted the appellant under Sections 302 and

354 of IPC. For the offence under Section 302 of IPC, he was

sentenced to suffer imprisonment for life and to pay fine of

Rs.1000/-. For the offence punishable under Section 354 of IPC,

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he was sentenced to suffer RI for one year. Learned Sessions

Judge directed both the substantive sentences of imprisonment

to run concurrently.

2. The prosecution case, briefly stated, is as under :-

PW-2 Rupa, a young girl of about 18 years of age at the

time of the incident, was residing along with her family

including her mother PW-3 Nirmala in Maa Saheb Ambedkar

Nagar Slum, Mumbai. Deceased Islam and his wife PW-1 Nafisa

were residing in the room adjoining to the room of PW-2 Rupa.

Opposite the room of Rupa, there was a shoe making factory.

The accused was working in the said shoe making factory. On

28.11.1999 at about 9:00 a.m., PW-2 Rupa had gone to fetch

water from the public water tap. PW-1 Nafisa and her husband

deceased Islam had also come to the tap to take water. PW-2

Rupa filled water in a pot. While she was returning home on

the way, she came across the accused. The accused smiled at her

and then he caressed her cheek with his hand. PW-2 Rupa went

home and narrated the incident to her parents. Her parents then

went to question the accused as to why he did the said act. In a

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little while, PW-1 Nafisa and Islam also came to the spot - where

the accused was standing at the door of the shoe making factory.

Islam also asked the accused why he had teased Rupa. Islam

told the accused why the accused used to tease girls from that

locality and he questioned the accused whether he did not have

mother or sister in his house. On hearing this, the accused got

angry. He went inside the factory and came with a rapi i.e. a

sharp edged weapon and pierced it in the abdomen of Islam. As

Islam tried to avoid further blows, he sustained injuries on his

hand and arm. Thereafter the accused ran away from the spot.

PW-1 Nafisa took her husband to the police station and from

there, she took her husband to Sion Hospital. Her husband was

admitted to the ICU Unit. FIR of PW-1 Nafisa came to be

recorded. At about 4:30 p.m or 4:45 p.m., her husband

succumbed to his injuries. The dead body of Islam was sent for

postmortem. One Dr. Samberkar conducted the postmortem on

the dead body of Islam. The doctor noticed the following

external injuries on the dead body of Islam :

i) a incised wound 4 cm. long, 5 cm. from the umbilicus with

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4 sutures intact on right side of abdomen.

ii) 12 cm. long incised wound, obliquely placed on the inner

surface of right forearm 5 sutures intact.

iii) 5.5 cm long incised wound, obliquely placed on the inner

surface of right elbow joint 3 sutures intact.

iv) 3.5 cm X 0.1 cm incised wound on the palmar surface of

left hand, with 2 cm tailing.

v) 2.5 cm X 0.3 cm. incised wound on the inside of left index

finger at the base.

vi) 22 cm long surgical wound in the mid-line of abdomen with

16 sutures intact.

. The Doctor noticed the following internal injuries: (I)

Hamotoma diffused and spread over the mesentric inferior

mesentric vein sutures which are intact. The operative finding as

per the indoor paper are as follows : - 4 ltrs of hemoperitoneum

inferior mesentric vessels cut partially and suturing done.

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. According to the Doctor going by external injuries, the

victim must have been stabbed giving 4 to 5 blows and injury

mentioned in Sr. No.1 had penetrated right upto abdomen cutting

mesentric vessels causing loss of blood profusely. As per the

postmortem report the cause of death was hemorrhagic shock

following stab injuries and the death was unnatural. After

completion of investigation, the charge-sheet came to be filed.

3.

Charge came to be framed against the appellant/orig.

accused under Section 302 of Indian Penal Code for causing

death of Islam and under Section 354 of IPC for outraging the

modesty of PW-2 Rupa. The accused pleaded not guilty to the

said charge and claimed to be tried. His defence, as revealed

from the cross-examination of witnesses, is that the deceased

had fall near the water tap and sustained injuries. After

considering the evidence adduced by the prosecution and the

defence of the accused, the learned Sessions Judge convicted and

sentenced the appellant, as stated in para-1 above, hence, this

appeal.

4. We have heard Mr. Arfan Sait, learned Advocate

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(appointed) for the appellant and Mr. S.A. Shaikh, learned A.P.P.

for the State. We have gone through the record pertaining to the

present case. After carefully considering the matter, we are of

the opinion, for the below mentioned reasons, that there is no

merit in this Appeal and the same deserves to be dismissed.

5. There are four eye witnesses in the present case i.e.

PW-1 Nafisa who is the wife of the deceased, PW-2 Rupa the girl

whose modesty was outraged by the accused, PW-3 Nirmala

mother of Rupa and PW-5 Marium who was residing nearby.

6. As the prosecution case has been taken from the

evidence of PW-2 Rupa in her examination-in-chief, we do not

wish to overburden this judgment by repeating the same here in

detail. Suffice to say that her evidence shows that her modesty

was outraged by the accused and the accused assaulted Islam

with a rapi a number of times. Nothing has been elicited in the

cross-examination of this witness so as to disbelieve her

testimony. Hence, we are of the opinion that we can safely rely

on her testimony.

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7. The evidence of PW-1 Nafisa shows that she came to

know through PW-3 Nirmala that Rupa was teased by the

accused. Her husband too went to tell the accused not to

indulge in the act of teasing girls of the locality. The accused

became angry and the accused went inside the shoe factory and

came out with a rapi. He pushed rapi in the abdomen of her

husband. Her husband tried to save himself from further blows

and received injuries on hand. Thereafter the accused ran away.

8. The evidence of PW-3 Nirmala shows that her daughter

Rupa came home and informed her that the accused had smiled

at her and caressed her cheek with his hand. Her husband

questioned the accused about this act. Their neighbour Islam

also told the accused why he teases girls from that locality and

he questioned the accused whether he did not have mother or

sister in his house. On hearing this, the accused got angry. The

accused went inside the factory and came back with a rapi i.e. a

sharp edged weapon. He pierced the rapi in the abdomen of

Islam. As Islam tried to avoid further blows, he sustained

injuries on his hand and arm. Thereafter the accused ran away

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from the spot

9. The evidence of PW-5 Marium who is an eye witness

to this incident also shows that the accused assaulted Islam in

the abdomen with rapi. She has also stated that the said accused

gave further blows to Islam which landed on his hand. We find

that the evidence of all eye witnesses inspires implicit

confidence. Hence, we have no hesitation in relying on the

same.

10. We have already stated above the defence taken by the

accused that is the deceased fell on the tap and sustained

injuries. On going through the injuries sustained by Islam -

which we have reproduced in para-2 above, it is clear that the

injuries could not have been caused due to fall over a tap.

11. Mr. Arfan Sait, submitted that the case would not fall

under Section 302 of IPC, but it would fall under Section 304

(Part II) of IPC. He submitted that the accused had inflicted only

one blow on the vital part of the body i.e. abdomen of the

deceased. He further submitted that this blow was inflicted

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when Islam told him why he used to tease girls from that

locality and he questioned the accused whether he did not have

mother or sister in his house. Mr. Sait submitted that on account

of this, the accused was provoked and he went inside the shoe

factory, brought rapi and assaulted Islam in the abdomen. He

further submitted that there was no premeditation, but the

accused immediately went inside the factory and brought rapi

and assaulted Islam in the abdomen. He submitted that there

was absence of premeditation, there was provocation given to

the accused on account of Islam uttering those words to him and

the fact that there was only one blow on the vital part of the

body clearly brings the case under Section 304 (part II) of IPC.

12. In view of the submissions made by Mr. Arfan Sait, we

have to decide the pivotal question that is whether there was

intention to cause death and as to whether the case falls under

Section 302 of IPC or 304 (part II) of IPC. He has placed

reliance on the decision of the Supreme Court in the case of

Pulicherla Nagaraju alias Nagaraja Reddy vs. State of Andhra

Pradesh, reported in AIR 2006 SUPREME COURT 3010. He

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pointed out that in the said case also there was one blow on the

vital part of the body i.e. neck. The said injury was caused by

stabbing. He pointed out that the facts are similar to one in the

present case. However, on carefully going through the decision,

we find nothing therein which would be of any help to the

appellant in the present case. It is further noticed that in the

said decision, the conviction and sentence under section 302 of

IPC was confirmed.

13. In many petty or insignificant matters like straying of

cattle, quarrel of children, utterance of a rude word or even an

objectionable glance, may lead to altercations and group clashes

culminating in death. Usual motives like revenge, greed, jealousy

or suspicion may be totally absent in such cases. There may be

no intention. There may be no pre-meditation. In fact, there may

not even be criminality. At the other end of the spectrum, there

may be cases of murder where the accused attempts to avoid the

penalty for murder by attempting to put forth a case that there

was no intention to cause death. It is for the courts to ensure that

the cases of murder punishable under section 302, are not

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converted into offences punishable under section 304 Part I/II, or

cases of culpable homicide not amounting to murder, are treated

as murder punishable under section 302. The intention to cause

death can be gathered generally from a combination of a few or

several of the following, among other, circumstances : (i) nature

of the weapon used; (ii) whether the weapon was carried by the

accused or was picked up from the spot; (iii) whether the blow is

aimed at a vital part of the body; (iv) the amount of force

employed in causing injury; (v) whether the act was in the

course of sudden quarrel or sudden fight or free for all fight; (vi)

whether the incident occured by chance or whether there was

any pre- meditation; (vii) whether there was any prior enmity or

whether the deceased was a stranger; (viii) whether there was

any grave and sudden provocation, and if so, the cause for such

provocation; (ix) whether it was in the heat of passion; (x)

whether the person inflicting the injury has taken undue

advantage or has acted in a cruel and unusual manner; (xi)

whether the accused dealt a single blow or several blows. The

above list of circumstances is, of course, not exhaustive and there

may be several other special circumstances with reference to

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individual cases which may throw light on the question of

intention.

14. In this case, as noticed above, the appellant was

carrying a rapi - a dangerous weapon. The deceased was

unarmed. There was no provocation, sudden quarrel or fight.

There was no indication of any cause for an apprehension on the

part of the appellant that the deceased may attack him. The

stabbing was with great force, causing an injury on a vital part of

body, sufficient in the ordinary course of nature to cause death.

The description of the injuries and cause for death given in the

postmortem notes is telling. The postmortem notes shows a

severe injury in the abdomen. Besides which there were four

other injuries on the right forearm, right elbow joint, left hand

and the index finger of left hand. The injuries on the right elbow

and right forearm was such that they were required to be

sutured. Large number of injuries on the forearm, elbow and

hands of the deceased show that the accused was trying to

assault the deceased, whereas the deceased was making

desperate effort to see that the blow does not fall on a vital part

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of his body by avoiding every blow with his hands. This clearly

goes to show that the accused did not deal a single blow during

that assault but dealt various blows on the body of the accused

at least five in number. This shows the intention of the accused.

15. Thus in this case looking to the nature of the weapon

used, number of injuries sustained by Ismail, nature of the

injuries and the other factors show that the intention was to

cause bodily injuries which is sufficient in the ordinary course of

nature to cause death. In the present case, the circumstances to

bring the case under exception 1 or even exception 4 to Section

300 of IPC do not exist.

16. We accordingly find no reason to interfere with the

decision of the Sessions Court convicting and sentencing the

appellant. Hence, the appeal is dismissed.

17. Office to communicate this order to the appellant who

is in jail.

18. At this stage, we wish to place on record our

appreciation for the way in which Mr. Arfan Sait, learned

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appointed Advocate appearing for the appellant has conducted

the matter. He was thoroughly prepared with the matter and he

has very ably argued the matter. We quantify his fees to be paid

by the High Court Legal Services Committee, Bombay at

Rs.2500/-(Rupees Two Thousand Five Hundred Only). The

same to be paid to the learned Advocate Mr. Arfan Sait within a

month from today.

(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)

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