Bombay High Court
Vijay Nagu Kamble vs The State Of Maharashtra on 19 September, 2016
Bench: S.S. Shinde
56.2013Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.56 OF 2013
Vijay s/o. Nagu Kamble,
Aged 25 yrs., Occu.Labour,
R/o. Indira Nagar, Loha,
Tq.Loha, Dist.Nanded. APPELLANT
VERSUS ig
The State of Maharashtra,
(Copy to be served on
Public Prosecutor, High Court
of Judicature of Bombay,
Bench at Aurangabad). RESPONDENT
...
Mr.Nikhil S. Tekale, holding for Mr.Vinay A.
Sarwade, Advocate for the appellant
Mr.M.M.Nerlikar, APP for Respondent - State.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 24.08.2016
Pronounced on : 19.09.2016
JUDGMENT: (Per S.S.Shinde, J.):
This Appeal is filed by the original
accused, challenging the judgment and order
dated 21.12.2012 passed by the Additional
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Sessions Judge, Kandhar in Sessions Case No.
25/2011, thereby convicting the appellant for
the offence punishable under Section 302 of
the Indian Penal Code ("IPC" for short) and
to suffer imprisonment for life and to pay
fine of Rs.1000/- in default to suffer
further rigorous imprisonment for six months.
2. The background facts for filing the
present Appeal, are as under:
It is the respondent's case that on
18.05.2011, the deceased Naroji Rangnath
Jadhav, resident of village Kiroda, had gone
to village Pimpalgaon along with Shankarrao
Mane and Chintaman Jadhav to attend a
marriage. After attending the marriage, they
proceeded to Loha by an auto-rickshaw. At
Loha, they went to one mutton shop and
purchased mutton and thereafter started
proceeding towards Loha bus stand by Indira
Nagar concrete road. There was a liquor shop
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located by the side of said road. The
appellant made demand of money to Naroji for
consuming liquor in front of that liquor
shop. Naroji retorted the appellant by saying
whether his father had kept money with him
(i.e. Naroji). As the appellant got annoyed
with the reply given by Naroji and since
Naroji did not give money, the appellant took
out a knife from his waist and stabbed on the
abdomen of Naroji. Naroji shouted as, 'melo-
melo, wachwa-wachwa' and fell down on the
road. Shankarrao Mane and Chintaman Jadhav
came forward towards the appellant, but as
the appellant was holding knife, they got
frightened. Several persons gathered on the
spot. Therefore, the appellant ran away from
the spot by holding blood stained knife in
his hand. Shankarrao Mane and Chintaman
Jadhav chased the appellant upto some
distance, but the appellant succeeded in
fleeing away.
56.2013Cri.Appeal.odt
3. Since the said incident did occur by
the side of country liquor shop, the servants
working in the said liquor shop informed
about the incident to one Pankaj Parihar, who
is residing just near to the spot. Pankaj
Parihar took the injured Naroji to the Rural
Hospital, Loha. The Medical Officer examined
Naroji and declared him as dead.
4. The incident of stabbing and death
of Naroji was informed to his maternal uncle
Bhagwan Bhaurao Kadam. He came to Loha
Hospital and saw the dead body of Naroji.
Thereafter, he went to the Police Station,
Loha, and lodged the First Information Report
("FIR" for short) against the appellant,
alleging that he committed murder of Naroji
by causing him stab injury by a knife due to
his refusal to pay money to the appellant for
consuming liquor. On the basis of FIR of
Bhagwan Bhaurao Kadam, Crime No.52/2011 came
to be registered against the appellant for
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the offence punishable under section 302 of
the IPC in Police Station, Loha. The initial
investigation was carried out by the Police
Inspector Phulzalke. He visited the Rural
Hospital, Loha and prepared inquest
panchanama of the body of Naroji and referred
the dead body to the Medical Officer for
postmortem. The P.I. Phulzalke prepared
panchanama of the spot where the incident had
occurred. There was pool of blood on the
spot. The P.I. Phulzalke collected the
samples of blood, blood mixed earth and plain
earth from the spot.
5. The Medical Officer of Rural
Hospital, Loha, conducted autopsy on the body
of the deceased Naroji. He noticed stab wound
having size 4 x 3 cm, cavity deep, oblique on
left iliac area leading to heavy blood loss
in cavity. He also noticed large retro
peritoneal haemotoma, sigmoid mesentery cut,
iliac vessel cut, sigmoid vessels cut and
56.2013Cri.Appeal.odt
perinephric fat cut leading to hemorrhagic
shock. The injuries noticed by the Medical
Officer were ante mortem. The Medical Officer
opined that the death of Naroji Jadhav was
caused due to stab injury, due to heavy blood
loss in cavity and due to hemorrhagic shock,
and accordingly, he issued the postmortem
report.
6. Further investigation of this crime
was carried out by the SDPO Mrs. Geeta
Chavan. She seized the clothes of the
deceased Naroji. She arrested the appellant
at 11.30 p.m. on 18.05.2011 and seized his
shirt and pant having blood stains. On
21.05.2012, when the appellant was in the
custody of Police, he made a disclosure
statement and offered to produce a knife
hidden by him in a bush. The appellant took
the police and panchas to the place where the
knife was hidden by him and then produced the
same before. The knife, which was produced by
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the appellant, was having blood stains. It
came to be seized. The seized knife was
forwarded by the Investigating Officer to
Dr.Mirzapure for his opinion. The
Investigating Officer recorded statements of
witnesses. The seized articles were forwarded
by the Investigating Officer to Chemical
Analyst for analysis and report. After
completion of the investigation, the
Investigating Officer submitted charge-sheet
against the appellant in the Court of
Judicial Magistrate First Class, Loha, for
the offence punishable under Section 302 of
the IPC.
7. The Judicial Magistrate First Class,
Loha, having noticed that the offence under
Section 302 of the IPC is exclusively triable
by the Court of Session, by his order dated
05.09.2011, committed the case to the Court
of Session for trial. The learned Additional
Sessions Judge, Kandhar convicted the
56.2013Cri.Appeal.odt
appellant for the above mentioned offence.
Hence this Appeal.
8. We have considered the
submissions of the learned counsel appearing
for the appellant and the learned APP
appearing for the respondent - State at
length. Though the prosecution examined as
many as 15 witnesses, Anjaiah (PW1) and Ravi
(PW2) turned hostile. Therefore, their
evidence is not useful to the prosecution
except their admission before the Court that
they saw a person lying on the road and many
persons gathered around him near the shop in
which both of them were working. Bhagwan
(PW4) lodged the FIR on receiving phone
call of Shankarrao Mane. He is not an eye
witness to the incident. However, on
receiving call from Shankarrao (PW3), he
visited Loha Police Station at about 4.00
p.m. on the day of the incident and lodged
the FIR (Exh.17). He also visited the
56.2013Cri.Appeal.odt
Hospital where the deceased was taken for
treatment.
9. The prosecution has proved that the
death of deceased Naroji Jadhav was homicidal
by examining Dr.Mirzapure (PW-13). He states
that he found 6 external injuries on the
person of the deceased Naroji. The said
injuries were ante mortem. According to him
the cause of death of Naroji was stab injury
leading to heavy blood loss in cavity (left
retroperitoneal structure). He specifically
denied the suggestion that the injury below
the ribs is possible if a person falls on the
edge of iron rod or a tin sheet. He also
denied the suggestion that the deceased would
have survived if given immediate medical
treatment and blood transfusion.
10. On the day of the incident,
Shankarrao (PW3) and Chintaman (PW6) were
with the deceased Naroji and had actually
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witnessed the incident. Shankarrao (PW3)
states that he along with deceased Naroji and
Chintaman (PW6) went to Loha in the auto
rickshaw at about 2.00 p.m. on 18.05.2011.
They purchased mutton and then went to Kalal
Country liquor shop. The appellant came near
them and demanded money from Naroji for
drinking liquor. In reply Naroji asked the
appellant as to why he was demanding money
and whether his father had kept money with
him. On receiving such reply from Naroji, the
appellant took out a knife and stabbed Naroji
in his stomach. On receiving stab injury,
Naroji shouted and fell down on the road and
then the appellant ran away. Then Naroji was
taken to the Hospital by Pankaj Parihar.
11. The learned counsel appearing for
the appellant invites our attention to the
cross examination of Shankarrao (PW-3) and
submits that the said witness has not stated
specific time when they visited the mutton
56.2013Cri.Appeal.odt
shop, the time of incident and also when they
came near the country liquor shop. It has
also come in his cross examination that
20-30 persons had gathered near the spot.
However, none of the independent witnesses
has been examined by the prosecution.
Therefore, the evidence of Shankarrao (PW3)
cannot be relied on.
12. The evidence of Shankarrao (PW3) is
most natural. On the day of the incident, he
was accompanying Naroji from his village till
the incident took place. It is not expected
from him, who is a rustic villager, that he
should state accurate timings of places
visited prior to the actual incident. On
considering his evidence in totality, we are
of the opinion that same deserves acceptance.
13. Chintaman (PW6) also states that
there was marriage of Santram Jadhav's
daughter Sonutai at Pimpalgaon on 18.05.2011.
56.2013Cri.Appeal.odt
He himself, deceased Naroji, Shankarrao (PW3)
and many villagers visited Pimpalgaon and
attended the marriage. The marriage was
solemnized at 11.30 a.m. and after having
lunch, they went to bus stand at Loha by an
auto rickshaw. Thereafter, they visited the
mutton market. The deceased Naroji purchased
mutton and then they started going to Loha
bus stand. When they reached near Kalal
country liquor shop, the appellant came near
them and demanded money from Naroji for
drinking liquor. Naroji got upset on such
demand and asked the appellant, as to whether
his father (i.e. that of the appellant) had
kept money with him. Upon receiving such
reply, the appellant took out a knife from
his waist and stabbed on the stomach below
ribs of Naroji.
14. The evidence of Shankarrao (PW3) and
Chintaman (PW6), is quite consistent in
respect of the occurrence of the incident,
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manner in which same has been taken place,
and the overt acts done by the appellant. The
suggestion given by the defence to Chintaman
(PW6) in his cross examination that Naroji
accidentally fell on the spot has been
emphatically denied by him.
15.
To sum up, there are two eye
witnesses i.e. Shankarrao (PW3) and Chintaman
(PW6), whose evidence is quite consistent on
all material points showing involvement of
the appellant in the incident in question.
Their evidence gets corroboration from the
medical evidence. Apart from the medical
evidence, the prosecution has also brought on
record that the blood stains found on the
clothes of the appellant were of the same
blood group which was that of the deceased
Naroji.
16. Pankaj (PW7) states that he went to
the spot of the incident. He saw the
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appellant running away with a knife in his
hand. He took Naroji in an injured condition
in the auto rickshaw to the Rural Hospital at
Loha. The evidence of this witness also
supports the case of the prosecution that the
appellant, after stabbing the deceased Naroji
ran away with the knife in his hand.
17. If the evidence of the prosecution
witnesses and in particular Shankarraro (PW3)
and Chintaman (PW6), who have witnessed the
incident coupled with the evidence of Bhagwat
(PW5), Pankaj (PW7), Dr.Dattaram (PW13) and
CA report is taken into consideration an
inevitable conclusion would be that the
prosecution has proved beyond reasonable
doubt the involvement of the appellant in the
commission of the crime alleged against him.
18. The learned counsel appearing for
the appellant in the alternate argued that,
even if the prosecution evidence is taken as
56.2013Cri.Appeal.odt
it is, it would be clear there was no
premeditation and the appellant had no
intention to cause death of Naroji.
Shankarrao (PW3) and Chintaman (PW6) have
stated in their evidence that the appellant
demanded money from Naroji for consuming
alcohol and upon refusal to satisfy that
demand with the remark by Naroji that the
father of the appellant had not kept money
with him, the appellant got annoyed, took out
a knife from his waist and gave only one blow
of knife below his ribs on stomach. According
to the learned counsel appearing for the
appellant, in the circumstance in which the
incident took place, instead of sentencing
the appellant for the offence punishable
under Section 302 of the IPC, the trial Court
ought to have held him guilty for the offence
under Section 304 Part-II of the IPC.
19. According to the learned APP, since
the appellant was possessing a knife and
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stabbed on the stomach of Naroji, the trial
Court has rightly convicted and sentenced the
appellant for the offence punishable under
Section 302 of the IPC.
20. We have carefully perused the entire
evidence brought on record and in particular
the evidence of Shankarrao (PW3) and
Chintaman (PW6). It clearly emerges from the
ocular evidence that the appellant demanded
money from Naroji and upon his refusal to pay
money coupled with the sarcastical remark
that, whether the father of the appellant had
kept money with Naroji, the appellant got
annoyed and in the heat of anger took out a
knife from his waist and gave one blow
thereof on the stomach of the deceased
Naroji. It is true that the blow of knife is
given on the vital part of the body.
However, considering the above circumstances,
it cannot be concluded that the appellant had
intention to kill the deceased. It is a
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matter of common knowledge that knife can be
possessed by a person for more than one
reason and not for committing any offence
only. Admittedly, the appellant has not
repeated blows of knife. He did not take any
undue advantage or acted in a cruel or
unusual manner. It is clear that the incident
took place in the heat of passion and on the
spur of the moment. There was no previous
enmity or premeditation on the part of the
appellant to kill the deceased Naroji. The
incident took place on a trifle ground.
Therefore, the case in hand is covered by
exception 4 of Section 300 of the IPC. In
the peculiar facts of this case and in the
light of evidence brought on record, the
appellant could not be held guilty for an
offence punishable under Section 302 of the
IPC and on the other hand, according to us,
he is guilty of culpable homicide not
amounting to murder punishable under Section
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304 Part II of the IPC.
21. In view of the above, the conviction
and sentence of the appellant under Section
302 of the Indian Penal Code is set aside and
instead, the appellant is convicted under
Section 304-II of the Indian Penal Code.
Considering the serious consequence of the
act done by the appellant i.e. the death of
Naroji, we are not inclined to extend the
benefit of probation to him. In our view,
the ends of justice would be met if the
appellant is sentenced to suffer rigorous
imprisonment for seven years and to pay a
fine of Rs.1000/-, in default of payment of
fine to suffer further rigorous imprisonment
for 6 months. We sentence him accordingly.
The appellant is entitled for set off as per
the provisions of Section 428 of Criminal
Procedure Code.
56.2013Cri.Appeal.odt
22. The Criminal Appeal is partly
allowed in the above terms.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
