Bombay High Court
The State Of Mah vs Maroti Tompe And Ors on 6 November, 2017
Bench: T.V. Nalawade
1 APEAL259.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 259 OF 2002
The State of Maharashtra
Through Police Station Officer,
Police Station (Rural),
Taluka & District Hingoli. ... Appellant
(Orig. Complainant)
VERSUS
1. Maroti S/o Appaji Tompe,
Aged 30 years, Occu. Agri.,
R/o. Karwadi, Taluka Hingoli,
Dist. Hingoli.
2. Kundlik S/o. Dasruji Bhadange,
Aged : 55 years, Occu. Agri,
R/o. As above.
3. Shriram S/o Panduji Bhoyar,
Aged 55 years, Occu. Agri,
R/o. As above.
4. Anusayabai W/o Maroti Tompe,
Aged 25 years, Occu. Household,
R/o. As above. ... Respondents
(Orig. Accused)
..........
Mr S. J. Salgare, APP for the Appellant
Mr S. P. Chapalgaonkar, Advocate for respondents No. 1 to 4
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
RESERVED ON : 04.10.2017.
PRONOUNCED ON : 06.11.2017.
2 APEAL259.2002
JUDGMENT (PER A. M. DHAVALE, J.) :-
1. This is an appeal by the State against judgment of acquittal
of respondents No. 1 to 4 for offences u/s 302, 323, 504 & 506 r/w
34 of the IPC by ld. Additional Sessions Judge, Hingoli in Sessions
CaseNo. 36/2001. By the said judgment dt. 24.01.2002, accused
Nos. 2 to 4 were given clean acquittal whereas; accused No. 1 was
strangely held guilty u/s 338 of IPC and sentenced to suffer RI for
one year and to pay fine of Rs. 500/-, in default, to suffer further RI
for three months. (The final order does not show that accused No. 4
was also acquitted but the findings and reasons show that she was
also acquitted).
2. The facts relevant for deciding the present appeal may be
stated as follows :
On 14.04.2001, PW8 Satwaji Barve lodged FIR at Rural
Police Station, Hingoli to the effect that he had a share in land Gut
No. 25 at Karwadi Shivar, which was given by him to his adopted son
Ganpat. His co-sharer Bhagwan sold land of two acres to accused
No. 1 - Maroti but as there was no partition, a dispute was going on
in the court. Accused No. 1 - Maroti was insisting for delivering
vacant possession to him. On 13.04.2001 at 3:00 p.m., while PW8
3 APEAL259.2002
Satwaji and his family members were in the field, accused no. 1
Maroti and accused no. 4 - Anusayabai, wife of accused no. 1 -
Maroti, came there and started throwing away firewood from his
field. That time, accused no. 2- Kundlik and accused No. 3-Shriram
were present there. PW8 Satwaji, his wife Rukhmabai, son Ganpat
and grandson Vijay requested accused no. 4 - Anusayabai not to
remove their wood from their field. That time, accused Nos. 2 and 3
instigated accused nos. 1 and 4 by saying that they should remove
the wood and if somebody would obstruct them, he should be killed.
Accused No. 1 -Maroti and accused No. 4 - Anusaya threatened PW8-
Satwaji and his family members with threats of killing and started
abusing. Accused No. 4-Anusaya slapped grandson of PW8 Satwaji by
name Vijay, aged 16 years (PW6). When son of PW8 Ganpat accosted
her wife as to why she was beating his son, accused no. 1-Maroti
picked up a Bamboo (Velu) and inflicted a forceful blow thereof on
the right side of his head. Ganpat fell down and he sustained fracture
and profusedly bleeding injury from skull as well as nose. He became
unconscious. His parents Satwaji and Rukhmabai lifted him and
offered him water. He was taken in a Jeep to Civil Hospital at
Hingoli and thereafter he was referred to Civil Hospital at Nanded
but he was unconscious. On the basis of FIR of PW8 Satwaji, initially
crime was registered u/s 307, 323, 504, 506 r/w 109 r/w 34 of IPC
4 APEAL259.2002
at Hingoli Rural Police Station at C.R. No. 52/2001. As Ganpat
succumbed to the injuries, the crime was registered u/s 302 of IPC.
PW11-API Navande carried out investigation. He visited the spot,
drew spot panchanama and recorded statements of material
witnesses. He received inquest panchanama and PM notes after
death of Ganpat from Vajirabad Police Station, Nanded. He arrested
the accused, seized the clothes and the weapon of offence 'Bamboo'
and forwarded seized articles for Chemical Analysis. After
completion of investigation, he submitted charge-sheet in the court.
In due course, the case was committed to the court of Sessions at
Hingoli.
3. Learned Additional Sessions Judge, Hingoli framed charge
against all the accused at Exh. 7 for offence u/s 302 r/w 34, 506 r/w
34, 323 r/w 34, 504 r/w 34 against all the accused & 302 r/w 109 of
IPC against accused Nos. 2 & 3. The accused pleaded not guilty. The
prosecution examined 11 witnesses. It is the defence of accused no.
1 that, he had received possession of the land purchased by him and
several persons from Barve family had gathered to obstruct him from
enjoying the possession. The prosecution witnesses and the deceased
were throwing away the wood on the land in his possession. He
realized that he was likely to be dispossessed and he might be beaten.
5 APEAL259.2002
Deceased Ganpat had rushed to him. In order to defend himself, he
picked up one wood lying there and started wielding it. He did not
assault Ganpat with intention to kill him.
4. The learned Sessions Judge after hearing the parties came
to the conclusion that accused Nos. 2 to 4 were not involved in the
crime and accused no. 1's defence was accepted and he was held
guilty for rash and negligent act causing grievous hurt and
endangering life. Hence, this appeal by the State.
5. Heard learned APP Shri. S. J. Salgare for State and Shri. S.
P. Chapalgaonkar, learned advocate for respondent Nos. 1 to 4.
6. Learned APP has relied on evidence of PW3 Gajanan, PW6
Vijay and PW7 Rukhmabai, who are eye witnesses to the incident.
He argued that, these three witnesses have totally supported the
prosecution and the prosecution story has been duly proved through
their evidence. He relied on evidence of Medical Officer-Dr. Gajanan,
who has proved PM notes (Exh. 25). He pointed out that the
deceased had sustained injury of 7 cm length on scalp occipital
region causing fracture of skull with internal bleeding which was the
cause of death. He pointed out that the stick used for assault was
6 APEAL259.2002
9½" in circumference and 7 feet in length and the injury must have
been caused with great force so as to cause fracture and internal
hemorrhage. He argued that, the witnesses have assigned role to
accused nos. 2 to 4 as well and therefore all the accused should have
been held guilty. In the alternative, he submitted that at least they
should have been held guilty of offence u/s 304-I r/w 34 & 109 of
IPC.
7. Per contra, Mr Chapalgaonkar, learned counsel for
respondents relied on following facts.
(i) Thee was land dispute and accused No. 1 had
purchased the land and had received the possession.
The prosecution witnesses were trying to dispossess
him or obstruct him.
(ii) The accused had no intention to commit murder.
There was no previous enmity and only single injury
was caused that too by accused no. 1 alone.
(iii) No blood was found on the weapon of offence
Bamboo and said Bamboo was hollow and light.
(iv) As per evidence o PW6 Vijay, there was a scuffle on
account of land dispute. Accused no. 1 Maroti had
first lodged FIR on 13.04.2001 at Rural Police
7 APEAL259.2002
Station, Hingoli against PW3 Gajanan, PW6 Vijay &
PW8 Satwaji and they were arrested.
(v) He argued that, the evidence regarding so called
instigations is afterthought and was rightly not
believed. Accused no. 1 was present along with
three persons whereas; there was a mob of 15-20
persons from the family of prosecution witnesses. In
the light of all these facts, he strongly supported the
observations made by the learned trial Judge
accepting the defence about exercise of right of
private defence. He also argued that, there was
appeal for enhancement which was dismissed.
Hence, he submitted that there is no scope for
interference in the judgment of the trial court.
8. On the basis of the evidence on record and the arguments
advanced, the points for our consideration with our findings thereon
are as follows :
Sr.No. Points Findings
1 Whether deceased-Ganpat met with In the affirmative.
homicidal death?
2 Whether accused no. 1 in In the negative, but
furtherance of common intention accused no. 1
with accused nos. 2 to 4 or atthe committed offence
instigation of accused nos. 2 to 4 u/s 304(II) of IPC.
committed murder of Ganpati?
8 APEAL259.2002
3 Whether accused nos. 1 to 4 in Proved 323 IPC
furtherance of their common against accused no. 4
intention caused simple hurt to PW6 only.
Vijay?
4 Whether any interference is called In the affirmative.
for in the judgment or sentence
delivered by the learned trial Court.
5 What order? The appeal is partly
allowed.
REASONS
9. The prosecution has examined 11 witnesses which may be
conveniently grouped as follows :
[1] Eye Witnesses :
(i) PW2-Ganesh (Hostile) Servant of PW8.
(ii) PW6-Vijay, nephew of deceased.
(iii) PW7-Rukhmabai, mother
(iv) PW8-Satwaji, father
(v) PW9-Indubai, cousin of Ganpat
(vi) PW10-Bhagwan, brother of the deceased, who
sold 2 gunthas land to Maroti (A1).
[2] Medical Evidence :
(i) PW1- Dr. Gajanan Deshmukh
(ii) PM notes (Exh.25)
(iii) Inquest panchanama (Exh. 30)
[3] Other witnesses :
(i) PW3 - Gajanan.
(ii) PW4 - Shaikh Khaja, panch to the seizure of
weapon Bamboo and spot panchanama (Exh.32).
(iii) PW5-Shaikh Jamil, seizure of clothes, shirt, pant &
half pant of deceased-Ganpat. Memorandum (Exh.
34).
9 APEAL259.2002
(iv) PW11 - I.O. Navande API.
[4] Documents proved :
(i) 7/12 extract (Exh. 44).
(ii) Letter to CA office (Exh.45).
(iii) CA report (Exh. 46).
10. The evidence of eye-witnesses referred above discloses that
on the date of incident at about 1:30 p.m., all the accused and
deceased Ganpat and the prosecution witnesses had gathered near
their field. Accused no. 1 had purchased two gunthas land from
Block No. 25 from Bhagwan PW10, who was co-sharer of PW8
Satwaji in the said land. He stated that, Satwaji was in possession of
the land and had grown crops of Soybean and Pigeon Pea (Tur). He
admitted in cross-examination that, he sold land of 2 gunthas to
accused no. 1 - Maruti for Rs. 22,000/- by registered sale deed
dt.27.12.99 and put him in possession of the said land.
11. PW3 Gajanan, eye-witness, has stated that on the day of
incident at 1:30 p.m., accused nos. 1 & 4 brought thorny branches in
the field and he requested them not to throw those branches on his
land but they did not pay any heed. He told them that court dispute
was going on. He stated that, accused nos. 2 & 3 were also present
there. They and accused no. 1 were insisting to take possession of
10 APEAL259.2002
the land, and if anybody would attempt to obstruct them they would
be finished or cut off. He stated that, deceased Ganpat was with him.
He went to Hingoli and called his father PW8 Satwaji and at about
3:15 p.m. he was also called on the spot by Vandana. By the time he
came there. Ganpati was injured & unconscious and was taken to
Hingoli hospital by a jeep. He learnt about the material incident
from his mother. According to him, on the next day at 7:15 a.m.,
injured Ganpat succumbed to the injuries. In cross-examination he
admitted that there was partition in sons of Ramji and share of
Ganpat was transferred in the name of Bhagwan. He had agreed that
entire land of Block No. 25 was shown in the name of Bhagwan in
the revenue record. He deposed that, the spot was about 1 km away
from Rural Police Station, Hingoli. The FIR is lodged on 14.04.2001
on next day. In cross-examination he admitted that on 13.04.2001,
there was measurement of the land. It was brought on record that he
did not disclose to the Police about threats of finishing off upon
intervention by anyone.
12. PW6 Vijay is nephew of deceased Ganpat. As per his
deposition, on the day of incident, accused nos. 2 & 3 threatened to
finish all those who would intervene. Accused no. 1-Maroti was
throwing away their wood and his grand father had accosted him.
11 APEAL259.2002
He himself went ahead and Anusaya - accused no. 4 slapped him.
His uncle Ganpat asked as to why she had slapped him and then
accused no. 1 - Maroti gave Bamboo blow on the skull of Ganpat.
Ganpat fell down unconscious and had a bleeding from mouth, nose
and ears. Immediately he was taken to the hospital in a Jeep. He
admitted that, there was scuffle and hurling of abuses in high tone
before the incident. It was suggested to him that by the time Ganpat
was given blow of stick 40 persons had gathered on the spot but he
has denied the same. He stated that 15-20 persons had gathered on
the spot. In cross-examination, he was asked to lift the Bamboo and
he could easily lift it indicating that the Bamboo was light and might
be hollow. Pertinently, accused no. 1 in his cross-examination
nowhere suggested that accused no. 1 was frightened that he would
lose possession or the members of Barve family would assault him
and therefore he was wielding stick for defending himself.
13. PW7 Rukhmabai is another witness and mother of the
deceased. She has also deposed about slapping of Vijay by accused
no. 4 - Anusuyabai and giving of Bamboo blow by accused no. 1 on
the skull of Ganpat. Ganpat immediately fell down with bleeding
from mouth, nose and ears and became unconscious. She stated that
accused nos. 2 and 3 had instigated accused no. 1 to finish off the
12 APEAL259.2002
person obstructing them. In cross-examination, she admitted that,
Ganpat was weak and thin. She admitted that she did not feel
apprehension that there would be serious quarrel and she should not
stay there or should call the villagers. She stated that, uptil 3:00 pm
there was no quarrel or exchange of abuses. She admitted that
Maroti had earlier lodged FIR at Rural Police Station on 13.04.2001
against her, Ganpat and Satwaji and they were arrested and released
on bail. They were produced in the court on 16.04.2001. It is her
evidence that, accused no. 2 - Patil asked accused no. 1 - Maroti to
take possession is an omission. It was suggested to her that accused
no. 3 Kundlik was attesting witness to sale deed.
14. PW8 Satwaji, father of the deceased-Ganpat was also
present on the spot. He has deposed that, accused nos. 1 to 4 were
present on the spot. They were throwing his wood from the land.
There was some altercation and accused no. 4 - Anusuyabai slapped
his grandson Vijay PW6. When deceased Ganpat accosted them as to
why Vijay was beaten, accused nos. 2 and 3 told Maroti to finish him
off and Maroti picked up one Bamboo and gave a forceful blow on
right hand side of skull of Ganpat. Ganpat sustained fracture injury
and fell down. He has first attended his son and thereafter went to
police station and lodged FIR at Exh. 38. He identified Muddemal
13 APEAL259.2002
property article no. 4 as weapon of offence. Defence for the first time
suggested to this witness that accused no. 1 apprehending
dispossession picked up a stick and was wielding it in the air to drive
them out of land. PW10 Bhagwan has also stated that PW8 was in
possession of land and had grown crops like Soybean and Pigeon Pea.
Maroti started throwing his wood forcibly and thereafter gave a blow
of Bombaoo on the right side of head of Ganpat.
15. After considering the evidence on record at length in the
light of defence raised by the accused by way of the statement filed
by him, we find that there was land dispute with regard to possession
and at that time accused no. 4 gave a slap to PW6 Vijay and when
deceased Ganpat accosted her, accused no. 1 - Maroti picked up a
Bamboo and inflicted a forceful blow on the right side of his skull
which resulted into the injury causing fracture and internal bleeding.
The evidence of the witnesses disclosed that giving of slap by
Anusuyabai was the cause of further incident and there is no
substance in the contention that accused nos. 2 and 3 were
instigating accused nos. 1 and 4 to use force and to finish off Ganpat.
Accused no.2 and 3 had no reason to enter into the quarrel and
instigate accused nos. 1 and 4. If there was instigation by accused
nos. 2 and 3, the members of Barve family would have also picked up
14 APEAL259.2002
sticks in order to fight with them but there was no actual fight. There
was only one blow given by accused no. 1 after the minor incident of
slapping by accused no. 4 to PW6 Vijay. We find that, accused nos.
1, 2 and 3 had no common intention in the act of accused no. 1 in
giving blow of Bamboo. By no stretch of imagination they were
aware of the intention of accused no. 1 and by some overt act helped
accused no. 1 in doing act of assault.
16. The medical evidence led by Dr. Gajanan Deshmukh-PW1
and the PM report disclose that Ganpat had received 7 cm long injury
on scalp parieto occipital region. There was fracture of parietal bone
with blood clot in parietal and occipital lobe with congestion.
Dr.Deshmukh opined that, the said injury was possible due to blow
by Bamboo or any other stick and such injury can cause death of
injured. He opined that, the injured could survive for sometime after
sustaining such injury. There is no specific evidence by him that the
injury was sufficient in the ordinary course of nature to cause death.
There is no evidence whether a prompt and effective treatment could
have saved the life of deceased Ganpat. However, from the medical
evidence and the evidence of witnesses, it is certain that it is a case of
homicidal death.
15 APEAL259.2002
17. We find that, accused no. 1 is solely responsible for causing
the said injury and accused nos. 2 to 4 are noway connected with the
said injury.
18. We find consistent evidence that accused no. 4 -
Anusuyabai slapped PW6 Vijay. There was charge u/s 323/34 of IPC
but the ld. trial Judge has acquitted the accused no. 4 of all the
charges. Considering the fact that, accused no. 4 has no role to play
in the case of murder and looking to the simple act of slapping, we
find that the accused no. 4 had slapped PW6 vijay just before the
incident, hence we hold accused no. 4 Anusuyabai guilty for offence
u/s 323/34 of IPC.
19. On consideration of the defence raised by accused no. 1,
we find that he has admitted that he had picked up Bamboo and hit
deceased Ganpat on his head and deceased Ganpat sustained the
fracture injury with blood clotting which resulted into his
unconsciousness and death on next day at 8.00 a.m.
20. After carefully going through the cross-examination of the
witnesses, we find that there is not even whisper that there was any
danger of attack by members of Barve group on the accused.
Accused no. 1 had no reason to fear about any injury to him. There
16 APEAL259.2002
was some dispute regarding the possession of the land. It can be
stated that accused no. 1 might have apprehension that he would not
be allowed to enter in his land but such apprehension does not give
rise to any right to accused no. 1 to assault a person on his skull.
There is no warning given by accused no. 1 to deceased Ganpat or his
relatives that they should not disturb or obstruct his possession. Only
because the deceased Ganpat accosted wife of accused no. 1 as to
why she had slapped PW6 Vijay, accused no. 1 got enraged and
picked up a Bamboo and gave its blow on the skull of deceased
Ganpat. The injury caused to deceased Ganpat is on parieto occipital
region. If the accused was wielding stick for defending himself and
deceased Ganpat would have moved towards him, deceased would
have received injury on the temporal region. We therefore hold that,
accused no. 1 inflicted a blow of Bamboo on the skull of deceased
Ganpat which caused fracture of parieto occipital region with internal
bleeding, bringing immediate unconsciousness and death within few
hours. We find that the act of accused no. 1 was not in exercise of
right of private defence either of body or of property. The moot
question is what will be the offence disclosed from the act of accused
nos. 1 to 4. We find no substance in the finding of ld. trial Judge
that it was a rash and negligent act. It was certainly an intentional
act. Besides the ld. trial Judge forgot that the injured
17 APEAL259.2002
Ganpat had not only received grievous hurt but he had died therefore
there was no applicability of Section 338 in any case.
21. In this case, there was a single blow of Bamboo. The
panchanama at Exh. 32 discloses that it was having circumference of
9½" but there are admissions of PW6 that it was hollow and light.
PW6 Vijay could easily lift it. It is generally found that, when blow of
a hollow Bamboo is given with force, death is not a certainty and
therefore no intention can be attributed to accused no. 1 to cause
death of deceased Ganpat. However, the knowledge can be attributed
that a blow of thick stick/Bamboo of circumference of 9½" on the
skull was likely to cause death. In fact, in the present case, the blow
has resulted into fracture of skull and internal bleeding which created
immediate unconsciousness and death within few hours. Therefore,
it was a culpable homicide. The question is whether it would amount
to murder or not. On careful consideration of clauses of 1, 2 & 4 of
Section 300, we find that those are not applicable to the present case.
Clause 3 of Section 300 reads as follows :
"Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with
the intention of causing death, or-
Secondly- not applicable.
Thirdly- If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause
18 APEAL259.2002
death.
Fourthly-not applicable."
22. This term came for interpretation before the apex court in
Virsa Singh Vs State of Punjab AIR 1958 SC 465, and the
precedent laid down in this case is recognized as locus classicus. It is
laid down in para 10 & 11 as under:
(10) Once that is found, the enquiry shifts to the
next clause : -
"and the bodily injury intended to be inflicted
is sufficient in the ordinary course of nature to cause
death."
The first part of this is description of the earlier
part of the section namely, the infliction of bodily injury
with the intention to inflict it that is to say, if the
circumstances justify and inference that a man's intention
was only to inflict a blow on the lower part of the leg or
some lesser blow and it can be shown that the blow
landed in the region of the heart by accident, then,
though an injury to the heart is shown to be present, the
intention to inflict an injury is that region, or of that a
nature, is not proved. In that case, the first part of the
clause does not come into play. But once it is proved that
there was an intention to inflict the injury that is found
to be present, then the earlier part of the clause we are
now examining-
"and the bodily injury intended to be inflicted"
is merely descriptive. All it means is that it is
not enough to prove that the injury found to be present is
sufficient to cause death in the ordinary course of nature;
it must in addition be shown that the injury is of the kind
that falls within the earlier clause, namely, that the
injury found to be present was the injury that was
intended to be inflicted. Whether it was sufficient to
cause death in the ordinary course of nature is a matter
of inference or deduction from the proved facts about the
nature of the injury and has nothing to do with the
question of intention.
19 APEAL259.2002
(11) In considering whether the intention
was to inflict the injury found to have been inflicted, the
inquiry necessarily proceeds on broad lines as, for
example, whether there was an intention to strike at a
vital or a dangerous spot, and whether with sufficient
force to cause the kind of injury found to have been
inflicted. It is, of course, not necessary to enquire into
every last detail as, for instance, whether the prisoner
intended to have the bowels fall out, or whether he
intended to penetrate the liver or the kidneys or the heart.
Otherwise, a man who has no knowledge of anatomy
could never be convicted for, if he does not know that
there is a heart or a kidney or bowels, he cannot be said
to have intended to injure them. Of course, that is not
the kind of enquiry. It is broad-based and simple and
based on commonsense: the kind of enquiry that "twelve
good men and true" could readily appreciate and
understand.
23. This view is quoted with approval as locus classicus in
following judgments.
Thangaiyya Vs State of Tamil Nadu AIR 2005 SC 1142,
Ruli Ram & Anr Vs State of Haryana AIR 2002 SC 3360 &
Chacko @ Aniyan Kunju & Ors. Vs State of Kerala AIR 2004
SC 2688.
24. The above cases indicate that, if the injury is sufficient in
the ordinary course of nature to cause death and such injury was
intended to be caused by the assailant, it is immaterial whether he
intended to cause or had knowledge that such injury would cause
death or not.
20 APEAL259.2002
25. In Nankaunoo v. State of U.P. AIR 2016 SC 447, it is laid
down that sufficiency of injury in ordinary course to cause death is
not to be inferred by the subsequent event. It is required to be
proved. In para 12, it is held as under :
12. The emphasis in clause three of Section 300 IPC is
on the sufficiency of the injury in the ordinary course
of nature to cause death. The sufficiency is the high
probability of death in the ordinary course of nature.
When the sufficiency exists and death follows, causing
of such injury is intended and causing of such offence
is murder. For ascertaining the sufficiency of the
injury, sometimes the nature of the weapon used,
sometimes the part of the body on which the injury is
caused and sometimes both are relevant. Depending on
the nature of weapon used and situs of the injury, in
some cases, the sufficiency of injury to cause death in
the ordinary course of nature must be proved and
cannot be inferred from the fact that death has, in
fact, taken place.
26. In the present case, the medical officer has not given such
an opinion nor such opinion was sought by ld. APP. He has merely
stated that injury was likely to cause death. Even as per common
knowledge a blow of heavy stick on the skull is likely to cause death
but death is not a certainty as there are cases in which the persons
survive inspite of such severe blows of sticks. Mere causing of
fracture or some internal bleeding in absence of medical evidence
cannot be held sufficient to jump to the conclusion that injury was
sufficient in ordinary course of nature to cause death. Therefore, it
would be culpable homicide not amounting to murder. In following
21 APEAL259.2002
cases the Supreme Court has held that offence u/s 304-I was
disclosed.
27. In Thangaiyya Vs Tamil Nadu AIR 2005 SC 1142, the
accused used to tease the girls employed by the employer and on the
fateful day, he inflicted a stick blow on the skull. The deceased
sustained three injuries but only one injury on the skull was fatal. It
is observed in para 16 which reads as under :
16. The learned Judge explained the third
ingredient in the following words:
"The question is not whether the prisoner
intended to inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is proved to
be present. If he can show that he did not, or if the
totality of the circumstances justify such an inference,
then of course, the intent that the section requires is not
proved. But if there is nothing beyond the injury and the
fact that the appellant inflicted it, the only possible
inference is that he intended to inflict it. Whether he
knew of its seriousness or intended serious consequences,
is neither here or there. The question, so far as the
intention is concerned, is not whether he intended to kill,
or to inflict an injury of a particular degree of seriousness
but whether he intended to inflict the injury in question
and once the existence of the injury is proved the
intention to cause it will be presumed unless the evidence
of the circumstances warrant an opposite conclusion."
28. In Nankaunoo v. State of U.P. AIR 2016 SC 447, in para
13 whereof, it is held as under :
13. Keeping in view the above principles, when
we examine the facts of the present case, the deceased
22 APEAL259.2002
sustained gunshot wound of entry 1-1/2" x 1-1/2" on
the back and inner part of left thigh, six gunshot
wounds of exit each 1/3" x 1/3" in size in front and
middle left thigh. Due to the occurrence in the morning
at the barber shop of the deceased, the appellant
emerged from the northern side of the grove carrying
pistol in his hand and fired at the deceased. The
weapon used and the manner in which attack was
made and the injury was inflicted due to premeditation
clearly establish that the appellant intended to cause
the injury. Once it is established that the accused
intentionally inflicted the injury, then the offence would
be murder, if it is sufficient in the ordinary course of
nature to cause the death. We find substance in the
contention of the learned counsel for the appellant the
injury was on the inner part of the left thigh, which is
the non-vital organ. Having regard to the facts and
circumstances of the case that the gunshot injury was
caused in the inner part of left thigh, the sufficiency of
injury to cause death must be proved and cannot be
inferred from the fact that death has taken place. But
the prosecution has not elicited from the doctors that
the gunshot injury on the inner part of left thigh caused
rupture of any important blood vessel and that it was
sufficient in the ordinary course of nature to cause the
death. Keeping in view the situs and nature of injury
and in the absence of evidence elicited from the doctor
that the said injury was sufficient in the ordinary
course of nature to cause death, we are of the view that
it is a fit case where the conviction of the appellant
under Section 302 IPC should be under Section 304
Part 1 IPC.
29. In Augustine Saldanha Vs State of Karnataka AIR 2003
SC 3843, it is held that, there was a single stick blow on the skull on
pitch dark night. the Apex Court was not certain that accused chose
vital part of the body for inflicting the injury but the injury sustained
was sufficient in the ordinary course of nature to cause death. It was
23 APEAL259.2002
held as an offence u/s 304-II. It is observed in para 22 that, single
blow with a heavier dangerous weapon on the vital part would make
out offence u/s 302. There is no universal rule that single blow does
not attract section 302 of IPC. In the facts & circumstances, it was
found that the blow might not have been aimed at the head, hence,
conviction was brought down from 302 to 304-II of IPC.
30. Phulia Tudu and another Versus State of Bihar (Now
Jharkhand) (2007) 14 SCC 588. In Phulia's case (supra), there was
a single blow of small stick given on the skull in darkness. Due to
darkness, it was held that there might not be an intention to give
blow on the vital part and, therefore, the accused were held guilty
u/s 304-I of IC.
31. In Raj Pal and others Vs State of Haryana (2006) 9 SCC
678. Rajat gave a lathi blow on the head of singh and chatrapalsing
gave a lathi blow on his right shoulder. Quoting with approval the
observations in Virsa Singh's case, in para 21, the apex Court held
that giving of lathi blows on the skull in totality of facts and
circumstances amounted to offence u/s 304-II r/w 34 of IPC and
sentence of seven years would meet the ends ofjustice.
24 APEAL259.2002
32. In Chacko alias Aniyan Kunju and others v. State of
Kerala AIR 2004 SC 2688, the deceased was assaulted by four
accused persons. One gave a blow of rod on his back. Accused no. 4
in darkness showed torch light and other accused inflicted blows of
handles of axe and spade. The apex court has observed in para 22 as
under.
22. The factual scenario goes to show that late at
night in a stage of complete darkness, the occurrence took
place. According to the prosecution itself for visibility A-4
used the torch and focused the light on the deceased so
that the other accused persons could assault him. The
distance from which the light was focused is also not very
small. It was no doubt possible on the part of the accused
persons to place the deceased and assault him, but taking
into account the fact that almost all the injuries were on
non-vital parts and only one was on head, it cannot be
definitely said that any particular injury was intended. As
noticed by Courts below weapons used were not of
considerable weight or length. The axe or spade was not
used but their handles of small length and weight were
used. Taking the totality of the evidence into consideration
and the special features noticed, it would be appropriate
to convict the accused persons under Section 304, Part I
read with Section 34, IPC instead of Section 302, IPC. A-
4 has been rightly roped in under Section 34. He
accompanied the accused persons, and actively facilitated
the assaults to be effectively made on the accused by
focusing the torch. His conduct prior and subsequent to
the occurrence clearly shows thAt he shared the common
intention so far as the assaults on the deceased is
concerned. Custodial sentence of 10 years would meet the
ends of justice. The appeal is partly allowed to the extent
indicated.
25 APEAL259.2002
33. Apart from above facts, we find that the case of the accused
no. 1 is squarely covered by exception 4 to section 300 which reads
as under :
Exception 4.:- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party
offers the provocation or commits the first assault.
34. We thus find that accused no. 1 inflicted a forceful blow of
stick/Bamboo on the skull of the deceased, which he knew that it was
likely to cause death. Thus, the case is covered u/s 304-II of IPC.
Considering all the facts and circumstances and applying the ratio
laid down in above rulings, the appeal deserves to be partly allowed.
ORDER
(i) The appeal is partly allowed.
(ii) Accused no. 1 is held guilty of offence punishable
u/s 304-II of IPC. At this stage, it is necessary to hear accused no. 1
on the point of sentence.
26 APEAL259.2002
(iii) Accused nos. 2 & 3 are acquitted whereas;
accused no. 4 is acquitted of offence u/s 302 r/w 34 of IPC but is
held guilty u/s 323 of IPC.
(iv) Accused no. 4 was in Jail for 12 days (14.04.2001
to 26.04.2001). We do not want to impose any higher sentence on
accused no. 4.
(v) The bail bonds of accused no. 1 are forfeited and
the concerned Police Officer is directed to produce him before us on
13.11.2017 to hear him on the point of sentence.
(vi) Accused no. 4 to remain present on 13.11.2017
for hearing her on the point of sentence.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
