Jalindar @ Vicky @ Vivek ... vs The State Of Maharashtra
2022 Latest Caselaw 1717 Bom

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                                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                   CRIMINAL APPELLATE JURISDICTION

                                                    CRIMINAL APPEAL NO. 533 OF 2021
                                                             ALONG WITH
                                                  INTERIM APPLICATION NO. 857 OF 2021
                                                                  IN
                                                    CRIMINAL APPEAL NO. 533 OF 2021

                           Jalinder @ Vicky @ Vivek Ramchandra
                           Jadhav
                           Age- 28 Years, R/o. Diva Road,
                           Jai Matadi Chawl, Near Adarsh,
                           School, Diva.
                           District- Thane
                           At present in Nashik Central Prison,
                           Nashik.                                               ...APPELLANT

                                    Versus

                           The State of Maharashtra
                           At the instance of Mumbra Police
                           Station.                                              ...RESPONDENT
                                                                     ...
                           Mr. Aniket Vagal for appellant.
                           Mr. S S Hulke, APP for State.
                                                                   ...
                                                            CORAM : S. S. SHINDE &
             Digitally signed
             by                                                        N. R. BORKAR, JJ.

DNYANESHWAR DNYANESHWAR ASHOK ETHAPE ASHOK ETHAPE Date: 2022.02.21 15:09:25 +0530 RESERVED ON : 15th FEBRUARY, 2022.

PRONOUNCED ON: 21st FEBRUARY, 2022.

JUDGMENT: [PER S.S. SHINDE, J.]

1. The present appeal is directed against the judgment and order

dated 30.11.2015 passed by Sessions Judge, Thane, thereby convicting the

appellant-original accused for the offence punishable under Section 302 of

Indian Penal Code, 1860 (for short 'IPC) and sentenced to suffer life

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imprisonment and to pay fine of Rs. 500/- (Rupees Five Hundred Only) and

in default R.I. for 15 days.

2. The prosecution case in brief can be summarized as under:-

Complainant Karan @ Samir Kedar (PW5) used to reside at

Diva, Akash Nagar area with his wife Ashwini Giri (PW8). Initially Nirale

Shaikh used to work with complainant as his helper for conducting the

business of sale of cutlery articles in the train. Vijay Gulab Patil (PW2),

Munna Shaikh (PW7) also used to conduct same business of sale of cutlery

in the train. One month before the incident, Nirale Shaikh (deceased) left

the job of complainant and started living with Vijay Bali (PW2). Therefore,

Samir Giri engaged the appellant-accused as his helper on daily wages. On

04.05.2013 at about 11.00 pm, Samir Giri had his dinner with his wife

Ashwini Giri, Munna Shaikh and accused person. Thereafter, accused went

to his residence. However, after half an hour accused called Samir on his

mobile phone and informed him that Nirale Shaikh (deceased) had

quarreled with accused and during that quarrel accused was assaulted by

Nirale Shaikh (deceased). Therefore, to give understanding to the Nirale

Shaikh (deceased), Samir Giri, Ashwini Giri and Munna Shaikh went to the

house of Vijay Bali at Appachi Wadi. That time, Nirale Shaikh (deceased)

was taking dinner with Vijay Bali and his wife Saburi Bali. Samir Giri called

Nirale Shaikh (deceased) out of the house of Vijay Bali and took him near

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grocery shop for settling the dispute between accused and Nirale Shaikh

(deceased), at about 12.00 midnight. When the discussion in between Samir

Giri and Nirale Shaikh (deceased) was in progress, that time accused

reached on the spot holding knife in his hand and inflicted single knife blow

on the abdomen of Nirale Shaikh (deceased). Nirale Shaikh (deceased) fell

down and intestine was protruding from his stomach. However, there was

no severe external bleeding from the injury sustained by Nirale Shaikh

(deceased). Samir Giri, Vijay Bali and other person took Nirale Shaikh

(deceased) initially to Sai Hospital at Diva. However, doctor from Sai

Hospital refused to admit Nirale Shaikh (deceased). Therefore, Nirale

Shaikh (deceased) was taken to Kalsekar Hospital at Mumbra, where Nirale

Shaikh (deceased) succumbed to injury at about 3.42 am. By that time,

Police Station, Mumbra was informed by the Medical Officer from Kalsekar

Hospital. As Nirale Shaikh (deceased) was unconscious, his dying

declaration could not be recorded. On 05.05.2013, at about 4.15 am, Karan

@ Samir Giri lodged FIR (Exhibit-26) with Police Station, Mumbra. In the

result, CR No. 364/2013 was registered at Police Station, Mumbra under

Section 302 of IPC.

3. Initially, PSI, Shri. Pawar conducted the investigation and

prepared spot panchnama (Exhibit-33) and inquest panchnama (Exh.11).

On 06.05.2013 investigation of this crime was handed over to PI Shri. S.R.

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Nagarkar (PW9). On the same day he arrested the accused at 9.15 pm, and

seized his clothes under seizure panchnama (Exhibit-12). He also referred

the accused to Chhatrapati Shivaji Hospital, Kalwa for medical examination

and for collecting blood sample of accused. The investigating officer had

also seized blood stained clothes of the Nirale Shaikh (deceased) under

seizure panchnama. The dead body was referred for post mortem

examination. Dr. Mangesh Ghadge performed autopsy examination and

submitted post mortem notes. When accused was in police custody on

08.05.2013, he made disclosure statement (Exh.22) and as per his

disclosure statement he showed knife which was thrown in one ditch near

Tata Electric Power Line at Prashant Nagar, Diva. That knife was seized

under panchnama in presence of panch Saeed Baig and panch Mohammed

Samaseaalam. During investigation, all the seized articles were referred to

chemical analyzer along with blood samples of the accused on 12.05.2013.

By submitting C.A. reports, chemical analyzer reported that on the clothes of

Nirale Shaikh (deceased) and on the knife human blood was detected.

However, no blood stains were detected on the clothes of accused. He also

reported that blood group of accused is 'O'. However, blood group of Nirale

Shaikh (deceased) could not be ascertained as blood sample was not

suitable for blood grouping.

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4. After completion of investigation, charge sheet came to be

submitted against the accused before JMFC, Thane. As the offence

punishable under Section 302 of IPC is exclusively triable by the Court of

Sessions, JMFC, Thane was pleased to commit the case to the Sessions Court

for trial. The Sessions Court framed charge against the accused. Accused

pleaded not guilty and claimed to be tried.

5. After a full fledged trial, the trial Court convicted the accused-

appellant for the offence punishable under Section 302 of IPC by its

judgment and order dated 30.11.2015.

6. In order to prove prosecution case, the prosecution has

examined Medical Officer Dr. Mangesh Ghadge (PW1), who performed

autopsy examination on the dead body of Nirale Shaikh (deceased). As eye

witnesses prosecution has examined Vijay Bali (PW2), Saburi Bali (PW4),

Karan @ Samir Giri (PW5), Munna Shaikh (PW7), Ashwini Giri (PW8) and

as panch witness Shri. Saeed Baig (PW3). Dr. Imran Shaikh (PW6) is the

Medical Officer where the Nirale Shaikh (deceased) was admitted after

occurrence of incident. PI Shri. S.R. Nagarkar (PW9), is the investigating

officer.

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7. In order to find out whether the death is homicidal, suicidal or

accidental, it is necessary to discuss the evidence of Dr. Mangesh Ghadge

(PW1). In his examination-in-chief he deposed that, on 05.05.2003, he was

attached to Chhatrapati Shivaji Hospital, Kalwa as Associate Professor. On

that day, he performed the post mortem on the dead body sent by PSI Shri.

Pawar from Mumbra Police Station. He has also prepared post mortem

report and signed the same. The post mortem report entries are in his own

handwriting. During his examination-in-chief the post mortem report was

shown to him. He identified the contents of said report. There was one

external injury in column No. 17 and it was stab wound over front of

abdomen, left lumbar region, vertical with upper angle acute, clean cut

margin, 3 X 0.6 c.m. X cavity deep, 3 c.m. to left of umbilicus horizontally,

coils of intestine protruding out. On dissection corresponding internal

injuries, he found cut skin, subcutaneous tissue fat, peritoneum and

omentum at two places. Said injury was antemortem. In Column No. 21, he

has mentioned that, in cavity there was blood and blood clots in abdomen

2000 c.c. i.e. two liters. He also found evidence of perforation of omentum

at two places (there was hole to the layer attached to the intestine). Because

of such injuries instant death can occur and the said injury is sufficient to

cause the instant death. Said injuries are possible due to sharp pointed

object. The blood and nail clippings and scalp hair were preserved for blood

group (C.A. analysis). The cause of death written by him is hemorrhage and

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shock due to injury to vital structures caused by sharp pointed weapon.

Such type of injuries are possible with sharp pointed weapon or sharp knife.

8. In his cross examination, he stated that some blood must have

come out of the body.

9. The prosecution has examined Mr. Vijay Gulab Bali (PW2). In

his examination-in-chief he stated that in the year 2013, he was residing at

Appachi Wadi, Vaibhav Ganesh Chawl, Diva, and was selling cutlery material

in the train. He know the accused because he was also doing the similar

business in the train. He know deceased Nirale Shaikh because he was also

doing the similar business with them. The accused and Nirale Shaikh were

also residing in the same chawl. One Samir Giri was also residing in their

chawl, but after his marriage with Ashwini, he shifted to other premises.

Nirale Shaikh and Munna Shaikh were taking food with him and used to

sleep in other premises in other chawl. Eight days before the incident Nirale

Shaikh and Munna Shaikh came to reside in their chawl. There were

disputes between Nirale Shaikh and Samir Giri, however, the cause of

dispute was that Samir Giri married with Ashwini. Samir employed the

accused for his business.

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He further stated that on 05.05.2013, he himself, Nirale Shaikh

and Munna Shaikh were consuming liquor near 'Diva Beer Shop' in the night

time at about 8.30 pm. The accused and Samir came at the spot. Samir and

accused were showing new shopping material to Nirale Shaikh and Munna

were teasing them. Thereafter, Vicky, Munna and Samir went to Samir's

house. They finished their Beer drink and were sitting near Raj Kirana store.

At that time, the accused Vicky came near them, Nirale Shaikh went to

Vaibhav Dhaba and was convincing the accused not to go for job with Samir.

Therefore, they were abusing each other and fighting. Nirale fell down.

Vicky was sitting on his body and giving fist and blows to him. He went to

separate the quarrel, but at that time Vicky pushed him, thereafter, he

removed the waist belt and started beating Vicky. Therefore, he ran away

from the spot. Thereafter, he himself, and Nirale Shaikh came to his house

and were taking food. At that time, Samir, Ashwini and Munna also came to

his house. Then he called Nirale Shaikh outside the house as he wanted to

talk something to him. He prevented Samir for calling Nirale Shaikh outside

till he finished his dinner. However, Samir told that he has urgent work and

therefore, by keeping hand on shoulder, Samir took Nirale Shaikh outside to

Raj Kirana store. He himself, his wife, Munna followed Samir and Nirale

Shaikh. Samir was saying to Nirale Shaikh that, do not keep grudge against

the accused- Vicky as he was employed by him. At that time, all of sudden

Vicky came on the spot and gave forceful stab to Nirale Shaikh on his

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stomach and Nirale Shaikh fell down and then they saw that there was knife

in the hands of Vicky. They thought that Nirale Shakh was doing action of

felling down, but then they saw by going near to him and they found that

his intestine came out. Thereafter, they tried to catch hold the accused-Vicky,

but he ran away from the spot. Thereafter, he called one taxi driver from the

chawl and in his taxi they took Nirale Shaikh to Sai Hospital, Dival. In the

said hospital, they were told that there was no doctor. Therefore, they went

to Diva Hospital, there also Nirale Shaikh was not admitted by saying that it

is a police case and advised them to go Government Hospital. Thereafter, by

auto rickshaw they went to Mumbra at Kalsekar Hospital and there Nirale

Shaikh was admitted. However, in night time, Nirale Shaikh died. After two

days, his statement was recorded on 07.05.2013.

10. Upon careful perusal of cross examination of PW2, nothing

useful to the defence in relation to the case in hand has been elicited. It

appears that suggestion was given that this witness and Samir killed Nirale

Shaikh and to escape from the said act, he did not inform police and Nirale

was not taken to the public hospital. The said suggestion has been denied by

PW2.

11. The prosecution has examined Saburi Vijay Bali (PW4). In her

examination-in-chief she deposed that, in the year 2013 in the month of

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May, she was residing at Appachi Wadi, Vaibhav Dhaba, Ganesh Chawl,

Diva. She know Karan @ Samir Kedar Giri and she know the accused, who

was sitting in the Court, who was her neighbor and he was residing in the

chawl behind her chawl. Nirale Shaikh was working with her husband.

Therefore, she knew him. The accused Nirale Shaikh and her husband were

selling the cutlery material in the train. Alongwith her and her husband

since last two days of the incident Nirale Shaikh had come to stay.

On 05.05.2013, at about 11.30 pm, in the night, she herself, her

husband and Nirale Shaikh were taking dinner in her house. At that time

Munna Shaikh, Samir Giri and his wife Ashwini came to their house and

Nirale Shaikh and they wanted to speak with him and therefore, Nirale

Shaikh was called outside the house. Thereafter, she herself and her

husband followed them. Nirale Shaikh, Munna Shaikh, Samir Giri and his

wife were standing near one grocery shop. At that time, accused came

running at the said spot. He was having article similar to knife and

immediately he stabbed with the said article to Nirale Shaikh and accused

ran away from the said spot. At that time, Nirale Shaikh fell on the ground

by holding his stomach. They thought that Nirale Shaikh was playing some

drama because they could not see any blood. However, later on they saw

that his intestine came out. They were afraid. Therefore, they took him to

the hospital by putting him in the auto rickshaw to Diva Sai Hospital. The

hospital persons told that the case is very serious and therefore, they refused

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to admit Nirale. Thereafter, they took him to Kalsekar Hospital. Nirale was

admitted in the hospital, but he could not survive for long and he was

declared dead at 3.00 in the midnight.

12. During the cross examination, it appears that this witness was

asked whether street lights and electric lamps were working on the date of

incident. This witness stated that there were no street lights and electric

lamps of the shop was not working. Along with Nirale, her husband and she

herself were in one auto rickshaw. Munna, Ashwini and Samir were in

another auto rickshaw. She was sitting next to the driver. Blood was not

oozing, but intestine had come outside the stomach of Nirale Shaikh. It

appears that since the husband of PW4, accused Vicky, Nirale Shaikh,

Munna Shaikh were known to each other, the question whether there were

street lights or not was not relevant, when the incident was witnessed by

more than one witness.

13. The prosecution has examined Karan @ Sameer Kedar Giri

(PW5). He stated that on 04.05.2013 in the night at about 11.00 pm. He

himself, his wife, accused and Munna were taking meal at his house. After

dinner accused went to his house. After 15 minutes accused called him on

his mobile phone and reported that his brother Nirale Shaikh was beating

him. Thereafter, he himself, his wife and Munna went to Bali's house where

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Nirale was staying. Nirale and others were taking food, therefore, he called

Nirale outside the house. Thereafter, he himself, his wife Nirale, Bali, Bali's

wife and Munna were discussing near Kirana shop. There was a shop light.

Accused was also present. At that time, he asked Nirale why he is quarreling

with the accused. Thereafter, he told accused to call his mother, so he went

for calling his mother. Immediately accused came running after sometime

i.e. within 2-3 minutes. He gave on fist blow on the stomach of Nirale.

Immediately, Nirale fell down. They thought Nirale got some muffing injury.

However, they saw the intestine came out and knife was in the hand of

accused. Thereafter, accused Vicky ran away from the spot. Thereafter,

injured Nirale was taken to hospital at Diva. However, they refused to admit

Nirale, therefore, they went to another hospital at Diva. There also Nirale

was not admitted. Therefore, they went to Kalsekar hospital at Diva.

However, doctor informed them that Nirale is dead.

14. In the cross examination PW5 deposed that there was no street

light in the said area. He further stated that he has not seen accused coming

with knife in his hand. However, in his examination-in-chief he stated that

accused gave one fist blow on the stomach of Nirale and he saw intestine

came out and knife was in the hand of accused. Therefore, merely because

he stated in the cross examination that he did not see accused coming with

knife would not wipe out his deposition in the examination-in chief.

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15. Dr. Imran Riyaz Khan was examined by the prosecution as PW6.

In his examination-in-chief he stated that he was Chief Medical Officer in

Kalsekar Hospital since January, 2013 for about eight months. On

05.05.2013, one patient by name Nirale Shaikh had come to their hospital

with stab wound injury in left para umblical region with bulging of intestine.

Immediately, the patient was taken in emergency room and he informed

Mumbra Police Station. The patient was in shock, his blood pressure was not

recordable, pulse count was below 60, saturation level was upto 90%,

breathing was shallow. There was loss of blood, therefore, the patient was

intubated for the airway protection and the oxygen level was reducing.

However, pulse rate of patient was still going down upto 30. Therefore, he

was taken on C.P.R. (Cardiac Purbunary Resuccusion). Emergency medicines

were given. These facts were explained to the relatives. He further told that

emergency operation was required and therefore, the patient was to be

shifted to Government hospital. However, before he shifted the patient, the

patient died.

16. In his cross examination he deposed that after information

given to the police station, police arrived at the hospital within half an hour.

He cannot name the relatives who was accompanied the deceased. The

relatives may be about 8 to 10 in numbers. There is no possibility of blood

coming out in large quantity when there is stab injury.

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17. As already, we have discussed the evidence of various witnesses

which fully support the prosecution case. The prosecution case is based

upon the eye witnesses. The medical evidence fully coroborates with the

version of eye witnesses. It is also evident from the evidence of PW6 that

when he examined patient on 05.05.2013, he found that the patient was in

shock, his blood pressure was not recordable, pulse count was below 60,

saturation level was upto 90%, breathing was shallow. There was loss of

blood, therefore, the patient was intubated for the airway protection and the

oxygen level was reducing. However, pulse rate of patient was still going

down upto 30. Therefore, he was taken on C.P.R. (Cardiac Purbunary

Resuccusion). He advised to shift the patient to Government Hospital,

however, before shifting the patient died.

18. Munna Hasanman Shaikh (PW7) in his examination-in-chief

stated that on 05.05.2013 he himself, Nirale, Vijay Bali were consuming

liquor near Jayesh Wine Shop in open ground. Accused Vicky and Samir

came at the said spot after some time. Samir was telling to Nirale that he

had gone for shopping and purchases some clothes with intention to tease

Nirale. Thereafter, Samir with his wife and Vicky went away and thereafter,

he also left said spot. They were having dinner at the house of Samir along

with his wife and Vicky. Vicky left the house after some time and he stayed

in house of Samir. Thereafter, after some time Vicky called Samir on mobile

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phone. Thereafter, they decided to go to Bali's house for convincing Nirale.

Accordingly, he himself, Samir's wife Ashwini and Samir went to Bali's

house. At that time, Nirale, Bali and his wife were taking dinner. Then Samir

called Nirale outside the house. Nirale came out of the house. Then Samir

took Nirale near Kirana Shop. Then Bali's wife and Bali came on the spot.

Then Samir was convincing to Nirale. Thereafter, Vicky came running with

knife from his house and stabbed Nirale on the stomach. Nirale and Samir

both fell down. They thought that Nirale was playing some drama. Others

have caught hold Vicky and thereafter he ran away from the spot. They saw

that Nirale's intestine came out but there was no blood oozing. Knife was

taken away by Vicky while running from the spot. They shifted Nirale by taxi

to Diva in Sai hospital. Hospital authority denied to admit Nirale, therefore,

they took Nirale to Mumbra in Kalsekar hospital and was admitted in the

hospital. Thereafter, police came in the hospital, but Nirale died.

19. Nothing fruitful has been elicited in the cross examination of

PW7. He stated that he has not seen knife while stabbing Nirale, however,

he was witness to shifting of deceased in the hospital in the injured

condition. Therefore, he can be considered as witness to the spot where the

incident had taken place and the fact that he saw Nirale lying in the injured

condition.

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20. There are eye witnesses which are examined by the

prosecution. Suffice it to say that, the prosecution did examine eye

witnesses who fully supports the prosecution case. Already, we have

discussed their evidences. The medical evidence clearly states that the death

of Nirale (deceased) was homicidal. Therefore, evidence of eye witnesses

corroborates with each other and medical evidence also corroborates with

the evidence of eye witnesses. Therefore, the trial Court has rightly

convicted the appellant.

21. At this stage, Mr. Vagal, the learned counsel appearing for the

appellant submits that the appellant did not come prepared, there was

scuffle and in the said scuffle there was provocation and accused-appellant

assaulted Nirale (deceased). Therefore, relying upon the judgment of

Hon'ble Supreme Court in the case of Stalin Vs. State represented by the

Inspector of Police1, learned counsel appearing for the appellant submits

that the appellant at the relevant time was hardly 20-22 years and it is the

case of one blow, therefore, the conviction of the appellant may be altered

from under Section 302 to 304-II of IPC.

22. Learned APP appearing for Respondent-State relying upon the

evidence of eye witnesses, medical evidence and two judgments of Hon'ble

1 Criminal Appeal No. 577/2020

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Supreme Court in the case of Mahesh Balmiki Alias Munna Vs. State of M.P. 2

and Sadakat Kotwar & Anr. Vs. The State of Jharkhand 3, submits that the

prosecution has proved its case beyond reasonable doubt. He submits that in

the present case, it is not the case that when quarrel ensued between

appellant and Nirale (deceased), in the same transaction, the appellant was

provoked and assaulted Nirale (deceased) by knife. It is submitted that after

the quarrel accused went to his home, brought knife and stabbed Nirale

(deceased) on his stomach and as a result intestine of Nirale (deceased)

came out and by the time he was shifted to Government Hospital, Nirale

(deceased) died.

23. We have considered the prayer of learned counsel appearing for

the appellant, however, we are unable to accede to said prayer in view of

overwhelming evidence brought on record by the prosecution in the nature

of direct evidence, so also medical evidence. As rightly submitted by the

learned APP, it is not the case that when there was quarrel between

appellant and Nirale (deceased), in the same transaction the appellant

assaulted Nirale (deceased) by knife. However, accused-appellant went to

his house brought knife and then he stabbed Nirale (deceased) on his

stomach i.e. vital part and as a result intestine came out and Nirale died.

There is no doubt that not only the appellant had knowledge that such

2 (2000) 1 SCC 319 3 Criminal Appeal No. 1316/2021

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assault on vital part by the knife would cause death of Nirale, but also the

said assault was well intended.

24. We have carefully perused the facts in the case of Stalin

(supra). The Hon'ble Supreme Court in para 9 held as under:-

Applying the law laid down by this Court in the aforesaid decisions, more particularly the decisions on the single injury and the facts on hand, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. PW3 - Nelson, who is an eye witness to the incident right from the beginning, deposed that when the deceased - Kalidas served extra beer to two persons who came from outside, the accused became angry and told the deceased why he is giving more beer to out town people and not giving to local people and thereafter the problem started and in that scuffle the accused took out the knife and stabbed from behind. From the medical evidence, the deceased sustained the following injuries: "External Injuries:

A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood."

25. It is evident from the observation made by Supreme Court in

Para 9 herein above that in that case PW3- Nelson, who is an eye witness to

the incident deposed that when the deceased- Kalidas served extra beer to

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two persons who came from outside, the accused became angry and told the

deceased why he is giving more beer to out-town people and not giving to

local people and thereafter the problem started and in that scuffle the

accused took out the knife and stabbed the deceased therein.

26. Therefore, the said blow by knife by the accused in that case

was during the scuffle between accused and victim therein, and it appears

that in the said scuffle, the accused got provoke and took out knife and

stabbed the deceased. It is not the case that there was pre meditation or pre

planning by the accused therein. However, he got annoyed because Kalidas

served extra beer to the out-town people and not to the local people, and

therefore, he started quarreling with the Kalidas and then there was scuffle

and in that process accused took out knife and stabbed the victim therein.

27. The facts of the present case as already discussed in foregoing

paragraphs are clearly distinguishable vis a vis the facts in the case of Stalin

(supra). On the contrary, the learned APP has rightly placed reliance on the

judgment of the Supreme Court in the case of Mahesh Balmiki (supra). In

para 8 of the said judgment the Supreme Court held as under:-

On the facts of this case, it cannot said that the fatal injury was inflicted without premeditation. Indeed, the appellant asked the deceased to come to a particular place to receive the watch. There, three associates of the appellant caught hold of the deceased and

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the appellant gave the fatal blow with the knife. The stab wound was given on the chest on the left side of the sternum between the costal joint of the 6th and 7th rib and both the ribs have been fractured. It appears that truck of the wound had gone through sternum, pericardium anterior and posterior after passing the ribs and thereafter entered the liver and perforated a portion of stomach. Total depth of wound was 19 cm and direction of truck was going downwards posteriorly. The impact of the single blow with knife has been disastrous. Therefore, it cannot be said that the appellant has not taken undue advantage or not acted in cruel or unusual manner. In our view, Exception 4 has, therefore, no application on the facts of this case.

28. In the facts of the present case also initially there was quarrel

between the appellant and Nirale (deceased) and after that quarrel was

over, appellant-accused went to his house and brought knife and when the

deceased was unaware, accused came with the knife and assaulted Nirale

(deceased) on the stomach i.e. on vital part of body.

29. Therefore, in the light of discussion in Para 23 to 28 herein

above, we are not inclined to accede to the said alternate prayer of the

learned counsel appearing for the appellant, hence, same stands rejected.

30. In the light of discussion in foregoing paragraphs, we are of the

considered view that the trial Court has recorded definite findings in

consonance with the evidence brought on record by the prosecution and

Bhagyawant Punde, PA 21/21 APEAL-533-2021.doc

rightly convicted the accused-appellant. Hence, appeal is devoid of merits,

same stands dismissed.

31. In view of disposal of appeal, nothing survives for consideration

in Criminal Interim Application No. 857 of 2021. Hence, same stands

disposed of.

      (N. R. BORKAR, J.)                                     (S. S. SHINDE, J.)




Bhagyawant Punde, PA