Bombay High Court
Umesh S/O Ganeshrao Kale vs State Of Mah. Thr. Ps Arvi Dist.Wardha ... on 12 November, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:12387-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 732/2023
Umesh s/o Ganeshrao Kale,
Age 25 yrs., Occ. Nil,
R/o. Kawadgavan, Tah. Tiwasa,
Dist. Amravati.
...APPELLANT
VERSUS
1. State of Maharashtra,
through Police Station Arvi,
Dist. Wardha.
2. Tejas s/o Laxmanrao Mendhe,
Amendment as per
order dated Age 23 yrs., Occ. Student,
30.01.2024 R/o. Kawadgavan, Tah. Tiwasa,
Dist. Amravati.
RESPONDENTS
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Mr. Amol Mohan Jaltare, Advocate for appellant.
Mr. A. A. Madiwale, Addl. Public Prosecutor for respondent No.1.
Mr. Anirudh Ananthakrishnan, Advocate (appointed) for respondent
No.2.
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CORAM : VINAY JOSHI AND
MRS. VRUSHALI V. JOSHI JJ.
JUDGMENT RESERVED ON : 03.10.2024
JUDGMENT PRONOUNCED ON : 12.11.2024
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JUDGMENT :
(PER: VINAY JOSHI, J.)
Heard.
2. This appeal arises out of judgment and order dated
01.08.2023 rendered by the Additional Sessions Judge, Wardha in
Special (Atro.) Case No. 36/2019, whereby appellant/accused was
convicted for the offence punishable under Sections 302 and 447 of
the Indian Penal Code ("IPC") read with Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
("SC and ST Act"). The appellant was sentenced to undergo
imprisonment for life and to pay fine of Rs. 50,000/- with default
clause for the offence punishable under Section 302 of the IPC read
with Section 3(2)(v) of the SC and ST Act whilst he was sentenced to
suffer rigorous imprisonment for one year and to pay fine of Rs.
1,000/- for the offence punishable under Section 447 of the IPC.
Both sentence were directed to run concurrently.
3. The appellant Umesh along with his father Ganesh and
cousin brother Rishikesh were prosecuted for the offences punishable
under Section 302, 120-B, 324, 504, 449 read with Section 34 of the
IPC, Section 4 read with 25 of the Arms Act, and Section 3(2)(v) of
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the SC and ST Act. During pendency of trial, accused No.2 Ganesh
died, hence case stands abated to his extent. The Trial Court has
acquitted co-accused Rishikesh on account of inadequacy of evidence.
The appellant was acquitted from rest of the charges. The State has
neither challenged the acquittal of appellant Umesh from rest of the
charges nor challenged the acquittal of co-accused Rishikesh from all
the charges.
4. The prosecution case in nutshell is that, few months
preceding to the incident dated 16.02.2019 son of deceased Bebitai
namely Suraj has enticed sister of appellant namely Pooja and their
whereabouts were unknown. Appellant Umesh is real brother of
enticed girl Pooja whilst co-accused Ganesh was his father and
acquitted accused Rishikesh was cosine brother of Umesh. Since son
of deceased Bebitai enticed sister of appellant Umesh, their relations
were strained.
5. On the day of occurrence, all accused initially in search of
the family of deceased Bebitai went to the house of sister of Bebitai
and inquired about whereabouts of Bebitai and her family. Son of
Bebitai's sister namely Viki told to the accused that he was unaware
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about the address of Bebitai. Thereafter, Viki telephonically informed
Bebitai and her son Tejas that the accused are in their search.
Perceiving the quarrel which may erupt, Tejas has called his cousin
Karan Wankhede, friend Sachin Borkar and Vilas Sayam to his house.
6. Around 05.30 p.m. Umesh and others arrived at the
informant's house, on which deceased Bebitai prepared Tea. Umesh
has inquired with Bebitai about their son Suraj and his sister Pooja.
Bebitai showed ignorance, on which accused Umesh said that she
being mother of Suraj, she must be aware. At the relevant time, co-
accused Ganesh (deceased) was standing in front of the house and
started to abuse loudly. Deceased Bebitai asked Ganesh for not to hurl
abuses. Accused Umesh came out of the house, took his father
Ganesh little aside, pacified him and returned. While they were in
courtyard, accused Umesh asked Sachin as to why he was standing in
between, as he wanted to talk with Bebitai. Suddenly Umesh took out
the knife from his trouser and stabbed at the left side of the abdomen
of Bebitai. Sachin Borkar tried to snatch the knife which fell down.
As there was hue and cry, Umesh and Rishikesh fled by ridding on
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motorcycle. Ganesh was about to run, however he was caught by the
villagers.
7. Bebitai sustained bleeding injury at her abdomen, hence
she was shifted to Primary Health Center at Arvi. The Medical Officer
referred her to the Government Hospital, Amravati, however the
Doctor of Government Hospital, Amravati declared her dead. In the
late hours, Tejas went to the concerned Police Station and lodged
report regarding the occurrence. On the basis of said report regarding
commission of cognizable offence, the Police have registered crime
No. 134/2019. Panchanama of the scene of offence was drawn.
Autopsy was conducted on the dead body. The accused were made to
arrest. During the course of investigation, the statement of several
witnesses have been recorded. At the instance of accused Umesh,
blood stained knife and clothes have been seized. After completion of
investigation, final report has been filed. The Trial Court has framed
charge against all three accused. However, during pendency, father
Ganesh died. After evaluating oral and documentary evidence, the
Trial Court convicted Umesh for the aforesaid offences whilst
acquitted co-accused Rushikesh.
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8. In order to establish the guilt of accused, prosecution has
examined in all 15 witnesses. The entire thrust of the prosecution was
on the evidence of informant P.W.1 Tejas and PW-5 Karan Wankhede
who were the eye-witness. Besides that, prosecution has relied on the
evidence of Panch Witnesses, Medical Officer and the Investigating
Officer. The statement of accused was recorded in terms of Section
313 of the Code of Criminal Procedure. The defence of the accused
was of total denial and false implication. However, the accused stated
that at the relevant time, there was quarrel, in which Sanchin tried to
assault Umesh by means of knife, which Umesh warded, on which
knife landed at the stomach of Bebitai causing severe injury.
According to the defence, in order to screen the real culprit, they have
been falsely implicated.
9. The learned defence counsel has strongly criticised the
prosecution case from every possible angel. It is argued that the Trial
Court failed to consider the defence version which was quiet probable.
The injuries sustained by accused No.1 Umesh have not been
explained by the prosecution. Though the accused were known to the
informant, their names have not been disclosed to the Police soon-
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after the occurrence. Moreover, at the time of drawing spot
panchanama, it was informed that assailants were unknown. There
was considerable delay in recording statements of eye-witnesses. The
prosecution has not examined star witness Sachin Borkar who
sustained injury in the incident. Though the Police received
information within few hours, however crime was not registered.
10. It is argued that the death of Babitai was on account of
reckless treatment. Medical evidence states that stab injury was not the
cause of death, but due to continuous bleeding, Bebitai died. It is
argued that the incident as a whole does not disclose that the accused
intended to kill Bebitai. In heat of passion, the incident occurred, in
which a single blow was delt and thus, it does not constitute the
offence of murder. Besides that, some other flaws and variations in the
process of investigation have been pointed out.
11. The learned Additional Public Prosecutor and Mr.
Ananthakrishna learned appointed counsel for respondent
No.2/informant supported the impugned judgment. It is argued that
the PW-1 Tejas Mendhe and PW-5 Karan Wankhede have
categorically stated about the incident of inflicting knife blow by
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Umesh at the abdomen of Bebitai. It is argued that there was
sufficient motive for accused to eliminate Bebitai. The defence
version is totally improbable. Neither there was quarrel nor accused
have been provoked to claim exception. Carrying of knife, choosing
vital part of the body are the indicators from which it can be derived
that it is a case of murder. With these contentions, both of them urged
for dismissal of appeal. Both sides have relied on various precedents to
which we prefer to make contextual reference.
12. Few facts of the case are not in dispute. Suraj who was son
of deceased Bebitai, enticed Pooja a sister of accused Umesh. Both ran
away and their whereabouts were not known. On said count, relation
between two families were strained. Both families were residing in the
neighbourhood at village Kawadghavan, Tah. Tiwasa, Dist. Amravati.
However, after incident Bebitai and her family shifted to village Arvi.
Undisputedly, on 16.02.2019, in the evening around 06.00 p.m. all
accused went to the house of Bebitai at Arvi to inquire about Suraj and
Pooja. Incident occurred in the open courtyard, in which Bebitai
sustained stab injury at her abdomen which proved to be fatal.
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13. No one has disputed the above referred facts. However,
both are coming with rival version regarding the occurrence. It is the
prosecution case that, at relevant time, accused No.1 Umesh stabbed at
the abdomen of Bebitai, whilst it is defence version that informant's
friend Sachin Borkar attempted to assault Umesh who warded blow
which accidentally landed at the stomach of Bebitai.
14. The prosecution has examined in all 15 witnesses,
however the prosecution rests on two eye-witnesses i.e. PW-1 Tejas
Mendhe and PW-5 Karan Wankhede. Though Sachin Borkar was
present at the time of occurrence, however he has not been examined.
We have gone through the evidence of both eye-witnesses who have
deposed in consonance with the prosecution case. They deposed the
entire incident as to how trio came to the house of Bebitai, had initial
talk, then all of them came out of the house. The evidence also
unfolds that accused Ganesh started abusing loudly by standing on the
street, on which accused No.1 Umesh took him to little aside and
pacified him. Umesh came back to the courtyard, asked Sachin Borkar
to go away as he desires to talk with Bebitai. Both of them stated that
suddenly Umesh took out knife and delt a blow at the right side
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abdomen of Bebitai. The evidence of both eye witnesses is consistent
on the core issue. The defence has grilled both the witnesses to
probabilize the defence version. However, both of them categorically
denied the suggestions given by defence that Sachin Borkar tried to
assault Umesh and accidentally Bebitai sustained injury. Besides
denied suggestions there is nothing to probabilize the defence version.
15. Pertinent to note that Sachin Borkar was a friend of
informant Tejas. Since Tejas perceived that on arrival of accused, there
may be heated argument, Sachin Borkar was already called. It is
difficult to accept the defence story that Tejas has screened the act of
Sachin Borkar of assaulting his mother by falsely implicating Umesh.
Moreover, it requires to be noted that after incident, Sachin Borkar
remained on the spot till arrival of Police and also showed the place of
occurrence. The said immediate subsequent conduct of Sachin Borkar
itself is sufficient to discard the defence version. Otherwise, he would
have been ran away out of the fear. Likewise, the accused who
immediately fled from the spot also supports the prosecution case. We
are satisfied that the evidence of PW-1 Tejas Mendhe and PW-5 Karan
Wankhede is convincing, cogent and reliable. It has sufficiently
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established that at the relevant time, accused No.1 Umesh gave a
single knife blow at the abdomen of Bebitai which took her life.
16. The learned counsel for appellant relied on the decision
in cases of Lakshmi Singh and ors. Vs. State of Bihar, (1976) 4 SCC
394, Nand Lal and ors. Vs. State of Chhattisgarh, (2023) 10 SCC 470
to contend that non-explanation of injuries on the person of accused is
fatal to the prosecution case. No doubt, it has come in the evidence of
PW-6 Dr. Hemant Patil that on 17.02.2019, at the instance of Police,
he has examined accused Umesh and found lacerated wound at
middle and ring finger of left hand. Injury certificate (Exh.122) has
been issued to that effect. The explanation has come in the evidence
of informant Tejas itself. It has come in the evidence that no sooner
Umesh took out knife from his trouser and gave stab to Bebitai,
Sanchin Borkar caught hold the knife, which fell down. Thus, it is
apparent that after single stab, there was scuffle between Umesh and
Sachin which would be the probable cause for Umesh to sustain injury.
Absence of specific evidence in that regard, cannot be capitalized to
discard the truthful and consistent version of two eye-witnesses.
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17. The learned counsel for appellant by relying on the
decision of the Supreme Court in case of Narsinbhai Haribhai
Prajapati etc. Vs. Chhatrasinh and ors., AIR 1977 SC 1753 would
submit that if the testimony of eye-witnesses is found unacceptable
then it is difficult to sustain a charge of murder. There can be no
dispute about said proposition, however it is a factual aspect. Always
conclusion is to be drawn on the basis of emerging facts and material.
We have considered the evidence of both eye-witnesses which is fully
reliable. There is no material to discredit the natural version of these
eye-witnesses, whose presence is admitted.
18. The learned counsel for defence would submit that
inordinate delay in lodging First Information Report loses the worth
of prosecution case. It is submitted that since the injury was caused by
Sachin Borkar, initially name of assailant was not disclosed which
percolated into the Spot Panchanama. It is submitted that though
Police Station was at short distance, the report was not lodged till next
date and thus, it is fatal to the prosecution. In order to uphold said
submission, reliance is placed on the decision of the Supreme Court in
cases of Bihri Nath Goswami Vs. Shiv Kumar Singh & ors., (2004) 9
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SCC 186, Ashraf Hussain Shah Vs. State of Maharashtra, 1996
CRI.L.J. 3147, Mahtab Singh & anr. Vs. State of Uttar Pradesh,
(2009) 13 SCC 670 and State of Karnataka Vs. M.S. Basappa & ors.,
(2019) 16 SCC 242. Always inordinate delay in registration of crime
is matter of suspicion as there are chances of concoction. However it
depends upon the facts and circumstances of each case whether time
gap between the occurrence and registration of report can be
construed as an inordinate delay. The incident as a whole is to be
looked upon to find whether there was unexplained inordinate delay.
19. The incident occurred on 16.02.2019 around 06.00 p.m.
Bebitai was immediately taken to the Sub-District Hospital, Arvi and
after primary treatment, she was taken to the Government Hospital,
Amravati where she died. Informant Tejas who was son of deceased
Bebitai, accompanied her throughout. After demise of Bebitai, he
went to the Police Station and lodged report around 05.00 a.m. of
17.02.2019. The chain of event itself discloses that after death of
Bebitai at Amravati, within few hours, informant Tejas returned to
Arvi and lodged report. Obviously, the primacy for the informant was
to look after his bleeding mother and thus, the said time gap cannot be
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construed as an inordinate delay. It emerges from the evidence that on
receipt of intimation that unknown persons have assaulted deceased
Bebitai, station diary entry was taken and Police arrived at the spot
around 08.00 p.m. Panchanama of the scene of offence was carried
out in presence of PW-3 Rajesh Shirghare in between 08.30 p.m. to
10.00 p.m. True, panchanama bears a reference that assault was by
unknown person. However it requires to be noted that on the basis of
initial cryptic telephonic information, the Police have noted
accordingly in Panchanama. That does not mean that assailants were
unknown. Pertinent to note that accused have not disputed the
occurrence at all. The parties were well known to each other and
therefore, the defence cannot muster any strength from the fact that
the Panchanama refers the assailants as unknown persons.
20. The learned Addl.P.P. relied on the decisions of Franco
D'Souza Vs. State of Goa, 2004(4) Mh.L.J., Leela Ram (dead)
through Duli Chand Vs. State of Haryana & anr., (1999) 9 SCC 525
to contend that minor lapses in investigation would not affect the
prosecution version. Certainly, it is matter of appreciation whether the
lapses are major or inadvertent which is matter of fact. Though
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initially, the Police have not recorded statement of witnesses on the
spot, however there is no reason to discard the prosecution case on
such lapses. The defence has criticized that prosecution has not
examined star witness i.e. Sachin Borkar who equally sustain injury.
In response, the learned Addl.P.P. by relying on the decision of this
Court of Shyamsundar Vithal Pawle & anr. Vs. The State of
Maharashtra, 2021 ALL MR (Cri) 112, would submit that non-
examination of eye-witness is not fatal to the prosecution. We may
repeat that quality matters than the quantity. The prosecution has
examined two eye-witnesses to establish the guilt. Their evidence is
cogent, reliable, consistent and credit worthy. In such background,
non-examination of Sachin Borkar cannot be termed to be fatal to the
prosecution.
21. The prosecution has duly established that accused Umesh
gave single knife blow at the abdomen of Bebitai, which was proved to
be fatal. Naturally the next question falls for consideration is as to
what offence would be constituted on the above proved facts. The
Trial Court has not delved upon said issue at all. It is directly held that
since Umesh stabbed to the Bebitai taking her life, the offence of
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murder has been proved. We are in disadvantageous position on this
crucial point for getting assistance from Trial Court. The Trial Court
ought to have spelt out as to how the facts constitutes the offence of
'murder' as defined under Section 300 of the IPC.
22. Both sides made elaborate submissions as to what offence
has been constituted. The learned counsel for appellant would submit
that it was not a pre-meditated attack. The dispute was already
resolved between the parties. They had peaceful talk and even accused
had tea in the house of deceased Bebitai. Co-accused Ganesh though
started abusing, he was pacified and then while leaving, there was
some altercation, in which Umes lost temper and gave stab and thus,
there was no intention to kill or to cause that particularly bodily injury
which took life of Bebitail. Secondly, it is argued that the injury
inflicted was not sufficient in the ordinary course of nature to cause
death. For this purpose, we have been taken through the evidence of
PW-8 Dr. Harish Kunde who has conducted autopsy on the dead
body. It has come in his evidence that he has noticed a stab wound
over epigastric areas size 4 x 3.5 x 8 c.m. as mentioned in column No.
17 of the P.M. Notes. PW-6 Dr. Hemant Patil who has initially
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examined Bebitai in Sub-District Hospital, Arvi noted a stab wound at
abdomen wall at the junction of epigastrium and umbilical region of
sized 3.5 x 1 c.m.
23. PW-8 Dr. Harish Kunde admits that he has not noticed
sutures (stitches) on the stab wound. He admits that patient would
have survived, if the Doctor has applied stitches. He has admitted
that there was no damage to the intestine of the patient. Particularly,
he admits that stab wound is not immediate cause of death but it is
secondary cause. Doctor has opined that the cause of death was due to
cardiac respiratory arrest with sever haemorrhagic shock with gross
internal haemorrhage with stab wound. On the basis of said material,
it is argued that for want of proper treatment, patient died and thus, it
is not a case of homicidal death amounting to murder. The learned
counsel for appellant relied on the decision of this Court in case of
Shailesh Mahadeorao Gawai Vs. the State of Maharashtra, 2018 ALL
MR (Cri) 2797 to contend that absence of injury certificates and post-
mortem report not showing that injuries sustained by deceased were
sufficient to cause death in ordinary course may not attract the offence
punishable under section 302 of the IPC.
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24. Moreover, much stress is led on the aspect that it is a case
of single blow in sudden altercation and thus, the case would not fall
under Section 300 of the IPC. In this regard, the appellant relied on
the decision in cases of Ramesh Genu Kusalkar & ors. Vs. State of
Maharashtra, 2019 ALL MR (Cri) 3887, Shivappa Buddappa Kolkar
alias Buddappagol Vs. State of Karnataka and ors., 2005 ALL MR
(Cri) 207 (S.C.). On the other hand, learned APP relied on the
decisions in case of Antram Vs. State of Maharashtra, 2007 ALL MR
(Cri) 3547 (S.C.) Virsa Singh Vs. State of Punjab, SCR 1495 to
contend that though it is a case of single blow, there was very much
intention to cause death and it is an offence of murder. The learned
counsel for respondent No.2 has also relied on the celebrated decision
in case of Virsa Singh (supra) to contend that it is an offence of
murder.
25. We have to consider the entire incident as a whole. The
relations between the parties have been strained. It has come in the
evidence that when the accused went to the house of Bebitai, initially
they asked for tea which they had. PW-1 Tejas admitted that on initial
talk, Umesh said that they have forgotten the past and now asked
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about whereabouts of the couple. He admits that at the time of having
a tea and initial talk, there was no quarrel at all. It has come in his
evidence that while father Ganesh was hurrling abuses by standing on
the street, Umesh took his father at some distance and pacified him.
PW-1 Tejas admits that when Umesh calmed down his father Ganesh,
the dispute was over. PW-5 Karan Wankhede stated in his evidence
that on arrival of Umesh, they forgotten differences and all of them
had a tea. He admits that when Umesh returned to the courtyard after
pacifying his father, again there was oral altercation in between
Umesh, Vilas Sayam and Sachin Borkar, followed by Umesh giving a
single knife blow at the stomach. It requires to be noted that in the
said rucksack, knife fell down, on which Umesh did not attempt to
take it back, but ran away. It emerges that there was no definite
intention on the part of Umesh to cause the very injury which he
caused, which ultimately led to death of Bebitai.
26. Even assuming for a moment that prosecution story was
correct and the accused Umesh is liable for conviction, it would not
still a case of murder as there was no evidence to show that the accused
had intended to cause the very injury which had caused death. The
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fact of the case undoubtedly supports the defence version that the
dispute was settled and while leaving, again there was altercation, in
which as of sudden a single blow was dealt at the abdomen of Bebitai.
Accused Umesh unmindful of consequence, inflicted a single blow in
a cruel manner which unfortunately caused sever damage to the
internal organ causing death, but there is absence of definite intention.
27. We are aware that single blow is not the sure criteria to
convert the offence of murder into the offence of culpable homicide
not amounting to murder. A single blow may, in some cases, entail
conviction under Section 302 of the IPC, in some cases under Section
304 of the IPC and in some other cases may be under Section 326 of
the IPC. The question with regard to the nature of offence has to be
determined on the facts and in the circumstances of each case. While
assessing the case, all the facts and circumstances needs careful
consideration. The factual situation has to be considered in each case
and the events which precede, will also have a bearing on the issue,
whether the act by which the death was caused was done with an
intention of causing death or knowledge that it is likely to cause death.
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It is the totality of the situation which will decide the nature of
offence.
28. The intention to cause death can be gathered generally
from a combination of a few or several facts like nature of weapon,
whether blow is aimed on vital part, whether the incident occurs by
chance, whether there was prior enmity, whether there was grave and
sudden provocation, whether in heat of passion the incident occurred
and so on. All these circumstances would help to find out about the
intention on the part of the accused. Merely because a knife was used
and the deceased succumbed to injury is not sure criteria. There is no
hard and fast rule in case of use of sharp aged knife at the stomach, the
offence would be under Section 302 of the IPC. It depends upon the
facts of particular case.
29. It emerges that there were earlier visits also. On the date
of occurrence, the trio went to inquire about the couple. There was a
peaceful talk between them. The accused had a tea in the house of
deceased Bebitai. Though co-accused was abusing, he was calmed
down by Umesh, but while returning, again there was altercation in
which single stab injury was caused. Considering the totality of the
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facts and circumstances of the case, it does not meet the essentials to
constitute the offence punishable under Section 302 of the IPC.
However, the accused inflicted a single blow with weapon like knife
and the injury was caused at the abdomen of the deceased, therefore it
is to be presumed that causing such bodily injury was likely to cause
death falling under Section 304 Part I of the IPC. We therefore,
convert the conviction of the appellant Umesh to that extent.
30. The accused Umesh is in Jail since 17.02.2019 i.e. for the
period of near about 5 years and 8 months. He is young who has lost
his father. We are mindful of the fact that due to grave act, accused
took life of a human-being. Having regard to all above facts, in our
considered view, rigours imprisonment for 8 years would meet the
ends of justice, which we impose by converting offence punishable
under Section 302 of the IPC into offence punishable under Section
304 Part I of the IPC along with fine of Rs.10,000/-, in default to
suffer further rigours imprisonment for six months. In view of above,
by partly allowing the appeal, we modify the sentence to above extent
only. The rest part of the operative order shall remain as it stands.
31. Appeal stands disposed of in above terms.
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32. Fees of the appointed counsel for respondent No.2 be
paid as per Rules.
(MRS. VRUSHALI V. JOSHI J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 12/11/2024 17:55:14
