B.H. Marlapalle, J.@mdashThis appeal is directed against the order of conviction and sentence passed in Sessions Case No. 597 of 2001 on 30.3.2005 and the Appellant-accused has been convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine, to suffer further R.I. for a period of two months.
2. While the appeal has been pending, the accused took out Criminal Application No. 234 of 2011 for being released on bail on the ground that he was arrested on 14.3.2001 and thus he has already undergone actual sentence almost close to 10 years and there was no possibility of his appeal being listed for final hearing in the next few months and more so when we are hearing the appeals (accused in jail) and the appeals filed in the year 2003 are still awaiting for final hearing though on board before us. We, therefore, with the consent of the parties took up Criminal Appeal No. 596 of 2005 for final hearing.
3. As per the prosecution case, the accused is the elder brother of the deceased Rohidas. Both of them were sharing one room belonging to their mother and it was partitioned in portions by a half brick wall. Both families thus share half portion each of the very same room. The accused was earning his living as a rickshaw driver. In the night on 13.3.2001, the accused had cooked some food in his portion of the house and smoke emanated in the entire room shared by two brothers. The deceased and his wife PW-3 Smt. Seema Landge could not sleep properly, and therefore, requested the accused to reduce the smoke. The accused started abusing in filthy language and he knocked on the door of the deceased and at that time he was armed with a knife. There was a scuffle between them. PW-3 Smt. Seema Landge the wife of the deceased tried to intervene but she was threatened. The accused gave blows of knife to the deceased, and one blow hit the deceased below his chest under the arm and that proved to be a fatal injury. The accused himself took the injured to Rajawadi hospital at about 1.50 a.m. and the doctor declared Rohidas dead.
4. PW-8 Chandrashekhar Deshmukh was the EPR constable at Rajawadi hospital and he recorded the arrival of the patient with the accused in his register (at Exh.29A) and at 1.55 a.m. he passed on the information telephonically to the Saki Naka Police Station where PW-9 Mrs. Sneha Giri PSI was on duty as a station house officer from 8.00 p.m. on 13.3.2001 to 8.00 a.m. on 14.3.2001. After reporting the said information to the police inspector i.e. PW-10 Chetan Kudmethe, PW-9 Mrs. Sneha Giri reached the Rajawadi hospital along with other police personnel and she met PW-8 Chandrashekhar Deshmukh and at that time PW-3 Smt. Seema Landge was also present. The statement of PW-3 Smt. Seema Landge was recorded at Exh.12 and CR No. 134 of 2001 came to be registered on 3.25 a.m. PW-8 Chandrashekhar Deshmukh drew inquest panchanama (Exh.15) and PW-6 Dr. Shivaji Kachare, Medical Officer attached to the Rajawadi hospital conducted the autopsy on 14.3.2001 between 3.00 to 4.00 p.m. He signed the postmortem report (Exh.17) and recorded the cause of the death as "haemorrhage and shock due to stab injuries." Thus, Rohidas died a homicidal death in the night of 13.3.2001 on account of the injury sustained during the scuffle between the brothers, is not in dispute. The only question of law which is required to be considered in the facts of this case and on the face of the evidence adduced by the prosecution is whether the conviction of the accused for the offence punishable u/s 302 of IPC is sustainable and whether it is required to be altered to an offence punishable u/s 304 of IPC. As per Dr. Chaudhary, the learned Counsel for the applicant, the offence in the instant case could not be more than the one punishable u/s 304, Part-II of IPC. Whereas, Mrs. Deshmukh, the learned APP urged before us that the Sessions Court was right in convicting the accused for the offence punishable u/s 302 of IPC, in view of the number of injuries seen on the deceased by PW-6 Dr. Kachare and the fact that multiple blows were given by the deadly weapon like knife.
5. The prosecution examined in all 10 witnesses. PW-1 Vinod Prajapati was the scooterist who was passing from the spot of the incident and had given lift to PW-3 Smt. Seema Landge on his Scooter immediately after the incident. Though he turned hostile but in his examination in chief he has admitted that he had given lift to PW-3 Smt. Seem Landge the wife of Rohidas and he brought her at some distance at her request in the late night of 13.3.2001 when he was returning from a party in a hotel and he appears to be a resident of Kurla, the same locality where the incident had occurred. PW-2 Jyotikumar Kamble is the panch witness for the spot panchanama (Exh.27). PW-3 Smt. Seema Landge and PW-4 Shaikh Ismail were claimed to be the eye-witnesses but PW-4 Shaikh Ismail turned hostile. PW-7 Dadaram Ransingh was the panch witness for the discovery of the knife purportedly at the instance of the accused but he turned hostile and therefore, discovery of the knife could not be proved. PW-9 Mrs. Sneha Giri, PSI and PW-10 Chetan Kudmethe were the police officers who had undertaken the investigation. PW-9 Mrs. Sneha Giri had recorded the complaint of PW-3 Smt. Seem Landge as noted above and on 14.3.2001 she handed over the investigation to PW-10 Chetan Kudmethe, Police Inspector. After all the ten witnesses were examined, the CA reports at Exh.44 and Exh.45 were also placed on record, but it appears that these reports were not put to the accused while recording his statement u/s 313 of Cr. P.C. His statement was recorded prior to filing of the CA reports during the Sessions� trial. After these reports were placed before the trial court, the record does not indicate that supplementary statement of the accused u/s 313 of Cr. P.C. was recorded. Hence, these CA reports can not be used as the incriminating evidence by the prosecution, though they are public documents and exhibited on record.
6. In any case, we need not enter into the details of this evidence adduced by the prosecution as it has been fairly admitted that there was a scuffle between the two brothers, the accused had inflicted knife blows and one of the blows proved to be fatal. Dr. Chaudhary, the learned Counsel for the applicant submitted before us that taking the prosecution case as it is, the applicant could not be convicted u/s 302 of IPC as there was no premeditation and there was no intention which could be attributed to the accused before he inflicted the blows to his brother Rohidas. It was submitted that the incident had taken place out of a sudden quarrel between the two brothers which resulted in a scuffle, the accused was armed with a knife which he had picked up of his own and inflicted blows on the deceased out of sheer anger. He himself had taken the victim to the hospital and this act further strengthens the case of the accused that he never intended to kill his brother when he inflicted knife blows. In support of his submissions, Dr. Chaudhary has placed reliance on the following decisions of the Supreme Court:
i)
ii)
7. It has come in evidence of PW-6 Dr. Shivaji Kachare that deceased had suffered the following external injuries:
i) Incised stab wound at left axillary area- 3 cm x 2cm x 18 cm. below upwards- 1 angle, acute, oblique.
ii) Incised stab wound at left posterior lateral area of left lower arm below elbow joint- 2 cm x 1.5 cm x Muscle deep- 1 angle acute.
iii) Incised wound at Medial surface of left cubital fossa- 1 angle acute admeasuring 2 cm x 1 cm x 0.5 cm.
iv) Incised wound at posterior of left scapulae- 2 cm x 2 cm x Muscle deep- 1 angle acute.
v) Incised wound at temporo - Parietal region - 3cm x 2cm into muscle deep. All these external injuries are Anti-Mortem.
The corresponding internal injuries noticed by the doctor during the postmortem, were as follows:
i) Head subcutaneous Haemorrhage are seen- contusion over right temporo - parietal region admeasuring 2cm x 2cm.
ii) Skull- right temporo - parietal with Bone 1 cm x 0.5 cm oblique.
iii) Brain- Haemorrhage are seen.
vi) Thorax- a) Walls ribs and cartilages- left side third fourth fifth, ribs fractured.
b) Pleura- ruptured on left side.
c) Right lung and left lung- ruptured on left side 1.5 cm x 1 cm into 5 cms- Haemorrhages are seen and right side haemorrhages are seen.
d) Pericardium -ruptured.
e) Heart with weight- ruptured on left interior and anterior lateral surface.
f) Large vessels- arch of Aorta ruptured.
Thus the medical evidence goes to show that there were multiple external wounds seen on different parts of the deceased viz. elbow joint, medial surface, left scapulae, temporo, stab wound at left axillary area proved to be fatal and lungs were ruptured on left side. The doctor further stated that even if the medical treatment was made available to the victim, there were no chances of his survival.
8. PW-8 Chandrashekhar Deshmukh, EPR Constable was present on duty at Rajawadi hospital in the night of 13.3.2001 when the victim was brought by the accused at about 1.50 a.m. After the victim was examined by the doctor, the victim was declared dead. He made corresponding entry in the EPR register maintained by the hospital and it was brought on record through the evidence of PW-10 Chetan Kudmethe, P.I. About the occurrence of the incidence the earliest report recoded by PW-8, is reproduced as under:
On this day, the date 14/3/2001 at about 00.15 hours, a quarrel had taken place between the deceased person and his brother by name Kisan Mukundrao Landge at the aforesaid residential place and as Kisan inflicted the blows of knife on the left side of the chest of the deceased, his brother namely Kisan Mukandrao Landge, a Hindu, 30 yrs., brought him in an unconscious state for treatment in the R. Hospital at 01.50 hours, thereupon, the doctor examined him and declared him dead before the admission
9. The exception 4 to Section 300 of IPC reads thus:
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 commits murder without premeditation.
While interpreting this exception-4 to Section 300 of IPC, the Supreme Court in the case of Surinder Kumar (Supra) stated in para 7 as under:
To invoke this exception four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused the provocation or started the assault. The number of wounds caused during the occurrence must have been sudden and unpremeditated and the offender must have acted in a feat of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly......
In the case of Sukhbir Singh (Supra), the Supreme Court in para 18 stated thus:
In the instant case, concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the Appellant and others had premeditated. As noticed earlier, occurrence took place when Sukhbir Singh got mud splashes on account of sweeping of the street by Ram Niwas and a quarrel ensued. The deceased gave slaps to the Appellant for no fault of his. The quarrel appeared to be sudden on account of heat of passion. The accused went home and came armed in the company of others though without telling them his intention to commit the ultimate crime of murder. The time gap between the quarrel and the fight is stated to be few minutes only. According to Gulab Singh (P.W.10) when Sukhbir Singh when Sukhbir Singh was passing in the street and some mud got splashed on his clothes, he abused Ram Niwas. They both grappled with each other whereupon Lachhman (deceased) intervened and separated them. Accused-Sukhbir Singh had abused Lachhman who gave him two slaps. The said accused thereafter went to his home after stating that he would teach him a lesson for the slaps which had been given to him. After some time he, along with other accused persons, came at the spot and the fight took place. His own house s at a different place. There is a street in between his house and the house of Lachhman (deceased). On the northern side of his house, the house of the Appellant is situated. Similarly Ram Niwas (P.W. 11) has stated that after the quarrel the accused went towards his house and within a few minutes he came back with other accused person. It is, therefore, probable that there was no sufficient lapse of time between the quarrel and the fight which means that the occurrence was "sudden" within the meaning of Exception 4 of S. 300 I.P.C....
10. If we test the facts of the present case and more particularly, the evidence of PW-3 Smt. Seema Landge with the evidence of PW-6 Dr. Shivaji Kachare, Medical Officer, it is clear that the incident had occurred in a sudden quarrel between the two brothers on account of smoke arising from one portion of the room around midnight of 13.3.2011. Despite the request made by the deceased Rohidas and his wife the accused did nothing to reduce the smoke and instead abused them. The accused picked up a knife and came out of his room, knocked on the door of the deceased and the deceased and his wife also came out, the fight ensued between them and the accused inflicted the blows of knife, one of which proved to be fatal. Above all, the accused himself took the victim to the hospital which has been established by the evidence of PW-8 Chandrashekhar Deshmukh, EPR constable at Rajawadi hospital and PW-10 Chetan Kudmethe, P.I. PW-10 Chetan Kudmethe, though PW-3 Smt. Seema Landge the wife of the deceased Rohidas, did not say so in her substantial evidence before the court. PW-9-Mrs. Sneha Giri, PSI admitted before the court that though the accused was taken in the custody right in the Rajawadi hospital and was subsequently arrested in the police station, the arrest panchanama could not be proved by examining the panch witnesses. All these circumstances support the defence that the offence was without premeditation, without any intention to kill the victim, and there was no dispute between the brothers and in a heat of passion the accused came out of his room with a knife, called his younger brother out of his room and a scuffle between the brothers took place and the accused inflicted the knife blows.
11. We do not find any reason to hold that the case of the accused is not covered by Exception 4 below Section 300 of IPC. Section 304 of IPC reads thus:
Section 304:
Punishment for culpable homicide not amounting to murder-Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for live], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death s caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Thus, Section 304 has to parts viz. (i) whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death and (ii) whoever commits culpable homicide not amounting to murder shall be punished with imprisonment or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
12. Having regard to the evidence placed before the trial court by the prosecution and more particularly, the medical evidence, we agree with Dr. Chaudhary, the learned Counsel for the applicant that offence in the instant case would not be culpable homicide amounting to murder. At the same time, we do not agree that the offence falls under Part-II of Section 304 of IPC. In our view the prosecution case falls u/s 304 (Part-I) of IPC.
13. Hence, this appeal succeeds and the same is allowed partly. The order of conviction and sentence in Sessions Case No. 597 of 2001 for the offence punishable u/s 302 of IPC is hereby quashed and set aside, and instead the accused is convicted for the offence punishable u/s 304(Part I) of IPC. We sentence the Appellant-accused to undergo R.I for 10 years and to pay a fine of Rs. 1000/-, in default thereof, to suffer further R.I. for a period of two months.
Undoubtedly, the Appellant-accused shall be entitled for set off u/s 428 of Cr. P.C., if applicable.
14. Criminal Application No. 234 of 2011 does not survive and disposed as such.
