Mangesh vs State Of Maharashtra

Mangesh ...Appellant

Versus

State of Maharashtra ...Respondent

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order

dated 25.8.2009 passed in Criminal Appeal No.242/04 by the High

Court of Judicature at Bombay, Nagpur Bench, affirming the

judgment and order dated 16.3.2004 passed by 2nd Additional Sessions

Judge, Nagpur, in Sessions Trial No.366/03 convicting the appellant

under Section 302 of Indian Penal Code, 1860 (hereinafter called

IPC) and awarding the sentence of life imprisonment and, in addition

1 thereto a fine of Rs.1000/- had also been imposed and in default of

payment to undergo further rigorous imprisonment for the period of

one year.

3. Facts and circumstances giving rise to this appeal are that the

appellant's sister Sandhya had a love affair with Prashant (deceased)

which continued for 2-3 years. The appellant was fully aware of the

said affair and expressed his displeasure, having had altercations with

Prashant (deceased) several times. On 30.4.2003, the appellant saw

Prashant (deceased) and his sister Sandhya chatting with each other at

about 9.15 p.m. at a short distance from his house. He assaulted

Prashant (deceased) with the knife thrice and ran away from the spot.

4. The appellant's sister Sandhya (PW.6) called the police jeep

passing through the road. The police shifted Prashant, injured, to

hospital and while going to the hospital Prashant made a statement to

PSI Bhaurao Meshram (PW.7) which was treated to be an FIR under

Section 307 IPC. As subsequently, Prashant died, the FIR was

converted to one under Section 302 IPC. Prashant made two dying

declarations (Exh. 20 and 26), one to PSI Bhaurao Meshram (PW.7)

on 30.4.2003 and another to Mr. Prakash, Special Judicial Magistrate

2 (PW.3) on 1.5.2003 to the effect that the appellant had caused knife

injuries to him.

5. After conclusion of the investigation, charge sheet was filed

against the appellant under Section 302 IPC. In support of the case,

the prosecution examined several witnesses, however, the eye-

witnesses including Sandhya (PW.6) did not support the case of the

prosecution and they were declared hostile. The trial Court after

considering the evidence on record and the arguments made by

learned counsel for prosecution as well as the defence, convicted the

appellant under Section 302 IPC vide judgment and order dated

16.3.2004 awarding the life imprisonment and a fine of Rs.1000/- and

in default of payment to undergo further rigorous imprisonment for

the period of one year.

6. Being aggrieved, the appellant preferred Criminal Appeal

No.242/04 which has been dismissed vide impugned judgment and

order dated 25.8.2009. Hence, this appeal.

7. Shri Gaurav Agrawal, learned counsel appearing for the

appellant has made large number of submissions regarding the

veracity of the evidence on record; pointed out contradictions in two

3 dying declarations; prosecution case was not supported by any of the

eye-witnesses including Sandhya (PW.6) who had called the police

jeep which had taken Prashant (deceased) to the hospital; and the

panchnama witnesses of the recovery of knife also did not support the

case of the prosecution. However, realising the fact that there have

been concurrent findings of fact by the two courts below, wherein

after considering the contentions of the defence in detail the courts

have recorded the finding that there was no material contradiction in

both the dying declarations and the conviction could be based solely

on the said dying declarations, he restricted his case only to the nature

of offence. It has been submitted by Mr. Agrawal that as the act of

the appellant had not been pre-meditated and it all happened because

of sudden provocation, conviction could be only under Section 304,

Part I IPC and not under Section 302 IPC.

8. Mr. Shabkar Chillarge, learned counsel appearing for the State

has submitted that considering the gravity of injuries, no interference

is required with the impugned judgment by this Court. The appellant

has rightly been convicted under Section 302 IPC. The appeal lacks

merit and is liable to be dismissed.

4

9. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

10. The admitted facts, in the case, have been that the love affair of

Sandhya, sister of the appellant, continued with Prashant (deceased)

for 2-3 years. The appellant did not like the relationship and had

altercations with Prashant (deceased) several times. On seeing both of

them together at an odd hour i.e. 9.15 P.M. on 30th April, 2003, he

suddenly assaulted Prashant with knife and caused stab injuries. Later

on, Prashant (deceased) succumbed to the said injuries and died on 2nd

May, 2003. The following injuries were found on his body as per the

postmortem report:

i) Stitched wound over left side of chest 9th intercostal space in posterior auxiliary line of size 1 cm x 0.5 cm angles and margins clear cut cavity deep.

ii) Continued abrasion left shoulder, anterior aspect 3 cm x 0.5 cm, reddish.

iii) Grazed abrasion over left arm, anterior aspect 4 cm x 3 cm, reddish brown.

iv) Contused abrasion over dorsum of left hand, 3 cm x 2 cm, reddish brown.

v) Stab wound in the mid of right thigh medial aspect 1.5 cm x 0.5 cm x muscle deep, angles and margins clean.

5 vi) Stab wound over right thigh, lateral aspect in its middle 4.5 cm x 1.5 cm, muscle deep, angles and margins clear cut.

Doctor Amit Kumar (PW.1) found the following internal injuries :

i) Internal injuries to thorax cut injury to the parietal pleura corresponding to the injury no. 1.

ii) Internal injury to diaphragm cut injury through and through corresponding to injury no. 1.

iii) Peritoneum cut injury to peritoneum corresponding to injury no. 1.

iv) Cut injury to left gastric artery, cut injury to outer layer of stomach cut injury to peritoneum corresponding to injury no. 1.

Cause of death was opined to be hemorrhagic shock due to stab injury.

In the opinion of the doctor, injury no.1 was of grave nature and

proved to be fatal. Injury nos.2, 3, and 4 were simple injuries. Injury

nos. 5 and 6 did not cause any internal damage.

11. In both dying declarations made by Prashant (deceased), the

contradiction had been regarding place of injuries and nothing else

6 which has been held by both the courts below to be immaterial. What

is material in both the dying declarations that on seeing Prashant,

deceased and Sandhya together, appellant got annoyed and

immediately took out the knife which he had with him and gave three

blows on the body of deceased.

12. It is evident from the medical report that the appellant has not

given the knife blow with full force. Otherwise, the depth of the

injury No.1 would have been more than just "cavity deep". The fact

that the appellant stabbed the deceased twice in the thigh and only

once in the chest is indicative of a lack of intention to cause death.

Had the appellant intended to kill the deceased, it is unlikely that he

would flee from the scene without having inflicted more injuries on

the deceased.

13. The judgment cited by the learned counsel for the State,

Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P., AIR

2006 SC 3010, is quite distinguishable from the present case as in that

case the knife blow that caused death was given with full force and

the single injury was found to be 12 c.m. deep. Even in that case the

law has been laid down as under:

7

"The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention".

14. This Court has re-iterated the same view in Sridhar Bhuyan v.

State of Orissa, AIR 2004 SC 4100; and Gali Venkataiah v.

State of Andhra Pradesh, AIR 2008 SC 462.

15. It is not the case even in any of the dying declarations that the

appellant had premeditated or preplanned his actions or was having

any information prior to the incident that the deceased would be found

8 with his sister Sandhya at the place of occurrence. Their meeting

might have been taken by the appellant as temerity. Therefore, it is a

clear cut case of loss of self control and in the heat of passion, the

appellant caused injuries to Prashant (deceased). By no means, can it

be held to be a case of premeditation. The appellant did not cause all

the injuries on the vital part of the body. Nor the appellant caused the

fatal injury No.1 with full force, otherwise the said injury could have

been very deep. On examining the weapon, Dr. Amit Kumar (PW.1)

opined that injury Nos. 1, 2 and 3 could be caused by handle of the

knife. Death of Parshant (deceased) was not instantaneous rather he

died on third day of the incident. The appellant has not taken any

undue advantage or acted in cruel or in unusual manner.

16. Undoubtedly, injury No.1 had been caused on the vital part of

the body of the deceased but it must also be borne in mind that when a

person loses his sense he may act violently and that by itself may not

be a ground to be considered against him while determining the nature

of the offence. Each case is to be considered on its own facts,

however, taking a holistic view of the matter. In such a case, the

entire attending circumstances must be taken into consideration in

order to find out the nature of the actual offence committed.

9 (See: Kailash v. State of M.P., (2006 (11) SCC 420; and

Karuppusamy & Anr. v. State of Tamil Nadu, (2006) 11 SCC

459.)

17. Thus, the facts and circumstances of the case require alteration

of conviction of the appellant from Section 302 IPC to Section 304

Part-I IPC and ends of the justice would be met by awarding ten years

rigorous imprisonment to the appellant. Ordered accordingly. The

appeal is disposed of.

..................................J. (P. SATHASIVAM)

...................................J. New Delhi, (Dr. B.S. CHAUHAN) January 5, 2011

1