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1995 Supreme(Bom) 467
IN THE HIGH COURT OF BOMBAY
G.R. Majithia and Vishnu Sahai, JJ.
Sudam Kisan Dhurjad.... Appellant.
Versus
The State of Maharashtra.... Respondent.
Criminal Appeal No. 590 of 1993, decided on 11-7-1995.
Advocates appeared :
Ms. Anita Agarwal, for the appellant.
K.H. Chopda, A.P.P., for the State of Maharashtra.
Headnote:Section 154-See Indian Penal Code, 1860-Sectlons 302, 452 and 323.
Injury report-Doctors do not mention in it whether the injuries could be self inflicted.
Sections 3, 35, 59 and 61-See Indian Penal Code, 1860-Section 302.
Sections 3, 59 and 61-See Indian Penal Code, 1860-Sectlons 302, 452 and 323.
Sections 3, 59 and 61-See Indian Penal Code, 1860-Sectlons 302, 452 and 323.
Sections 3, 59 and 61-See Indian Penal Code, 1860-Sections 302, 452 and 323.
Section 300, Clauses 2, 3 and 4-Murder-Axe blow inflicted on forehead of deceased causing fracture or frontal bone and resulting In death of the deceased-Act would fall under Section 300, Clauses 2, 3 and 4.
Section 302-Evidence Act, 1872, Sections 3, 35, 59 and 61-Death case-Sufficiency of injury for causing death-Its proof not specific-Effect of - Though no specific question put to doctor, injury fatal type-Not needed to be absolute certainty of death.
Sections 302, 452 and 323-Evidence Act, 1872-Sectlons 3, 59 and 61-Mother-Death of-Injuries to son with axe who a solitary eye-witness to testifying the fact-Is not a case of self-inflicted or manufactured injuries-Court held that fate of accused sealed.
The controversy in this appeal is a very short one namely, as to whether the testimony of the informant B who is an injured witness inspires confidence or not? Court has gone through the testimony of the aforesaid witness. It was on the basis of his examination-in-chief that Court has narrated the prosecution story in para 2 of this judgment. Court finds that the manner of assault given by this witness is not only in conformity with the medical evidence but, is also in tune with probabilities. The statement of this witness regarding the main incident is that at about 9.00 p.m. on 19.4.1993, the appellant and his brother Sham entered inside his house and the appellant assaulted him with an axe. He further stated that when his mother who was lying on a cot protested the appellant also assaulted her with axe on her forehead.
In the earlier part of this Courts judgment, Court has mentioned the injuries received by this witness and the deceased and their perusal would show that both of them had injuries on their person which could be caused by an axe.
Sections 302, 452 and 323-Evidence Act, 1872-Section 3, 59 and 61-Criminal Procedure Code, 1973-Sectlon 154-Late F.I.R.-Its jurisdiction- Where F.I.R. lodged after consulting relations and explanation given for delay sufficient and satisfactory, it will be justified.
The wife of the informant came running to the place where the incident had taken place and started raising cries. Many persons gathered there. The informant went to the house of B for making a phone call to the police. However, B told the informant that he would first see the situation at the house of the informant and would only thereafter make a phone call. B came to the informants house and saw that his mother was in a serious condition. He offered to take the mother of the informant to the hospital on the condition that he would not report the matter to the police. The informant, however, did not accede to this request of B. Thereafter, the informant and B went to the house of the latter and made an unsuccessful bid to contact the police on phone. Then, the informant requested his cousin to call the police but, he refused. Nobody from the village came forward to help the informant. Then, the informant went to village S where his brother-in-law resided. At the time, his wife was not at the house and he suggested that she should first be contacted. He and the informant went to Pimpalgaon where wife of the former had gone. At Pimplagaon, the informant narrated the incident to his sister. Thereafter, all of them came back to the place of the incident. Ultimately, at about 2 a.m. to 2.15 a.m. the same night, the informant contacted Police Station Nasik Road on telephone. Assurance is also lent to the statement of informant by the circumstance that he telephonically informed the Police Station Nasik Road at 2.15 a.m. on 20.4.1993 about the incident. This witness has also explained as to why he took so much time in informing the police.
Sections 302, 452 and 323-Evidence Act, 1872-Sections 3, 59 and 61-Criminal Procedure Code, 1973-Section 154-Late F.I.R.-Its jurisdiction- Where in case of death of mother and injuries to son with an axe F.I.R. lodged after conducting relations and explanation given for delay sufficient and satisfactory, it will be justified.
Sections 302, 452 and 323-Evidence Act, 1872, Sections 3, 59 and 61-Death case-Presence of plausible motive of earlier enemity due to suspicion about throwing stones on house of appellant ending weightage to evidence of Informant.
(i) Under section 302 I.P.C. life imprisonment and a fine of Rs. 100/- in default of payment of fine one month R.I.
(ii) Under section 452 I.P.C. one year R.I. and to pay a fine of Rs. 100/- in default of payment of fine, R.I. for one month.
(iii) Under section 323 of I.P.C. R.I. for one month.
The substantive sentences of the appellant had been directed to run concurrently.
Feeling aggrieved by the aforesaid convictions and sentences, the appellant has come up in appeal before us.
2. The matter before us arises out of an incident which took place on 19-4-1993, at about 9 p.m. at the house of informant Balu Narvade P.W. 1 situate in village Pimpalgaon Khamb within the limits of police station Nasik Road, District Nasik. During the incident, Smt. Jaivantibai aged 65 years, a paralytic patient, confined to bed, was killed and the informant sustained injuries; both as a result of an assault by axe made upon them by the appellant.
The appellant and the informant Balu Narvade P.W. 1 are residents of village Pimpalgaon Khamb in District Nasik. They are said to be neighbours. Two days before the incident, i.e. on 17-4-1993, someone had thrown stones in the house of the appellant. The appellants wife suspected that the same had been thrown by the informant. Ultimately, when the real culprit was caught the informant reprimanded the wife of the appellant for her unfounded suspicion upon him. On 19-4-1993 at about 8.30 or 9 p.m. when the informant was accusing the appellants wife for falsely suspecting him, the appellant and his younger brother Sham Dhurjad entered his house. The appellant threatened the informant that he would finish him. In the meantime, Karbhari Kute, P.W. 2 Sarpanch of village Belatgavan came to the informants house and intervened in the matter. Karbhari Kute is alleged to have taken the appellant and his brother to their house and advised the informant to go to his maternal aunts house to avoid further quarrel. Consequently, the informant and his wife went to the house of Manubai Paldhe (maternal aunt of informant). The informant narrated the incident to his maternal aunt. From Manubais house for sometime, one Shivaji Paldhe P.W. 6 took the informant to his house but, the informant thereafter, returned back to her house. Manubai Paldhe asked him to have dinner but, he replied that he would come within a short time after easing himself. At that time, the wife of the informant told him that the lambs at their house had to be tied and asked him to proceed to the house. The informant and his wife then came to their house. At about 9 p.m. to 9.15 p.m. the appellant and his brother Sham came inside the house. The appellant inflicted injuries on the left side of the chest of the informant with an axe who fell down as a result of the aforesaid assault. Understandably, his mother Smt. Jaivantabai who was sleeping on a quilt on the floor asked the appellant and Sham as to what they were doing. At that, the appellant is alleged to have told the informants mother that he was her son and immediately, struck her on the forehead with the same axe. The wife of the informant came running to the place where the incident had taken place and started raising cries. Many persons gathered there. The informant went to the house of Bhaskar Paldhe for making a phone call to the police. However, Bhaskar Paldhe told the informant that he would first see the situation at the house of the informant and would only thereafter make a phone call. Bhaskar Paldhe came to the informants house and saw that his mother was in a serious condition. He offered to take the mother of the informant to the hospital on the condition that he would not report the matter to the police. The informant however, did not accede to this request of Bhaskar Pald
