Back
1999 Supreme(Bom) 426
IN THE HIGH COURT OF BOMBAY
Vishnu Sahai T.K. Chandra Shekhara Das, JJ.
Baba @ Gulam Raza Hussain Hadi Tapti..... Appellant.
Versus
The State of Maharashtra another..... Respondents.
Criminal Appeal No. 134 of 1995, decided on 22-6-1999.
Advocates appeared :
S.G. Samant with Ms. Poonam Maria and G.H. Keluskar, for the appellant.
D.N. Salvi, A.P.P., for the respondent No. 1.
Headnote:Sections 154, 161, 165 and 23-See Indian Penal Code, 1860, Section 304, Part I.
Sections 3, 45 and 59-See Indian Penal Code, 1860, Section 304, Part I.
Sections 304, Part-I-Evidence Act, 1872, Sections 3, 45 and 59 - Criminal Procedure Code, 1973, Sections 154, 161, 165 and 235-Death - Suffered served knife blows-Conviction under Section 304-I, IPC-Appeal-Witnesses testifying abusive language used by deceased and then attacked by knife-Medical evidence corroborative-Recovery of blood-stained knife and clothes with blood group of deceased-Presence of witnesses natural-Case of sudden provocation-Held, conviction upheld but sentence reduced from 10 years to 8 years.- The involvement of the appellant in the incident has been squarely established through the evidence of the two eye-witnesses namely H and S Court has set out the circumstances in which these witnesses saw the incident. A perusal of the said para shows that their presence was natural on the place of the incident. Both these witnesses stated that the appellant inflicted a large number of knife blows on the person of the deceased. Evidence of the Autopsy Surgeon Dr. S corroborates this. Apart from the fact that it is common knowledge that incised wounds can be caused by a knife, Court find that the knife in question was specifically shown to the Autopsy Surgeon during the course of his deposition and he candidly opined that the incised wounds suffered by the deceased could be caused by it. Recovery of blood from the place of the incident by the Investigating Officer shows that the statement of these two eye-witnesses that the incident took place near Cafe Canada is true.
Apart from the ocular account, recovery of blood-stained knife on the pointing out of the appellant, under a panchanama, in the presence of public panchas also lends a seal of assurance to the prosecution case. The said knife was sent to the Chemical Analyst who found .m it blood of Po: group namely the blood group of the deceased. Court has already mentioned that the evidence of the Autopsy Surgeon is that the incised wounds found on the corpse of the deceased could be caused by this knife. In Courts view, this evidence of recovery of knife is also a clinching piece of evidence against the appellant.
Section 304(1)-Offence under -Conviction-Grave and sudden provocation-Self- control lost-Assault made-Sentence-In such situation number of injuries not material in matter of sentence.-It should be borned in mind that when a person makes an assault as a consequence of a grave and sudden provocation, he is deprived of his self-control and is not in a position to weigh on golden scales the number of blows which he should inflict. Reason and balance are postmortem phenomena and persons placed in situation in which the appellant was when he launched an assault on the deceased, cannot always be expected to act with it.
This is the rationale why in cases of sudden provocation, number of injuries .are not a crucial determinative factor in the matter of sentence to the extent to which, there are cases where a cool and calculated assault is made.
2. In short, the prosecution case runs as under :--
There were differences between the appellant and the deceased Rajendra Tatyaba Zambre-Patil on account of a premise to be used for the purposes of a hotel.
On 7-8-1993, at about 11.30 to 11.45 a.m. in 210, Mangalwar Peth, near Cafe Canada Hotel, Pune, Harishchandra Kachi P.W. 3, Sanjiv Pawar P.W. 5 and the latter's brother-in-law were trying to settle the differences between the appellant and the deceased. In the meeting, the differences could not be resolved and it was agreed to hold another meeting two to three days later. In the meantime, the appellant went to the counter, took out a knife and inflicted a number of blows with the same on the deceased. After assaulting the deceased, he ran away. It is alleged that the deceased, was saying that the appellant had assaulted him.
3. Evidence of Harishchandra Kachi P.W. 3 and Sanjiv Pawar P.W. 5 shows that after the appellant had run away, after assaulting the deceased, the deceased was taken in a rickshaw to Sasoon Hospital, Pune where the doctor pronounced him dead. Sanjiv Pawar P.W. 5 had accompanied him to the hospital.
4. The F.I.R. of the incident was recorded by the police on the information given by Sanjiv Pawar P.W. 5 to P.I. Vinod Satave P.W. 7 in Sasoon Hospital, Pune. On its basis, C.R. No. 128 of 1993 under section 302 I.P.C. was registered.
5. The investigation was conducted in the usual manner by P.I. Vinod Satave P.W. 7. During the course of it, on the pointing out of the appellant, the weapon of assault namely the knife was recovered under a panchanama. We are not entering deeper into the details of this recovery because, Mr. S.G. Samant, learned Counsel for the appellant candidly and frankly stated that he could not assail the conviction of the appellant on merits.
After completing the investigation, P.I. Satave submitted the charge sheet against the appellant on 1-10-1993.
6. Going backwards, the autopsy on the corpse of the deceased Rajendra Tatyaba Zambre-Patil was conducted by Dr. Sayyed Abdul Sami P.W. 6 who found on it, five incised wounds and two sutured wounds. Four of the incised wounds were situated in the area of abdomen and one over left chest. The sutured wounds were situated over the left cubital fossa.
On internal examination, the Autopsy Surgeon found extensive internal damage beneath injury Nos. 1 and 3 which were incised wounds situated in the region of abdomen. Dr. Sami P.W. 6 opined that the deceased died on account of shock and haemorrhage due to stab wounds to chest and abdomen and injury Nos. 1 and 3 (which were incised wounds on abdomen) were sufficient in the ordinary course of nature to cause death.
7. The case was committed to the Court of Sessions in the usual manner where a charge under section 302 I.P.C. was framed against the appellant.
During the trial, in all the prosecution examined seven witnesses. Two of them namely Harishchandra Kachi P.W. 3 and Sanjiv Pawar P.W. 5 were examined as eye witnesses. The defence of the appellant was that he was provoked by the abusive language of the deceased in terms that if he was not able to run the hotel business, he should ask his daughter to practise prostitution and consequently, while he was intending to cut the penis of the deceased a scuffle between him and the deceased took place and he ran away throwing his knife and the blood- stained clothes.
8. The learned trial Judge after discussing the evidence on record held in the concluding portion of para 21 of the impugned judgment :
"Therefore, in the circumstances, it will have to be accepted that the deceased used filthy langua
