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2010 Supreme(Bom) 693
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE B.H. MARLAPALLE & THE HONOURABLE MRS. JUSTICE MRIDULA BHATKAR
Rambahadur Bhimsingh Vishwakarma
Versus
The State of Maharashtra
CRIMINAL APPEAL NO.1047 OF 2002
Decided on : 06-05-2010
For the Appellant:Nitin Sejpal with Ms.Pooja Bhojane, Advocates.
For the Respondent: Ms.P.P.Shinde A.P.P.
Headnote:Indian Penal Code, 1860 - Section 302/34 Conviction and sentence under Appeal against Appellant-accused assaulted deceased with knife resulting into his death on spot Blood stained articles received in Chemical Analyst’s office 3-1/2 months time Held Evidence of eye-witness, brother of deceased and a chance witness natural and cannot be discarded Evidence sufficient to prove guilt of appellant It being a case of single blow and out of an altercation No premeditations to commit offence, case falls under Section 304 Part-I of IPC Conviction altered to one under Section 304 Part-I, IPC and accused sentence to undergo 10 years R.I. with fine of Rs. 1,000/- Appeal partly allowed. Court have to consider the other leg of the submission of the learned defence counsel. The medical evidence has disclosed that there was only one single blow on the vital part. It reveals knowledge and intention of the accused to cause such bodily injury to the deceased which is likely to cause death. However, we do appreciate the submissions of the learned defence counsel that it is not a case that the appellant accused after giving one blow has again inflicted 2/3 stab injuries which might have been disclosed the obvious intention to commit culpable homicide amounting to murder. Court cannot lose our sight from the fact that the deceased happened to meet the accused at the spot and a quarrel took place and suddenly accused took out a weapon hidden near his waist and assaulted the deceased. Thus, it is not the case of planned killing after waiting for his arrival or accused had knowledge that the deceased is going to come at the spot. These circumstances in Court’s considered view have brought the case out of the ambit of culpable homicide amounting to murder punishable under Section 302 of the Indian Penal Code and is covered under Section 304 Part I of the Code.
Hence, the appellant-accused is found guilty of culpable homicide not amounting to murder under Section 304 Part I of the Indian Penal Code. Hence, Court pass the following order.
This criminal appeal is allowed partly. The impugned order of conviction and sentence passed by the Additional Sessions Judge, Greater Mumbai in Sessions Case No. 479 of 1991 for the offence punishable under Section 302 of Indian Penal Code is hereby quashed and set aside.
The accused is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and sentenced to suffer RI for ten years with a fine of Rs. 1,000/- in default to suffer one month’s imprisonment.
Mrs. Mridula Bhatkar, J.
1. The accused along with two co-accused was charged for the offence punishable under section 302 read with section 34 of the Indian Penal Code and in contravention of the prohibition order thereby committing an offence punishable under section 37 read with section 135 of the Bombay Police Act. By Judgment and order dated 17th July, 2002 the learned Additional Sessions Judge, Greater Bombay convicted accused no.1 Rambahadur Bhimsingh Vishwakarma under section 302 of IPC and to suffer R.I.for life and fine of Rs.1000/- in default thereof R.I. for one month. The accused no.2 Anand Kisan Khambe was absconding at the time of trial hence, his case was separated.
2. Being aggrieved by the said order of conviction and sentence the appellant (accused no.1) herein has preferred this appeal.
3. As perthe case of the prosecution, the complainant PW 2 Suryakant Rawate was residing at Ghatipada hutments, Khokale chawl, B.R.Road,Mulund (W) Bombay-80. Deceased Yashwant Rawate was the active member of a union. Baban Khambe was a temporary worker employed through a contractor and was working in Hindustan Vegetable Oil Co. It is alleged by the prosecution that brother of said Baban Khambe viz Anand Khambe the absconding accused, and his friend Kalu Bhimsingh Vishwakarma
.accused no.1, Sanjay Gadkar accused no.2 and Sudhir Dalvi accused no.3 used to pursue deceased to make Baban permanent in the employment. However, deceased Yashwant and PW 3 Ramu Jaiswal had expressed there inability that it was not in their hands since it was within the authority of the chief officer of the company. The accused persons have threatened and intimidated deceased Yashwant on 9th February 1991 and also tried to assault Ganpat Kalkute PW 3 and Ramu Jaiswal.
4. On 10th February 1991 at 11.30 p.m. the complainant Suryakant Rawate and the deceased Yashwant Rawate were proceeding from the house of accused no.1 at B.R.Road, Vaishali nagar, at that time the accused halted them and started quarreling that they were not making efforts to confirm Baban Khambe. Thereupon, Yashwant tried to explain them but they did not listen and gave him kicks and fist blows. PW 2 complainant Suryakant Rawate tried to intervene but, was pushed away. Accused no.1 Kallu Vishwakarma suddenly whipped out a weapon like knife which was concealed near his waist and stabbed the same into the middle portion of the chest of Yashwant Rawate. Blood started oozing out from the said injury and as he collapsed, the accused fled away from the scene of offence. Complainant Suryakant was frightened and ran to the residence of Ramu Jaiswal PW 3. They both went to the spot of the offence and lifted Yashwant and put him in a rickshaw and immediately removed him to Mulund General Hospital. The doctor on duty examined him and declared him dead.
5. PW 7 P.I. Nemade was on duty on 10thFebruary, 1991 on receiving telephonic message from duty constable attached to Mulund hospital made station diary entry and went to the hospital made inquiries recorded statement of PW 2 which was treated as an FIR and registered the offence under C.R.No.108/1991 under section 302 read section 34 of the Indian penal code against four persons i.e. Kalu Rambahadur accused no.1. and Anand Khambe absconding accused, Suryakant Gadkar accused no.3 and Sudhir Dalvi accused no.4.
6. API Nikam drew the inquest panchanama Exhibit 24 and sent the dead body for post mortem examination on 11th February,1991 and the post mortem notes Exhibit 19 disclosed cause of death stabbed wound with perforated heart with extensive haemorrhage and shock (unnatural).
7. The spot panchanama Exhibit 29 was prepared and PW 8 recorded statements of witnesses.
8. During the course of investigation, PW 8 arrested the absconding accused Anand Khambe on 11th February, 1991. PW 7 S.I.Nemade arrested the accused nos.1,2 and 3 on 12th February, 1991. Under Memorandum Exhibit 35 and recovery panchanama Exhibit 36 one sura which was concealed
