Nashik Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No.42 of 1984
Petitioner: Nashik
Respondent: State of Maharashtra
Apeal: Criminal Appeal No.42 of 1984
Judges: K. JAYACHANDRA REDDY & G.N. RAY, JJ.
Date of Judgment: Mar 23, 1993
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860:
Section 302 and 304 – Murder – Knife injuries – Murderous assault – Intention to cause death – Conviction under section 302 up
Held:
Appeal dismissed.
Held –
JUDGEMENT:
G.N. RAY, J. :
1. This appeal is directed against Judgment dated October 12, 1982 passed by the Division Bench of Nagpur Bench of Bombay High Court in Criminal Appeal No.247 of 1980 affirming the conviction of the appellant under Section 302 of the Indian Penal Code and sentence to undergo imprisonment for life.
2. The prosecution case in short is that the deceased Ganpat was undergoing sentence and was released on parole. On November 21, 1979, at about 4.30 p.m., the deceased Ganpat visited the shop of Shaligram (P.W.1) and asked for boiled eggs. Opposite to the shop of Shaligram, a shop was run by Girijashankar and Anil (P.W.2) in partnership. While Ganpat was standing near the shop of Shaligram, accused Nashik came there armed with a knife and he caught hold of the shirt collar of the deceased and abused him. Thereafter, a scuffling started between them. Nashik was over-powered and made to fall on the ground by Ganpat. Nashik then shouted in the name of co-accused Hamid for help. Hamid immediately rushed there with a knife and delivered a knife blow on the left thigh of Ganpat. Being so disabled by the knife blow dealt by Hamid, Ganpat released the grip on Nashik. The accused/appellant Nashik thereafter inflicted a strong blow on the stomach of Ganpat by the knife held by him and Ganpat thereafter fell down. The accused/appellant Nashik ran away from the place. A girl named Kiran (P.W.4) who was the niece of Ganpat was present there and when she tried to obstruct, Nashik, he brandished his knife which caused injury to her finger. The said girl then went to the Police Station and lodged the report. The accused/appellant Nashik was arrested and the shirt and pant from his person were seized by the police and such shirt and pant were stained with blood. One knife (Art.5) was found lying at a distance of 50 feet from the thela of Shaligram and a pair of chappals were found in the thela of Shaligram. Such articles were also seized by the police. Ganpat was rushed to the hospital but he succumbed to the injuries shortly thereafter. According to the prosecution case, the said murderous assault was witnessed by Shaligram (P.W.1), Anil (P.W.2), Kiran (P.W.4) and Dubesing (P.W.5). The appellant denied his involvement in the case. The learned Sessions Judge relied on the evidences of eye-witnesses and found the appellant guilty under Section 302 IPC and convicted him and awarded a sentence of rigorous imprisonment for life. So far as the co-accused Hamid was concerned, he was convicted for the offence committed under Section 324 IPC and was sentenced to undergo rigorous imprisonment for two years only. On appeal the High Court upheld the conviction and sentence of the appellant.
3. The learned counsel contended that although the injury proved to be fatal, in the facts of the case, it is quite apparent that the appellant did not intend to cause the murder of the deceased. It is the case of the prosecution that when the appellant brandished a knife and held the collar of the deceased and abused him, the deceased being a stout and stronger man, knocked the appellant and sat on his chest. It was only when Hamid the co-accused inflicted a knife injury on the thigh of the deceased, he released the grip on the appellant. The appellant thereafter being apprehensive of being assaulted by the deceased who was a notorious under-world hoodlum and a very strong man, inflicted a knife injury in order to save himself but unfortunately such injury proved to be fatal and the deceased died shortly thereafter. In the aforesaid circumstances, the Courts below should not have convicted the appellant under Section 302 IPC. According to the learned counsel for the appellant it was a pre-eminently a fit case to convict the appellant under Section 304 Part I IPC. The learned counsel for the appellant has contended that considering the fact that only one knife blow was dealt by the appellant in the circumstances indicated hereinbefore, it is quite evident that there was no intention to murder the deceased but the intention was just to cause injury to him and to teach him a lesson for his attitude of bullying others. He has therefore submitted that this Court should take into consideration of the said fact and modify the conviction and sentence.
4. Learned counsel appearing for the State, however, submitted that the appellant was an aggressor from the very beginning and he came with a knife and without any provocation held the collar of the shirt of the deceased and abused him. Since he was brandishing the knife, the appellant in order to save himself from being assaulted by the said knife, had to enter into scuffle with the appellant and he had over-powered him. The appellant thereafter called for aid of the co-accused and the co-accused thereafter stabbed the deceased on the thigh and being severely injured by such stabbing, the deceased had to release the grip on the appellant. Since both the appellant and the co-accused were armed with knives and the deceased being injured had to release the grip, the appellant could easily go away if he had intended to do so but the appellant without any provocation stabbed the deceased with full punch resulting in severe injuries which were likely to cause death in the ordinary course of nature. Such fact has been taken note of by the learned Sessions Judge and also by the High Court and both the Courts below had a concurrent finding that the accused/appellant was guilty of murder and was liable to be punished under Section 302 IPC and not under Section 304 as contended by the learned counsel for the appellant. He has, therefore, submitted that no interference is called for in this appeal the same should be dismissed.
5. Considering the facts and circumstances of the case, we fully agree with the views taken by the Courts below. It appears to us that the appellant initially abused the deceased by holding his collar and brandishing the knife. When the deceased could over-power the appellant, the co-accused at the call of the appellant, injured the deceased and when the deceased had to release the grip, the appellant without any provocation dealt a very severe knife blow on the stomach of the appellant who was unarmed. Such knife blow caused severe injuries to vital parts of the body of the deceased resulting his death in a very short time. Dr. Baitule who carried the autopsy had noted that besides the incised wound on the thigh, the deceased suffered an injury to the following effect:-
“Incised wound 1″ x 1/2″ transverse over the left sub-costal margin, 5″ away from the xiphisternum and two inches inside the nipple line. Margins clean cut elliptical in shape.”
He stated that there was a cut of the size of 1/5 cm. x1/5 cm. on the abdominal aorta and inferior venacava of the size 1/5 cm. x 1/5 cm. x 2.5″ above the bifurcation of the abdominal venacava. The internal injury coupled with the external injury No.1, according to him, was sufficient in the ordinary course of nature to cause death. In his cross-examination it was elicited:
“The distance of aorta and inferior venacava inside the body from the surface is between 6″ to 7″ of a fairly built body. – – It is correct to say that in causing injury No.1 the blow with knife must have been given with sufficient force.”
It cannot therefore, be held that the appellant had no intention to cause a murderous assault on the deceased without any intention whatsoever to cause death as sought to be contended before us. We, therefore, find no reason to interfere with the impugned judgment. The appeal, therefore, fails and is dismissed.
1. This appeal is directed against Judgment dated October 12, 1982 passed by the Division Bench of Nagpur Bench of Bombay High Court in Criminal Appeal No.247 of 1980 affirming the conviction of the appellant under Section 302 of the Indian Penal Code and sentence to undergo imprisonment for life.
2. The prosecution case in short is that the deceased Ganpat was undergoing sentence and was released on parole. On November 21, 1979, at about 4.30 p.m., the deceased Ganpat visited the shop of Shaligram (P.W.1) and asked for boiled eggs. Opposite to the shop of Shaligram, a shop was run by Girijashankar and Anil (P.W.2) in partnership. While Ganpat was standing near the shop of Shaligram, accused Nashik came there armed with a knife and he caught hold of the shirt collar of the deceased and abused him. Thereafter, a scuffling started between them. Nashik was over-powered and made to fall on the ground by Ganpat. Nashik then shouted in the name of co-accused Hamid for help. Hamid immediately rushed there with a knife and delivered a knife blow on the left thigh of Ganpat. Being so disabled by the knife blow dealt by Hamid, Ganpat released the grip on Nashik. The accused/appellant Nashik thereafter inflicted a strong blow on the stomach of Ganpat by the knife held by him and Ganpat thereafter fell down. The accused/appellant Nashik ran away from the place. A girl named Kiran (P.W.4) who was the niece of Ganpat was present there and when she tried to obstruct, Nashik, he brandished his knife which caused injury to her finger. The said girl then went to the Police Station and lodged the report. The accused/appellant Nashik was arrested and the shirt and pant from his person were seized by the police and such shirt and pant were stained with blood. One knife (Art.5) was found lying at a distance of 50 feet from the thela of Shaligram and a pair of chappals were found in the thela of Shaligram. Such articles were also seized by the police. Ganpat was rushed to the hospital but he succumbed to the injuries shortly thereafter. According to the prosecution case, the said murderous assault was witnessed by Shaligram (P.W.1), Anil (P.W.2), Kiran (P.W.4) and Dubesing (P.W.5). The appellant denied his involvement in the case. The learned Sessions Judge relied on the evidences of eye-witnesses and found the appellant guilty under Section 302 IPC and convicted him and awarded a sentence of rigorous imprisonment for life. So far as the co-accused Hamid was concerned, he was convicted for the offence committed under Section 324 IPC and was sentenced to undergo rigorous imprisonment for two years only. On appeal the High Court upheld the conviction and sentence of the appellant.
3. The learned counsel contended that although the injury proved to be fatal, in the facts of the case, it is quite apparent that the appellant did not intend to cause the murder of the deceased. It is the case of the prosecution that when the appellant brandished a knife and held the collar of the deceased and abused him, the deceased being a stout and stronger man, knocked the appellant and sat on his chest. It was only when Hamid the co-accused inflicted a knife injury on the thigh of the deceased, he released the grip on the appellant. The appellant thereafter being apprehensive of being assaulted by the deceased who was a notorious under-world hoodlum and a very strong man, inflicted a knife injury in order to save himself but unfortunately such injury proved to be fatal and the deceased died shortly thereafter. In the aforesaid circumstances, the Courts below should not have convicted the appellant under Section 302 IPC. According to the learned counsel for the appellant it was a pre-eminently a fit case to convict the appellant under Section 304 Part I IPC. The learned counsel for the appellant has contended that considering the fact that only one knife blow was dealt by the appellant in the circumstances indicated hereinbefore, it is quite evident that there was no intention to murder the deceased but the intention was just to cause injury to him and to teach him a lesson for his attitude of bullying others. He has therefore submitted that this Court should take into consideration of the said fact and modify the conviction and sentence.
4. Learned counsel appearing for the State, however, submitted that the appellant was an aggressor from the very beginning and he came with a knife and without any provocation held the collar of the shirt of the deceased and abused him. Since he was brandishing the knife, the appellant in order to save himself from being assaulted by the said knife, had to enter into scuffle with the appellant and he had over-powered him. The appellant thereafter called for aid of the co-accused and the co-accused thereafter stabbed the deceased on the thigh and being severely injured by such stabbing, the deceased had to release the grip on the appellant. Since both the appellant and the co-accused were armed with knives and the deceased being injured had to release the grip, the appellant could easily go away if he had intended to do so but the appellant without any provocation stabbed the deceased with full punch resulting in severe injuries which were likely to cause death in the ordinary course of nature. Such fact has been taken note of by the learned Sessions Judge and also by the High Court and both the Courts below had a concurrent finding that the accused/appellant was guilty of murder and was liable to be punished under Section 302 IPC and not under Section 304 as contended by the learned counsel for the appellant. He has, therefore, submitted that no interference is called for in this appeal the same should be dismissed.
5. Considering the facts and circumstances of the case, we fully agree with the views taken by the Courts below. It appears to us that the appellant initially abused the deceased by holding his collar and brandishing the knife. When the deceased could over-power the appellant, the co-accused at the call of the appellant, injured the deceased and when the deceased had to release the grip, the appellant without any provocation dealt a very severe knife blow on the stomach of the appellant who was unarmed. Such knife blow caused severe injuries to vital parts of the body of the deceased resulting his death in a very short time. Dr. Baitule who carried the autopsy had noted that besides the incised wound on the thigh, the deceased suffered an injury to the following effect:-
“Incised wound 1″ x 1/2″ transverse over the left sub-costal margin, 5″ away from the xiphisternum and two inches inside the nipple line. Margins clean cut elliptical in shape.”
He stated that there was a cut of the size of 1/5 cm. x1/5 cm. on the abdominal aorta and inferior venacava of the size 1/5 cm. x 1/5 cm. x 2.5″ above the bifurcation of the abdominal venacava. The internal injury coupled with the external injury No.1, according to him, was sufficient in the ordinary course of nature to cause death. In his cross-examination it was elicited:
“The distance of aorta and inferior venacava inside the body from the surface is between 6″ to 7″ of a fairly built body. – – It is correct to say that in causing injury No.1 the blow with knife must have been given with sufficient force.”
It cannot therefore, be held that the appellant had no intention to cause a murderous assault on the deceased without any intention whatsoever to cause death as sought to be contended before us. We, therefore, find no reason to interfere with the impugned judgment. The appeal, therefore, fails and is dismissed.
