R.A. Jahagirdar, J.
1. In Sessions Case No. 68 of 1982 tried by the learned Additional Sessions Judge of Nasik, four persons were tried for offences punishable under section 302 read with section 34, section 307, section 323 and section 504, all of the Indian Penal Code. The appellants in this appeal were accused Nos. 1 and 2, while accused Nos. 3 and 4 before the learned Sessions Judge were acquitted of the offences with which they had been charged. For the sake of convenience we will refer to the appellants as accused Nos. 1 and 2 and we will not refer to the evidence relating to accused Nos. 3 and 4 at all except where in the context of the discussion of evidence relating to accused Nos. 1 and 2 their names appear.
2. The charged framed against the accused was that they in furtherance of their common intention committed the murder of one Gokul Trimbak Jadhav at 11-30 p.m. on 8th March, 1982. The incident in which the said Gokul Trimbak Jadhav was killed took place at Sinnar town in Sinnar Taluka of Nasik district. As an alternative charge accused No. 2 alone was charged with the offence of committing the murder of the said Gokul Trimbak Jadhav and thus committing an offence punishable under section 302 of the Indian Penal Code. It may be stated here that the learned Sessions Judge has ultimately convicted accused No. 2 alone of the offence punishable under section 302 of the Indian Penal Code.
3. Accused No. 1 was further charged with the offence punishable under section 307 of the Indian Penal Code for having caused knife injuries to one Krishnabai Pandurang with such intention or knowledge and under such circumstances that if by the act committed by accused No. 1 death had ensued, he would have been guilty of the offence punishable under section 302 of the Indian Penal Code.
4. Accused No. 2 was further charged with a similar offence punishable under section 307 of the Indian Penal Code on the ground that he had caused knife injuries to one Satyabhamabai, wife of Jivaji at the same time and place.
5. Accused Nos. 1 and 2 were charged with the offence punishable under section 323 for having caused simple hurt to one Vasudeo Pandurang Chavan who is the main prosecution witness in this case, but both of them were acquitted of the said offence.
6. In order to appreciate the substance of the charge leveled against accused Nos. 1 and 2, it would be profitable to briefly mention the prosecution case, though the same has been given in great details in the judgment of the learned Sessions Judge. At Sinnar there is said to celebrate a Holi on a smaller scale and this celebration takes place on the day earlier to the regular Holi day. This mini Holi is called Kokat Holi and it fell on 8th March 1982. The Holi was burning about 100 to 150 paces away from the house of the accused at about 9.30 p.m. on that day. The prosecution has alleged, and to some extent it has been accepted by the learned Sessions Judge, that there were two incidents on 6th March, 1982 and on 7th March, 1982 in which there was heated exchange of abuses between accused Nos. 3 and 4 on the one hand and Krishnabai and Satyabhamabai on the other. Krishnabai has been examined as P.W. 2 and she is the mother of Vasudeo aforesaid, who is P.W. 1, and of Satyabhamabai who is examined as P.W. 10. A similar incident involving exchange of abuses took place again on 8th March, 1982, that is, on that Kokat Holi day. The prosecution has alleged that when Vasudeo Pandurang, P.W. 1, was sitting in his house along with his mother and sister Krishnabai and Satyabhamabai respectively after the evening meals, they heard accused Nos. 3 and 4 abusing them. On hearing such abuses they came out and questioned accused Nos. 3 and 4 as to why they were abusing them. This only resulted in further exchange of abuses. At that time accused No. 1 suddenly came from his house with a knife in his hand and inflicted knife blows on the abdomen of Krishnabai who fell unconscious almost instantaneously. Her daughter Satyabhamabai was present near the place and when she went to intervene she was assaulted by accused No. 2 who caused her incised wound again on her abdomen. Vasudeo naturally came on the scene in order to prevent any further mischief being committed on his mother and sister and in that process he was also, according to the prosecution, beaten. But worse fate awaited one Gokul Trimbak who is the son of one Hausabai, a neighbor of the family of Vasudeo. He rushed to the scene to intervene and to rescue the ladies from any further assaults at the hands of accused Nos. 1 and 2. Accused No. 2 inflicted severe knife injuries on the said Gokul. Thereafter accused Nos. 1 and 2 retreated from the scene.
7. The incident was almost immediately reported by Vasudeo Pandurang to the Police Station of Sinnar. Investigations were taken up. The other two injured persons were taken to the hospital. Gokul, however, succumbed to his injuries before any effective treatment could be given to him. It is not necessary to refer to the medical evidence in any great details because apart from the question as to whether the injuries suffered by Gokul would bring the offence to one under section 302 or section 304 Part II of the Indian Penal Code, no other arguments have been advanced on the actual injuries caused to the various persons. Statements of most of the witnesses were recorded on 9th March, 1982. The statements of Krishnabai and Satyabhamabai were, however, recorded somewhat later, namely, on 23rd March, 1982 and 2nd April, 1982 respectively. Some arguments have naturally been advanced by the learned Advocates appearing for the accused before us on this belated recording of statements of Krishnabai and Satyabhamabai and naturally we will refer to the same in the course of the judgment.
8. On these facts the accused were put up for trial. In support of its case the prosecution naturally examined P.W. 8 Vasudeo Pandurang who not only deposed to as an eye-witness but also proved the first information report which was lodged by him at the earliest, namely, on the mid-night of 8th and 9th March, 1982. Krishnabai and Satyabhamabai, P.Ws. 2 and 10 respectively being injured persons were also examined. Two other eye-witnesses, namely, Hausabai Trimbak Jadhav, the unfortunate mother of Gokul, and one Nivrutti Waluji Jadhav, a neighbor, were examined as P.Ws. 11 and 15 respectively. Dr. Ujalambkar of Sinnar who not only treated Satyabhamabai and Krishnabai but also conducted the post mortem examination of Gokul was examined as P.W. 13. Dr. Ashok Bachhav of Nasik Civil Hospital was also examined for proving the treatment which was given to Satyabhamabai and Krishnabai in the Civil Hospital at Nasik. Two Investigating Officers were also examined on behalf of the prosecution.
9. The defence of the accused was one of total denial. Accused No. 1 in fact contended that he was not at all present at Sinnar on the date of the incident, while accused No. 2 said that he only came outside the house after he heard the commotion consequent upon the quarrel between his mother and the mother of Vasudeo. According to accused No. 2, he admonished Vasudeo Pandurang as to why he and his mother were giving abuses. Vasudeo himself, says accused No. 2, had come on the scene with a knife in his hand in order to assault accused No. 2. It is only the knife held by Vasudeo that caused injuries to all the injured persons one of whom was the deceased Gokul. There is in evidence discovery of dagger pursuant to a statement made by accused No. 2 under section 27 of the Evidence Act. Since, however, the said evidence does not directly connect the accused with the incident in question, we are refraining from referring to the same. It has not been also referred by the Court below for holding accused Nos. 1 and 2 guilty.
10. The learned Sessions Judge was sufficiently impressed by the testimonies of the five witnesses two of them inured and three eye-witness. He was, therefore, not persuaded to hold that accused No. 1 could be held guilty of the offence punishable under section 302 read with section 34 of the Indian Penal Code because there could not have been a common intention between accused No. 1 and 2 for committing the murder of Gokul. Consistent with these findings the learned Sessions Judge convicted accused No. 1 of the offence punishable under section 307 of the Indian Penal Code and sentenced him to rigorous imprisonment for 7 years. Accused No. 2 was in the first place convicted for the offence punishable under section 302 of the Indian Penal Code for having caused the death of Gokul and in the second place for the offence punishable under section 307 of the Indian Penal Code in respect of the injury caused to Satyabhamabai. For the first of the offences, he was naturally sentenced to imprisonment for life, while for the second of the offences, he was sentenced to rigorous imprisonment for 5 years. We do not see any reason as to why the learned Sessions Judge made a distinction between accused No. 1 and accused No. 2 while awarding the sentence in respect of the offence punishable under section 307 of the Indian Penal Code. The injuries caused by both accused Nos. 1 and 2 to Krishnabai and Satyabhamabai were equally serious, equally unprovoked and equally unjustified. In terms of ferocity and cruelty there was no distinction between the injuries caused by accused Nos. 1 and 2 to Krishnabai and Satyabhamabi. Since, however, accused No. 2 has also been sentenced to life imprisonment for the offence punishable under section 302 of the Indian Penal Code, ultimately it has not made much difference. It however behoves the Sessions Judges to give reasons when they make such distinctions while awarding sentence to different accused for the same types of offences punishable under the same sections of the Indian Penal Code. The judgment and order of the learned Sessions Judge are dated 14th October, 1982 and are the subject matter of challenge in this appeal preferred by accused Nos. 1 and 2.
11. In support of this appeal Mr. W.G. Dighe has appeared for both accused Nos. 1 and 2, while Mrs. Bhonsale has appeared for accused No. 1 alone. On this somewhat unusual appearance, we will say something towards the end of this judgment. Since however, both the Advocates had filed their appearances and both expressed their willingness to argue the appeal, we have heard both of them in support of this appeal. The main arguments were advanced by Mr. Dighe, while Mrs. Bhonsale supplemented on very impartment material particulars, the arguments advanced by Mr. Dighe earlier.
12. It has been contended on behalf of the accused that the evidence which has been led by the prosecution in the instant case bristles with several infirmities and there is no testimony of any real eye-witness. It has been strenuously urged that the statements of the two prosecution witnesses who was injured, according to the prosecution, have been recorded so belatedly as to lose all value in a Court of law. Proper explanation for this belated recording of the statements of the injured persons has not been provided by the prosecution. Both Mr. Dighe and Mrs. Bhonsale have canvassed the view that if the testimonies of P.W. 2 Krishnabai and P.W. 10 Satyabhamabai are kept aside before considering the other prosecution evidence, it is almost impossible to hold that accused No. 2 caused the injury to Gokul. The submission is that the prosecution has failed to prove which of the two accused, if at all, has caused fatal injuries to Gokul. It has also been suggested with some persistence that P.W. 1 Vasudeo Pandurang could not have seen any part of the incident at all and is thus not competent as an eye-witness. Considerable arguments have also been advanced on the nature of the injuries suffered by three persons and in particular by Gokul with the object of showing that the offence, if it is held to have been proved, could not be said to be one punishable under section 302 of the Indian Penal Code. An attempt was also made to show that the assault took place on the spur of the moment in a sudden fight and, therefore, it would be covered by exception 4 to section 300 of the Indian Penal Code and, therefore, at the most, the offence could be said to be one punishable under section 304 Part I of the Indian Penal Code. Bearing all this criticism which underlies the course of the arguments adopted before us, we have appreciated the entire evidence with the assistance of the learned Advocate.
13. Let us being with the examination of the testimony of P.W. 1 Vasudeo Pandurang Chavan because it is he who deposed to the incident as a whole unlike Krishnabai and Satyabhamabai and it is he who has filed the first information reports Ex. 5. After giving the history of the relationship between his family and the family of the accused and after narrating that the dispute between the womenfolk of the two households was prompted as it happens so many times in our society by the right to take water from a municipal tap, Vasudeo Pandurang has mentioned that he and other members of his family took their dinner, at about 8-30 or 9 p.m. on 8th March, 1982. After the dinner himself, his mother Krishnabai and sister Satyabhamabai were chit-chatting in the house when they heard Parwatibai and Chandrakalabai on the Ota of their house giving abuses to his mother and sister. Naturally his mother and sister went out of the house and questioned them as to why they were abusing them without any provocation. It is at this stage that the parties seem to have gone to the middle of the road when Parwatibai is said to have caught the hair of Krishnabai. Vasudeo himself went to the Ota of his own house but did not deem it necessary to rush to the help of his mother because the dispute was between the ladies of the two households. Unfortunately for Krishnabai and others, accused No. 1 immediately came from his house on the road with a knife in his hand and gave with that knife two blows on the abdomen of his mother. The evidence of Vasudeo as well as the evidence of Krishnabai shows that after the receipt of these knife blows Krishnabai immediately collapsed on the ground.
14. Accused No. 2 also again came from his house with a dagger (Khanjir) in his hand and gave 2 or 3 blows to his sister Satyabhamabai again on the abdominal portion. Satyabhamabai also naturally fell down. Trying to be a good Samaritan and a good neighbor, Gokul Trimbak came there to the rescue of the sister of Vasudeo, namely, Satyabhamabai but was unfortunate enough to receive knife blows at the hands of accused No. 2 who was already holding the dagger with which he had earlier stabbed Satyabhamabai. Gokul was drenched with blood and collapsed on the scene. All the accused ran away from the scene. Vasudeo thereafter has narrated as to how he went to the Sinner Police Station and lodged the complaint. In the cross-examination of this witness it has been brought out that he had not mentioned that Parwatibai had held his mother by the hair. We do not see that this omission is of any consequence to the acceptability of the testimony of this witness. He was asked as to why he did not intervene in the dispute between the ladies, probably with the idea that if he were present on the scene, he would have definitely intervened. The witness has given his explanation that he thought it expedient not to intervene in the dispute between the ladies, Considerable cross-examination was directed at his statement that accused No. 2 had used the word 'Khanji' in the testimony before the Court whereas in the first information report at Ex. 5 he had referred to the weapon in the hands of accused No. 2 as a knife (Chaku). Pressed to explain whether he could distinguish between dagger and knife, Vasudeo Pandurang admitted tat he understood the distinction between the two weapons. However, he insisted that while giving the first information report he referred to the weapon as knife. Since however, article No. 4 before the Court, which is obviously a dagger is not clearly relatable to the injuries caused by accused No. 2 either to Satyabhamabai or to Gokul, it is not necessary to dwell on this evidence at length. It is sufficient to note that the incident took place some time after 9 O'clock when all the parties had their meals. The incident took place suddenly inasmuch as accused No. 2 came out of his house after Krishnabai had already been injured and Vasudeo's attention was drawn on the injuries sustained by Krishnabai. If this is so, it too much to expect any one, let alone a person like Vasudeo, to identify clearly the weapon which was used with a devastating effect by accused No. 2. That Gokul suffered injuries which ultimately resulted in his death and that Satyabhamabai received an injury which is clearly the result of some sharp instrument being used is clearly established on the medical evidence which is unimpeachable in this case. In the light of this evidence, we do not attach any importance to the apparent inconsistency between the descriptions given by P.W. 1 Vasudeo Pandurang about the weapon of offence used by accused No. 2 in the first information report and in his testimony before the Court.
15. It is in evidence of P.W. 1 Vasudeo Pandurang himself that he was unable to intervene effectively partly for the reason that his movements are restricted. This restriction of the movements is due to the fact that his leg was fractured some time earlier. A question was asked on behalf of the defence to Vasudeo Pandurang whether he knows that accused No. 1 himself had also some fracture in an earlier incident. The answer given by this witness was in the affirmative and this witness also mentioned that some steel rod had been inserted in the thing of accused No. 1. If the attempt of the defence was to prove that accused No. 1 could not have himself indulged in the acts in which he had indulged on that night and that he could not have run away from the scene of offence, in our opinion, that attempt has been made in a half-hearted manner. The witness has specifically stated that despite the rod, accused No. 1 could run away. It has not been suggested to this witness that the injury which had been sustained by accused No. 1 was such as to disable him from running away after he committed the offence.
16. We have referred to practically every line of challenge adopted by the defence to the testimony of Vasudeo Pandurang. We have seen how the defence has totally failed to make any dent in the testimony of Vasudeo Pandurang. One cannot forget that Vasudeo Pandurang was a natural witness inasmuch as he was the son of Krishnabai and brother of Satyabhamabai who were injured in the incident; the incident itself took place in front of the house of P.W. 1 Vasudeo Pandurang; and Vasudeo Pandurang lodged the first information report within three hours after the incident took place, at the Sinnar Police Station. In the first information report all the part of the incident which ultimately led to the prosecution have been clearly delineated by Vasudeo Pandurang and the said information report is so wholly corroborative of the testimony of Vasudeo Pandurang that one is not free the temptation of sustaining the conviction on the basis of the uncorroborated testimony of Vasudeo.
17. Fortunately for the prosecution, however, there is available corroboration to the testimony of Vasudeo Pandurang in the testimonies of two injured witnesses, namely, Krishnabai and Satyabhamabai. We have already while narrating the prosecution case mentioned that Krishnabai collapsed on the ground after receiving injuries at the hands of Bhaskar, accused No. 1. Krishnabai examined as P.W. 2 has been honest enough to mention that she did not know as to how injuries to her daughter or to Gokul were caused. Satyabhamabai (P.W. 10) has seen the incident in all the three aspects. She has spoken about the injuries sustained by her mother Krishnabai. This is natural because it is only after Krishnabai was being handled that she came on the scene in order to save her mother. She was thus able to see accused No. 1 giving the knife blows on the abdominal portion of her mother. The injury sustained by Satyabhamabai at the hands of accused No. 2 has also been mentioned by her. There could not be any mistake about the identity of her assailant because the injuries have been sustained by her on the front portion of her body which necessarily meant that she was face to face with her assailant. She had the occasion to notice the injuries which were caused by accused No. 2 on Gokul who had appeared on the scene in the meantime. Thereafter Satyabhamabai had narrated about the treatment given to her and her mother in the hospital. We have with great diligence gone through the material which has been brought out in the cross-examination of this witness and we must notice that the cross-examination has been as ineffective as it was in the case of P.W. 2 Krishnabai. Apart from suggesting that Vasudeo himself had a knife in his hand, no other worthwhile attempt was made in the cross-examination to challenge what has been mentioned by this witness in her examination-in-chief. We must at this stage, however, give some serious thought to the submissions made by Mr. Dighe on what he called the inexcusable delay in recording the statements of Satyabhamabai and Krishnabai. Satyabhamabai's statement was recorded on 23rd March, 1982, nearly 14 days after the incident, while the statement of Krishnabai was recorded on 2nd April, that is, nearly 28 days after the incident. Some comment is, therefore, justified and Mr. Dighe has not hesitated to make the same. However, the prosecution, in our opinion, has given adequate explanation as to why there was delay in the recording of the statements of these two witnesses. P.W. 18, P.S.I. Javare of Sinnar Police Station has in paragraph 9 to his deposition mentioned that he was visiting the Civil Hospital from time to time and he could not record the statements of these two witness because they were unable to speak. This happened upto 12th March, 1982. Thereafter he went to the hospital again on 23rd March, 19892 when Satyabhamabai could speak while Krishnabai was unable to speak. Therefore, he recorded the statement of Satyabhamabai. Surprisingly to the discomfiture of Mr. Dighe before us, no questions were asked either to this witness P.S.I. Javare or to the doctors who have treated the injured witnesses as to whether the witnesses were unable to give any statement relating to the incident. We may also note that the delay in recording of Krishnabai's statement has been explained by Head Constable Vidhate examined as P.W. 17. He has mentioned that on 2nd April, 1982 Satyabhamabai was able to speak and the doctor certified to that effect. He, therefore, recorded her statement on that day. There is no cross-examination of Head constable, Vidhate. We do not see how in the light of this evidence which is on record it is open for Mr. Dighe at the appellate stage to contend that the Appeal Court should reject the statements of these two witnesses on the ground that their statements have been recorded rather late.
18. An argument, which we do not see was advanced in the Court below, was sought to be raised before us by Mr. Dighe. He sought to suggest that there is in the statement of Satyabhamabai a reference to a statement made by her under section 164 of the Code of Criminal Procedure and that we must consider that aspect of the case while appreciating the testimony of Satyabhamabai. We are unable to appreciate this argument. The question as to whether there is in her statement before the police a reference to an alleged statement made by her under section 164 of the Code of Criminal Procedure cannot be decided by us unless that question was first put to the witness when that witness was in the box in the trial Court and after eliciting information relating to the same from the Investigating Officer. Nothing of this kind has been done in the instant case. We do not see how we can for the first time in the absence of the witness herself refer to a statement made by her before the Police. Such a reference for the purpose for which Mr. Dighe is suggesting is impermissible under the provisions of section 162 of the Code of Criminal Procedure. Mr. Dighe, however, has invited our attention to a judgment in Raghunandan v. State of U.P., : 1974CriLJ453 . We have with his assistance gone through the said judgment and find that judgment is wholly irrelevant to the question raised by Dighe before us. In Raghunandan's case the appellant before the Supreme Court had been convicted on the basis of the testimony of a witness who was examined as a Court witness under section 540 of the Code of Criminal Procedure in Sessions case. An attempt had been made in the trial Court to discredit that witness by referring to his statement which he had made before the police. The learned trial Judge, from what has been mentioned in the judgment of the Supreme Court, misdirected himself that he could not refer to the statement made to the police by the witness when that witness is examined not by the Police but by the Court under section 540 of the Code. The Supreme Court pointed out that the ban imposed by section 162 of the Code against the use of a statement of a witness recorded by the police during investigation, though sweeping and wide, did not curtail the powers of the Court under section 165 of the Indian Evidence Act. The latter provision is couched in very wide terms authorising the Judge in order to discover of obtain proper proof of any relevant facts to ask any question he pleases, in any form, at any time, of any witness, or of the parities, about any fact relevant or irrelevant. Even if, therefore, section 162 did not permit the use of a statement made by a witness to the police when that witness is examined under section 540 of the Code, section 165 was not controlled by the provisions of section 162 of the Code of Criminal Procedure. In this view of the matter, the learned Sessions Judge ought to have decided the credibility of the witness examined under section 540 of the Code by having resort to section 145 of the Evidence Act read with section 165 of the Evidence Act.
18-A. We do not see the relevance of this judgment to the facts before us. Satyabhamabai has not been examined as a Court witness; she was examined by the prosecution; despite this, the defence did not while she was in the witness-box, confront her with the statement which she is alleged to have made before the Police under section 161 of the Code. The correctness or otherwise of a statement made by a witness examined by the prosecution to the Police could only be tested by asking questions about the same to the said witness in the manner provided by proviso to section 162 of the Code of Criminal Procedure.
19. Now, we turn to other witnesses, one of whom P.W. 11 Hausabai, is the mother of Gokul. At the time and on the day when the alleged incident took place, she and her another son called Shantaram were preparing the bed. Then she heard exchange of abuses between Parwatibai and Chandrakalabai on the one hand and Satyabhamabai and Krishnabai on the other. Curiosity naturally overtook this witness and she came and stood in the door of her house to see what the quarrel was about. Parwatibai according to this witness, caught hold of Krishnabai and felled her down. It is at this stage that accused No. 1 suddenly came from inside his house and inflicted knife blows to Krishnabai on the abdominal portion. Satyabhamabai who at this time rushed to rescue her mother was given a knife blow again on the abdominal portion by accused No. 2. Her son Gokul who was always regarded as nephew by Krishnabai, also rushed to intervene and save Satyabhamabai. Accused No. 2 had already done mischief in so far as Satyabhamabai was concerned, but he did not hesitate to strike knife blows on the chest and neck portions of Gokul who thereafter shouted that he was dead and collapsed. Accused Nos. 1 and 2 thereafter ran way. Surprisingly the cross-examination of this witness is so much restricted as to be totally non-existent. Her statement was recorded, it may be noted, on the very next day, namely, on 9th March, 1982. Apart from the suggestion to her that before the police she had not stated that Parwatibai had felled down Krishnabai, no other worthwhile suggestion was made to her with reference to her statement before the Police. Comments by the learned Advocates appearing for the accused naturally were very much limited as at as this witness is concerned.
20. Next but equal in importance is P.W. 15 Nivrutti Waluji Jadhav. He can be safely characterised as an independent witness. He is a neighbor in the same locality and he witnessed the incident exactly in the same manner in which it was witnessed by other persons examined on behalf of the prosecution. He has given details in almost the same terms in which Vasudeo and later Hausabai have deposed before the Court. The cross-examination of this witness is of hardly 10 lines and apart from suggesting that accused No. 1 Bhaskar was not present at all on the spot and against apart from repeating the suggestion that P.W. 1 Vasudeo had himself arrived on the scene with a knife in his hand, there is nothing in the limited cross-examination which would displace, even to the smallest extent the testimony given by this witness in his examination-in-chief. The statement of this witness also was recorded on the very next day, namely, 9th March, 1982.
21. We have thus the testimonies of three eye-witnesses whose statements were recorded within few hours after the incident. They are P.W. 1, Vasudeo Pandurang who has filed the first information report at Ex. 5; P.W. 11, Hausabai who is the mother of Gokul who was killed in the incident; and P.W. 15, Nivrutti Waluji Jadhav who is a neighbor and who was not even attempted to be shaken by the defence Counsel in the trial Court. Then we have the testimonies of two injured witnesses P.W. 2, Krishnabai and P.W. 10, Satyabhamabai. From the detailed examination of the testimonies of all these five witnesses which we have attempted above, it is clear to us that there was in incident in which originally the women folk of the two house holds were involved. When Parwatibai, the mother of accused Nos. 1 and 2, was almost locked in combat with Krishnabai, accused No. 1 suddenly came out of his house with a knife in his hand which he had no business to do except when he wanted to hurt some body grievously and inflicted stab injuries on the abdomen of Krishnabai. This is clearly established by the evidence which we have surveyed so far.
22. Similarly it is also clearly established that Satyabhamabai was injured by accused No. 2 with some sharp weapon like a dagger or a knife. It is also established beyond even a shadow of doubt that Gokul Trimbak was given injuries by means of sharp weapon by accused No. 2, which injuries ultimately resulted in the death of the said Gokul. We are more than adequately satisfied that the five witnesses, whose testimonies we have examined in great details, are all truthful witnesses who have not to the slightest extent made any improvements in their testimonies before the Court. Their depositions are naturally without any cunning or improvement. Since they are also found to be natural witnesses being either injured or members of the family or in the neighborhood, their testimonies have wholly commanded themselves to us.
23. Now, we refer to the medical evidence in order to determine especially the liability of accused No. 2 in so far as the injuries caused by him to Gokul are concerned. Dr. Ujalambkar examined as P.W. 13 has deposed to the injuries of all the three persons. Before we proceed to examine the injuries to Gokul let us take the liberty of examining his deposition in so far as the injuries to Krishnabai and Bhamabai are concerned. At about 10.45 p.m. on 8th March, 1982 he examined Krishnabai and found the following injuries :-
(1) Irregular punctured incised wound 3' x 1/4' abdomen deep on right side of epigastrium, 3 inches above right side of the umbilicus.
(2) Transverse punctured incised would 2' x 1/4' chest deep on the right side of the chest 4 inches below the right nipple 4 in in fragmentary line.
(3) Punctured incised would 3' x 1/4' muscle deep on right mammary region, on 6th rib in mid-auxiliary line.
According to the doctor, the injuries of Krishnabai were fresh when he examined and they were caused by a sharp pointed weapon. He also examined Bhamabai at abut 10-30 p.m. on the same day and found the following two injuries on her person :---
(1) Two irregular shaped punctured incised wounds of 3' x 1' abdomen deep and 1 1/2' x 1/4' abdomen deep on the left side of the abdomen. Both were irregular shaped, punctured incised wounds 3 inches above the right anterior superior iliac spine.
(2) Oblique punctured incised would 2' x 1/4' abdomen deep on left rental angle, 7 inches above and lateral to anterior superior iliac spine.
These injuries were also fresh and were caused by sharp pointed substance. Dr. Bachhav, P.W. 14, attached at the relevant time to the Civil Hospital at Nasik examined both Krishnabai and Bhamabai some time after they had been examined by Dr. Ujalambkar. Dr. Bachhav has stated that on Krishnabai he found following injuries :---
(1) Stab injury on right hypochondrium 1 1/2' x 1/2' muscle deep.
(2) Stab injury 1' x 1/2' muscle deep on 6th intercostal space on the right side.
(3) Stab injury on the right side of breast on the lower part.
Similarly he found the following injuries on Bhamabai whom he examined at the same time :---
(1) Stab injury on the abdomen left lumber region 1 1/2' x 1'.
(2) Stab injury on the abdomen 1' x 1/2 on the left side.
(3) Stab would no the abdomen lateral region 1' x 1/2' x 2'.
Dr. Bachhav has, in unequivocal terms, stated that the condition of both Krishnabai and Bhamabai was serious and the injuries to both of them were on the vital parts of their bodies. In the absence of the treatment, the injuries of both would have endangered their lives. After reading the medical evidence in respect of the injuries to both Krishnabai and Satyabhamabai in the light of the cross-examination which is practically nil as far as these injuries are concerned, we are of the opinion that the offence punishable under section 301 of the Indian Penal Code is clearly established in so far as accused Nos. 1 and 2 are concerned.
24. We now turn to the testimony of Dr. Ujalambkar in relation to the injuries of Gokul. Dr. Ujalambkar found the following external injuries on the body of Gokul :---
(1) Oblique incised would 1 1/2' x 1' organ deep on right side of the chest 1/4' lateral to sternum and just below the lateral 1/3rd of clavicle.
(2) Oblique incised wound 1 1/2' x 1/2' organ deep on right grain, 2 inches below and medial to anterior superior iliac spine in line of inguinal ligament.
(3) Linear abrasion 2' x 1/10' on upper 1/3rd right side of the neck.
(4) Abraded area 1/4' x 1/4' on posterior aspect of left elbow joint.
(5) Old healing would 1 1/2' x 1/8' x 1/8' with cellulities of right ankle joint, on medial aspect.
All these injuries were antemortem and in fact were fresh. Injuries Nos. 1 to 3 noticed by him were possible by a sharp weapon like article No. 4 before the Court. On an internal examination Dr. Ujalambkar found the following injuries :---
(1) There was the fracture of first rib on the right side of stereo costal junction.
(2) Rupture of appex of the right lung.
(3) Irregular tears, 3 in number on upper lobe of right lung.
(4) Tear of pericardium on the right side of heart.
(5) Irregular tear of aorta. Tear of pulmonary (Rt) artery.
(6) Injury No. 1 (external) i.e. oblique incised would which was organ deep is the corresponding external injury for causing the fracture of the first rib. The same oblique incised would is again responsible for causing all the above internal injuries such as rupture and irregular tears of lung and the heart.
Dr. Ujalambkar has stated that the death of Gokul was due to haemorrhage and shock which themselves were due to injuries on the body and the injuries on the internal organs. He has mentioned that external injuries Nos. 1 and 2 together with the internal injuries were sufficient in the ordinary course of nature to cause the death of Gokul. In the cross-examination surprisingly not a single question has been put to Dr. Ujalambkar relating to the injuries suffered by Gokul and the cause of death as certified by the doctor in his examination. We are constrained to mention this because Mr. Dighe has sought to reduce the offence by relying upon some judgments of the Supreme Court to which necessarily we will make a reference shortly. On the medical evidence itself, which is before us, it is thus clearly established that accused No. 2 is guilty of the offence punishable under section 302 of the Indian Penal Code for the injuries which he has caused to Gokul.
25. We will not turn to some of the authorities relied upon by the learned Advocate, Mr. Dighe in order to diminish the liability of the accused and in particular of accused No. 2, Gokul v. State of Maharashtra : 1981CriLJ1033 it was noticed by the Supreme Court that only a solitary blow had been given by the accused to the deceased on the left clavicle which was specifically mentioned to be a non-vital part by the Supreme Court. The Supreme Court, therefore, proceeded to hold that if the accused gave a blow on the left clavicle, which was a non-vital part, he could not naturally know that the superior venacava would be cut as a result of the injury caused to the left clavicle. In such a circumstance the Supreme Court held, and with great respect, naturally, that the accused could not be convicted under section 302 of the Indian Penal Code but under section 304 Part II of the Indian Penal Code. The reasons are not far to seek at all because the facts stated by the Supreme Court themselves show that there was a solitary blow and it was given on the left clavicle which was mentioned to be a non-vital part. The possibility of the accused possessing the knowledge that as a result of the blow given by him, superior venacava would be cut was non-existent. It is in these circumstances that the offence was held to be one under section 304 Part II of the Indian Penal Code. Then there is the judgment of the Supreme Court in Gurmail Singh v. State of Punjab : 1982CriLJ1946 , where as a matter of fact it was found that the injury caused was accidental without even a passing thought of causing injury to the deceased person. As a finding of fact further it was held that the accused could not be said to have intended to cause that particular bodily injury which was in fact found to have been caused. In these circumstances it was held that the offence was one punishable under section 304 Part II of the Indian Penal Code despite the fact that the injury inflicted may have been found to be sufficient in the ordinary course of nature to cause death. Both these judgments, in our opinion, are not relevant to the facts which are before us, wherein it is found that accused No. 2 caused not one but two injuries by knife on the abdomen of Gokul. He caused those injuries on a vital part such as the chest and the abdomen causing some large scale internal injuries which in turn resulted in haemorrhage and shock. For the same reasons we are of the opinion that reliance placed by Mr. Dighe on Randhir Singh v. State of Punjab, : 1982CriLJ195 , is equally misplace. In this case the Supreme Court held :---
'Having regard to the totality of circumstances, viz. there is only one injury, that the weapon was not carried by the accused in advance, that there was no premeditation, that he was a young college-going boy, that there was some altercation between the deceased and his father and that the death occurred nearly after six days, one can only say that to the accused must be attributed the knowledge that he was likely to cause in injury which was likely to cause death. It cannot be said that the accused intended to cause that particular injury. Under these circumstances, the appellant is shown to have committed an offence under section 304 Part II.'
It may also be noted that in Randhir Singh's case there was only one injury.
26. There are some further authorities which also need to be considered at this stage. Laxman Kalu Nikalje v. State of Maharashtra, : 1968CriLJ1647 is often pressed into service by the defence Advocates in order to get the liability diminished from one under section 302 to one under section 304 Part II of the Indian Penal Code and often this judgment, which has been subsequently referred to by the Supreme Court in another judgment, is cited by the Advocates to canvas the view that a single blow given on the chest by an accused person, even if it causes death, could make an accused liable only under section 304 Part II and not under section 302 of the Indian Penal Code. This attempt, in our opinion, is unfortunately repeated often and is misconceived. The facts of Laxman Kalu Nikalje's case are not remembered by the learned Advocates who often rely upon this judgment. It is in these circumstances that we are constrained to refer to the nature of the injuries sustained by the deceased in the case on the basis of which the Supreme Court held that the offence was not under section 302 of the Indian Penal code. After examining the evidence the Supreme Court said that the evidence disclosed the following facts :---
'The injury inflicted on the person of the decreased was a single one. The eye-witness did not speak about the weapon but she only said that the accused hit the victim with a weapon and ran away. Though the injury was a serious one in that it had cut the auxiliary artery and veins, it was not on the vital part of the chest and had not reached the lungs.'
It is obvious that on the material which was before the Supreme Court tin that case, it was held that the injury was almost superficial and it was only accidental that an artery like a auxiliary artery and the veins had been cut. From this it was inferred that the accused did not have an intention to cause such injury as was likely to cause death or an injury which was sufficient in the ordinary course of nature to cause death. The injury itself was held to be not the result of the act of the accused. Since, however, the accused had aimed a blow on the chest, knowledge was attributed to him that his act was likely to cause death. Therefore, the Supreme Court held that the case fell under the third part of section 299 and, therefore, Part II of section 304 of the Indian Penal Code. The judgment of the Supreme Court in Laxman Kalu Nikalje's case is not an authority for the proposition that if a knife below is given on the chest of a person who consequently dies as a result of the injuries, the offence can never fall under section 302 of the Indian Penal Code or that it must necessarily fall under section 304 Part II of the Indian Penal Code.
27. Similarly any attempt to invoke the authority of the judgment in Harjinder Singh v. Delhi Administration : 1968CriLJ1023 , to reduce the liability of accused No. 2 in the instant case must also fail. In Harijinder Singh's case the accused had struck the deceased with a knife on the thing causing a rupture of the femoral artery. Thing has never been regarded as a vital part of the body and if as a result of an injury caused to the thigh an artery is ruptured, naturally the death could not be said to be due to an injury caused intentionally by the accused. It was thus found to be legitimate to hold that the accused struck the deceased with the intention to cause the injury likely to cause death and, therefore, the offence fell under section 304 Part I of the Indian Penal Code. If one reads paragraph 9 of the judgment, one notices that the Supreme Court inferred right of private defence-hence Part I of section 304.
28. In Gokul's case : 1981CriLJ1033 to which we have already made a reference earlier, we noticed that the Supreme Court held that the case fell under section 304 Part II of the Indian Penal Code because the small blow given by the accused was on the clavicle which was a non-vital part. We have no doubt that if the facts had disclosed that even a solitary blow had been given on the neck of a person, it would have been held that the case fell under section 302 of the Indian Penal Code. Neck has always been regarded as a vital part of the body and if a sharp instrument like a knife or a dagger is aimed at a neck and the injury is caused cutting off veins or arteries in the process, then the offence would and must necessarily fall under section 302 of the Indian Penal Code. That the neck has such delicate parts such as jugular vein and the wind pipe is known even to a common man. No knowledge of anatomy is necessary to know that death would result if a knife blow is given on the neck. No knowledge of anatomy is also necessary to realise that death would result if a weapon like a knife is used on the chest forcefully cutting blood vessels or puncturing lungs or heart or air passages. Similarly no knowledge of anatomy is necessary to realise that death would result if knife is used on the neck cutting artery or other major vein. This is the reason why often in common parlance the phrase 'cutting the throat' is used to indicate killing of a person. Similarly no knowledge of anatomy is necessary to realise that death would result if a knife is used on the abdomen which is a vital part cutting the intestines, kidneys, spleen or pancreas which are housed in that part of the body. In such a case it is not permissible to contend that merely one knife blow was given without intending to cause serious injuries resulting in the death of the person concerned. It must be realised that when a person uses a sharp and dangerous weapon such as a knife or a dagger or a spear on the vital parts of the body mentioned by us above, he must necessarily be presumed to intend the consequences of causing serve injuries to the vital organs in those parts of the body. In such a case, the offence would, subject of course to the medical evidence, fall under section 302 of the Indian Penal Code.
29. While we are on this subject we may also briefly refer to some other judgments in this field. In Gudar Dusadh v. State of Bihar, : 1972CriLJ587 , the accused had given a lathi blow on the head of the deceased as a result of which the deceased fell down and died instantaneously. The circumstances indicated that the assault was premeditated and the blow on the head of the deceased was not accidental. Medical evidence showed that the injury was sufficient in the ordinary course of nature to course death. The Supreme Court held the case squarely fell within the ambit of clause third of section 300 and was thus punishable under section 302 of the Indian Penal Code. The head obviously was regarded as a vital part in that case. Similarly the head has been regarded as a vital part in Chachat Khan v. State of Haryana, : 1973CriLJ36 .
30. In State of U.P. v. Babboo, A.I.R. 1978 S.C. 1084, there were several injuries on the body of the deceased, but Dr. Kacher who had been examined noted that two of those injuries were punctured wounds which were chest cavity deep and left pleura and left lung had been punctured. The injury to the lung was in the entire thickness of the lower lobe and there was no doubt that the Act by which the death was caused was done with the intention of causing bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death within the meaning of section 300 of the Indian Penal Code. Here the injury has been made on the chest and it had gone sufficiently deep to cause injuries to the lung.
31. In Pappu v. State of U.P. A.I.R. 1978 S.C. 145, there was only one punctured wound on the chest which cavity deep. On internal examination it was found that this would was going deep into the heart cutting the auricle and root of the aorta. Medical evidence was to the effect that the injury was sufficient in the ordinary course of nature to cause death. Here is a case of a single injury on the chest which was held to be causing death bringing the case within the mischief of section 302 of the Indian Penal Code.
32. There should thus be no misunderstanding on the correct position in law. However, as has been pointed out by the Supreme Court in Virsa Singh v. State of Punbaj, : 1958CriLJ818 , in a given case it may be proved or the totality of the circumstances may justify an inference that the accused only intended a superficial scratch and that by accident, the victim stumbled and fell on the murder. The question is not whether the accused intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, the, of course, the intent that the section requires is not proved. 'But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequence, is neither here nor there. The question so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.'
33. We have no manner of doubt on the facts of this particular case that when accused No. 2 wielded the knife on the abdomen of Gokul not once but twice in a manner which caused extensive internal damage to the vital organs of Gokul, he had the intention to cause those injuries which were sufficient in the ordinary course of nature to cause death. Indeed on the evidence in the instant case, we may even hold that the accused intended by the act in which he indulged to cause the death of Gokul. This is one of those cases which can be brought directly under clause firstly of section 300 of the Indian Penal Code. There is no escape from the conclusion that accused No. 2 is guilty of the offence punishable under section 302 of the Indian Penal Code.
34. Mrs. Bhonsale has, in so far as accused No. 1 is concerned, suggested that the injuries to Krishnabai could not be such as would have resulted in her death. The medical evidence is otherwise. Though the doctor has mentioned that there was no immediate danger, in our opinion, looking to the nature of the injuries and the vital part of the body on which those injuries have been caused necessary by a sharp weapon, the intention of accused No. 1 was undoubtedly to cause such injury as would have resulted in the death of Krishnabai. We are, therefore reluctant to accept the suggest ion that the offence which accused No. 1 is proved to have committed is one punishable under section 326 of the Indian Penal Code and not under section 307 of the Indian Penal Code. The learned Advocate also invited our attention to the statement given by accused No. 1 in reply to question No. 40 under section 313 of the Code of Criminal Procedure from which we are invited to infer that accused No. 1 was not present at flat the scene of offence when the incident took place. For reasons which we have in great details mentioned in the earlier part of the judgment, we have not a moment's hesitation in rejecting this contention.
35. We deem it necessary to make some observations for the guidance of the office of this Court. In this appeal originally Mr. Dighe had filed his appearance for both the appellants. Some time later Mrs. Bhonsale after obtaining the consent of Mr. Dighe, filed her appearance only for appellant No. 1. At the time of final hearing naturally both the advocates thought it fit to address the Court on behalf of accused No. 1. Such a procedure is really not permissible. Whenever there is one appeal irrespective of the number of the appellants, only one Advocate can appear in support of the appeal. Two Advocate cannot appear for two different appellants in the same appeal. However, if one of the appellants wants to engage a different Advocate in an appeal which has already been filed or admitted , an application for separating the appeal of that person must necessarily be made. One that application a separate appeal be registered by the office. Then there would be two appeals which can be supported by two different advocate appearing. This is not the first time that such a procedural irregularity has been noticed by us. We, therefore, direct that whenever in an appeal where there are two or more appellants, subsequently an Advocate files appearance for only some of the appellants, that appearance should to be taken on record unless the Advocate also make an application as indicated above for separating the appeal of those appellants of whom he intends to appear. When an Advocate thus files appearance for only some of the appellants in any one particular appeal, that appearance should be notified for objection and the course suggested above should be followed.
36. In the result, this appeal must fail and is accordingly dismissed. The order of convictions and sentences recorded by the learned Additional Sessions Judge of Nasik in Sessions Case No. 68 of 1982 is confirmed.