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Baba @ Gulam Raza HussaIn Hadi Tapti Vs. the State of Maharashtra and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 134 of 1995
Judge
Reported in1999BomCR(Cri)890; 1999CriLJ4618; 2000(1)MhLj164
ActsIndian Penal Code (IPC), 1860 - Sections 302 and 304; Evidence Act, 1872 - Sections 3, 45 and 59; Code of Criminal Procedure (CrPC) , 1973 - Sections 154, 161, 165 and 235
AppellantBaba @ Gulam Raza HussaIn Hadi Tapti
RespondentThe State of Maharashtra and Another
Appellant AdvocateS.G. Samant, ;Ms. Poonam Maria and ;G.H. Keluskar, Advs.
Respondent AdvocateD.N. Salvi, A.P.P.
Excerpt:
.....- after examining the impugned judgment on merits, we are implicitly satisfied that the involvement of the appellant in the incident has been squarely established through the evidence of the two eye- witnesses namely harishchandra kachi p......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.....
Judgment:
ORDER

Vishnu Sahai, J.

1. Through this appeal, the appellant challenges the Judgment and Order dated 4-2-1995 passed by the Additional Sessions Judge, Pune in Sessions Case No. 505 of 1993, convicting and sentencing him to undergo 10 years R.I. and to pay of fine of Rs. 20,000/- in default to suffer R.I. for one year for the offence under section 304 I.P.C.

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 language or abused the accused concerning female members of the family and suggestion to ask one to ask his daughter or wife or mother to do prostitution is definitely a grave provocation.'

He consequently, convicted him for the offence under section 304 I.P.C.instead of one under section 302 I.P.C. and sentenced him in the mannerstated in para 1 above.

Hence, this appeal.

9. We have heard Mr. S.G. Samant with Ms. Poonam Maria and Mr. G.H. Keluskar for the appellant and Mr. D.N. Salvi, Additional Public Prosecutor for the respondent No. 1. Although, respondent No. 2, the wife of the deceased, has been served but, she has chosen not to engage any Counsel. We have also perused the entire material on record.

10. Mr. Samant learned Counsel for the appellant candidly and frankly stated that he could not assail the conviction of the appellant on merits, but with his customary persuasive advocacy urged that the sentence awarded to the appellant was outrageously dis-proportionate in view of the finding recorded by the learned trial Judge in the concluding portion of para 21 of the impugned Judgment, which we have extracted above.

11. Inspite of the fact that Mr. Samant did not assail the conviction of the appellant on merits, we have also examined the matter on merits because, we felt that since the appeal had been admitted by this Court, we were duty-bound to do so. After examining the impugned Judgment on merits, we are implicitly satisfied that the involvement of the appellant in the incident has been squarely established through the evidence of the two eye- witnesses namely Harishchandra Kachi P.W. 3 and Sanjiv Pawar P.W. 5. In para 2, we have 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. Sami corroborates this. Apart from the fact that it is common knowledge that incised wounds can be caused by a knife, we 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 on it blood of 'A' group namely the blood group of the deceased. We have 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 our view, this evidence of recovery of knife is also a clinching piece of evidence against the appellant.

12. For the said reasons, we feel that the learned trial Judge was correct in finding that the involvement of the appellant in the incident was establish beyond reasonable doubt.

13. The question which remains is the quantum of sentence to be awarded to the appellant. We have mentioned earlier that in the concluding portion of para 21 of the impugned Judgment the learned trial Judge has observed thus :-

'Therefore, in the circumstances, it will have to be accepted that the deceased used filthy language or abused the accused concerning female members of the family and suggestion to ask one to ask his daughter or wife or mother to do prostitution is definitely a grave provocation.'

In our view, when the deceased suggested to the appellant that he should ask his daughter or wife or mother, to indulge in prostitution, he gave a very grave provocation to the appellant. If on the face of this provocation; the appellant inflicted seven knife blows on him, of which six were on vital parts of the body, it was understandable.

13A. It should be borne 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 a post-mortem phenomena and persons placed in situations in which the appellant was when he launched an assault on the deceased, cannot always be excepted 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, they are in cases where a cool and calculated assault is made.

14. Bearing in mind the over- all circumstances, in our view, the ends of justice would be amply served if the sentence of fine imposed on the appellant and that in its default is maintained but, the substantive sentence is reduced from 10 years R.I. to 8 years R.I.

15. In the result, this appeal is partly allowed. Although, we maintain the conviction of the appellant for the offence under section 304 I.P.C. and the sentence of fine and that in its default imposed thereunder, but, we reduce his substantive sentence from 10 years R.I. to 8 years R.I. The appellant is in jail and shall be detained therein till he serves out his sentences.

Office to communicate the operative part of our judgment forthwith to the concerned authorities.

16. Appeal partly allowed.


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