J.M. SHELAT, J.
1. The deceased Kashinath Janardan Vispute, witnesses Tulsiram Sakharam, Motiram Thorat and one more person, all merchants in silver and German silver articles at Nasik, had attended on February 16, 1965 with their wares the weekly Tuesday market at Hatrundi near Nasik. They had engaged two labourers, Kalu and Chima, to carry the boxes containing their merchandise. After the bazar was over in the afternoon, Kashinath, Tulsiram and Motiram packed their boxes and leaving them in charge of Kalu only, as Chima did not turn up by that time, they visited the place of witness. Waghmare for drinks where they found original Accused 1, 2, 4 and the appellant. After having drinks Kashinath, Motiram and Tulsiram started for Palsan where they intended to camp for the night. The boxes of Motiram and Tulsiram were carried by the said Kalu and the box of Kashinath was carried by Accused 4. Accused 1, 2 and the appellant also travelled along with them, as if they too were going to Palsan with Accused 4. On the way when they were in the outskirts of Patali Shivar, a village about 2 or 3 miles from Palsan, and were passing through a jungle, Accused 1 pretending as if he had lost his way asked the appellant to lead the way. It appears that that was the signal pre-arranged between them. The appellant suddenly struck his stick against one of the boxes carried by Kalu which startled Kalu who threw them down. Immediately thereafter the appellant attacked Kashinath with an axe giving three belows which fell on his right hand, right shoulder and his abdomen. Shocked by the sudden attack, Kalu and the two merchants ran away and Accused 1, 2, 4 and the appellant decamped with the deceased's box which, as aforesaid, was being carried by Accused 4 and which contained his wares and some cash. On the alarm raised by Kashinath, two cow-boys, Motya and Balwanta, arrived there from the vicinity and with their assistance Kashinath, inspite of his injuries, managed to walk to Patali and contact witness. Gavali, the police patil of that village. Kashinath had also brought with him the axe with which the appellant had attacked him and which he had left behind. Gavali took Kashinath to Palsan where he was given first aid by witness Rukminibai. On the basis of a statement made by Kashinath to witness Aher, the forester of Palsan, the police patil of that place sent a Khabri report to Surgana Police Station, in consequence of which head constable Kardak brought along with him Dr Patil of Surgana to Palsan. The Doctor treated the injured man and then Kardak recorded a detailed statement of Kashinath. All of them then started for Surgana in a truck but on the way Kashinath succumbed to his injuries and died.
2. On the basis of Kashinath's statement the police started investigation during the course of which they traced the witnesses, recorded their statements, recovered several articles belonging to Kashinath, both as a result of searches conducted by them and discoveries made by the appellant and the other accused. The post-mortem examination of the dead body of Kashinath disclosed two contused wounds, one on the right shoulder and the other below the lobe of the right ear and three incised wounds on the ring finger and the little finger of the right hand, the right shoulder joint towards the neck and on the right side of the abdomen below the right axilla on mid-axillary line 5” above iliac spine. The last was the fatal injury as it had ruptured the liver and caused fractures of three ribs. This injury, according to Dr Patil, was sufficient in the ordinary course of nature to cause death and the cause of death was haemorrhage resulting from these injuries. The death of Kashinath being thus homicidal and having been caused for committing and in the course of robbery, the appellant and the original Accused 1, 2 and 4 to 7 were charge-sheeted under Sections 302, 304 and 394 read with Sections 34, 397 and 411 of the Penal Code and were committed in the usual course to the Sessions Court at Nasik for their trial.
3. The prosecution led the evidence of: (1) Kashiram Pawar and Tulsiram Waghmare to prove the presence at Hatrundi of Accused 1, 2, 4 and the appellant on the night of the 15th and on the 16th of February 1965, (2) Motiram and Kalu to prove that Accused 1, 2, 4 and the appellant accompanied them and Kashinath on their way to Palsan and the assault by the appellant on Kashinath with the axe, (3) witness Aher, head constable Kardak and Dr Patil to prove the dying statements Exts. 8 and 12 of Kashinath, (4) the Magistrate, K.M. Sayyad who held the identification parade on March 9, 1965, from where Motiram identified Accused 1, 2, 4 and the appellant and Kalu identified Accused 2 and the appellant, and (5) the police and the panch witnesses to prove recovery of various articles identified as part of the wares belonging to Kashinath. On appraisal of this evidence, the learned Sessions Judge found: (1) that Accused 1, 4 and the appellant were the participants in the offence of robbery, (2) that Accused 5 had retained some of the stolen property and had concealed it, (3) that the appellant had attacked the deceased with an axe and caused him injuries which resulted in his death, and (4) that during the course of the said robbery the appellant had carried with him and used the said axe, and was therefore, guilty also under Section 397. The learned Sessions Judge, however, acquitted Accused 2, the wife of Accused 1, and Accused 6 and 7 of the charge against them under Section 411. As regards the appellant, he held him responsible for the axe injuries which resulted in the death of Kashinath and also that the injury on the abdomen was the fatal injury. Having come to this conclusion he observed:
“Having regard to the number and nature of injuries, the spots chosen for the attack and the weapon used, there can, in my opinion, be no doubt that the intention of Accused 3 (the appellant) in inflicting the injuries was to cause such bodily injuries as were likely to cause death, although an intention to kill or to inflict such bodily injuries as were sufficient in the ordinary course of nature to cause death may not safely be attributable to him.”
On the strength of this reasoning he convicted the appellant under Section 304(1) and sentenced him to 10 years' rigorous imprisonment. He also convicted him under Section 397, but awarded no separate sentence. He also found Accused 1, 4 and the appellant guilty under Section 394, read with Section 34 and sentenced Accused 1 and the appellant to 7 years' rigorous imprisonment and Accused 4 to 3 years' rigorous imprisonment, directing the substantive sentences against the appellant to run concurrently.
4. Against the said conviction and sentence Accused 1 filed Appeal No. 1313 of 1965. The State of Maharashtra filed Appeal No. 1869 of 1965 against all the accused aggrieved by the conviction of the appellant under Section 304(1) instead of Section 302, the acquittal of Accused 2, 6 and 7 and the conviction of Accused 1 and 4 under Section 394, read with Section 34 only and not also under Section 302, read with Section 34 in the High Court of Bombay. The High Court heard both the appeals together and accepted the findings of the Sessions Court that Accused 1, 4 and the appellant were concerned in the said offences. It also concurred with the Sessions Judge as regards the acquittal of Accused 2, 6 and 7. But as regards Accused 1 and 4, the High Court held that on the evidence on record against those accused the Sessions Judge was in error in acquitting them of the charge under Section 302 read with Section 34 and convicted them under those sections and sentenced each of them to imprisonment for life. As regards the appellant, the High Court held that considering the fact that he had inflicted as many as 3 injuries with a heavy sharp-edged weapon like an axe, one on such a vital part of the body as the abdomen and the other on the right shoulder near the neck, presumably intending that blow to fall on the neck, the size of these injuries indicative of the force with which they had been inflicted, the appellant must be held to have been guilty of the offence of murder, his act falling, if not under the first clause of Section 300 at least under clause 3 thereof, and therefore, punishable under Section 302. The High Court also felt that the killing of the deceased being motivated by robbery of the deceased's valuables and cash, a sentence of life imprisonment, which in the State of Maharashtra would mean for all practical purposes imprisonment for 12 years only, would not be either adequate or deterrent against offenders of like offences, and therefore, awarded the extreme penalty of death. Aggrieved by the conversion of his conviction from Section 304(1) to one under Section 302 and the sentence of death, the appellant obtained special leave from this Court and filed this appeal. No appeal has been filed by original Accused 1 and 4.
5. In view of the concurrent findings of fact by the Sessions Court and the High Court that the appellant was responsible for causing the death of Kashinath with the said axe carried by him and the said assault made on the deceased by him having been motivated by his covetousness for the valuables and cash carried by the deceased in the said box, counsel for the appellant could not urge any challenge on any question of fact. But he urged two points for our consideration: (1) that the High Court was not justified in changing the appellant's conviction from Section 304(1) to Section 302, and (2) that it was also not justified in observing that a sentence of life imprisonment must be deemed to be one for 12 years, and therefore, not a deterrent sentence and basing its order of death sentence on such erroneous reasoning.
6. The first contention, we think, has no merit. Of the three incised wounds deposed to by Dr Patil, one was on the ring finger and the small finger of the right hand. That, according to the findings of the High Court, was caused when Kashinath tried to ward off the blow aimed at his neck. The second incised injury was on the right shoulder near the neck and was 3″ in. depth. Thus, it is clear that two blows were aimed at or near the neck. The third incised injury, also 3½″ in depth, was on the abdomen. All the three blows were therefore aimed at vital parts of the victim's body, the last one, of course, was the most serious and was the one which proved fatal. Considering the nature of these injuries, the vital parts of the body at which they were aimed, the heavy sharp-edged weapon employed in causing them, the force used in causing them, all these factors clearly indicate that the appellant had intended to cause these injuries, and the injuries, the one on the abdomen singly, and all of them commulatively, were such that death would in all probability be the result. It is difficult to appreciate how on such clear evidence, looking to the kind of injuries which the appellant had caused, the Sessions Court could come to the conclusion, in the absence of any of the exceptions to Section 300 being applicable, that the appellant was not guilty under Section 302, but was guilty only under Section 304(1). The High Court, in our view, was perfectly justified in setting aside the conviction under Section 304(1) and convicting the appellant instead under Section 302.
7. As regards the sentence, the murder was without doubt gruesome as the High Court described it. Apart from its being so, it must be held to be premeditated. The evidence shows that it was arranged between original Accused 1, 4 and the appellant that Accused 4 should pretend as if he had lost the way, that the appellant should thereupon lead the way and at an appropriate moment should give a signal to them by striking first at the boxes carried by Kalu and then immediately launch an attack on Kashinath so that the effect on those accompanying the victim would be so startling that they would run away to save their own lives. The result was as expected, for, Kalu and the two merchants did run away leaving Kashinath alone at the mercy of the appellant and his associates. There cannot be the slightest doubt that Accused 1, 4 and the appellant had from the very start an evil eye on the wares contained in Kashinath's box and had been, therefore, remaining in contact with Kashinath and his companions over since that afternoon, The object of murder clearly was to secure by robbery Kashinath's box and its contents. In these circumstances, the High Court, on coming to the conclusion that the offence was murder committed with the object of robbing Kashinath, had two alternatives: (1) to award the death sentence, or (2) to award the lesser sentence of life imprisonment. There being no extenuating circumstance whatsoever, but on the contrary the aggravating circumstance of robbery being the motive for the murder, it cannot be said that the sentence of death was not justified. The High Court felt that in the circumstances of the case a sentence which would prove deterrent to like offenders was the proper sentence and therefore thought that a sentence of life imprisonment, which for all practical purposes would be for a term of 12 years according to the jail rules framed by the State Government, (a fact not challenged before us), would not serve the purpose of deterrence it had in mind, and therefore, decided to inflict on the appellant the sentence of death. It is true, as was said in Gopal Vinayak Godse v. State of Maharashtra1 and in Gopinath Tiwari v. State of U.P.2 that a sentence of life imprisonment cannot be equated with one for a fixed period but that was not what the High Court was thinking or doing. What it took into account was the fact that ordinarily a person sentenced to life imprisonment would have to undergo, in the State of Maharashtra, in all imprisonment for 12 years. The rest of his term of sentence would be considered either as commuted or remitted, and therefore, it thought that the lesser punishment in the circumstances of the case was not either proper or adequate. Apart from the consideration of the necessity of awarding a deterrent sentence, there can be, as aforesaid, no legitimate quarrel that considering the object with which the murder was committed the extreme penalty was not unjustified. We, therefore, do not see any merit in the second contention also, nor any proper ground for interference.
8. Both the points raised before us having thus failed, the consequence is that the appeal must fail and is dismissed.