NASHIK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against Judgment dated October 12, 1982 passed b) the Division Bench of Nagpur Bench of Bombay High Court in Criminal Appeal No. 247 of 1980 affirming the conviction of the appellant under S. 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 2 1, 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. There-after, a scuffling started between them. Nashik was over-powered and made to fall on the round 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 b~ 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 Shaligrain 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 Debesing ,P.W. 5). The appellant denied his involvement in the case. The learned Sessions Judge relied on the evidence of eye-witnesses and found the appellant guilty under S. 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 S. 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 of 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 S. 302, IPC. According to the learned counsel for the appellant it was a preeminently a fit case to convict the appellant under S.304, Part I I.P.C. 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.