Ramesh Vithalrao Thakre And Another v. State Of Maharashtra

1 On 6th June, 1988 at about 8.00 p.m. while deceased Rekha was sitting at her house along with her mother Janabai, PW-2, her brother Ashok, PW-1 and two other brothers Raju and Vijay, the appellants along with, three others intruded into her house. On account to some previous enmity, Ramesh, A-1 abused Ashok, P.W.-1 and thereafter made an attempt to assault him with the knife which he had come armed with. Rekha intervened with a view to save her brother from being assaulted and in the bargain received an injury with the knife at the hands of Ramesh on her chest which injury ultimately proved fatal. One of the co-accused of the appellants, Ravindra, who was armed with achain caused injuries to Janabai, PW-2. Baban, A-2 assaulted the deceased with the knife with which he was armed causing an injury on her lower abdomen(public region)

2. Nilkanth, another co-accused, also allegedly assaulted the deceased and caused her an injury with a knife on the lower abdomen (public region). PW-1 lodged the First Information Report and the investigation was taken in hand. The investigating officer reached the spot and after preparing the inquest report sent the body for post-mortem examination. Two injuries, one on the chest and another on the lower abdomen were noticed by the doctor. The accused were sent up for trial and the prosecution examined twelve witnesses, including PW-1 and PW-2 (eye-witnesses) to connect the accused with the crime.

3. The trial court after examining the evidence and considering the circumstances of the case, acquitted all the five accused. On appeal by the State against the acquittal, a Bench of the High Court of Bombay at Nagpur maintained the acquittal of Nilkanth and Vijay Nogese. The High Court, however, convicted Ravindra for an offence under Section 324, IPC and the appellants herein, i.e., Ramesh and Baban for an offence under Section 302/34, IPC and sentenced them to suffer life imprisonment each and to pay a fine of Rs. 2, 000/- each. Ravindra has not preferred any appeal against his conviction andsentence and, therefore, this appeal is only by Ramesh, A-1 and Baban, A-2.

4. The prosecution case, as noticed above, emerges from the testimony of Ashok, PW-1 and his mother Janabai, PW-2. With the assistance of learned counsel for the parties, we have gone through the evidence of both these witnesses and find that the appreciation of evidence by the High Court insofar as these two witnesses as regards the assault on the deceased by Ramesh, appellant is concerned, is cogent and trustworthy. Both these witnesses have given consistent evidence and they appear to be reliable and trustworthy. The occurrence took place at their residence and their presence is thus most natural. Being the brother and mother of the deceased, they would not let go of the assailant of the deceased to falsely implicate Ramesh, appellant as the author of the fatal injury. The trial court, in our opinion, did not properly appreciate the evidence and ignored some vital material available on the record, while recording the order of acquittal. The High Court was, therefore, justified in coming to the conclusion that the reasoning given by the trial court was unreasonable and even perverse. We agree with the view of the High Court. The question, however, arises as to what offence, if any, can be said to have been committed by Ramesh and Baban We shall first take up the case of Baban, appellant.

5. According to the prosecution case, Baban is alleged to have caused an injury with a knife on the lower abdomen of Rekha, deceased. The Prosecution has also alleged that apart from an injury with the knife caused by Baban on the lower abdomen of Rekha, Nilkanth (the acquitted co-accused) had also caused an injury on the lower abdomen of Rekha with a knife. Both in the inquest report as well as in the post-mortem report, there is only one injury present on the lower abdomen of deceased Rekha. Since, the prosecution alleged that an injury had been caused by Nilkanth on the lower abdomen of Rekha with a Knife it would not be safe to attribute that injury to Baban, appellant also. The reasons which have been given by the trial court and the High Court for acquitting Nilkanth are equally applicable to the case of Baban also. We find that it is not safe to hold Baban, appellant guilty for causing an injury on the lower abdomen of deceased Rekha with a knife. The authorship of that injury is shrouded in mystery. The prosecution has not been able to establish the case against Baban, appellant beyond a reasonable doubt and the High Court was not justified in setting aside the acquittal of Baban and convicting him for the offence under Section 302/34, I.P.C..

6. So far as Ramesh, accused is concerned, the evidence of PW-1 and PW-2 is consistent with regard to the manner in which he assaulted deceased Rekha with the knife with which he had come armed when she intervened to save her brother, PW-1, Ashok from being assaulted. The evidence of PW-1 and PW-2 is absolutely in conformity with the statement made by PW-1 in the First Information Report which had been promptly lodged. The post-mortem report and the inquest report also show the presence of the injury on the chest of the deceased and thus the medical evidence fully corroborates the ocular testimony. The mere fact that PWs. 3, 6, 8 and 10, who are the panch witnesses to the alleged disclosure statements, turned hostile, would not in any way affect the credibility of PW-1 and PW-2 or detract from their reliability. The prosecution has established beyond any doubt that the fatal blow was given by Ramesh, appellant No. 1 on deceased Rekha. What offence, then, Ramesh be said to have committed

7. There is no denying the fact that one single injury was caused to the deceased by Ramesh when Rekha intervened to save her brother Ashok being assaulted. The primary target of Ramesh was Ashok, who got saved when Reka received the injury on her chest. After causing the single injury to Rekha, it is the prosecution case itself, that Ramesh did not cause any other injury to Rekha nor even to Ashok, PW-1. From the evidence on the record and the established circumstances, it is not possible to say with certainity that the appellant intended to cause the death of Rekha. Even though the principle contained in Section 301 IPC would be applicable to the case, it appears to us that the appellant can only be clothed with the knowledge that the injury which he was causing was likely to cause the death of Rekha but without any intention to cause her death or to cause such bodily injury as is likely to cause her death or to cause such bodily injury as is likely to cause death. The offence, under the circumstances, would be one which would fall under Section 304 Part II IPC.

8. We, accordingly set aside the conviction and sentence of Ramesh for the offence under Section 302/34, IPC and instead find him guilty for an offence under Section 304 Part II, IPC and sentence him to five years rigorous imprisonment and a fine of Rs. 4, 000/-. In default of payment of fine, the appellant shall suffer a rigorous imprisonment for a period of one year. The fine shall be paid within three months and on realisation to be paid to the mother of the deceased, PW-2 Janabai.

9. Thus, the appeal of Baban succeeds and he is acquitted. He shall be released forthwith if not required in any other case.

10. The appeal of Ramesh succeeds in part in the terms noticed above.

Order accordingly.