Full Judgment Text
2011:BHC-AS:16236-DB
skc 1 CRI-APPEAL 1510-04 JUDGMENT.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 1510 OF 2004
Tukaram Vithal Bhangare ]
age 56 years, Convict No.C/4693 ]
Nashik Road Central Prison, Nashik ]..Appellant/Accused
versus
State of Maharashtra ]
(Satpur Police Station, Nashik) ]..Respondent
Mr. Murtaza M. Najmi, Advocate Appointed for Appellant / Accused.
Mrs. A. S. Pai - Additional Public Prosecutor for Respondent – State.
CORAM : D. D. SINHA AND
K. K. TATED, JJ.
Date of Reserving the Judgment : 14.06.2011
Date of Pronouncing the Judgment : 20.07.2011
JUDGMENT : ( Per : D. D. Sinha, J .)
1. Heard the learned counsel for the appellant and the learned Additional
Public Prosecutor for the respondent – State.
st
2. In the present criminal appeal the judgment and order dated 21 May
2004 passed by the IInd Adhoc Additional Sessions Judge, Nashik, has
been impugned whereby the appellant came to be convicted for the offence
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punishable under Section 302 of the Indian Penal Code and was sentenced
to undergo imprisonment for life and was directed to pay fine of Rs.1,000/-
in default R.I. for six months.
3. The circumstances resultant in prosecution of the appellant for
offence of murder are as follows:-
Deceased Bibabai was the wife of the appellant and both of them
along with their son P.W. 2 Laxman at the relevant time were residing in a
farm house of Ajay at Village Satpur. The appellant and deceased were
th
working as agricultural labour on the field. On 6 January 2003 P.W. 2
Laxman returned to his house at 6 p.m., requested the appellant (his father)
to give him money to see the film. The appellant gave him money. Laxman
went to Gauri Video Hall to watch the movie and returned home at about
11.30 p.m. Laxman found his mother Bibabai was lying on the floor. Her
body was covered with a cloth. Appellant was present in the house. He was
under the influence of liquor. When Laxman tried to wake up his mother
Bibabai she did not respond. Laxman noticed that there was an injury on
her forehead and blood was oozing from the said injury. Bibabai was not
breathing and therefore Laxman thought that appellant Tukaram may have
killed his mother. Laxman closed the door of the house from outside and
proceeded to the house of his maternal uncle on bicycle. When Laxman was
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about to leave he noticed that the appellant broke open the window of the
house and came out of the house and started running away from the house.
Laxman chased him and caught him and taken him to the house of a
watchman. Laxman put the appellant inside the house and locked the door
from outside and proceeded towards the house of his maternal uncle Ashok
at Gangapur. When he met Ashok he informed him about the incident.
Ashok and Laxman then proceeded to Village Matori where P.W. 8
Hiraman, the another son of the appellant was residing. Laxman, Ashok and
Hiraman proceeded to the house of Hausabai, grand mother of Laxman and
Ashok. They informed her about the incident.
th
4. On 7 January 2003 at about 7 a.m. Laxman along with his relatives
came back to his house and noticed that the appellant had already escaped
from the house of the guard / watchman by breaking open the window.
Laxman lodged report about the incident at Satpur Police Station. On the
basis thereof offence came to be registered against the appellant. The
prosecution after completion of formal investigation filed a charge sheet.
Charge under Section 302 of the Indian Penal Code was framed against the
appellant which was read over to the appellant. Appellant pleaded not guilty
and claimed to be tried. The defence of the appellant emerging from the
cross-examination of witnesses and the statement under Section 313 is that
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Laxman often used to quarrel with his mother On the day of the incident he
quarreled with his mother and inflicted injury to Bibabai. The appellant also
raised plea of alibi. According to the appellant on the day and at the time of
incident he was not in his house and was staying with his son-in-law.
5. In the instant case the prosecution has examined as many as 12
prosecution witnesses to bring home the guilt of the appellant for the
offence of murder. The prosecution case is primarily based on testimony of
P.W. 2 Laxman, P.W. 8 Hiraman, coupled with the medical evidence of P.W.
1 Dr. Kasodkar.
6. The counsel for the appellant has submitted that the material evidence
in the present case is of P.W. 2 Laxman and P.W. 8 Hiraman. Both are the
sons of the appellant and the deceased was their mother. It is contended that
neither Laxman nor Hiraman are the eye witnesses to the incident. It is no
doubt true that Laxman at the relevant time was residing with the appellant
and deceased at the farm house of Ajay. However, at the time of incident
Laxman was not present in the house. It is the case of the prosecution that
Laxman has last seen the deceased Bibabai, in the company of the appellant
at 8.30 p.m. in a house where at the relevant time they were residing. It is
contended that in the instant case the testimony of Laxman only
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demonstrates that his mother deceased Bibabai was last seen in the company
of the appellant in the house where they were residing at the relevant time
at about 8 O’clock when he left the house to watch the movie. It is
contended that the solitary circumstance of deceased last seen with the
appellant without any corroboration cannot be made basis for convicting
the appellant for the offence of murder. It is submitted that though the
prosecution has examined number of witnesses, P.W. 3 Samadhan Ahire,
P.W. 4 Sham Waghmare and P.W. 6 Shivaji Ahire are the panch witnesses
examined by the prosecution to prove various panchnamas. P.W. 7 Dada
Gangurde, P.W. 10 Vinayak Saindane, P.W. 11 Anil Bharaskar and P.W. 12
Hiraman Khotare are the police personnel. P.W. 1 Kasodkar is the medical
officer who has conducted post mortem examination and therefore the
prosecution mainly placed reliance upon the evidence of P.W. 2 Laxman and
P.W. 8 Hiraman. It is contended that evidence of both these witnesses
coupled with the medical evidence does not prove the charge of murder
against the appellant. The prosecution failed to establish any motive for the
crime in question alleged to have been committed by the appellant and the
testimony of Laxman only demonstrates that when he left the house on the
day of incident at about 8 / 8.30 p.m. to watch the movie, his mother
deceased Bibabai was in the company of his father and when Laxman
returned home at about 11.30 p.m. he found a dead body of his mother
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lying on the floor of his house. It is contended that the evidence of P.W. 8
th
Hiraman only shows that on 6 January 2003 at about 1 a.m. Laxman and
Ashok went to the house of this witness at Village Matori and informed him
that the appellant killed their mother by inflicting injury on her head. They
also went to the house of their paternal grand mother and informed her
about the incident. It is submitted that the evidence of both these witnesses
is not sufficient to prove the charge of murder against the appellant. It is
submitted that the evidence of Medical Officer Nashik shows that the
deceased sustained only one injury on the forehead. However, there is no
opinion given by the medical officer whether the said injury in the ordinary
course of nature was sufficient to cause death. Counsel for the appellant
therefore contended that the evidence adduced by the prosecution is not
reliable, trustworthy and ought not to have been accepted by the trial court.
7. The learned Additional Public Prosecutor on the other hand has
supported the impugned judgment and order of conviction passed by the
trial court and submitted that the evidence of P.W. 2 Laxman and P.W. 8
Hiraman is reliable and trustworthy. These are the sons of the appellant and
deceased Bibabai and therefore there is no reason for them to falsely
implicate the appellant in the crime in question. It is further contended that
the evidence of last seen is also trustworthy and clinching. Similarly the
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conduct of P.W. 2 Laxman informing the incident to his maternal uncle
Ashok and P.W. 8 Hiraman lends corroboration to the prosecution case. It is
submitted that the medical evidence of Doctor Kasodkar P.W. 1 shows that
the deceased received injury on forehead above right eye brow 3 inch x ½
inch bone deep and the internal examination revealed that on the frontal
bone there was a crack placed in a oblique direction which was 1 inch in
length. The medical officer has opined that Bibabai died because of shock
due to intracrancial haemorhage due to fracture of skull. The medical officer
also opined that injury sustained by the deceased was possible by Articles 1
and 11. The learned Additional Public Prosecutor therefore contended that
the prosecution succeeded in proving the charge of murder against the
appellant and therefore the impugned judgment is sustainable in law.
8. Considered the contentions canvassed by the respective counsel and
carefully scrutinised the evidence adduced by the prosecution. It is no doubt
true that if the conviction is based on circumstantial evidence the
prosecution has to establish the circumstances from which the inference of
guilt is sought to be drawn must be cogently and firmly established, they
should unerringly point towards the guilt of the accused and if taken
cumulatively should form a chain so complete which must demonstrate in
all probability that the crime was committed by the accused. Similarly the
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evidence of last seen though is a weak type of evidence, however if it is
convincing, trustworthy, inspires confidence and is corroborated by other
prosecution evidence it can safely be relied upon.
9. In the instant case we cannot ignore the fact that the deceased Bibabai
was the mother of P.W. 2 Laxman and P. W. 8 Hiraman and the appellant is
the father of these witnesses. In view of these peculiar facts of the case
these witnesses falsely implicating their own father (appellant) in the crime
in question, in our view, has been completely ruled out. There is nothing on
record to show that these witnesses were on inimical terms with the
appellant (their father) nor the evidence of the prosecution shows that the
appellant had any grudge against his own sons.
10. We have scrutinised the evidence keeping in view the law on the point
of last seen as well as circumstantial evidence and the circumstances
required to be proved by the prosecution in a case where the conviction is
based on circumstantial evidence.
11. In the instant case the evidence of P.W. 2 Laxman reveals that Bibabai
was with the appellant in their residential house at 8.30 p.m. on the day of
the incident. P.W. 2 Laxman left the house for watching a movie and
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returned home at about 11.30 p.m. and found dead body of his mother lying
on the floor of the house and the appellant was also present by her side. We
have already observed that the evidence of last seen otherwise may be a
weak piece of evidence, however, in the instant case deceased was last seen
in the company of the appellant at 8.30 p.m. and her dead body was found
almost within three hours and at that time appellant was also present.
Considering the thin gap, between the deceased last seen with appellant and
finding of her dead body, the evidence of last seen, in our view, is
clinching and since same is adduced by the son of the appellant it becomes
more authentic, reliable and trustworthy because possibility of concoction
and fabrication in view of the relationship between Laxman P.W. 2 and
appellant as well as deceased has been completely ruled out. Similarly the
subsequent conduct of P.W. 2 Laxman going to the house of P.W. 8 Hiraman
(another son of appellant) and disclosing him the incident also consistent
with the material particulars of the prosecution case. Similarly the testimony
of P.W. 8 Hiraman shows that Laxman is his younger brother and at the
relevant time was residing with the appellant and the deceased. It has come
in the testimony of Hiraman that at 1 a.m. Laxman visited his house and
informed that the appellant killed their mother deceased Bibabai by causing
injury on her head. Laxman also informed him that he has detained their
father, the appellant, in the house. It is no doubt true that in the cross-
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examination of this witness this witness has not disputed that relations
between Laxman and appellant were not cordial because the appellant
wanted Laxman to do some job. It is most natural for a father to expect a
grown up son to do some job, and, therefore, in our view the said admission
by Hiraman in his cross-examination does not show that the relation
between Laxman and appellant were inimical.
12. The medical evidence of P.W. 1 Doctor Kasodkar shows that
deceased sustained injury on her forehead resulted in causing crack in the
frontal bone and as per the opinion of the medical officer deceased died due
to head injury.
13. Considering the over all evidence in general and evidence of P.W. 2
Laxman, P.W. 8 Hiraman coupled with the medical evidence as well as
other attending circumstances, we are of the view that the prosecution has
established the circumstances from which the inference of guilt can safely
be drawn since those circumstances are cogent, trustworthy and point
towards the guilt of the appellant and therefore in our view the prosecution
has proved the complicity of the appellant in the crime in question. However
it is necessary to evaluate whether the offence committed by the appellant is
murder punishable under section 302 of the Indian Penal Code or under
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section 304-I of the Indian Penal Code.
14. Culpable homicide is murder when the act by which the death is
caused with the intention of causing death or with the intention of causing
such bodily injury as the offender knows to be likely to cause death of the
person whom harm is caused or if it is done with the intention of causing
bodily injury which is sufficient in the ordinary course of nature to cause
death or the assailant knows that the act is so eminently dangerous that it
must in all probability would result in death. In the instant case if the
appellant really intended to commit murder of his wife, then he would not
have inflicted only one injury on the person of the deceased; on the other
hand would have inflicted more injuries. It is well settled that though the
act which results in causing death is done with the intention to cause such
bodily injury which is likely to cause death would be punishable under
section 304-I of the Indian Penal Code. In the instant case the appellant
caused injury to the deceased with the intention of causing such bodily
injury as is likely to cause death and therefore in our considered view act
committed by the appellant would fall within the ambit of provisions of
section 304-I of the Indian Penal Code.
15. For the reasons stated herein above, the criminal appeal is partly
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allowed. Conviction of the appellant for the offence punishable under
section 302 of the Indian Penal Code is hereby set aside. The appellant now
is convicted for the offence punishable under section 304-I of the Indian
Penal Code and is sentenced to undergo imprisonment for eight years.
Since the appellant is in custody for more than eight years, the appellant be
released forthwith on the basis of the sentence already undergone provided
he is not required in any other criminal case.
(D. D. SINHA, J. )
(K. K. TATED, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 1510 OF 2004
Tukaram Vithal Bhangare ]
age 56 years, Convict No.C/4693 ]
Nashik Road Central Prison, Nashik ]..Appellant/Accused
versus
State of Maharashtra ]
(Satpur Police Station, Nashik) ]..Respondent
Mr. Murtaza M. Najmi, Advocate Appointed for Appellant / Accused.
Mrs. A. S. Pai - Additional Public Prosecutor for Respondent – State.
CORAM : D. D. SINHA AND
K. K. TATED, JJ.
Date of Reserving the Judgment : 14.06.2011
Date of Pronouncing the Judgment : 20.07.2011
JUDGMENT : ( Per : D. D. Sinha, J .)
1. Heard the learned counsel for the appellant and the learned Additional
Public Prosecutor for the respondent – State.
st
2. In the present criminal appeal the judgment and order dated 21 May
2004 passed by the IInd Adhoc Additional Sessions Judge, Nashik, has
been impugned whereby the appellant came to be convicted for the offence
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punishable under Section 302 of the Indian Penal Code and was sentenced
to undergo imprisonment for life and was directed to pay fine of Rs.1,000/-
in default R.I. for six months.
3. The circumstances resultant in prosecution of the appellant for
offence of murder are as follows:-
Deceased Bibabai was the wife of the appellant and both of them
along with their son P.W. 2 Laxman at the relevant time were residing in a
farm house of Ajay at Village Satpur. The appellant and deceased were
th
working as agricultural labour on the field. On 6 January 2003 P.W. 2
Laxman returned to his house at 6 p.m., requested the appellant (his father)
to give him money to see the film. The appellant gave him money. Laxman
went to Gauri Video Hall to watch the movie and returned home at about
11.30 p.m. Laxman found his mother Bibabai was lying on the floor. Her
body was covered with a cloth. Appellant was present in the house. He was
under the influence of liquor. When Laxman tried to wake up his mother
Bibabai she did not respond. Laxman noticed that there was an injury on
her forehead and blood was oozing from the said injury. Bibabai was not
breathing and therefore Laxman thought that appellant Tukaram may have
killed his mother. Laxman closed the door of the house from outside and
proceeded to the house of his maternal uncle on bicycle. When Laxman was
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about to leave he noticed that the appellant broke open the window of the
house and came out of the house and started running away from the house.
Laxman chased him and caught him and taken him to the house of a
watchman. Laxman put the appellant inside the house and locked the door
from outside and proceeded towards the house of his maternal uncle Ashok
at Gangapur. When he met Ashok he informed him about the incident.
Ashok and Laxman then proceeded to Village Matori where P.W. 8
Hiraman, the another son of the appellant was residing. Laxman, Ashok and
Hiraman proceeded to the house of Hausabai, grand mother of Laxman and
Ashok. They informed her about the incident.
th
4. On 7 January 2003 at about 7 a.m. Laxman along with his relatives
came back to his house and noticed that the appellant had already escaped
from the house of the guard / watchman by breaking open the window.
Laxman lodged report about the incident at Satpur Police Station. On the
basis thereof offence came to be registered against the appellant. The
prosecution after completion of formal investigation filed a charge sheet.
Charge under Section 302 of the Indian Penal Code was framed against the
appellant which was read over to the appellant. Appellant pleaded not guilty
and claimed to be tried. The defence of the appellant emerging from the
cross-examination of witnesses and the statement under Section 313 is that
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Laxman often used to quarrel with his mother On the day of the incident he
quarreled with his mother and inflicted injury to Bibabai. The appellant also
raised plea of alibi. According to the appellant on the day and at the time of
incident he was not in his house and was staying with his son-in-law.
5. In the instant case the prosecution has examined as many as 12
prosecution witnesses to bring home the guilt of the appellant for the
offence of murder. The prosecution case is primarily based on testimony of
P.W. 2 Laxman, P.W. 8 Hiraman, coupled with the medical evidence of P.W.
1 Dr. Kasodkar.
6. The counsel for the appellant has submitted that the material evidence
in the present case is of P.W. 2 Laxman and P.W. 8 Hiraman. Both are the
sons of the appellant and the deceased was their mother. It is contended that
neither Laxman nor Hiraman are the eye witnesses to the incident. It is no
doubt true that Laxman at the relevant time was residing with the appellant
and deceased at the farm house of Ajay. However, at the time of incident
Laxman was not present in the house. It is the case of the prosecution that
Laxman has last seen the deceased Bibabai, in the company of the appellant
at 8.30 p.m. in a house where at the relevant time they were residing. It is
contended that in the instant case the testimony of Laxman only
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demonstrates that his mother deceased Bibabai was last seen in the company
of the appellant in the house where they were residing at the relevant time
at about 8 O’clock when he left the house to watch the movie. It is
contended that the solitary circumstance of deceased last seen with the
appellant without any corroboration cannot be made basis for convicting
the appellant for the offence of murder. It is submitted that though the
prosecution has examined number of witnesses, P.W. 3 Samadhan Ahire,
P.W. 4 Sham Waghmare and P.W. 6 Shivaji Ahire are the panch witnesses
examined by the prosecution to prove various panchnamas. P.W. 7 Dada
Gangurde, P.W. 10 Vinayak Saindane, P.W. 11 Anil Bharaskar and P.W. 12
Hiraman Khotare are the police personnel. P.W. 1 Kasodkar is the medical
officer who has conducted post mortem examination and therefore the
prosecution mainly placed reliance upon the evidence of P.W. 2 Laxman and
P.W. 8 Hiraman. It is contended that evidence of both these witnesses
coupled with the medical evidence does not prove the charge of murder
against the appellant. The prosecution failed to establish any motive for the
crime in question alleged to have been committed by the appellant and the
testimony of Laxman only demonstrates that when he left the house on the
day of incident at about 8 / 8.30 p.m. to watch the movie, his mother
deceased Bibabai was in the company of his father and when Laxman
returned home at about 11.30 p.m. he found a dead body of his mother
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lying on the floor of his house. It is contended that the evidence of P.W. 8
th
Hiraman only shows that on 6 January 2003 at about 1 a.m. Laxman and
Ashok went to the house of this witness at Village Matori and informed him
that the appellant killed their mother by inflicting injury on her head. They
also went to the house of their paternal grand mother and informed her
about the incident. It is submitted that the evidence of both these witnesses
is not sufficient to prove the charge of murder against the appellant. It is
submitted that the evidence of Medical Officer Nashik shows that the
deceased sustained only one injury on the forehead. However, there is no
opinion given by the medical officer whether the said injury in the ordinary
course of nature was sufficient to cause death. Counsel for the appellant
therefore contended that the evidence adduced by the prosecution is not
reliable, trustworthy and ought not to have been accepted by the trial court.
7. The learned Additional Public Prosecutor on the other hand has
supported the impugned judgment and order of conviction passed by the
trial court and submitted that the evidence of P.W. 2 Laxman and P.W. 8
Hiraman is reliable and trustworthy. These are the sons of the appellant and
deceased Bibabai and therefore there is no reason for them to falsely
implicate the appellant in the crime in question. It is further contended that
the evidence of last seen is also trustworthy and clinching. Similarly the
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conduct of P.W. 2 Laxman informing the incident to his maternal uncle
Ashok and P.W. 8 Hiraman lends corroboration to the prosecution case. It is
submitted that the medical evidence of Doctor Kasodkar P.W. 1 shows that
the deceased received injury on forehead above right eye brow 3 inch x ½
inch bone deep and the internal examination revealed that on the frontal
bone there was a crack placed in a oblique direction which was 1 inch in
length. The medical officer has opined that Bibabai died because of shock
due to intracrancial haemorhage due to fracture of skull. The medical officer
also opined that injury sustained by the deceased was possible by Articles 1
and 11. The learned Additional Public Prosecutor therefore contended that
the prosecution succeeded in proving the charge of murder against the
appellant and therefore the impugned judgment is sustainable in law.
8. Considered the contentions canvassed by the respective counsel and
carefully scrutinised the evidence adduced by the prosecution. It is no doubt
true that if the conviction is based on circumstantial evidence the
prosecution has to establish the circumstances from which the inference of
guilt is sought to be drawn must be cogently and firmly established, they
should unerringly point towards the guilt of the accused and if taken
cumulatively should form a chain so complete which must demonstrate in
all probability that the crime was committed by the accused. Similarly the
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evidence of last seen though is a weak type of evidence, however if it is
convincing, trustworthy, inspires confidence and is corroborated by other
prosecution evidence it can safely be relied upon.
9. In the instant case we cannot ignore the fact that the deceased Bibabai
was the mother of P.W. 2 Laxman and P. W. 8 Hiraman and the appellant is
the father of these witnesses. In view of these peculiar facts of the case
these witnesses falsely implicating their own father (appellant) in the crime
in question, in our view, has been completely ruled out. There is nothing on
record to show that these witnesses were on inimical terms with the
appellant (their father) nor the evidence of the prosecution shows that the
appellant had any grudge against his own sons.
10. We have scrutinised the evidence keeping in view the law on the point
of last seen as well as circumstantial evidence and the circumstances
required to be proved by the prosecution in a case where the conviction is
based on circumstantial evidence.
11. In the instant case the evidence of P.W. 2 Laxman reveals that Bibabai
was with the appellant in their residential house at 8.30 p.m. on the day of
the incident. P.W. 2 Laxman left the house for watching a movie and
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returned home at about 11.30 p.m. and found dead body of his mother lying
on the floor of the house and the appellant was also present by her side. We
have already observed that the evidence of last seen otherwise may be a
weak piece of evidence, however, in the instant case deceased was last seen
in the company of the appellant at 8.30 p.m. and her dead body was found
almost within three hours and at that time appellant was also present.
Considering the thin gap, between the deceased last seen with appellant and
finding of her dead body, the evidence of last seen, in our view, is
clinching and since same is adduced by the son of the appellant it becomes
more authentic, reliable and trustworthy because possibility of concoction
and fabrication in view of the relationship between Laxman P.W. 2 and
appellant as well as deceased has been completely ruled out. Similarly the
subsequent conduct of P.W. 2 Laxman going to the house of P.W. 8 Hiraman
(another son of appellant) and disclosing him the incident also consistent
with the material particulars of the prosecution case. Similarly the testimony
of P.W. 8 Hiraman shows that Laxman is his younger brother and at the
relevant time was residing with the appellant and the deceased. It has come
in the testimony of Hiraman that at 1 a.m. Laxman visited his house and
informed that the appellant killed their mother deceased Bibabai by causing
injury on her head. Laxman also informed him that he has detained their
father, the appellant, in the house. It is no doubt true that in the cross-
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examination of this witness this witness has not disputed that relations
between Laxman and appellant were not cordial because the appellant
wanted Laxman to do some job. It is most natural for a father to expect a
grown up son to do some job, and, therefore, in our view the said admission
by Hiraman in his cross-examination does not show that the relation
between Laxman and appellant were inimical.
12. The medical evidence of P.W. 1 Doctor Kasodkar shows that
deceased sustained injury on her forehead resulted in causing crack in the
frontal bone and as per the opinion of the medical officer deceased died due
to head injury.
13. Considering the over all evidence in general and evidence of P.W. 2
Laxman, P.W. 8 Hiraman coupled with the medical evidence as well as
other attending circumstances, we are of the view that the prosecution has
established the circumstances from which the inference of guilt can safely
be drawn since those circumstances are cogent, trustworthy and point
towards the guilt of the appellant and therefore in our view the prosecution
has proved the complicity of the appellant in the crime in question. However
it is necessary to evaluate whether the offence committed by the appellant is
murder punishable under section 302 of the Indian Penal Code or under
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section 304-I of the Indian Penal Code.
14. Culpable homicide is murder when the act by which the death is
caused with the intention of causing death or with the intention of causing
such bodily injury as the offender knows to be likely to cause death of the
person whom harm is caused or if it is done with the intention of causing
bodily injury which is sufficient in the ordinary course of nature to cause
death or the assailant knows that the act is so eminently dangerous that it
must in all probability would result in death. In the instant case if the
appellant really intended to commit murder of his wife, then he would not
have inflicted only one injury on the person of the deceased; on the other
hand would have inflicted more injuries. It is well settled that though the
act which results in causing death is done with the intention to cause such
bodily injury which is likely to cause death would be punishable under
section 304-I of the Indian Penal Code. In the instant case the appellant
caused injury to the deceased with the intention of causing such bodily
injury as is likely to cause death and therefore in our considered view act
committed by the appellant would fall within the ambit of provisions of
section 304-I of the Indian Penal Code.
15. For the reasons stated herein above, the criminal appeal is partly
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allowed. Conviction of the appellant for the offence punishable under
section 302 of the Indian Penal Code is hereby set aside. The appellant now
is convicted for the offence punishable under section 304-I of the Indian
Penal Code and is sentenced to undergo imprisonment for eight years.
Since the appellant is in custody for more than eight years, the appellant be
released forthwith on the basis of the sentence already undergone provided
he is not required in any other criminal case.
(D. D. SINHA, J. )
(K. K. TATED, J.)
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