Sumesh Raut vs The State Of Maharashtra

(PER:- ROHIT W. JOSHI, J.)

The present appeal is filed in order to challenge judgment and order dated 16/07/2021 passed by the learned Additional Sessions Judge, Chandrapur in Sessions Case No. 63 of 2019, whereby the appellant - accused is convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/-, in default, to suffer simple imprisonment for 1 year; and for the offence punishable under Section 324 of the Indian Penal Code, for which he is sentenced to suffer imprisonment for 1 year and to pay fine of Rs. 1,000/-, in default, to suffer simple imprisonment for 1 month. Both the sentences are ordered to run concurrently.

The prosecution case is that on 19/02/2019 between 09:30 p.m. and 09:45 p.m., the accused committed murder of his brother-in-law (Kunal), by means of a knife at the residential house of the deceased at Ghutkala Ward, Behind Nehru School, District Chandrapur and also attempted to commit murder of his mother-in-law (Shalini) at the same time and place.

The mother-in-law of the accused lodged a report, on the basis of which, FIR No. 204 of 2019 came to be registered against the accused on 20/02/2019. The marriage of the accused with the daughter of the informant - Teshna was solemnized approximately 6 months prior to the date of the incident. As per the prosecution case, the accused used to beat his wife under the influence of liquor, and therefore, she left his company and came to reside at her parental home. While leaving the house of her husband, Teshna had carried an amount of Rs. 1,500/- with her when she went to the house of her mother on 18/02/2019.

It is the prosecution case that on the next day i.e., on 19/02/2019, the accused came to the house of his in-laws at around 05:00 p.m. and picked up a quarrel with them. Teshna made a phone call to her brother - deceased Kunal, who was not at home at the relevant time. It is the case of the prosecution that in the night, when the deceased came home from his work and was having his meals, the accused came to the house and again started hurling abuses, at which the deceased tried to pacify the accused and to request him not to do so. It is the prosecution case that at this time, the accused inflicted repeated blows on the person of the deceased with a knife, and when the mother of the deceased intervened, the accused also inflicted blows on her person with the knife. The incident occurred on 19/02/2019. The deceased expired on the 15^th day i.e. on 06/03/2019 while he was hospitalized.

The post-mortem report indicates the existence of several injuries, four of which were therapeutic and one was a bed sore. The Medical Officer has opined that one injury, i.e., the stab wound on the left side of the abdomen, was sufficient to cause death in the ordinary course of nature. The other injuries are stated to be grievous. It is not mentioned that the said injuries are sufficient, in the ordinary course of nature, to cause death.

The prosecution has examined the mother-in-law, a neighbour and the wife of the accused as PW-2, PW-3 and PW-4 respectively as eyewitnesses to the offence. In the light of the evidence brought on record, the learned Sessions Judge convicted the appellant - accused for the offence punishable under Section 302 of the IPC for having caused the homicidal death of the deceased - Kunal and under Section 324 of the IPC for inflicting wounds on the person of PW-2 (mother-in-law of the accused).

Perusal of the judgment delivered by the learned Sessions Court will indicate that during the course of arguments, the learned advocate for the accused had laid emphasis on the fact that the case was not covered under Section 302 of the IPC, but under Section 304 Part-II of the IPC. The contention canvassed by the learned advocate was that the deceased did not succumb to the injuries immediately and that the death was caused due to septicemia after being hospitalized. Apart from this, a contention was raised that the incident occurred at the spur of the moment without any premeditation. It was sought to be canvassed that the deceased had brought the knife with him in order to attack the accused and during the scuffle between the two, he suffered the said injuries. Cross-examination of the eyewitnesses was also on these lines. The learned Sessions Judge did not accept the contention of the accused regarding the death of the deceased not being an outcome of the assault but due to septicemia. The learned Sessions Court observed that there is no material on record to infer that the formation of pus cells was due to negligence on the part of the doctor. Apart from this, the learned Sessions Court observed that 11 wounds were inflicted on the person of the deceased, and as such, the case was covered under Section 302 of the IPC.

Learned advocate for the appellant contends that the doctor who conducted the postmortem examination of the deceased expressed that only one injury, recorded at serial no. 1, was sufficient in the ordinary course of nature to cause death. She further contends that the cause of death is not directly attributable to the injury at serial no. 1, but to septicemia. The learned advocate contends that the incident occurred on 19/02/2019 and the deceased expired on 06/03/2019, i.e., on the 15^th day from the date of the incident. It is, therefore, contended that the case does not fall under Section 302 of the IPC.

Learned advocate has also argued that the accused is a poor labour whose wife had left his house shortly after marriage and had taken an amount of Rs. 1,500/- with her, which was a sizable amount for a poor labour. She contends that the accused had simply gone to the house of his in-laws to get back the said amount, and the quarrel ensued at the spur of the moment without any premeditation. She contends that the witnesses have not specifically deposed that the accused carried the knife with him on the date of the incident. Learned advocate, therefore, contends that the case would fall under Section 304 Part-II and not Section 302 of the IPC.

In support of her contention, she has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Nandkumar alias Nandu Manilal Mudaliar v. State of Gujarat, reported in 2025 SCC OnLine SC 2374. She has particularly referred to paragraph 6.3 to contend that in the said case, as well as in the present case, death occurred after a period of 13 days due to septicemia, as a consequence of which, the Hon'ble Supreme Court converted the conviction from Section 302 of the IPC to Section 304 Part-I of the IPC. Learned advocate contends that in the present case, the conviction, at best, can be under Section 304 Part-II of the IPC, since the dispute arose at the spur of the moment without any premeditation and in view of a sudden quarrel between the accused and the deceased.

Per contra, Mr. S.S. Doifode, learned APP, contends that the offence was committed with a premeditated design. He contends that there is no material to infer that the deceased had come with the knife and suffered injuries during a scuffle, as is contended by the accused. Learned APP has also drawn attention to the arrest form of the accused to contend that the accused did not suffer any injury on his person. Learned APP argued that perusal of the postmortem report will indicate that around 11 wounds were inflicted by the accused with the knife.

At the outset, it will be pertinent to state that perusal of the property search & seizure form at Exhibit 27 will indicate that the length of the knife is 22 cm, the blade is 12 cm long, its width is 2.7 cm, and the handle of the knife is 10 cm in length and 2.5 cm wide. The handle of the knife is made of plastic. Thus, the blade of the knife is less than 5 inches and its width is around 1 inch. The description of the knife resembles a kitchen knife. Having regard to the size of the knife and the fact that the handle of the knife is a plastic handle, the contention of the accused that the knife is a kitchen knife appears to be probable. The possibility of the knife being taken from the house of the deceased therefore cannot be ruled out.

The version of PW-4 will indicate that the accused had been to the house of the deceased at around 05:00 p.m. and hurled abuses. She has stated that she narrated this incident to her brother - deceased on the phone. She has further stated that the accused left the place and returned at around 07:00 p.m. while she was cooking food. She asked the accused to have food and leave the house before her brother - deceased returns. She stated that the accused left the place without having food. As per her further deposition, the deceased came to the house at around 08:00 p.m., and after having a bath, he sat down for having dinner. She stated that the accused came back to the house and started hurling abuses and that they came out of the house and the deceased - her brother questioned the accused as to why he was abusing them. She stated that the accused took out the knife and stabbed the deceased on his stomach, chest, back, hand and palm. In her cross-examination, she had admitted that she had brought an amount of Rs. 1,500/- when she left the house of the accused and that the accused had called her to return to the house. She denied the suggestion that her brother - deceased started the quarrel and that in fact he had picked up the knife from the house and suffered injuries in the scuffle which took place between him and the accused.

Perusal of the cross-examination of PW-2 (the mother of the deceased and mother-in-law of the accused) would indicate that several contradictions with respect to her version and the manner in which the incident occurred are brought to the fore. In her statement under Section 164 of the Cr.P.C., PW-2 has stated that the accused had come to her house at around 05:00 p.m. and was hurling abuses by quarreling with her and her daughter at the relevant time, and therefore, she had called her son (deceased) by making a phone call. She has also stated that the accused did not leave the house although she had asked him to. This is contrary to her version in the examination-in-chief. The above contradiction has relevance only with respect to the manner in which the quarrel started.

The prosecution witnesses PW-2 and PW-4 have stated that the accused, after initially raising a quarrel with PW-2 and PW-4, left the house and came back again, started hurling abuses, and when the deceased tried to make inquiries with him as to why he was doing so, he stabbed the deceased. Section 164 statement of PW-2 would indicate that the accused stayed back in the house although he was asked to leave.

It must be stated that the accused is not required to prove his defence beyond reasonable doubt; a mere possibility of probability in support of the defence will also suffice. It must also be stated that although the prosecution witnesses have stated that the accused had assaulted the deceased with a knife, nobody has made a positive statement that he came to the spot of the incident armed with a knife. Nobody has deposed as to whether he took out the knife from his pocket or from his person before inflicting the wounds on the deceased. As recorded above, possibility of the knife being a kitchen knife cannot be ruled out. The evidence therefore falls short of establishing that the accused with a predetermined mind came armed with a knife and assaulted and inflicted knife blows on the deceased with an intention to cause his death.

It will also be relevant to state that the grievance of the accused was against his wife and not against the deceased, although the deceased was the brother of the wife. Even if he may well be angry with him as well since he is the brother of the wife with whom he had a dispute, that by itself will not be sufficient to infer that he had the intention to cause the death of the deceased.

It will now be appropriate to deal with the contentions of learned advocate for the accused that having regard to the cause of death, a case under Section 302 of the IPC is not made out. As mentioned above, the death has occurred on the 15th day from the date of the incident. The cause of death is recorded as, ‘septicemia in a post operated case of intestinal perforation due to stab injuries’. The doctor has stated that injury no. 1 is sufficient in the ordinary course of nature to cause death. Injury no. 1 is a cavity-deep stab wound of size 3 cm x 1 cm on the left side of the abdomen. As regards the other wounds, although the doctor has stated that the other injuries are also grievous, he has not stated that the same are serious enough to cause death in the ordinary course of nature. Septicemia is caused by the intestinal perforation, and the cause of death recorded indicates that the deceased had undergone a surgery in the abdominal region. The death is caused due to septicemia.

In this regard, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Nandkumar (supra), on which strong reliance is placed by learned advocate for the accused. It would be relevant to reproduce paragraph 5 of the said judgment in which the injuries suffered by the deceased are elaborated:-

In the aforesaid case before the Hon’ble Supreme Court, in the light of the said injuries and the fact that the death had occurred after a period of 13 days, a contention was raised that the case would fall under Section 304 Part-I and not Section 302 of the IPC. The Hon’ble Supreme Court has held that the case would fall under Section 304 Part-I and not under Section 302 of the IPC. Paragraphs 6.3 and 7 of the judgment in the case of Nandkumar (supra) are reproduced herein below for ready reference:-

The above said judgment is certainly helpful to the accused. The contention advanced by the accused is that the knife appears to be a kitchen knife, that the death is not caused merely because of the injury but due to septicemia which developed during the course of treatment and that the death has occurred on the 15th day from the date of the incident, which deserves consideration. The accused does not have any antecedents. He is a poor labour. His wife had left his house shortly after the marriage and had taken an amount of Rs. 1,500/- with her, which was a sizable amount for a poor person, and the accused had gone to the house of his in-laws to get back the said amount. It also appears that the quarrel ensued at the spur of the moment without premeditation. There is no evidence on record to suggest any serious personal grudge by the accused against the deceased. Having regard to the totality of the circumstances, it cannot be said with certainty that the accused caused injuries to the deceased with the intention to cause death. The facts of the case indicate that the attack by the accused on the deceased may be with the knowledge that death may be caused. However, it cannot be said with certainty that an intention to cause death did exist.

In the light of the observations of the Hon'ble Supreme Court in a similar set of facts, in the considered opinion of this Court, the appeal will have to be partly allowed by converting the conviction under Section 302 of the IPC to Section 304 Part-II of the IPC. Having regard to the total number of wounds inflicted, maximum sentence of 10 years is imposed on the accused.

Hence, the following order is passed:-