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Judgment
Vishnu Sahai, J.—Through the appeal the appellant challenges the Judgment and order dated 7.9.1998 passed by the Additional Sessions Judge, Panaji camping at Daman, in Sessions Case No. 89 of 1987 convicting and sentencing him to undergo imprisonment for life for an offence u/s 302 of IPC.
In short, the prosecution case runs as under:
On 2.8.87, at about 1 p.m. the informant Bhula Bhagwan P.W. 1 Pemla Chagan and Magan Barsa were on their way to tap toddy. Immediately, behind the informant was Somla. When they had reached near the house of the appellant, the appellant who was sleeping outside his house woke up on the barking of a dog. Perhaps, he was irritated by this and consequently, snatched the vidnu (pointed instrument for tapping toddy) from Somla. Thereafter, he and the acquitted accused Pravin Dhodi caught Somla and the appellant pierced the vidnu on the left side of his stomach, as a consequence of which Somla fell down. Thereafter, the appellant and Pravin Dhodi ran away.
The informant went to the house of Dhiru Sarpanch, P.W. 5 and informed him about the incident and when he returned to the place, of the incident thereafter, he found that Somla was dead.
The F.I.R. of the incident was lodged by the informant Bhula Bhagwan P.W. 1 on 2.8.87 at about 2 p.m. at police station Daman. On its basis, PSI E.J. Rassrio P.W. 10 registered an offence u/s 302 of IPC.
The investigation was conducted in the usual manner by PSI Rosario P.W. 10, and PSI Remedio Fernandes P.W. 12. The latter arrested the appellant on 2.8.87 at 7.15 p.m.
After completing the investigation P.S.I. Rosario P. W. 10 submitted the charge-sheet against the appellant on 24.11.87.
The autopsy on the corpse of Somla was conducted on 3.8.87'' between 1 and 1.15 p.m. by Dr. Jog Atmaram P.W. 6 who found that the deceased had sustained a penetrating clear cut wound 1.5 cm on left 6th inter costal space which was accompanied by a penetrating injury to the left lung and heart.
In the opinion of Dr. Atmaram the said injury was sufficient in the ordinary course of nature to cause death and could be caused by the vidnu which was shown to him during his deposition.
The case was committed to the Court of Sessions in the usual manner. There the appellant and co-accused Pravin Dhodi were charged for an offence u/s 302 r/w 34 of IPC to which they pleaded not guilty and claimed to be tried.
During the trial, the prosecution examined 12 witnesses. Out of them, two namely the informant Bhula Bhagwan P. W. 1. and Magan Barsa P.W. 3 were examined as eye witnesses.
In defence, no witness was examined.
The learned trial Judge believed the evidence vis-a-vis the appellant and convicted and sentenced him in the manner stated in para 1 but, acquitted the co-accused Pravin Dhodi whose acquittal has not being impugned by the State of Maharashtra.
Although the appeal has been on the final hearing board since long, the learned counsel for the appellant Mr. Ramdas Sabban is absent. Since the appellant has been languishing in jail for over 11 years and in our view, no offence u/s 302 of IPC was made out, we chose to decide the appeal in his absence with the assistance of the learned counsel for the respondent Mr. Anoop Mohta. That we can do so is clear from the decision of the Apex Court in Bani Singh and ohters Vs. State of U.P., .
After going through the evidence on record and hearing Mr. Anoop Mohta, learned counsel for the respondent, we are implicitly satisfied that the learned trial Judge acted correctly in recording the involvement of the appellant in the incident. We feel that the evidence of two eye-witnesses who have been examined by the prosecution to prove the guilt of the appellant namely the informant Bhula Bhagwan P.W. 1 and Magan Barsa P.W. 3 inspires implicit confidence. The said witnesses have explained their presence on the place of the incident by alleging that on 2.8.87 at about 1 p.m. they had reached the house of the appellant along with the deceased Somla, while on way for tapping toddy. According to them, as a consequence of the barking of a dog, the appellant who was sleeping outside his house, woke up. Thereafter, he snatched the vidnu which Somla was carrying and caught him along with the acquitted co-accused Pravin Dhodi. Thereafter, the appellant inflicted a solitary vidnu blow on left side of the stomach (just below the ribs) of Somla. The said account furnished by these witnesses receives corroboration by the medical evidence. Dr. Atmaram P.W. 6 who performed the autopsy on the corpse of the deceased found that he had sustained a penetrating clear cut wound on the left 6th inter costal space which was accompanied by a penetrating injury to the left lung. In his opinion, the said injury could be caused by the vidnu shown to him.
It is pertinent to point out that both these eye witnesses are independent witnesses having no axe to grind against the appellant. In our view, unless the appellant had fatally assaulted the deceased in the manner deposed to by them, they would not have falsely implicated him.
It is pertinent to point out that the F.I.R. of the incident wherein the appellant is named and the material particulars of the prosecution case have been unfolded was lodged within 1/2 hour of the incident by the informant Bhula Bhagwan P.W. 1. Criminal Courts attach great significance to the prompt lodging of an F.I.R. because the same substantially eliminates chances of embellishment in the prosecution story, and that of false implication of the accused named thereunder.
For the said reasons, we feel that the learned trial Judge acted correctly in finding the involvement of the appellant in the incident having been established beyond the place of doubt.
This leaves us with the question of offence. We feel that the learned trial Judge erred in convicting the appellant for an offence u/s 302 of IPC for in our Judgment, only an offence u/s 304 (part 1) of IPC is made out against him. Although the prosecution alleged motive against the appellant namely there was some enmity between him and the deceased Somla but that motive has not been accepted by the learned trial Judge for plausible reasons. It appears that the appellant who at the time of the incident was sleeping and was woken up by the barking of dog felt irritated and consequently snatched the vidnu which the deceased Somla was carrying and inflicted a solitary blow with the same on Somla''s person. On these facts, bearing in mind that the appellant was initially unarmed, his act of inflicting a solitary vidnu injury on the person of Somla on the spur of moment would not fall within any of the four clauses of Section 300 of IPC the breach of which is punishable u/s 302 of IPC but instead would fall within that of the first part of Section 304 of IPC.
Coming to the question of sentence, we find that the record shows that the appellant is in jail continuously since 3.8.87 on which date he was arrested. Since he has been in jail for over 11 years, we feel that it would be appropriate to reduce the sentence to already undergone.
In the result, this appeal is partly allowed. Although, we acquit the appellant for the offence u/s 302 of IPC and set aside his conviction and sentence on that count but, we conflict him for an offence u/s 304 (part 1) of IPC and reduce his sentence thereunder to the period already undergone by him. The appellant is in jail and shall be released therefrom forthwith unless wanted in some other case.
Office to communicate the operative part of our order forthwith to the authorities.