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PETITIONER: MATADIN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       04/08/1998

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO.171 OF 1998                       J U D G M E N T D.P. WADHWA, J.      These two  appeals have  been separately  filed by  two appellants against  common judgment  dated February 11, 1997 of the  Bombay  High  Court  (Nagpur  Bench)  upholding  the conviction of  the appellants  under Section  302 read  with Section 34  of the  Indian Penal  Code (for short ’IPC’) and sentence of  imprisonment for  life awarded to both of them. The appellant Matadin in Criminal Appeal No. 835 of 1997 and appellant Ramsingh  in Criminal  Appeal No. 171 of 1998 were respectively arrayed  as accused  Nos. 4  and 1 in the trial court.      The appellants  were tried  along with  four others for offences under  Sections 147,  148, 149  and 302 IPC. During the trial  one of  the accused  died and  three of them were acquitted. The  learned additional  Sessions Judge held that prosecution had  failed  to  prove  that  the  accused  were members of an unlawful assembly and in prosecution of common object of such assembly had committed the offence of rioting with deadly  weapons. He,  however, held  that Ramsingh  (in Criminal Appeal  No. 747  of 1998)  and Matadin (in Criminal appeal No.  835 of  1997) committed offence punishable under Section 302  read with  Section 34 IPC and sentenced each of them  to   imprisonment  for   life.  Their  conviction  and sentence, as noted above, were upheld by the High Court.      Aggrieved,  appellants   approached  this  Court  under Article 136  of the  Constitution and  this Court  did grant them leave to appeal.      Conviction of  the appellants  is based  on  the  dying declaration  of   the  deceased  (Ashok)  and  the  two  eye witnesses, namely,  Satish Waghmare  (PW-1) and  Anil  Singh Bias (PW.2).  The  incident  as  it  happened  can  be  best described by  the statement,  which the deceased made to the police after  he was  attacked and consequent upon his death became a  dying declaration  and in  his  dying  declaration which was  recorded at  11.30 P.M.  on the  same day  by  an Executive Magistrate, which are as under:-      1. Report  lodged by  the  deceased

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    with the police:-           "I reside in Gaushala Ward and      do   the    business   of   selling      vegetables.  This   day  6-6-86  at      about 10-00 o’clock in the night, I      along  with   Anil  Bias,   Narayan      Tondhare and  Satish Waghmare  were      standing talking  together in Paras      Chowk. Matadin,  Udelal, Shivdayal,      Ramsingh  and   other  two  persons      whose names  are not  known to  me,      were also  present  there.  When  I      started talking  with  Matadin,  he      said to  me, "Do  not be  a Rangdar      (over smart)".  On it,  I  replied,      "How a vegetable seller like me can      show Rangdari (over smartness)". On      it, Matadin  said,  "Maro  sale  Ko      (Abusive     term)".     Thereupon,      Ramsingh   took   out   knife   and      suddenly assaulted  with it  on  my      stomach and  with  the  same  knife      assaulted on  my back  also.  After      making  assault,   they  ran  away.      then, the person with me brought me      to Police Station. There was no old      enmity between  me and  Matadin and      Ramsingh.           This is  my oral  report.   It      has been  read over  to me.  It has      been recorded  correctly as  per my      versions.                          (sd) Ashok"      2. dying declaration of the      deceased :-                "Statement                          K.T.S. Hospital      Shri Ashok  alias  Chataku  son  of      Rajasingh Chauhan,  aged 25  years,      by  occupation   Vegetable  Seller,      resident of Gaushala Ward, Gondia,           I  state on oath as under :-           At  about   10.00  o’clock,  I      along  with   Anil  Bias,   Narayan      Tondhare,   Satish   Waghmare   and      others were  standing  in  Parashar      Chowk.  At   that  time,   Matadin,      Udelal, shivdayal, Ramsingh and two      other persons  came there.  Matadin      talked with  me and said to me, "do      not  try   to  be   Rangdar   (over      smart)". On  it I told him, "I am a      businessman and  I am  not  showing      Rangdari     (over      smartness).      Thereupon, Matadin said, "Maro Sale      Ko  (Abusive  term)".  Immediately,      Ramsingh assaulted me with knife on      my stomach.  Then, all  the persons      ran away. Thereafter, I took Satish      and Narayan  with me  and  came  to      Police Station  and lodged  report.      Then, I was brought to hospital.           There is  an injury  caused by      knife on  my  stomach.  I  have  no      enmity with anybody I cannot say as

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    to why i was assaulted."                          "Sd/-                Executive Magistrate,                     Dt. 6-6-86                11.30 in the night"      Both the  Additional Sessions  Judge and the High Court found enough corroboration in the statements of both the eye witnesses to  the dying  declarations.  Both  the  witnesses testified that  when  along with the deceased and two others they were  sitting in  the Paras  Chowk, Matadin,  Ramsingh, Shivdayal, Udelal  and two  others came  there. The deceased addressing Matadin said "Mama, Ram Ram". Matadin retorted as to why has was showing "Rangdari" (over smartness), to which the deceased  replied that he was a petty shopkeeper and how could he show Rangdari (over smartness). At this Matadin, in abusing terms,  said  "Maro  sale  ko".  It  was  then  that Ramsingh, who  was wearing a button knife on his waist, took out the  same and  stabbed with  it in  the abdomen  of  the deceased.   While the deceased Ashok in his statement before the police  said that  Ramsingh not  only assaulted him with his  knife  on  his  abdomen  but  also  on  his  back,  the prosecution case  was that  after Ramsingh  had assaulted on his stomach  he  (Ashok)  along  with  his  friends  started running from  the scene  and it  was Matadin who gave a blow with ’gupti’  on the  back of  the deceased.  This giving of blow with  ’gupti’ by  Matadin was  stated by  the  two  eye witnesses but this part of the version has not been believed by the  trial court.  However, the  fact  remains  that  the deceased suffered  injuries not only on his stomach but also on his  back as  well.  The stab wound in his abdomen was of the size  2 c.m. deep and 1/2 c.m. wide. The deceased was in hospital for about ten days when the doctors was in hospital for about  ten days  when the  doctors attending  him  tried their best  to save him but he died on June 15, 1986 because of injury in his abdomen.      On the  basis of  the evidence  on record  the  learned Additional Sessions  Judge held  that Ramsingh assaulted the victim Ashok  (deceased) with  knife on  account of which he sustained injury  to his  abdomen resulting in his death and as such he committed an offence punishable under Section 302 IPC. He further held that Matadin cried the words "maro sale ko" and  by that  way instigated Ramsingh and other accused, who were  with him,  to assault  the victim  Ashok but  only Ramsingh assaulted  him on  the saying of Matadin on account of use  of the  words "maro  sale ko"  and thus  Matadin was guilty of  an offence punishable under Section 302 read with section 34  IPC. It  is apparent  that words  "sale ko" were used in  derogatory form and the word "maro" when translated could as  well mean  ’beat’ or  ’kill’. The  defence of  the accused was one of total denial of the incident.      It  was  submitted  on  behalf  of  Ramsingh  that  the deceased succumbed  to his  injury after  ten days of having suffered the  same and  from this it was sought to be argued that injury was not such as would cause death of a person in normal course.  We do not think much could be said as far as appellant Ramsingh  in concerned.  Dr. Pradip  (PW-3) in his deposition stated  that the  injury caused to the abdomen of the deceased  was sufficient  in the  normal course to cause death. This statement of Dr.Pradip has not been challenged.      Reference may  be made  to the Explanation 2 to Section 299 of IPC, which is as under:-      "299. Culpable homicide. -- Whoever      causes death  by doing  an act with      the intention  of causing death, or      with the  intention of causing such

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    bodily injury as is likely to cause      death, or  with the  knowledge that      he is  likely by  such act to cause      death,  commits   the  offence   of      culpable homicide.      Explanation 1.-- .....      Explanation  2.--  Where  death  is      caused by bodily injury, the person      who causes such bodily injury shall      be deemed to have caused the death,      although  by  resorting  to  proper      remedies and skillful treatment the      death might have been prevented.      Explanation 3.--...."      From the  concurrent findings of fact by both the trial court  and  the  High  Court,  which  are  based  on  proper appreciation of  the evidence,  we find  that ingredients of the offence  of murder  are present  in the case of Ramsingh and he  has been  rightly convicted  for  an  offence  under Section 302 IPC.      However, the case of Matadin would appear to stand on a different footing.  it was  submitted that  when he exhorted his fellows  by saying "maro sale ko" he did not intend that the deceased  should be  killed. It was submitted that there was no  pre-meditation, no enmity and Matadin never intended to cause  death of  the deceased. Reliance was placed on the statement of  the deceased  recorded by  the police  and the Magistrate. The version of the prosecution that he gave blow with  ’gupti’   on  the   back  of  the  deceased  had  been disbelieved. But  then Matadin  would be  aware of  the fact that Ramsingh  was wearing  button knife on his waist and on his exhortation  he used  the same by stabbing the deceased. He might not be same by stabbing the deceased.  he might not be sharing  a common  intention with Ramsingh to cause death of Ashok  but the circumstances of the case and particularly when the  trial court  itself found  that by his words "maro sale ko" instigated Ramsingh and others to assault Ashok, he could nevertheless  be guilty  for abetment  of  an  offence under Section 324 in view of Section 110 IPC, which reads as under :-      "110.  Punishment  of  abetment  if      person  abetted  does  act  with  a      different intention  from  that  of      abettor.  --   Whoever  abets   the      commission of  an offence shall, if      the person  abetted  does  the  act      with  a   different  intention   or      knowledge from that of the abettor,      be  punished  with  the  punishment      provided  for   the  offence  which      would have  been committed  if  the      act  had   been   done   with   the      intention  or   knowledge  of   the      abettor and with no other." Section 324 IPC reads as under:-      "324. Voluntarily  causing hurt  by      dangerous  weapons   or  means.  --      Whoever,   except   in   the   case      provided  for   by   Section   334,      voluntarily causes hurt by means of      any   instrument    for   shooting,      stabbing   or   cutting,   or   any      instrument which,  used as a weapon      of  offence,  is  likely  to  cause      death, or  by means  of fire or any

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    heated substance,  or by  means  of      fire or any heated substance, or by      means  of   any   poison   or   any      corrosive substance, or by means of      any   substance    which   it    is      deleterious to  the human  body  to      inhale, to  swallow, or  to receive      into the  blood, or by means of any      animal,  shall   be  punished  with      imprisonment of  either description      for a  term  which  may  extend  to      three years  or with  fine, or with      both."      On the  basis of  the facts as found by the trial court and High  Court in  the case  of Matadin  and law applicable thereto, he  is, therefore,  liable to  be  convicted  under Section 324 IPC read with Section 110 IPC.      The courts below have not found that the language which Matadin used  exhorting his  fellows was used in such a tone as to exhort them to kill Ashok or to cause grievous hurt to him by  using dangerous  weapons or  means. when  the  words "maro sale  ko" are used it could mean "to beat" or even "to kill" a  person. Though the witnesses have stated that these words were  used by  Matadin in abusive way but from that it could not  be said  that he  exhorted his  fellows  to  kill Ashok. We  therefore, set  aside the conviction and sentence of Matadin  under Section  302 read  with Section 34 IPC and instead convict him under Section 324/110 IPC. It was stated before  us   that  he   has   already   undergone   rigorous imprisonment for  a period  of one  year and four months. We will sentence  him to  suffer rigorous  imprisonment for the period already undergone by him and to fine.      In the present case what we find is that the victim was a vegetable  seller. At the time of crime he was 25 years of age. Ramsingh  was a milk vender and Matadin was a municipal councilor.   It was  at  the  instigation  of  Matadin  that Ramsingh inflicted stab wound which resulted in the death of Ashok. Though  we found  Matadin  guilty  of  offence  under Section 324/110  IPC and  sentenced him  to undergo rigorous imprisonment for  the period already undergone by him we may further sentence  him to  a fine  of  Rs.  50,000/-  and  in default of  payment of  fine  to  undergo  further  rigorous imprisonment  for  nine  months.  We  may  also  record  the willingness of  Mr. Lalit,  learned counsel  for Matadin, to pay the  amount of  fine so  imposed. The  fine so  realised shall be  paid to  the heirs of the deceased Ashok under the provision of  the Hindu  Succession Act,  1956. We  may also draw the  attention of  the  Courts  to  the  provisions  of Section 421  Cr. P.C.  and particularly,  to proviso to sub- section (1)  thereof which  provides, inter  alia, that in a case where  an order  for payment of compensation our of the fine imposed,  is made  the fine  be realised  even  if  the convict had  undergone imprisonment  in default  of  payment thereof.      Criminal Appeal  No. 171 of 1998, filed by Ramsingh, is dismissed.      Criminal Appeal  No. 835  of 1997, filed by Matadin, is partly  allowed.  Appellant  Matadin  is  convicted  for  an offence under  Section 324  read with  section 110  IPC  and sentenced to  undergo rigorous  imprisonment for  the period already undergone  by him  and to a fine of Rs. 50,000/- and in default  of payment  of fine  to undergo further rigorous imprisonment for a period of nine months. the fine should be paid within  two months  and when realised, shall be paid to the heirs  of the deceased Ashok under Hindu Succession Act,

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1956.      The appeals are disposed of accordingly.