G. B. Pattanaik. J. - (1.)This appeal is directed against the conviction and sentence of the appellant under Sections 304 Part-I and 324 IPC passed by the Division Bench of the Bombay High Court in Criminal Appeal No. 671 of 1992. The appellant who was the Assistant Public Prosecutor at the relevant point of time stood charged under Sections 302 and 307 of the Indian Penal Code for having committed the murder of one Manohar Deshmukh, father of PW-3 Nanda Deshmukh and injuring one Sanjay Patil, PW-2, respectively. The learned Sessions Judge, Raigad - Alibag, in Sessions Case No. 102 of 1990 convicted the appellant of the charge under Section 302 for having committed the offence of murder of Manohar Deshmukh and sentenced him to imprisonment for life. He also convicted the appellant under Section 307 for causing injuries and attempt to commit murder of Sanjay Patil, PW-2 and sentenced him to suffer rigorous imprisonment for five years, both the sentences having been directed to run concurrently. On appeal, the Division Bench of the Bombay High Court agreed with the conclusion of the learned Sessions Judge that it was the appellant who caused the injury on the deceased Manohar who ultimately succumbed to the injury and also caused injury on the person of Sanjay Patil, PW-2 by means of a knife but taking into consideration the fact that relationship between the accused and the deceased and his family members were cordial till the date of the incident and further that the incident took place all of a sudden on the spur of the moment and the instrument that was used by the accused is such that the accused cannot be said to have the intention to cause the death of the deceased the High Court held the accused guilty under Section 304 Part-I IPC and sentenced him to undergo rigorous imprisonment for a period of five years thereunder. So far as conviction of the appellant under Section 307 for causing injuries on the person of PW-2 is concerned the High Court took into consideration the size of the knife that was used and the manner in which the incident was alleged to have occurred and came to the conclusion that the offence should be one punishable under Section 324 IPC and not under Section 307 IPC. For his conviction under Section 324 IPC the appellant was sentenced to undergo rigorous imprisonment for two years and it was further directed that both the sentences would run concurrently. Hence the present appeal.
(2.)Against the acquittal of the accused - appellant of the charge under Sections 302 and 307 as well as against the sentence awarded by the High Court for five years' imprisonment for the offence under Section 304 Part-I IPC, the State of Maharashtra has also preferred SLP (Crl.) No. 3039 of 1994, wherein Court had passed an order 'issue notice' and tagging the same with the Criminal Appeal No. 551 of 1993. In the said SLP also leave is being granted herein and the matter is heard along with Criminal Appeal No. 551 of 1993.
(3.)The prosecution case in nutshell is that the accused and PW-3 belong to the legal profession and both of them were attached to the chambers of senior advocate Shri D. N. Patil. The accused-appellant on being appointed as Assistant Public Prosecutor in the year 1988 left the chambers of Shri D. N. Patil and was residing in Sneha Apartment where the incident occurred. Nanda Deshmukh- PW-3, a lawyer by profession was continuing as junior to Shri D. N. Patil and was a divorcee. She was also staying in the same building - Sneha Apartment on the first floor along with her parents. The relationship between Nanda Deshmukh, PW-3 and the accused - appellant was all along cordial. It was the further prosecution case that a criminal case under Section 395 IPC was being tried by the Additional Sessions Judge - Shri P. M. Joshi and D. N. Patil, Advocate was the defence lawyer along with Smt. Nanda Deshmukh and at the fag end of the trial Shri Patil could not attend to the proceeding and handed over the case to Smt. Nanda Deshmukh. Ultimately, in that case the learned Additional Sessions Judge convicted the accused but released the accused on bond by applying the provisions of Probation of Offenders Act. In March, 1990 in a get together of some lawyers the accused made a statement that he had heard that Nanda Deshmukh had taken Rs. 50,000/- in the name of the Judge in whose Court the aforesaid criminal proceeding was pending. When Nanda Deshmukh heard about this statement made by the accused she met the District Judge, Alibag, Mr. Vazalvar and complained against the accused - appellant that he is unnecessarily spreading false rumours. It appears that the District Judge called a meeting of some of the lawyers and Additional Sessions Judge Shri Joshi and in that meeting the District Judge commented upon the conduct of the accused as to why he has been spreading rumours about Nanda Deshmukh that she had taken money in the name of the Judge. The accused thereupon replied the District Judge that he had never said that the money was collected in the name of the Additional District Judge, Shri Joshi but he had only said that Nanda Deshmukh and taken a sum of Rs. 50,000/- from the accused. The senior lawyers who were present in the meeting told the District Judge that since the accused had not made any allegation against the District Judge, Shri Joshi but he merely stated that Nanda had taken money from the accused, the dispute is one between two individual lawyers and the Judges should not be brought into the dispute. Thereafter the meeting was dispersed and Nanda came home. She was in a way agitated and disturbed mood on account of what happened in the chambers of the District Judge and to her father's query as to why she was in a agitated mood' she narrated the entire incident that had taken place in the chambers of the District Judge. Shri Sanjay Patil, PW-2, who is the son of Nanda's senior Shri D. N. Patil was passing by that are and on seeing Nanda's car parked down stair came to Nanda's house and heard all that she was telling to her father. It is at that point of time Nanda's daughter - Sonal who was standing near the window of the flat stated that accused has come. On hearing from Sonal that accused has come, Nanda Deshmukh, PW-3 rushed to the ground floor followed by her father Manohar Deshmukh (the deceased) and Sanjay Patil, PW-2. Nanda Deshmukh asked the accused who was sitting in the car as to why he has been spreading rumours against her to which the accused reiterated that she had given money to the Judge - Shri P. M. Joshi. The further prosecution case is that accused them came out of the car and rushed towards Nanda but deceased Manohar pulled Nanda back. The accused then throw a brick towards the Manohar which hit in his abdomen thereupon the accused brought out a knife and grave a blow on the abdomen of the deceased - Manohar and while he was trying to give a second blow on the deceased it somehow missed and Sanjay Patil, PW-2, rushed to the accused and caught him by his hands. Sanjay then pushed the accused against the compound wall. The accused, however, attacked Sanjay and gave a stabbing blow with the knife which hit Sanjay on his left hand. Accused thereafter left the place in his car. PW-9, one of the occupants of the said building reached the place and took Sanjay to the dispensary of Dr. Deshpanda where some first aid was given. Thereupon Sanjay went to the Police Station and gave a report at 3.10 p.m. on 19th of March, 1990 which was treated as FIR (Ex. 30). On the basis of said FIR a criminal case was registered and the police took up investigation and finally submitted the charge-sheet against the accused whereafter the accused was tried for the offences as already stated. Injured Manohar was taken to Dr. Houshing, PW-7 who examined him at about 2.30 p.m. on 19-3-1990. Looking at the injury on the abdominal region doctor took the decision that an emergency operation is necessary and accordingly operated upon the injured - Manohar. Manohar became serious in the Civil Hospital at Alibag and therefore he was taken to Hinduja Hospital, Bombay on 27-3-1990 and ultimately died in Bombay on 29-3-1990. It may be stated at this stage that accused himself after leaving the place of occurrence came to the Court of the District Judge and narrated his version of the incident to him. The District Judge then called the Public Prosecutor and advised him to inform the police immediately about the occurrence. The police was then called and the accused himself gave a report in writing giving his version of the occurrence which was treated as FIR of the counter case. The said counter case, however, ultimately ended in acquittal. The defence version of the incident as transpired from the complaint lodged by the accused himself on 19-3-90 as well as from the suggestions given to the prosecution witnesses and statement of the accused under Section 313 IPC is that the Deshmukh family including Nanda, her parents and the maid servant Chhaya rushed from the first floor of the house and started assaulting the accused while he was still inside the car, even some dung was spread on his clothes and face, the accused then came out of his car and at that point of time the maid servant Chhaya handed over a knife to Sanjay, PW-2 and while Sanjay was attacking the accused with the knife he pushed the deceased on account of which the deceased received the injury on his abdomen and the accused came away from the place by driving his vehicle.