::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:33 :::Shivram and accused Laldas were adjoining land holders.Therewas a dhura in between their fields.Similarly, there were babool trees on the saiddhura.The accused and the deceased were on inimical terms, on the point ofdhura and Babool trees.On the day of the incident i.e. 13.5.2000 at about 11.00am, while Shivram was cutting branches of tree at the dhura i.e. boundary of thefield, at that time, his servant Ashok (PW5) was working in his field.DATED: 20th September, 2017ORAL JUDGMENT:Being aggrieved by the judgment and order dated 07.11.2003 inSessions Trial No.86/2001 delivered by the learned 3rd Ad-hoc AdditionalSessions Judge, Nagpur, convicting the appellant (hereinafter referred to as 'theaccused') for the offence punishable under section 304 Part-II of the Indian PenalCode and sentencing him to suffer R.I. for four years and to pay a fine of Rs.2000/-, in default, to suffer S.I. for six months, the present Appeal is filed.Brief facts giving rise to the instant Appeal may be summarized as ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:33 ::: CRI.APPEAL665.03 2under:-Theaccused was also working in his field.As Shivram was cutting babool treebranches, the accused objected for the same.On this issue, quarrel took placebetween the accused and Shivram.At that point of time, accused gave a blow ofstick on the head of Shivram, as a result, he fell down and sustained bleedinginjury on his head.The people from neighbouring fields gathered at that place.Inthe meantime Ashok (PW5) intimated the family members and Sheela (PW 6),who is the daughter-in-law of Shivram.The neighbours of the Shivram tooreached at that place.Accused tried to give water to the deceased.Shivram wasthen shifted by a bullock cart to his village and thereafter to the hospital wherehe was declared dead.It is the case of the prosecution that accused visitedJalalkheda Police Station and lodged his report thereby confessing his guilt.Onthe basis of the report given by the accused, an offence was registered foroffence punishable u/s 302 of the IPC.At the relevant time, Police Inspector-Namdeo Ingole (PW10) was ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:33 ::: CRI.APPEAL665.03 3attached to Jalalkheda Police Station.He recorded the spot panchnama andreferred the dead body of Shivram to the hospital for post-mortem.PW10 thenarrested the accused.The clothes of the accused were taken charge.At theinstance of the accused, a babool stick was seized by the police underPanchnama.The seized articles were sent to the C.A. office for analysis.After theinvestigation was over, charge-sheet was filed in the court of learned JMFC.Thecase was committed to the court of Sessions.The learned Additional SessionsJudge framed the charge.On appreciation of the evidence and after hearing bothsides, the learned trial Judge convicted the accused, as aforesaid.::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:33 :::Heard Shri N.D. Khamborkar, the learned counsel for the appellant/accused and Shri N.H. Joshi, the learned A.P.P. for the respondent -State.The prosecution mainly relied upon the testimony of PW1-Dr.Ravindra Ade, Medical Officer, PW 6-Sheela, daughter-in-law of the deceased,PW 9-Rajnarayan Mishra and PW 10-Namdeo Ingole, both Investigating officers.In order to prove that it was a homicidal death, the prosecutionrelied upon the testimony of Medical officer-Dr.Ravindra Ande (PW1) whoconducted the autopsy on deceased-Shivram.On external examination, he noticed the following injuries :-Right eye black swollen, blood oozing from left ear and both nostrils, position of tongue normal, In Column No.17, following external injuries were noted: ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:33 :::::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:33 :::Contusion of size 2.5x2.5cm over left tempo parietal bone above left ear with extravaccasation of blood in skin with infiluation of subcutaneous tissues with blood figure is also drawn regarding injury-1, age of injury 20 to 24 hrs, object hard and blunt.Fracture right tempo parietal bone of size 5 x 5 circumference fracture lines radiates towards ferental bone, age 20 to 24 hours.Object hard and blunt, nature grievous injury.3. Contused abrasion 5x3 cm over left side of back age about 20 to 24 hrs.object hard and blunt.On internal examination following injuries were mentioned inColumn No.19:Fractural of right tempo parietal bone 5 x 5 cm circumference fracture lines radiates towards frontal bone as per figure no.Nature of injury dangerous (grievous).Brain intra cerebral haemorrhage present profusely over right side of brain beneath skull (right tempo parietal) due to injury to brain and its membrane.Slight intracerebral haemorrhage present over left side.No any abnormality seen.All organs are pale.According to PW1-Dr.Ravindra, the cause of death was due to intracranial haemorrhage due to forceful impact of hard and blunt object over the ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 ::: CRI.APPEAL665.03 5skull.However PW1 stated that death may be due to cardio respiratory arrestdue to haemorrhagic shock.PW1 stated that exact cause would be revealedafter C.A. of viscera.On going through theCA Report he stated that the CA report rules out the possibility of poison and heconfirmed his opinion.On examination of the stick PW1 found the blood stains.According to him, the injuries over the skull was possible by the stick.Similarly,the injury Nos.1 to 3 were possible by a stick.He issued the report accordingly(Exh.20).It is significant to note that during the cross-examination PW1 statedthat the injuries were possible if the person falls from tree on branches and thendown, but there would be other fracture or dislocation.He however stated that hehad not examined the spinal cord of the deceased.::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::Thus, the testimony of PW1 does not rule out the possibility of thedeceased falling from tree and receiving injuries.No doubt, the Medical Officerhas examined the weapon i.e babool stick and has opined that the injury over theskull is possible by stick and the death is possible by hard and blunt object.Heissued the medical certificate (Exh.20).According to him, the blood stains werefound on the Babool stick.In this regard, recovery the CA report (Exh.42)reveals that no blood was found on the wooden stick.Thus, the testimony of theMedical Officer although indicates that the injury can be caused by a stick, theC.A. report does not reveal blood stains on the said stick.At this juncture, the learned counsel for the appellant/accused ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 ::: CRI.APPEAL665.03 6vehemently argued that the learned trial Judge has not considered the aspectthat the homicidal death has not been proved by the prosecution and the testimonyof the Medical Officer PW1 reveals that the injury can be caused due to fall fromtree.He further contended that the eye witness PW5-Ashok, who has notsupported the case of the prosecution had, in fact, his testimony shows that theaccused gave him a call that his master had fallen down from the tree.Hecontended that actually the death of the accused was caused due to falling fromthe tree and as such, the persons working in the field at the time of the incident,they had not supported the case of the prosecution that deceased died due to theassault by the accused by means of Babool stick.He pointed out that even thediscovery and recovery of Babool stick has not been proved by the prosecutionbeyond reasonable doubt.Thus, he contended that the prosecution has failed toprove that it is a homicidal death and it was in fact an accidental death.::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::Reverting back to the prosecution case, PW9-Mishra deposed thaton 13.5.2000 the accused visited the Police Station, Jalalkheda and has given anoral report that the land of Shivram is adjacent to the land accused and there is ababool tree on the border of the said dhura of that land and because of thatquarrel took place and in that quarrel Shivram pelted stone on accused andthereafter accused assaulted Shivram by babool stick.The assault was on theleft side of his head and while taking him in the hospital Shivram died.So far as the report is concerned, it is significant ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 ::: CRI.APPEAL665.03 7to note that under the provisions of Section 25 of the Evidence Act, confession ofthe accused before the police is hit by Section 25 of the Evidence Act and itcannot be read in evidence as such.::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::Apart from the said evidence, the prosecution relied upon thetestimony of PW 6-Sheela, who is the daughter-in-law of the deceased.Accordingto her, on the fateful day, her servant Ashok (PW5) and Shivram went to the fieldin the morning.At about 11.30, Ashok came home and informed her that herfather-in-law was beaten by Laldas/accused.On this, she along with Kundabai,Dipak, Ashok, Subhash proceeded to the field.A babool stag was lying near thedhura and her father in law was laying down and blood was oozing from hismouth, nose and eyes .They offered water to him, however he could not drink it.PW6-Sheela stated that she had not seen the accused at that time.Shivram wastaken in a bullock cart to his house and thereafter shifted to Hospital, however hewas declared dead.From the testimony of PW6 it can be gathered that Ashok(PW 5) informed that the deceased was beaten by the accused.However thereis no corroboration to the testimony of PW6-Sheela as PW 5-Ashok turnedhostile.She has not supported the case of the prosecution, so far as actualincident is concerned.According to PW5-Ashok, on that day he had come to hisemployer's field.Shivram was cutting branches of babool tree and he wasploughing the field and the accused was in his field.The accused called him and ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 ::: CRI.APPEAL665.03 8said that his master had fallen down from the tree.Thereafter, the familymembers of Shivram came to that place and took him to their house.::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::According to him, on 13.5.2000, the accusedwhile in custody gave information that the stick of babhool was thrown in thefield and he showed his willingness to produce the said stick.PW 10 stated that the stick wasconcealed in the heap of branches of babool tree.He took charge of the saidstick under panchnama (Exh.48).The testimony of PW10 reveals that the baboolstick was kept in a heap of branches of babool tree.Significantly, it cannot betermed as a disclosure of the stick i.e. weapon as such as the said place wasan open space and accessible to public.Thus, the seizure of the stick at theinstance of the accused has not been proved by the prosecution beyondreasonable doubt and it cannot be termed as discovery under section 27 of theEvidenceWith regard to the confession made by the accused vide F.I.R.(Exh.32) , an useful reference can be made to the judgment reported in (1994) 2 ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 ::: CRI.APPEAL665.03 9SCC 467 in the case of Bherusingh vs.State of Rajasthan, wherein the Hon'bleApex Court observed thus:-::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::The accused along with others, putShivram in bullock-cart and took him to village.The other facts disclosed in theFIR are in nature of confession made to the police (PW9) which cannot be used ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 ::: CRI.APPEAL665.03 11against the appellant.::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::Hence the order :-i) Criminal Appeal No. 655/2003 is allowed.iv) The bail bond of the appellant shall stand cancelled.JUDGEsahare ::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::::: Uploaded on - 25/09/2017 ::: Downloaded on - 27/09/2017 00:49:34 :::

Cited provisions: Section 304 in The Indian Penal Code