1 a1275.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1275 OF 2004 Shidya Nana Tabale .. Appellant. Vs. The State of Maharashtra .. Respondent. Mr.Vaibhav Sugdhare, advocate appointed for the appellant. Mrs.Usha V.Kejriwal APP for the State. CORAM : D.B.BHOSALE & M.L.TAHALIYANI, JJ. DATED : 16TH SEPTEMBER, 2011. ORAL JUDGMENT (PER D.B.BHOSALE, J.) 1. This appeal is directed against the judgment and order dated 30th January, 2003 rendered by the IV Adhoc Additional Sessions Judge, Thane in Sessions Case No.198 of 2002 convicting the accused for the offence punishable under section 302 of IPC and awarding rigorous imprisonment for life and to pay fine of Rs.500/-; and in default to undergo simple imprisonment for three months. The appellant was also convicted for the offence punishable under section 326 of IPC and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.300/- and in default to undergo simple imprisonment for one month. The appellant was acquitted of the offence punishable under section 504 of IPC. The accused is in jail since 13th January, 2002. S 2 a1275.04 2. Learned counsel for the appellant, at the outset, after inviting our attention to the evidence of P.W.1 – Kamal Sharvan Tabale, P.W.15 – Dr.Ujwala .N. Kale, P.W.16 – Dr.Divya Singh and P.W.6 – Ramchandra Kute, who recorded the FIR/dying declaration submitted that having regard to this evidence the order of conviction under section 302 of IPC cannot be sustained and the offence would, at the most, fall under section 326 of IPC. He, therefore, submitted that the accused may be acquitted of the offence punishable under section 302 of IPC and the order of conviction be confirmed for the offence under section 326 of IPC and the sentence be reduced to 10 years. He also invited our attention to the fact that the accused had undergone almost more than nine years of substantive sentence. In view of the submissions advanced by learned counsel for the appellant, we have examined/re- assessed the evidence only to find out whether the offence committed by the appellant would fall under section 302 or 326 of IPC. 3. The case of the prosecution is that on 13.1.2002, at about 5 pm, the accused went to the house of Shravan, the deceased, armed with scythe and started abusing him in filthy language and then assaulted Shravan with the scythe. Shravan by raising his left hand tried to hold the hand of the accused / save the blow. In the process, he sustained injury to his left hand wrist. Because of that injury the deceased – Shravan bend down when the accused allegedly inflicted 2-3 blows on the back and buttock of Shravan with scythe. When 3 a1275.04 Kamal (P.W.1), the wife of Shravan, rushed to rescue Shravan, the accused inflicted blows with scythe on her back and neck. On hearing shouts/hue and cry Rama Tulya Misal, Halya Shantaram Tabale (P.W.11), Ashok Shantaram Tabale (P.W.10) rushed to the spot. By that time, deceased – Shravan and Kamal fell down on the ground due to the injuries sustained by them. Thereafter the Police Patil was called who after making initial enquiry called the police. Then Shravan and Kamal were shifted to rural hospital, Wada. In the hospital P.W.6 – Ramchandra Kute with permission of PW 16 - Dr.Divya Sing recorded statement of Shravan (FIR – Exhibit-22) and on the basis thereof the offence was registered under section 326, 504 of IPC and the investigation was set in motion. Shravan succumbed to the injuries and, therefore, the offence was converted to 302 of IPC. After completion of the investigation, the charge-sheet was filed and the case was then committed to the Court of Sessions where the accused were tried for the offence punishable under sections 302, 326 and 504 of IPC. 4. In the light of the submissions advanced by learned counsel for the appellant we have carefully perused the evidence of P.W.1, P.W.15, P.W.16 and P.W.6. We have also perused the dying declaration (Exhibit-22) and memorandum of post mortem examination (Exhibit-42). According to P.W.1 - Kamal Shravan Tabale the alleged incident of assault occurred at about 5 pm on 13.1.2002. About actual assault she has specifically stated that the appellant was armed with 4 a1275.04 scythe and he assaulted her husband on his back and buttock and when she tried to intervene the accused assaulted her on the neck and scapula. She has specifically admitted in the cross examination that due to assault the deceased Shravan fell on rocky land. Similarly, in the FIR/dying declaration (Exhibit-22) the deceased also had specifically stated that when the accused tried to inflict blow, he tried to hold his hand and, therefore, the blow landed on his left wrist, and when he bend down the accused inflicted 2-3 blows on his back and buttock. The deceased in the dying declaration has not attributed the injury sufferred by him on his head to the accused. P.W.16 – Dr.Divya Singh, who examined the deceased, has given description of six injuries suffered by the deceased. None of the injuries out of six injuries on person of the deceased was on head. The evidence of P.W.15 – Dr.Ujwala Kale, who conducted autopsy noticed seven injuries on the person of the deceased, out of which five were sutured. Out of these injuries, five sutured wounds were noticed by P.W.15 on left temporal region and they were skin deep. Except these injuries no other injury/wound was noticed by P.W.15 while conducting autopsy. The sutured wounds and the other injuries described by P.W.15 in column 17 in memorandum of post mortem also show the same injuries/wounds were described by her in her evidence. The cause of death mentioned by P.W.15 is post mortem notes was “shock due to Intracranial haemorrhage Polytrauma”. The cause of death mentioned by P.W.15 in the memorandum of post mortem clearly shows that the deceased died of injury associated 5 a1275.04 with temporal or parietal region. In other words, it was due to injury caused to left parietal region of the deceased. From bare perusal of the evidence of P.W.1 and the dying declaration fatal injury cannot be attributed to the accused. The remaining injuries are on left scapular region, left side of upper thigh, left side of middle back, wrist joint at ulnar border and left hand alnar border. None of these injuries was fatal. P.W.15 and P.W.16 have stated so in their evidence. According to the P.W.15 the injury on the left temporal region of the deceased was fatal. This injury was not inflicted by the accused. In other words the accused was not the author of the fatal injury. In the circumstances we find force in the submissions of learned counsel for the appellant who prayed for acquittal of the accused under section 302, that accused would be at the most liable to be convicted under section 326 of IPC. Hence we pass the following order: Appeal is partly allowed. The appellant-accused is acquitted of the offence punishable under section 302 of IPC and he is convicted for the offence punishable under section 326 of IPC and sentenced to suffer imprisonment for ten years and to pay fine of Rs.500/- and in default to undergo simple imprisonment for three months. With this modification the judgment dated 30.1.2003 passed by the Sessions Court in Sessions Case No.198 of 2002 is maintained. (M.L.TAHALIYANI,J.) (D.B.BHOSALE,J.)