- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.632 OF 2006 The State of Maharashtra, through City Police Station, Gangapur, District Aurangabad. ... APPELLANT (Original Complainant) VERSUS Vinayak s/o Ramrao Shelake, Age 40 years, Occ. Agril., R/o Gallimb, Taluka Gangapur, District Aurangabad. ... RESPONDENT (Original Accused) ----- Shri S.D. Kaldate, A.P.P. for the appellant Mrs. Kalpana Mutatkar, Advocate for respondent (appointed) ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 10th February, 2010. ORAL JUDGMENT (PER HARDAS, J.) 1. This is an appeal filed by the State, questioning the acquittal of the respondent for offence punishable under Sections - 2 - 302 and 307 of the Indian penal Code, as recorded by the 4 th Adhoc Additional Sessions Judge, Aurangabad, by judgment dated 24.4.2006, in Sessions Case No.102/2005. The trial Court, by the said judgment, had acquitted the respondent for offence punishable under Sections 302 and 307 of the Indian Penal Code and had instead, convicted the respondent for offence punishable under Section 304 (II) of the Indian Penal Code and Section 324 of the Indian Penal Code and has sentenced the respondent to suffer rigorous imprisonment for seven years and to pay fine of Rs.3000/-, in default to suffer simple imprisonment for three months and rigorous imprisonment for three months and to pay fine of Rs.1000/- with default stipulation of undergoing further simple imprisonment for one month in the event of non payment of fine. We are further informed that the respondent has not filed any appeal questioning his conviction and sentence. 2. It appears that, the present respondent was charge sheeted by the police on the basis of the report lodged by P.W.1 Ashabai on 25.2.2005 wherein P.W.1 Ashabai has alleged that the accused had quarreled with her and was abusing her when Ashabai and her daughter were on their way to the house of P.W. 6 Kusum to inform her about a telephone call which had been received for P.W.6 Kusum. Hearing the noise of the quarrel, daughter and deceased husband of Ashabai by name Laxman - 3 - came to the scene of the offence and the accused is alleged to have abused P.W.1 Ashabai and deceased Laxman. The respondent/ accused thereafter stabbed P.W.1 Ashabai and original accused No.2 Meena, wife of respondent/ accused and the accused assaulted deceased Laxman by fist and kick blows. P.W.3 Radhakrishna, son of P.W.1 Ashabai and deceased Laxman, immediately shifted P.W.1 Ashabai to the hospital while deceased Laxman was left lying on the spot. Thereafter, deceased Laxman is alleged to have succumbed to his injuries. Post mortem on the dead body of deceased Laxman was performed by P.W.8 Dr. Gajanan and the post mortem report is at Exhibit 52. During post mortem, P.W.8 Dr. Gajanan noticed the following external injuries on the dead body of deceased Laxman:- “(i) Incised wound over left iliac region 2 x 1 x deep paritonial cavity. (ii) Abrasion over abdomen on left iliac region 2 x 1 x ½ cms. (iii) Abrasion over left thigh inner aspect 2 x 1 x ½ cms. “ 3. The injury certificate of Ashabai is at Exhibit 54. The scene of the offence panchanama came to be drawn at Exhibit 40 - 4 - in the presence of P.W.2 Dnyaneshwar. The clothes of deceased Laxman came to be seized vide seizure memorandum at Exhibit 41 in the presence of P.W.2 Dnyaneshwar. During custodial interrogation, accused is alleged to have expressed his willingness to point out the place where a knife was hidden by him. Accordingly, memorandum at Exhibit 49 came to be drawn in the presence of P.W.7 Prakash. Respondent accused took the police and the panch to his house and produced a knife, Article 11, which came to be seized under panchanama at Exhibit 50. Further to the completion of investigation, a charge sheet against the respondent/ accused came to be filed. 4. On committal of the case to the Court of Sessions, trial Court, vide Exhibit 3, framed charge against the respondent for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The respondent and original accused No. 2 pleaded not guilty and claimed to be tried. Prosecution, in support of its case, examined 8 witnesses. However, unfortunately, the investigating officer was not examined as a witness. The trial Court, upon appreciation of the evidence, acquitted the respondent for offence punishable under Section 302 of the Indian Penal Code and convicted him for offence punishable under Section 304 (II) of the Indian Penal Code. The trial Court also acquitted the respondent for offence punishable - 5 - under Section 307 of the Indian Penal Code, and instead, convicted him for offence punishable under Section 324 of the Indian Penal Code. 5. In order to effectively deal with the submissions advanced before us by the learned A.P.P. and Mrs. Kalpana Mutatkar, learned counsel for the respondent, it would be useful to refer to the evidence of the prosecution witnesses. The substratum of the prosecution case, against the respondent, consists of the evidence of P.W.1 Ashabai and P.W.3 Radhakrishna. P.W.1 Ashabai, wife of deceased Laxman, refers to being accosted by the respondent/accused and the respondent/ accused abusing her in filthy language. She also states that the respondent/ accused had threatened that he would see them and kill them one by one. She further states that, the respondent/ accused then fell her down and stabbed her with a knife. Hearing her cries for help, her daughter and her husband also arrived at the scene. Original accused No.2 Meena, wife of respondent, also assaulted her and thereafter the respondent and his wife started assaulting deceased Laxman by fist and kick blows. The blows were delivered all over the body including the private part. She states that, her son P.W.3 Radhakrishna arrived at the scene and took her to the hospital. She states that, she was in the hospital and was treated by the medical officer and - 6 - thereafter, lodged her complaint at Exhibit 38. In the cross- examination, she has admitted that prior to the incident, there were no instances of quarrel between the accused and P.W.1 Ashabai. She has further admitted as correct that original accused No.2 Meena had come to their house complaining that the accused was assaulting her and P.W.1 Ashabai had tried to intervene in the said quarrel. She states that she had asked the respondent not to abuse. She has admitted that her husband was accustomed to consuming liquor. She has also admitted as correct that the repsondent/ accused was also accustomed to consuming liquor. She has also admitted as correct that the accused used to consume more quantity of liquor than her husband, deceased Laxman. She has further admitted that, on the day of the incident, her husband and the respondent/accused had both consumed liquor in large quantity. 6. P.W.3 Radhakrishna, son of deceased Laxman states that on the day of the incident at about 8.15 to 8.30 p.m., he was returning home from his agricultural field. He heard the noise of quarrel and accordingly, went in that direction. He noticed his mother P.W.1 Ashabai lying on the ground with bleeding injury on her thigh and stomach while both the accused were assaulting his father deceased Laxman by fist and kicks. He states that the other villagers intervened in the quarrel and thereafter his father - 7 - became unconscious. He states that the accused had assaulted his father on his stomach, chest and private part by fist and kick blows. He states that, he took his mother P.W.1 Ashabai to the Public Health Centre at Gangapur while he was left lying on the spot of the incident. 7. The medical officer in his post mortem report at Exhibit 52 had noticed a penetrating wound on the chest. The medical officer in no uncertain terms has stated that the aforesaid injuries sustained by the deceased could not have been caused by fist and kick blows. Unfortunately, neither in the evidence of P.W.1 Ashabai nor in the evidence of P.W.3 Radhakrishna do these witnesses state that the accused had used a knife while inflicting injuries to deceased Laxman. Both these witnesses in no uncertain terms stated that he accused had assaulted deceased by fist and kick blows. Even the First Information Report at Exhibit 38 is completely silent in respect of the accused inflicting any injury by knife. The deceased unfortunately after becoming unconscious was left unattended. There is no evidence to indicate as to when the deceased was taken to the medical officer for examination. Prosecution has not examined the medical officer who had initially examined the deceased. The inquest panchanama at Exhibit 33 came to be drawn at 11.00 p.m. There is no evidence as to the exact time when the First - 8 - Information Report Exhibit 38 came to be lodged. Since none of the prosecution witnesses attribute the infliction of stab injury/ penetrating wound to the deceased, the respondent/ accused cannot be held guilty for having inflicted the injuries. Consequently, the acquittal of the respondent/ accused for offence punishable under Section 302 of the Indian Penal Code is sustainable on the basis of the evidence on record. 8. Mrs. Kalpana Mutatkar, learned counsel for the respondent/ accused has very rightly urged before us that admittedly there was no enmity between the parties and the accused though had threatened P.W.1 Ashabai on the day of the incident, the aforesaid threats were empty threats made by a person under the influence of liquor. On account of quarrel, which ensued between Ashabai and the respondent/accused, the respondent had stabbed P.W.1 Ashabai. In respect of the charge punishable under Section 307 of the Indian Penal Code, Mrs. Kalpana Mutatatkar, learned counsel for the respondent has urged before us that the medical officer does not state that the injury sustained by P.W.1 Ashabai was sufficient in ordinary course of nature to cause death. In fact the medical officer does not state anything about the nature of the injuries sustained by P.W.1 Ashabai. Since no enmity existed between the respondent / accused and P.W.1 Ashabai, therefore, according to - 9 - us, no interference is called for in respect of the acquittal of the respondent for the offence punishable under Section 307 of the Indian Penal Code. 9. In respect of the charge under Section 302 of the Indian Penal Code Mrs. Kalpana Mutatkar, learned counsel for the respondent has urged before us that in the absence of any evidence that the accused had inflicted any injury to deceased by knife, the accused cannot be fastened with the responsibility of having stabbed the deceased. Consequently, it is urged before us that, no interference is called for in the acquittal of the respondent for offence punishable under Section 302 of the Indian Penal Code. We have already pointed out that neither P.W. 1 Ashabai nor P.W.3 Radhakrishna state about respondent inflicting any injury by knife/ In the absence of such evidence, and particularly in the light of the fact that deceased was left unattended at the spot and there is no evidence further that the deceased did not quarrel with anyone else, the accused cannot be fastened with the responsibility of having inflicted a penetrating wound on the chest of the deceased Laxman. In that background, therefore, the acquittal of the respondent for offence punishable under Section 302 of the Indian Penal Code calls for no interference. - 10 - 10. After giving our anxious consideration to the submissions advanced before us by the learned counsel for the parties, according to us, the present appeal is sans merits and deserves to be dismissed. We accordingly dismiss this appeal, confirming the acquittal of the respondent/accused for offence under Sections 302 and 307 of the Indian Penal Code and the conviction of the respondent/accused for offence under Sections 304 (II) and 324 of the Indian Penal Code. We quantify the fees payable to Mrs. Kalpana Mutatkar, learned counsel, appointed for the respondent, at Rs. 5000/- (Rupees five thousand) [ SHRIHARI P. DAVARE, J.] [ P.V. HARDAS, J.]