1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.215 OF 2008 Bajirao Nivrutti Awari, Age : 40 yrs. Occ. R/o Dhamangaon Awari, Tq. Akole, Dist. Ahmednagar ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr R.K. Temkar, Advocate for the appellant; Mr B.V. Wagh, A.P.P. for the respondent - State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 23rd August, 2010 ORAL JUDGMENT [ PER P.V. HARDAS , J ] The appellant/accused, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, with a default stipulation of undergoing further R.I. for three months and stands convicted for offence punishable under section 323 of the Indian Penal Code and sentenced to pay fine 2 of Rs.100/-, in default to suffer S.I. for seven days, sentence of fine of Rs.100/- with default sentence of further S.I. for seven days in the event of non payment of fine for offence punishable under section 506 of the Indian Penal Code, by the Additional Sessions Judge, Sangamner, District Ahmednagar, by judgment dated 19.7.2007, in Sessions Case No.32 of 2005, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.7 A.S.I. Arjun Bhongale, who was serving as A.S.I. at the Akole Police Station, registered an offence on the basis of the complaint lodged by P.W.1 Subhash at Exh.9, for offence punishable under sections 323, 504 and 506 of the Indian Penal Code on 5.8.2005 at 10.15 A.M. Injured Nivrutti was sent along with the requisition for medical treatment to the Rural Hospital, Akole vide requisition at Exh.21. Injured Nivrutti came to be examined by P.W.10 Dr. Pandurang Bharmal, who was serving as the Medical Officer at the Rural Hospital, Akole. He noticed that Nivrutti was in a semi-conscious condition and was unable to talk. He noticed the following external injuries :- 3 1. Contusions on left fronto parietal temporal region, 7 x 4 cms. parallel to long axi sagittal suture; 2. Swelling with bluish dislocation of upper and lower left sides eye lid i.e. around left periorbital area; 3. Left side black eye (sub conjuctival haemorrhage) P.W.10 Dr. Bharmal gave medical treatment and referred the patient to Civil Hospital, Nasik. He accordingly issued the certificate at Exh.39. The medical paper are at Exh.40. On the basis of the medical certificate at Exh.39 offence vide Crime No. 79/2005 under sections 326, 323, 504 and 506 of the Indian Penal Code came to be registered. The accused came to be arrested on 5.8.2005 at 1.30 p.m. A message was received that injured Nivrutti had succumbed to his injuries and, therefore, scene of the offence panchnama at Exh.12 came to be drawn in the presence of P.W.3 Balasaheb. From the scene of the offence one stick- Article No.1 came to be seized. From the scene of the offence sample of ordinary mud also came to be seized. P.W.8 Head Constable Vitthal Patil, who was attached to the Sasoon Hospital Police Chowky was informed that Nivrutti had succumbed in the Sasoon Hospital and accordingly drew the inquest panchnama on Nivrutti in the presence of P.W.6 Manohar at Exh. 4 17. Head Constable Patil forwarded a report at Exh.26 to the Bundgarden police station. Statement of P.W.2 Machhindra also came to be recorded on that day. Dead body of deceased Nivrutti was referred for post mortem examination and post mortem came to be conducted by P.W.11 Dr. Milind Wable. P.W.11 Dr. Milind Wable noticed the following external injuries :- 1. Right black eye; 2. Left black eye; 3. Contusion left forehead, 1/2 inch above lateral aspect of left eye-brow, measuring 2 x 3/4th inch, bluish purple coloured; 4. Contusion starting from 2-1/2 inches above middle of left eye-brow extending obliquely over left parietal region, measuring 3 x 1-1/2 inches, bluish purple coloured; 5. Contusion 1/2 inch above injury no.2, measuring 3 x 2, bluish purple coloured; 6. Puncture marks 1" above right cubital fossa (Therapeutic) He opined that all the above injuries were ante mortem injuries and on internal examination found the following injuries:- 5 1. Hematoma over left side of skull under scalp; 2. Linear fracture starting from 3/4th above right eye- brow extending obliquely upwards and backwards over left parietal region 5" long; 3. Depressed fracture of left parieto temporal region, 2-1/2" x 2"; 4. Laceration of dura at the site of fracture with extradural haemorrhage; 5. Subdural haemorrhage all over brain surface; 6. Subarchnoid haemorrhage with contusion of right frontal lobe, 3 x 2", left frontal lobe 2 x 2", left parietal lobe 2-1/2 x 2". He, therefore, opined that cause of death was because of head injury. The post mortem report is at Exh.42. He had issued an advance certificate regarding the cause of death which is at Exh. 43. He has further opined that the injuries were sufficient to cause death in the ordinary course of nature. 3. P.W.9 P.S.I. Baliram Gite, who was attached to the Akole Police Station as P.S.I. was entrusted with the investigation of Crime No.79 of 2005. He accordingly recorded the statements of witnesses on 7.8.2005 and seized the clothes of deceased Nivrutti on 7.8.2005 under panchnama at Exh.14 He recorded the 6 statements of other three witnesses on 7.8.2005 and seized the photo copy of the sale deed and 7/12 extract produced by P.W.1 Subhash. He obtained the medical certificate from the Rural Hospital at Akole and submitted a report to the Judicial Magistrate First Class regarding addition of section 302 of the Indian Penal Code. The seized property was referred to the Chemical Analyser, Nasik along with the requisition at Exh.32. The C.A. reports are at Exhs.33 and 34. Further to the completion of the investigation a charge-sheet against the present appellant came to be filed. 4. On committal of the case to Court of Sessions, the Trial Court vide Exh.2 framed charge against the appellant for offence punishable under sections 323, 504, 506 and 302 of the Indian Penal Code. The accused denied his guilt and claimed to be tried. Prosecution in support of its case examined 12 witnesses while the accused examined D.W.1 Dr. Pandurang Bharmal. The Trial Court upon appreciation of the evidence of the prosecution witnesses came to the conclusion that prosecution had proved the offence against the appellant beyond reasonable doubt and accordingly convicted and sentenced the appellant. 5. In order to effectively deal with the submissions advanced before us by Shri R.K. Temkar, learned Counsel for the appellant 7 and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. The prosecution unfolds its case through the evidence of P.W.1 Subhash, who is an injured eye-witness and is the real brother of the appellant/accused. P.W.1 Subhash states that the appellant/accused is his real elder brother while P.W.2 Machhindra is also his brother. He further states that he, the appellant and Machhindra and his parents reside separate. He also states that the ancestral land is partitioned between them about 10 to 20 years back. He then states that the appellant/accused had sold his land and his residential house. The appellant had sold his house to one Eknath Awari while he had sold his land to P.W.1 Subhash and one Rambhau Awari. He also states that the accused was residing in a hut erected on the common land belonging to the family. He also states that the accused was addicted to liquor. He states that on 4.8.2005 at about 6.30 p.m. the appellant had come to his house and was asking his father deceased Nivrutti as to why the land was given for cultivation to one Balasaheb Kisan, i.e. brother-in-law of P.W.1 Subhash. The appellant was asking that land be allotted to him but deceased Nivrutti refused and there was an altercation between the accused and deceased Nivrutti. Deceased Nivrutti slapped the accused on his face. P.W.1 Subhash intervened in 8 the quarrel and the tempers thereafter subsided. On the next day i.e. on 5.8.2005 P.W.1 Subhash and his brother P.W.2 Machhindra were brushing their teeth on the platform in front of the house and at that time the appellant came there armed with a wooden log. The appellant stood in front of P.W.1 Suhash and challenged P.W.1 Subhash and immediately hit the wooden log on the head of P.W.1. He gave the second blow of the wooden log also on the head of P.W.1 Subhash. At that time Machhindra, who was near P.W.1 Subhash, attempted to hold the accused but the accused hit the wooden log on the hand of P.W.2 Machhindra. Deceased Nivrutti came there and attempted to rescue his sons from the clutches of the appellant. The appellant turned towards his father and said that he would see Nivrutti as Nivrutti was not allotting any land to the appellant. The accused hit the wooden log on the head of Nivrutti as a result of which Nivrutti fell unconscious. Nephew of P.W.1 Subhash by name Manohar arrived there. Similarly, one Kashinath Awari, Balasaheb Awari also arrived at the scene of the offence. Vimal, wife of P.W.1 Suhash was present throughout the incident. P.W.1 Subhash states that the appellant thereafter threw the wooden log and fled from the scene of the offence. Subhash then states that he along with Machhindra brought his father Nivrutti at Akole on motorcycle at the police station and narrated the incident to the police. He states that his report was reduced to writing and 9 thereafter Nivrutti was referred to the Rural Hospital, Akole. The Medical Officer, upon examining Nivrutti, referred Nivrutti for further treatment to the other hospital. He states that thereafter they had gone to the hospital at Sangamner where the Doctor advised him to shift his father to the Sasoon Hospital at Pune. He states that Machhindra and others accordingly took Nivrutti to Pune. 6. In cross-examination he has admitted as true that he had not gone to the hospital on 5th, 6th and 7th of August, 2005 for his treatment. He has also admitted as true that the accused and P.W.2 Machhindra had sold their lands and that Machhindra could not work in the agricultural field because his hand had been amputated prior to the incident. He has also admitted that his father was residing in the "Gavthan area" i.e. the village. He has admitted that the distance between the village and the place of the incident is about 2 Kms. He has admitted that it generally takes 20 to 25 minutes for his parents to come to his house from the village. He has denied the suggestion that fuel wood was stocked in front of his house. He has admitted that Article no.1 is not a stick but is a wooden log. He has admitted that in the first information report he had referred to the wooden log as a stick. He has admitted as correct that at the time of the incident the accused was having an injury on his head. The witness 10 clarified that the accused had sustained the injury prior to the incident i.e. on 4.8.2005. He has also admitted as correct that on account of financial loss the accused was quarrelling with his brothers and father. P.W.1 Subhash further admits that pursuant to the instructions of his father he was providing money and food grains to the accused. He has further admitted as true that his father Nivrutti arrived at the scene of the incident after hearing the commotion on account of the quarrel when Nivrutti was going for answering the call of nature. He has admitted as true that a quarrel ensued between him and the appellant on 5.8.2005. He has denied the suggestion that he had assaulted the appellant/accused with a wooden log. 7. Prosecution has also examined P.W.2 Machhindra, who states that on the previous evening he had been to the house of one Vasant Deshmukh for attending the religious recitation and, therefore, had halted at the house of his brother Subhash. He also deposes on similar lines as that of P.W.1 Subhash in respect of the assault on Subhash and Nivrutti by the appellant/accused. In cross-examination he has admitted as true that he was not aware about the incident on the previous day where deceased Nivrutti had slapped the appellant. He has also admitted as true that he was not concerned with the dispute between his brother Subhash and the appellant. He has 11 admitted as true that he had sustained the injury in the quarrel suddenly. He has also admitted as true that his father deceased Nivrutti had arrived at the scene of the offence in order to settle the dispute between P.W.1 Subhash and the appellant. He has stated in no uncertain terms that no fuel wood was stored in front of the house of P.W.1 Subhash. He has also admitted as true that Subhash as well as deceased Nivrutti had sustained only one injury on account of the stick. 8. Prosecution has examined P.W.5 Kashinath and P.W.6 Manohar in order to buttress the evidence of P.W.1 Subhash and P.W.2 Machhindra. The Trial Court has chosen not to place any reliance on the testimonies of these two witnesses and upon perusal of their testimonies we see no reason to take a view different from the view taken by the Trial Court. 9. Prosecution has also examined P.W.12 Dr. Sangita, who had examined P.W.1 Subhash. P.W.12 Dr. Sangita Makode states that on 8.5.2005 she had examined Subhash Nivrutti Awari and had noticed the following external injuries :- 1. CLW 2 x 0.5 x 0.5 cms. over parietal region, right side; 2. Tenderness over left temporal region; 12 3. Scratch marks over right forearm, forehead, right shoulder. She has opined that the age of the injuries was three days and has further opined that all the injuries can be caused due to hard and blunt object. She has further stated that all the injuries can be caused by Article no.1. 10. Mr Temkar, learned Counsel for the appellant has urged before us that evidence of D.W.1 Dr. Bharmal clearly indicates that the appellant had sustained injuries and was examined on 5.8.2005. D.W.1 Dr. Bharmal states that he had examined the appellant/accused on 5.8.2005 and had noticed the following external injuries :- 1. Contusion right angle of mandible, 5 x 3 cms.; 2. Contused abrasion on right parietal area, 2 x 2 cms. to corenal suture skull; 3. Abrasion on right eye brow, 1/2 x 1/2 cm. laterally; 4. Contusion over right index finger joint dorsally, 2 x 2 cms. He states that the injuries were superficial and contusion, abrasion. He has admitted that there was slight bleeding. He 13 has stated that the age of the injuries was 5 to 6 hours old. He has accordingly issued the certificate at Exh.53. In cross- examination on behalf of the A.P.P., he has admitted that the accused had not given the history about sustaining the injuries. He has also admitted as true that he had not mentioned the age of the injuries in the certificate. He has further opined that all the injuries were simple injuries and were possible if a person falls on hard and blunt object. 11. Mr Temkar, learned Counsel for the appellant has urged before us by relying on the judgment of Lakshmi Singh and others etc. vs. State of Bihar, AIR 1976 SC 2263 that the prosecution had suppressed the injuries sustained by the accused and, therefore, the appellant was entitled to be given the benefit of doubt as the prosecution had suppressed the genesis and origin of the occurrence. The Supreme Court in the aforesaid judgment has also held that there may be cases where the non- explanation of the injuries by the prosecution may not affect the prosecution case. The Supreme Court has further stated that this principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the 14 prosecution to explain the injuries. 12. In the present case P.W.1 Subhash has admitted in his cross-examination that the appellant had already sustained an injury when he had come to the scene of the offence on 5.8.2005. Therefore, the appellant had already sustained the injury much prior to the incident and there is no evidence to indicate that the appellant had sustained the injury during the incident. Moreover, defence witness D.W.1 Dr.Bharmal has not stated about the age of the injuries and the appellant has, therefore, failed in establishing that he had sustained the injury during the incident. Apart from that, the injuries sustained by the appellant are minor and superficial and, therefore, the ratio laid down by the Supreme Court in Lakshmi Singh's case (supra) would not apply to the facts of the present case. The evidence of P.W.1 Subhash corroborated by the testimony of P.W.2 Machhindra clearly establishes that it was the appellant who had assaulted P.W.1 Subhash as well as deceased Nivrutti. 13. It was lastly urged by Shri Temkar, learned Counsel for the appellant that since only a single blow was given by the appellant to deceased Nivrutti, the offence would be one punishable under section 304 part-I or part-II of the Indian Penal Code. We are unable to agree with the aforesaid submission. 15 The injury caused to the deceased Nivrutti was a voluntary injury which was inflicted by the appellant by means of a wooden log. The appellant had inflicted the injury on the head which had resulted in death of deceased Nivrutti. The injury which was caused to deceased Nivrutti was sufficient in ordinary course of nature to cause his death. The case of the appellant would squarely fall within clause thirdly of section 300 of the Indian Penal Code and the appellant, therefore, would be liable to be punished for an offence punishable under section 302 of the Indian Penal Code. 14. After considering the evidence and the submissions advanced before us by the learned Counsel for the parties, according to us the prosecution has established the offence against the appellant beyond reasonable doubt and no interference is called for in the present appeal. The present appeal thus being sans merit is dismissed confirming the conviction and sentence of the appellant.