1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.722 OF 2006 Ram Halya Kotal ..Appellant Age : 35 years, Occu : Civil labour R/o.Mahapoli, Kajubandhan, Taluka Bhiwandi, District Thane V/s. The State of Maharashtra ..Respondent Mr.Kuldeep S. Patil, advocate, for appellant Ms.S.D.Shinde, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 2ND JUNE, 2008 JUDGMENT (PER F.I.REBELLO, J.) . The appellant herein was charged for the offence punishable under Section 302 of the Indian Penal Code alongwith his wife, who was accused No.2 for the offence committed on 7th September, 2005 at about 2.30 hours at Mahapoli, Kajubandhan, 2 Taluka Bhiwandi, District Thane within the jurisdiction of Ganeshpuri Police Station. It was the case of the prosecution that both the accused with the common intention committed murder by intentionally and knowingly causing death of one Halya Lahu Kotal by assaulting him with the help of sharp weapon i.e.Iron axe and Iron Crowbar on the head and cheek. Additional charge was also framed under Section 323 read with Section 34 of the Indian Penal Code. The Learned Sessions Judge considering the evidence on record was pleased to convict the appellant herein for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer R.I for life and to pay fine of Rs.3000/- and in default to suffer further R.I for six months. The accused No.2 was convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer R.I for one year. Set off was given to the accused under Section 428 of the Cr.P.C for the period for which they were as under trial prisoners. 2. The present appellant is the original accused No.1. The 3 deceased was father of the present appellant and father-in-law of the original accused No.2. In support of the prosecution case the prosecution has examined P.W.1 Kondibai Halya Kotal, the widow of the deceased and eye witness to the incident and has also examined Pangalya Halya Kotal as P.W.2, the brother of the appellant and son of the deceased as another eye witness. Apart from these two eye witnesses, recovery was made of the weapon of assault namely Axe at the instance of the accused. This recovery was supported by the evidence of Subhash Pandurang Chougule P.W.4. Dr.Akhtar Razzak Ghavate is P.W.6 who performed the Post Mortem. He has deposed to the nature of the injuries and cause of death as is homicidal. The report of the C.A has also been produced which shows that the Axe which was recovered showed blood stains which was identified as of 'B' Group which is the blood group of the deceased. Mr.Nau Bendu Pawar is P.W.3 and he was panch of the spot panchanama. 3. From the evidence of P.W.1 it has come on record there was a dispute between the deceased and the appellant as the 4 deceased did not give him roof tiles but had given to his other two sons Panglya, who has been examined as P.W.2 and Gajanan. From the evidence of P.W.1 it has come on record that on the day of the incident they had gone to the house of one Harishchandra as it was the first day of the Ganesh Festival. They were returning back at 12.00 and when they approached near the house of the accused he gave blow with the axe on the head of the deceased and he fell down. In the cross examination of this eye witness it was suggested that the deceased made a demand from the appellant for a sum of Rs.1000/- and the deceased was addicted to liquor. In the cross examination it was suggested to P.W.1 that on the day of the incident the accused alongwith his wife had gone to Divyachi. The evidence of P.W.1 is supported evidence of P.W.2, brother of the appellant. In his evidence he has deposed that on that day they were returning back at about 2.30 A.M he alongwith his father, mother, younger brother and other brother and that the appellant alongwith his wife were coming behind them. The appellant gave a blow with stick on the waist of the mother and she fell down. The appellant also run behind this witness 5 with the stick. He ran away. After that he saw the appellant came back with an axe and hit a blow with axe on the head of the deceased. This would be nature of an improvement in the case of the prosecution but we find from the F.I.R lodged that it was so stated though, in the evidence of P.W.1 it has not come on record. It is possible that P.W.1, the mother was deposing against her son there might be some omission. The incident took place in the year September, 2005 and she was deposing in the January, 2006. From this evidence it would be clear that the assault by the appellant on the deceased by an axe has been established beyond reasonable doubts. 4. From the evidence of P.W.4 the prosecution has established the recovery of the axe at the instance of the appellant herein. In his deposition the witness has deposed that the appellant made a statement that he would show the place where the axe was concealed. He took them to the house and produced the axe which was kept in the firewood. There is nothing in the cross examination of this witness to disbelieve his evidence. The axe was sent to C.A for 6 examination. The C.A report shows under the description of articles, the axe as Item No.7. The blood was identified as ' B' group. Similarly, C.A.Report of the year 2006 would show that the blood group of the deceased was 'B' . In other words, the blood group of the axe matches with the blood group of the deceased. P.W.6 is Dr.Akhtar Razzak Ghavate. In terms of the deposition he has conducted Post Mortem. He found incised wound 5 cm x 3 cm Bone deep Vertical on scalp at Vertex, bleeding present. He has also deposed to the other injuries. The cause of death as per his statement was cardiorespiratoy failure due to shock and hemorrhage due to injury to brain due to fracture of skull bone. He has described nature of the injuries as grievous and could be caused by hard and sharp object. According to him, injury No.1 was sufficient to cause death and it was possible by axe. In the cross examination the only suggestion was given that if medical treatment is provided, chance of survival is there. It has come on record that the deceased died on the spot. 7 5. From the evidence of P.W.6 it is clear that death is homicidal. From the evidence of P.W.1 and P.W.2 it has been established that the injury was caused by the appellant by use of the axe. The axe was recovered at the instance of the appellant and it has been proved by the prosecution through the evidence of .P.W.4 6. On behalf of the appellant the learned counsel submitted that this would not be a case for conviction under Section 302 but under Section 304 Part II. For that purpose the learned counsel for the appellat has firstly relied on the Judgment of the Supreme Court in Camilo Vaz Vs. State of Goa, reported in 2000 ALL MR (Cri) 1029. In that case accused persons came with dandas, bottles and cycle chains for giving a beating to complainant party – Deceased hit by danda on his head with force. The Supreme Court considering that the accused hit the deceased by danda was pleased to hold that it would fall under Part II of Section 304 of the Indian Penal Code. In the instant case, the weapon of assault was an axe. We have the evidence, that the accused after assaulting mother, went and brought 8 the axe from the house and assaulted his father on the head. There are two incised wounds. In these circumstances, in our opinion, the ratio in Camilo Vaz Vs. State of Goa, reported in 2000 ALL MR (Cri) 1029 is clearly distinguishable. The learned counsel further relied on the Judgment of the Supreme Court in BAGDI RAM Versus STATE OF M.P., reported in (2004) 12 Supreme Court Cases 302. After considering the facts of the case including the plea of self defence the Court found that assault took place on account of sudden quarrel. During this time that accused picked up the “gainti” which was lying on the spot and caused one blow and did not repeat the blow and in these circumstances, the Supreme Court was pleased to alter the conviction from Section 302 to 304 Part II. The last case cited by the counsel is of this Court in Dharma Ravji Andher Vs. State of Maharashtra, reported in 2004 ALL MR (Cri.) 2068. It appears from the facts on record that the submissions were made on the behalf of the appellant before this Court that since it was a single injury caused to the neck the case would fall under 304II of the I.P.C. The learned Court was pleased to hold considering the material in 9 that case that the act attributed to accused by which death is caused, appears to be bodily injury as is likely to cause death but without any intention to cause death. In the instant case, we find that the appellant came back with an axe and used the axe by assaulting on the head of his deceased father. Apart from the injury on the head, there was one other injury. In our opinion, the issue in Dharma Ravji Andher Vs. State of Maharashtra would be distinguishable. The learned counsel also submits that from the F.I.R it is seen that the appellant had nine children. 7. Though, we may sympathize with the children, the evidence which has come on record clearly establishes, a case under Section 302 of the I.P.C. In our opinion, therefore, the learned Sessions Court was right in convicting the appellant and sentencing him imprionsment for life. We find no reason to interfere in the findings and conviction and sentence imposed by the learned Sessions Court. (F.I.REBELLO, J.) 10 (K.U.CHANDIWAL, J.)