1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.668 OF 2009 Vilas S/o.Hiraman Bhalerao, Age-29 years, Occu-Labour, R/o.Subhash Nagar, Jatwada Road, Aurangabad APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.Joydeep Chatterji, learned counsel for the appellant. Mr.D.R.Kale, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/11/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellant has questioned the correctness and legality of the judgment and order passed by the Additional Sessions Judge-2 Aurangabad dated 17/12/2009, in Sessions Case No.291/2007. By the said judgment, the appellant was convicted for an offence punishable u/s. 302 of The IPC and was sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1,000/-, in default to suffer SI for 1 month. Appellant was also convicted for an offence punishable u/s. 324 of The IPC and was sentenced to suffer RI for one year and to pay fine in the sum of Rs. 2 1,000/-, i.d. to suffer simple imprisonment for one month. Appellant was further convicted for an offence punishable u/s. 447 of The IPC and was sentenced to suffer RI for 3 months and to pay fine in the sum of Rs.1,000/- i.d. to suffer simple imprisonment for one month. All the substantive sentences were ordered to run con-currently. 2. Such of the facts as are necessary for the decision of this appeal can be summarized as : a) On 12/08/2007, Sukhdeo Kacharu Pawar (P.W.No.10), was attached to Begumpura Police Station. During his duty hours, at 1.40 p.m., or so, Rahul Hiraman Dehade, P.W.No.1 lodged the report (Exh.25) against the appellant and 4 others. On the basis of this report, an offence was registered vide CR No.103/2007 for an offence punishable u/s. 302, 324, 447, 143,147, 149 of The IPC. b) Investigation in CR No.103/2007 was carried out by P.W.No.10. Subsequent to the registration of an offence, he went to Ghati Hospital, Aurangabad, as the dead body of Shankar @ Bablu Eknath Dehade was taken to Ghati Hospital. From Ghati Hospital, he went to spot of incident. Spot of incident was shown by Rahul, the complainant. The spot was situated in the land gat no.246, near Subhash Nagar. He drew spot panchnama Exh.29 in the presence of witnesses. From the scene of offence, he collected blood mixed soil and plain soil. 3 c) From the scene of offence, he returned back to Ghati Hospital, Aurangabad, where he drew inquest panchnama (Exh.30) of the dead body of Shankar @ Bablu. Thereafter, the dead body of Bablu was sent for post mortem. Dr.Sachin Ghadge conducted autopsy on the dead body of Bablu. During the post mortem, P.W.No.7, noticed following external injuries : 1. Contusion of size 7 x 2 cms over the left infra scapular region plead obliquely. Shape - two parallel lines with intervening clear area and both parallel lines fused at their ends. Bluish in colour. 2. Contusion over occipital protuberance of size 4 x 3 cms, bluish in colour, upper end of contusion merges in the scalp hair so can not be defined. During the internal examination, he noticed following injuries. Head : Sub alial contusion of 6 x 3 cms. corresponding to injury no.17(2) dark reddish. Brain : Meninges congested in brain matter (i) contusion of size 3 x 3 cms. over occipital lobe. (ii) Contusion hemorrhages over both occipital lobes defused. P.W.No.7 Dr.Ghadge opined that the probable cause of death was due to head injury. According to him, the injuries mentioned in coloumn no.17 and 19 of the post mortem report can be possible by weapon like stick. The post mortem report prepared by him is at Exh.39. d. On the same day, complainant Rahul was examined in Ghati Hospital by Dr.Heena Khan Jalil Khan (P.W.No.5). During the 4 examination of Rahul, she had noticed CLW on scalp of size 3 x 2 cms. of which shape was irregular, caused within 12 hours, by means of hard and blunt object. Accordingly, she had issued medical/injury certificate (Exh.34). According to her, the injuries found on the person of Rahul can be possible by stick. e. On the same day, appellant and 3 others were arrested. Accordingly panchnamas of their arrest (Exh.46 to Exh.49) were drawn. While conducting autopsy on the dead body of Bablu, clothes on his person were removed and were seized in the presence of witnesses under the panchnama (Exh.32). On 13/08/2007, one more person was arrested in connection with this offence. Panchnama of his arrest (Exh.55) was drawn. On 12/08/2007 as well as on 13/08/2007, he had recorded statements of certain witnesses. On 15/08/2007, clothes on the person of Rahul were seized in the presence of panch witnesses under the seizure panchnama (Exh.31). During the investigation, appellant had made voluntary disclosure statement in the presence of panch witnesses (Exh.51) leading to the recovery of one stick, concealed in the bushes in land Gat No.246 which was seized under panchnama (Exh.52) in the presence of panch witnesses. f. On 21/08/2007, sample of blood of complainant was collected for blood grouping in the Ghati Hospital. On 27/08/2007, muddemal property was seized during the investigation, alongwith the sample of blood of the complainant/informant and were forwarded for chemical 5 analysis alongwith the forwarding letter to the office of CA, of which acknowledgment was given by the concerned clerk of the said office, which is at Exh.53. While conducting autopsy, viscera was preserved by the Medical Officer and was also sent to the CA alongwith forwarding letter. In due course, report of CA (Exh.55) was received. On 14/08/2007, with the help of photographer Ikbal Nasir Pathan, photographs of the scene of offence were taken. After completion of investigation, charge sheet was filed against the appellant and others in the Court of 14th J.M.F.C., Court, at Aurangabad. After passing requisite committal order, trial against the appellant and others was committed to the Court of Sessions. 3. Record received from the Lower Court shows that the learned Additional Sessions Judge-2 Aurangabad has framed charge against the appellant and others, which is at Exh.18. Appellant and others pleaded not guilty to the charge and claimed to be tried. 4. Record further shows that to substantiate the charges lavelled against the appellant and others, prosecution has examined in all 11 witnesses. It appears that the defence of the appellant and others was of total denial and their false implication in the present case. On appreciation of the evidence of the prosecution, learned Lower Court pleased to acquit all the accused other than the appellant. Only the appellant was convicted for the offence punishable u/s. 302, 324 and 447 of The IPC, which judgment is impugned in the present appeal. 6 5. Before considering the submissions of learned counsel appearing for the appellant and learned APP for State, it is necessary to discuss the evidence of the material witnesses for the better and correct appreciation of the evidence of material witnesses. 6. It has come in the evidence of Rahul Dehade (P.W.No.1) that deceased Bablu alias Shankar is his cousin brother. His family consists of his parents and uncle Eknath Dehade. His family is engaged in agricultural as well as the milk business. Their family was having 5 she-buffaloes and the family of deceased Bablu was having 2 she-buffaloes. He himself and deceased were looking after those she-buffaloes. Their agricultural land is situated at the distance of 500 ft. from their residential premises. The incident was occurred on 12/08/2007. On that day, he was present in the field alongwith deceased Bablu. They were grazing she-buffaloes in their agricultural field. There was standing bajra crop in the agricultural field. At about 10.30 a.m., she-buffaloes of appellant came in their field. Babasaheb and one Kiran had come to graze those she- buffaloes. The she-buffaloes entered in the bajra crop and started eating it. He drove them out from his field. On that count, Kiran and Babasaheb raised quarrel with him and assaulted him. They also assaulted Bablu. Thereafter Babasaheb and Kiran went away from the place alongwith their she-buffaloes. After about 1/2 hour or so, appellant alongwith Babasaheb, Vitthal, Kiran, Rohidas, Deepak Dehade and Samadhan Dehade came to their field. They assaulted Bablu. Appellant assaulted Bablu with the stick in his 7 hand. Due to assault, Bablu fell on the ground. When he went to rescue Bablu, he was also assaulted by the appellant with stick in his hand. He gave shouts for help. After some time, his brother Balu (P.W.No.2) and his wife Shobhabai came to spot. They took Bablu to Ghati Hospital at Aurangabad, where the Medical Officer has declared Bablu as dead. Then he went to police station and lodged the report (Exh.25). He had identified stick (Article 1) before the Court, as the weapon used by the appellant to assault Bablu as well as to assault him. He had also identified the clothes of deceased. In his cross-examination, he has stated that the appellant and others are the resident of Subhash Nagar. Subhash Nagar is at the distance of about 1-1/2 km from their agricultural field. The Gairan land is a rocky land. There are brick kilns by the side of the road, which is at the distance of about 20 ft. from their agricultural land. The workers working on the brick kilns have their houses near the brick kiln. He had admitted that the incident of abuse was going on for about 15-20 minutes. He had further admitted that deceased had not sustained any bleeding injury, but he sustained bleeding injuries. He had also admitted that deceased was pelting stones towards the buffaloes to drive them out from the field, but denied that he sustained injury over his head on account of pelting stones by deceased Bablu. He had admitted that those days were rainy and the ground surface was sleepery. He denied that Bablu/deceased slept over the sleepery surface and fell on the hard surface and sustained muffled injuries over his head. He had denied that after the earlier incident, appellant and others have not came to the spot of 8 incident. He also denied that appellant had not assaulted him and deceased. The contents of complaint Exh.25 were referred to him, wherein he has stated that appellant snatched the stick from his hand and thereafter assaulted him and Bablu. This fact is proved through the evidence of Investigation Officer P.W.No.10. 7. Balu Eknath Dehade (P.W.no.2) has stated in his evidence that, he is real brother of the deceased. On 12/08/2007, at around 10.00 a.m., deceased had been to the agricultural field to graze she- buffaloes. On hearing the shouts, he rushed to his field. At that time, he saw that the appellant and others were running away from the spot of incident i.e. their field. His wife Shobha was with him. He had noticed that deceased was found lying on the ground and sustained injuries on the back side of his head. Complainant Rahul had also sustained bleeding injuries over his head. He and Shobhabai taken Bablu and Rahul to Ghati Hospital, where Bablu was declared to be dead and Rahul was treated for his injuries. On his inquiry, Rahul informed him as to how the incident occurred. He has stated in his cross examination that when he reached at the spot, till that time, the assailants had gone away from the spot of incident. He saw that Bablu was lying on the ground and Rahul had sustained bleeding injuries on his head. There are 4-5 hours of Dehade family near the field. 8. P.W.No.5 Dr.Heena Khan Jalil Khan has stated in her cross examination that the injured might have remained under her 9 observation for about 10-15 minutes. The injuries mentioned in the injury certificate at Exh.34 can be possible, if the head came in contact with any hard and blunt object or if a person fell on a hard and blunt object. 9. Dr. Sachin Gadge had stated in his cross examination that there was no mark of imprint of the wood/stick. Injuries to the head are very frequent as result of traffic accidents and falls. He was not in agreement with the suggestion given that when occipital region comes in contact with hard and blunt object, then the injuries noted by him in the post mortem report are possible. He had admitted that in general term, head injury is possible by fall from height on feet or buttocks. At this juncture, we have to take a note that this suggestion was given to P.W.No.7, the Medical Officer, but not given to the sole eye witness P.WNo.1 Rahul. 10. It has come in the evidence of P.W.No.8 Dagadu Kabje, the witness to the spot panchnama that the soil in the land was trampled. Some stems of bajara crop were eaten by cattle. Plain soil and the soil from the trampled portion is collected in his presence while drawing the spot panchnama. In his cross examination, he has admitted that he is close relative of deceased and complainant. 11. Heard learned counsel for appellant and learned APP for State in the backdrop of the above referred evidence of the material 10 witnesses. During the course of submissions across the bar, it is tried to urge that considering the evidence lead before the trial Court and even though the prosecution has examined 11 witnesses, to prove the charges lavelled against the appellant and others, the fact is clear that the case of the prosecution rests on the testimony of P.W.No.1 Rahul, injured witness, who is also complainant in this case. It is urged that the fact came in the cross examination of P.W.No.1 Raul about the disclosure of evidence in the FIR, which stands proved from the evidence of the Investigation Officer P.W.No. 10, which clearly demonstrates that at the time of alleged incident, neither the appellant nor the other accused were armed with any weapon at all. But on the contrary, the contradiction in the cross examination of P.W.No.1 stands proved in the evidence of Investigation Officer, that at the time of alleged incident, abuse and exchange of words was going on for pretty long time of 15-20 minutes. At that time, the stick, alleged weapon of assault was in the hand of complainant, which was snatched by the appellant and given a single blow on the head of the deceased and also assaulted Rahul. It is urged that, it can not be inferred that even though the Medical Officer has opined that the death of deceased was caused due to head injury sustained by him, which as per the version of the complainant was caused due to assault by the appellant, there was no intention to kill the deceased. Hence even if the testimony of P.W.No.1 is accepted as it is, no offence of murder is made out. According to him, as there was no intention, there was no pre- meditation, the act was not pre-planned, then at the most, as the 11 injuries sustained by the deceased resulted in his death, the appellant might have committed an offence punishable u/s. 326 of The IPC, hence prayed to reduce the conviction u/s. 302 of The IPC to section 326 of The IPC. It is further urged that considering the nature of injuries sustained by the complainant Rahul, it can not be termed as a grevious injury, hence conviction punishable u/s. 324 of The IPC can not be maintained. According to him, the place of offence is not in the field of the complainant or the deceased, hence conviction u/s. 447 of The IPC is also not maintainable. 12. Learned APP supports the judgment of the Trial Court, as according to him, the trial court has rightly convicted the appellant for the offences punishable u/s. 302, 324 and 447 of The IPC. 13. Considering these rival submissions across the bar, and on plain reading of the evidence of P.W.No.1, the injured sole eye witness, who is also complainant and proved spot panchnama, it reveals that the blood stains were noticed at the place of offence, which is the place where the bajra crop was noted as partly eaten and damaged. This is adjacent to the gat no.245 and 246. Considering this aspect, it is to be inferred that the incident had occurred in the standing crop, in the field belonging to the family of complainant. Considering the nature of injuries sustained by the complainant, there is no doubt in our mind that the appellant was rightly convicted for an offence punishable u/s. 324 of The IPC as well as u/s. 447 of The IPC. 12 14. Now the point which require consideration is that whether the death of deceased, which is caused due to the assault by the appellant, can amount to an intentional homicidal death at the hands of appellant or not. From the evidence of the sole eye witness to the incident, the fact has came on record that when the appellant and others came in the field of the complainant, at that time, they were not armed with any weapon. If at the time of arrival of the appellant in the field of the complainant, where the deceased was assaulted, the appellant and others were not armed with any weapon, it can not be inferred that there was intention of the appellant and others to cause death or grevious injury to the deceased. Further the fact stands proved from the evidence of sole eye witness to the incident that prior to the incident, there was exchange of words between the complainant and appellant for about 15-20 minutes. This fact clearly establishes that the act of the appellant is the offshoot of the sudden provocation, because of exchange of words between the complainant, deceased and the appellant. By taking into consideration these facts, it is to be inferred that as the appellant and others were not armed with stick or any deadly weapon, when they approached the complainant and deceased, but after exchange of words for about 15-20 minutes, the stick was snatched by the appellant from the hands of complainant and then assaulted the deceased, which resulted in his death. Thus from these facts, it is to be inferred that the appellant had no intention to cause such bodily injury as was likely to cause death, but had the knowledge that the injury was likely to cause death. The appellant gave only one blow 13 and i.e. also with the stick on the head of the deceased. Thus it can not be inferred that there was intention to cause death of the deceased at the hands of appellant. From the proved facts, it is clear that the offence committed by the appellant is covered u/s. 304(II) of The IPC. 15. As this Court has come to the conclusion that the appellant has not committed the offence punishable u/s. 302 of The IPC, but had committed an offence punishable u/s. 304-II of The IPC, then at this juncture, learned counsel appearing for the appellant placed his reliance in the matter of Namdeo Kisan Bhakare versus State of Maharashtra and another, reported in 1996 Cri.L.J. 562, and in the matter of Sarup Singh versus State of Haryana, reported in 1995 Cri.L.J. 4168. Our attention is drawn towards the observation in para no.5 of the latter part of the judgment, wherein it is observed that the appellant, after his conviction for the offence punishable u/s. 307 of The IPC by the High Court, has been in custody for about 1 year. He has also remain in custody for some time during the investigation of the case and the trial. After hearing the learned counsel for the complainant, we consider that it would meet the ends of justice, if the sentence of appellant for the offence punishable u/s. 304(II) of The IPC reduced to the period already undergone by him, but in addition, he is directed to pay a fine of Rs.20,000/- by way of compensation u/s. 357 of The Cr.P.C., to be paid to the widow of the deceased. It is urged in this case that, only a single blow was given by the appellant, which resulted in the death of the deceased and 14 hence the conviction u/s.302 of The IPC be converted into section 304(II) of The IPC and the sentence be reduced. In the earlier matter also, the appellant was held guilty for the offence punishable u/s. 304(II) of The IPC and the sentence was reduced for the period already undergone and the amount of fine was enhanced. It is urged that the facts of the case of the prosecution under the appeal are identical with the rullings on which reliance is placed, hence it is prayed that as during the trial, appellant was in custody for the period of 3 months and during the pendancy of appeal, the appellant is in custody for the period of 11 months, hence the sentence to be reduced to the period the appellant had already undergone and the amount of fine be enhanced. 16. After giving conscious consideration to the submissions across the bar, we are not in agreement with the facts of the cases on which the reliance is placed by the learned counsel for appellant. We have to bear it in mind that the deceased in this case was assisting to his father in the bread earning. The age of the deceased was 15 years. He was assisting his family members in day to day earnings and the family has lost a fully grown up male child in the old age of his parents. Considering this aspect, even though, the offence committed by the appellant is altered from section 302 to section 304(II) of The IPC, to meet the ends of justice, we propose that RI for 3 years is the adequate sentence to the appellant. Hence we pass the following order : 15 O R D E R 1. The appeal is partly allowed. 2. Conviction of the appellant for the offence punishable u/s. 302 of The IPC is hereby quashed and set aside and the appellant is convicted for the offence punishable u/s. 304(II) of The IPC and sentenced to suffer RI for 3 years and to pay the fine in the sum of Rs.1,000/-. 3. Conviction of the appellant punishable u/s. 324 and 447 of The IPC is hereby maintained as it is. 4. Appellant is entitled for the statutory set off. 5. Appeal stands disposed of accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/NOV. 2010/cri.appeal 668-09