1 cria391-98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 391 OF 1998 1] Balaji Ganpati Suryawanshi age major, Occ-labour, R/o Walandi, Tq. Udgir, Dist.Latur. .. APPELLANT [ORIG.ACCUSED] Vs 1] The State of Maharashtra [Copy to be served on the Government Pleader, High Court Bench at Aurangabad] ...RESPONDENT ... Shri V.D.Gunale, Adv.for appellant. Shri S.G.Nandedkar,APP for R-State. ... 2 cria391-98 CORAM : T.V.NALAWADE,J. DATE : 26/07/2011 ORAL JUDGMENT : 1] This appeal is filed against judgment and order dated 24/11/98 of Sessions Case No.88/98 which was pending in the Court of Sessions Judge, Latur. The appellant is convicted and sentenced for offence punishable under Section 304 [II] of I.P.C. and he is sentenced to suffer R.I. for 5 years and to pay fine of Rs.500/- by the trial Court. He was charged sheeted for offence punishable u/s 302 r.w. 34 of I.P.C. In short, the facts leading to the institution of the Appeal can be stated as follows : 2] Deceased Ashok was son of Dropadabai. He was living with his mother, wife and his issues. The house of appellant who is brother of the wife of deceased is situated in the vicinity of the house of Dropadabai. Accused no.2 was father of the 3 cria391-98 appellant. There used to be quarrels between the deceased and his wife. As deceased Ashok was harassing his wife Kauntabai, there used to be quarrels between appellant and the deceased. 3] On the date of the incident, the first incident of quarrel took place between the deceased and his wife Kauntabai. On that day, Dropadabai returned from place of work in the evening and after that she went to grocery shop and pan shop to make some purchases. When she was near the pan shop, she learnt from a boy that present appellant and his father were assaulting deceased near hand-pump [bore-well] which is situated near the house of one Bharatbai. Dropadabai rushed to the spot. She saw that appellant was assaulting deceased by using a stone and the father of appellant was giving kicks and fist blows to the deceased. Dropadabai requested appellant and his father not to assault Ashok but he continued to give beating and after some time, they left the spot. Ashok was lying in injured condition near the hand pump. 4] The incident was witnessed by other persons like Bharatbai, Yousufmiyan etc. Nobody helped Dropadabai. She 4 cria391-98 requested to one cycle rickshaw owner to take Ashok to the hospital but said cycle rickshaw owner shifted Ashok to the house of Dropadabai. Dropadabai could not shift Ashok to hospital and she could not give any medical treatment to the deceased. In the house, Dropadabai attempted to pour some tea into the mouth of deceased but the deceased could not swallow it. She tried to approach police patil of the village but police patil was also not available. She contacted Kotwal and requested the kotwal to inform about the incident to police patil. When Ashok was in the house at about 1-2 hours of the night, Dropadabai realized that Ashok was dead. Dropadabai then contacted her neighbors. Police patil came to the house of Dropadabai in the early hours of the next day. After learning about the incident, police patil Vaijnath gave report to the police station. On the basis of his report, Crime No.36/98 came to be registered in Deoni police station for offence punishable u/s 302 r.w. 34 of I.P.C. against the appellant and his father. 5] Prakash Jadhav was attached as P.S.I. with the aforesaid police station. He made investigation of the case. He prepared panchanama of the spot where the assault was made on Ashok and he recovered a stone having blood stains from the spot of 5 cria391-98 the incident. Stone was weighing about 1 and ½ Kg. Inquest panchanama on the dead body was prepared and dead body was referred for post mortem examination. Doctor gave opinion that Ashok died due to excessive bleeding and the bleeding was caused due to injuries caused on head and chest. During investigation, the P.S.I. recorded statements of eye witnesses. Both accused came to be arrested. There were blood stains on the clothes of appellant and they were taken over. Clothes of the deceased were taken over and blood samples were also taken over. The P.S.I. sent all these articles to C.A. office. Blood was detected on the stone, on the clothes of the deceased and on the clothes of both accused. P.S.I. Jadhav filed charge sheet after completion of the investigation. In the Sessions Court, charge was framed for aforesaid offences. Both accused pleaded not guilty. Prosecution examined in all 12 witnesses. In the statement given u/s 313 of Cr.P.C., and during the cross examination of prosecution witnesses, appellant took defense of total denial. 6] The trial Court has held that there is direct evidence of Dropadabai and there is circumstantial check of medical evidence, evidence of spot panchanama and the evidence of 6 cria391-98 motive etc. The trial Court has however, held that the appellant had no intention to murder Ashok and appellants probably wanted to teach lesson to Ashok as Ashok was not treating sister of the appellant in proper manner. The trial Court has held that appellant had however, knowledge that by such assault, he was likely to cause the death of Ashok. 7] In the appeal, both sides are heard. It was submitted for the appellant that the injuries which were found on the dead body can be caused due to simple fall and this probability is not considered by the trial Court. It was submitted that Ashok was addicted to liquor and almost all the villagers were fed up due to the conduct of Ashok and that is why, nobody came forward to help him. It was submitted that the trial Court has not considered this circumstance and also the probability that some other persons might have assaulted Ashok. It was submitted that there is probability that Dropadabai was not present on the spot at the time of incident and she reached the spot when the incident was over. It was submitted that the boy who allegedly gave news to Dropadabai is not traced out and is not examined in the Court and so it is not probable that Dropadabai could reach the spot when the incident was going 7 cria391-98 on. In alternative, it was submitted for the appellant that lenient view can be taken in view of the motive mentioned by prosecution in the case. It was submitted that it is the appellant who is now giving support to the widow of deceased and to the issues of the deceased. It was submitted that the appellant is also giving support to the mother of the deceased. APP supported the decision of trial Court. 8] The prosecution has relied on direct evidence of mother of the deceased and some circumstances which are in the form of evidence of spot panchanama, the presence of weapon stone on the spot of offence, presence of blood stains on the clothes of the appellant, medical evidence and evidence of motive. Other eye witnesses examined by the prosecution have turned hostile, but there is evidence from some witnesses that Dropadabai disclosed the incident to them immediately after the incident. There is evidence of police patil and kotwal who can be called as independent witnesses in the present case. 9] Dropadabad [PW 5] has given evidence that on the date of the incident, she had returned to home from place of work in the evening and she had left home at 7 p.m. for making some 8 cria391-98 purchases. She has deposed that when she left home at 7 p.m., Ashok was not at home. She has deposed that when she was near a pan stall, a boy informed her that accused nos.1 and 2 were giving beating to Ashok near house of Bharatbai where there is a hand pump. She has deposed that she reached to the spot and she could witness the incident. In the cross examination, it is brought on record that the distance between pan stall and the spot of offence is around 1000 ft. The incident took place in small village and even if the distance which is given by illiterate lady is accepted as it is, it can be said that Dropadabai must have reached the spot immediately. Assailants were relatives of the deceased and there was no reason for them to run away after giving beating to the deceased. Dropadabai deposed that appellant was giving blows of stone and his father was giving kicks and fist blows to the deceased. She has deposed that she requested appellant and his father not to give beating to the deceased but they continued to give beating. Dropadabai has given evidence that Ashok was lying in injured condition on the spot of offence. She has taken names of eye witnesses but all of them have turned hostile. The evidence of Dropadabai shows that the deceased did not talk with her on the spot of the offence or even in her 9 cria391-98 house. 10] Dropadabai has given evidence that immediately after incident, she contacted village Kotwal and she informed about the incident to him and she requested him to contact police patil. She has deposed that after contacting police patil, she returned to the spot and then, one cycle rickshaw owner helped her to shift Ashok from the spot of offence to her house. She has deposed that in the house, Ashok could not even drink tea when she tried to pour tea into his mouth. The evidence of Dropadabai shows that no villagers helped her in shifting Ashok to the hospital or any giving medical treatment to Ashok. 11] Dropadabai has deposed that at about 1-2 hours of the night, she realized that Ashok was dead. She has deposed that she then contacted neighbors. She has deposed that the wife of Ashok returned to home after learning about the death at about 5 a.m. and then police patil came to her house. She has deposed that police patil gave report to police station on the basis of information supplied by her. Some cross examination is made by defense in respect of the boy who had given the news to Dropadabai. She could not give name of the boy. Thus 10 cria391-98 there is a lacuna but in view of the circumstances discussed, not much can be made due to this lacuna in favour of the accused. In small village, the news spreads immediately and when the assailants are like the present appellant, they do not run away from the spot and it becomes possible for the relatives to come to the spot immediately and to witness the incident. 12] Hussain [PW 8] has given evidence that he had made his cycle rickshaw available for taking Ashok to his house from the bore-well where the incident took place. This evidence of Hussain is consistent with the evidence of Dropadabai and that has given necessary corroboration to the evidence of Dropadabai. 13] Narayan [PW 10] Kotwal has given evidence that at about 8 p.m. on the date of the incident, Dropadabai came to him and she narrated the incident to him. He has deposed that Dropadabai had taken the names of both accused when information was given to him. He has deposed that Dropadabai attempted to contact police patil but the police patil was not available. He has deposed that he learnt about the death of Ashok at about 3 a.m. and he then went to police patil. He 11 cria391-98 informed about the incident to police patil. He has deposed that he and police patil went to the house of Dropadabai and from there they went to police station where police patil gave report. Thus evidence of Nayaran [PW 10] shows that Dropadabai had immediately disclosed the incident to others. This evidence is relevant and it gives corroboration to the version of Dropadabai. 14] Vaijnath [PW 2] was working as police patil of the village. He has deposed that at about 6 a.m. on the next date, he learnt about the incident and so he went to the house of Dropadabai. He has deposed that on the basis of information of Dropadabai, he gave report to the police station. Report is at Exh.19 and it is consistent with version of this witness. Names of accused nos.1 and 2 were given to the police in the report by police patil. This evidence and the record is consistent with version of Dropadabai. It is already observed that there is virtually no reason for police patil and kotwal to give false evidence against appellant. 15] In the evidence of panch witness Gangadhar [PW 3], seizure of clothes of accused nos.1 and 2 on 4/4/98 is proved. The panchanamas are at Exhs. 21 and 22. The panch witness 12 cria391-98 has deposed that there were blood stains on the clothes of both the accused. P.S.I. Jadhav [PW 12] has given evidence on the seizure of these clothes. Jadhav has given evidence that these clothes were sent to C.A. office. The C.A. report shows that blood was detected on the clothes of the accused. Both accused were arrested immediately and the clothes were seized immediately and so, this evidence gives corroboration to the case of prosecution. 16] P.S.I. Jadhav [PW 12] has given evidence that he prepared panchanama on 4/4/98 and he took over stone from the spot of offence. He has deposedthat the stone was sent to C.A. office as there were blood stains on the stone. C.A. report shows that there was human blood on the stone. This evidence is consistent with the version given by Dropadabai. Though no panch witness is examined on the spot panchanama, there is no reason to disbelieve the investigating officer. It is already observed that there was nobody in the village who came forward to help Dropadabai even to shift Ashok to Government hospital. 17] Dr.Vishwanath Patil [PW 1] conducted post mortem 13 cria391-98 examination on the dead body. He has deposed that there was head injury at right parietal region and this incise wound had caused multiple fractures of the skull. This injury appeared as incise wound and it had cut right ear. Doctor has deposed that the stone seized in this case has sharp edge on one side and such stone can cause the head injury which was found on the dead body. The doctor has however, admitted that such injury can be caused in simple fall also. Evidence of Hussain [P.W.8] shows that deceased was addicted to liquor. He was found lying on road on many occasions by the witness. On the basis of this admission, it was submitted for accused that the deceased probably sustained the fatal injury in simple fall. In view of the evidence of Dropadabai and the nature of injury, fracture of skull, this Court holds that the injury was not caused due to simple fall. Thus, medical evidence is consistent with the case of Dropadabai and it has given necessary corroboration to her version. In the cross examination, it is suggested to the doctor that Ashok could have been saved if treatment was given in time to him. Doctor has not given definite admission on the suggestion but in view of Explanation No.2 to Section 299 of I.P.C., such defence cannot be considered. 14 cria391-98 18] The aforesaid evidence is sufficient to infer that it is the appellant who assaulted by using stone on the head of Ashok and the injury caused by appellant, caused the death of Ashok. In view of the site of the injury, head and in view of the nature of weapon used - sharp edged stone, this Court holds that it needs to be presumed that appellant had knowledge that by making such assault, he was likely to cause death of Ashok. As this assault caused the death of Ashok, this Court holds that the offence falls under Section 304-II of I.P.C. 19] Sufficient hearing was given to the advocate of appellant on the point of sentence. In view of the submissions made for the appellant that he is taking care of widow and issues of the deceased and even of the mother of the deceased, this Court holds that lenient view can be taken. If the appellant is again sent to jail, that will create problems to the widow and her issues. It appears that deceased was the only son of Dropadabai. In view of these circumstances, this Court holds that sentencing the appellant for the period already undergone and imposing of sufficient fine amount on him to enable to pay the compensation to mother of the deceased, would be the just 15 cria391-98 and proper sentence. Appellant was behind bars for about 8 months. So Appeal is partly allowed and the following order is passed : 20] Appeal is partly allowed. 21] The judgment and order of the trial Court is modified. Appellant stands convicted and sentenced for offence punishable under Section 304-II of I.P.C. and he is sentenced to suffer imprisonment for the period undergone and to pay fine of Rs.50,000/- (Rupees fifty thousand), in default of payment of fine, he is to undergo R.I. for five years. In that case, he will be entitled to set off. If fine amount is deposited, the fine amount is to be given to the mother of the deceased. 22] The amount is to be deposited within 45 days from the date of this order, otherwise the appellant is to be arrested and kept in jail for undergoing the sentence. If the mother of deceased is not alive, fine to be credited to Govt. 23] Other part of operative order is confirmed. [T.V.NALAWADE,J.] umg/cria391-98 16 cria391-98