1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.394 OF 2008. Kamal S/o Kasim Shaikh, Age 31 years, Occ.Labourer, R/o Kotha in land of Gokul Shinde, Sindphal Shiwar, Shindphal, Tq. Tuljapur, Dist. Osmanabad. ... Appellant. Versus 1. The State of Maharashtra 2. Bimrao Rama Ghatshile, Age 40 years, Occ.Labourer, R/o Shindphal, Tq. Tuljaur, Dist. Osmanabad. ... Respondents. ... Mr.G.G.Suyawanshi, advocate (appointed) for the appellant. Mr.K.S.Patil, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 16.10.2009. ORAL JUDGMENT 1. This appeal is directed against 2 judgment of conviction and sentence rendered by learned Adhoc Additional Sessions Judge,Osmanabad, in Sessions Case No.49/2007, whereby and whereunder the above named appellant is convicted for offences punishable U/ss 326 and 304-II of the I.P.Code and is sentenced to suffer rigorous imprisonment for seven (7) years and fine of Rs.1,000/-(Rupees one thousand), in default to suffer further rigorous imprisonment for two (2) months and rigorous imprisonment for ten (10) years respectively, with direction that both the substantive sentences shall run concurrently. 2. The prosecution case, briefly stated, is that deceased Baban @ Babruwahan, PW Bhima, Khatunbi - mother of the appellant etc. used to stay in the shed (Kotha) situated in agricultural land of their master by name Gokul Shinde. There was an orchard of betel leaves (Panmala) in the land. The appellant was avoiding to work in the land. His mother used to scold him. On 13.9.2006, the appellant picked up quarrel with his mother. He started beating her by means of a 3 stick. While she was screaming, injured PW Bhima, who is another agricultural servant and was residing in the same Kotha (cattle shed) got up and rushed towards the place where the beating was being mounted to Khatunbi. It was about dawn time and in the semi dark - semi light of the day, injured PW Bhima noticed that the appellant was beating his mother. So, he tried to intervene and separate the appellant. The appellant dealt a blow of stick on his person. He, therefore, cried out for help. Soon thereafter, another agricultural servant i.e. deceased Baban @ Babruwahan rushed for his help. The appellant had gone berserk. He dealt violent blow of the stick on forehead of Baban @ Babruwahan while the latter was trying to separate him. Injured Babruwahan @ Baban fell down and became unconscious. The land owner was called. The appellant had fled away after throwing away the stick at the place, when he noticed that Baban @ Babruwahan had fallen in injured condition. The land owner, by name Gokul Shinde, arranged for shifting of injured Baban @ Babruwahan and other injured persons including PW 4 Bhima and Katunbi to Rural Hospital at Tuljapur. The injured persons were clinically examined in the same morning. Since injured Baban @ Babruwahan was unconscious and apparently had received severe injury, he was referred to the Civil Hospital, Solapur. He was admitted in the said Hospital in the same noon. He was treated for the injuries sustained by him. On 20th September 2006, Baban @ Babruwahan died as a result of the fatal injuries sustained by him. On the basis of Police statement of injured PW Bhima, Crime No.158/2006 was registered by the PSO, Tuljapur Police Station. On the basis of material gathered during course of investigation, the appellant was charge-sheeted for the offences punishable U/ss 366 and 302 of the I.P.Code. 3. The appellant pleaded not guilty to the charge. It was suggested by the defence that PW Bhima, deceased Baban @ Babruwahan, Khatunbi etc. were beaten up by some unknown thieves in the wee hours. Alternatively, it was pleaded that the appellant was behaving like an insane person and could be under the spell of insanity at the 5 relevant time. 4. The prosecution examined in all fifteen (15) witnesses in support of its case. The prosecution also adduced some documentary evidence. On appreciation of such evidence, the learned Sessions Judge came to the conclusion that the appellant voluntarily caused grievous hurt to PW Bhima by means of dangerous weapon i.e. stick. The learned Sessions Judge also held that Baban @ Babruwahan died as a result of assault mounted by the appellant on his head with a stick. The learned Sessions Judge held that the appellant is author of the death of Baban but there was no intention to cause his death although knowledge that the death may be caused could be attributed to him. In keeping with such findings, the appellant was convicted and sentenced as described hereinabove. 5. Heard learned counsel and learned A.P.P. With their assistance, I have gone through the recorded evidence and the documents. 6 6. There is no dispute about the fact that PW 1 Bhima, injured Khatunbi, the appellant, deceased Babruwahan @ Baban and his family members etc. were residing in the shed situated in the agricultural land of their master i.e. Gokul Shinde. They were attending the Panmala. There is also no dispute about the fact that the appellant had no enmity, whatsoever, with the deceased. The incident took place in the early morning of 13th September 2006, in the proximity of the cattle shed (kotha) situated in the agricultural land of said Gokul Shinde. The genesis of the incident is rather important. It is the case of the prosecution that the appellant was beating his mother - Khatunbi at about dawn time. She was shouting for help and, therefore, PW Bhima rushed to the place. According to the defence version, some unknown thieves have beaten up PW Bhima @ Babruwan and Khatunbi. If this is the line of defence, there was no reason why the appellant did not examine his mother i.e. Khatunbi in support of such defence. However, it was apparently inconvenient for him to examine her. For, she had narrated different story 7 during the course of investigation. 7. Coming to the version of PW 1 Bhima, it may be gathered that he was sleeping in the Kotha in the relevant early morning. He deposed that due to hue and cry, he had woken up. He tried to rescue Khatunbi. He categorically states that the appellant dealt stick blows on his left hand and left eye brow. His version purports to show that deceased Babruwahan @ Baban rushed to rescue him but the appellant gave a stick blow on the head of Baban @ Babruwahan. He states that Babruwahan @ Baban fell down in unconscious condition after the stick blow was given on his head. His version purports to show that Gokul Shinde was called to the agricultural land and thereafter all the three (3) injured were taken to the Rural Hospital, Tuljapur and from there they were shifted to the Civil Hospital at Solapur. He was discharged from the Hospital after about a week, whereas Babruwahan @ Baban died. He corroborated the recitals of FIR (Exh. 12). His version reveals that he is related to the land owner i.e. Gokul Shinde. He admits that 8 said Gokul Shinde is leader of Congress Party. He denied the suggestion that deceased Babruwahan @ Baban, Khatunbi and himself were beaten up by thieves. He admits that the appellant was not working in the agricultural land at the relevant time. He also admits that the appellant was beaten up by some boys at Tuljapur. He also admits that the appellant had started to behave in insane manner thereafter. There is absolutely no evidence on record to show that the appellant was, in fact, suffering from insanity. The stray admission of PW Bhima is totally insufficient to reach conclusion that the appellant acted under lucid intervals of insanity. Moreover, such stray admission does not show as to when the incident of beating received by the appellant had occurred at Tuljapur and what was his so-called odd behaviour, like an insane person. One can not be oblivious of the fact that PW Bhima is an independent and injured witness. There is no substantial material gathered during course of his cross-examination so as to dislodge his testimony. It is well settled that testimony of an injured witness stands on some higher footings 9 than that of an ordinary witness. For, such a witness is victim of the incident. He is unlikely to allow the real culprit to go scot free. Needless to say, unless there is sufficient substratum available to dislodge version of PW Bhima, it would not be proper to discredit him. 8. There is also eye witness account tendered by PW 5 Sampat and PW 6 Sonali, who are wife and daughter of deceased Babruwahan @ Baban. Counsel would submit that presence of these two women is doubtful. He pointed out that these witnesses have stated that they were called by injured Babruwahan @ Baban for help but there is no whisper in the statement of PW Bhima in the context of such call given by deceased Babruwahan @ Baban. Counsel would further submit that there is no medical evidence to show that PW Sampat and PW Sonali were victim of assault though they claimed to be so and as such, their versions may not be relied upon. 9. Both the above witnesses categorically 10 stated that they immediately went to the spot where the appellant was beating injured Babruwahan @ Baban . They heard hue and cry of mother of the appellant. They also noticed that she was being beaten up by the appellant with a stick. It is pertinent to notice that both these witnesses, injured Babruwahan @ Baban and PW Bhima were sleeping in the same cattle shed (Kotha) in the relevant early morning. It is obvious that their presence was natural. It is difficult to discard their versions only because they are the close relatives of deceased Babruwahan @ Baban. They are the natural witnesses, who had the opportunity to see the incident from proximity of the place. They admitted, unequivocally, that there was no dispute between themselves and the appellant. Their version appears to be candid and straight forward. Both are the rustic poor and illiterate women. It has come on the record that the appellant fled away after throwing the stick at the place when he noticed that injured Babruwahan @ Baban had fallen down and had become unconscious. This conduct of the appellant also 11 would indicate that he was former himself. He was cognizant of the things which were going on. He was attentive to make good his escape when injured Babruwan had fallen down. Thus, his immediate conduct reveals that he was not under spell of insanity as such. As stated earlier, there is no medical evidence or any scintilla of evidence to infer that the appellant was, in fact, suffering from insanity. Mere odd behaviour of a person can not be regarded as sufficient proof of legal insanity which is contemplated as a defence in view of Section 84 of the I.P.Code. 10. The version of PW Dr.Pratibha lends due corroboration to the prosecution story. On clinical examination of PW Bhima, in the same morning, PW Dr. Pratibha noticed two injuries on his person. They were as follows : "(i) Black eye completely with oedema over both eyelids on left eye. (ii) Contusion red colour of size 3 x 2 12 c.m. on right hand anteriorly." Both the above injuries were caused by some hard and blunt object within twenty four (24) hours. These injuries correspond with the account given by PW Bhima in respect of the manner of the assault. The version of PW Dr.Pratibha also reveals that she noticed a contused lacerated wound with oozing blood of size 3 x 1 x 0.5 c.m. on parietal region of injured Babruwahan. She issued Medico Legal Certificate (Exh.16). The observations in the remark column of the Medico Legal Certificate would show that Babruwahan was unconscious and there was bleeding from his mouth and, therefore, he was referred to higher centre for further treatment as his condition was serious. This remark indicates as to how violent blow was dealt on the head of said Babruwahan. 11. The post-mortem examination was carried out by PW Dr. Niraj. He corroborated the postmortem notes (Exh.19). It is significant to notice that PW Niraj found eight (8) injuries on 13 person of deceased Babruwan. However, there were at least five (5) abrasions and two stitched wounds. Considering the location of the stitched wound and the lacerated wound referred by him, it can be gathered that injured Babruwahan had received a single violent blow of the stick and had fallen down. The abrasions could have been caused as a result of his falling on the ground. The defnece story that some unknown thieves had beaten up the injured person is without any kind of corroboration and foundation. 12. It is pointed out that the panch witnesses did not support the case of the prosecution regarding recovery of the stick and they were declared hostile. It is true that the panchas viz; PW 8 Netaji, PW 9 Samrat and PW 10 Gorakh were declared hostile. However, the hostility of such panchas would not adversely affect the otherwise proved case. It is not necessary to consider the remaining evidence which comprises of the versions of the I.O., PW 15 Juber etc. It suffices to say that the eye witness account and the medical evidence would 14 sufficiently establish that the appellant voluntarily caused grievous hurt to injured PW Bhima and also caused death of Babruwahan @ Baban. In the absence of enmity between the appellant and deceased Babruwahan and having regard to the fact that the latter had attempted to intervene while the appellant was assaulting Khatunbi and PW Bhima, the conviction for offence U/s 304-II of the I.P. Code is legal and proper. There is nothing redeeming about the appellant. No substantial ground is shown to take any lenient view as such. 13. In the result, the appeal is dismissed. The impugned judgment of conviction and sentence is confirmed. (V.R.KINGAONKAR,J.) asp/office/Crappeal39408