1 Cri.Appeal No.320 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 320 OF 2010 Balaji s/o Digambar Lutte, Age : 31 years, Occu.Agril., R/o Hokarna, Tq. Mukhed, Dist. Nanded ..APPELLANT (Ori. Accused) VERSUS The State of Maharashtra ..RESPONDENT Mr A.M. Gaikwad, Advocate for the appellant ; Mr K.G. Patil, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 23rd February, 2011 ORAL JUDGMENT (PER P. V. HARDAS, J.) The appellant, 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.10,000/-, in default of which to undergo further R.I. for three months, by the Ad hoc Additional Sessions 2 Cri.Appeal No.320 of 2010 Judge, Kandhar (link Court at Mukhed), dated 31.7.2010, in Sessions Case No.33 of 2009, 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.10 P.S.I. Govind Boinwad, who was attached to the Mukhed police station, was handed over a copy of the inquest panchnama by Head Constable Shaikh Mukhtar from the Vazirabad police station. The other documents which were submitted by Head Constable Shaikh Mukhtar were the post mortem notes and the provisional post mortem report and other documents. The covering letter with which those documents were sent is at Exh.35. Exhibit 15 is the inquest panchnama which had been drawn in the presence of P.W.2 Malikarjun. On the same day, wife of deceased Mohan came to the police station and lodged a report at Exh.26. On the basis of the report at Exh.26 lodged by P.W.8 Parwatibai, an offence came to be registered vide Crime No.92 of 2009 under section 302 of the Indian Penal Code. Upon registration of the offence, P.W.10 P.S.I. Boinwad proceeded to the scene of the offence and recorded the statements of witnesses. He searched for the accused and the accused came to be arrested on 19.6.2009 under an arrest panchnama at Exh.42. Thereafter the scene of the offence panchnama at Exh.18 came to be drawn in the presence of P.W.4 Malikarjun. 3 Cri.Appeal No.320 of 2010 Statements of witnesses came to be recorded and the Tahsildar, Mukhed was requested to draw the sketch of the scene of the occurrence. Statements of prosecution witnesses under section 164 of the Code of Criminal Procedure also came to be recorded by the Judicial Magistrate First Class, Naigaon. Upon transfer of P.W.10 P.S.I. Boinwad the investigation was entrusted to P.S.I. Akolkar. Further to the completion of investigation a charge-sheet against the appellant came to be filed. 3. The post mortem on the dead body of deceased Mohan came to be conducted by P.W.1 Dr. Bhaure. P.W.1 Dr. Bhaure did not notice any external injury and accordingly reserved his opinion about the cause of death. Viscera of deceased Mohan came to be referred to the Chemical Analyser and upon receipt of the report of the Chemical Analyser, final death certificate at Exh.3 came to be issued. According to P.W.1 Dr. Bhaure the cause of death was due to old healed infarct of left ventricle with atherosclerosis of aorta with cloudy change in kidney. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.5 framed charge against the appellant for offence punishable under section 302 and 506 part II of the Indian Penal Code. The accused denied his guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses. The Trial Court accepted the evidence of the prosecution witnesses and convicted and sentenced the appellant for offence punishable under section 302 of the Indian Penal Code while 4 Cri.Appeal No.320 of 2010 acquitting the appellant of offence punishable under section 506 part II of the Indian Penal Code. The appellant being thus aggrieved by his conviction and sentence has filed the present appeal. 5. In order to effectively deal with the submissions advanced before us by Shri A. M. Gaikwad, learned Counsel for the appellant and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. The prosecution has unfolded its case through the evidence of P.W.1 Dr. Gautam Bhaure. Dr. Bhaure, as stated above, did not notice any external injury and accordingly reserved his opinion while issuing the post mortem report at Exh.11. The viscera of deceased Mohan was referred for chemical examination and after receipt of the report of the C.A., the final death certificate at Exh.13 came to be issued. According to Dr. Bhaure, the cause of death was due to old healed infarct of left ventricle with atherosclerosis of aorta with cloudy change in kidney. P.W. 1 Dr. Bhaure has further opined that if a person having above disease is assaulted with kicks and fist blows, the incident may create a fear in his mind and may trigger the attack. In cross-examination he has admitted as correct that the victim was having one old heart attack. He has also admitted that Arteriosclerosis means, in common parlance, narrowing of the diameter of the veins. It is further stated that as deceased had suffered a heart attack, the possibility of developing the said disease 5 Cri.Appeal No.320 of 2010 cannot be ruled out. Ultimately, P.W.1 Dr. Bhaure in his cross- examination has admitted as follows :- "It is correct that death of Mohan Baliram may be natural death and not homicidal death. It is correct that in case of Mohan Baliram Vijapure I cannot give firm opinion whether it was a natural death or homicidal death. It is correct that as there were no external injuries and no internal injuries and that he being a heart patient and there were development of Arteriosclerosis in his heart there is more possibility of natural death than homicidal death. It is correct that due to development of clots in blood possibility of heart stroke increases." Thus, at the very threshold, the evidence of P.W.1 Dr. Bhaure discloses that death of deceased Mohan was not a homicidal death but was a natural death. If that be the case, obviously the conviction of the appellant is not sustainable for an offence punishable under section 302 of the Indian Penal Code. 6. Prosecution has examined P.W.5 Shankar Algire, P.W.6 Govind Vijapure and P.W.8 Parwatibai as eye-witnesses to the incident. Prosecution has also examined P.W.9 Shivling as an eye-witness but P.W.9 Shivling did not support the prosecution and was declared hostile. The evidence of the three eye-witnesses adverted to above, discloses 6 Cri.Appeal No.320 of 2010 that the accused had taken the deceased along with him, assaulting him on the way to his agricultural field and had pointed out the removal of stones by the deceased from the canal. These witnesses further alleged that the accused then forcibly thrown the deceased on the ground and had also assaulted him by fist and kick blows. Omissions have been elicited in the cross-examination of these witnesses in respect of the minor details regarding the assault. Fact of the matter is that the witnesses have remained unshaken insofar as it relates to the accused taking the deceased along with him. These witnesses have obviously exaggerated that the deceased was assaulted all the way from the village to his agricultural field and thereafter was forcibly thrown on the ground. The exaggeration on their part is obvious if the medical evidence is perused. The medical evidence in no uncertain terms falsifies the evidence of these witnesses in respect of the severity of the assault. It is quite possible, therefore, after separating the grain from chaff of these eye-witnesses, that the accused may have assaulted the deceased by giving him a couple of slaps or fist blows. It cannot be inferred from the evidence of these witnesses nor has the prosecution established that the accused had mercilessly assaulted the deceased with fist and kick blows. Immediately after the incident the deceased became unconscious and, therefore, was taken to the hospital of P.W.3 Dr. Ashok Kaurwar, who advised them to shift the deceased to Nanded. On the deceased being shifted to the Civil Hospital at Nanded, the Medical Officer pronounced him dead. 7 Cri.Appeal No.320 of 2010 7. First and foremost, the prosecution has not been able to prove that the accused, who is a resident of different village, was aware that deceased had sustained a heart attack and knowing that the deceased had sustained a heart attack previously the accused intentionally took the deceased and assaulted him, thereby intending that the deceased may suffer another heart attack. The prosecution has lacked in establishing this fact. Accordingly, as pointed out by us above, the medical evidence completely rules out the possibility of death of Mohan being on account of the injuries inflicted by the accused. Death of Mohan appears to be more of a natural death than a homicidal death. P.W.1 Dr. Gautam Bhaure has stated so in no uncertain terms. 8. It would, therefore, appear that the conviction of the appellant/accused for offence punishable under section 302 of the Indian Penal Code is wholly unsustainable. Learned Counsel for the appellant has placed reliance on the judgment of the Division Bench of this Court in Waman vs. State, 1976 Mh.L.J. Note 76. The Division Bench in similar set of facts altered the conviction of the appellant before it from section 304 part II to section 323 of the Indian Penal Code as the appellant therein was not aware that the deceased was suffering from ulcer of intestines and, therefore, could not be attributed either the knowledge or the intention about the death of the victim on account of the assault. In the present case, as pointed out by us above, the prosecution has 8 Cri.Appeal No.320 of 2010 miserably failed in establishing that the accused was aware about the heart ailment of deceased Mohan and knowing about the heart ailment had deliberately assaulted the deceased with an intention that the deceased should succumb to the old heart ailment. The accused would at the most be guilty of the offence punishable under section 323 of the Indian Penal Code. 9. We accordingly partly allow this appeal and quash and set aside the conviction of the appellant for an offence punishable under section 302 of the Indian Penal Code and acquit the appellant of the aforesaid offence. The conviction of the appellant, however, is altered from section 302 to section 323 of the Indian Penal Code. The appellant/accused is said to be in jail from 19.6.2009 till today and has virtually undergone more than twenty months of imprisonment. According to us, the aforesaid sentence would be adequate for an offence punishable under section 323 of the Indian Penal Code and the appellant, therefore, would be entitled to be released on the imprisonment already undergone by him. The sentence of fine, however, remains unaltered. Accordingly, this Criminal Appeal is partly allowed and the conviction of the appellant for offence punishable under section 302 of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offence with which he was convicted. The conviction of the appellant, however, is altered from section 302 to section 323 of the 9 Cri.Appeal No.320 of 2010 Indian Penal Code and is sentenced to a term of imprisonment already undergone by him. The sentence of fine imposed by the Trial Court remains unaltered. Since the appellant is in jail, he be released forthwith if not wanted in any other case. Criminal Appeal is partly allowed as indicated above. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria320.10