1 cria203-98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.203 OF 1998 1] Sanju S/o Raheman Patel Age 22 years, Resident of Kandari, Tq. Erandol, Dist.Jalgaon. .. APPELLANT [ORIG.ACCUSED] Vs 1] The State of Maharashtra, [Copy to be served upon Public Prosecutor High Court of Bombay Bench at Aurangabad]. .. RESPONDENT ... Shri K.C.Sant, Adv. for appellant. Shri N.H.Borade,APP for R-State. ... CORAM : T.V.NALAWADE,J. DATE : 06/07/2011 ORAL JUDGMENT 1] This appeal is filed against judgment and order of Sessions Case No.141/1997 which was pending in the Court of Sessions 2 cria203-98 Judge, Jalgaon. The Sessions Court has convicted and sentenced the appellant for offence punishable u/s 325 of I.P.C. when he was charged for offence of murder. In short, the facts leading to the institution of the appeal can be stated as follows : 2] The deceased Ajij Patel was elder brother of complainant. Deceased was having a truck an he was in transport business. Shamir Patel was working as a driver for the deceased. The appellant-accused is a brother of the wife of Shamir Patel and his house is situated near the house of Shamir Patel. 3] The incident took place on 14/5/1997. On that day, at about 8.15 a.m. the deceased, complainant and some labour were present in the truck of the deceased and Shamir Patel was present there as the driver. When the truck was started after pushing it for some time, deceased gave word of caution to Shamir and asked him to drive slowly as there were some boys playing on the road. Shamir became angry due to the word of caution given to him and he 3 cria203-98 immediately left the truck. 4] Deceased and complainant followed Shamir to his house and they started requesting Shamir to return to the truck. They were to bring some fertilizer in the truck from Dharangaon. When the talk was going on between deceased and complainant on one side and Shamir on the other, the appellant-accused came there. Accused said that the deceased was unnecessarily harassing Shamir and then all of a sudden, accused gave 2-3 kick blows on the abdomen, belly of the deceased. Due to this assault, Ajij, the deceased collapsed on the ground. He was shifted to his house but he was dead. Complainant gave report against accused on the same day and Crime at C.R. No.66/97 came to be registered in Dharangaon police station for offence of murder. 5] Post mortem examination of the dead body of Ajij was done. Doctor gave opinion that due to kick blows given on the chest, damage was caused to internal organs like stomach, liver, kidney and death has taken place due to injuries to these vital organs. During investigation, police recorded statements of eye witnesses 4 cria203-98 who include Shamir. Accused came to be arrested. After completion of investigation, police filed charge sheet against appellant in the Court of J.M.F.C. Erandol. Case was committed to the Court of Sessions and charge was framed for offence punishable u/s 302 of I.P.C. Accused pleaded not guilty. Prosecution examined 8 witnesses in the trial Court. The trial Court has held that there was no intention of murder but the injury which caused death was caused voluntarily and so, the accused needs to be convicted for offence u/s 325 of I.P.C. He is sentenced to suffer R.I. for 4 years and to pay fine of Rs.5000/-. 6] In the appeal, both sides are heard. Prosecution has relied on direct evidence in the form of evidence of eye witnesses and medical evidence. All the eye witnesses including Shamir have supported the prosecution case. Complainant [p.w.1] has given evidence on the incident right from the dispute which was created in the truck. Complainant has deposed that Shamir was refusing to return to the truck and so talk was going on between Shamir on one side and complainant and his deceased brother on the other. Complainant has deposed that accused came there all of a sudden 5 cria203-98 from his house and by saying that deceased was unnecessarily harassing Shamir, the accused gave 2-3 kicks on the belly of the deceased. Complainant has deposed that Ajij collapsed there only and he died. He has given evidence that this incident was witnessed by Shamir and other persons like Salem Patel, Bhaiya Patel etc. F.I.R. shows that complaint was filed immediately but names of witnesses like Salem and Bhaiya were not mentioned in the F.I.R. 7] Shamir [p.w.4] is the husband of sister of accused and he has corroborated the version of P.W.1 on material points. He has further stated in the evidence that he had told to the accused that there was no quarrel between him and the deceased and it was their internal matter, but inspite of that, accused gave kicks to the deceased. It is suggested to Shamir during his cross examination that he is afraid of complainant and he felt that he would be implicated in the case. Such probability was not there when Shamir gave evidence. Thus, there is no force in this defence taken by the accused. There was virtually no reason for Shamir to give false evidence against the accused who is a close relative of Shamir. 6 cria203-98 8] Salem [p.w.2] and Bhaiya [p.w.3] have given similar evidence. They have stated in evidence that they were present at pan stall situated by the side of house of Shamir and so they could witness the incident. The incident took place on broad day light. The evidence of these 2 witnesses show that they are independent witnesses and there is no reason for them to give false evidence against the accused. Their statements were recorded immediately and their evidence alongwith the evidence of the complainant has corroboration of medical evidence. The tenor of cross examination of Shamir shows that the defence has not disputed that at 8.30 a.m. deceased was present near the house of Shamir. It is suggested that there was quarrel between deceased and Shamir and during quarrel, deceased collapsed. These suggestions are denied. 9] The evidence of Mukhtar [p.w.5] panch witness of inquest panchanama at Exh.23 shows that they did not notice external injury but they noticed one blackish spot over chest almost at the middle point. Such spot is noted in Exh.23 though it is not described as injury. Dr.Girish [p.w.7] conducted post mortem examination on the dead body of Ajij. Doctor has given evidence 7 cria203-98 that he noticed one injury, contusion over Epigastric region of the size of 5” x 3.5” c.m. and it was oblique in direction. The colour is described as red. Not much can be made out due to discrepancy that this colour is mentioned as black in inquest panchanama in view of the aforesaid circumstances. This injury is described as ante-mortem. Doctor has given evidence that there was swelling at testis and there was internal bleeding in lungs, liver, stomach and kidney. Doctor has deposed that the death took place due to cardio-respiratory failure and that happened due to multiple diffuse pulmonary hemorrhage. Doctor has deposed that the damage to the internal organs was caused due to contusion mentioned in column no.17 of post mortem report. Doctor has given evidence that such injury may cause instantaneous death and such injuries can be caused by kicks or fist blows. Doctor has given evidence that the injury is sufficient in ordinary course of nature to cause death. He has deposed that in such cases, Histopathological examination is required to be done and accordingly, the matter was referred to expert. His evidence shows that they took care to see that other probability is ruled out. The post mortem report at Exh.31 is consistent to the evidence of P.W.7. 8 cria203-98 10] Prosecution has examined Dr.Kashinath [p.w.6] who conducted Histopathological examination. He is M.D. and he is head of the department at Government Medical College. He has deposed that he received viscera and complete heart of the deceased. He has deposed that there were multiple diffused pulmonary hemorrhage in lung and it can be caused if beating is given by fist blows or kicks. In the cross examination it is suggested to this doctor that hemorrhage in lung may take place due to disease of kidney, cardio respiratory disease and tumor etc. Doctor has admitted that there is such possibility but he has deposed that the examination of other organs can rule out the other possibilities. Thus, both the doctors have given evidence fairly and there is no reason to disbelieve them. The evidence of the two doctors is sufficient to prove that the injury, contusion found on the chest, epigastric region caused the death of Ajij. Evidence is given by prosecution witness that kicks were given on this part of the body by the accused. The record shows that no other possibility is brought on record by accused in respect of cause of death of Ajij. The complainant, brother of deceased has not admitted that there 9 cria203-98 was any problem to the deceased in relation to aforesaid internal organs. The evidence is sufficient to infer that giving of the kicks by the accused on abdomen of the deceased was his voluntary act. He had no concern with the dispute which was going on and even when the husband of his sister advised him to keep himself out of the dispute, the accused assaulted the deceased. This evidence is certainly sufficient to convict the accused for offence punishable u/s 325 of I.P.C. Thus, trial Court has not committed any error in convicting the accused for this offence. 11] On the point of sentence, hearing was given to the advocate of the appellant. He submitted that at the relevant time, accused was aged about 22 years and he has already faced much agony due to pendency of the case for more than 14 years. It was submitted that the appellant was behind bars for about 4 months and so if the sentence of imprisonment is given of the period undergone, it will be just and proper sentence. A.P.P. has opposed this submission. It is already discussed that the accused unnecessarily intervened in the talk which was going on between the deceased and Shamir. He assaulted Ajij who was of almost double the age, who had crossed 10 cria203-98 50 years of age. There was no serious dispute between Shamir and deceased but inspite of that, assault was made by accused. The family of the deceased has lost the main earning member. In these circumstances, if some leniency needs to be shown to the appellant that can be done only if he is paying more amount which can be used for giving compensation to the widow of deceased. So, only for modifying the judgment and order of the trial Court, appeal is partly allowed. 12] Appeal is partly allowed. Judgment and order of Trial Court is modified as under : [a] The accused stands convicted for offence punishable under section 325 of the Indian Penal Code and he is sentenced to suffer RI for one year and to pay fine of Rs.25,000/- [Rupees twenty five thousand], in default of payment of fine, he is to further undergo RI for one year. [b] The accused has already deposited Rs.5000/-. He is to deposit Rs.20,000/- [Rupees twenty thousand] more. The entire 11 cria203-98 amount is to be given to widow of deceased as compensation, if the amount is deposited. [c] The accused is entitled to get set off in respect of the period for which he was behind bars i.e. 14.5.1997 to 28.8.1997 during trial and from 16.7.1998 to 5.9.1998 after the decision given by the Trial Court. [T.V.NALAWADE,J.] umg/cria203-98