1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No.1591/2008 In Criminal Appeal No. 206/2008 [Laxman Bapurao Ghaiwane .vrs. The State of Maharashtra] ............................................................................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... Mr. A.S. Manohar, Advocate for the appellant, Mr. J.B. Jaiswal, APP for the respondent/State. .......... CORAM : K.J. ROHEE AND B.P. DHARMADHIKARI, JJ DATED : AUGUST 7, 2008 1. Heard the learned counsel for the appellant and the learned APP for the respondent/State. 2. It is alleged that on 9.6.2006 around 10.15 PM accused no.2 Dinesh quarreled with PW 10 Ashwin (son of deceased Premdas). On learning about this, deceased Premdas rushed to the house of the accused persons. Outside as well as inside the house of the appellant there was quarrel and it is alleged that the appellant Laxman (accused 2 No.1) assaulted Premdas with Gupti which resulted in the death of Premdas on the spot. The appellant, his wife, his three sons and two daughters-in-law were prosecuted. The appellant came to be convicted for the offences punishable under Sections 147, 302 r/w 149 of the Indian Penal Code, whereas rest of the accused came to be convicted for the offences punishable under Sections 147, 323 r/w 149 of the Indian Penal Code. 3. The learned counsel for the appellant submitted that even according to the prosecution the incident took place inside the house of the appellant which suggests that the deceased himself was the aggressor. The trial Court has, however, not considered the probability of exercise of the right of private defence by the appellant. Secondly the statements of the alleged eyewitnesses namely PW 10 Ashwin (son of the deceased), PW 4 Ashish (son-in-law of deceased) and PW 7, 8 and 9 other eyewitnesses were not recorded promptly by the investigating officer. Thirdly the investigation was not carried out impartially. Fourthly it was urged that accused no.2 Dinesh had an injury near his eye. 3 However no investigation was made in that respect and the genesis of injury is not explained by the prosecution. Accused no.7 Avantika was also injured but no investigation was conducted in that respect. He further submitted that the circumstance of the alleged discovery of Gupti by the appellant from his house cannot be believed inasmuch as one of the panchas on the alleged panchanama is a known thief in the police record. He lastly submitted that even otherwise the offence alleged to have been made out is not culpable homicide amounting to murder punishable under Section 302 of the Indian Penal code, but would be an offence punishable under Section 304-II of the Indian Penal Code. 4. We have perused the judgment of the trial court in the light of the above submissions. However, we find that there is prima facie sufficient evidence in support of the conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code. The right of private defence is not specifically raised by the appellant though some suggestions in that respect might have been given to the witnesses during cross examination. As regards injury to 4 accused no.2 Dinesh is concerned, it appears that it is not so serious that the non-explanation thereof would render the prosecution version false. The ground regarding delay in recording statements of the prosecution witnesses during investigation can be considered at the time of hearing of the appeal. Thus, we find that no case is made out for bail. The application is, therefore, rejected. 5. The learned counsel for the appellant seeks permission to file private paper book. He is permitted to do so. JUDGE JUDGE Gulande