1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE CIMINAL APPEAL NO. 497 OF 1999 Hanmant Pandurang Lohar .. Appellant versus The State of Maharashtra .. Respondent ... Mr.Abhay Kumar Apte for the appellant. Mr.A.S. Shitole, APP for the state. CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & D.G. KARNIK, JJ D.G. KARNIK, JJ D.G. KARNIK, JJ DATED : 9th March 2006. DATED : 9th March 2006. DATED : 9th March 2006. ORAL JUDGEMENT :(Per Smt.Ranjana Desai,J) ORAL JUDGEMENT :(Per Smt.Ranjana Desai,J) ORAL JUDGEMENT :(Per Smt.Ranjana Desai,J) 1. The appellant (hereinafter referred as "the accused") was tried in the Court of Sessions at Satara in Sessions Case no.240 of 1998 for offence punishable 2 under section 302 of the IPC. By judgement and order dated 29th July 1999, the learned Sessions Judge found the accused guilty u/s.302 of the IPC. He sentenced him to suffer imprisonment for life and to pay a fine of Rs.500/- in default of payment of fine to undergo RI for three months. The said judgement and order is impugned in this appeal. 2. The prosecution case may be shortly stated: . The accused and deceased Siddhanath used to work as masons with one Hambirrao Bijargi. About two months prior to the incident in question, there was a quarrel between the accused and the deceased. On 25th May 1998 at about 12.00 a.m, the deceased went to the house of his friend Shaikh Mohammed. PW 5 Ambubai wife of Shaikh Mohammed was present in the house. She told the deceased that her husband had gone out. The deceased sat near the house of Shaikh. At that time, the mother of the accused came there. She started quarrelling with the deceased. She asked him why he had quarrelled with the accused. The deceased told her that the past should be buried. At that time suddenly, the accused came there and inflicted axe blow over the 3 head of the deceased. The blow was given by the blunt side of the blade. The deceased became unconscious. The accused left the spot of incident. Ambubai - PW 5 and her sister-in-law put the deceased in an auto-rickshaw and brought him to his house at Bhivdi. She narrated the incident to the wife of the deceased, PW 1 Jagdevi. Jagdevi took the deceased to the Civil hospital, Satara. At the hospital, Dr.Arun Patil - PW 3 treated the deceased. The deceased was then shifted to ICU. The police arrived on the scene. First Information Report of PW 1 Jagdevi was recorded. It is at Exhibit-22. Initially, the police recorded an offence under section 307 of the IPC. 3. On 26th May 1998, the deceased succumbed to the head injury. On the same day, the accused was arrested. The offence was converted into one under section 302 of the IPC. At the instance of the accused, weapon of offence axe (Article-A) was recovered from the house of the accused. It was seized under panchanama (Exhibit-24). After the completion of the investigation, the accused came to be charged for offence punishable u/s.302 of the IPC. 4. At the trial, the prosecution examined PW 1 4 Jagdevi - wife of the deceased, PW 5 - Ambubai, PW 3 Dr.Patil who had treated the deceased at Krishna hospital Karad and PW 4 Dr.Subhash Patil who did post-mortem on the deceased. The details of investigation were given by PW 6 Vishram Surve, Police Inspector attached to Satara City Police station. 5. The accused denied the prosecution case. He claimed to be innocent. After perusing the evidence on record, learned Sessions Judge convicted the accused as aforesaid and hence this appeal. 6. We have heard at some length. Mr.Apte, learned counsel appearing for the accused and Mr.Shitole the learned AGP. With the assistance of the learned counsel, we have gone through the record. 7. Mr.Apte, learned counsel for the accused contended that the prosecution has failed to prove its case beyond shadow of doubt. He submitted that evidence of PW 1 Jagdevi does not take the prosecution case any further because she has not seen the incident in question. Learned counsel urged that even evidence of PW 5 Ambubai does not inspire confidence. Learned counsel urged that in any event admittedly, the accused 5 had used the blunt side of the axe while giving blow on the deceased. The post-mortem notes indicate that the deceased had suffered a single injury. The learned counsel submitted that therefore, intention to cause death cannot be attributed to the accused. He therefore, submitted that at the most, it can be said that the prosecution has made out a case under section 304 Part II of the IPC and hence, this Court may bring down the conviction to one under section 304 Part II of the IPC. 8. The learned AGP on the other hand, submitted that no interference is necessary with the impugned judgement and order. He submitted that the eye witness PW 5 Ambubai is a reliable witness. She has stood firm in the cross examination. Learned AGP urged that looking to the nature of the injury, it appears that the blow was given with a force. A deadly weapon like axe was used and therefore, intention to cause death must be attributed to the accused. He submitted that in the circumstances this Court should maintain the conviction under section 302 of the IPC. 9. In our opinion, the prosecution case that it is the accused who dealt the fatal blow to the accused, 6 is established beyond doubt. PW 1 Jagdevi wife of the deceased has stated that two months prior to the date of incident, there was a quarrel between her husband and the accused. She has further stated that on the date of incident at about 11.30 a.m, her husband went to village Khavali to the house of Shaikh Mohammed. At about 1.30 p.m. two ladies i.e. PW 5 Ambubai, wife of Shaikh Mohd. and her sister-in-law brought her husband in a rickshaw to her house. Her husband had received an injury over his head. Jagdevi has stated that the ladies informed her that the accused had inflicted axe blows on the deceased. Nothing has been elicited in the cross-examination of this witness which can lead us to conclude that this witness is not a reliable witness. Besides being the wife of the deceased, she has no reason to state falsehood on oath as she would be interested in booking the real culprits. 10. The case of the prosecution basically rests on PW 5 Ambubai who corroborates PW 1 Jagdevi. PW 5 Ambubai has stated that she knew the deceased. Her husband is a mason. The accused as well as the deceased are masons and she and her husband were acquainted with the accused and the deceased because they used to work as labourers with the same 7 contractor. She has further stated that on the day in question she was present in the house. The deceased came to her house and enquired about her husband. Her husband had gone for work at the milk dairy. The deceased sat outside his house. At that time, the mother of the accused came there. She abused the deceased and asked why he had quarrelled with the accused. The deceased told her that they should forget the past. That time, the accused came there and inflicted axe blow with the blunt side of axe over the left side of the head of the deceased. The deceased became unconscious. Thereafter, she and her sister-in-law took the deceased to his house at Bhivdi. At Bhivdi, she narrated the incident to PW 1 Jagdevi and Jagdevi took the deceased from the same rickshaw to Satara. 11. In the cross-examination of this witness, she has stood firm. To us, this witness appears to be a very reliable witness. Since the accused, the deceased and husband of this witness were working as masons with the same contractor, it is obvious that they knew each other very well. The testimony of PW 5 Ambubai is consistent with the testimony of PW 1 Jagdevi to the extent that prior to the incident in question, there 8 was a quarrel between the accused and the deceased. Her case that the deceased came to her house and the accused also came there after some time and dealt the fatal blow on the deceased, has remained intact even in her cross-examination. The fact that she took the deceased to his house and from there, the deceased was taken to the hospital is also consistent with the evidence of Jagdevi. In our opinion, the evidence of PW 5 Ambubai establishes the prosecution case that the accused is responsible for the death of the deceased. 12. PW 1 Jagdevi has stated in her evidence that she took her husband to Civil Hospital Satara and as per the directions of Civil hospital, Satara she took her husband to Krishna Charitable Hospital, Karad. PW 3 Mr.Arun Patil has confirmed that the deceased was brought to Krishna hospital and was treated by him in ICU. PW 4 Dr.Subhash Patil has done post-mortem on the deceased. He has proved the post-mortem notes which are at Exhibit-27. Dr.Patil has stated that on post mortem examination, he found that cause of death of the deceased was head injury fracture of frontal parietal bone with intracranial haemorrhage and that the said injury was sufficient to cause death in ordinary course of nature. According to Dr.Patil the injury was 9 possible due to blunt side of axe blade which was shown to him in the court. In our opinion, the medical evidence is consistent with the ocular evidence. 13. It is also pertinent to know that the axe in question was recovered at the instance of the accused and in that connection, prosecution has examined PW 2 Ankush Shelar who is the pancha to the panchnama in connection with the recovery of axe at the instance of the accused. The pancha has supported the prosecution case. When this axe was shown to PW 5 Ambubai she has identified it as the same axe which was used by the accused. Both the doctors have stated that the injury in question could be caused by the same axe which was shown to them. We have no hesitation therefore in recording that the prosecution has proved that it is the accused who gave the fatal blow to the deceased with the axe. 14. The question now is what offence is committed by the accused. It is the case of the prosecution that the accused had used the blunt side of the axe blade. If he had the intention to kill the deceased, he would not have used the blunt side. It appears that the 10 accused was enraged because there was a quarrel between the deceased and his mother. He had gone to the scene of offence when the quarrel was going on. It is because of this quarrel, in a fit of anger, the accused seems to have given the blow on the head of the deceased with blunt side of the axe blade. It is true that the blow was given on a vital part. But if the accused wanted to kill the deceased, he would not have used the blunt side of the axe blade. It is pertinent to note that it is not the prosecution case that there was blood on the axe blade. The deceased suffered only one injury. The post-mortem notes show that there was a depressed fracture of small piece of 8 cm x 3 cm. bone and three sutures were present. Therefore, even if the blow was given with force on the vital part of the body, in our opinion, intention to cause death cannot be attributed to the accused. The offence would, therefore, be one under section 304 Part II of the Indian Penal Code. 15. In our opinion, reliance placed by the trial court on Mohinder Singh and another Vs. State of Delhi, AIR 1975 SC 1506 is totally misplaced. That case will have to be distinguished from the facts of the present case. It is true that in that case accused 11 Umedsingh had hit the deceased with the back of an axe as a result of which skull of the deceased cracked. But it was also established that Umedsingh had also hit the deceased with a brick. In the present case, the accused had given a single blow to the deceased and in the facts of the case, we are unable to come to a conclusion that he had intention to kill the deceased. We are, therefore, of the opinion that the conviction of the accused under section 302 of the Indian Penal Code must be set aside and he should be convicted under section 304 Part II of the Indian Penal Code. Hence, the following order : O R D E R Conviction of accused Hanmant Pandurang Lohar under section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him for the same under the impugned judgment and order dated 29/7/1999 passed by the Vth Addl. Sessions Judge, Satara in Sessions Case No.240 of 1998 are quashed and set aside. 12 Instead accused Hemant Pandurang Lohar is convicted for offence under section 304 Part II of the Indian Penal Code and sentenced to suffer R.I. for eight years and to pay a fine of Rs.500/- in default of payment of fine, to suffer R.I. for three months. Needless to say that the accused will be given set off for the period of imprisonment which he has already undergone. 16. Appeal is disposed of with the above modification of the impugned judgment and order. (SMT.RANJANA DESAI, J) (D.G. KARNIK, J)