1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.64 OF 2001. Khada S/o Lalsing Pawara, Aged 40 years, Occ.Labour, R/o Sadri Tq. Dhadgaon, Dist. Nandurbar. ... Appellant. Versus The State of Maharashtra ... Respondent. ... Mr.A.B.Kale, advocate holding for Mr.D.M.Pingale, advocate for the appellant. Mrs.A.V.Gondhalekar, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 14.10.2009. ORAL JUDGMENT 1. Challenge in this case is to judgment rendered by learned Additional Sessions Judge, Shahada, in Sessions Case No.200/1998, whereby and whereunder the appellant has been convicted for offence punishable U/s 304-II of the I.P.Code 2 and sentenced to suffer rigorous imprisonment for five (5) years and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer rigorous imprisonment for three (3) months. 2. Briefly stated, the prosecution case is that appellant Khada @ Kala and deceased Pisa belong to Pawara community of tribals. In the year 1991 there took place dispute between them on account of celebration of "Holi" festival in their native village i.e. Sadri (Tq.Dhadgaon). It was urged by deceased Pisa that the festival of "Holi" shall not be celebrated, whereas the appellant advocated that it shall be celebrated. The incident took place some days prior to the scheduled date of "Holi" festival. On 26.2.1991, at about 3-00 p.m. deceased Pisa was proceeding from near hut of the appellant. The earlier annoyance of the appellant sprang up in his mind. He picked up a stone from nearby place and assaulted Pisa by it. As the stone hit temporoparietal region of Pisa, he sustained bleeding head injury. His wife (PW Pinjaribai) took him to Dhadgaon Police Station in injured 3 condition. She lodged FIR (Exh.19). Thereafter injured Pisa was shifted to Civil Hospital, Dhule. While he was under medical treatment, on 9.3.1991, Pisa succumbed to the head injury due to intracranial haemorrhage. On the basis of the material gathered during course of investigation, the appellant was charge-sheeted for offence U/s 302 of the I.P.Code. 3. The learned Sessions Judge came to the conclusion that the appellant had no intention to kill deceased Pisa. The learned Sessions Judge found that authorship of the head injury could be attributed to the appellant. It has been held that the appellant could have knowledge that death of Pisa might be the result of his alleged act of assault. In keeping with such findings, the appellant has been convicted and sentenced as stated hereinabove. 4. Heard learned counsel and learned A.P.P. 5. There is no dispute about the fact that 4 Pisa received head injury in the relevant noon. The defence of the appellant was that the injury was caused due to accidental fall of Pisa on the stony ground. The post-mortem notes (Exh.32) are duly corroborated by PW 8 Dr.Anil. The post- mortem notes would show that deceased Pisa was aged about 45 years. He was thin built. There was an abrasion over his right forehead and a sutured wound on right temporal region. The Medical Officer recorded his findings as regards internal examination of the dead body in column Nos.19 and 21 of the postmortem notes. In the opinion of PW Dr.Anil, the death was result of the severe head injury with intraventricular haemorrhage over right side. There is sufficient evidence on record to infer that the head injury caused internal bleeding and, therefore, death of Pisa did occur. As per version of PW Dr.Anil that the injuries could be caused due to hitting of a stone even from distance of 10/15 fts. His version further reveals that the injuries shown in the postmortem notes can not occur if a person would fall down in ditch from 5/10 fts. height. He admits that if a person is weak then it is not 5 possible for him to throw the stone (Article No. 3) from distance of about 10/15 ft. Thus, it has been brought on record through cross-examination of PW Dr.Anil that the stone (Article No.3) is quite heavy. 6. The spot panchanama (Exh.17) is duly corroborated by PW 1 Rangarya. His version purports to show that the Police recovered sample of blood stained earth and the blood stained stone in his presence. He is a rustic witness. Nothing of significance could be gathered from his cross-examination. The recitals of spot panchanama (Exh.17) would show that a scratch of blood mixed earth and a scratch of simple earth was collected besides one odd shaped blood stained stone,from the spot. The panchas noticed stains of blood at the spot. The spot is situated in the agricultural land of appellant - Kala @ Khada. The presence of the blood stains at that spot go to confirm the fact that the incident did occur, in all probability, at the same place. 6 7. There are two eye witnesses to the incident. They are PW 2 Pinjaribai and PW 3 Lehrya. They are the wife and son of deceased Pisa. It is pertinent to notice that both these witnesses are poor, rustic and tribals. Their versions could not be recorded verbatim as because both of them gave evidence in "Pawari" language. The Sessions Court was required to appoint an interpreter to obtain transcription of the versions of both these witnesses. Obviously, there is likelihood of a word here and there during the process of translation through the interpreter. It is well settled that while appreciating testimony of a rustic tribal woman, certain concession is required to be given due to absence of proper gumption of facts by such a witness. 8. The testimony of PW Pinjaribai purports to show that earlier there was dispute between deceased Pisa and the appellant on account of the issue regarding celebration of "Holi" festival. It is of common knowledge that festival of "Holi" is vigorously celebrated by the members of tribal 7 community. It is but natural that opposition by deceased Pisa was taken as an act of affront by the appellant when he was seeking to continue the traditional celebration of the festival. The testimony of PW Pinjaribai purports to show that in the relevant noon, the appellant picked up a stone and pelted it on person of her husband (Pisa). He was, therefore, injured. She deposed that she was around 15 fts. away from deceased Pisa and was crying "do not beat" "do not beat" (...................). She deposed that on hearing her cry, PW Lehrya rushed to that place and then the appellant fled away. Her version shows as to how injured Pisa was shifted from spot of the incident to the Primary Health Center at Dhadgaon and therefrom to the Civil Hospital. Her testimony corroborates the recitals of FIR (Exh.19). She identified the blood stained shirt (Article No.4) of deceased Pisa. She admits that the Police Patil reduced her narration into writing after she gave account of the incident to him. She admits that the Police Patil accompanied her to the Police Station. Her version reveals that the stone was thrown by the appellant from a 8 distance of about 15 fts. 9. Apparently, the oral account stated by PW Pinjaribai is discrepant with recitals of the FIR (Exh.19) as regards the manner of assault. The FIR (Exh.19) shows that the stone was hit by hand. As against this, oral evidence of PW Pinjaribai shows that it was thrown from distance of about 15 fts. Ordinarily, this kind of discrepancy could be regarded as significant so as to entertain doubt about credibility of the witness. However, one can not be oblivious of the fact that the narration of PW Pinjaribai is through middle agency of Police Patil when she lodged the FIR. So also, when her testimony was recorded in the Court, the narration was through the interpreter. It is highly probable that initially she was unable to give proper account of the incident due to her being required to attend the injured husband. It has been brought on surface of the record that in her supplementary Police statement, she narrated before the Police that the appellant had pelted stone on person of her husband while they were 9 proceeding towards his house. She admits that the appellant ran away from the place and immediately thereafter PW Lehrya reached there. She admits that some stones were lying at the place where her husband had fallen down on the ground. It was suggested to her that her husband had fallen down in the valley and was, therefore, injured. This kind of defence is without any foundation. 10. Having regard to the testimony of PW Pinjaribai, it is explicit that she and her husband were proceeding from near the house of the appellant during the relevant noon. There may not be any one else in the proximity of the place of the incident at the relevant time. Though PW 2 Lehrya may not have witnessed the incident of throwing of the stone by the appellant on person of his father, yet, his testimony can be accepted to the extent of immediate conduct of PW Pinjaribai. His version reveals that he was grazing cattle in the proximity of the place of incident. He claims that he heard cry of his mother such as "do not beat", "do not beat". Thus, he heard while PW 10 Pinjaribai was making fervent appeal to the appellant to not beat her husband. Immediately, thereafter he rushed to the place and noticed that his father had received bleeding head injury. He narrated as to how the deceased was shifted to the Primary Health Center and to the Civil Hospital. It is suggested to him, during the cross-examination, as follows : "It is not true to say that there was scuffle in between my father and accused, and in that scuffle accused assaulted my father by holding stone in his hand." The above suggestion put up by the defence would show that authorship of the assault was not being disputed though the manner of the assault was controverted. 11. The testimony of PW 4 Zinga, who was Police Patil of the village purports to show that injured Pisa was shifted to the Hospital at Dhadgaon and therefrom to the Civil Hospital at 11 Dhule. He got admitted injured Pisa in the Hospital. He deposed that PW Lehrya informed him that Pisa was assaulted by the appellant and was, therefore, injured. Needless to say, immediately the appellant was named as author of the head injury caused to deceased Pisa. 12. It is pertinent to notice that PW Gelsing corroborates the fact that deceased Pisa urged that the festival of "Holi" should not be celebrated for that year because there had taken place mishap at the house of village Patil. The prosecution has also adduced evidence of PW Narayan Hirave, Police Inspector, who conducted investigation. His version purports to show that the blood stained earth, simple earth, clothes of deceased Pisa and the stone were sent to office of the Chemical Analyser at Aurangabad, on 12.2.1991. He received the report of the Chemical Analyser (Exh.30). The report of the Assistant Chemical Analyser would make it amply clear that the sample of earth, the torn shirt of Pisa and the stone recovered from the place of incident were found to bear stains of blood. The 12 blood was of human origin. The sample of earth and the torn shirt of deceased Pisa were found to bear the stains of blood which belonged to group "O". It is obvious that the incident occurred at the same place where from the sample of earth was collected. It is true, however, that the blood group of the blood found on the stone could not be determined and, therefore, the same can not be regarded as the stone with which the assault was mounted. 13. On overall consideration of the evidence tendered by the prosecution, I am of the opinion that even the solitary version of PW Pinjaribai is acceptable and sufficient to establish the fact that the appellant assaulted deceased Pisa by means of a stone. The next question is whether conviction of the appellant for offence U/s 304-II of the I.P.Code is legal and proper. The so-called dispute between the deceased Pisa and the appellant had occurred some days prior to the incident. There was no immediate provocation. The prosecution has not proved any utterances of the appellant to show 13 that he intended to cause death of Pisa. There was a single blow of stone. The stone was pelted from distance of about 15 ft. There is hardly any material on record to show that the appellant could have knowledge that such single blow would prove to be fatal. It can not be overlooked that Pisa died after about eleven (11) days of the incident. It is not clear as to what kind of treatment was given to him. The treatment of neurologist might have been necessary in such a case. If he was not treated by a neurologist, the medical complications could be aggravated and as such he might have died. The resistance of deceased Pisa for celebration of "Holi" festival was on account of mishap which had taken place at the house of village Patil. Obviously, there was no personal animosity between deceased Pisa and the appellant. Under these circumstances, the knowledge that single act of the appellant could have caused death of Pisa, could not be attributed to him. So, it is proved that the appellant voluntarily caused grievous hurt to deceased Pisa by means of a stone which can be regarded as a dangerous weapon or instrument. 14 Hence, the conviction for offence U/s 304-II of the I.P.Code will have to be altered to one U/s 326 of the I.P.Code. 14. Considering the foregoing reasons, the appeal is partly allowed. The conviction of the appellant for offence U/s 304-II of the I.P.Code is set aside, instead he is convicted for offence U/s 326 of the I.P Code. The substantive sentence is reduced and modified. The appellant shall undergo rigorous imprisonment for term of two (2) years and to pay fine of Rs.10,000/- (Rupees ten thousand), in default to suffer rigorous imprisonment for six (6) months. Out of the fine amount if recovered, an amount of Rs. 7,500/- (Rupees seven thousand five hundred) be remitted to PW Pinjaribai, by way of compensation U/s 357(1) of the Cr.P.C. (V.R.KINGAONKAR,J.) asp/office/Crappeal6401