1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.59 OF 1998 Kundan s/o Girdharisinha Pardesi, age 24 years,occupation education, Appellant/ori. r/o Hiralal Chowk, Beed. accused No.1. versus The State of Maharashtra Respondent ------ Shri R.S. Deshmukh, Advocate for the appellant. Shri B.V. Wagh, A.P.P. for the Respondent-State. Coram : P.R.Borkar,J. Date : 05/01/2010 ORAL JUDGMENT. 01. This is an appeal by original accused No.1 Kundan s/o Girdharisingh Pardeshi being aggrieved by the judgment and order passed by the learned II Additional Sessions Judge, Beed, in Sessions Case No. 28 of 1994 decided on 21.2.1998, whereby appellant- accused No. 1 is convicted of the offence punishable under Section 304 Part II of the Indian Penal Code sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.1000/=, in default to suffer rigorous imprisonment for three months. 2 02. Briefly stated, the facts giving rise to this appeal are that PW-3 Namdeo Jadhav filed complaint on 14.11.1993 at about 13.45 hours with police chowki, Civil Hospital, Beed which was registered as Crime No.95/93 with Police Station, Beed, stating that on 13.11.1993 while he was at his house, PW-4 Raju Kulthe came to him and informed that Shridhar-the brother of PW-3, Nanded was beaten by boys from Rajput lane. PW-3 Namdeo, therefore, went to Sampada Printing Press in Burud lane and noticed that Shridhar was lying injured and blood was flowing from the injury. He asked Shridhar as to who had injured him, whereupon Shridhar told PW-3 Namdeo that he along with PW-4 Raju Kulthe, PW-5 Anil Sakhare and one Bhikchand Lahure were passing by the road; at that time Kundan (present appellant) who is from Rajput community, so also Nandabai Chavan and younger brother of Kundan and other persons were enjoying fire cracking. Shridhar questioned them as to why they are bursting crackers on road. On this, appellant Kundan got annoyed and pelted a stone towards Shridhar which hit him just above his right eyebrow. Thereafter, Nandabai Chavan also injured Shridhar with stone. One Deva gave him kicks and fist blows. 3 03. Thereafter, PW-3 Namdeo and PW-4 Raju Kulthe took Shridhar in an auto-rickshaw and admitted him in the Civil Hospital, Beed. It is no more disputed that Shridhar expired as a result of fracture of skull and internal bleeding on the next day i.e. 14.11.1993 in the Civil Hospital and, therefore, police registered the offence under Section 302 of I.P.C., in stead of earlier offence under Section 324 of I.P.C. 04. Initially, police sent charge-sheet against six persons for offences punishable under Sections 147, 148, 304 read with Section 149, as also under Section 302 read with Section 149 of I.P.C. 05. The prosecution, in all, examined ten witnesses and the accused examined Dr. K.M.Pedgaonkar who was Medical Officer at Civil Hospital, Beed at the relevant time as a defence witness. The learned Sessions Judge, after considering the evidence, ultimately acquitted accused Nos. 2 to 6 of all the offences. He also acquitted appellant of the offences punishable under Sections 147, 148 and 302 read with Section 149 of I.P.C. The learned Judge, however, convicted the appellant of the offence punishable 4 under Section 304 Part II of I.P.C., as stated above. 06. In this case, post mortem notes are proved by PW-9 Dr. Ramchandra Deshpande examined at Exhibit 61. Evidence of Dr. Deshpande shows that Shridhar had received following external injuries; (1) CLW just above the right eyebrow about 3 cm x 2 cm x 1 cm upto bone. (2) CLW on right cheek about 2-1/2 cm. x 2 cm. x 1/2 cm. (3) Right black eye odima. (4) Abrasion on 4th and 5th intercostal space about 1/2 cm x 1/2 cm. (5) Abrasion on left grate toe about 1/2 cm x 1/2 cm. On internal examination, just below external injury No.1, the Medical Officer found fracture of right side of frontal bone horizontally oblique in direction about 3-1/2 cm. long on the skull. The post mortem notes are at Exhibit 62. According to Dr. Deshpande, external injury Nos. 1 to 3 were not possible due to one stroke of stone. He, however, admitted that those injuries were possible if a person falls on the ground by coming into contact of stones. External injury No. 5 on the left toe is of the size 5 of 1/2 cm x 1/2 cm. Injury Nos. 4 and 5 are on the palm which are possible if a person stumbles and suddenly falls down. It is, therefore, argued that injuries are possible in an accidental fall. 07. In this case, there are two theories coming before us. One is propounded by the prosecution that the appellant pelted stone and caused fatal injury to Shridhar, which is supported by the evidence of PWs.3, 4 and 5; whereas theory propounded by the defence is of accidental injuries in support of which there is evidence of defence witness Dr.K.M. Pedgaonkar who is examined at Exhibit 72. 08. Before we turn to the evidence of prosecution witnesses, we may consider the evidence of Dr. Pedgaonkar. Dr. Pedgaonkar deposed that he was working as a Medical Officer in the Civil Hospital, Beed from 9.00 p.m. on 13.11.1993 till 9.00 a.m. on 14.11.1993. On the same night, deceased Shridhar came to him at about 12.45 a.m. Nobody was with Shridhar. He examined Shridhar. Shridhar told him that he sustained injury on 13.11.1993 at about 11.30 p.m. by fall on the ground. Dr.Pedgaonkar, therefore, made entry in M.L.C. Register which is proved at Exhibit 6 75. Dr. Pedgaonkar further deposed that he had also taken thumb impression of Shridhar on the M.L.C. Register. Doctor also proved entry regarding history given by Shridhar on the case paper which are proved at Exhibit 74. According to Dr. Pedgaonkar, Shridhar was conscious till 9.00 a.m. on 14.11.1993 and had received two injuries i.e. (i) CLW over right eyebrow of the size 4 cm x 2 cm x bone deep and (ii) CLW below right eye of the size of 2 x 1 cm. According to Dr. Pedgaonkar, both the injuries were possible with one stone at a time and also if a drunken person falls forcibly on a rocky place. Cross examination of Dr. Pedgaonkar shows that he has not made any endorsement as to who had given history or that the history was given by patient Shridhar himself. He has also stated in the cross examination that the thumb impression on MLC entry was not attested so as to say that the same was of Shridhar. Reference was also made to another endorsement in the case papers made by the Medical Officer who had come on duty at 9.00 a.m. on 14.11.1993 in substitution of Dr. Pedgaonkar. So, it can be inferred that Shridhar was not conscious on 14.11.1993 after 9.00 a.m. 7 09. The learned Sessions Judge disbelieved the evidence of Dr. Pedgaonkar, mainly on the ground that he had not mentioned the name of Shridhar as the person who had given the history and secondly the thumb impression obtained on the MLC entry was not attested. We will come to this aspect later on. 10. So far as actual incident is concerned, depositions of only PW-3 Namdeo, PW-4 Raju and PW-5 Anil are relevant. PW-3 Namdeo who filed complaint, has stated in his deposition that it was PW-4 Raju gave him information about the incident and Raju told him that on account of quarrel over bursting of rocket, accused No.1 hit stone to the deceased Shridhar and accused Nos. 2 and 5 beat him with stones on his chest, whereas accused Nos. 3,4 and 6 gave fist and kick blows to the deceased Shridhar. Thereafter PW-3 Namdeo and PW-4 Raju went to the spot and took Shridhar in an auto rickshaw and admitted in Civil Hospital. PW-3 Namdeo proved the complaint at Exhibit 44 which is reproduced in paragraphs 2 and 3 hereinabove. It is abundantly clear that in the complaint, PW-3 Namdeo has not stated that it was PW-4 Raju who had given information to him about names of the accused persons. PW-3 Namdeo also deposed that the 8 names of all accused and acts done by them were told to him by Shridhar on the spot. It is the case of PW-3 Namdeo and PW-4 Raju that in auto rickshaw, Shridhar was sitting between them while proceeding to the hospital and that although injury was bleeding, no blood had fallen on their clothes or person. It is argued by Shri R.S.Deshmukh, learned Advocate for the appellant that presence of PW-4 Raju at the spot is doubtful. 11. PW-3 Namdeo in his cross examination admitted that Shridhar went to doctor by walking and told the doctor how he had sustained injury. This admission supports the case of defence witness Dr. Pedgaonkar that the history was given by Shridhar himself and therefore the conclusion drawn by the learned Sessions Judge that since it was not mentioned that the history was given by Shridhar himself Dr.Pedgaonkar cannot be believed, does not hold water. PW-3 Namdeo further reiterated his statement that when they all three went to the Ward, the condition of Shridhar was good and, therefore, he (Namdeo) went to his house. Above admission by PW-3 in paragraph 6 of his cross examination go a long way in supporting the defence case. Namdeo was confronted 9 with his complaint and he admitted that in the complaint it is not mentioned that PW-4 Raju had given him the names of accused persons. Even while lodging the complaint, names of all accused were not given. It is also brought in his cross examination that there is omission inasmuch as it is not mentioned in the complaint that PW-4 Raju was with PW-3 Namdeo while going to the spot. PW-3 Namdeo also stated that the concerned doctor prepared the case papers of Shridhar in his presence. 12. So far as eye witnesses are concerned, PW-4 Raju and PW-5 Anil deposed similarly to the effect that while they were passing by the road, accused No. 1, his younger brother, accused Nos. 4 and 6 were burning rockets and accused No. 2 was present there. One fired rocket passed nearby them and, therefore, deceased Shridhar requested accused No.1 not to burn the fire crackers on the road. Getting annoyed, accused No.1 started abusing Shridhar and then accused Nos. 2 and 5 came there. Accused No.1 hit stone near right side eye of the deceased Shridhar, as a result of which he sustained bleeding injury and fell down. Accused Nos. 2 and 5 beat Shridhar on his chest with stone whereas accused Nos. 3,4 and 6 gave 10 fist and kick blows to Shridhar. Thereafter, PW-4 Raju went to Namdeo at his house and informed him about the incident. Even PW-4 Raju in his examination- in-chief stated that complainant PW-3 Namdeo enquired with deceased Shridhar who told names of all accused. However, this is contrary to the F.I.R. proved at Exhibit 44. According to PW-4 Raju, when Shridhar was admitted in the hospital, he was unconscious which statement is contrary to the evidence of PW-3 Namdeo, so also evidence of defence witness Dr. Pedngaonkar. It may be noted that PW-4 Raju, PW-5 Anil and the deceased Shridhar were close friends, which fact is admitted by both the witnesses. PW-4 Raju admitted that they were meeting every day and for years together they were friends. According to PW-4 Raju, Shridhar had called him for snacks at his house at 10.00 p.m. However, 10.00 p.m. is not a time when somebody is to be called for snacks, even if it was a festival season. According to PW-4 Raju, they took snacks and left the house of Shridhar and came to Bhavani chowk at about 10.45 p.m. PW-4 Raju, however, in his cross examination stated that he and complainant Namdeo held Shridhar and then Shridhar sat in auto rickshaw which indicates that Shridhar was conscious when he was being taken to the hospital. 11 PW-4 Raju even admitted that Shridhar went walking into the hospital and that when Shridhar went in the room in hospital, PW-4 Raju was standing outside. So, evidence of PW-4 does not falsify the evidence of defence witness Dr. Pedgaonkar to the effect that Shridhar himself had given history of injury to him. In cross examination PW-4 Raju also admitted that Shridhar talked with them till 1.30 a.m. in the hospital. Thus the earlier statement of PW-4 Raju that Shridhar was unconscious when he was admitted in the hospital, is not true. Omission is brought on record in the cross examination of PW-4 Raju that he had not stated before police that he accompanied Namdeo to the spot of incident and when Namdeo enquired with Shridhar and Shridhar told him that all accused beat him. This is a material omission. It is also admitted by PW-4 in paragraph 10 of his cross examination that 5 to 6 cases were pending against him in Beed Court. 13. PW-5 Anil Sakhare has stated that initially, accused No.1 abused Shridhar and thereafter somebody gave information to accused Nos. 2 and 5 at their houses and then they came on the spot. This is totally a new story. PW-5 Anil further stated that 12 accused No.1 hit stone above the eyebrow of Shridhar as a result of which Shridhar fell down on the ground facing sky and thereafter accused Nos. 2 to 6 gave fist and kick blows to Shridhar on his chest and abdomen. Thereafter, PW-4 Raju went to the house of Shridhar and all the accused went away and he also went to his house. On the next day, he learnt that Shridhar had expired. 14. So, PW-5 Anil admitted that he was fast friend of deceased Shridhar and yet, he did not attend Shridhar while he was lying injured on the road nor did he inform members of family of Shridhar or accompany Shridhar while he was being taken to the hospital. He did not enquire about Shridhar till he was dead. This is something unusual approach on the part of close friend. PW-5 is a truck driver. It is suggested that he is a got up witness. In cross examination, he stated that he was standing in front of door of his house just to see the celebration of diwali and that about 50 persons were on the road. He also gave names of some persons and children who were enjoying fire cracking. In paragraph 4 of his cross examination, PW-5 Anil first stated that accused No.1 was having five to ten rockets in his hands and when 13 Shridhar was talking with accused No.1, accused No.1 was in sitting position and thereafter accused No.1 stood up. Then he said that he did not see any substance of explosive in the hands of accused No.1. Thereafter, witness changed and stated that accused No.1 was having stone in his hands and he hit the same on Shridhar. Thereafter, witness deposed that he along with others tried to intervene, but he could not say whom they had separated. Then he changed and stated that when Shridhar had fallen down, he noticed injury sustained by Shridhar. Omissions were brought on record in his cross examination that he has not stated before police that he had seen bleeding injury to Shridhar; that Shridhar had fallen down facing sky. Statement of PW-5 was recorded by police on 20.11.1993 which is after about 6-7 days from the occurrence of the incident. No explanation is coming forward for such delay in recording the statement. There is reason to believe that PW-5 may not be eye witness. 15. Learned Sessions Judge did not believe evidence of both the eye witnesses (PW-4 Raju and PW-5 Anil) so far as accused Nos. 2 to 6 are concerned. In paragraphs 24 and 25 of the judgment, the trial court observed that there was no injury on the chest of the 14 deceased; that there was no previous enmity between the accused and prosecution party and therefore there was no reason for accused persons to form unlawful assembly with common object. The trial court has disbelieved evidence of both the eye witnesses, so far as involvement of accused Nos. 2 to 6 is concerned. In paragraph 34 of his judgment, the learned trial judge has further observed that the prosecution has not explained external injury Nos. 2, 4 and 5 sustained by Shridhar. There was no injury on chest and abdomen and other parts of the body. 16. Considering the facts and circumstances on record and having regard to the evidence of Dr. Pedgaonkar examined as defence witness, in my opinion the defence story is more probable. Defence version is proved by Dr. Pedgaonkar and possibility of injuries being caused accidentally due to fall cannot be ruled out. Prosecution evidence of doubtful nature. Injury on the toe and palm (injury Nos. 4 and 5) in fact support the case of fall due to stumbling. In the circumstances, benefit of doubt deserves to be given to the appellant. 17. In the result, appeal is allowed. The 15 judgment and order of conviction and sentence recorded by the learned II Additional Sessions Judge, Beed, in Sessions Case No.28 of 1994 on 21.2.1998, is hereby set aside. The appellant-accused is acquitted of the offence charged. His bail bond stands cancelled. Fine amount, if deposited, be refunded to the appellant- accused. pnd/criapl59.98 (P.R.BORKAR, J.)