1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPEAL NO.461 OF 2008. PETITIONER : Sahesram S/o Sitaram Kumbhalkar, aged about 40 years, Occu:-Agriculturist, R/o Dongargaon, Tah. Mohadi, Distt. Bhandara. -VERSUS- RESPONDENTS: State of Maharashtra through P.S.O. Andhalgaon, District Bhandara. Shri C. H. Jaltare, Advocate for the appellant. Shri S. S. Doifode, APP for the respondent CORAM: A. H. JOSHI, J. DATED: 1st APRIL 2010. ORAL JUDGMENT : 1. Heard learned Advocate Shri C. H. Jaltate for the appellant and Shri S. D. Doifode learned APP for respondent. 2. Perused the judgment impugned and record. 3. The accused person was tried for the offence punishable under Section 302 of the Indian Penal Code. 4. According to the prosecution, the victim Sewakram S/o Ratiram Kumbhalkar was assaulted by the accused by Ubhari – a stick on his head. He collapsed and later on died due to the head injury. 2 5. After completion of the investigation, the accused was charge-sheeted for the offence punishable under Section 302 of the Indian Penal Code. 6. The injuries on the person of the deceased corpus as noted in the postmortem report read as follows :- “(1) Abrasion superior aspect of left shoulder 2 ½ cms x 2 ½ cms. (2) Contusion Haematoma on scalp left temporo parietal region 5 cms x 5 cms. In the internal examination, he noticed. Collection of blood under skin, left temporo parietal region, Vault was intact. Under brain a big blood clot 10 cms x 6 cms x 2 ½ cms thick over left tempora parietal region. The left parietal lobe shows depression due to clot. Meninges torn on left and intact on right. There was extradural haematora left.” [Quoted fro page 58 of the appeal paper book] 7. The cause of death was shown to be head injury. 8. The prosecution has examined in all six witnesses consisting of eye witness, panch witnesses, Medical Officer and the Investigating Officer. 9. After appreciation of the evidence, the learned Sessions Judge found that the intention of causing death was not seen. The relevant discussion is as follows:- “35........................................... Assuming that the accused was intending to cause of death, in that case he would not have stopped after causing of one hit, but would have resorted to cause number of hits 3 till the deceased died, but that did not appear so in the present case. From the act of the accused person, it appears that he was intending to cause of bodily injury to the deceased and not his death and, therefore, in my opinion, the offence of murder is not established. However, the offence established is one under culpable homicide not amounting to jurder. In the result, I am inclined to hold that the offence under section 302 of the Indian Penal Code is not established, but the offence under Section 304 Part II is established. The points are answered accordingly...................” [Quoted from page 82 of appeal paper book] 10. The learned Sessions Judge convicted the accused under Section 304 Part-II of the Indian Penal Code and after hearing the parties, sentenced the accused to suffer R.I., for 10 years and a fine of Rs.2000/- and sentenced R. I., for one year in default. 11. The grounds of challenge to the impugned judgment are as follows:- (a) That it is very well borne on record that the victim was in the status of “heavily drunk”. (b) According to the prosecution witness Subhash, the accused hit the deceased Sewakram with a stick on his head. (c) In the cross examination, PW-1 Subhash further stated that the deceased sustained the injuries on the upper front side of the skull. (d) The injuries mentioned in Column No.17 on the superior aspect of left shoulder is 2 ½ cm x 2 ½ cm which was abrasion and swollen tongue inside the mouth were not explained. 4 (e) Stick used as a weapon is of 18 cm circumference 1kg and 200 grams and 80 cms long i.e. 33 inches long which cannot cause such a severe injury, particularly haematoma of 10 cms x 6 cms inside the skull compressing the brain matter. (f) Probable cause of injury is that the deceased who was heavily drunk must have fallen on the left side or was heavily beaten by a massive hammer like stroke. 12. Perusal of the impugned judgment reveals that the learned Sessions Judge has observed in paragraph no.35 of the judgment as to conviction under Section 304 Part-II of the Indian Penal Code. The relevant part reads as follows:- “35........................................... However, the offence established is one under culpable homicide not amounting to jurder. In the result, I am inclined to hold that the offence under section 302 of the Indian Penal Code is not established, but the offence under Section 304 Part II is established. The points are answered accordingly........” [Quoted from page 82 of appeal paper book] 13. This Court finds that the judgment impugned totally lacks reasons as to how the knowledge on the part of the accused is proved or presumed and based on such proof, Part-II of Section 304 of the Indian Penal Code is attracted. 14. This Court has, therefore, scrutinized and re- appreciated the evidence. 15. It is seen that the injuries on the person of the deceased which are seen in a postmortem note in Column nos.13 & 5 17 read as follows:- “13. Features whether natural or Eyes Closed (L) swollan state of eyes position upper execid swouen of tongue nature of fluid (if any tongue inside the oozing from mouth nosttrils or ears. Mouth blood stained fluid oozing from nostrils. 17. Surface wounds and injuries 1)Abrasion superior Their nature posttion dirnensios as per of (L) (measured) and directions to shoulder 21/2 cm x 21 cm be accurately stated their 2) Confusion Haema- probable age and causes to be noted. Toma scalp (L) temporo parietal region 6cms x 5cms [Quoted from page 40 of appeal paper book] 16. The above quoted injuries, particularly, in column no.13 and first injury in column no.17 is not explained by the prosecution. 17. Be it that, the accused hit the deceased on the front side on the skull as deposed by eye witness, the injury corresponding to the location where the stick was hit had to occur. In the present case, according to eye witness, the stick is used to hit on the front side of skull, while the place of injury is left parietal region that too in the nature of nostril. 18. This Court cannot ignore the fact that in the cross examination of the Investigating Officer PW-6 has in clear terms testified that the status of the deceased was described in the case papers and has clearly stated that in the report of the Medical Officer, as “alcoholistic” means “heavily drunk”. This witness has deposed in this regard as follows:- “4. I read the injury report (Ex.17) recorded by the Medical Officer at Jamb. I understood it. I had noted that there was smell of alcohol and the deceased had consumed the alcohol to the extent of getting alcoholists. I know that “alcoholisis” means “heavily drunk”. It was necessary to enquire as to where he had consumed such quantity of alcohol.......” [Quoted from page 35 of the appeal paper book] 19. From the above facts, what is absolutely clear is 6 that though the Investigating Officer found the accused involved, based on alleged eye witness, yet the act of hitting, as borne on record by the stick subject matter, was not the cause of fatal injury. 20. Even if the said injury is believed to be authored by the accused, it does not attribute the knowledge to the accused that by a single blow with a stick 33 cms long (less than 3 fts., long) and 5 centimeters diameter, layman would know that the victim would die as a necessary consequence. 21. In the result, the offence under Section 304 Part-II of the Indian Penal Code is not made out against the accused. On the other hand, the story of the prosecution comes under grave doubt of clouds due to circumstances namely: (a) the victim was heavily drunk, (b) there was injury leading to left eye lid closed, (c) swelling of tongue, (d) oozing of blood from the nose and mouth, and (e) injury on the left parietal region resulting in haematoma of 10 cms x 6 cms area. 22. The possibility of the victim falling on hard and blunt object or hitting a hard weapon and suffering these injuries is most imminent. 23. Admittedly, what is alleged against the accused is one blow given by stick. The injuries on the left shoulder of the deceased and mouth etc. have gone unexplained. These unexplained injuries fortify the doubt that the accused must have fallen down 7 resulting into injuries or that he was assaulted by someone, in some other incident and the accused was falsely involved. 24. In the given situation at hand, the act of accused causing injury with knowledge that it is likely to cause death is not proved and on the other hand the very involvement of the accused of hitting the victim in such manner that the injury corresponding to the assault, is coming under grave doubt. 25. In the result, this Court concludes that the prosecution has failed in proving the charge against the accused. 26. In the result, appeal succeeds. The appellant is acquitted of the offence charged by setting aside the conviction. The accused is set at liberty forthwith unless not required in any other case. JUDGE | MULEY |