1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO. 332 OF 2007 Dagadu s/o Nilkanth Mane, Age : 24 yrs., Occu. Labour, R/o Sikandrapur (Kolu), Taluka & District Latur ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellant; Mr S.V. Kurundkar, A.P.P. for the respondent. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 4th November, 2009 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 and 506 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.500/-, in default to undergo further R.I. for two months, R.I. for one year and to pay fine of Rs.200/-, in default to undergo further R.I. for one month respectively, by the 2nd 2 Ad hoc Additional Sessions Judge, Latur, by judgment dated 4.6.2007 in Sessions Case No.101 of 2006, by this appeal challenges the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.15 P.S.I. Maruti Gude was attached to Latur Rural Police Station. On 19.9.2006 at about 4.00 p.m. he received information from the Control Room about a quarrel in village Kolu-Sikandrapur. Accordingly he made an entry vide sr.no.36 at Exh.49 and proceeded to village Kolu-Sikandrapur. On reaching the village he noticed one person aged about 22 years holding a blood stained axe. He also noticed the doors of the surrounding houses to be closed. Thereafter Sheshrao Gambhire, Digambar Kadam and Namdev arrived at the scene of the offence. P.W.15 P.S.I. Gude seized the axe which was in the possession of the said person vide seizure memo at Exh.40. The accused was apprehended and brought to the police station. P.W.13 Dr. Shobha Nisale who was working as Medical Officer at Civil Hospital, Latur was present on 19.9.2006 as a Casualty Medical Officer. Injured Bansi was brought by his wife P.W.5 Sharda to the hospital as injured Bansi had sustained a head injury. P.W.13 Dr.Nisale accordingly informed the Gandhi Chowk police station about the admission of Bansi by communication at Exh.26. P.W.15 P.S.I. Gude accordingly proceeded to the Civil Hospital, Latur. It 3 appears that the injured was unconscious and, therefore, his statement could not be recorded. Since P.W.5 Sharda was present in the hospital, her statement came to be recorded at Exh.28. On the basis of the report of P.W.5 Sharda, P.W.4 P.S.I. Kamble registered an offence vide Crime No.180 of 2006 under section 307, 504 and 506 of the Indian Penal Code. The investigation of the said crime came to be entrusted to P.W.5 P.S.I. Gude. He accordingly arrested the accused on the same day vide arrest panchnama at Exh.50. The clothing of the accused which was found stained with blood came to be seized vide seizure memo at Exh. 36. Statements of the other witnesses came to be recorded. On the next day i.e. on 20.9.2006 P.W.15 P.S.I. Gude proceeded to the scene of the offence and drew the scene of the offence panchnama at Exh.18 in the presence of P.W.1 Chandrakant. From the scene of the offence blood stained mud and control mud came to be seized. On 22.9.2006 injured Bansi succumbed to his injuries and, therefore, an inquest panchnama at Exh.19 came to be drawn in the presence of panchas. Dead Body of deceased Bansi was referred for post mortem examination. Post mortem on the dead body of deceased Bansi was carried out by P.W.2 Dr. Sanjay Warad. He noticed one external injury i.e. sutured wound on the left temporal parietal nature which was oblique in nature, 7 cms. in length. He opined that this was an ante mortem injury. On internal examination he noticed the following injuries :- 4 1. Contusion scalp left temporo parietal region, size 12 cm x 8 cm. 2. Fracture compound left parietali bone, 6 cm x 1 cm 3. Brain matter were out of the fracture side with menigeal rupture 4. Sub dural haematoma, left side, 10 cm. x 4 cm. x 0.5 cm. He, therefore, opined that cause of death was due to head injury. He has further opined that the injuries sustained by Bansi were possible to be inflicted by an axe. Clothes of deceased Bansi which were blood stained came to be seized vide seizure memo at Exh.38. The seized articles came to be forwarded to the Chemical Analyser through P.W.12 Police Constable Sunil. The reports of the Chemical Analyser are at Exhs.51, 52 and 53. Further to the completion of investigation, a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.8 framed a charge against the accused for offence punishable under section 302, 504 and 506 of the Indian Penal Code and 135 of the Bombay Police Act. The accused denied his guilt and claimed to be tried. Prosecution in support of its case examined 15 witnesses, while the accused examined D.W.1 Dr. Dinesh as his defence witness. Upon consideration of the testimony of the eye-witnesses, the Trial Court convicted the accused for offence punishable under section 302 and 506 of the Indian Penal Code while acquitting the appellant of the offence punishable under section 504 of the Indian Penal Code and 135 of the 5 Bombay Police Act. 4. Before we advert to the submissions advanced before us by Smt. S.S. Jadhav, learned Counsel for the appellant and the learned A.P.P. for respondent State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.5 Sharda, wife of deceased Bansi and an eye-witness to the incident states that her husband Bansi was a Carpenter and was residing at village Kolu-Sikandrapur. The accused was residing in a house across the road. On the day of the incident at about 1.30 to 2.00 p.m. she was attending to the domestic chores in the house while her husband was sitting in the courtyard of the house of one Tamma Ghodke and was talking to the mother of said Tamma Ghodke. The appellant/accused came to the house of Tamma Ghodke and started abusing the deceased. On hearing the abuses P.W.5 Sharda came out of the house and requested the accused not to abuse her husband. The accused questioned her as to why her husband was spreading rumours that the accused had taken an instrument used in a carpentry. The accused thereafter went to his house after threatening deceased Bansi and returned to the house of Tamma Ghodke armed with an axe and inflicted an injury by axe on the head of deceased Bansi. Bansi sustained a bleeding injury and became unconscious and was thereafter brought to the Civil Hospital, Latur in an auto rickshaw. Bansi succumbed to his 6 injuries on the third day of the incident. Sharda states that her report was lodged at the police station which she identifies at Exh.28. In cross- examination she has admitted that her husband was working as an agricultural labour on yearly wages and was residing in the agricultural land of his landlord. She has also admitted that her husband used to come to village Kolu Sikandrapur once a month or once in four months. She has denied the suggestion that her husband was demanding money to the villagers for medical treatment on account of the injuries inflicted by a bull. She has denied the suggestion that prior to two months of the incident the accused was suffering from mental disorder and had attempted to commit suicide. She has also denied the suggestion that there was a quarrel between the accused and his brother Dhondiram on the day of the incident and she was having cordial relations with the accused and his family prior to the incident. She has denied the suggestion that she had killed her husband and had falsely implicated the accused in the crime. She has also denied the suggestion that the accused was insane. 5. Prosecution has examined P.W.6 Sukumarbai, P.W.7 Gunabai and P.W.8 Vijaymala as eye-witnesses to the incident. All the eye-witnesses have consistently deposed about the accused abusing deceased Bansi and thereafter going to his house, fetching an axe and assaulting Bansi by the axe. Though all these witnesses have been cross-examined at length, no substantial dent has been made to their examination-in-chief. 7 The report of the Chemical Analyser at Exh.51 discloses that the axe was found to be stained with human blood of "A" group. The blood detected on the clothes of deceased was also found to be of "A" group. The clothes of the accused were found to be stained with human blood though the group could not be determined. 6. Accused has examined D.W.1 Dr. Dinesh, who has admitted that he was running a clinic at Latur and holds a post graduate in Psychiatry. He has admitted that the person by name Dagadu Nilkanth Mane had come to his clinic for treatment. This witness, however, could not identify the accused as the same person to whom he had examined. He has admitted to have issued the prescriptions at Exhs.63, 64 and 65 to one Dagadu Nilkanth Mane who was suffering from Psychogenic Paranoid Psychosis. He has further admitted that the said patient Dagadu Nilkanth Mane had taken treatment on 18.1.2006, 1.2.2006, 6.2.2006 and 11.2.2006. In cross-examination on behalf of the prosecution he has admitted that the name of the village of the patient was not disclosed in the prescription. He has also admitted that he could not say with any exactitude whether the accused was the same person to whom the prescriptions had been issued. He has admitted that he was not possessing the record of the treatment given to one Dagadu Mane. He has further admitted that the ailment with which Dagadu Mane was suffering was curable. 8 7. The principal defence of the accused during the trial was of insanity. The appellant/accused could not establish that he was insane at the time of the commission of the offence. His defence witness D.W.1 Dr. Dinesh also did not support him, in the sense that D.W.1 Dr. Dinesh could not identify the accused as the same patient to whom he had issued the prescription. In any event, there is no other circumstantial evidence indicative of the fact that the accused was incapable of understanding the nature of his act at the time of the commission of the offence. In that light of the matter, therefore, according to us the accused has utterly failed in establishing that he was insane at the time of commission of the offence. 8. Smt. Jadhav, learned Counsel for the appellant has urged before us that the accused had inflicted only one blow of axe on the head of deceased Bansi. She has further urged before us that the relations between the accused and the deceased were cordial and there was no enmity or animosity. It is, therefore, urged before us that the offence punishable under section 302 of the Indian Penal Code could not be said to be established but would be an offence punishable under section 304 of the Indian Penal Code. For the aforesaid proposition, reliance is placed by the learned Counsel for the appellant on the judgment of Supreme Court in Pappu @ Hari Om vs. State of Madhya Pradesh, 2009 ALL MR (Cri) 2181 (S.C.). In the said case four persons including the deceased were playing cards near an electric pole and the 9 accused/appellant and the co-accused requested them to join them. Deceased objected and a quarrel ensued. The appellant before the Supreme Court went away abusing the deceased and came back with a gun and fired a gun shot which injured right shoulder of the deceased. Deceased succumbed to his injury on the way to the hospital. The Supreme Court found that the offence which could be said to be made out would be one punishable under section 304 Part-II considering that the bullet fired had hit the shoulder of the deceased. The ratio laid down in the aforesaid judgment, in our opinion, is not applicable to the facts of the present case as the facts of the case before the Supreme Court and the facts of the present case are different. Reliance is also placed on the judgment of the Supreme Court in Laxminath vs. State of Chhattisgarh, (2009) 2 Supreme Court cases (Cri) 156. In this case since only one arrow had been shot, the Supreme Court held that the offence would be one punishable under section 304 Part-I and not under section 302 of the Indian Penal Code. 9. Reliance is next placed on the judgment of the Division Bench of this Court in Suresh s/o Chaitya Konkani vs. State of Maharashtra & anr., 2009 ALL MR (Cri) 18. In this judgment the Division Bench found that the injury had been inflicted in a scuffle which was going on between the parties and they were trading blows. The appellant therein had lifted a yoke and dealt a blow on the head of deceased. The Division Bench, therefore, found that the case fell within exception 4 of section 300 of the 10 Indian Penal Code and, therefore, altered the conviction from section 302 to section 304 Part-I of the Indian Penal Code. Since the facts of the present case are different, the ratio laid down is not applicable to the present case. 10. In the present case the appellant had gone to the place where deceased Bansi was sitting and had abused and quarrelled with him though deceased Bansi had not offered any provocation to the accused. The accused thereafter returned back to the scene of the offence armed with an axe and had dealt a crushing blow on the head of deceased Bansi. The ferocity of the blow was such that it resulted into massive internal damage. The Medical Officer had noticed a contusion on the left temporal parietal region 12 x 8 cms. and a compound fracture of the left parietal bone 6 x 1 cm. He had also noticed that the brain matter was oozing out from the fracture side with meningeal rupture. Sub dural hematoma of size 10 cm. x 4 cm. x .5 cm. was noticed. In such circumstances, therefore, according to us the intention to commit murder of deceased Bansi is writ large. This is not a case where the accused had inflicted injury by an axe in the heat of the passion or in a sudden fight. The accused had gone home and had brought an axe and thereafter had dealt the blow of axe on the head of Bansi. We have already pointed out the massive internal damage which was the result of the external injury sustained by deceased Bansi. The intention to commit murder of deceased Bansi is, therefore, apparent in the light of the nature 11 of the weapon used, the injury caused and the situs where the injury was intended and was actually inflicted. In that light of the matter, therefore, according to us the accused has been rightly convicted of the offence punishable under section 302 of the Indian Penal Code. 11. Resultantly, there is no merit in the appeal and the appeal is dismissed being sans merit confirming the conviction and sentence of the appellant. ( A.V. NIRGUDE, J.) ( P.V.HARDAS, J.) amj/cria332.07