1 APEAL-OJ-718.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.718 OF 2007 Sandeep Bhikaji Polekar, Aged 23 years, residing at Om Rukhmini Mata Society, Saint Dnyaneshwar Nagar, Santosh Bhuvan, Nalasopara (East), Taluka Vasai, District: Thane. .... Appellant - Versus - The State of Maharashtra .... Respondent Shri Prakash Naik for the Appellant. Shri S.A. Shaikh, Addl. Public Prosecutor, for the Respondent-State. CORAM: R.C. CHAVAN, J. DATED: JULY 19, 2011 ORAL JUDGMENT: 1. This appeal is directed against the appellant s conviction by the learned Additional Sessions Judge, Palghar for the offence punishable under Section 304 Part-II of the Indian Penal Code (for short, IPC ) and sentence to suffer RI for seven years, imposed upon him on conclusion of Sessions Case No.32 2 APEAL-OJ-718.07 of 2006. 2. Facts which are material for deciding this appeal are as under: The appellant-Sandeep is possibly resident of the same area where the victim Samir was residing. There was some dispute between the appellant and Samir during the immersion of Idols of Lord Ganesh in the year 2005. On 6-11-2005 when Samir was playing cricket with his friends, the appellant is alleged to have reached there, raked up the quarrel and hit Samir with the bat which was in Samir s hand. Samir fell down as a result of the blow received on his head. Sandeep is alleged to have given two more blows to Samir, which led to bleeding from Samir s nose and mouth. Samir was carried by his friends to a hospital where he was given necessary treatment and then shifted to Sion Hospital where he succumbed to his injuries after four days. Samir s father returned home in the evening and then gave a report to the police on which an offence was registered. 3. In the course of the investigation, the police performed inquest panchnama on the 3 APEAL-OJ-718.07 dead body and sent it for post-mortem examination. The police also seized the clothes of the deceased. The police had arrested the appellant and seized his clothes on 8-11-2005. On 12-11-2005, during interrogation, the appellant agreed to produce the bat by which he had hit Samir and it was seized as a result of the discovery made. The police recorded statements of the witnesses, performed panchnama of the spot, sent the incriminating articles to the Forensic Science Laboratory and after receipt of the report from the Laboratory, charge-sheeted the appellant in the Court of Judicial Magistrate, First Class, at Vasai. The learned Magistrate committed the case to the Court of Sessions at Palghar. 4. The learned Additional Sessions Judge to whom the case was made over charged the appellant of murder of Samir to which the appellant pleaded not guilty and hence was put on trial. The prosecution examined in all eleven witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication raised, the learned Judge held the appellant guilty of the offence punishable under Section 304 Part-II of 4 APEAL-OJ-718.07 the IPC and convicted and sentenced him as afore-mentioned. Aggrieved thereby, the appellant has preferred this appeal. 5. I have heard the learned counsel for the applicant and the learned APP for the State. With the help of both the learned counsel I have gone through the record. The learned counsel for the appellant submitted that the appellant has been falsely implicated because of a previous dispute as can be seen from the evidence of PW-1 Ramchandra, father of the victim. He submitted that Ramchandra had himself not seen the incident but possibly believed that because of the previous altercation in the Ganesh Festival, the appellant was the author of the injuries sustained by his son. The learned counsel pointed out that till Ramchandra filed his report at Exhibit-9 with the police on the night of 6-11-2005, nobody had named the appellant as the author of the injuries sustained by Samir. He pointed out that PW-9 Dr. Gita Varpe, who had admitted the victim to the hospital, had recorded at Exhibit-31 that the victim had sustained injuries on account of fall. Therefore, according to the learned counsel, the victim s father Ramchandra 5 APEAL-OJ-718.07 unnecessarily believed that the victim was injured by the appellant on account of a previous quarrel when there was no material for so believing. He submitted that this wrong belief of Ramchandra possibly made the so called eye-witnesses PWs-2 to 5 to also imagine that the appellant was the author of the injuries, since none of them had stated so to the police till the next day. The learned counsel also pointed out that according to the hospital record, as gathered by PW-11 PSI Pol, one Arvind Bhagve had brought the victim to the hospital. Therefore, he was the best person to state as to how the victim had sustained the injuries. But he was not examined. In the backdrop of this evidence, the learned counsel pointed out that PW-8 Dr. Balsera, who conducted the post-mortem examination on the victim s body, admitted to the possibility of the victim suffering such an injury by a fall on stone or rough surface. Therefore, according to the learned counsel, in the face of this possibility the learned Judge should not have held the appellant guilty of the injury which led to the death of the victim. 6. As rightly pointed out by the learned APP, non-examination of Arvind Bhagve may not 6 APEAL-OJ-718.07 be so material since there are four eye- witnesses, who are natural witnesses and have no animosity with the appellant to falsely implicate him in the incident. He submitted that they would have no reason to be influenced by what PW-1 Ramchandra felt, since there is nothing on the record to suggest that they had named the appellant as the assailant at the instance of Ramchandra. The evidence of these witnesses  PW-2 Sanjay, PW-3 Ravindra, PW-4 Vitthal and PW-5 Kiran - shows that in the afternoon of the day of the incident they were playing cricket. The victim Samir was batting. The appellant came there, snatched the bat of the victim, gave a blow on the victim s head by the bat and after the victim fell down, administered two more blows to him. They claim to have carried the victim to hospital. The learned APP submitted that merely because the hospital authorities informed the I.O. that it was Arvind Bhagve who had admitted the victim to the hospital, the presence of these four persons as the ones who were playing with the victim at the relevant time or the claim of some of them to have accompanied the victim to the hospital, cannot be ruled out. He submitted that it is natural that in such a situation it is not one person, but many, who take the 7 APEAL-OJ-718.07 victim to hospital, but it is not that the name of everyone who accompanies the victim is recorded by the medical authorities. Therefore, merely because the medical record shows that Arvind Bhagve had admitted the victim to the hospital, it would not rule out the presence of the witnesses at the time of the incident, particularly since they have no axe to grind against the appellant. 7. The learned counsel for the appellant submitted that the evidence of these witnesses, PWs-2 to 5, is unworthy of belief because they state that the victim suffered three blows at the hands of the appellant, whereas the medical evidence, particularly that of PW-8 Dr. Balsera, shows that the victim had suffered only one injury on the head, or for that matter on the whole of his body. The learned counsel, therefore, submitted that this exaggerated evidence tendered by PWs-2 to 5 should have been rejected by the learned trial Judge, but the trial Judge seems to have accepted the case of three blows having been administered to the victim. The learned APP submitted that the witnesses may not be lying since it is not necessary that each of the blows by the appellant should have actually hit the victim s 8 APEAL-OJ-718.07 body. He submitted that one blow might have hit the victim while the others might have been missed and therefore it does not follow that the witnesses are lying when they state that three blows were given. 8. As rightly pointed out by the learned counsel for the appellant, the story of three blows is difficult to digest because all the four eye-witnesses state that after the first blow was administered, the victim fell down and thereafter two blows were administered when the victim was immobile. Therefore, ordinarily the other two blows would hit the target. There would be no possibility of the blows missing the target. Therefore, in the face of the observation of PW-8 Dr. Balsera that there was only one injury on the head of the victim, the theory of three blows has to be discarded. It does not however follow that the evidence of the eye-witnesses has to be rejected because they stated about three blows when only one was given. There is a tendency of witnesses to exaggerate and if Courts were to reject the evidence because of such exaggeration, it would be difficult to find a witness who would with forensic accuracy describe the incident as it actually took place. Therefore, neither the 9 APEAL-OJ-718.07 delay in recording the statements of these witnesses nor their exaggeration in stating of having seen three blows being given should result in rejection of their testimonies. This is more so because they had absolutely no reason to falsely implicate the appellant. 9. PW-6 Vijay was the panch at the spot panchnama which is recorded at Exhibit-18. In the presence of PW-7 Anil clothes of the appellant were seized vide Exhibit-20 upon his arrest. On 12-11-2005 the appellant is alleged to have agreed to show the place where he had kept the bat which was used for hitting the victim. He states that the bat was found eventually in the branches of a banyan tree, about five feet above the ground, when even the panchnama records that it was found in the bushes. This discovery of the bat appears to be contrived and the bat may actually have been found lying on the spot itself. However, this need not taint the entire prosecution case. 10. PW-11 PSI Pol had stated about various articles seized being sent to the Forensic Science Laboratory. The report of the Laboratory at Exhibit-15 shows that the front portion of the banian and the half-pants worn 10 APEAL-OJ-718.07 by the appellant had stains of human blood. The learned counsel for the appellant submitted that since the blood group has not been determined by the Laboratory, the finding of human blood in itself would not be sufficient to draw an inference that the appellant was the author of the injury caused to the victim. Again, as rightly pointed out by the learned APP, though the blood group has not been found, the stains were found to be of human blood, if human blood was found on the clothing of the appellant, it was for the appellant to explain as to how the front portion of his clothes had stains of human blood. This would be consistent with the appellant giving a blow to the victim which resulted in the front portion of his clothes getting smeared with blood. Therefore, this finding of the Laboratory would add credence to the evidence of PWs-2 to 5 that the appellant was the author of the injury on the victim s person. 11. The learned counsel for the appellant next submitted that even so there was absolutely no warrant for the learned Judge to hold that the appellant was the author of three blows on the victim when the medical evidence pointed to existence of only injury. This 11 APEAL-OJ-718.07 contention has considerable force. Had three blows been given, they would have been unmistakably noticed by the three Doctors who had examined the victim when he was alive or after his death, namely, PW-9 Dr. Gita Varpe who admitted the victim, PW-10 Dr. Joshi who examined the victim and PW-8 Dr. Balsera who conducted the post-mortem. Since none of them state about observation of more than one injury, the finding by the learned Judge that the appellant had authored three blows cannot be sustained. It would have to be held that the appellant gave only one blow which led to the victim s being injured and eventually death after four days. 12. The learned counsel for the appellant submitted that since the appellant had been sentenced to RI for seven years on the premise that the appellant had authored three blows, this sentence ought to be set aside. He also submitted that considering the age of the appellant at the time of the incident, which was only 22 years, the absence of any previous criminal history and also the fact that the incident, at worst, had occurred on account of some small dispute at the time of immersion of Ganesh idols, the appellant could have been 12 APEAL-OJ-718.07 given the benefit of even probation. However, considering the fact that a life has been lost, though the appellant had given one blow, the appellant would not be entitled to being let off on probation. The learned APP submitted that the learned trial Judge had already shown sufficient leniency by bringing down the appellant s conviction from one, which ought to have been under Section 302 of the IPC, to that under Section 304 Part-II of the IPC and therefore the sentence imposed upon the appellant may be left undisturbed. The argument by the learned APP has to be rejected, first, because it is not that the learned Judge has shown any leniency by bringing down the conviction of the appellant to one for the offence punishable under Section 304 Part-II of the IPC. In the circumstances enumerated above, it would have been impossible to hold that the appellant had the requisite intention to cause death of the victim or intention to cause such bodily injury which he knew would unmistakably lead to the death of the victim. Therefore, the learned Judge was right in holding that the act was not done with the intention of causing death or intention that such bodily injury which the appellant knew to be likely to cause death or with the intention of causing such 13 APEAL-OJ-718.07 bodily injury which in the ordinary course of nature could have been sufficient to cause death. Therefore, the conviction of the appellant by the learned trial Judge for the offence punishable under Section 304 Part-II cannot be faulted. Since the learned Judge had decided the sentence on the premise that the appellant had given three blows, the sentence would have to be re-examined considering the fact that the evidence as analysed above, discloses the case of only one blow. In view of this, considering the age of the appellant as also the fact that he has been in jail since 8-11-2005, the sentence could be reduced to RI for five years. 13. In view of this, the appeal is partly allowed. The conviction of the appellant for the offence punishable under Section 304 Part- II of the IPC is maintained. However, the sentence is reduced to RI for five years. The learned counsel for the appellant states that the appellant has already undergone more than this sentence. In that case, the prison authorities would set the appellant at liberty, if not wanted in any other case. The appeal accordingly stands disposed of. Sd/- (R.C. CHAVAN, J.)