1 Criminal Appeal No.315/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.315 OF 1998 Dattu s/o Haribhau Dhumal, Age 32 years, Occ. Labour, R/o Para, Taluka Kallamb, District Osmanabad ... APPELLANT VERSUS The State of Maharashtra through the Police Sub-Inspector, Police Station, Kallamb, District Osmanabad (Copy to be served on the Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri S.S. Choudhari, Advocate for appellant Shri N.B. Patil, A.P.P. for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 28th March, 2011 J U D G M E N T : 1. The accused/ appellant questions his conviction in Sessions Case No.63/1996, recorded by learned Sessions Judge, Osmanabad for an offence under Section 304 Part II of the Indian Penal Code, directing to undergo rigorous imprisonment for two 2 Criminal Appeal No.315/1998 years, dated 25.9.1998. 2. On 10.1.1994, in the afternoon, deceased Navnath, with Laxman (P.W.7) had been to the illicit liquor den of Mohjabai for drink. Navnath demanded free liquor to Mohjabai. She refused, Navnath insisted and he unauthorisedly took glass of liquor from the jar without payment, the situation was aggravated. The accused had a quarrel on such odd behaviour of Navnath. Navnath started abusing the accused. Consequently, accused took log, hit at Navnath repeatedly at his shoulder, cheek, head. The accused, even after intervention by P.W.7 and Navnath smashing to ground, did not stop and ensured second time that Navnath gets breathless. The matter was reported by brother of deceased (P.W.1 Subhash) to police on 10.1.1994, giving rise to offence under Section 302 of the Indian Penal Code against the accused/ appellant at Police Station, Kallam vide Crime No.12/1994. 3. After regular rituals, after committal of the case to the Sessions Court, on 23.4.1996, charge below Exhibit 6 was explained to the accused on 9.7.1996, by the learned Sessions Judge at Osmanabad for offence under Section 302 of the Indian Penal Code. 3 Criminal Appeal No.315/1998 4. The defence of accused/ appellant was of total denial. 9 witnesses were put in to establish guilt of the accused. P.W.1 Subhash, the step brother of Navnath was informed of the events by his daughter having Navnath died at the den of persons belonging to Pardhi community and particularly at or near the house of Mohjabai. 5. P.W.2 Indubai, P.W.3 Nanibai, P.W.4 Sakharabai, P.W.5 Sindhubai, P.W.6 Mohjabai were examined as eye witnesses. However, they did not support the prosecution. It was only evidence of P.W.7 Laxman Dnyanoba Zambare, the person who accompanied Navnath for liquor, supported and the learned Sessions Judge believed his evidence. 6. The seizure panchanama at Exhibit 21 relates to seizure of apparels of the victim Navnath. The inquest panchanama at Exhibit 20 demonstrate the injuries suffered by Navnath, superficially noticed by the witnesses/ panch. There is no controversy about these two documents. The spot panchanama at Exhibit 19 shows that it is situate in land Survey No.445, admeasuring 26 x 36 ft., surrounded with a fence of around 4 ft. At a distance of around 4 ft. from the door, blood stains were noticed. The two logs with blood stains were seen and taken charge by the investigator. It established presence of human blood. The blood 4 Criminal Appeal No.315/1998 mixed soil was also taken charge. The situation of the room illustrate that it is surrounded by persons belonging to community of P.W.6 Mohjabai. 7. The post mortem notes and the opinion of medical officer illustrate, the probable cause of death is “shock following extra dural sub dural haemorrhage associated with laceration of brain. The death was due to head injury. 8. The recovery of two logs with blood stains have been explained by P.W.7 in his evidence. The presence of Laxman doubted by the defence at the time of incident is illusory as while saving life of Navnath from the brutal assault by the appellant and snatching the log from appellant he suffered splash of blood of Navnath at his shirt. The repeated contention that evidence of P.W.7 Laxman should not be believed as he is a interested witness was rightly discarded by the learned Sessions Judge. 9. The majority of the witnesses referred above though turned hostile, that by itself would not dilute the narration of P.W.7 Laxman who was accompanying deceased Navnath at the material time. Evidence of P.W.7 Laxman at Exhibit 28 illustrate that he along with Navnath had been to the den of Mohjabai. After having 5 Criminal Appeal No.315/1998 first round, Navnath left house of Mohjabai, however, within half an hour he came, he asked liquor at credit. Mohjabai refused to oblige and budged. There was forceful taking away of the liquor from the can which Navnath consumed. Due to this, the accused abused Navnath and he picked up a log lying nearby, assaulted Navnath on his face. Accused gave second blow at back side head of Navnath. P.W.7 rescued, rather intervened, snatched said wooden log from accused and kept it aside. However, the accused was so enraged, he lift another log lying nearby, hit it at the back side and head of Navnath. These logs are identified by P.W.7 in the evidence. 10. In the statement under Section 313 of the Criminal Procedure Code of the accused, (Exhibit 7), the accused answered the questions as to (1) “I do not know.” and (2) “It is false.” He did not add anything in defence nor examined any defence witness. He claimed, it is a false case against him. 11. The survey of the events illustrate, the attack by the appellant to Navnath was at a spur of moment, owing to Navnath not budging to the command of appellant to discharge payment. The accused/ appellant initially hit Navnath at his facial region and arms. The log was snatched by P.W.7, however, the aggravated form of anger, annoyance nursed by accused/ appellant pilled him to smash 6 Criminal Appeal No.315/1998 again to ensure Navnath had his last breath. 12. The possibility of the accused/ appellant being falsely implicated in the case is ruled out as evidence of P.W.7 is supported with blood stains on his apparels. His presence at the time of incident need not be questioned. 13. Mr. Choudhari has stated that P.W.7 lacks credence as he has acted as a witness in earlier two prosecutions for the concerned police. However, by that itself would not be a ground to reject otherwise reliable testimony of the witness. Section 299 of the Indian Penal Code conceive culpable homicide to illustrate, whoever cause death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide may either be (a) amounting to murder within the meaning of any of the four clauses of Section 300 of the Indian Penal Code or not amounting to murder as is stipulated in Part I or Part II of Section 304 of the Indian Penal Code. 14. The post mortem notes at Exhibit 24 illustrate:- 7 Criminal Appeal No.315/1998 1. Contused lacerated wound over the occipital region of head. Wound is transverse 2 ½ cm. x 1 ½ cm. x bone deep subduraneous tissue is torn and lacerated; 2. Contused lacerated wound (transverse on left zygomatic arch on face) 1 cm. x 1 cm. x bone deep. Subduraneous tissue is lacerated and torn; 3. Abrasions and contusions over left shoulder posteriorly 3 in number : (a) 3 cm. x 1 cm. (b) 1 cm. x 1 cm. (c) ½ cm. x ½ cm. Under the caption of brain, it is mentioned as under : 1. Extradural haemorrhage-about 200 Ml. blood came out as soon as skull is opened indicating thereby extradural haemorrhage underlined membrance is blue. 2. On opening meningis about 250 Ml. blood came out indicating thereby subdural haemorrhage 3. Underlined brain tissue is compressed and lacerated. 15. The skull had no fracture, it leans to show that there was no severity in the blow. The learned Sessions Judge, on considering the nature of above referred evidence, treated the offence to be one under Section 304 (Part II) of Indian Penal Code and accordingly convicted the accused/ appellant as referred above. Though the sentence inflicted under Section 304 (Part II) of the 8 Criminal Appeal No.315/1998 Indian Penal Code is inadequate, however, no notice was issued while admitting the appeal and the matter is pending since 1994. I do not see any merit in the appeal to disturb the conviction. Consequently, appeal dismissed. The accused/ appellant to surrender to serve the remaining sentence. K.U. CHANDIWAL JUDGE