1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.359 OF 2008 1. Ankush s/o Shivaji Gaikwad, Age 24 years, Occu.Labour 2. Madhav s/o Shivaji Gaikwad, Age 36 years, Occu.Labour 3. Shivaji s/o Bhivaji Gaikwad, Age 66 years, Occu.Labour All r/o Aurad, Taluka Umerga, District Osmanabad ..APPELLANTS VERSUS The State of Maharashtra ..RESPONDENT Mr.P.B.Patil, Advocate for appellants Mr.N.R.Shaikh, Assistant Public Prosecutor for respondent-State Mr.S.N.Morampalle, Advocate to assist the Assistant Public Prosecutor - absent. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 24th August 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellants, who stand convicted for an offence punishable under Section 302 read with sec.34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.2,000/- with a default stipulation of undergoing further rigorous imprisonment for three months in the event of non 2 payment of fine, by the Additional Sessions Judge, Omerga, by judgment dated 19.7.2008, in Sessions Case No.8 of 2006, by this appeal question the correctness of their conviction and sentence. 2. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus: Report of P.W.1 Mangalabai wife of Nilkanth Pawar came to be recorded by P.W.6 Gulabsing Parihar, a Police Sub Inspector attached to the Police Station, Omerga, on 5.2.2006. On the basis of the aforesaid report, an offence vide Crime No.25/2006, under Section 326, 504, 323 read with section 34 of the Indian Penal Code came to be registered. Upon registration of the offence, the investigation of the said crime came to be entrusted to P.W.6 Police Sub Inspector Parihar. He accordingly proceeded to the scene of the offence and drew the scene of the offence panchnama in the presence of P.W.4 Bhaskar Umaji Jadhav at Exh.60. On the same day the appellants/original accused Nos.1 to 3 came to be arrested. Two days thereafter, injured Nilkanth succumbed to his injuries and accordingly, post mortem on the dead body of deceased Nilkanth came to be performed by P.W.3 Dr.Kamble. P.W.3 Dr.Kamble noticed the following external injuries: 3 1. Contusion behind right ear; 2. Contusion on the right arm; 3. Abrasion on right ankle joint On internal examination, he noticed that there was injury to the temporal and occipital region under the scalp. There was also fracture on the base of the skull. There was a blood clots at the base. He had also noticed bleeding and blood clots in the brain tissues. He accordingly opined that Nilkanth had died on account of head injury. The post mortem report singned by P.W.3 Dr.Kamble is at Exh.58. He further opined that the head injury was possible by an iron rod, if hit on the head with force. 3. During custodial interrogation, accused No.1 Ankush had expressed his willingness to point out the place where an iron pipe was concealed. Accordingly, the memorandum of accused No.1 Ankush came to be recorded at Exh.53. The accused No.1 led the Police and the panch to the place where the iron pipe was concealed and accordingly produced iron pipe Article 1 which came to be seized vide panchnama at Exh.54. The investigation thereafter came to be transferred to P.I. Kutate, who completed the investigation and submitted the charge sheet. 4 4. On committal of the case to Court of Sessions, trial Court vide Exh.37 framed charge against the appellants for offence punishable under Section 302 read with sec.34 of the Indian Penal Code. The appellants/accused abjured their guilt and claimed to be tried. 5. Prosecution in support of its case examined six witnesses which comprised of two eye witnesses viz., P.W.1 Mangalabai and P.W.5 Ramesh. The entire prosecution case revolves around the testimony of P.W.1 Mangalabai wife of deceased Nilkanth and P.W.5 Ramesh, a cousin of deceased Nilkanth. P.W.1 Mangalabai states that she and her husband had gone to the agricultural field of one Jalindar Gaikwad. They were followed there by their dog. After some time, the dog started barking and she noticed accused Nos.1 to 3 walking by the foot way. At that time accused No.1 Ankush hit the dog Moti by an iron rod. Nilkanth questioned accused No.1 Ankush as to why he had beaten the dog and on hearing this accused No.1 Ankush retorted by saying even Nilkanth would be beaten like dog. Accused No.1 Ankush thereafter started abusing Nilkanth. Accused Nos.2 and 3, who were with accused No.1 Ankush came over to Nilkanth and assaulted him with kicks and fist blows. Accused Nos.2 and 3 caught Ankush and asked accused No.1 Ankush to assault him and thereupon Ankush hit the iron pipe on the head of Nilkanth. 5 When P.W.1 Mangalabai tried to intervene she was also assaulted. After sustaining the injury, Nilkanth fell on the ground that thereafter with the assistance of the other relatives, Nilkanth was shifted to the medical hospital of Dr.Chinchole and therafter was referred to the hospital at Solapur for treatment. On 5.2.2006, P.W.1 Mangalabai lodged the first information report at Exh.51. Nilkanth succumbed to his injuries on 7.2.2006. Though P.W.1 Mangalabai has been cross-examined at length, nothing of importance has been elicited in the cross-examination. She was confronted with portion marked “A” from her previous statement which again is an innocuous statement made in her previous statement. P.W.1 Mangalabai denied the suggestion that her husband who was under the influence of liquor had fallen on the pig used for tying the cattle and had sustained the injury. She also denied the suggestion that she has learnt about the incident from P.W.5 Ramesh. She denied the suggestion that she had informed Dr.Chinchole that deceased had sustained injury as a result of fall. 6. Prosecution has also examined P.W.5 Ramesh, a cousin of deceased Nilkanth. P.W.5 Ramesh also deposes on similar lines as that of P.W.1 Mangalabai. P.W.5 Ramesh, however, does not state about accused 2 and 3 catching the deceased in order to facilitate accused No.1 Ankush in assaulting deceased Nilkanth. 6 P.W.5 Ramesh also does not state about the exhortations given by accused Nos.2 and 3 to accused No.1 Ankush for assaulting deceased Nilkanth. This witness was also cross-examined at length but nothing of importance was elicited in the cross- examination which would discredit this eye witness. 7. Mr.P.B.Patil, learned Counsel for appellants has urged before us that no reliance could be placed on the testimony of P.W.1 Mangalabai and P.W.5 Ramesh. It is also urged before us that accused No.1 Ankush could not be convicted for an offence punishable under Section 302 of the Indian Penal Code as accused No.1 had no intention to cause death of deceased Nilkanth. Lastly, it is urged before us that in the light of the discrepant versions of the prosecution witnesses regarding accused Nos.2 and 3 holding deceased Nilkanth, no reliance could be placed on the evidence of P.W.1 insofar as it related to accused Nos.2 and 3 holding deceased Nilkanth. The learned Assistant Public Prosecutor has supported the judgment of conviction and has urged before us that accused Nos.1 to 3 have been rightly convicted for an offence punishable under Section 302 read with section 34 of the Indian Penal Code and no interference is called for in this appeal. 7 8. It is true that there is a major variance in the testimony of P.W.1 Mangalabai and P.W.5 Ramesh in respect of accused Nos.2 and 3 holding deceased Nilkanth in order to facilitate accused No. 1 Ankush in delivering the fatal blow on the head of deceased Nilkanth. It is equally true that there is variance in respect of the exhortations alleged to have been made by accused Nos.2 and 3 to accused No.1 Ankush for assaulting deceased Nilkanth. In the light of the aforesaid discrepant versions of these two eye witnesses, according to us accused Nos.2 and 3 would be entitled to be given the benefit of doubt. However, no interference is called for in the conviction and sentence of accused No.1 Ankush. Accused No.1 Ankush had voluntarily caused an injury to deceased Nilkanth and the said injury was sufficient in ordinary course of nature to cause death of Nilkanth and in fact, Nilkanth died on account of the aforesaid injury. Accused No.1 Ankush, therefore, would be guilty for an offence punishable under Section 302 of the Indian Penal Code and in the light of cluase thirdly of Section 300 of the Indian Penal Code. The evidence of the Medical Officer in no uncertain terms establishes that deceased Nilkanth died on account of the head injury and the evidence of the prosecution is unimpeachable on the score that it was accused No.1 Ankush, who had inflicted the head injury to deceased Nilkanth. In that light of the matter, therefore, the appeal deserves to be partly allowed. 8 9. Accordingly, this appeal is partly allowed and the conviction and sentence of original accused No.2 - Madhav s/o Shivaji Gaikwad and original accused No.3 - Shivaji s/o Bhivaji Gaikwad is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Their bail bonds stand cancelled. Fine, if paid by them, be refunded to them. The appeal stands dismissed in respect of the challenge to the conviction of accused No.1 Ankush s/o Shivaji Gaikwad. His conviction and sentence, therefore, stands confirmed. ( A.V.POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/359.08criapeal)