1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.195 OF 1998 Date of decision:5/1/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/195-98cr.a 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.195 OF 1998 Tukaram s/o Dhudku Mali, Age: 22 years, Occ: Agricultural, r/o. Nandane, Tq. & Dist: Dhule. ...APPELLANT (Accused) VERSUS The State of Maharashtra. ...RESPONDENTS ... Mr. B.R.Warma, Adv., for the appellant. Mr. V.H.Dighe, APP for respondent State. ... CORAM: K.U.CHANDIWAL, J. DATE : Jan. 5th, 2011 ... ORAL JUDGMENT: 1. In Sessions Case No.48/1997, the accused/appellant with his other relations was booked for an offense under Sections 306 and 498- A read with Section 34 of IPC. Learned Sessions Judge, after analysis of all the evidence, by his judgment and order dt.30th of June, 1998, acquitted the accused/appellant and his relations, namely, Dhudku and Jabanabai of the 3 offense under Sections 306, 498-A read with Section 34 of IPC, however, the accused/appellant Tukaram, then 22 years old, was convicted for an offense under Section 323 of IPC and was directed to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-; in default, to suffer further simple imprisonment for one month. It is this order of the learned Second Additional Sessions Judge, Dhule, which is impugned in the present appeal. 2. The marital relations of the accused/appellant with Seema six months prior to the incident and the suicide committed by Seema, followed by post mortem, is not in controversy. 3. Learned Counsel for the accused/appellant submits that the conviction for an offense under Section 323 of IPC was uncalled for as the injury below the eye-lid to the deceased Seema could be on account of her fall owing to irritation suffered by her having been under the effect of poisonous substance organo- phospharous. For this purpose, my attention was invited to the evidence of Dr.Ramkrishna Bhusale, Professor of Forensic Medicine, who carried the post mortem on the dead body of Smt.Seemabai, who was notified by Police Constable No. 1762 of Songir Police Station. 4 4. In order to establish the injury, evidence of PW No.4 Dr.Baliram Daga Khalane and post mortem notes are of crucial nature. As indicated earlier, the injury or the contusion on the left eye side of the deceased is not of much controversy. The suggestion was, it could only be due to fall of the victim. 5. This suggestion is, indeed, not in tune with the record. The evidence of PW No.4 Dr.Baliram Khalane illustrated, on 10.2.1997, at around 6.30 p.m., since accused No.3 Jamnabai had came to him, he visited the house and noticed that the deceased had sustained an injury at her left eye. Though in the examination in chief he has stated there was no talk in between him and Seemabai, however, it is in-conceivable as in Police statement under Section 161 Cr.P.C. illustrated that he had made such queries to her as to the cause of her injuries in which she has informed it was due to beating by her husband - the accused/appellant herein. Denial of PW No. 4, to this effect, in the cross examination by the learned A.P.P. is of no consequence to the assistance of the accused/appellant as the circumstance rebels against the accused/appellant. The incident of consuming the poisonous substance is after the event of PW No.4 noticing the injury as is clear in his evidence, having informed that, at around 6 a.m. 5 Seemabai suffered due to inhaling the poisonous substance referred above. 6. The evidence of PW No.3 Devkabai also supports that when she went to the house, she found Seema was having injury at the side of her left eye. This is also corroborated by PW No.2 Himmatrao in his deposition. Thus, the cause for injury due to fall is taken away. The fact remains that it was a disclosure by Smt.Seema to PW No.4, at the time when he went to attend Seema. At that time, he made such inquiry. 7. The observation of the learned Judge, in holding the accused guilty for an offense under Section 323 of IPC, for the incident of causing injury to Seema, in the set of above facts, cannot be said to be a moral conviction. It was the evidence which was surfacing before the learned District Judge made him to inflict the sentence, as stated above, for an offense under Section 323 of IPC. 8. With all said and done, the accused, at the material time was 22 years of age, a labour, and has already undergone long drawn turmoil. He was in custody from 11.2.1997. The record illustrate that he was in jail even on 21-4-1997 till 5-5-1997. The period of his custody runs around two months and twenty five days. 6 9. Though I do not find any error on the part of the learned Judge in convicting the accused/appellant under Section 323 of IPC, however, the sentence of six months is reduced to the period already undergone from 11.2.1997 to 5.5.1997. The fine amount is already deposited. The appeal is partly allowed in above terms. The bail bonds stand canceled. Surety discharged. (K.U.CHANDIWAL) JUDGE ... AGP/195-98cr.a