High Court · 2024
Facts
-1- Cri.Appeal.389.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 389 OF 2004Ramchandra S/o. Bhagaji Palve, Aged : 32 years, Occu. : Labour, R/o. Donwada, Tq. Jintoor, Dist. Parbhani.… Appellant(Orig. Accused)VersusThe State of Maharashtra… Respondent (Orig. complainant)…Mr. S. V. Mundhe, Advocate for AppellantMr. A.A.A. Khan, APP for Respondent - State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 16 JULY 2024PRONOUNCED ON : 20 JULY 2024JUDGMENT :1.Conviction recorded by the learned Sessions Judge,Parbhani in Sessions Trial No.156 of 2003, convicting appellant foroffence punishable under section 304A of Indian Penal Code videjudgment and order dated 16.04.2004 is assailed by way of presentappeal.PROSECUTION CASE IN TRIAL COURT IN BRIEF2.On 19.07.2003, appellant and deceased Ramkishan,who were both working as watchmen, had returned towards thehouse of deceased. In the backdrop of accusation of using coil of -2- Cri.Appeal.389.2004heater, which did not belong to him, there was heated exchange ofwords between both of them. In presence of informant - wife ofdeceased, accused slapped deceased Ramkishan, lifted him andflung him on the ground. Accused then sat on his chest and beathim. Peoples present there, separated them. After a short while,deceased fell unconscious and froth was coming from his mouthand so he was taken to hospital, but on examination, he wasdeclared dead. Therefore, on report lodged by PW1 Manoramabai,crime was registered by Jintoor police station bearing No.106 of2003 for offence punishable under sections 302 of Indian PenalCode (IPC). 3.On completion of investigation, PW10 P.I. Nimmanwar,Investigating Officer, charge-sheeted accused. Case beingexclusively triable by Court of Sessions, was tried by learnedSessions Judge, Parbhani, vide Sessions Trial No.156 of 2003 andon appreciating the case of prosecution and analyzing theevidence, learned trial Judge reached to a finding that, it is not atall a case of homicide, rather a case of culpable homicide notamounting to murder has been made out, and by judgment andorder dated 16.04.2004 convicted appellant for offence punishableunder section 304A of IPC and sentenced him to suffer rigorousimprisonment for six months and to pay fine. -3- Cri.Appeal.389.2004 It is the above judgment and order of conviction whichis now taken exception to, by the original accused by filing instantappeal before this Court.EVIDENCE ADDUCED IN TRIAL COURT4.PW1 informant Manoramabai deposed that, on the dayof incident, accused came in front of their house and questionedher husband for bringing a coil of electric heater. When herhusband denied, he initially slapped, then lifted her husband andthrew on the ground. Thereafter, accused sat on the chest of herhusband and gave fist blows. At that time, one Dhumal and Rautwere present there. Police was informed, who came and took thedeceased to hospital, but on examination, he was declared deadand therefore she lodged report at Exh.11. PW2 Baburao denied seeing any occurrence of fall ofRamkishan and being assaulted by Ramchandra, and therefore, notfinding him supporting, he was cross examined. PW3 Dr. Rizwan Kazi, autopsy doctor, who conductedpostmortem and issued opinion about probable cause of death dueto asphyxia due to head injury.
Legal Reasoning
-7- Cri.Appeal.389.2004extradural and subdural hemorrhage to the brain. A contrecoupinjury occurs at the side of impact where force of impact is directlytransmitted to the brain, whereas contrecoup injuries occurs onthe opposite side of the brain from the side of impact. Here,precisely findings recorded by autopsy doctor suggest that thoughthere is injury to forehead, the impact is to the brain. 11.Admittedly, occurrence erupted all of a sudden. Bothare colleagues. Initial quarrel resulted into slapping and then whendeceased fell, his wife PW1 deposed about accused sitting on hischest and showering fist blows. Therefore, learned trial Judgecorrectly recorded the findings that it is not a case homicidaldeath, rather it is a case falling under culpable homicide notamount to murder and thereby offence of 304A is said to beproved. Appreciation is correct. No perversity or illegality hasbeen brought to the notice of this court in the observations andfindings reached at by learned trial Judge. Consequently, findingno merits in the appeal, I proceed to pass following order :- ORDERThe appeal is hereby dismissed. (ABHAY S. WAGHWASE, J.) Tandale
Arguments
-4- Cri.Appeal.389.2004 PW4 Prabhakar, pancha to inquest panchanama atExh.16. PW5 Naseer Ahmad, PSO, who registered crime bearingNo.106 of 2003. PW6 Giridharidas, brother of owner of factory whereaccused and deceased were working as a watchmen, stated that, onthe next day, he learnt that, there was quarrel between accusedand deceased. On inquiry he learnt that, deceased removed the coilof electric heater. PW7 Sitaram is the Muneem of the factory whereaccused and deceased were working. He claims to have receivedtelephonic information about quarrel, visiting the spot and seeingand meeting wife of deceased. PW8 Digamber, pancha to spot panchanama at Exh.22. PW9 P.S.I. Mukund Deshmukh and PW10 P.I. ShrikantNimmanwad are the Investigating Officers. SUBMISSIONSOn behalf of Appellant : -5.Challenging the verdict, the learned counsel forappellant would submit that, prosecution has not proved thatdeath of Ramkishan was only and only because of assault. He -5- Cri.Appeal.389.2004pointed out that, they both were colleagues. Prosecution evidencesuggest merely slapping. That, deceased fell and suffered injuries.He pointed out that, there are no external injuries. He took thiscourt through the substantive evidence of PW3 autopsy doctor, andwould submit that, opinion issued is about death due to asphyxiadue to head injury. That, such death is not possible on account ofbeating or falling. He pointed out that, independent witness hasnot supported the prosecution. That, there is no corroboration tothe testimony of informant wife. Therefore, he questions thefindings and reasons and prays to allow the appeal by setting asidethe impugned judgment. On behalf of Respondent – State :-6.Supporting the judgment, learned APP pointed outthat, wife is a direct eye witness. She has narrated whatever shesaw. In her presence followed by quarrel appellant initially slappedher husband, then lifted and threw him on the floor, which washard surface. The force with which he was thrown caused internalbleeding. Death was only and only because of the episode wherethere is overt act of appellant. Therefore, according to learned APP,learned trial court has correctly held appellant guilty for culpablehomicide not amounting to murder and he prays not to interfere asdeath has been caused by appellant. -6- Cri.Appeal.389.2004ANALYSIS7.Admittedly, though appellant was charge-sheeted forcommission of offence under section 302 of IPC, learned trial Judgeheld case proved to the extent of offence punishable under section304A of IPC. 8.Fundamental attack in appeal is that, mere slappingand fall would not result in death. Secondly, medical evidence doesnot show external injury except forehead. 9.On going through the postmortem report, moreparticularly, column no.17, following injuries are noticed on theperson of deceased :- “Contused lacerated wound over forehead just above righteyebrow – 2cm x ½ cm x ¼ cm – oblique in directionprobably caused within 12 to 24 hours. Grievous injury.”10.Though doctor has issued probable opinion regardingdeath due to asphyxia due to head injury, there are other findingsalso regarding extradural and subdural hemorrhage, which isinternal injuries. Admittedly and there is not dispute that, injurywas noticed on the forehead. In the considered opinion of thiscourt, it is contrecoup injury as there is finding of doctor regarding