High Court
Facts
Criminal Appeal No.809/2018:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.809 OF 2018Sudam s/o Hira ValviAge 42 years, Occu. Agri.,R/o Pachamba, Tal. Navapur,District Nandurbar… APPELLANTVERSUSThe State of MaharashtraThrough Police Station Navapur,Dist. Nandurbar(Copy to be served on office ofPublic Prosecutor, High Court of Judicature at Bombay,Bench at Aurangabad… RESPONDENT.......Mr. Ram S. Shinde, Advocate for appellant Mrs. U.S. Bhosle, Addl. P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 12th January, 2024Date of pronouncing judgment : 18th January, 2024JUDGMENT (PER R.G. AVACHAT, J.)The challenge in this appeal is to an order of convictionand sentence, dated 25/9/2018, passed by learned SessionsJudge, Nandurbar, in Sessions Case No.05/2018, convicting theappellant for the offence punishable under Section 302 of the IndianPenal Code and sentencing to suffer imprisonment for life and topay fine of Rs.1000/-, in default to suffer R.I. for three months; and Criminal Appeal No.809/2018:: 2 ::also convicting the appellant for the offence punishable underSection 341 of the Indian Penal Code and sentencing to suffersimple imprisonment for one month. Both the sentences have beendirected to run concurrently.2.Facts giving rise to the present appeal are as follows :- Vishal (deceased) was a 23 year old son of P.W.1Sonarsing. He was serving with a petrol pump at Navapur. P.W.6(“X”) was widow of uncle of deceased Vishal. The appellant wantedto have relationship with her. He had even offered to marry her.P.W. 6 (“X”) did not like the same. The deceased was annoyed withthe appellant’s behaviour. A quarrel over the same took placebetween the two. While the deceased was passing on hismotorbike along the road from in front of the appellant’s residence,the appellant intercepted him and gave on his head a stick blow.P.W.4 Vilpesh was said to be in the company of Vishal that time.He and the son of the appellant rushed Vishal to Civil Hospital,Navapur in an autorickshaw of the appellant. Vishal was, however,declared dead on admission.3.P.W.1 Sonarsing lodged the F.I.R. (Exh.13). A crimevide C.R. No.256/2017, therefore, came to be registered andinvestigated as well. The appellant was arrested duringinvestigation. Pursuant to a disclosure statement made by him, athick wooden stick (Dengara) came to be seized. Clothes on the Criminal Appeal No.809/2018:: 3 ::person of the deceased were taken charge of. Statements of thepersons acquainted with the facts and circumstances of the casewere recorded. The appellant was proceeded against by filing thecharge sheet.4.The Court of Judicial Magistrate, First Class committedthe case to the Court of Sessions for trial in accordance with law.Learned Sessions Judge, Nandurbar (Trial Court) framed theCharge (Exh.6). The appellant pleaded not guilty. His defence is offalse implication. According to him, the deceased died of anaccident (fall from motorbike). 5.The prosecution examined 14 witnesses and producedin evidence certain documents. The Trial Court, on appreciation ofthe evidence in the case, convicted the appellant and consequentlysentenced him as stated hereinabove. The appellant is thereforebefore us,.6.Heard. Learned counsel for the appellant would submitthat, P.W.1 Sundarsing, who lodged the F.I.R., is not an eye witnessto the incident. He was away in Gujarat. He returned to the villageon having learnt about the incident. After funeral of the deceased,his relations and friends had deliberation. According to learnedcounsel, the F.I.R. is an outcome of such deliberation. P.W.1Sundarsing had an axe to grand against the appellant as theappellant allegedly wanted to establish relationship with a widow of Criminal Appeal No.809/2018:: 4 ::his (P.W.1) brother. Turning to an eye witness account, the learnedcounsel would submit that, there is glaring inconsistency inter-sethe evidence of P.W.4 Vilpesh, P.W.7 Avinash and P.W.8 Ravindra.Their presence at the scene of offence is doubtful. P.W.7 Avinashadmitted to have learnt the deceased to have met with an accident.The investigating officer did not seize the motorbike. Although thewooden stick came to be seized pursuant to the alleged disclosurestatement made by the appellant. The C.A. report regarding bloodstains thereon was inconclusive. The witness to the seizurepanchanama admitted that the stick was not sealed in his presence.Learned counsel would further submit that, the Medical Officer(P.W.14) Dr. Rechal admitted that the injury suffered by thedeceased was possible by accident or fall on rough surface.According to the learned counsel, the prosecution evidence is shortof establishing the charge beyond reasonable doubt. He, therefore,urged for allowing the appeal.7.The learned A.P.P. would, on the other hand, submit theTrial Court to have appreciated the entire evidence on record. Ithas also observed the demeanour of the witnesses. P.W.4 Vilpeshis an eye witness. Most of the prosecution witnesses are rustictribals. Evidence of some of the witnesses was recorded with theassistance of interpreters. She took us through the evidence of thewitnesses to submit the appellant had given threats of eliminatingthe deceased. He translated his intention into act. The learned
Legal Reasoning
Criminal Appeal No.809/2018:: 11 ::18.We do not propose to give much credence to theevidence of this witness. P.W.6 (“X”) has grown up children.P.W.10 Sangita (widow of deceased Vishal) testified that, there wassuspicion over relationship between the appellant and P.W.6 (“X”).It would have been children of P.W.6 (“X”) to be more eager to seethe appellant would not trouble their mother. The reason put forthby the prosecution, therefore, appears to be not probable.19.The incident appears to have a prelude. The appellantgave a disclosure statement (Exh.20) in the presence of P.W.3Prakash and P.W.11 Guman. Both were serving as Talathi (publicservants). These witnesses have no reason to give false evidence.The evidence of both these witnesses indicate the appellant to havemade a disclosure statement, pursuant to which a wooden stickcame to be seized from a standing sugarcane crop. The disclosurestatement given by the appellant was recorded. True, the seizedstick was not sealed with a label with signatures of these witnesseswhile it was taken charge of. The report relating to blood groupingof the blood stains found on the stick was inconclusive. It,therefore, could not be said that the seized stick was used by theappellant to assault the deceased with. The disclosure statementbears the appellant’s signature. The confessional part thereinwould necessarily be inadmissible in evidence against theappellant. In our view, however, whatever non-incriminatingdeposed to was by the appellant to his aid, could very well be Criminal Appeal No.809/2018:: 12 ::referred to and relied on. What was deposed to (Exh.20) by theappellant in the presence of these two witnesses is, therefore,reproduced below in verbatim. " आररपपचचननवचदन:- ममझचनमवससदममनहरमवळवपरम. पमचचबम असचअससनमपसधयमपरलपसकसटडपतआहच. ममझमपसतणयम नवशमलसरनमरससचगवळवप, वय२३, रम. पमचचबमयमचचममझयम मरठमबनहणपचयममसलपशपपचमसचबचधहरतच. तयमनचतरनवशमलचच लगझमलच. तयमलमदरनमसलचझमलप. तयमनचलगझमलयमवरहप ममझयमबनहणपचयममसलपशपपसषपलतमनहचयमशपपसनहमपचमसचबचधठचवलच. यमवरनआमचयमदरघमचचयमतबऱयमचवचळमवमदहप झमलचलचहरतच. नदनमचक४/११/ २०१७ररजपसमयचकमळप०६/०० चयमदरमयमनमपससकवचलतचवमटवपयमररडवरपलममझयम शचतमतपलघरपहरतर. तचथचनवशमलहमतयमचयमवमटवपयचथपल नमतमचसरबतमरटरसमयकलवरआलममलमबरललमककतसलम आतमघचऊनजमतर. ममरनटमकतर. तरमलमआईवरननशवप दचतहरतम. तयमनचगमडपवरनखमलपउतरनमलमदगडममरलम. तरमपचसकनवलमवममझयमअचगणमतपडलचलयमलमकडपडडगऱयमनच तयमचयमडरकयमतममरलच. तरडमचबरपररडवरखमलपपडलमव तयमचयमडरकयमवरनरकयचवसलमगलच. मगतयमलमममझपररकमक. GJ-26 T 3097 यमतटमकसनमप, ममझममसलगमनशरपषव नवशमलचमनमतअसचआमहपऔषधरपचमरमसमठपससववहल हहवसपटललमनवमपसरयचथचघचवसनआलर. तचथचममझयममसलमनच तयमलमऍडनमटकचलच. तरलमकडपडडगमरमकरठचठचवलमआहचतच मलमममनहतपआहच. तरडडगमरममपकमढसनदचतर. तसमहपममझयम सरबतचलम.” 20.It is reiterated that, the disclosure statement given bythe appellant is not being used against him. The same is, however,relied on in his support. The prosecution cannot disown the same.The statement given by the appellant was earliest in the point oftime. He made the same on the following day. His statementindicates the deceased had emotional relationship with thedaughter of the appellant’s sister. In spite of the deceased gettingmarried with other girl and he having been blessed with two Criminal Appeal No.809/2018:: 13 ::children, he continued his relationship with the niece of theappellant. A quarrel had, therefore, ensued between the two. Itwas the deceased, along with his friend had, therefore, been to theresidence of the appellant. He abused the appellant and gavethreats to his life. He even pelted a stone at the appellant. Thisversion appears to be the reason behind the assault.21.The prosecution did not lead any evidence to suggestthat the appellant was in the know that the deceased was to passby his residence at a particular time and therefore the appellant layin wait of the deceased to appear and assault him. What has beendeposed to by the appellant in the presence of P.W.3 Prakash andP.W.11 Guman indicates that the appellant did not intend toeliminate the deceased. He gave one blow on the forehead of thedeceased. The same proved to be fatal. True, it must have been aforceful blow. The F.I.R. also reveals that the incident took placeover old dispute. Had the appellant really intended to commitmurder of the deceased, he would have given more than one blow.The incident appears to have taken place without premeditation in asudden fight in a hit of passion upon a sudden quarrel. Theappellant also appears to have not taken undue advantage or actedin cruel or unusual manner. The incident could also be said to haveoccurred as a result of the appellant to have deprived of power ofself control by grave and sudden provocation. Criminal Appeal No.809/2018:: 14 ::22.It is reiterated, there is no evidence to indicate theappellant was aware that the deceased was to pass by the road infront of his residence and he was armed with a wooden stick,waiting for arrival of the appellant and then to assault him. On thecontrary, what has been stated by the appellant in his disclosurestatement appears to be probable one and, therefore, the case fallswithin the exception 1 and 4 to Section 300 of the Indian PenalCode. The conviction recorded by the Trial Court for offencepunishable under Section 341 of the Indian Penal Code is,therefore, liable to be set aside. Moreover, the conviction recordedfor the offence punishable under Section 302 of the Indian PenalCode is, therefore, required to be modified and the appellant isrequired to be convicted for the offence punishable under Section304 of the Indian Penal Code. The sentence of life imprisonment isbeing converted to rigorous imprisonment for a period of seven andhalf years. With these observations, the appeal partly succeeds.Hence the order : O R D E R(i)The Criminal Appeal is partly allowed.(ii)The order of conviction and sentence, dated 25/9/2018,passed by learned Sessions Judge, Nandurbar, in SessionsCase No.05/2018 for the offence punishable under Section341 of the Indian Penal Code is hereby set aside. Criminal Appeal No.809/2018:: 15 ::(iii)The order of conviction and sentence, dated 25/9/2018,passed by learned Sessions Judge, Nandurbar, in SessionsCase No.05/2018 under Section 302 of the Indian PenalCode is hereby set aside. The appellant is convicted for theoffence punishable under Section 304(II) of the Indian PenalCode and sentenced to suffer rigorous imprisonment forseven and half years and to pay fine of Rs.1000/- (Rupeesone thousand), in default to suffer further rigorousimprisonment for three months. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Criminal Appeal No.809/2018:: 5 ::A.P.P. ultimately urged for dismissal of the appeal.8.Considered the submissions advanced. Perused theentire evidence, oral and documentary. Let us advert thereto andappreciate the same.9.Although the prosecution examined 15 witnesses, theevidence of witnesses relevant for deciding the present appealwould be adverted to. Two of the 15 witnesses examined by theprosecution namely P.W.5 Bhagatsing and P.W.9 Manisha wereinterpreters. P.W.12 Yogesh is a Police Constable who carriedmuddemal articles to the Regional Forensic Science Laboratory,Nasik. P.W.11 Guman is the witness to the disclosure statementmade by the appellant, pursuant to which the stick came to beseized. 10.P.W.14 Dr. Rechal conducted autopsy on the mortalremains of deceased Vishal. He noticed injury in the nature ofC.L.W. on the forehead. The injury admeasured 5 X 5 cms. It wasgrievous in nature and ante-mortem. No other injury was noticedon the person of the deceased. In the opinion of P.W.14 Dr.Rechal, the deceased died of head injury – hypovolemic shock. 11.During cross-examination, P.W.14 Dr. Rechal admittedthat the injury noticed on the person of the deceased might havebeen possible by an accident or fall. As such, the evidence of Criminal Appeal No.809/2018:: 6 ::P.W.14 Dr. Rechal does not lead us to conclude the deceased diedof homicidal death, although the trial Court came to the sameconclusion on the very evidence.12.P.W.1 Sonarsing, father of the deceased lodged theF.I.R. (Exh.13). It is in his evidence that, on the fateful day he washome. The deceased left the house informing him to have beengoing with his friend. The deceased left on motorbike. It was littlepast 6.00 p.m. After half an hour, he learnt the appellant to haveassaulted his son with a stick and the son had, therefore, beenrushed to Civil Hospital, Navapur. He, therefore, rushed to thehospital to find his son to have already breathed his last.13.He was subjected to a searching cross-examination.Answers given by him to the questions put in cross-examinationindicate that he was serving in Gujarat. He was, however, specificto deny to have rushed to the village from Gujarat only after havinglearnt about the incident. He admitted to have received dead bodyof his son. According to him, it was about 2.30 p.m. by which lastrites of the deceased were performed. He admitted to have had ameeting with his relatives and then it was decided to lodge thereport (F.I.R.). It is further in his evidence that, the appellant is hisrelative. The appellant got irrigated land to his share. He denied tohave ever visited the Police Station. According to him, 5 – 6 daysafter the incident, he was called to the Police Station. His Criminal Appeal No.809/2018:: 7 ::statement was recorded. According to him, Exh.13 (F.I.R.) is thesaid statement.14.It is reiterated that, almost all the witnesses are rustictribals. The investigating officer got recorded the statements ofP.W.1 Sonarsing and some other witnesses under Section 164 ofthe Code of Criminal Procedure as well. The F.I.R. on recordindicates the same to have been registered by 9.00 p.m. Thestation diary entry to that effect was also made by 9.50 p.m. Thescene of offence panchanama was drawn at 12.00 noon on thefollowing day. The inquest was also conducted immediately. Thesame suggests the investigation of the crime was commencedwithin hours of the incident. Memory of P.W.1 Sonarsing might nothave served him well while he gave evidence before the Court.Since he is not an eye witness to the incident, and based on hisreport the criminal law was put in motion, we do not propose to givemuch importance to the evidence elicited during his cross-examination.15.According to the prosecution, the incident waswitnessed by P.W.4 Vilpesh, P.W.7 Avinash and P.W.8 Ravindra.We have closely scrutinized the evidence of the last two witnesses-P.W.7 Avinash and P.W.8 Ravindra to find their evidence to be shortof inspiring confidence. Evidence of P.W.7 Avinash indicates that,while he was on way from Sukvel to his village Pachamba, he saw Criminal Appeal No.809/2018:: 8 ::Vishal (deceased) lying on the road in front of the house of theappellant. He claimed to have seen the appellant assaulting Vishal.He pleaded appellant not to beat. According to him, appellant’s sonShirish and P.W.4 Vilpesh rushed Vishal to hospital in appellant’sautorickshaw. This witness, in his cross-examination, however,testified that, after having learnt the deceased met with accident, hesaw dead body lying on the road. This witness appears to havebeen won over. Be that as it may. His evidence indicates, he maynot have witnessed the incident. For the very reason, we do notpropose to rely on the evidence of P.W.8 Ravindra. His evidencesuggests that, while he was returning back to village Pachamba, hesaw Vishal lying on the road. P.W.8 Ravindra claims to have beenin the company of P.W.7 Avinash. He did not accompany thedeceased to the hospital. He goes back to his home..P.W.10 Sangita is a widow of the deceased. It is in herevidence that, the deceased was serving with a petrol pump. Onthe given day, the deceased had a night shift i.e. from 11.00 p.m.onwards. Her evidence, therefore, suggests that the deceased wasnot on duty during the day time. The case is based on evidence ofP.W.4 Vilpesh. It is in his evidence that, the deceased was hisfriend. He was in the company of the deceased. Both of them hadbeen to Sukvel on motorbike. While they were on their way backfrom Sukvel, the appellant intercepted their motorbike. He hit on Criminal Appeal No.809/2018:: 9 ::the head of Vishal with a wooden stick (Dengara). According tohim, the appellant gave two more blows, one on chest and third onein the back. This evidence would further indicate that the deceasedwas requesting the appellant not to beat him. The appellant’s sonShirish rushed Vishal to the hospital in appellant’s autorickshaw.16.P.W.4 Vilpesh identified the stick before the Court asthe one used by the appellant to hit on the head of the deceased.He was, however, categorical to admit that such sticks are easilyavailable in the market and at house of anyone including farmers aswell. His evidence would further suggest that he was serving as aSalesman with a cloth shop. He denied that he was in the companyof Sarpanch Avinash (P.W.7). He, however, testified to have comewith the Sarpanch upto the village Aamlad. He met Vishal there.He accompanied Vishal on his (Vishal’s) request. He denied tohave not seen the incident. He was categorical to state that it washe and the son of the appellant who shifted Vishal to the hospital. Itwas specifically suggested to P.W.4 Vilpesh that at the time ofincident, he himself, deceased and the son of the appellant werethe only persons present. This suggestion goes a long way toconclude the appellant to have admitted presence of P.W.4 Vilpeshat the scene of offence. True, P.W.4 Vilpesh appears to have givensome exaggerated version of the incident. We have to sift the grainfrom chaff. True, this witness attributed the appellant to haveinflicted two more injuries. The post mortem report, however, Criminal Appeal No.809/2018:: 10 ::indicates the deceased died of sole head injury. Since the defenceitself admitted the presence of P.W.4 Vilpesh at the scene ofoffence. After close scrutiny of his evidence, we find presence ofP.W.4 Vilpesh at the scene of offence along with the deceased. Afalse defence at times fill in a missing link. It could not be said to bea co-incidence that the deceased died in front of the house of theappellant. Although the Medical Officer Dr. Rechal (P.W.14) hasopined that the head injury suffered by the deceased might havebeen possible by accident or fall, we are not in agreement with thesame. For suffering a forehead injury, a fall must be on face. In thecase in hand, the deceased did not suffer even a scratch elsewhereon his body. If we accept the case of the defence that he had fallenfrom a motorbike, he would have suffered more than one injury. Afall from motorbike could either be on left or right side. While sucha fall from motorbike, one would not suffer a forehead injury. Non-seizure of the motorbike would, therefore, be of little consequence. 17.The motive has, however not been proved. It is thecase of the prosecution that, P.W.6 (“X”) is a widow of the real uncleof the deceased. It is in her evidence that, the appellant wouldtrouble her. He would knock on the door of her residence. Theappellant wanted to establish illicit relationship with her. She hadsent a message through Vishal (deceased) to the appellant not totrouble her.