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2008 DIGILAW 301 (BOM)

Ganesh Girish Pande v. State of Maharashtra

2008-02-22

A.B.CHAUDHARI, A.P.LAVANDE

body2008
Per A.P.Lavande, J.: - By this appeal, the appellant (hereinafter referred to as 'the accused') takes exception to the Judgment and order dated 31st December, 2002 passed by the First Ad hoc Additional Sessions Judge, Gadchiroli in Sessions Trial No. 88/2001 convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay a fine of Rs. 1000/- and in default to suffer rigorous imprisonment for three months. 2. In nutshell, the prosecution case is as under: The accused and deceased Gautam Bhagat were residing at Japtalai. P.W. 1 Bhumikabai is the mother-in-law of deceased Gautam. The deceased had married Lopamudra the daughter of Bhumikabai. However, there was divorce between Lopamudra and deceased. After divorce Lopamudra got married to one Vilas Khobragade. Lopamudra had two sons and a daughter from the wed- lock with Gautam. 3. Deceased Gautam along with the children used to come often to the house of Bhumikabai. About 5 days prior to the incident which occurred on 19.8.2001 at about 5.00 p.m. in the house of Bhumikabai, the accused came and demanded his bicycle from the deceased on account of which there was a quarrel between the accused and the deceased. When they picked up quarrel Bhumikabai convinced them not to quarrel. Thereafter, both of them had meals. Thereafter, the accused went outside for a while and the deceased slept on the floor in the room in which there was previously a kirana shop which was being run by him while staying at the house of Bhumikabai. The accused came back from outside, picked up the spade which was kept in the corner of the room and gave a blow on the head of deceased. P.W.4 Swapnil and P.W. 5 Reshma who were playing nearby came to the spot and shouted. Thereafter, they went inside the kitchen and informed their grand mother Bhumikabai that the accused was beating their father whereupon she came and saw that the accused was beating deceased Gautam. She brought a glass of water for deceased and asked the accused why he beat deceased. The accused raised the same spade at her and threw the spade in the court yard and thereafter went away. Bhumikabai went to the Police Patil who also came to the spot and saw the dead body. She brought a glass of water for deceased and asked the accused why he beat deceased. The accused raised the same spade at her and threw the spade in the court yard and thereafter went away. Bhumikabai went to the Police Patil who also came to the spot and saw the dead body. Thereafter report was lodged in the Police Station on the next day since it was raining heavily and the buses were not available. The Investigating Officer after carrying out the investigation filed a charge sheet against the accused for the offence punishable under Section 302 of the Indian Penal Code in the Court of Chief Judicial Magistrate, Gadchiroli. The case was committed to the Court of Sessions. The defence of the accused is of total denial and false implication. During the trial, the prosecution examined 10 witnesses and produced several documents. 4. The trial Court upon appreciation of the evidence led by the prosecution held the accused guilty of murder and convicted and sentenced him as above. 5. Mr. Daga, learned counsel for the accused submitted that P.W. 1 Bhumikabai, P.W. 4 Swapnil and P.W. 5 Reshma are not the eye witnesses to the incident and as such their version that they were eye witnesses to the incident cannot be believed. He further submitted that the medical evidence does not support the prosecution case. In the alternative, Mr. Daga submitted that it is the case of the prosecution that the accused gave only one blow on head of the deceased and that too without premeditation and, therefore, at the most an offence punishable under Section 304 Part II of the Indian Penal Code is made out against the accused. 6. Per contra, Mr. Mirza, learned A.P.P. for the respondent submitted that the evidence of the three eye witnesses is cogent and their presence on the spot is natural. He further submitted that having regard to the evidence of these three witnesses and medical evidence the offence punishable under Section 302 is clearly made out against the accused. 7. We have considered the submissions of Mr. Daga and Mr. Mirza and perused the records. 8. Before we analyse the evidence of the three eye witnesses it is pertinent to note that in the cross-examination of P.W. 1 Bhumikabai the accused has not seriously disputed his presence at the time when deceased Gautam sustained injuries. 7. We have considered the submissions of Mr. Daga and Mr. Mirza and perused the records. 8. Before we analyse the evidence of the three eye witnesses it is pertinent to note that in the cross-examination of P.W. 1 Bhumikabai the accused has not seriously disputed his presence at the time when deceased Gautam sustained injuries. It has been suggested to P.W. 1 Bhumikabai there was quarrel between the accused and deceased and in the scuffle injured Gautam fell on the grill and thereafter fell on the spade on his right temple and received injuries. In the background of this defence taken by the accused the evidence of the three eye witnesses has to be appreciated. 9. P.W. 1 Bhumikabai deposed that on the date of the incident the accused came to her house at about 4.00 p.m. and the accused picked up quarrel with Gautam over the bicycle and she convinced him not to pick up quarrel. Thereafter, the accused and deceased Gautam had meals at her residence. After some time the accused came and picked up spade from the corner of her house and gave a blow to the victim whereupon her grand children started shouting that the accused was beating their father. She came running and and saw that the accused was beating Gautam. She claimed that the accused gave spade blow on the temple of Guautam. She asked the accused why he beat Gautam whereupon the accused rushed towards her with the spade. Thereafter the accused threw spade in the court yard. She left the house along with grand children and met Police patil who came to the spot and saw the dead body. Since it was raining heavily and buses were not available, both of them went to the police station next day morning and lodged report Exh. 12. In the cross-examination certain contradictions and omissions have been brought on record vis-a-vis the report. However, it has been further suggested to her that there was a scuffle between both of them and that there was a quarrel between the accused and deceased Gautam over the bicycle which deceased demanded from the accused which was followed by scuffle. 12. In the cross-examination certain contradictions and omissions have been brought on record vis-a-vis the report. However, it has been further suggested to her that there was a scuffle between both of them and that there was a quarrel between the accused and deceased Gautam over the bicycle which deceased demanded from the accused which was followed by scuffle. The witness has categorically denied that there was a scuffle between both of them on account of which deceased fell on the grill and thereafter over the spade which resulted in injuries to the right temple of the deceased. 10. In the evidence of P.W. 4 Swapnil and P.W. 5 Reshma, they claimed that on the day of incident their father was sleeping on the floor of the room where previously there was a shop and both of them were playing nearby. Thereafter the accused came and picked up the spade and gave a blow of spade on the head of their father whereupon both of them shouted. Their grand-mother rushed towards their father by taking a glass of water. The accused again raised the spade at their grand mother. However, the accused threw the spade and ran away leaving behind their father with bleedings injuries on his head. He was taken to the hospital in a jeep, however, he expired. 11. A careful perusal of the cross-examination of these two witnesses suggests that although they have not seen the incident of assault they have seen the accused with spade in his hand when they came to the spot after they heard the sound in the room where their father was sleeping and thereafter their grand mother Bhumikabai came to the spot and she saw the accused with the spade in his hand and the deceased lying on the ground with injuries on his head . 12. Thus, close scrutiny of the evidence of above three eye witnesses establishes that soon after the accused assaulted deceased Gautam with spade on head, P.W. 4 Swapnil and P.W. 5 Reshma came to the room where their father was assaulted by the accused and after hearing their shouts P.W. 1 Bhumikabai came to the spot and saw the accused with spade in his hand and deceased Gautam with bleeding injuries on his head. Since the accused has not disputed his presence at the time of Deceased Gautam sustained injuries and has taken a specific defence that deceased Gautam sustained injuries on account of fall on the spade after the scuffle between him and deceased, the only legitimate inference that can be drawn is it is the accused who assaulted deceased Gautam with the spade on his head causing him injuries which resulted in his death. 13. The evidence of above three witnesses is corroborated by spot panchanama (Exh. 15) and panchanama regarding seizure of spade (Exh. 17) as well as inquest panchanama (Exh.16) which have been proved through P.W. 2 Anil Shrawan. In so far as the recovery of the clothes of the accused is concerned, the trial court is right in holding that the same has not been proved but this fact by itself is not fatal to the prosecution case. 14. The version given by the above three witnesses stands corroborated by the medical evidence tendered through P.W. 3 Dr. Waman Ingale. P.W. 3 Dr. Waman deposed that on 20.8.2001 he conducted the post mortem on the dead body of Gautam Bhagat and he found the following external injuries: i) lacerated wound about 3 cm x 3 cm in the right occipital region. ii) In the occipital bone injury of 2 cm x 2 cm in the right occipital region. iii) Abrasion about 3 cm x 0.5 cm over left scapulor region. iv) The fracture of the right parietal bone. All these injuries were ante mortem. Upon internal examination he found that skull was open and brain haemorrhage was found. Fracture of right parietal bone was also found. He identified his signature on post-mortem report Exh. 20. He further deposed that injury on the head of the victim was possible due to hit by spade. In cross-examination nothing tangible has been brought on record to support the defence version. On the contrary, the defence version that the injuries could have been caused on account of fall on the back side of his head on the blunt part of blade has been specifically denied by the witness. Thus, the medical evidence clearly proves that the death of the deceased was homicidal. 15. The next question which arises for consideration is what offence is made out against the accused. Thus, the medical evidence clearly proves that the death of the deceased was homicidal. 15. The next question which arises for consideration is what offence is made out against the accused. The prosecution evidence clearly establishes that there was a dispute between the accused and deceased Gautam on account of the fact that the accused did not return the bicycle which was given by deceased to him and that the accused after having meals along with the deceased left the house of Bhumikabai and again came back and gave one blow of spade on the head of deceased Gautam with the spade which was already lying in the room. The evidence establishes that the accused gave only one blow on the head of the deceased while he was sleeping. No doubt mere fact that the single blow was given by the accused by itself is not sufficient to bring down the offence from Section 302 to 304 of the Indian Penal Code but in the present case the fact remains that the accused on account of petty dispute gave one blow on the head of the deceased with the spade which was available nearby. Moreover, there was no premeditation on the part of the accused. Therefore, we are of the considered opinion that it cannot be said that the accused intended to cause murder of deceased Gautam but the prosecution has been able to prove that the accused intended to cause injuries to the deceased which were likely to cause his death. Therefore, in our opinion, offence punishable under Section 304 Part I is clearly made out against the accused and not under Section 302 of the Indian Penal Code. Considering the facts and circumstances of the case, we are of the considered opinion that the substantive sentence of 10 years rigorous imprisonment would meet the ends of justice. 16. For the reasons, aforesaid the appeal is partly allowed. The order of conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code and sentence imposed is quashed and set aside and the accused is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 1000/- and in default to undergo rigorous imprisonment for three months. 1000/- and in default to undergo rigorous imprisonment for three months. Needless to mention that the accused is entitled to set off under Section 428 of Cr.P.C. Appeal allowed.