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2012 DIGILAW 35 (BOM)

Bhaskar s/o. Namdeo Padal v. State of Maharashtra

2012-01-06

P.V.HARDAS, PRASANNA B.VARALE

body2012
JUDGMENT P.V. HARDAS, J. :- The appellant, who stands convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.500/-, in default, to undergo further RI for one month by the Additional Sessions Judge, Pandharkawda (Kelapur) by judgment dated 09.03.2006, in Sessions Trial No. 34 of 2003, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus:- PW-5 Dnyaneshwar Kadu an API, who was attached to Police Station, Wadki, on 10.03.2003, recorded the complaint of PW-1 Ramdas Jawade at Exh.31. On the basis of the said complaint of PW-1 Ramdas at Exh. 31, an offence vide Crime No.16/2003 under Section 302 of the Indian Penal Code was registered. The printed FIR is at Exh.43. PW-5 API Kadu then proceeded to village Khadki and in the presence of the panch witnesses, arrested the accused under arrest panchnama at Exh.19. Blood stained clothes of the accused were seized under seizure memo at Exh.38 in the presence of the panch witnesses. The accused was referred for medical examination under requisition at Exh.14. On the next day, PW-5 API Kadu proceeded to village Khadki and in the presence of panch witnesses, drew the scene of the offence panchnama at Exh.34. Inquest panchnama of the dead body of deceased Sanjay was also drawn in the presence of panchas at Exh.35. The dead body was referred for postmortem examination along with the letter at Exh.18. From the scene of the incident, ordinary mud, blood mixed mud, a broken piece of handle of badsi and a piece of skull of deceased were seized vide seizure memo at Exh.36. The statements of witnesses were recorded and the accused was referred to the Medical Officer, Pandharkawda for collecting the nail clippings and blood sample along with the requisition at Exh.45. The nail clippings and the blood sample received from the Medical Officer, Pandharkawda were seized in the presence of panch as at seizure memo at Exh.40. The viscera of the deceased and the blood sample of deceased which was forwarded by the Medical Officer was seized in the presence of panch as vide seizure memo at Exh.41. The nail clippings and the blood sample received from the Medical Officer, Pandharkawda were seized in the presence of panch as at seizure memo at Exh.40. The viscera of the deceased and the blood sample of deceased which was forwarded by the Medical Officer was seized in the presence of panch as vide seizure memo at Exh.41. The accused, when taken to his house, produced a bamboo stick and badsi from the heap of parati which was seized in the presence of panchas vide seizure memo at Exh.39. The blade of badsi which is an instrument used by the carpenter and the bamboo stick were forwarded to the Medical Officer for obtaining his opinion along with the communication at Exh.46. The clothes and the other seized articles were referred to the Chemical Analyser along with the requisition at Exh.47. Further to the completion of investigation, a charge sheet against the applicant/accused was filed. 3. On committal of the case to the Court of Session, the trial Court vide Exh.8 framed charge against the appellant/accused for the offence punishable under Sections 449 and 302 of the Indian Penal Code. The appellant accused denied his guilt and claimed to be tried. 4. The prosecution, in support of its case, examined seven witnesses. The defence of the appellant is of denial. The trial Court, upon appreciation of the evidence of prosecution witnesses, convicted and sentenced the appellant as aforestated. 5. In order to effectively deal with the submissions advanced before us by Shri R.M. Daga, the learned Counsel appearing on behalf of the appellant and Shri T.A. Mirza, the learned Additional Public Prosecutor appearing on behalf of the respondent/State, it would be useful to refer to the evidence of the prosecution witnesses. 6. PW-1 Ramdas, an eye witness to the incident, states that the house of deceased Sanjay is opposite to his house and is at a distance of about 20 to 25 feet. PW-1 Ramdas further states that he was sitting on the doorsteps of his house and had noticed the appellant going to the house of deceased Sanjay and kicking the front door. The accused was abusing Sanjay and was extorting him to come out of the house. Deceased Sanjay thereupon opened the outer door of his house and came outside. There was a scuffle between the accused and deceased Sanjay in the courtyard of the house of Sanjay. The accused was abusing Sanjay and was extorting him to come out of the house. Deceased Sanjay thereupon opened the outer door of his house and came outside. There was a scuffle between the accused and deceased Sanjay in the courtyard of the house of Sanjay. Sanjay fell the accused on the ground and sat on his chest. The accused pleaded Sanjay to release him and thereupon deceased Sanjay released the accused. The accused then carried badsi from the house of Sanjay to his house. The accused then returned after about five to ten minutes armed with badsi and a bamboo stick. Deceased Sanjay also started rushing towards the house of the accused. Both of them met on the road near the house of one Bandu Soyam and there was quarrel between them. The accused swung the stick which hit on the leg of deceased Sanjay causing Sanjay to fall on the ground. The accused then started inflicting injuries with badsi on the head of deceased Sanjay. He further states that he had seen the second part of the incident while sitting on the platform in front of the house. PW-1 Ramdas further states that the badsi struck the accused while he was swinging the badsi in the air. Ramdas further states that on noticing that Sanjay had died, Ramdas had rushed to Police Station, Wadki and lodged the report. He identified the stick and badsi as article Nos.4 and 6 respectively. He further states that the blade of the badsi was lying beneath the body of deceased Sanjay. In cross-examination, he has admitted as correct that Sanjay fell the accused on the ground. He has denied the suggestion and thereafter Sanjay had assaulted the accused with a piece of wood. He has admitted to have stated in his complaint at Exh.31 that Sanjay had assaulted the accused with a piece of wood. He has further admitted that deceased Sanjay was a carpenter and, therefore, using the badsi which is an instrument used by the carpenter. An omission has been duly proved in his cross-examination that he had not stated in his complaint at Exh.31 that he had seen the later part of the incident by sitting on another platform. An omission has been duly proved in respect of number of blows inflicted by the accused to deceased Sanjay. An omission has been duly proved in his cross-examination that he had not stated in his complaint at Exh.31 that he had seen the later part of the incident by sitting on another platform. An omission has been duly proved in respect of number of blows inflicted by the accused to deceased Sanjay. Omission has also been proved that he had stated in his complaint that the accused injured himself while inflicting injuries to deceased Sanjay. 7. The prosecution has also examined PW-2 Bandu Soyam. PW-2 Bandu, in front of whose house the incident had taken place, states that at about 09:30 to 09:45 p.m., he was at his house taking his dinner. He had heard the sound of someone giving a blow and, therefore, had rushed out of his house. From his courtyard, he noticed the appellant assaulting deceased Sanjay with stick. Thereupon the appellant threatened Bandu and Bandu had accordingly gone inside the house but had left one plank of the door opened and had seen rest of the incident. The appellant had assaulted deceased on his head with the badsi. He, further states that after the assailant had left the scene of the incident, people had gathered at the spot. He claims to have seen the incident in the illumination of street light. In cross-examination, he has admitted that deceased Sanjay was a carpenter. He states that he does not know if deceased Sanjay and appellant were friends. He has admitted that he does not know if between them there was a quarrel. In cross-examination, it has been elicited that after he had gone near the dead body of Sanjay, the other villagers including PW-1 Ramdas had also arrived there. In further cross-examination, he has admitted that PW-l Ramdas had arrived at the scene of the incident prior to PW-2 Bandu going there. Omission has been duly proved that he had not stated in his previous statement that he had heard the sound of blow being delivered. The omission only in respect of the sound of blow. He has admitted not to have stated in his previous statement that one plank of the door was opened while the other plank was shut. 8. The postmortem on the dead body of deceased Sanjay was performed by PW-6 Dr. Ravindra Shete. PW-6 Dr. The omission only in respect of the sound of blow. He has admitted not to have stated in his previous statement that one plank of the door was opened while the other plank was shut. 8. The postmortem on the dead body of deceased Sanjay was performed by PW-6 Dr. Ravindra Shete. PW-6 Dr. Shete noticed the following external injuries :- “[1] Incised injury 3 cm x 0.5 cm x 1 cm below right eye over the zygomatic arch horizontal reddish. Age of the injury 12 to 24 hours and caused by hard object with sharp cutting edges. The injury No.1 was with peripheral contusion 3 cm x 3 cm over in shape at the same site of injury No.1 cherry red within 12 to 24 hours caused by hard object. [2] Contusion with bruising 3 cm x 3 cm above right eye over the forehead scalp oval in shape cherry red within 12 to 24 hours caused by hard object. [3] Lacerated injury 8 cm x 0.5 com x 1 cm deep parietal region of scalp vertical in direction parallel to sagital suture, reddish 12 to 24 hours caused by hard object. [4] Lacerated injury 10 cm x 2 cm x 3 cm deep on left temporal and on occipital region. Injury starts from 2 cm behind left ear running obliquely and upward and then downward over the occipital region reddish and black 12 to 24 hours caused by hard with sharp cutting. [5] Lacerated injury 4 cm x 1 cm x 3 cm on occipital region of scalp horizontally 2 cm below posterior and of sagital suture dark red in colour 12 to 24 hours and caused by hard object with sharp cutting injury. [6] Elevated fracture 3 cm x 3.5 cm occipital one left side a piece of occipital bone in shape of rectangle elevated from the surface with harnature of brain substance dark red 12 to 24 hours hard object with sharp cutting edges. [7] Contusion 10 inch x 1 inch on back obliquely over right scapular to left at the level of L2, L3 dark blue 12 to 24 hours hard and long object. [8] Contusion of length 8 inches x 1 inch parallel to above injury No.7, 2 inches apart. Colour of injury dark blue 2 to 24 hours caused by hard and long object. [8] Contusion of length 8 inches x 1 inch parallel to above injury No.7, 2 inches apart. Colour of injury dark blue 2 to 24 hours caused by hard and long object. [9] Superficial bruising length 8 inch x 1 inch over the chest and abdomen start from right pectoral region to left hypocondrium and left illus region dark blue in colour less than 24 hours caused by hard and long object." On internal examination, he noticed black colour hematoma under the scalp over right parietal frontal region and temporal region. He also noticed elevated fracture of occipital region of 3.5 cm. He had also noticed small multiple fracture of occipital bone. He had noticed tom in occipital region and clotted marks of size 6 cm x 6 cm x 3 cm were found in the occipital region. He, therefore, opined that the primary cause of death was neurogenic and hemorrhagic shock secondary to head injuries due to weapon with sharp object. The postmortem report is at Exh.60. He has admitted that he had examined the weapons. He further states that after examining the weapons, he had sealed the weapons and handed them over to the Police Constable. 9. The appellant was examined by PW-7 Dr. Pravin Umargirkar who noticed the following external injuries:- "[1] Incisional injury on the right shoulder just above the head humerous of size 2 x 1.5 cm. and caused by sharp and fine object. [2] Lacerated injury on the left arm near the left elbow joint and caused due to the blunt object. [3] Lacerated and contusion injury on the neck laterally due to the blunt object." He has observed that injury No.1 was possible by swinging badsi while injury Nos.2 and 3 could be caused by bamboo stick (Article-7). 10. Shri R.M. Daga, the learned Counsel appearing on behalf of the appellant has urged before us that undisputedly the appellant had sustained injuries and one of the injuries sustained by the appellant i.e. injury No.1 was a serious injury and the appellant, therefore, had killed the deceased in exercise of his right of private defence. It is further urged before us that the deceased had fallen the appellant on the ground and had sat on his chest and had assaulted the appellant. 11. It is further urged before us that the deceased had fallen the appellant on the ground and had sat on his chest and had assaulted the appellant. 11. Shri T.A. Mirza, the learned Additional Public Prosecutor appearing on behalf of the respondent/State has opposed the aforesaid plea and has urged for dismissal of the appeal. 12. The appellant had gone to the house of the deceased and had kicked the outer door of the house of the deceased and had extorted deceased Sanjay to come out of the house. After deceased Sanjay had come out of the house, there was a scuffle between the appellant and deceased and the deceased had fallen the appellant on the ground and had assaulted the appellant. The appellant had pleaded that he be released and the deceased had accordingly released the appellant. The appellant then took the carpenter's instrument i.e. badsi from the house of the deceased and had gone to his house and after five to ten minutes had returned back armed with the badsi and a stick and had inflicted the injuries to the deceased. The appellant himself was the aggressor as he had gone to the house of the deceased. The appellant, therefore, cannot be said to have exercised the right of private defence as the appellant has no right of private defence was available to the appellant. The appellant had thereafter returned back to his house and thus whatever danger was apprehended was no longer existing. The appellant had again returned to the scene of the incident and armed with weapon had inflicted the injuries to the deceased without there being any provocation. In such circumstance, therefore, according to us, no right of private defence was available to the appellant and thus there was no question of the appellant exercising his right of private defence in inflicting injuries to deceased Sanjay. The evidence of two eye witnesses establishes that the appellant had returned back and had inflicted the injuries to deceased Sanjay. The appellant had launched an unprovoked attack on deceased Sanjay and had inflicted such injuries which were sufficient in ordinary course of nature to cause death of the deceased. The offence, therefore, punishable under Section 302 of the Indian Penal Code has been proved against the appellant by the prosecution beyond reasonable doubt. The appeal being thus sans merit, deserves to be dismissed. 13. The offence, therefore, punishable under Section 302 of the Indian Penal Code has been proved against the appellant by the prosecution beyond reasonable doubt. The appeal being thus sans merit, deserves to be dismissed. 13. Accordingly, instant criminal appeal is dismissed confirming the conviction and sentence. Appeal dismissed.