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2014 DIGILAW 1765 (BOM)

Maroti v. State of Maharashtra

2014-08-07

M.L.TAHALIYANI

body2014
JUDGMENT : M.L. Tahaliyani, J. 1. The appellant has been convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code. The appellant along with other accused was tried for the offences punishable under Sections 147, 148, 324 r/w Section 149 and 302 r/w Section 149 of the Indian Penal Code. The other accused have been acquitted of all the charges. The appellant has been convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code. The appellant had allegedly caused injury to Devrao Shinde on his chest during the course of alleged incident. The injury resulted in death of Devrao Shinde. The house of the appellant and house of the deceased are in the same area and there is a open space in between two houses. It appears that there was a dispute over the said open space. It is alleged that the incident had occurred on 26-3-1995 at 7-00 a.m. The deceased was cleaning the said open space for construction of a wall. The appellant and other accused took objection and started abusing the deceased and his sons. The appellant and other accused were armed with a sickle, a stick, a spade and an axe. They assaulted the deceased and his sons. It is stated that the appellant had inflicted a blow by means of a sickle on chest of the deceased. 2. The learned trial Court has come to the conclusion that it was proved by the prosecution beyond all reasonable doubts that blow on chest of the deceased was caused by the appellant. Unlawful assembly and common object could not be proved. Therefore, other accused were acquitted. The learned trial Court has also come to the conclusion that there was no intention on the part of the appellant to cause death of the deceased or to cause bodily injury on the chest. Therefore, the appellant has been convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code. Though the learned trial court has not specifically stated in the judgment, the conviction of the appellant for the offence punishable under Section 304 Part-II of the Indian Penal Code clearly indicates the view of the trial Court. That the appellant knew that the injury intended to be caused by him was likely to cause death of the deceased. 3. Though the learned trial court has not specifically stated in the judgment, the conviction of the appellant for the offence punishable under Section 304 Part-II of the Indian Penal Code clearly indicates the view of the trial Court. That the appellant knew that the injury intended to be caused by him was likely to cause death of the deceased. 3. I have gone through the evidence of P.W.1, P.W.3 and P.W.4 who are sons of the deceased. I have heard learned Counsel Shri A.K. Choube for the appellant and learned Additional Public Prosecutor Shri A.K. Bangadkar for the respondent/State. The learned Counsel Shri A.K. Choube has submitted that there are major omissions in the evidence of all three witnesses. None of the witnesses had specifically stated in their previous statements before the police that the appellant had inflicted a blow by means of sickle on chest of the deceased. These omissions are proved by the evidence of the Investigating Officer P.W.7. The learned trial Court, however, took the view that these are not material omissions inasmuch as the witnesses have stated that the appellant had inflicted a blow by means of a sickle. 4. Learned Additional Public Prosecutor Shri A.K. Bangadkar has supported the judgment of the learned trial Court and has submitted that though there was no intention but knowledge of the appellant was very apparent and that the appellant should have realised that use of sickle and infliction of blow by means of sickle on any part of the body could have caused death of the deceased due to heavy bleeding which might have resulted into shock and hemorrhage. 5. I have given my anxious considerations to the arguments of both the learned Counsel. I have examined the cross-examination of three eyewitnesses. It is submitted by learned Counsel Shri A.K. Choube that all the witnesses are interested witnesses. The prosecution has failed to explain as to why the independent witnesses could not be examined though a lot of persons had gathered on the spot of incident. Obviously there is no explanation on the part of the respondent for non-examination of independent witnesses. However, at the same time, it cannot be said that P.W.1, P.W.2 and P.W.4 were interested witnesses. They were present on the spot. Obviously there is no explanation on the part of the respondent for non-examination of independent witnesses. However, at the same time, it cannot be said that P.W.1, P.W.2 and P.W.4 were interested witnesses. They were present on the spot. They were the natural witnesses and, in my opinion, they cannot be called as interested witnesses only because they are sons of the deceased. If they had witnessed the incident, their relations with the deceased cannot label their evidence as the evidence of interested witnesses. On merits it can be gathered from the evidence that there was scuffle between two groups. It is evident from the cross-examination of the witnesses that a cross-case filed by mother of the appellant for the offence punishable under Section307 of the Indian Penal Code is pending against the complainant and the other witnesses. It clearly indicates that there was a case and cross-case. The scuffle is admitted by the witnesses in their cross-examination. It is, therefore, difficult to say that the sickle was aimed by the appellant at chest of the deceased. Unless there is unimpeachable definite evidence to show that the sickle was aimed at chest of the deceased, it is difficult to sustain the conviction of the appellant for the offence punishable under Section 304 Part-II of the Indian Penal Code. Sickle was a sharp weapon. The evidence of the prosecution witnesses, taking into consideration the major omissions in their evidence, brings me to the conclusion that there was a voluntary act on the part of the appellant of using sickle for inflicting blow on the deceased. The voluntary act of the appellant, which resulted into injury on the chest, in my opinion, amounted to offence punishable under Section 324 of the Indian Penal Code. Hence, I pass the following order. "i) The appeal is partly allowed. ii) The conviction of the appellant for the offence punishable under Section 304 Part-II of the Indian Penal Code is set aside. iii) The appellant is convicted of the offence punishable under Section 324 of the Indian Penal Code and is sentenced to suffer imprisonment already undergone by him and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for one week. iv) Fine is already paid by the appellant. v) His bail bond shall stand cancelled. vi) The appeal accordingly stands disposed of."