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2014 DIGILAW 2473 (BOM)

Jangalu Sampat Gaikwad v. State of Maharashtra

2014-12-15

M.T.JOSHI

body2014
JUDGMENT : M.T. Joshi, J. 1. Heard both sides. Aggrieved by the judgment and order of conviction and sentence of the present appellant passed by the learned IVth Additional Sessions Judge, Jalgaon vide judgment and order dated 27/10/1999 in Sessions Case No. 181 of 1998, for the offences punishable under section 452, 323 both r/w. 34 and Section 304 Part II of the Indian Penal Code, the present appeal is preferred. 2. The present appellant alongwith three other accused were charged for the offence of commission of culpable homicide amounting to murder punishable under section 302 of the Indian Penal Code and the rest of the offences. Upon trial, however, while three other accused were convicted alongwith the present appellant for the offences punishable under section 452 r/w. 34, 323 r/w. 34, the present appellant was solely convicted for the offence punishable under section 304 Part II of the Indian Penal Code. 3. The prosecution case in short is as under: That the present appellant, co-accused as well as the complainant and his family members reside in a small hamlet at Chinchagavan Tanda. The hamlet is populated by poor wage earners and shepherds. The complainant - Atmaram, whose one year son has died in the incident is also a shepherd. The dispute between the complainant on one hand and the accused persons on the other hand, started on the ground of beating of certain she-goats. In the circumstances, on 05/08/1998, in the night at about 8.00 p.m. the present incident has occurred. One Ukhardu More - the cousin father-in-law of the appellant only had television set in the locality in his house. Therefore, the family members of the complainant and some other neighbours were sitting in the room of Ukhardu More to watch a serial 'Chitrahar'. Deceased Kishor - 1 year old boy was with the wife of the complainant, namely, Chhotibai. According to the complainant, at about 8.00 p.m. in the night, the present appellant alongwith three other accused came in the house with sticks and axe. The present appellant had stick while one co-accused Hiraman had axe in his hand. All of them started beating the complainant with stick which hurt his index finger. In the said incident, the blow of stick was caused on the head of the deceased Kishor. He died on the spot. The present appellant had stick while one co-accused Hiraman had axe in his hand. All of them started beating the complainant with stick which hurt his index finger. In the said incident, the blow of stick was caused on the head of the deceased Kishor. He died on the spot. In the said incident, some other witnesses like Dagdu More, Ratan More, Nana More were also injured. Hiraman gave the blow of axe over the head of mother-in-law of the complainant, namely, Sushilabai. Father-in-law of the complainant snatched weapons from the hand of the four persons and they went away. On the basis of this complaint, the crime came to be registered. 4. During investigation, the present appellant as well as the other accused were arrested. Blood stained clothes of the injured and the deceased were seized. The panchanama of the spot of occurrence was recorded. Autopsy over the dead body was completed. Relevant property was sent for chemical analysis. The statements of the eye witnesses were also recorded by the Police and the chargesheet came to be filed. 5. Before the learned Additional Sessions Judge, in all 13 witnesses were examined. Out of them P.W. 4 Atmaram is the complainant. P.W. 3 - Chhotibai is his wife. P.W. 6 - Sushilabai is his mother-in-law, P.W. 7 Kacharu is also the eye witness. Four Medical Officers were examined. Those are P.W. 11 - Dr. Swati, P.W. 12-Dr. Sumedha, P.W. 13-Dr. Gopal and P.W. 8-Dr. Deosing Chavan. Said Dr. Deosing Chavan has conducted the postmortem examination and issued the postmortem note at Exhibit 50. P.W. 9-Tarachand Jawale, Police Constable carried all the muddemal property and P.W. 10 P.S.I. Abhiman Pawar is the Investigating Officer. 6. The defence of the present appellant was of total denial. 7. Since the eye witnesses are related to each others, it was argued that those are all interested witnesses. The learned Additional Sessions Judge however believed the prosecution case, as according to the learned Additional Sessions Judge, those were the natural eye witnesses. In the circumstances, after appreciation of the evidence, it was found that the present appellant was the author of the injuries caused to the deceased - Kishor. The learned Additional Sessions Judge however believed the prosecution case, as according to the learned Additional Sessions Judge, those were the natural eye witnesses. In the circumstances, after appreciation of the evidence, it was found that the present appellant was the author of the injuries caused to the deceased - Kishor. However, he had no intention to cause the death of the deceased and, therefore, he (the appellant) was convicted for the offence punishable under section 304 Part II of the Indian Penal Code while rest of the surviving accused were convicted for the offence punishable under section 452, 323 both r/w. 34 of the Indian Penal Code. 8. Learned counsel for the appellant Mr. Wani submits before me that in fact, the present appellant was not the author of the injuries. The injuries on the person of the deceased would show that it was not even a case for culpable homicide not amounting to murder but simplicitor a case of commission of offence punishable under section 324 of the Indian Penal Code and that too alongwith the other accused. In the circumstances, he submits that the appeal be allowed. 9. On the other hand, Mr. Nerlikar, learned A.P.P. submits that the learned Additional Sessions Judge has rightly concluded that the eye witnesses though are relatives of the deceased are natural eye witnesses being the inmates of the house and the incident having taken place at the time of watching television. Further P.W. 7 is an independent eye witness. He further submits that the very fact that the present appellant has used the stick for assaulting the wife of the complainant, who had one year old son with her, would itself show that the appellant has knowledge that his act would cause the death of the one year old child and in the circumstances, he submits that the appeal be dismissed. 10. On the basis of this material, following points arise for my determination: I) Whether the prosecution has proved that on 5/8/1998 at about 8.00 pm. in the house of Ukhardu More, the present appellant, in furtherance of common intention with other accused, committed trespass in the house? II) Whether the prosecution has proved that on the given date, time and place, the present appellant and other accused persons, in furtherance of their common intention, caused hurt to the prosecution witnesses? in the house of Ukhardu More, the present appellant, in furtherance of common intention with other accused, committed trespass in the house? II) Whether the prosecution has proved that on the given date, time and place, the present appellant and other accused persons, in furtherance of their common intention, caused hurt to the prosecution witnesses? III) Whether the prosecution has proved that on the given date, time and place, the present appellant has committed culpable homicide not amounting to murder? My findings to all the above points are in the affirmative. However, the appeal is allowed only to the extent of the term of sentences for the reasons to follow. REASONS 11. The statement of the eye witnesses including P.W. 7 - the neighbour, would show that over the previous dispute of beating of she-goats, the incident has occurred. The present appellant alongwith other accused, as detailed supra, had entered the house of Ukhardu and started assaulting the complainant as well as the other inmates. Statements of the eye witnesses would show that the present appellant was the author of the injuries caused to the deceased. 12. Complainant P.W. 4 - Atmaram deposed that besides assaulting the other inmates, the present appellant gave one blow of the stick on the forehead of Chhotibai i.e. his wife. Deceased Kishor was on the shoulder of said Chhotibai. Present appellant Jangalu gave the blow of stick over head of Kishor and, therefore, the deceased has died on the spot. 13. P.W. 5 - Chhotibai, on whose shoulder the deceased was there, also deposed on the same lines. Her statement is corroborated by injury certificate issued by P.W. 11 - Dr. Swati. P.W. 6 - Sushilabai i.e. the mother-in-law of the complainant also deposed on the same lines. P.W. 7 - Kacharu, the neighbour of Ukhardu also deposed that while he was watching the television, the present appellant alongwith other accused came there and while the present appellant beat Chhotibai, her child was resting on the arms of her shoulder and as such, the child also received injuries due to the hitting by stick. 14. The fact of sustaining injuries to the witnesses is corroborated by the injury certificate issued by various Medical Officers, as detailed supra. 15. So far as deceased Kishor is concerned, his dead body was examined by P.W. 8 - Dr. Deosing Chavan. 14. The fact of sustaining injuries to the witnesses is corroborated by the injury certificate issued by various Medical Officers, as detailed supra. 15. So far as deceased Kishor is concerned, his dead body was examined by P.W. 8 - Dr. Deosing Chavan. Upon internal examination, he found haemotoma over both the parietal region of scalp of the deceased admeasuring 5 cm X 4 cm each. Internally, the skull was fractured from both sides and, therefore, according to the Medical Officer, the probable cause of death was due to the head injury. 16. During cross-examination, the Medical Officer deposed that the skin was not ruptured. There were no external bleeding injuries. The Medical Officer denied the suggestion that the skull of a child aged 1 year would be elastic. The fractures were not depressed. The Medical Officer denied the suggestion that due to the blow of stick, the skin would rupture. He also denied the suggestion that injuries were possible due to the fall on the ground of the child from arms of the mother. 17. The injuries on the person of the witnesses, as proved by the Medical Officer would corroborate their versions regarding the incident. Merely because they are the relatives of the deceased, they had no reason to implicate the appellant or the other accused persons. 18. In that view of the matter, I do not find any reason to interfere in the judgment and order of conviction of the present appellant. 19. As to whether the case would fall within the provisions of offences punishable under section 323 or 304 Part II of the Indian Penal Code, the deposition of the Medical Officer, as detailed supra, would clearly show that while the deceased was in the arms of his mother, who was being assaulted by the appellant, there was every probability that his stick would also hit the 1 year old boy, causing him injuries which are likely to cause his death. 20. In that view of the matter, I do not find any reason to interfere in the findings of the learned Additional Sessions Judge that it was a case of culpable homicide not amounting to murder punishable under section 304 Part II of the Indian Penal Code. 21. The appeal as regards the conviction is therefore dismissed. 22. 20. In that view of the matter, I do not find any reason to interfere in the findings of the learned Additional Sessions Judge that it was a case of culpable homicide not amounting to murder punishable under section 304 Part II of the Indian Penal Code. 21. The appeal as regards the conviction is therefore dismissed. 22. As regards the sentences, the learned counsel for the appellant submits that at the time of commission of the said offence, the appellant was only 21 years old and he was already married having three children to maintain. The prosecution case itself would show that all the persons from the locality, including the appellant is coming from illiterate and poor family. 23. Learned counsel for the appellant from the record further points towards the facts that after filing of the appeal, this Court has directed for release of the appellant on bail, upon executing P.R. bond and surety and upon deposit of fine of Rs. 1500/-, though the appellant was able to secure the surety, he was not able to pay fine for a considerable period and, therefore, even after furnishing the surety, he was behind the bar. He further submits that the present appellant was under-trial prisoner from the date of incident i.e. from 7/8/1998, however, he was directed to be released on bail by the learned Sessions Judge by order dated 18/1/1999. Further, after the judgment was delivered by the learned Sessions Judge on 27/10/1999, the present appellant could not make any arrangement for filing the appeal and, therefore, the appeal was filed with application for condonation of delay and ultimately in Criminal Application No. 503 of 2000. Vide order dated 29/6/2000, the present appellant was directed to be released on bail, however, he could not be released on bail immediately in view of the non-deposit of the fine amount. Further, as the present appellant remained absent in the proceedings, this Court has directed for issuance of non-bailable warrant to him and since 12/9/2014, he is behind the bar. It was further pointed out that though this Court vide order dated 26/9/2014 has directed to release the appellant on bail, since the appellant could not arrange for the surety, he is still behind the bar. Considering all these facts on record, he submits that the present appellant be sentenced to suffer the imprisonment for the period already undergone by him. Considering all these facts on record, he submits that the present appellant be sentenced to suffer the imprisonment for the period already undergone by him. 24. Learned A.P.P. however opposed the submissions. He submits that the very fact that 1 year old boy was done to death by the present appellant without taking into consideration the fact that the infant was resting on the shoulder of his mother, whom, the appellant was assaulting, this is not a fit case for interferring in the judgment and order of the learned Additional Sessions Judge in this regard. 25. Taking into consideration the overall facts that the incident has occurred over a trivial issue of beating of she-goats between the poor labours and considering the plight of the present appellant, as is depicted from the record, in my view, this is a fit case where the period of imprisonment needs to be reduced. 26. In the result, following order:-- I) The Appeal is partly allowed. II) The appeal as regards the conviction of the present appellant for the offences punishable under section 452, 323 both r/w. 34 and Section 304 Part II of the Indian Penal Code is hereby dismissed. III) The judgment and order dated 27/10/1999 passed by the learned IVth Additional Sessions Judge, Jalgaon in Sessions Case No. 181 of 1998, convicting the present appellant for the offences punishable under section 452, 323 both r/w. 34 and Section 304 Part II of the Indian Penal Code is hereby confirmed. IV) The impugned judgment and order dated 27/10/1999, sentencing the present appellant for rigorous imprisonment for five (5) years for his conviction for the offence punishable under section304 Part II of the Indian Penal Code, is hereby set aside. V) Instead, the appellant is sentenced to suffer rigorous imprisonment for a period of three (3) years and to pay fine of Rs. 500/- in default to suffer rigorous imprisonment for six months for the offence punishable under section 304 Part II of the Indian Penal Code. VI) The appellant is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/- in default to suffer rigorous imprisonment for six months for the offence punishable under section 452 r/w. section 34 of the Indian Penal Code. VI) The appellant is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/- in default to suffer rigorous imprisonment for six months for the offence punishable under section 452 r/w. section 34 of the Indian Penal Code. VII) The appellant shall suffer rigorous imprisonment for six months for the offence punishable under section 323 r/w. 34 of the Indian Penal Code. VIII) All the substantive sentences shall run concurrently. After the period of sentences as directed above is over, upon giving the necessary set-off, the appellant be set at liberty, if not required in any other offence. Criminal Appeal stands disposed of accordingly.