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2014 DIGILAW 80 (BOM)

Madhukar v. State of Maharashtra

2014-01-15

A.S.CHANDURKAR, B.R.GAVAI

body2014
JUDGMENT A.S. Chandurkar, J. 1. The present appeal under Section 374 of Code of Criminal Procedure, 1973 takes exception to the conviction of the appellant by the learned Additional Sessions Judge, Yavatmal, for the offence punishable under Section 302 of the Indian penal Code (herein after referred to as the Code for short) by judgment dated 22-3-2010. The case of the prosecution as can be gathered from the material on record is that one Punjabrao was cultivating the field of one Pankajseth. A portion of said field was fallow land where said Punjabrao used to graze his cattle. According to the prosecution, the appellant - Madhukar used to cultivate the land of one Singhania which was opposite to the land of Pankajseth. On 6-8-2008, at about 5.30 p.m., Punjabrao had been to the said field followed by one Nathu who was doing labour work with him. A quarrel broke out between Panjabrao and the appellant on the issue of grazing cattle. Punjabrao had obstructed the appellant from grazing his cattle in the fallow land that was under his cultivation. In the course of quarrel, the appellant went to his cattle shed and returned with his two bulls and an axe. Despite objection of Punjabrao, the appellant put his bulls for grazing in the fallow part of the land. As Punjabrao opposed the same, the appellant assaulted Panjabrao with an axe on the head, as a result of which, Punjabrao suffered serious head injury. Nathu attempted to snatch the axe from the appellant, but the appellant left the spot for his cattle shed. Nathu reported the incident to the wife of Punjabrao who along with her sons rushed to the agricultural field. Punjabrao was taken for medical aid while Nathu lodged report with the Police Station. The police authorities completed necessary formalities and thereafter, arrested the appellant and also seized the axe. The appellant was charge-sheeted under Section 302 of the Code. As the case was triable by the Sessions Court, it was committed to said Court. The appellant pleaded not to be guilty and hence was tried. On completion of the trial, the appellant was held guilty of offence punishable under Section 302 of the Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- and in default thereof to suffer rigorous imprisonment for two months. 2. Ms. The appellant pleaded not to be guilty and hence was tried. On completion of the trial, the appellant was held guilty of offence punishable under Section 302 of the Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- and in default thereof to suffer rigorous imprisonment for two months. 2. Ms. Richa Inamdar, the learned Counsel appointed to represent the appellant has submitted that the appellant has been wrongly convicted under Section 302 of the Code. It is submitted that the prosecution has failed to prove the case against the appellant. The judgment under challenge is based on pre-preponderance of probabilities and there is no proof beyond reasonable doubt to implicate and convict the appellant for the offence in question. The learned Counsel further submitted that there were various vital discrepancies in the testimony of the witnesses and hence, the appellant was entitled to be acquitted. Without prejudice to the aforesaid, it was submitted that the conviction of the appellant under Section 302 of the Code was incorrect considering the circumstances in which the incident took place. 3. Shri V.A. Thakre, the learned Assistant Public Prosecutor appearing for the respondent submitted that the judgment under challenge requires no interference. It was submitted that the prosecution had succeeded in proving its case beyond reasonable doubt. The evidence on record had been rightly appreciated by the learned Sessions Court and the punishment as imposed after convicting the appellant was legal and proper. It was further submitted that the axe used for committing the offence had been duly seized at the behest of the appellant. The learned Counsel, therefore, prayed for dismissal of the appeal. 4. With the assistance of the learned Counsel for both sides, we have perused the entire material on record. The first informant - Nathu was working as a labourer with Punjabrao on yearly contract. He has been examined below Exh. 42. He was witness to the altercations between the appellant and Punjabrao on the issue of grazing cattle. Said Nathu has stated that he had witnessed the appellant going to his cattle shed and returning with his two bulls along with an axe. He has stated that he has seen the appellant hitting Punjabrao with an axe on his head. Said witness attempted to push aside the appellant after which the appellant left the spot with the axe. Said Nathu has stated that he had witnessed the appellant going to his cattle shed and returning with his two bulls along with an axe. He has stated that he has seen the appellant hitting Punjabrao with an axe on his head. Said witness attempted to push aside the appellant after which the appellant left the spot with the axe. Nathu has stated that he thereafter informed the family members of Punjabrao and he thereafter immediately lodged a report which is at Exh. 43. This witness has been cross examined. It was suggested to him that Punjabrao had not paid him his wages and, therefor, he himself had assaulted Punjabrao. Said suggestion was, however, denied by Nathu. There is nothing in the cross examination of said witness so as to compel this Court to discard his evidence. He is the lone eye witness to the incident. He being a labourer working with Punjabrao, his presence at the site of the incident is natural. The prosecution has, therefore, succeeded in proving that during the course of altercations between the appellant and Punjabrao, the appellant had assaulted Punjabrao with the axe on his head. 5. PW-1 - Chandrakala who is the widow of Punjabrao was examined below Exh. 18. She was, however, not a witness to the incident. PW-5 - Dr. Vandana was working as the Medical Officer, Main Hospital Yavatmal. She has stated that she examined Punjabrao at about 6.10 p.m. on 6-8-2008. Her report of injuries below Exh. 31 states that the said injury was caused by hard and blunt object. She had referred the patient to the Resident Surgeon for further treatment. Similarly, PW-6 - Dr. Kshitij Patil has been examined below Exh. 32. His injury report below Exh. 33 indicates that there was a CLW of 8 cm x 5 cm on the head of Punjabrao. PW-8 Dr. Purushottam has been examined below Exh. 40. Said witness has stated that he was on duty as a Medical Officer and he had conducted and prepared the postmortem report below Exh. 41. According to said report, the cause of death of Punjabrao has been stated as under:-- 'in my opinion died person die due to Head Injury. Ledn to Sr. hemorrhagic stroke." All these witnesses have been duly cross examined, but nothing material has come on record so as to disbelieve their versions. 41. According to said report, the cause of death of Punjabrao has been stated as under:-- 'in my opinion died person die due to Head Injury. Ledn to Sr. hemorrhagic stroke." All these witnesses have been duly cross examined, but nothing material has come on record so as to disbelieve their versions. It is, therefore, clear that Punjabrao died as a result of being hit on the head by a hard and blunt object resulting in head injury and on account of hemorrhagic shock. The prosecution has, therefore, proved that Punjabrao died on account of being assaulted by the appellant with the axe on his head. 6. PW-10 Sanjay has been examined to prove the seizure panchanama - Exh. 46. The axe used for the offence was seized from the agricultural field of Singhania for whom the appellant was working. Said witness was also cross-examined, but there are no admissions therein to disbelieve his evidence. Similarly, PW-11 Rameshwar, who had written the complaint of Nathu - Exh. 43 and who had prepared the first information report-Exh. 49, has also been examined. The Investigating Officer has been examined as PW-12 below Exh. 51. These witnesses have been duly cross-examined, but their version has not been shattered by the defence. The prosecution has, therefore, succeeded in proving that it was the appellant who was responsible for assaulting Punjabrao with an axe on his head on 6-8-2008 that subsequently resulted in his death. The next question, therefore, that is required to be considered is whether the appellant's conviction under Section 302 of the Code is proper in the facts of the case. The evidence of PW-9 - Nathu indicates that there were altercations between Punjabrao and the appellant over grazing of cattle. While Punjabrao was working on the field of one Pankaj, the appellant was working on the field of one Singhania. Both lands were opposite to each other. It appears from the material on record and the evidence led by the prosecution that there were altercations between the two and on account of said altercations, the appellant went back to his cattle shed and returned with his two bulls and an axe. During the course of said altercations, the appellant assaulted Punjabrao on the head. It, therefore, cannot be said that the act in question was pre-meditated. It was an outcome of altercations between Punjabrao and the appellant. During the course of said altercations, the appellant assaulted Punjabrao on the head. It, therefore, cannot be said that the act in question was pre-meditated. It was an outcome of altercations between Punjabrao and the appellant. It can be said that it was a sudden fight in the heat of passion without premeditation. There is nothing on record to come to the conclusion that there was a motive on the part of the appellant to cause death of Punjabrao. The intention in that regard has not been proved by the prosecution. The Medical Report Exh. 31 states that the injury caused to Punjabrao that subsequently resulted in his death was on account of being hit by a hard and blunt object. The death of Punjabrao was not instantaneous. But the same took place on the night of 6-8-2008. The punishment under Section 302 of the Code as imposed by the learned Judge of the Sessions Court, therefore, is required to be interfered with. Hence, while maintaining the conviction of the appellant, the sentence under Section 302 of the Code is altered to Section 304 Part-I of the Code. The sentence is reduced from life imprisonment to seven years rigorous imprisonment. Rest of the order regarding fine etc. is maintained. The fees payable to the learned Counsel for the appellant are quantified at Rs. 5000/- (Rupees fine thousand only). The appeal is accordingly partly allowed in aforesaid terms.