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2018 DIGILAW 649 (BOM)

Amar Singh v. State of Maharashtra through PSO

2018-03-06

V.M.DESHPANDE

body2018
JUDGMENT : 1. The present appeal is directed against the judgment and order of conviction passed by the learned 2nd Additional Sessions Judge, Nagpur dated 29.10.2004 in Sessions Trial No.272/2002. By the impugned judgment and order of conviction, the appellant is convicted for the offences under Sections 304II and 452 of the Indian Penal Code. For the offence under Section 452 of the IPC, the appellant was directed to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.1000/- in default of payment of fine to undergo rigorous imprisonment for 6 months. So far as conviction under Section 304II of the IPC is concerned, the appellant is sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for 6 months. 2. The facts giving rise to the present appeal are stated hereunder: (a) On 24.02.2002, Babanrao Sidam (PW14) was attached to Police Station, Ajni as Police Sub Inspector. His duty was from 9.00 p.m. of 24.02.2002 to 9.00 a.m. of 25.02.2002. At about 22.15 hrs. Kamlabai Pardhi (PW2) came to Police Station along with the dead body of her husband Rambhau in auto rickshaw. She lodged her oral complaint (Exh.26) which was reduced into writing by Babanrao Sidam (PW14). On the basis of the complaint, a crime was registered as Crime No.52/2002 for an offence punishable under Sections 452, 302 of the Indian Penal Code. The printed FIR is at Exh.27. The dead body of Rambhau was kept in mortuary. (b) The oral report Exh.26 lodged by Kamlabai shows that she along with her husband and four brothers-in-law reside at Parvati Nagar in one house, however separately, constructed by her father-in-law. Rambhau was working at Railway Station, Nagpur as 'Pointman' and since last one year he was suffering from heart disease and was taking medical treatment. (c) On 21.01.2002, the appellant along with his two companion used abusive language by standing in the front portion of the house occupied by Lokeshwari (PW1) and extended threats to her. This incident dated 21.01.2001 had occurred in the noon hours. Even in the night hours, on the said day, the appellant gave kick blows to the doors and used filthy language and extended threats. This incident dated 21.01.2001 had occurred in the noon hours. Even in the night hours, on the said day, the appellant gave kick blows to the doors and used filthy language and extended threats. Therefore, Lokeshwari (PW1) lodged report with Police Station, Ajni against the appellant and in that offence the appellant was arrested and was sent to the Central Prison. Complaint Exh.26 further recites that on the day of incident i.e. on 24.02.2002 at 9.00 O'clock in the night when the first informant and her deceased husband were sitting in varandha, the appellant came on a motorcycle and parked the same in front of the house and challenged the husband of the first informant that due to his family members, he was required to go to jail and thereafter gave fist blows on his chest, resulting into the deceased falling on the ground and becoming unconscious. The first informant raised shouts for help. Thereafter, her brothers-in-law came there and they also witnessed the incident. However, due to fear of the appellant, he was not apprehended. Thereafter, the appellant ran away from the spot leaving the motorcycle on the spot itself. The first informant with the help of her brothersinlaw, son Rupesh and one Sunil Suple, who is resident in front of her house, took Rambhau at Dr. Mahulkar Hospital, Dhantoli, in an auto rickshaw. There, he was declared dead. (d) On 25.02.2002, at mortuary, inquest panchanama (Exh.38) was conducted by Babanrao Sidam (PW14). He also paid visit to the spot of incident and the spot panchanama (Exh.35) was drawn. The motorcycle which was lying near the compound of the house of Kamla, bearing registration No.MH31/ Y9535 was seized under seizure panchanama Exh.36. After post mortem, the dead body was handed over to the relatives of Rambhau. (e) Khalil Abdul Shaikh (PW16) received case diary of Crime No.52/2002 for further investigation. During investigation on 26.02.2002, he recorded statements of 11 witnesses. On 26.02.2002, he seized clothes of the deceased under seizure panchanama (Exh.46). On the next day, the statements of other witnesses were also recorded by him. In the meanwhile, on 25.02.2002, the appellant was arrested. Khalil Abdul Shaikh (PW-16) made inquiry with him and during the inquiry, it was revealed to the investigating officer that the appellant had concealed the weapon; knife near Rahate nagar. Accordingly, the said weapon was seized under seizure panchanama (Exh.57). In the meanwhile, on 25.02.2002, the appellant was arrested. Khalil Abdul Shaikh (PW-16) made inquiry with him and during the inquiry, it was revealed to the investigating officer that the appellant had concealed the weapon; knife near Rahate nagar. Accordingly, the said weapon was seized under seizure panchanama (Exh.57). After completion of other usual investigations, the final report was presented in the Court of the learned Judicial Magistrate First Class, Nagpur. (f) The learned Sessions Judge, in whose Court the case was committed and numbered as Sessions Trial No. 272/2002, framed the charge (Exh.9) for an offence punishable under Sections 452 and 302 of the IPC. The appellant denied the charge and claimed that he be tried. (g) In order to bring home the guilt of the appellant, in all 16 witnesses were examined by the prosecution. The prosecution also relied on various proved documents. The learned Additional Sessions Judge, vide impugned judgment, though acquitted the appellant of the offence punishable under Section 302 of the IPC, convicted him for the offence punishable under Sections 452 and 304II of the IPC. Hence, this appeal. 3. I have heard Mr. S. G. Joshi, learned counsel appointed by the Legal Services Sub Committee for the appellant and Mr. V. A. Thakare, learned A.P.P. for the respondent-State. It is the submission of the learned counsel for the appellant that in any case, the appellant cannot be convicted for the offence punishable under Section 304II of the IPC. He invited my attention to the evidence of the prosecution witnesses and also to the post mortem notes. He relied on the following two pronouncements of the Hon'ble Supreme Court to buttress his point that the prosecution has suppressed the facts from the Court by not producing the injury report of the appellant himself. (i) Lakshmi Singh and others etc. .vs. State of Bihar; AIR 1976 SC 263 . (ii) State of M. P. .vs. Mishrilal (dead) and others; 2003 Cri. L. J. 2312. 4. Per contra, the learned A.P.P. would submit that there is a consistent evidence that the appellant gave fist blows on the chest of the deceased resulting into his death and therefore the appellant is rightly convicted by the Court below. 5. The incident of assault, as stated in the prosecution case is witnessed by six witnesses. L. J. 2312. 4. Per contra, the learned A.P.P. would submit that there is a consistent evidence that the appellant gave fist blows on the chest of the deceased resulting into his death and therefore the appellant is rightly convicted by the Court below. 5. The incident of assault, as stated in the prosecution case is witnessed by six witnesses. They are; Lokeshwari Pardhi (PW-1), Kamal Pardhi (PW-2), Rupali Pardhi (PW3) sister of the deceased Rambhau, Subhash Pardhi (PW4) elder brother of deceased, Chandrashekhar Pardhi (PW-5) younger brother of deceased and Kartik Kumar Sinha (PW-7). PW1 to PW-5 are the close relatives of the deceased and on that ground, their evidence is seriously challenged by the learned counsel for the appellant that they are interested witnesses. Merely because they are close relatives of the deceased that by itself is not sufficient to discard their evidence or straightway they can be branded as interested witnesses. However, at the same time, the Court has to be on guard while evaluating their evidence regarding the assault. Kartik Kumar Sinha (PW-7) has turned hostile. 6. Sambhaji Bawne (PW8) and Deorao Mirase (PW-9) are the pancha witnesses. They have proved seizure memo Exh.36, under which motorcycle was seized, spot panchanama Exh.35 and inquest panchanama Exh.38 respectively. Vijay Shegaonkar (PW-10), Anil Babhulkar (PW-11) and Chandu Tayade (PW-12) were also examined by the prosecution as pancha witnesses in respect of the seizure of the clothes of the deceased and the seizure of weapon under seizure memo (Exh.27). However, these three pancha witnesses have turned hostile. The seizure of the clothes of the deceased were proved by prosecution by examining Nishant Narnaware (PW-13). Raju Ganvir (PW-6) is the owner of the motorcycle by which the appellant had been to the spot. The prosecution examined Dr. Kavita Nagrare (PW-15). This prosecution witness has conducted post mortem over the dead body of Rambhau and proved post morten notes (Exh.53). 7. From evaluation of the prosecution case, it is clear that prior to the incident dated 24.02.2002, an incident has occurred on 21.02.2002 which involves the family members of the complainant i.e. Kamalbai (PW2) on one hand and the appellant on the other hand. 7. From evaluation of the prosecution case, it is clear that prior to the incident dated 24.02.2002, an incident has occurred on 21.02.2002 which involves the family members of the complainant i.e. Kamalbai (PW2) on one hand and the appellant on the other hand. It is established on record that the incident of 21.02.2002 was reported by Lokeshwari (PW1) to the Police Station, Ajni and a crime was registered against the appellant and in that behalf, the appellant was arrested and was sent to jail and subsequently, he was released on bail. The incident in question is dated 24.02.2002. According to the consistent evidence of the prosecution witnesses, it is clear that on the day of the incident, the appellant came in front of the house of the complainant and uttered as under: xxx xxx xxx 8. The evidence of the eye witnesses though, they are relatives of the deceased Rambhau is consistent that the deceased was assaulted on his chest by fist blows. The evidence of Rupali (PW-3) shows that the appellant gave kick blows. However, the said is found to be improved version as it was not her statement before the police. 9. While acquitting the appellant of the offence under Section 302 of the IPC and convicting him under Section 304II of the IPC, following are the reasonings given by the learned Court below in the impugned judgment: “21. …..Here is a question of having knowledge to the accused that deceased Rambhau was a patient of heart. The way defence has cross-examined the prosecution witnesses and the accused taken defence leads conclusion that accused was having knowledge that Rambhau was a patient of heart, despite of this made assault upon Rambhau by selecting a particular place i.e. left side chest of Rambhau by giving fists kicks blows. Thus, it is clear that though accused was having no intention to cause death of Rambhau but he was having knowledge that said Rambhau was suffering from heart disease and while selecting the particular part i.e. left side of chest of Rambhau assaulted him with kicks fists blows sufficient to constitute an offence under Section 304PartII of the I.P.C.” 10. I am afraid that this reasoning can be sustained in the eye of law. I am afraid that this reasoning can be sustained in the eye of law. From the evidence of the complainant and all her near relatives, nothing is brought on record that the deceased was well acquainted with the appellant and thereby he was having an opportunity to know that the deceased was suffering from heart disease. Further, it is not the claim of any of the witnesses including the complainant that the appellant was having knowledge that the deceased was suffering from heart disease and was taking treatment for the said disease. It was expected from the prosecution to adduce positive evidence that the appellant was having knowledge about the heart disease of Rambhau or it was brought to the notice of the appellant about the said fact and in spite of gaining such knowledge he knowingly gave fist blow on the chest of the deceased Rambhau. In absence of any positive evidence in that behalf, merely because he has taken the defence through cross-examination of prosecution witnesses, which is based on the available material in the charge sheet, the knowledge cannot be attributed to the appellant in that behalf. Complaint (Exh.26) though states that Rambhau was suffering from heart disease, the complaint is conspicuously silent regarding the fact that the appellant was knowing the said fact and therefore he gave fist blows on the chest of the deceased. 11. The post mortem report (Exh.53) shows that the deceased was having two surfaced injures in the nature of contused abrasion over the forearm and one abrasion on both the joints of the hands. Though these two injuries were ante mortem, Dr. Kavita Nagrale has stated in her evidence that these two injuries are possible due to the person collapsing and coming voluntary in contact with the floor. Even according to the prosecution case, the deceased collapsed on the ground and therefore insofar as these two injuries are concerned, it cannot be attributed to the appellant. In column No.20, the post mortem report contains that when the body was opened for autopsy, it has found contusions in the 3rd intercostal space. However, the doctor herself has stated that she failed to mention that this particular injury was ante moretm or post mortem. Further, she has admitted that there was no corresponding internal injury due to the injury which was noticed in column (a) of clause 20 of the post mortem notes. However, the doctor herself has stated that she failed to mention that this particular injury was ante moretm or post mortem. Further, she has admitted that there was no corresponding internal injury due to the injury which was noticed in column (a) of clause 20 of the post mortem notes. 12. Further, from the cross-examination of Babanrao Sidam (PW14), it is clear that after arrest of the appellant, he noticed injuries on the body of the appellant and therefore he was referred to the C.M.O. and the injury report was also received. This injury report is not placed on record by the prosecution. Further, even according to the prosecution witnesses, house of the complainant is statued in the thickly populated area and at the time of incident, various persons gathered on the spot. However, none of the independent witnesses is examined. It is also the defence of the appellant that it could be seen from the line of cross-examination that the appellant was in fact assaulted by the brothers of the deceased and at that time the appellant was exhorting to assault on the appellant and in that assault the appellant received injuries and the deceased suffered heart attack and he expired. As per the post mortem report, the death was due to coronary disease. 13. From the line of cross-examination, it is clear that it was the defence of the appellant that in the assault made on him, the motorcycle was also damaged. Seizure panchanama of motorcycle Exh.36 shows that motorcycle was found to be damaged at the time of its seizure. Owner of the motorcycle Raju Ganvir (PW6), does not state that prior to handing over the motorcycle to the appellant the said was in damaged condition. Therefore, the defence of the appellant is probalised that the appellant was also assaulted by the family members of the complainant. 14. Since the appellant was having injuries on his person when he was sent for medical examination and his report was available with the investigating officer, it was the duty of the investigating officer to place the said injury report on record. By not doing so, in my view, the law laid down by the Hon'ble Apex Court in Lakshmi Singh and Ors. cited supra applies with its full force in the present case. 15. By not doing so, in my view, the law laid down by the Hon'ble Apex Court in Lakshmi Singh and Ors. cited supra applies with its full force in the present case. 15. However, the appellant was having motive since he was arrested three days prior to the report lodged by Lokeshwari (PW-1). The incident in question has occurred at 9.00 O'clock in the evening. There was no occasion for this man to remain present in the courtyard of the complainant. The presence of the appellant and he giving fist blows to the deceased Rambhau is duly proved by the prosecution. 16. The appellant is also convicted for the offence punishable under Section 452 of the IPC. In my view, the said conviction cannot stand to the scrutiny of law in absence of any positive evidence that the appellant had entered in the courtyard of the complainant with a preparation for hurt or assault. It is to be noted here that though the investigating officer is claiming that one weapon is seized under seizure memo (Exh.57), the said is not on the memorandum statement of the appellant under Section 27 of the Indian Evidence Act. Further, there are no injuries caused to the deceased Rambhau by means of weapon. Had the appellant been entered in the courtyard of the complainant with preparation to assault and having weapon with him, he would have used the said weapon. When the said weapon is not used, it is clear that the appellant cannot be convicted for the offence under Section 452 of the Indian Penal Code. However, entry of the appellant in the courtyard of the house of the complainant and infliction of the fist blows on the deceased are duly proved. Therefore, the appellant can be convicted for the offence punishable under Sections 323 and 447 of the Indian Penal Code. 17. The appellant was arrested on 25.02.2002 vide arrest memo (Exh.19). The record and proceedings show that an application for bail was moved and on 24.06.2002, the learned trial Court granted bail. However, the bail bonds were accepted on 16.08.2002. Thus for a period of 5 months, the appellant was in jail. The impugned judgment is dated 29.10.2004 and this Court released the appellant on 03.12.2004. Thus, for about 35 days, the appellant was in jail. Thus, the total jail period comes to about 6 months. 18. However, the bail bonds were accepted on 16.08.2002. Thus for a period of 5 months, the appellant was in jail. The impugned judgment is dated 29.10.2004 and this Court released the appellant on 03.12.2004. Thus, for about 35 days, the appellant was in jail. Thus, the total jail period comes to about 6 months. 18. In that view of the matter, the conspectus of the aforesaid discussion leads me to pass following order. ORDER (i) Criminal Appeal No.731/2004 is partly allowed. (ii) The appellant-Amar Singh s/o Gulab Singh Rathod is acquitted of the offence punishable under Sections 304II and 452 of the Indian Penal Code. Instead, the appellant is convicted for the offence punishable under Sections 323 and 447 of the Indian Penal Code. (iii) The appellant is directed to suffer jail sentence, which he has already undergone. (iv) The order of fine is maintained. (v) Professional charges of Mr. S. G. Joshi, learned counsel appointed by the High Court Legal Services Sub Committee, Nagpur are quantified at Rs.5,000/-.