Hansraj Jogeshwar Urade vs The State of Maharashtra

Challenge is to the judgment and order dated 24.6.2004 rendered by the 1st Adhoc Additional Sessions Judge, Gadchiroli, in Sessions Case 36 of 1993, by and under which the appellant (hereinafter referred to as "the accused") is convicted for offence punishable under section 304 part II of the Indian Penal Code (" IPC ") and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs. 1000/- and is further convicted for offence punishable under section 324 of IPC and is sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs. 500/-. The accused is however acquitted of

the offence punishable under section 302 of the IPC.

Heard Shri A.K. Bhangde, the learned counsel for the accused and Shri V.P. Gangane, the learned Additional Public Prosecutor for the respondent / State.

The prosecution case, as is unfolded in the course of the trial is thus:

Deceased Sukhdeo Dewaji Zade and the accused were residing in village Darpanguda. The incident occurred on 28.8.1992, the day following Pola. The villagers purchased a goat from Police Patil, the goat was killed and the list of villagers desirous of purchasing the meat was prepared. Sukhdeo Zade could not get a share in the meat for which he blamed his wife and quarreled with her. Anita Zade, the sister in law of the deceased invited the deceased Sukhdeo to have meals at her house. At 11.00 am, the deceased accompanied by his son Bandu and sister in laws Anita and Manjulabai was proceeding towards the

house of Anita. When they were so proceeding, the accused came out of his house armed with Ubhari (stump of bullock cart) and dealt a blow on the head of Sukhdeo Zade who fell down. The accused dealt two blows of Ubhari on the side of chest. Bandu, the son of Sukhdeo Zade who intervened to save his father from assault, suffered one blow of stick on his shoulder. One Prakash Gedam came to the spot and snatched the ubhari from the accused. An injured Sukhdeo was taken to the police outpost Ghot where he lodged the oral report (Exh. 28), the gist of which is that the accused assaulted him with Ubhari and Kisan Gedam, Namdeo Urade and Sadashiv Urade also attempted to assault him with stick, but were prevented from doing so by people residing in the vicinity. On the basis of said report, offence punishable under section 324 read with section 34 of IPC was registered against

accused Hansraj and others.

Sukhdeo was referred to Rural Hospital, Chamorshi for medical examination. He expired at 2.00 a.m. in the hospital.

Inquest panchanama was prepared, the autopsy conducted, the spot panchanama was recorded, seizure of Ubhari was effected from the house of accused Hansraj, statements of witnesses were recorded and upon completion of the investigation charge sheet under section 302 of the IPC was submitted in the court of Chief

Judicial Magistrate, Gadchiroli who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge

under section 302 of IPC (Exh. 8), the accused pleaded not guilty.

The defence is of total denial.

The prosecution has examined eight witnesses. PW 1 Durre Bhaiyya is witness to the spot panchanama and seizure panchanama. PW 2 - Bandu Zade is the son of the deceased and an injured eyewitness. The sister in law of the deceased Anita Zade is PW 3, Kalidas Zade - the brother of the deceased is PW 4, PW 5 Yashwant Naitam is the police head constable who took the injured Sukhdeo and Bandu for medical examination, PW 6 Nilkanth Mankar recorded the report, PW 7 is the Investigating Officer and the Medical Officer Dr. Khade is examined as PW 8.

The evidence of Dr. Khade (PW 8) who conducted the autopsy on the dead body of Sukhdeo Zade reveals that he noticed a contused lacerated wound on occipital region of scalp of size 1 1/2" x 1/2" x 1/2" with bleeding and fracture of 8th rib on the right side which injuries were ante mortem. In the internal examination of the body, the doctor noticed the presence of hematoma on occipital region, linear fracture of the right temporal bone and

presence of subdural hematoma in the brain. Injury on right lung and blood clots on the lower side of the right lung were noticed.

The conclusion of PW 8 is that the probable cause of death was due to cardio respiratory arrest due to the injury to brain and on right lung which cause subdural haemorrhage and haemo thorax.

PW 8 Dr. Khade proves the post mortem report Exh. 39. PW 8 has deposed that contused lacerated wound noticed is possible due to stick blow.

PW 2 Bandu Zade is an injured eyewitness. He has deposed that on the day of the incident, which was the day following Pola, one goat was purchased from the police patil. The goat was killed. However, his family did not purchase the meat.

His uncle (the husband of the sister in law of the deceased) invited the family for meals. PW 2 alongwith deceased Sukhdeo and Manjulabai and Anita were proceeding towards the house of the uncle, the house of the accused was on the way, Sadashiv the brother of the accused asked Sukhdeo as to why he was abusing.

PW 2 states that his father Sukhdeo was not abusing anybody and Sukhdeo told so to Sadashiv. The accused came out from the cattle shed armed with Ubhari and dealt a blow on the head of Sukhdeo from behind. Sukhdeo fell down and then the accused

inflicted two blows on the ribs. Bandu attempted to save Sukhdeo and suffered a stick blow on the shoulder.

PW 2 was subjected to a lengthy cross examination. The attempt was to bring on record that deceased Sukhdeo used to quarrel with the villagers under the influence of liquor. PW 2 has however, denied the suggestion given by the defence. PW 2 admits that deceased Sukhdeo did quarrel with his wife, but denies Sukhdeo slapped his wife (mother of PW 2). He however admits that his father did beat his mother and she had gone to call her brother (maternal uncle of PW 2). PW 2 denies the suggestion that the deceased abused his maternal uncle Tarachand and Kawadu Zade in filthy language. He denies the suggestion that deceased Sukhdeo was abusing the Urade family. The suggestion that since Tarachand and Kawadu could not control the behavior of deceased Sukhdeo, they called Kalidas, is denied. PW 2 denies the suggestion that since the deceased abused Kalidas, it was Kalidas who assaulted Sukhdeo.

The trend and tenor of the cross examination would suggest that the defence is not disputing that the deceased Sukhdeo suffered injury on head and on ribs due to stick. The endavour of the defence is to show that it was not the accused who assaulted the deceased, but it was Kalidas who is responsible for the assault

The sister in law of the deceased Anita, who is

examined as PW 3 is also an eyewitness. She has deposed that it was accused Hansraj who assaulted Sukhdeo with Ubhari. PW 3 has deposed that the accused first dealt a Ubhari blow on the head which caused the deceased to fall down and thereafter the accused inflicted two blows of the Ubhari to the side portion of the body on

rib. She has also deposed that the accused assaulted PW 2 Bandu when Bandu attempted to intervene.

Few minor omissions are brought on record. However, minor omissions are most natural and can be attributed to imperfect memory or an error of observation and in the case at hand to the fact that the evidence was recorded more than 12 years after the incident. Illustratively, the omission that Manjulabai asked the accused not to beat Sukhdeo and that the accused pushed Manjulabai, does not dent the credibility of the evidence. The testimony of PW 3 Anitabai is not shaken in the cross examination.

Kalidas Zade, on whom the defence attempted to pin

the blame is examined as PW 4. He is examined as an eyewitness.

He has denied the suggestion that it was he who assaulted Sukhdeo. Strangely, a suggestion is also given to PW 4 Kalidas that no incident took place in his presence, although, the defence has brought on record, in view of the admission given by PW 3 Kalidas, that his testimony is apparently hearsay, the suggestion is not consistent with the defence that accused Sukhdeo was assaulted by his brother Kalidas PW 4. That apart, the defence that Kalidas brutally assaulted his brother only because he was abused is not probalized on the touchstone of preponderance of probabilities.

The oral report Exh 28 lodged by the deceased

Sukhdeo, which is an admissible evidence under section 32(i) of the Indian Evidence Act is seriously attacked by the defence contending that the PW 2 Bandu Zade admitted that the deceased was unconscious and that he did not lodge report with the police.

The learned Sessions Judge has rightly noted that the defence has also brought on record that Kalidas, Kapil and Anusaya took the deceased to Police Station Ghot and that Bandu did not go to the police station. PW 6 Nilkanth Mankar who recorded the oral report has denied the suggestion that Sukhdeo was unconscious and did not lodge oral report. The evidence of PW 6 is reliable and confidence inspiring. The contention of the defence that the oral report is fabricated to falsely implicate the accused in the crime deserves rejection. In the teeth of the evidence on record, the finding recorded by the learned Sessions Judge that the prosecution has proved offence punishable under section 304 part II of IPC is unexceptionable. The assault, even if it is assumed that there was some provocation, was brutal. The deceased was assaulted on the head with the Ubhari and after he fell down was dealt two blows on the rib. The intention to cause death may be absent but requisite knowledge must be attributed to the accused, as is rightly held by the learned Sessions Judge.

I do not find any infirmity in the judgment and order of

conviction. The appeal is sans merit and is rejected.

Accused be taken into custody forthwith to serve the sentence. He shall be entitled to the benefit of section 428 of the Code of Criminal Procedure.

Police Station Chamorshi shall file the compliance report in the Registry of this Court, within three weeks of the receipt of the copy of the judgment and order.

The Registry to communicate this judgment and order to Police Station Chamorshi within a week.