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Judgment
Appellant assailed the judgment of conviction in Sessions
Trial No. 75/2015 awarded by learned Additional Sessions Judge,
Achalpur by which he is convicted for the offence punishable under
Section 302 of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for life and to pay fine of Rs. 1,000/- in default to suffer
rigorous imprisonment for two months.
The case of the prosecution against the appellant in short is
as under.
(i) Appellant was married. He was residing separately from his
parent in the same house. Wife of appellant left matrimonial home
before 1? years before the incident. Appellant was not doing any work.
He was harassing all the family members. On the day of incident i.e. on
19-5-2015 at about 10.00 p.m. appellant told his deceased brother
Avinash to bring Jawar grains from the village, on that, deceased
Avinash said to him that he would bring in next morning.
(ii) Appellant went outside and came back under the influence of
liquor. Appellant quarreled with Avinash. After the quarrel, appellant
went outside the house. In the night, mother Nirmalabai was sleeping
with Avinash on the cot. Father of Avinash was sleeping outside the
house on bullock cart. At about 1.30 a.m. in the midnight, appellant
came in the house and started beating Avinash by means of wooden
stick. Mother Nirmalabai woke up due to noise. She saw bleeding
injury on the head of Avinash due to assault by means of stick. She
started shouting. Neighbours gathered there. Father of Avinash also
rushed to the spot. After the incident, appellant ran away from the spot.
(iii) Injured Avinash was taken to the Government Hospital, Daryapur
by auto-rickshaw of Sunil Sangole. Doctor declared him brought dead.
On the next day morning, complainant/mother of deceased, namely,
Nirmalabai Sangole lodged the report, Exhibit 15 in Police Station,
Khallar. Crime was registered against the appellant for the offence
punishable under Section 302 of the Indian Penal Code. PSO Ingale
investigated the crime.
(iv) Investigating Officer went to the spot, prepared spot panchanama,
prepared inquest panchanama of the dead body, seized blood stained
clothes etc. Investigating Officer arrested the appellant on 20-5-2015.
Appellant was having injuries. He was examined by the Medical Officer.
As per the confessional statement of appellant, wooden stick was seized
in presence of the panchas. After complete investigation, Investigating
Officer filed charge-sheet before the Judicial Magistrate First Class,
Daryapur which in turn committed to the Court of Sessions for trial.
(v) Learned trial Court framed charge at Exhibit 3. Same was
readover and explained to the appellant. He pleaded not guilty and
claimed to be tried. Defence appears to be of total denial.
(vi) Learned trial Court recorded the evidence of following witnesses.
(1) P.W. 1 Siddarth Ramesh Wankhade (Exhibit 12)
(2) P.W. 2 Nirmalabai Onkarrao Sangole (Exhibit 14)
(3) P.W. 3 Dhnyaneshwar s/o Wamanrao Sangole (Exhibit 19)
(4) P.W. 4 Gopal Ramdasji Kandalkar (Exhibit 22)
(5) P.W. 5 Dr. Vaibhav Prabhakar Kolkhede (Exhibit 28) and
(6) P.W. 6 Ashish Suresh Ingale (Exhibit 31)
(vii) Learned trial Court recorded statement of accused/appellant
under Section 313 of Code of Criminal Procedure. He has denied
material incriminating evidence against him. He has stated that his
relation with P.W. 2 (mother) was not cordial, therefore, she deposed
against him. After hearing the prosecution and defence, learned trial
Court convicted the appellant for the offence punishable under Section
302 of the Indian Penal Code as stated above.
Heard learned counsel Shri R. P. Thote for the appellant.
He has submitted that there was quarrel between appellant and
deceased. Deceased fell down and sustained injuries. He has pointed
out evidence of P.W. 5, Medical Officer Dr. Kolkhede. Doctor has
admitted that injuries mentioned in column no. 17 of the postmortem
report, Exhibit 29 may be possible due to fall of a person on hard and
blunt object. Learned counsel has submitted that deceased fell down
during the scuffle and sustained injuries. Evidence of P.W. 2 is not
reliable. Other material witnesses not examined by the prosecution.
Seizure panchanama of stick is not reliable in view of the cross-
examination of the panch witness. Learned counsel has pointed out C.A.
reports and submitted that wooden stick was not having blood of
deceased.
Learned counsel for the appellant has submitted that
appellant and deceased beat each other. After the arrest, Investigating
Officer found injuries on the person of appellant. He was examined by
the Medical Officer. Copy of medical certificate is at Exhibit 33. It
shows that appellant sustained seven injuries. Prosecution has not
explained the injuries on the person of appellant. Learned counsel has
submitted that the prosecution has suppressed the material evidence.
Learned counsel Shri Thote has submitted that there was
quarrel between appellant and deceased. Both beat each other. There
was no any intention on the part of appellant to commit murder of his
brother, at the most, appellant can be convicted for the offence
punishable under Section 304 Part II of the Indian Penal Code. In
support of his submmission, he pointed out decision of the Apex Court
in the case of Vijay Pandurang Thakre and others Vs. State of
Maharashtra reported in (2017) 2 SCC (Cri) 356. Learned counsel
has pointed out other judgments of the Apex Court and submitted that
testimony of P.W. 2 is not reliable.
Heard learned Additional Public Prosecutor Shri Deshpande
for the State/respondent. He has supported the impugned judgment.
Learned Additional Public Prosecutor has submitted that P.W. 2 mother
has specifically stated against the appellant that in the night, appellant
beat deceased by stick and committed murder. There is no reason to
disbelieve her evidence. The stray admissions in her cross-examination
are not sufficient to disbelieve her evidence. As per the evidence of
Medical Officer, P.W. 5 Dr. Kolkhede, deceased died of homicidal death.
He found four injuries. As per his opinion, cause of death was due to
head injury. Medical Officer Dr. Kolkhede examined stick and opined
that injuries on the head of deceased can be possible by stick. He had
identified the said stick before the Court which was examined by him on
the request of the Investigating Officer.
Learned Additional Public Prosecutor has submitted that
evidence of P.W. 2 is well corroborated by the evidence of P.W. 3
Dhnyaneshwar Sangole. He has stated in his evidence that at about
10.00 p.m. appellant quarreled with his brother. In the night, he was
called by P.W. 2. He saw injured Avinash lying on the cot. Blood was
oozing from his ear. He had taken injured to the hospital at Daryapur.
The stick which was used by appellant at the time of incident was seized
as per his confessional statement, Exhibit 23. Appellant himself
produced the stick from the room of his house. It was seized as per
seizure panchanama, Exhibit 24.
Learned Additional Public Prosecutor has submitted that
Medical Officer has opined that injuries on the head of deceased can be
caused by that stick. Learned Additional Public Prosecutor has
submitted that appellant beat deceased mercilessly with an intention to
kill and, therefore, he is rightly convicted for the offence punishable
under Section 302 of the Indian Penal Code.
Perused the evidence. From the evidence of P.W. 2
Nirmalabai Sangole, it is clear that in the night of incident, appellant
quarreled with his brother at about 10.00 p.m. He directed his brother
to bring Jawar from the village. Deceased told him that he would bring
in the next day morning. Appellant went outside, came under the
influence of liquor and quarreled with deceased. After the quarrel was
over, appellant went outside.
Deceased was sleeping with his mother Nirmalabai on cot.
At about 1.30 a.m. appellant came and started beating to Avinash by
means of stick. P.W. 2 woke up and saw the head injury of deceased.
Blood was oozing. She started shouting. She brought father of
deceased on the spot who was sleeping outside the house. Neighbours
also gathered there. Panjab ran away from the spot of incident. On the
next day, deceased was taken to the hospital at Daryapur. Medical
Officer declared him brought dead.
On 20-5-2015, P.W. 2 went to Police Station, Khallar and
lodged report, Exhibit 15. Crime was registered on her report vide
Exhibit 16. In her cross-examination, she has admitted that appellant
was not doing any work for earning. He was harassing all the family
members, therefore, her relations with appellant was strained. Appellant
was residing separately in the same house. Deceased Avinash and they
both parents were residing separately.
P.W. 2 has admitted in cross-examination that quarrel
between appellant and deceased Avinash took place in the night of
incident. Appellant and deceased both beat each other. Beating was
going on for half an hour. Appellant also sustained injuries on his
person. When she woke up in the night at about 1.30 a.m., she saw
appellant while going out of the house. She has admitted that she has
not seen the appellant while assaulting deceased by means of stick.
Learned counsel for the appellant pointed out admission of
P.W. 2 and submitted that appellant not beat the deceased. It is
pertinent to note that P.W. 2 is the real mother of appellant and
deceased. She had only two sons and she lost one son and now, the
appellant is the only son. Her demeanor was noted by the Court. When
she was deposing before the Court, she was weeping and, therefore,
further evidence was deferred. There is nothing in her evidence to
disbelieve her testimony. Her stray admission cannot be taken against
the prosecution.
P.W. 3 has stated that there was quarrel between appellant
and his deceased brother in the night at about 10.00 p.m. Quarrel was
going on in his presence. Thereafter he went to his house and slept. In
the night, he was called by the parents of Avinash. He saw Avinash
sleeping on the cot. Blood was oozing from his ear. He had taken
injured Avinash to Daryapur Hospital by his auto. He was declared dead
by Medical Officer.
Evidence of P.W. 2 is well supported by the evidence of
P.W. 5 Medical Officer Dr. Kolkhede. As per the evidence of Medical
Officer, Shri Kolkhede, cause of death was head injury. P.W. 2 has
stated in her evidence that appellant beat deceased by wooden stick on
his head. Seized clothes, blood and stick etc. were sent to Chemical
Analyser, Amravati. Copy of C.A. reports are at Exhibit Nos. 9 and 10.
As per Exhibit 9, stick was stained with human blood. The clothes of
appellant were also stained with blood but blood group was not
determined.
The evidence of P.W. 2, P.W. 3 and P.W. 5 show that
deceased died of homicidal death. Deceased died because of injuries
caused by appellant by means of stick. As per the confessional
statement, Exhibit 23, appellant produced stick from his house. It was
seized as per the seizure panchanama, Exhibit 24. The said stick was
sent to Medical Officer along with query letter and he opined that
injuries found on the dead body/head of deceased can be caused by the
said stick.
Prosecution has proved that appellant killed deceased by
wooden stick. There is no dispute that there was quarrel between
appellant and deceased. In the quarrel, both beat each other. P.W. 2,
mother of victim and appellant has stated in her evidence that at the
time of incident, appellant Panjab and deceased Avinash both had
beaten each other. Beating was going on for half an hour. During the
quarrel, appellant sustained injuries. This particular evidence of P.W. 2
is well supported by the evidence of P.W. 6, Investigating Officer Shri
Ingale. He has stated that during the investigation, injuries were found
on the body of appellant. He had referred appellant for medical
examination. Copy of injury certificate is at Exhibit 33.
Appellant had sustained seven injuries on his person. It is
clear from the evidence of P.W. 2 that incident took place in the night
between appellant and deceased. Both beat each other. But there is no
any evidence to show that deceased was having any weapon like stick
etc. On other hand, appellant was aggressor.
From the evidence of P.W. 2, mother of appellant, it is clear
that there was no previous enmity between appellant and his deceased
brother. Quarrel took place on trivial ground. Appellant directed his
brother to bring Jawar from the village. He did not listen him and said
him that he would bring it on the next morning therefore, there was
quarrel. Appellant had no any intention to kill deceased. There was
quarrel between appellant and deceased. Both beat each other.
Appellant beat deceased by stick. Unfortunately, one of the blow landed
on the head of deceased, therefore, deceased died.
In the case of Vijay Pandurang Thakre and others Vs.
State of Maharashtra (cited supra), Hon''ble Apex Court has observed
that "in scuffle that took place, one blow inflicted on head of deceased
which proved fatal, and none other on any other vital part - Accused
armed only with ubharis and not carrying any deadly weapons - No
injury caused on any vital part of any other injured person. Therefore, it
is held that appellant/accused can be held liable for the conviction for
the offence punishable under Section 304 Part II of the Indian Penal
Code."
In the present case, appellant and deceased quarreled with
each other. Both sustained injuries. Appellant also sustained seven
injuries as per Exhibit 33. Appellant beat deceased by stick. He had no
intention to kill deceased, therefore, he used the simple stick. The
incident took place due to the quarrel between appellant and deceased.
Hence in view of the judgment of the Apex Court, appellant is liable to
be convicted for the offence punishable under Section 304 Part II of the
Indian Penal Code. Therefore, we come to the conclusion that learned
trial Court wrongly convicted the appellant for the offence punishable
under Section 302 of the Indian Penal Code instead of Section 304
Part II. In the result, we pass the following order.
ORDER
(i) The criminal appeal is partly allowed.
(ii) The impugned judgment of conviction is hereby quashed
and set aside. Appellant is acquitted of the offence punishable
under Section 302 of the Indian Penal Code, instead, he is
convicted for the offence punishable under Section 304 Part II of
the Indian Penal Code and sentenced to suffer rigorous
imprisonment for five years.
(iii) Appellant is entitled for set off for the period undergone in
jail.
(iv) Muddemal property, being worthless, be destroyed after
appeal period.
(v) R & P be sent back to the trial Court.
(vi) Fees of the learned counsel Shri Thote appointed for the
appellant is quantified at Rs. 5,000/-.