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Judgment
By the present appeal, the appellant who was accused no.1 before the Court below, is challenging his conviction and order of sentence imposed
upon him by the learned Additional Sessions JudgeÂ6, Amravati in Sessions Trial No.52 of 2014, dated 08.1.2018.
By the impugned judgment and order of sentence, the appellant is convicted for the offence punishable under Section 304 PartÂII of the Indian Penal
Code and is directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/Â and in default of payment of fine, he is directed
to suffer rigorous imprisonment for one month.
The appellant and eight others were charged by the learned Additional Sessions Judge, Amravati for the offences punishable under sections 147,
148, 307 read with Section 149, under section 304 read with Section 149 and under section 504 read with Section 149 of the Indian Penal Code so also
under Section 135 of the Bombay Police Act.
All the accused were also charged for committing offence punishable under Section 302 read with Section 149 of the Indian Penal Code for causing
death of Nilesh Ganeshrao Masalkar. In order to bring home the guilt of the accused persons, the prosecution examined in all eight witnesses and also
relied upon various documents proved during the course of the trial.
After a full dressed trial, the Court below acquitted accused nos.2 to 9 for all the offences for which they were charged. Accused no.1 i.e. present
appellant was also acquitted of all the offences, however, it was found by the learned Judge of the Court below that the appellant can be held
responsible for the offence punishable under Section 304 PartÂII of the Indian Penal Code and therefore, passed the impugned judgment.
Though, all the accused persons were acquitted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and
though accused nos.2 to 9 were acquitted for all the offences, the State/prosecution chose not to prefer any appeal before this Court.
The question, therefore, before this Court is whether the appellant was rightly convicted for the offence punishable under Section 304 PartÂII of
the Indian Penal Code. So also, in view of the submission made by the learned counsel for the appellant Ms. Haidari as an alternate argument,
whether any leniency can be shown in favour of the appellant.
I have heard Ms. F. N. Haidari, the learned counsel for the appellant and Mr. N. S. Rao, the learned Additional Public Prosecutor for the
respondent/State. Both the learned counsel took me through the record and proceedings and the notes of evidence.
The incident in question has occurred on 04.10.2013 at about 20.30 hours at Macchisath, Pethpura, Morshi, district Amravati. The first information
report is lodged by Kisna Haribhau Kapile (PW1). His oral report is at Exh.109. PW8 Vijay Tukaram Patil, the InÂcharge of Police Station, Morshi
registered the crime on the basis of the oral report lodged by PW1 Kisna Kapile vide Crime No. 219/2013 against all the accused persons for the
offences punishable under Sections 147, 148, 149, 326, 307 and 504 of the Indian Penal Code. The printed first information report is at Exh.110. After
registration of the crime under Section 307 of the Indian Penal Code, an intimation was received by the Investigating Officer Mr. Vijay Patil that
injured Nilesh expired in the hospital. Therefore, Section 302 of the Indian Penal Code was added.
As per the first information report lodged by Kisna Kapile (PW1), there is a cattle shed adjoining to his house and at some distance there is one
temple of Nagbaba. The first information report further recites that his uncle Rameshwar Kapile (PW2) gave an understanding to Sandeep Dhande
that the persons visiting to him urinate near Nagbaba temple and therefore, he should ask them not to indulge in such acts.
The first information report further states that at about 8.30 p.m. on the day of the incident when the complainant had been to his cattle shed, that
time the present appellant was found urinating near the temple. Therefore, he tried to give understanding to him that since there is a temple, he should
not urinate near it. Upon that, the appellant used abusive language and started beating the first informant by fist blows. Due to the said commotion,
PW2 Rameshwar, deceased Nilesh and others came there for his rescue and when they were trying to separate the quarrel, at that time other
accused persons came there on the spot and they assaulted on him, his uncle Rameshwar and deceased Nilesh by means of iron rod, tommy and other
dangerous weapons.
The prosecution has examined eight witnesses. Out of them, three witnesses are eyeÂwitnesses. They are PW1 Kisna Kapile, PW2 Rameshwar
Kapile and PW3 Chhatrapati Kshirsagar. In the said incident, Rameshwar Kapile and Chhatrapati Kshirsagar also received injuries. Their injury
certificates are at Exhs.166 and 165 respectively. The nature of injuries on their person as per Exhs.166 and 165, which are duly proved by PW7 Dr.
Shweta Bhagat show that they were having contusion, laceration on scalp, on occipital region, abdomen and left arm. In view of the injuries found on
the person of these two prosecution witnesses, which are duly proved by PW7 Dr. Shweta Bhagat, their presence on the spot cannot remain in
dispute.
Though, in the first information report as well as in the evidence, PW1 Kisna states that he was assaulted by fist and kick blows, there is no injury
certificate showing that the first informant received any injury.
After the assault, initially deceased Nilesh was referred to SubÂDistrict Hospital at Morshi. There he was examined by Dr. Shweta Bhagat
(PW7) and on examining him, she found following three injuries :
[i] Lacerated injury 1 x 2 x .5 cm on occipital region, by hard and blunt object e.g. iron rod, stick stone kick, fist etc. age of injury 1 to 2 hours. Healing
time 30 â€" 45 days, grievous injury.
[ii] Contusion injury 15 x 15 cm. Over abdomen by hard and blunt object e.g. iron rod, stick, stone, kick, fist etc. age of injury 1 to 2 hours. Healing
time 10 â€" 15 days. Simple injury.
[iii] Contusion injury 7 x 3 x 6 cm on right forearm by hard and blunt object. e.g. iron rod, stick stone, kick, fist etc. age of injury 1 to 2 hours. Healing
time 10 to 15 days, simple injury.
According to the doctor and the injury certificate (Exh.164), the first injury was grievous injury, whereas second and third injuries were found to be
simple.
Since, during the medical treatment, Nilesh expired, his body was sent for autopsy. Post mortem was performed on the dead body of Nilesh by Dr.
Mahendra Mohite (PW6). On external examination of the dead body, he found following injuries :
[i] Lacerated wound of 5 cm x 2 cm x 2 cm on left pareto occipital region of scalp.
[ii] Lacerated wound above left orbit size about 3 x 2 x 1 cm.
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[iii] Abrasion on right cheek of 2 x 2 cm
[iv] Contusion about 3 x 2 cm on over occipital region.
[v] Abrasion on right leg size of 3 x 2 cm.
According to the doctor, all these injuries were ante mortem. On internal examination of the dead body, he found following injuries :
[i] Fracture of left pareto temporal bone. Hematoma was seen on the brain left frontal region of size 6 x 4 cm
[ii] Hematoma was seen on occipital lobe of size 4 x 3 cm
[iii] Approximately 200 ml blood was cranial cavity.
[iv] On thorax examination, age and the larynx structure were intact. Haemotoma on internal surface of skram of size 6 x 4 cm. The lungs were pale
and intact. On examination of heart, a puncture wound on posterior aspect of left chamber of heart. Left chamber was empty and right chamber as
minimum blood. Approximately 200 ml blood was seen paricardial sac. Rest of the organ was intact and pale.
The post mortem report is at Exh.142. According to the post mortem report, the cause of death was shock due to loss of blood due to head injury with
hemaoparicardium. From the evidence of two doctors and in view of injury certificate (Exh.164) of deceased Nilesh when he was alive and post
mortem report (Exh.142), the deceased died his unnatural death.
In the evidence of PW1 Kisna Kapile though he has specifically stated that appellant assaulted on deceased by means of tommy bar, his entire
evidence is silent as to on which part of the body the appellant gave blow of the said weapon.
PW2 Rameshwar Kapile, the injured person, has state that he was assaulted by present appellant and the deceased was assaulted on his head by the
acquitted accused Nabi
PW3 Chhatrapati Kshirsagar is very specific in deposing that the present appellant gave sabbal blow on the head of deceased.
The appellant was arrested on 05.10.2013 under arrest memo (Exh.194) and since then he is in jail as it could be observed from the operative
portion of the impugned judgment.
As per the prosecution case when the appellant was in the police custody, he gave his memorandum statement (Exh.176) and that led to recovery
of all the weapons under recovery panchanama (Exh.177). However, the learned Judge of the Court below found that the manner in which the
weapons are shown to have been recovered, creates a doubt about the recovery and therefore, the recovery was rejected. On reÂappreciation of the
prosecution case, I put a stamp of approval for rejection of the theory of prosecution about recovery of the weapons at the behest of the appellant.
The prosecution case also falls short in giving the evidence that at the time of recovery of the weapons as well as seizure of the clothes of all
accused, those were properly sealed. In that view of the matter, I have no hesitation in my mind not to place any reliance on Chemical Analyser's
report, though blood stains are shown on the full pant of the appellant.
On reÂappreciation of the prosecution case, especially the evidence of PW1 Kisna and PW3 Chhatrapati, there cannot be any second opinion that
the appellant has given blow of heavy weapon on the head of deceased Nilesh resulting into the injuries as mentioned in the post mortem report.
According to Ms. Haidari, the learned counsel for the appellant, out of the total sentence of seven years, the appellant has already undergone the
sentence of five years and therefore, prayed that this Court should give respite to him in the quantum of sentence.
Merely because the appellant has undergone five years of sentence, that by itself cannot be a ground for showing leniency. However, for the
following reasons I am showing leniency in the quantum of punishment awarded to the appellant :
[I] PW1 Kisna Kapile has stated in his crossÂexamination that after the incident, the accused also came to the police station. According to PW1, he
had gone earlier to the police station. PW1 Kisna has admitted that accused persons also lodged first information report against him and others on the
basis of which a crime was registered against them.
[II] PW8 Vijay Tukaram Patil, the Investigating Officer, has also admitted in his crossÂexamination that the offence was registered against the
complainant (i.e. PW1) and it was numbered as Crime No. 220 of 2013, whereas the crime registered in present case is Crime No. 219 of 2013. Thus,
it is crystal clear that there was a counter case registered against the complainant and the prosecution witnesses.
[III] The Investigating Officer has admitted in his cross examination, which is reproduced herein under :
“It is true to say that I have not submitted injury report of the accused along with the ChargeÂsheet. It is true to say that there is endorsement in
the injury report of Shaikh Nazim Sheikh Nadim that he is grievously injured and there is overwriting.â€
From the aforesaid it is crystal clear that even the appellant was also injured and he was having grievous injuries. It was the duty of the
Investigating Officer to place the said injury report on record. Suppression of the injuries caused to the appellant/accused by the prosecution clinches
the issue in favour of the appellant that there was a quarrel and in that he was also assaulted.
[IV] PW 6 Dr. Mahendra Mohite, the autopsy surgeon, after opening the body of deceased found following internal injury :
 “On thorax examination, age and the larynx structure were intact. Haemotoma on internal surface of skram of size 6 x 4 cm. The lungs were
pale and intact. On examination of heart, a puncture wound on posterior aspect of left chamber of heart. Left chamber was empty and right chamber
as minimum blood. Approximately 200 ml blood was seen paricardial sac. Rest of the organ was intact and pale.â€
However, there is no surface injury corresponding to said internal injury.
[V] According to the prosecution, the weapons used were hard and blunt object. PW6 Dr. Mohite, the autopsy surgeon has admitted that the puncture
wound would be possible only by sharp object and not by hard and blunt object. Thus, the prosecution has utterly failed to point out the proper medical
evidence or otherwise as to how the internal injury was caused to the deceased.
Since, the appellant himself suffered grievous injury and the prosecution has suppressed his injury certificate, in my view, the appellant is entitled
for leniency in the quantum of punishment. That leads me to pass the following order :
 (i) The criminal appeal is partly allowed.
(ii) Though, the judgment and order of conviction is maintained, the impugned judgment and order of conviction passed by the learned Additional
Sessions JudgeÂ6, Amravati dated 08.01.2018 in Sessions Trial No. 52 of 2014 is interfered with only in respect of quantum of sentence.
(iii) The sentence imposed on the appellant is modified and he is sentenced to suffer rigorous imprisonment for the period which he has already
undergone in jail, in stead of Seven years as directed by the Court below and he is directed to pay a fine of Rs.500/Â in stead of Rs.5,000/Â as
ordered.
(iv) The appellant is directed to be set at liberty forthwith, if not required in any other offence.
(v) The criminal appeal is partly allowed and disposed of.