Soma Mohurle vs The State of Maharashtra

S.R. Dongaonkar, J.—The appellant is challenging his conviction for the offences u/s 304 and 323 of I.P.C. for which he has been sentenced to suffer R.I. for 7 1/2 years and to pay fine of Rs. 1000/-, in default to suffer S.I. for one month and R.I. for six months respectively, by the Ad-hoc Sessions Judge-1, Chandrapur in Sessions Case No. 106/2007 by the judgment dated 29.4.2008.

The appellant was prosecuted for the offences punishable u/s 302, 307, 201 and 202 of the I.P.C. for allegedly committing murder of his father Balaji Mohurle and also for attempting to commit murder of his mother Smt. Girjabai. He has also been alleged to have committed the offence of misleading the investigating authorities by giving false information that deceased had fallen due to consuming liquor and thereby suffered relevant fatal injuries. Briefly stated, prosecution case is that the appellant resides adjoining to the house of complainant - his mother Girjabai who was living with her husband deceased Balaji. Deceased and the complainant Girjabai are old persons, aged about 70 to 60 years. It is alleged that the appellant used to demand the house in which they were residing and he was insisting for recording the said house in his name and as the complainant and her deceased husband used to refuse, there used to be hot exchange of words often, so also quarrels. On 23.6.2007, complainant Girjabai and deceased Balaji had returned to the house after attending marriage of grandson [i.e. daughter''s son]. They had taken their meals and they were about to go to bed. It was about 6.00 to 7.00 p.m.. It is alleged that appellant kicked the door, entered into the room (house) and abused them filthily. He assaulted deceased Balaji and complainant Girjabai by kick and fist blows. It is alleged that deceased Balaji then said that he would kill both these persons. Thereafter, the appellant left the complainant and rushed on the person of deceased Balaji and started beating him with kicks and fist. he lifted him and fell him down. Deceased became unconscious. It is alleged that appellant had urinated on the mouth of the deceased and stood on his body. It is also the contention of the prosecution that at that time one Mala Gampallawar had came to rescue and request to leave the deceased, but appellant did not pay any heed. So he went away. Thereafter the nephew of appellant Ramchandra and Dadaji also tried to pacify the appellant, but in vain. It is alleged that as the appellant was once accused of murder, the villagers were afraid of and they did not intervene. Deceased was left there. In the morning the complainant had been to Sarpanch -Sudarshan of the village. She narrated the incident to him. Thereafter auto rickshaw was brought and deceased was taken to hospital at Gondpipri. Thereafter he was referred to hospital at Chandrapur and then to Medical College, Nagpur. However, he died on 26.6.2007. Thereafter telegraphic message was given to the police station, so also report by the complainant. On that, the offence was registered. The Investigating Officer, Sukhdeo Jadhao P.I. conducted the investigation. It is alleged that in the incident complainant Girjabai had also suffered some injuries, she was also referred to the Medical Officer for examination and treatment. During investigation, spot panchnama was prepared in presence of panchas. Some articles were seized. Statements of witnesses were recorded. so also postmortem report was received. After the necessary investigation, the charge sheet against the appellant was filed.

Charge against the appellant was framed by learned Ad-hoc Additional Sessions Judge, Chandrapur for the offence u/s 302 for causing death of the deceased, u/s 307 Cr.P.C. for trying to commit murder of complainant - Girjabai, for the offence u/s 201 and 202 for misleading investigating officer as it was reported by the appellant that the deceased had fallen due to consumption of liquor and died. The appellant pleaded not guilty to the same. His defence is that of total denial. Specific defence which he has raised during his statement u/s 313 of Cr.P.C. is that deceased had fallen on the platform of the house, there is wooden door and drainage on the stone, there are stones also in the courtyard . Deceased Balaji slipped and fell down. As he was caught in the courtyard steps, he cleaned him and took him in the house, later on took him in the hospital in the morning. He had borrowed money for the treatment of his father, when he was taken to Chandrapur and then to Nagpur. he had incurred expenses for car False case is filed against him.

Prosecution has led evidence of 15 witnesses. P.W.2 is complainant Girjabai, P.W. 9 Mahesh is the alleged eye witness to the incident, he is minor son. P.W. 3 is sister of the appellant - Barulabai. These are the main witnesses from the family relations of the complainant and the appellant. P.W. 4 Surekha is daughter in law of the complainant. She is also alleged eye witness to the part of incident. She however, did not support the prosecution case fully.

P.W.1 Shriniwas Prakash Kandanurwar is witness to the spot panchnama Exh. 14.P.W. 5 Shankar is alleged eye witness to the incident. P.W. 8 Bira Malla Gampallar, his father had gone to pacify the appellant.

Prosecution has led evidence of 4 medical officers, P.W. 10 Dr. Avinash Nanhe is the Medical Officer of Gondpimpri. He had examined deceased Balaji Mohurle on 24.6.2007 in the morning. He had noticed some injuries on his person. He had referred him to the hospital at Chandrapur. He had later on examined complainant Girjabai on 26.6.2007 and noticed some injuries on her person. P.W. 11 Dr. Ashok Barapatre is a Radiologist of General Hospital Chandrapur, he had examined deceased Balaji on the relevant date. He had carried out city scan of the deceased and noticed intra cranial hemorrhage of right side parietal region in the mid line including lateral ventricle with value of 60 to 65 HU. P.W.12 Dr. Pradip Nagrale is Medical officer at Government Medical College, Nagpur. He had conducted the postmortem on the dead body of the deceased. He has given opinion as regards the cause of death of the deceased. P.W.13 is Dr. Rahul Agrawal, is also working as Medical officer at Government Medical College, Nagpur. He had examined said Balaji Mahurle and later on he had given intimation about death of this Balaji to police. He has deposed regarding injuries.

Rest of the witnesses are regarding investigation. P.W. 6 Namdeo Balaji Shende H.C., had recorded statement of accused / appellant on 26.6.2007 when he had reported that Balaji had consumed liquor and fallen in the drainage and thereby he had suffered injuries on his face and head. P.W.7 Tukaram Gawai had accompanied the patient Balaji at Medical College Nagpur. He had received intimation about his death at the relevant time he had been to the mortuary wherein Barulabai had came to him, and disclosed that appellant was her brother, had beaten her father - Balaji. He has recorded her statement. P.W.14 Raju Dighode, A.S.I., had received the relevant papers from Medical Police Booth. He registered merg information and forwarded to the administration. P.W. 15 P.I. Jadhao is investigating officer. He was at P.S. Gondpipri on 26.6.2007. He received the complaint from Girjabai, noted report and thereafter conducted investigation after registering offence as indicated above.

Though the accused has raised a contention that he would examine defence witnesses, it seems, he has not led any defence evidence.

Learned trial Judge after considering the evidence on record and hearing the parties found that the offence u/s 302 of the I.P.C. is not made out. He also found that offence u/s 307 in respect of the assault on the complainant Girjabai is also not made out, so also Section 201 and 202 of the I.P.C. He, however, held that the appellant is guilty of the offence u/s 304 of the I.P.C. for causing death of deceased Balaji and guilty for the offence u/s 323 for causing injuries to the complainant Girjabai. Therefore, he passed the impugned judgment which is challenged in this appeal.

Learned Counsel for the appellant Shri A.H. Lohiya, has submitted that the prosecution case is inherently improbable as the appellant being the son of Balaji would not kill the father. According to him, report lodged by complainant Girjabai is belated. . According to him, there is delay of three days in lodging report by complainant Girjabai which is not satisfactorily explained. Nobody disclosed about instigation of beating to the deceased Balaji. It is submitted that deceased did not die of homicidal death. In fact he had died due to hyper tension and cause of death is intra cranial hemorrhage. According to him, medical evidence does not support prosecution case. Appellant is falsely implicated. Deceased had not suffered injury which would have resulted into his death. No possible eye witnesses are examined. Therefore, adverse inference against prosecution case is justified. Alleged eye witnesses examined by the prosecution Pillewar could not see the incident as house of complainant was intervening between his house and the alleged spot of incident. In alternative it is submitted that there was no intention on the part of the appellant to cause death of the deceased Balaji so also to cause injuries to complainant Girjabai, therefore, the appellant needs to be acquitted for the offences for which he was found guilty or the same need to be reduced only to Section 323 of IPC. In any case according to him, sentence is on the higher side and same may be reduced.

Per contra Shri Mandpe, learned APP has submitted that the appellant used to quarrel with the deceased and his mother - complainant Girjabai to get house mutated in his name. Therefore, there used to be altercations. This fact been established by the prosecution. According to him, medical evidence clearly shows that the deceased died due to intra cranial hemorrhage due to injuries, he had suffered, caused by the appellant. His act of not taking the deceased to the hospital immediately on the same day speaks volumes against the intention of the appellant. According to him, late report is explained by the prosecution inasmuch as complainant Girjabai had no psychological / mental strength to lodge report immediately after the incident as the accused was no less than a son. She gained strength to lodge report only after her daughter came. It is also contended that house of the appellant so also of the complainant Girjabai was so small, hut like, that the spot was visible from the house of witness Pillewar who is examined by prosecution as eye witness. He has sought to rely on certain authorities to contend that in this case the trial court has wrongly acquitted the appellant for the offence u/s 302 of IPC. He relied on the Anda and Others Vs. The State of Rajasthan, & M.C. Mehta Vs. Union of India (UOI) and Others, . Therefore, according to him, the appeal is liable to be dismissed.

In order to appreciate the contentions of the learned Counsel, it is necessary to bear in mind that this is a case where the complainant Girjabai is alleging that the appellant who is no less than her son, has committed murder of his father i.e. her husband and caused injuries to her. Some of the relevant witnesses are close relations of the parties. All the evidence of the case need to be viewed with this background.

Coming to the first question, as to whether the deceased had met with the homicidal death, we have to closely peruse and scrutinize the evidence led by the prosecution of the medical officers. First witness in this connection is P.W. 10 Dr. Avinash Nanhe who had examined deceased on 24.6.2007 in the morning when he was attached to Gondpipri Rural Hospital. He noticed following injuries on his person:

1] Abrasion 1 cm 1 cm on right fore head above eye brow

2] Abrasion 1 cm x 1 cm left fore head above eye brow

3] Contusion 5 cm x 3 cm left side of face near eye

4] Redness of conjunctiva of left eye present.

He has opined that the cause of the injury is hard and blunt object. The nature of the injury can be confirmed after C.T. Scan and ophthalmic surgeon''s opinion. He also opined that the age of the injury was less than six hours. He has also deposed about the O.P.D. Card of this patient and his bed head ticket. My attention was drawn by the learned Counsel for the appellant that he has admitted that if the patient falls on hard and blunt object and the injured slips injuries mentioned in the certificate of Balaji are possible.

It is necessary to bear in mind in this regard that his opinion was not final and therefore, he had referred Patient Balaji to the specialist. P.W. 11 Dr. Ashok Barapatre is some specialist radiologist who had given C.T. Scan report of the injuries of the deceased. He has stated that C.T. Scan of brain was carried out and on examination he noticed intra cranial hemorrhage on right side. He however, told that he can not tell reason for its happening as it can be caused by many reasons. What is specific is that he has stated that in case of a person who is suffering from hyper tension and if there is increase in blood pressure, such type of hemorrhage can be caused.

Turning to the evidence of the medical officer who had conducted postmortem examination. P.W. 12 Dr. Pradip Nagrale, it would be seen that he noticed following external injuries on the body of the said Balaji:

1] Abrasion on right side of forehead 1/2 cm above eye brow, 4 cms. right from mid line, 1 cm x 1/2 cm brownish in colour

2] Abrasion on right Zygoma, lateral side below lower right lower eye lid 1 cm x 1/2 cm size brownish black colour

3] Abrasion on left eye brow middle 1/3rd 1 cm x 1 cm brownish black in colour.

4] Abrasion on left zygoma, lateral side below right lower eye lid size 4 x 1 cm horizontal brownish black in colour

5] Bleeding per urethra present suggestive of catherisation

6] Post Morten abrasion on lateral surface of right forearm upper 1/3rd 1 x 1 cm yellowish red.

He also found following internal injuries on internal examination:

Under scalp haemotoma on right fonrtal region 2 x 2 cm left frontal region 4 x 2 cm right temporal region 4 x 4 cm, left temporal region 2 x 2 cm moist - dark brown about 50 cc. In skull there was no bone injury. In brain there was sub dural haematoma present on fronto temporal region by laterally dark brown moist about 50 ml. and in brain hemorrhagic contusion on both frontal lobes. Brain was edematous and congested.

He has specifically stated that injuries mentioned in column 19 are sufficient in ordinary course of nature to cause death. According to him cause of death was head injury and injuries can be caused by the impact of hard and blunt object. In cross examination he has stated that in case the person is suffering from hyper tension there can be hemorrhage. and if this stage continues there can be cardio vascular episode. In case of hypertension and hemorrhage, the patient can feel giddiness and can also fall. He has also stated that in column No. 17 the injury No. 4 is a single injury . He has further stated that intra ventricular haematoma is the kind of disease.

The last witness in this case is P.W. 3 Dr. Rahul Agrawal who had examined deceased Balaji Mohurle prior to his death. He has stated that the patient had history of fall but no details were available. In cross examination he has stated thus:

At the age of 70 the normal Blood pressure is 140-90. The pulse rate at the age of 70 depends on the condition of the patient. I had examined the patient. I had examined the patient in the evening of 25th., between 19 hours to 21 hrs. The clinical notes ae marked exhibit as the learned Advocate for the accused wants to refer the notes. the said clinical notes are marked Ex.57-A collectively. (Total no of pages 47 pages A). The B.P. Mentioned on page No. 13, 18, 25, 26 are respectively 160/100, 160/90, 150/90, 150/90.The all figures are the figures of B.P. which is above the normal. As the patient was having hemorrhage, the medicines for reducing the blood pressure was not administered.

4] The patient was hospitalized on 25.6.2007.The patient was taken as Medico Legal Zode on 25.6.07 by C.M.O. Dr. Zode. The intimation to the police was given on 26.6.2007, at 15.00 hours. It is not true to say that none had looked after the patient from the night of 26.6.2007 to 8 a.m. of 26.6.2007. It is not true to say that there is an overwriting of taking the notes on page No. 30.

According to learned Counsel for the appellant, the deceased has fallen on the ground due to consumption of liquor and because he was patient of hyper tension, he suffered injury intra cranial hemorrhage and therefore, he died. He had tried to contend that injuries as found on his person, were due to fall and not due to beating.

Apparently there are two versions as regards the possibility of cause of death of the deceased. Question is what theory can be accepted. Learned trial Judge has accepted the case of the prosecution meaning thereby the appellant had beaten the deceased and therefore deceased suffered injuries, which has resulted into his death. It is not the case of the medical officers that the injuries caused on the person of the deceased, may not cause intra cranial hemorrhage so as to lead the same to the death of the deceased because of old age. Only suggestion of possibility have been given, cause of death of the deceased due to own fall leading to intra cranial hemorrhage can be accepted when prosecution evidence is shaken due to some infirmities creating doubts.

In this context, therefore, it is necessary to see the evidence of P.W. 2 Girjabai. she has supported whole of the prosecution case. No doubt there are some discrepancies in her evidence, but then, that can be explained because of her old age.

It was pointed out by the learned Counsel for the appellant that she was protesting not to take Balaji to the hospital as his condition was critical and there were least chance of his surviving. It was also tried to point out that the appellant was trying to take him to hospital but she was not allowing and this may be a cause of his death.

The evidence of Barulbai sister of the appellant also supports the case of the prosecution as she has stated that she had been to the hospital when her mother told that accused had beaten his father and also she was beaten.

Evidence of P.W. 9 Mahesh who is a child of 14 years, has also supported the prosecution case. He has stated that Mala had rescued his grandmother and he had also asked appellant not to beat P.W. 2 i.e. Girjabai.

As regards presence of Malla at the relevant time, his son P.W. 8 Bira deposed that at that time his father had gone to spot of incident to intervene in the quarrel. Therefore, all these witnesses do corroborate each other and their version is supported by the medical evidence.

It is the contention of the learned Counsel for the appellant that P.W. 4 Surekha Mohurle had turned hostile to the prosecution and she is daughter in law of the deceased Balaji. However, it is pertinent to note that she was contradicted with the statement made by her before the police and she could not explain as to why police could record the statement allegedly made by her in support of prosecution case. Considering circumstances of the case, her turning hostile can be explained.

Learned Counsel for the appellant has tried to contend that report lodged by complainant Girjabai was late by about 3 days and therefore, prosecution case should be disbelieved. No doubt in the present case there is some is delay in lodging report, but fact remains that circumstances of the case are such that this delay has to be considered to have been satisfactorily explained. In my opinion had there been no bad relations with the appellant & no such incident, there would not have been any report. No mother would lodge report against the son for assaulting the father. At least, there is no such strong reason pointed out from the defence side to lead to the conclusion that there is possibility of complainant Girjabai''s lodging false report against her son - appellant; taking advantage of the death of her husband due to fall on the ground and suffering injuries under intoxication.

Learned A.P.P. has pointed out that when the appellant tried to take deceased to the hospital on the same night complainant Girjabai did not allow. It is not the case of defence u/s 313 Cr.P.C. statement. In fact even Girjabai has stated that in the morning she and Balaji were taken by the appellant to the hospital when other persons had come. Therefore, it was for the appellant to explain as to why he could not take away the deceased to the hospital in the same night calling other persons for help in the circumstances of case.

As already stated above, though the report is lodged some what late, it is obvious that the complainant Girjabai must have been attending her husband all the while as the deceased Balaji was moved from one hospital to another and was taking treatment and therefore, her first duty was towards her husband. It is also possible that she might have been hesitant to lodge report against the son at the relevant time. In these circumstances delay if any occurred in lodging the report looses its significance and it can not make the prosecution case a throw away business. I have already pointed out above that there is no enmity alleged to the incident between the appellant and complainant Girjabai who are son and mother, so as to involve the son in a false case of murder of the father. Few discrepancies and omissions in statements before police here and there would not make much difference and therefore, in my opinion, the prosecution case cannot be thrown away on this ground.

Learned Counsel for the appellant has pointed out the spot map drawn by the I.O. in the presence of panchas to contend that if that spot map is accepted as true, considering the house of Shankar Pillewar P.W. 5, he could not have seen the incident. He has deposed about the incident so also his seeing the appellant beating deceased Balaji by fist and dashing him on the ground. He stated that the appellant had caught hold the hair of Girjabai complainant which is supported by version of the other witnesses. He has also stated that wife of the appellant had called Mala Gampalwar and Mala Gampalwar had asked the appellant to release Balaji and thereafter, said Mala had taken complainant with him. On next date, Balaji was taken in the hospital. He was cross examined on the aspect of the place where he was standing and the spot of incident. It was tried to suggest that it was impossible for him to see the actual spot of incident as there was a house of the complainant in between.

Learned APP has explained and; rightly; that the map drawn by the I.O. Exhibit 14 is only a sketch map. The height of the house of the complainant can not be of such nature so that visibility of the spot of incident from the house of Pillewar is impaired so as to render his evidence as an evidence of a got up witness. Further there appears nothing substantial on record to suggest that he has anything sufficient to falsely implicate the applicant and support the complainant, though the actual incident was of mere falling of the deceased. Here is the case where complainant Girjabai had also suffered injuries as pointed out and found by the doctor P.W. 10 Nanhe who had examined her on 26.6.2007 when the report was lodged. He has clearly stated that following four injuries were found on her person:

I had examined Girjabai on 26.6.2007. Accordingly I had issued issued the Medical Certificate. On examination I noticed the following injuries:

1] Abrasion of size 2 cm x 1/2 cm over right upper side of fore head, blackish colour, aged of injury was 3-4 days.

2] Contusion of size 5 cm x 3 cm over right face below eye blackish colour

3] Contusion of size 4 cm x 2 cm left face below eye, blackish colour.

4] Tenderness present, back of neck and front of neck.

The injuries were caused by hard and blunt object. The age of all injuries were 3-4 days. The injuries were simple in nature. Accordingly, i prepared the Medical Certificate. it bears my signature. Contents are correct. It is at Exh.40.

It is difficult to say that he is a witness who could depose false in favour of the complainant. It is also difficult to say that he would prepare a false medical certificate to suit the prosecution. In fact no such case has been suggested in his cross examination. Therefore, once the mother of the appellant suffers injuries and she accuses her son for causing injuries to her as well as causing injuries to the deceased, it has material bearing on the prosecution case and it does support the prosecution case in wholesome. Therefore, in my opinion, in the present case; delay in lodging report does not cast doubt on the prosecution case. Evidence of the eye witness particularly witness who had suffered injuries in the incident, do support the prosecution case, so also material medical evidence also goes against the accused. Merely because the medical officer admits that these injuries can be possible due to fall and hyper tension may cause intra cranial hemorrhage vis-a-vis evidence available on record, that would not be sufficient to discard the prosecution case.

Learned Counsel for the appellant has further contended that the benefit of doubt has to be accorded to the appellant. It is not possible to agree with this submission. Here is the case, where, there is reason for appellant to assault deceased, on the ground of non accepting his demand for mutation of the house in his name, refusal is also justified because the appellant is not only heir of the deceased Balaji. In these circumstances, once it is found that the appellant had assaulted the father and mother, the sympathy cannot go with him. More so, because he has tried to mislead the police by informing that deceased had consumed liquor and fallen down to suffer injuries, leading to his death, particularly when there is no such material on record. Defence could have examined witnesses to show that the deceased was taking treatment for hyper-tension and it was so that there was possibility of intra cranial hemorrhage of its own because of hyper tension. Some suggestions here and there can not destroy prosecution case which is otherwise acceptable when the circumstances so warrant.

Next comes the question as regards the intention to cause death. Learned trial Judge has given the finding that the appellant had no intention to cause death of the deceased, he may have knowledge that if he assaults him by leg and fist blows, he may cause his death, considering his age. He has observed that if the accused had really an intention to kill, there was nobody at that time to prevent accused from killing Balaji who is old aged father of appellant, such is not the case as per the record. Reasons recorded by him coming to the conclusion of the offence u/s 304 of IPC cannot be said to be unjustified. Apart from this, it is necessary to note that state has not preferred any appeal, so as to claim intention on the part of the part of the appellant to kill deceased so as to invite conviction u/s 302 of the I.P.C.

Contention of the learned Counsel for the appellant is that the offence could be only u/s 323 as there was no intention on the part of the appellant to kill deceased. suffice it to say that the deceased was aged about 70 years. Allegations which are found in FIR are that he had given fist and kicks blows, on him to assault him. He was not in a mood to listen others requests for not assaulting him. When deceased Balaji told him in anger "kill both of us", still he did not desist. He started beating deceased heavily with fist and kicks blows, and dashed him on the ground 2-3 times. He continued beating till deceased became unconscious. What done more, is that he urinated on his mouth. All these things will clearly show that he had knowledge that by such assault he might kill deceased, considering his frailty and age. In these circumstances, it is not possible to say that offence u/s 304 II of the IPC is not made out.

In this regard, observations of the Apex Court in Anda and Others Vs. The State of Rajasthan, and Budhi Lal Vs. State of Uttarakhand, can be beneficially referred. Knowledge of possibility of causing death by such assault can definitely be attributed to the appellant. In this view of the matter conviction recorded by learned trial Judge for the offence u/s 304 of IPC can not be said to be perverse or illegal.

Turning to the case of the complainant Girjabai, it is obvious that the injuries referred above as found by P.W. 10, are simple in nature, they were caused during the incident by appellant, therefore, he is rightly held guilty for the offence u/s 323 of IPC.

In this view of the matter, conviction recorded by the learned trial Judge for the offence u/s 304 and 323 of the IPC against appellant has to be upheld.

Turning to the question of sentence, the learned trial court has given his reasons for inflicting the sentence as per impugned order i.e. 7 1/2 years and six months. He has rightly found that the benefit of Probation of Offenders Act cannot be given.

Learned Counsel for the appellant has contended that the accused appellant is the only earning member and he is having son and marriageable daughter and he has to look after them. he also contends that in the morning after the incident he had taken away deceased to the hospital. Taking over all view of the matter, I am of the opinion that some mitigating view can be taken and therefore, I am of the opinion that sentence of 5 years would meet the ends of justice. Hence the appeal needs to be partly allowed to that extent, while maintaining the order of conviction.

Appeal is partly allowed. Conviction of the appellant for the offence u/s 304 and 323 of I.P.C. is hereby maintained. He is however, sentenced to suffer R.I. for five years for the offence u/s 304 II of I.P.C. His sentence as inflicted by the learned trial Judge for the offence u/s 323 of I.P.C. is hereby maintained. Subject to this modification , the order of the learned trial Judge is maintained.