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Judgment
(PER : SHYAM C. CHANDAK, J.) :-
The instant Appeal is filed under Section 378(1) of the Code of Criminal Procedure at the instance of the Appellant – State challenging the judgment and order dated 28/09/2005, in Sessions Case No.151/2004, passed by the learned 7th Ad-hoc Assistant Sessions Judge, Nashik thereby the Respondent – original Accused was acquitted of the charge of the offence punishable under Sections 304 of the Indian Penal Code, 1860 ("I.P.C."). Instead, the accused was convicted for the lesser offence of Section 325 of IPC and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.10,000/-. In default of payment of fine, the accused to undergo rigorous imprisonment for six months. Out of the fine, an amount of Rs.8,000/- was directed to be paid to the widow of the deceased and Rs.2,000/- be paid to the father of the deceased.
Heard Mr. Khan, learned APP for the Appellant – State and Mr. Shriram Kulkarni, learned Counsel for the Respondent – Accused.
The prosecution case is that, Laxmi (PW2) was sister of Gautam (PW1). She was married to Suresh who was son of informant Arjun Salve (PW8). At the relevant time, Gautam had come to the house of the deceased at village Gonde, Tal. Igatpuri, Dist. Nashik, to take Suresh, Laxmi and Arjun Salve (PW-8) to his house at village Jintur, Dist. Parbhani, as it was 1st Diwali of Laxmi post her marriage. On 03/11/2002, at about 09:00 a.m., all of the four had come to Nashik Road Railway Station for their onwards journey. Gautam was in the queue to get the tickets. Arjun Salve, Suresh and Laxmi were seated nearby. Suresh told Gautam to keep watch on Laxmi as he wanted to answer nature’s call. At that time, the accused came there and slapped Suresh. Gautam questioned the accused for his said act. However, the accused got angry and dealt a stick blow to Suresh on the stomach. Therefore, Gautam and Suresh started to leave the said place. However, the accused struck a stick blow on the head of Suresh from behind. As a result, Suresh suffered giddiness and fell down. Immediately, the accused attempted to lift Suresh. At the request of Gautam, the accused brought an autorickshaw. Thereafter, they removed Suresh to Bytco Hospital in the autorickshaw. The informant and Laxmi followed them, but, by that time Suresh had succumbed to the injuries. Dr. Bhadrapurkar, Medical Officer (PW-6) conducted the autopsy and issued the post-mortem report and the cause of the death Certificate (Exhs.21 & 22). The cause of the death was “shock due to intra cranial heamorrhage due to fracture of skull.”
On getting an information about the death, PW-3 registered the AD. Then, PW-8 filed the complaint (Exh.28) with Nashik Road Police Station therein he narrated the incident as aforestated. PW-9 Kashinath Bharte, the then Senior PI recorded the complaint and registered the same at FIR bearing C.R.No.436/2002 u/Sec. 304 IPC. PW-9 himself conducted the initial investigation during which he recorded the statement of witnesses and drew the spot panchanama. The crime was transferred to the Railway Police Station. Shri. Bharatsing Thakur, SDPO – Manmad Division (PW-7) conducted the further investigation. On 08/11/2002, while the accused was in custody, he gave a voluntary statement (Exh.25) leading to recovery of the stick, allegedly used in the offence. PW-7 also recorded the statement of railway ticket booking clerk and the police staff. On completion of the investigation, the police submitted charge-sheet u/Sec.304 Part II of IPC.
The learned Judge framed the charge under Section 304 IPC. The accused pleaded not guilty to the charge and claimed to be tried. The defence of the accused was that, all of a sudden, the deceased had fallen down on the marble floor at the spot and sustained injury leading to his death. According to the accused, at the relevant time, he was working in Detection Branch of the Railway Police Station (Nashik Road). As such, he was not required to carry a stick or any other authorized weapon.
To prove the charge, the prosecution examined nine witnesses including eye witnesses PW-1, PW-2, PW-3, a Medical Officer and investigating officers. PW-5 Sharad Gangawane is a panch witness to the disclosure statement and recovery of stick from the accused; however, he did not support the prosecution.
On the closure of the prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. came to be recorded. The accused examined two witnesses in his defence. After hearing the arguments and appreciating the evidence, the learned Judge of the trial Court convicted and sentenced the accused as noted in paragraph 1 above.
Mr. Khan, the learned APP for the Appellant - State, submitted that the evidence of the eye witnesses clearly show that, without any reason, the accused assaulted Suresh by means of his service stick. Initially, the accused assaulted Suresh on the stomach but his subsequent blow was targeted at the back side of the head. Consequently, the deceased suffered a fracture of the skull and died immediately. The medical evidence supports the version of the eye witnesses to that effect. The nature of the fracture of the skull clearly indicates that the stick used in the offence was strong and that great force was applied behind inflicting the deliberate blow on the head of Suresh. As such, the prosecution has established that the accused was guilty of the offence u/Sec. 304 Part-I of IPC. However, for unjust reasons, the learned Judge of the trial Court held the accused guilty of the offence u/Sec. 325 IPC. Therefore, impugned Judgment and Order suffers from an infirmity and it is liable to be quashed and set-aside. The Appeal be allowed, accordingly.
In contrast, the learned Counsel for the accused supported the judgment, contending that the learned Judge of the trial Court appreciated the evidence on record in its correct perspective and rightly concluded that the accused was guilty of the offence u/Sec. 325 IPC and not u/Sec. 304 IPC. As such, the impugned Judgment and Order need not be upset.
We have considered these submissions in the light of the evidence on record.
The accused did not dispute the date, time and place of the incident, nor the relationship amongst Gautam, Laxmi, Suresh and Arjun Salve. The accused also did not dispute the injury sustained by Suresh and the cause of his death. The accused admitted the spot panchanama, inquest panchanama, station diary entry (Exhs.14, 15 & 31).
Insofar as the evidence of PW-1 Gautam Wagh is concerned, he testified that Suresh and Laxmi were staying in village Gonde, Tal. Igatpuri, Dist. Nashik. At the time of the incident, he had gone to village Gonde to take Laxmi and Suresh to his house, as it was Laxmi's first Diwali after her marriage. On the day of the incident, at about 08:30 a.m., he alongwith Laxmi, Suresh and Arjun Salve had come to Nashik Road Police Station for the onward journey. He stood in the queue for the tickets, while Laxmi and Suresh were seated nearby. PW-1 deposed that, at that time, Suresh came to him and told to keep watch on the luggage as he wanted to answer nature’s call. Meanwhile, the accused arrived there and slapped Suresh. The accused was carrying a police stick. PW-1 deposed that he left the queue to intervene in the matter. However, the accused again slapped Suresh and inflicted stick blows on him. PW-1 deposed that he questioned the accused as to why he was assaulting Suresh, but the accused gave no reason for his conduct. PW-1 further deposed that he was taking Suresh towards Laxmi. At that juncture, when Suresh looked backed towards the accused, the accused gave a stick blow on the head of Suresh. Consequently, Suresh sustained injury and fell down. PW-1 deposed that he requested the accused to help him remove Suresh to the hospital. However, the accused instead kicked Suresh. PW-1 deposed that he removed Suresh to Bytco hospital in an autorickshaw alongwith the accused. However, after about 10 minutes, Suresh succumbed to the injuries. PW-1 deposed that police recorded his statement.
The testimonies of PW-2 Laxmi and PW-8 Arujn Salve are in line with the testimony of PW-1. PW-8 deposed that he had filed the complaint (Exh.28) of the incident. It bears his thumb impression. Its contents are correct and true. The testimonies of PW-1, PW-2 and PW-8 are supported by the complaint (Exh.28). PW-1, PW2 and PW-8 were from outstation places and therefore, there is no reason for them to falsely implicate the accused, who was police officer. The accused failed to explain as to why the witnesses have deposed against him. The accused has also not denied that, at the time of the incident, he was not present on duty at Nashik Road Railway Station. Therefore, we have no hesitation to rely upon the testimony
PW-3 Hiraman Bahiram, then Police Head Constable, testified that on 03/11/2002, he was present on duty at Nashik Road (City) Police Station from 09:00 a.m. to 09:00 p.m. A nurse, namely Jagtap from Bytco hospital, called the Police Station and informed that Suresh had been brought to the hospital by PW-1 and the accused, and that Suresh was declared dead on admission. Accordingly, he registered the Accidental Death at “ number zero ” vide AD Report (Exh.17).
PW-6 Dr. Bhadrapurkar testified that on 03/11/2002, he was working as a Medical Officer at Civil Hospital, Nashik. Between 02:30 p.m. to 03:30 p.m., he performed the post-mortem examination on the body of Suresh. He noticed swelling on left occipital region measuring 4 x 3 cm. The said injury was ante-mortem in nature. On internal examination, there was haematoma under membrane at the left occipital parietal region measuring 4x3 cm with intra cerebral haemorrhage and fracture of the occipital region of the skull. It was 3 cm in length. In his opinion, the cause of death was shock due to intra cranial heamorrhage due to fracture of skull. The time of death was 6 hours after taking the last meal. Accordingly, he issued the post-mortem report and the cause of death Certificate (Exh.21 and 22). He deposed that these documents bears his signature and that their contents are correct and true.
PW-9 Kashinath Bharte, then Sr. P.I. attached to Nashik Road Police Station, deposed that he had recorded the Report (Exh.28) as narrated by PW-8 and registered this crime. Thereafter, he recorded the statements of PW-1 and PW-2. Since the offence had occurred within the jurisdiction of the Railway Police Station, he transferred the investigation to the said Police Station. Said police arrested the accused. This evidence supports the testimonies of the eyewitnesses.
The testimonies of PW-6 and PW-9 also remained unshaken in the cross-examination, thus, it supported the testimonies of PW-1, PW-2 and PW-8.
In the wake of above, we hold that at the relevant time and place, the accused assaulted the deceased Suresh by means of a stick and caused him the said injuries leading to his death.
PW-7 Bharatsing Thakur, then SDPO, has deposed that during the course of investigation, he recorded the statements of remaining witnesses. On 08/11/2002, the accused made a disclosure statement (Exh.25) in his presence and in the presence of two panchas, stating that he had kept the police cane in the office of the PSO, Railway Police Station, which had been used by him on 03/11/2002, while he was on duty. Thereafter, the accused led him and the panchas to the said Police Station. There, the accused produced one stick from behind the bench on which TV set was kept. He seized the stick under the recovery panchanama (Exh.26). The stick measured 2 feet and 1 inch in length. On completion of investigation he submitted the charge-sheet.
However, the learned Judge of the trial Court disbelieved the recovery of the stick for the reason that, because in the recovery panchnama it is recorded that the stick was 2 feet and 9 inches long. But, according to PW-7, the recovered stick was 2 feet 1 inch long. According to us, this is a valid reason to disbelieve the recovery of the stick.
Now question is whether the acquittal of the accused for the charge of the offence of Section 304 IPC is lawful or not. The learned trial Judge accepted that the Suresh died on account of the said injuries caused to him by the accused. Then the learned Judge considered the facts of the case in the light of the provisions of Section 299 IPC. However, the learned Judge did not held the accused guilty of the offence of Section 304 IPC for the reasons recorded in paragraph Nos.25 and 26 of the impugned Judgment and it reads as under :-
“25.The evidence discussed above suggest that due to stick blow given by the accused on the head of deceased, deceased suffered skull fracture. The question is, whether the facts proved do connect the accused with the offence of culpable homicide not amounting to murder. For better appreciation, I reproduce Section 299 of the Indian Penal Code as below:
299.Culpable homicide -whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
To attract the offence of culpable homicide, prosecution has to prove that the death was caused by doing an act with the intention of causing death or with the intention of causing such bodily injury as it is likely to cause death, or with the knowledge that he is likely by such act to cause death. Undisputedly, the accused and the victim first time met each other at the Nashik Road Railway Station. The accused was doing his duty of controlling rush of passengers. The accused, therefore, could not be attributed with the intention of causing death of deceased Suresh. The evidence suggest that the victim looked behind at the accused and the accused gave stick blow on his head. The facts themselves would speak to suggest lack of knowledge to the accused that he was likely by this act (single blow) to cause death of deceased Suresh. In my view, therefore, the facts proved do not make out the offences culpable homicide not amounting to murder. The point no.2 is, therefore, answered in the negative.
26.The facts proved, however, make out the lesser offence of causing grievous hurt punishable under Section 325 of the Indian Penal Code. There is nothing to indicate that the stick with which the deceased was assaulted was such an instrument which, used as a weapon of offence, was likely to cause death. Although there was no intention of the accused to cause grievous hurt to the deceased. He could be attributed with knowledge that by his act, he could cause grievous hurt to the deceased since blow of a force that caused fracture of the skull. It is therefore reiterated that the facts proved could make out an offence punishable under Section 325 of Indian Penal Code. ”
Considering the facts and circumstances of the case, we are of the considered view that the said reasons recorded by the learned Judge of the trial Court to convict and sentence the accused under Section 325 of IPC instead of the offence of Section 304 IPC, are justifiable. In the wake of above, there is no infirmity in the impugned Judgment and Order dated 28/09/2005 passed by the learned Sessions Judge in Sessions Case No.151/2004 and it need not be interfered with by this Court. As a result, the Appeal is liable to be dismissed and is dismissed, accordingly.