Gopichand Ana Baviskar And Ors. vs State Of Maharashtra
2003 Latest Caselaw 963 Bom

JUDGMENT

P.B. Gaikwad, J.

1. Appellants-original accused Nos. 1 to 3, being dissatisfied with the order passed by the Additional Sessions Judge, Amalner dated 10-1-1996 in Sessions Case No. 13/91, convicting the accused for the offence punishable under section 304-II read with 34 of I.P.C. and directing them to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-, in default rigorous imprisonment for three months, filed the present appeal.

2. The facts in nutshell are that :

Accused Nos. 1 and 2 are father and son while accused No. 3 is the brother-in-law of accused No. 1. All of them resides at village Vele, Talqa Chopada, District Jalgaon. Complainant Bhikan Khandu Pandav also resides in the same village along with his father and other family members i.e. his mother Gangubai, sister Sarubai, wife Asha. House of present appellants is in front of the house of Bhikan Pandav---the complainant. The alleged incident took place on 11-5-1990. On that day, at about 4.00 p.m. approximately Bhikan and his father Khandu, who was working at the said village as Kotwal had gone to weekly Bazar of Chopda and returned approximately at about 6.00 p.m. to their house. At that time, they noticed that there was some exchange of words between Sarubai & Asha on one hand and the wife of accused No. 1 on the other. Khandu then requested his family members not to quarrel. At that time, the present appellants, who were in their house, came in front of the house of Khandu, called him outside, one of them caught hold his collar and all of them assaulted Khandu with fist and kick blows. It is also alleged that in the said incident his throat was also pressed and on account of this assault by the appellants, Khandu died on the spot. Son of Khandu namely Bhikan i.e. complainant then immediately went to Chopda so as to bring his sister and brother-in-law and thereafter he gone to the house of Police Patil to inform in respect of the said incident. Police Patil was not in his house. He returned at about 9.00 p.m. Then complainant along with Police Patil went to the Police Station Chopda which is at a distance of 3-4 kms. from village Vele. Bhikan made report in respect of the incident. Accordingly, Crime No. 42/90 came to be registered for the offence under section 302 read with 34 of I.P.C. The P.S.I. visited the place of incident, held inquest over the dead body and referred the same for post-mortem, prepared spot panchanama, arrested the accused, recorded statements of certain witnesses and after completing the investigation, submitted charge-sheet before the Judicial Magistrate, First Class, Chopda, against the accused for the offence punishable under section 302 read with 34 of I.P.C. As the offence under section 302 is exclusively triable by the Court of Sessions, the case was committed to the Court of Additional Sessions Judge, Amalner.

3. The Additional Sessions Judge, Amalner, as per Exhibit 1 framed charge-sheet against the present appellants for the offence under sections 302, 504, 506 read with 34 of I.P.C. on 26-8-1994. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution has filed application Exhibit 5 and called upon the defence to admit correctness and genuineness of certain documents i.e. spot panchanama, Map prepared by the Revenue Circular Inspector as regards place of incident, inquest panchanama, panchanama of attachment of clothes which were on the person of deceased, post-mortem notes, C.A. report and the certificate as regards cause of death issued by the Medical Officer.

4. The prosecution, to connect the accused with the said crime, examined near about 12 witnesses. P.W. 1 is Bhikan Khandu Pandav. His evidence is at Exhibit 10 and through his evidence, report given by him, on the basis of which, crime is registered, is got proved at Exhibit 11. P.W. 2 is Balu Baburao Patil a panch witness. He turned hostile. P.W. 3 is Tulshiram Chintaman Patil, who also turned hostile. P.W. 4 is Sarubai Khandu Pandav daughter of deceased Khandu. Her evidence is at Exhibit 15. P.W. 5 is Asha Bhikan Pandav, wife of complainant. P.W. 6 is Sahebrao Patil, Police Patil of village Vele. P.W. 7 is Digambar Sonawane, Assistant Sub-Inspector. P.W. 8 is Adhar Keshav Patil, Revenue Circle Officer, Jalgaon. P.W. 9 is Rajendra Deshmukh, P.S.I. attached to Chopda Police Station at the relevant time. P.W. 10 is Dr. Anil Chaudhari, the Medical Officer who performed post-mortem over the dead body of Khandu. P.W. 11 is Abdul Kadar Mehmood Shaikh, another P.S.I., who investigated the crime. P.W. 12 is Shantaram Sahadu Mahajan, the Police Inspector, who after completing the investigation, submitted the charge-sheet.

5. The Additional Sessions Judge, after considering the evidence on record, concluded that the evidence on record so far as assault to Khandu by the present appellants is concerned, has been satisfactorily proved. He further concluded that Khandu met homicidal death. He also concluded that the knowledge on the part of the present appellants in committing the offence can safely be gathered. He concluded that the accused committed offence under section 299 Part III and accordingly convicted them for the offence under section 304-II read with 34 I.P.C. and directed them to suffer R.I. for five years and to pay fine of Rs. 1000/-. The said order of conviction and sentence is under challenge in this appeal.

6. In the appeal, I heard Shri Choudhary, Advocate for the appellants and Shri N.H. Borade, A.P.P., for the respondent-State, at length.

7. It is submitted by Shri Choudhari, Advocate for the appellants that the conclusion arrived at by the Additional Sessions Judge that Khandu met homicidal death is basically wrong as the medical evidence does not support this particular aspect. He submits that even the Medical Officer has not given the cause of death of Khandu and therefore, the finding in that respect needs to be set aside. So far as the conclusion arrived at by the Additional Sessions Judge convicting the appellants for the offence under section 304-II I.P.C. is concerned, he submits that from the evidence on record and the circumstances under which the alleged incident took place, it is seen that there is no scope to gather knowledge on the part of the present appellants and when the prosecution failed to prove that Khandu met homicidal death, the question of application of section 299 does not arise. He submits that if the evidence of the prosecution is accepted as it is at the most it can be inferred that the accused committed an offence under section 323 of I.P.C. So far as merits of the matter are concerned, he referred to some inconsistencies in the evidence of P.W. 1, P.W. 4 and P.W. 5 in respect of assault by present appellants. He, therefore, submits that the order of conviction and sentence needs to be set aside.

8. On the other hand, it is submitted by Shri Borade, A.P.P. that the order of conviction and sentence is proper and justified.

9. Considering the submissions, it is now necessary to see whether the order passed by the Additional Sessions Judge convicting the present appellants for the offence under section 304-II read with 34 of I.P.C. is proper and justified, and for which the evidence on record needs to be scanned and scrutinised. So far as evidence adduced by the prosecution is concerned, to my mind, the material evidence is that of P.W. 1, P.W. 4, P.W. 5 and P.W. 10. I, therefore, restrict myself only to the evidence of these four witnesses.

10. At the outset, it is necessary to see whether the prosecution succeeded in proving that Khandu met homicidal death and for which it is necessary to make reference to the evidence of P.W. 10 Dr. Choudhari and to the post-mortem report. Evidence of Dr. Chaudhari is at Exhibit 24. According to him, on 12-5-1990, he was attached to the Cottage Hospital at Chopda. He received a requisition letter for performing post-mortem over the dead body of Khandu. He accordingly performed post-mortem. The said post-mortem notes are proved at Exhibit 25. According to him, while conducting post mortem over the dead body of Khandu, he did not find any external injuries. On internal examination, he found that right side lung completely adherent to chest wall and upper part of pleura of left side lung adherent to chest wall. He further made it clear that from the findings of lungs, according to him, the deceased was suffering from tuberculosis. He did not give his opinion as regards cause of death till the C.A. reports are received and after receipt of C.A. reports at Exhibit 26 and Exhibit 27 on 11-10-1990, as per certificate Exhibit 28, he informed his opinion as regards cause of death, as under:

"That the deceased was suffering from tuberculosis of both the lungs and due to that he might have expired."

In cross-examination, the Medical Officer has further admitted that the deceased was suffering from chronic tuberculosis. He also admitted that such person may die all of a sudden. If the evidence of P.W. 10 Medical Officer is read together with the post-mortem notes at Exhibit 25 and the certificate as regards cause of death at Exhibit 28, I find that the conclusion arrived at by the Additional Sessions Judge that Khandu met homicidal death is definitely not proper.

11. The second aspect, which needs to be considered is whether the evidence on record adduced by the prosecution as regards assault on Khandu by the present appellants is acceptable and for which a reference to the evidence of P.W. 1, who is an eye-witness to the said incident as also evidence of P.W. 4 and P.W. 5 is necessary.

12. From the evidence on record, it is seen that Jijabai is the wife of present appellant No. 1 and mother of accused No. 2. Sarubai is the sister of complainant while Asha is his wife. The evidence further makes it clear that on 12-5-1990, at about 6.00 p.m. Khandu and Bhikan returned to the house. Some exchange of words was going on between Asha and Sarubai on one hand and Jijabai on the other. Khandu asked Asha not to quarrel. At that time, the appellants came in front of the house of Khandu and assaulted him with fist and kick blows. A reference in this respect, is necessary to the complaint Exhibit 11 lodged by Bhikan P.W. 1 on the basis of which crime is registered. He has given all the details in respect of the incident, manner in which it took place, part played by each of the present appellants in the said incident and assault on his father with fist and kick blows by the present appellants. On close scrutiny of the evidence of Bhikan, I find that his evidence is consistent with the F.I.R. Exhibit 11. On perusal of the evidence of P.W. 4 Sarubai and P.W. 5 Asha, it is again clear that their evidence is consistent with the evidence of complainant P.W. 1 Bhikan so far as assault on Khandu by the present appellants is concerned. I, therefore, find that the evidence of these three witnesses so far as incident and assault on Khandu by the present appellants is concerned, can safely be accepted, as their evidence is consistent with the material particulars. I further find that there is no infirmity in the said evidence, and therefore, there is no reason to discard the same. It is true that there are some inconsistencies in their evidence, however, I find that these inconsistencies and discrepancies are of minor nature and, therefore, the same needs to be ignored. Evidence of these three witnesses, therefore, can be safely relied. The said evidence is again consistent with the evidence of Police Patil P.W. 6 who also made it clear in his evidence that Bhikan immediately had been to his house. Thereafter Bhikan informed him in respect of the incident and the Police Patil along with Bhikan went to the Police Station Chopda and accordingly lodged report. It is true that the evidence of P.W. 10 Dr. Chaudhari goes to show that there was no external injury to deceased Khandu. However, on perusal of the provisions of section 323 I.P.C. it is clear that to spell out an offence under section 323, it is not necessary that there should be any injury. I further find that when the evidence of these three witnesses i.e. P.W. 1, P.W. 4 & P.W. 5 is satisfactory and convincing so far as assault by the present appellants on deceased Khandu with fist and blows is concerned, I thus conclude that the present appellants have committed offence under section 323 read with 34 I.P.C. and not under section 304-II I.P.C. and, therefore, the finding recorded by the Additional Sessions Judge, convicting the appellants for the offence under section 304-II read with 34 I.P.C. needs to be set aside and the appellants need to be convicted for the offence punishable under section 323 read with 34 I.P.C.

13. A reference in this respect, is necessary to section 319 I.P.C. wherein "hurt" is defined, as also to section 323 I.P.C. is necessary. Section 319 reads as under:

"Section 319 Hurt.---Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."

Section 323 reads as under:

"Section 323. Punishment for voluntarily causing hurt.---Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or both.

14. Considering the evidence on record, manner in which incident took place, I find that rigorous imprisonment of five months and fine of Rs. 1000/-, by each of the appellants, will meet the ends of justice. The appellants were arrested on 12-5-1990 and released on bail on 22-10-1990 and, therefore, they are entitled to get benefit of the said period.

15. In the result, Criminal Appeal No. 25 of 1996 is partly allowed. The order of conviction and sentence dated 10th January, 1996 in Sessions Case No. 13 of 1991, passed by the Additional Sessions Judge, Amalner, convicting the appellants for the offence under section 304-II read with 34 I.P.C. and directing them to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-, in default to suffer further R.I. for three months, is set aside. Instead, the appellants are convicted for the offence punishable under section 323 read with 34 I.P.C. and they are directed to suffer rigorous imprisonment for five months and to pay fine of Rs. 1000/-, in default, S.I. for one month. They are entitled for the set off under section 428 Cri.P.C.

16. Record & proceedings be sent back to the lower Court immediately.