Pradip S/O Maroti Gautre vs The State Of Maharashtra
2003 Latest Caselaw 1239 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Mr. Daga, learned Counsel for the appellant and Mr. Loney, learned A.P.P., for respondent-State.

2. The criminal appeal is directed against the judgment and order dated 4.8.1999 passed by the Third Additional Sessions Judge, Yavatmal in Sessions Trial No. 146/1997 whereby the appellant - accused is convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to undergo imprisonment for life as well as directed to pay fine of Rs. 1000/-. The other co-accused Maroti is acquitted for the offence punishable under Section 302 of the I.P.C. read with Section 34 of the Indian Penal Code. The State has not preferred any appeal against the order of acquittal.

3. Mr. Daga, learned Counsel for the accused states that in the instant case though prosecution examined in all 6 prosecution witnesses, out of which P.W. 1 Madhao, P.W. 2 Natthu are the eye witnesses and P.W. 5 Dr. Anjali, who has conducted post-mortem examination on the body of deceased Krushna are material witnesses examined by the prosecution to prove the charge of murder against the appellant - accused.

4. Mr. Daga, learned Counsel states that the defence of the accused and the tenor of the cross examination would show that the incident in question which had taken place on 21.9.1997 is more or less is not disputed by the accused. However, the question is whether in the facts and circumstances of the present case conviction and sentence awarded by the Trial Court for the offence punishable under Section 302 read with Section 34 of the I.P.C. is sustainable in law or not.

5. Mr. Daga, learned Counsel for the accused appellant states that the P.W. 1 Madhao in his examination-in-chief itself has stated that the present appellant-accused picked up one stick and gave a blow with that stick on the head of the deceased Krishna on the right side with force. It is contended that P.W. 1 specifically stated about only one blow dealt with by the stick on the person of the deceased by the appellant accused. It is further contended that even another eye witness P.W. 2 Natthu in his examination-in-chief has specifically stated that the present applicant gave a blow with stick on the head of the deceased Krushna. Similarly, in the First Information Report - Exh, 21 which is lodged by P. W, 1. Madhao it is stated that the appellant assaulted on the head of the deceased Krushna. Mr. Daga, learned Counsel therefore, contended that the evidence of the eye-witnesses reveals that the present appellant without any premeditation picked up the stick and inflicted one blow on the head of the deceased Krushna and therefore, the intention to kill deceased Krushna is absent. It is contended that P.W. 5 Dr. Anjali Dabhere had conducted postmortem examination on the dead body of the deceased Krushna and found the following injuries :

(1) Lacerated wound with irregular edges on forehead right side about 2 cm. 1/2 cm. muscle deep horizontal signs of bleeding present :

(2) Lacerated wound parallel to above wound 1 cm. behind it size 6 cm. x 1/2 cm. muscle deep irregular margins signs of bleeding present.

(3) Abrasion on right knee and left shoulder.

(4) Fracture skull frontal bone.

It is submitted that P.W.,- Dr. Anjali deposed before the Court that the probable cause of death is head injuries mentioned in column No. 19 and there is no specific opinion given by the Doctor whether the injuries are sufficient in ordinary course of nature to cause death. It is further contended that in absence of opinion of the Doctor that the injuries mentioned in column No. 19 itself are sufficient in ordinary course of nature to cause death of deceased, the prosecution failed to establish the requisite intention to kill or intention to commit murder against the appellant, particularly when this is a case of single blow. Mr. Daga, learned Counsel further contended that since there are two injuries found on the head of the deceased and the eye-witnesses have clearly stated that only blow was inflicted by the appellant with stick, the prosecution failed to prove out of these two injuries which injury is caused by the accused and there is nothing on record to show that said injury was sufficient in ordinary course of nature to cause death. On the other hand, the cause of death as per P.W. 5 Dr. Anjali is the cumulative effect of both the injuries mentioned in column No. 19, out of which the prosecution failed to prove which injury was caused by the appellant - accused which has resulted in death of the deceased.

6. Mr. Daga, learned Counsel for the accused contended that the case of the appellant falls within purview of Section 304-II and therefore, conviction awarded by the Trial Court for the offence punishable under Section 302 of the I.P.C. is unsustainable in law in the circumstances of the case.

7. Mr. Loney, learned Additional Public Prosecutor supported the finding of conviction under Section 302 of the I.P.C. awarded by the Trial Court. It is contended that P.W. 1 Madhao and P.W. 2 Natthu both are the eye witnesses to the incident and both of them have specifically stated in their deposition before the Court that the appellant/accused inflicted forcible blow by means of stick on the head of the deceased. It is further submitted that the blow of the stick landed on the right side of forehead of the deceased causing fracture of skull as well as sub-dural and sub-arachnoid hemorrhages on the right side on frontal lobe of brain. It is contended that the force used by the accused while inflicting blow by stick and the damage caused due to such blow would show that the accused, with intention to cause murder inflicted such blow which has resulted in causing death of the deceased and therefore, the prosecution has succeeded in proving the charge of murder against the appellant beyond reasonable doubts and hence the conviction under Section 302 of the I.P.C. is sustainable in law.

8. We have given our anxious thought to the various contentions canvassed by the respective Counsel and perused the evidence on record and considered the evidence on record. In the instant case the incident of assault in question is more or less not disputed by the accused, and therefore, we are mainly required to adjudicate upon the validity of the punishment i.e. imprisonment for life awarded by the Court below for offence punishable under Section 302 of the I.P.C. unsustainable in law.

9. In the instant case P.W. 1 Madhao and P.W. Natthu are examined by prosecution as eye witnesses to the incident. The First Information Report is lodged by P.W. 1 Madhao on the date of incident itself i.e. 21.9.1997. The recitals in the First Information Report, as well as the testimony of witness Madhao and Natthu would show that the applicant at the relevant time gave one blow by stick on the head of the deceased Krushna. It is therefore, a specific case of the prosecution that the appellant dealt with only one blow on the head of the deceased Krushna.

10. The medical evidence i.e. post-mortem report reveals that there were three injuries noticed on the head of the deceased which are mentioned in column No. 19 of the post-mortem report and as per the opinion of Dr. Anjali P.W. 5 the probable cause of death is head injury mentioned in the column No. 19. In the present case, it is not in dispute that the Doctor has not specifically given her opinion as to whether the injuries sustained by the deceased are sufficient in ordinary course of nature to cause death. Similarly whether the death is cause due to cumulative effect of both these injuries or the injuries are individually sufficient in normal course of nature to cause death. It is therefore, evident that in the instant case the prosecution has failed to prove that out of these two injuries by which injury the deceased died. The evidence of P.W. 1 Madhao shows that the appellant gave blow on the right side of the head of deceased-Krushna and Injury No. 1 mentioned in column No. 19 of the post-mortem report also reveals that the lacerated wound with irregular edges, on forehead right side muscle deep horizontal place and therefore, it can be safely concluded that the appellant has caused this injury to the deceased. However, there is another injury found on the head which has also resulted in causing fracture frontal bone of skull. However, prosecution has failed to prove author of this injury. Similarly, there is no prosecution evidence to show that by which injury the deceased died.

11. As we have already observed hereinabove, P.W. 5 Dr. Anjali has opined that the probable cause of death is head injury mentioned in column No. 19, however, failed to prove which injury out of these two individually was sufficient in ordinary course of nature to cause death. In fact Doctor has not at all opined even both the Injuries are cumulatively sufficient in ordinary course of nature to cause death. In absence of this opinion, it is not possible to conclude that whether the injury which is caused on the right side of the frontal portion of forehead by the accused, was sufficient in ordinary course of nature to cause death.

12. We cannot loose sight of the fact that as per the evidence of the eyewitnesses it is evident that there is no case of premeditation or preconceived attack by the appellant on the deceased. On the other hand it appears that the appellant picked up a stick and dealt only one blow by the same on the head of the deceased causing injury on the right side of the head of the deceased and in absence of any medical evidence to show that, that injury was sufficient in ordinary course of nature to cause death, it is difficult for us to hold that the accused really intended to cause death of the deceased Krushna. If accused really intended to cause death, then he would have inflicted more than one blows on the person of the deceased and would not have stopped after giving one blow only and therefore, in view of the facts and circumstances of the present case in our considered view prosecution failed to establish the requisite intention of causing murder of deceased Krushna and therefore, we are of the considered view that the offence the appellant had committed is only with the knowledge and intention to kill deceased, is absent and therefore, the case of the appellant would fall within the ambit of provision of Section 304II of the I.P.C.

13. For the reasons stated hereinabove, the conviction and sentence under Section 302 of the I.P.C. is hereby set aside and the accused is convicted for the offence punishable under Section 304 II and is sentenced to undergo R.I. for 7 years. Appeal is thus partly allowed in the aforesaid terms.