Motiram Pandurang Lathad vs The State Of Maharashtra
2012 Latest Caselaw 245 Bom

                                                                                      APEAL174.98
                                                        1




                                                                                       
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                 NAGPUR BENCH, NAGPUR.




                                                              
                          CRIMINAL APPEAL NO. 174 OF 1998.




                                                             
     Motiram Pandurang Lathad,
     aged about 25 years, 
     R/o Andhar - Sangvi,
     P.S. Channi, Distt. Akola




                                              
     (At present in Jail). 
                          ig                                                     ....APPELLANT.

                     // VERSUS //
                        
     The State of Maharashtra                                                 ....RESPONDENT.

     --------------------------------------------------------------------------------------------
      


     Mr. S.M. Puranik, Advocate (appointed) for the appellant,
     Mr. R.S. Nayak, Additional Public Prosecutor for the respondent.
   



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                             CORAM :  P.V. HARDAS & A.P. BHANGALE, JJ.

DATED : OCTOBER 20, 2012.

ORAL JUDGMENT (PER P.V. HARDAS, J.).

1] The appellant, who stands convicted for an offence

punishable under Section 302 of the Indian Penal Code and

sentenced to imprisonment for life and to pay a fine of Rs.2000/-, in

default of which to undergo further rigorous imprisonment for two

nd years, by the 2 Additional Sessions Judge, Akola by judgment dated

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21.1.1998 in Sessions Trial No. 198/96, by this appeal questions the

correctness of his conviction and sentence.

2] Facts as are necessary for the decision of the appeal may

briefly be stated thus :-

PW. 11 ASI Vasant Tidke, who was attached to Alegaon

Police Chouki, recorded the report of PW.1 Atmaram, nephew of

deceased Ananda at Exh. 16. On the basis of the aforesaid report,

an offence was registered and the printed FIR is at Exh. 36. PW.11

ASI Tidke thereafter proceeded to the scene of the incident and in the

presence of panchas drew the scene of the incident panchnama at

Exh. 19. From the scene of the incident, he seized sample of

ordinary mud and blood mixed mud and seized the same under Exh.

20. Thereafter an inquest panchnama of the dead body of deceased

Ananda was drawn in the presence of panchas at Exh. 21.

3] PW.14 PSI Kumar Surose, who was attached to Police

Station Channi on 20.5.1996 had received the papers of investigation

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on 23.5.1996. He attempted to trace the whereabouts of the

accused. The clothes of the deceased which were sent by the

hospital were seized under seizure-memo at Exh. 42. On 10.6.1996

the appellant/accused was arrested under arrest panchnama at Exh.

25. The clothes on the person of the accused were seized in the

presence of panchas vide seizure-memo at Exh. 26. During custodial

interrogation, the appellant expressed his willingness to point out the

place where a weapon had been concealed. Accordingly, a

memorandum was drawn in the presence of panchas at Exh. 27. The

accused led the police and the panch and produced a knife which

was seized under panchnama at Exh. 28. The accused was also

referred for medical examination and a blood sample of the accused

was drawn and was seized. The seized property was thereafter

referred to the Chemical Analyser under requisition at Exh. 43.

Further to the completion of investigation, a charge-sheet against the

appellant was submitted.

4] Post-mortem on the dead body of deceased Ananda was

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performed by PW.6 Dr. Shrichand Santani, who noticed one external

injury which was an incised penetrating wound 1" X ¾" cavity deep,

oblique in direction, in third intercostal space, left side of the chest -

in mid-clavicular line above 3% below left clavicle with clotted blood

inside the wound with oozing of blood through wound with clearcut

margin and gapings. He, therefore, opined that the cause of death

was severe haemorrhage and traumatic shock as a result of incised

penetrating wound inflicted over left lung and heart. He has also

opined that the injury was sufficient in ordinary course of nature to

cause death.

5] On committal of the case to Court of Sessions, the trial

Court vide Exh. 5 framed charge against the appellant for offence

punishable under Section 302 of the Indian Penal Code. The

appellant denied his guilt and claimed to be tried.

6] In order to effectively deal with the submissions advanced

before us by Shri S.M. Puranik, the learned Counsel for the appellant

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and the learned A.P.P., it would be useful to refer to the evidence of

the prosecution witnesses.

PW.1 Atmaram nephew of deceased Ananda and the first

informant is not an eye-witness and his evidence is hearsay. The

entire prosecution case, therefore, rests upon the testimony of PW.3

Mahadeo and PW.4 Trambak. PW.3 Mahadeo states that on the day

of the incident, the appellant had come near his house in an

inebriated condition and had demanded refund of Rs.10/- which had

been advanced by the appellant to PW.3 Mahadeo. Mahadeo

pleaded his inability to immediately refund the said amount.

However, Mahadeo promised the appellant that he would refund the

amount by evening. The appellant did not relent and was quarrelling

with PW.3 Mahadeo. In the meantime, deceased Ananda also came

to the scene of the incident and questioned PW.3 Mahadeo and the

appellant as to what was going on. PW.3 Mahadeo informed the

deceased regarding his inability to refund the amount of Rs.10/- to the

appellant. Ananda also requested the appellant to wait till evening for

the refund of his amount. The appellant, however, was enraged and

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abused deceased Ananda filthily. The appellant thereafter removed a

knife and stabbed Ananda on chest. The appellant thereafter fled

away. PW.3 Mahadeo has been cross-examined at length but

nothing of substance has been elicited in his cross-examination. The

evidence of PW.4 Trambak is on similar lines. Trambak claims that

he was sitting on the platform along with PW.3 Mahadeo. PW.3

Mahadeo in his examination-in-chief has also asserted that he was

sitting on the platform along with PW.4 Trambak. There is hardly any

cross-examination of PW.4 Trambak which in our opinion

corroborates the evidence of PW.3 Mahadeo. PW.4 Trambak has

clearly deposed about the abuses being given by the appellant to

Ananda and about the appellant inflicting a knife blow on the chest of

deceased Ananda. The medical evidence clearly indicates that the

injury sustained by deceased Ananda was a fatal injury and it was

sufficient in the ordinary course of nature to cause death.

7] We, therefore, find that even if the evidence regarding

discovery of the knife is left out of consideration, there is

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overwhelming evidence of the two eye-witnesses, namely, PW.3

Mahadeo and PW.4 Trambak. The evidence proves the offence

against the appellant beyond reasonable doubt. Shri S.M. Puranik,

the learned Counsel for the appellant, has urged before us that the

appellant should be entitled to be given the benefit of Exception 4 of

Section 300 of the Indian Penal Code as the appellant had inflicted a

single injury in the heat of the moment in a sudden fight. The learned

A.P.P. has urged for dismissal of the appeal.

8] Perusal of the testimony of both the eye-witnesses clearly

establishes that the appellant did not have any quarrel with Ananda.

The appellant was enraged and Ananda intervened in the quarrel

between the appellant and PW.3 Mahadeo. The attack on the

deceased was, therefore, totally unprovoked. The aforesaid injury

had not been inflicted in a sudden quarrel between the appellant and

deceased. That the injury sustained by the deceased is a single

injury and the aforesaid injury was a penetrating injury which had

pierced the lung and the heart. In such circumstances, therefore,

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according to us, the injury was an intentional injury and was not an

accidental injury and the injury which was inflicted was sufficient in

ordinary course of nature to cause death and in fact the death was

instantaneous. In such circumstances, therefore, according to us,

the offence under Section 302 of the Indian Penal Code is proved

beyond reasonable doubt against the appellant by applying Clause

Thirdly of Section 300 of Indian Penal Code.

9] After having considered the submissions advanced before

us by the learned Counsel for the parties, according to us, there is no

merit in the present appeal and the appeal is, therefore, dismissed

confirming the conviction and sentence.

Fees payable to Shri S.M. Puranik, learned Counsel

appointed for the appellant, quantified at Rs.5000/-.

A copy of this judgment be sent to the appellant who is

undergoing his sentence in the Central Prison.

                     JUDGE                                          JUDGE
     J.