Bombay High Court
Dhanraj Laxman Thombre And Anr vs The State Of Maharashtra on 15 April, 2016
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 254 OF 2002
1] Dhanraj s/o Laxman Thombare,
age 32 years, occ. Labourer,
R/o Phulenagar, Kaij,
Tq. Kaij, Dist. : Beed,
2] Laxman s/o Kondiba Thombare,
age 60 years,occ. Labourer,
R/o as above ...Appellants
[Original Accused]
VERSUS
The State of Maharashtra ...Respondent
***
Mr. U.B.Bondar, Advocate for the Appellants
Mrs. R.K.Ladda, APP for Respondent
***
CORAM : INDIRA K. JAIN, J.
DATED : 15th APRIL, 2016
ORAL JUDGMENT :
This appeal is directed against the judgment and order
dated 23.4.2002 passed by the learned Additional Sessions Judge,
Ambajogai in Sessions Case No. 32 of 1999 convicting the
appellants of the offence punishable under Section 304 Part II r/w
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Section 34 of the Indian Penal Code and sentencing each of them to
suffer rigorous imprisonment for five years with fine of Rs.1,000/-
and in case of default to undergo rigorous imprisonment for three
months.
2] Prosecution case, in brief, is as under :-
(i) On 22.9.1998 at around 10.00 a.m. Mahesh
Deshmukh along with complainant Appasaheb More
resident of Massajog had come to Kaij. Since Mahesh
had to polish his foot wear they went to cobbler.
Accused no.2 Laxman was running a petty shop in
front of Vaishali General Stores near S.T. Stand Kaij.
Mahesh and Appasaheb went to accused no.2
Laxman. After polishing foot wear Mahesh was to pay
Rs.2/- to accused no.2. He had no change, so he gave
him a currency note of Rs.ten denomination. There
was altercation between Laxman and Mahesh on the
point of change. During altercation accused no.1
Dhanraj intervened. It is alleged that accused no.2
caught hold Mahesh and accused no.1 Dhanraj
delivered fist and kick blows on the abdomen of
Mahesh. Complainant Appasaheb tried to rescue
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Mahesh. That time police constables PW 2-Mohan
Andhale, PW 5-Vishnu Dongare and PW 6-Babasaheb
Kadam came there. They rescued Mahesh. Mahesh
and accused were taken to police station. Since
Mahesh fell unconscious he was taken to Rural
Hospital, Kaij where he succumbed to injuries at
around 11.45 a.m.
(ii) PW 7-Appasaheb lodged report. Crime was
registered against the accused. Head Constable
Wagh visited hospital and recorded inquest
panchanama. The dead body was sent for
postmortem. PW 9-Dr.Ashok Thorat conducted
postmortem. PSI Dinkar Jayebhaye took over
investigation. He recorded statements of witnesses.
Accused were arrested. In view of transfer of P.S.I.
further investigation was taken over by P.S.I. Munde.
On completion of investigation charge sheet was
submitted to the Court of Judicial Magistrate, First
Class, Kaij, who in turn committed the case for trial to
the Court of Sessions.
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3] Charge of the alleged offence was explained to the
accused. They pleaded not guilty and claimed to be tried. Their
defence was of total denial and false implication at the instance of
police constables who were on cross terms with them.
4] Prosecution examined in all 11 witnesses in support of
its case. Considering the evidence of prosecution witnesses and the
defence raised by accused, Trial Court came to the conclusion that
offence under Section 302 of the Indian Penal Code was not made
out against the accused but the offence under Section 304 Part II of
the Indian Penal Code was proved. In consequence thereof both the
accused were convicted and sentenced as indicated in paragraph 1
above. Hence this appeal by both the original accused.
5] Heard Shri U.B.Bondar, learned counsel for appellants
and Smt. R.K.Ladda, learned Additional Public Prosecutor for the
respondent/State. Perused record. Upon considering the evidence
of complainant, eye witnesses and medical officer, this Court is of
the view that prosecution succeeded in proving the offence under
Section 304 Part II r/w Section 34 of the Indian Penal Code against
the accused and for the below mentioned reasons the judgment and
order of conviction and sentence recorded by Trial Court needs no
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interference in this appeal.
6] PW 7-Appasaheb, PW 2-Police Constable Andhale, PW
5-Police Constable Dongre, PW 6-Babasaheb Kadam are the star
witnesses in this case. It is stated by complainant Appasaheb that
on the day of incident in the morning he and Mahesh came to Kaij.
Mahesh was to get his foot wear polished, so they went to accused
no.2. After Mahesh had given a note to accused no.2 altercation
took place between the duo. That time accused no.1 Dhanraj came
there. He assaulted Mahesh by kicks and fists on his abdomen.
Complainant further states that he intervened and rescued Mahesh.
By that time Police Constable Andhale, Police Constable Dongare,
Babasaheb Kadam also came there. Exh.22 is the first information
report proved by PW 7-Appasaheb.
7] The evidence of the complainant is fully corroborated by
eye witnesses PW 2-Police Constable Andhale, PW 5-Police
Constable Dongare, PW 6-Kadam and to some extent by PW 3-Ram
Patalkar. So far as PW 4-Nandkishor Mete is concerned, he did not
support the prosecution. Nothing substantial could be elicited in the
evidence of complainant and eye witnesses to show that they had a
reason to falsely implicate the accused. Relying upon the
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testimonies of complainant and eye witnesses it could be concluded
that accused no.1 Dhanraj at the relevant time assaulted Mahesh
with kicks and fists on his abdomen and accused no.2 caught hold
the victim.
8] The next question that crops up here is whether death of
Mahesh was homicidal and injuries inflicted were sufficient to cause
the death. In this connection, evidence of PW 9-Dr. Ashok Thorat is
important.
Dr. Thorat was attached to Rural Hospital, Kaij on
22.9.1998. He received the dead body of Mahesh Manohar
Deshmukh for postmortem. On the same day he conducted
postmortem. On internal examination doctor noticed : -
" Rupture of right lobe of liver posteriorly around 3 x 4
cm. 2 to 3 cm. deep. Rupture of spleen, anteriorly 3 x
4 cm. and 2 cm. deep. "
It is opined by the Medical Officer that death was caused due to
hemorrhagic shock due to injury to liver and spleen with cardio
respiratory arrest.
9] On the cause of death of victim accused has raised
three fold defence. According to them, cause of death could be : -
(i) Due to disease suffered by Mahesh.
(ii) Rupture of liver by fall, and
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(iii) Possibility of receiving such injury while playing
Kabaddi.
10] PW 9-Ashok Thorat denied all the suggestions given by
accused on cause of death. There is nothing on record to show that
Mahesh was suffering from any ailment. Evidence of Dr. Ashok
Thorat clearly indicates that injuries noticed on internal examination
were sufficient to cause death. Relying upon the evidence of PW 9-
Dr. Thorat, postmortem report (Exh.29) and provisional cause of
death certificate (Exh.30) it could be safely concluded that the death
in question was homicidal death and prosecution has overruled the
possibility of natural, suicidal and accidental death.
11] It is not in dispute that weapon was not used for assault.
The assault was by fist and kick blows. The part of body chosen
was abdomen. These circumstances would indicate that act of
accused was squarely within the frame work of Section 304 Part II of
the Indian Penal Code and they were rightly convicted for the same.
12] Now the question remains to be answered is regarding
the quantum of sentence. The learned counsel for appellants
submitted that appellant no.2 is on death bed. Appellant no.1 is the
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sole bread winner of his family. Learned counsel submits that there
was no intention to commit such act but in the spur of moment
incident took place. Learned counsel prays that both the appellants
be released on the sentence already undergone.
13] It is apparent from the evidence that altercation took
place on trifle ground. The punishment prescribed for the offence
under Section 304 Part II is imprisonment for ten years or fine or
both.
14] As can be seen from the judgment of the Trial Court
both the accused were in jail from 22.9.1998 to 23.11.1998. Record
shows that judgment was delivered on 23.4.2002. Appellant no.1
was released on bail by this Court on 17.10.2002 and appellant no.2
was released on bail on 27.6.2002. It means, appellant no.1 was in
custody for about eight months and appellant no.2 was in custody for
about four months. Besides they have also suffered mental
incarceration since last around 18 years and present appeal is being
decided after 14 years.
15] In the above premise this Court is inclined to reduce the
substantive sentence to the sentence undergone and proceed to
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pass the following order.
ORDER
(i) Criminal Appeal No. 254 of 2002 is partly
allowed.
(ii) The impugned judgment and order of conviction
passed on 23.4.2002 by the learned Additional
Sessions Judge, Ambajogai, District Beed, in Sessions
Case No. 32 of 1999 is maintained.
(iii)
The order of sentence is modified and both the
appellants are released on the sentence already
undergone.
(iv) Bail bonds of both the appellants stand
cancelled.
[ INDIRA K. JAIN, J.]
dbm/254.02
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