Pramod @ Balu Nathuji Lonkar (In ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 2522 Bom

                                                                                APEAL.462.13
                                                 1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                  
                                   NAGPUR BENCH, NAGPUR.




                                                          
                                CRIMINAL APPEAL NO. 462 OF 2013




                                                         
         Pramod @ Balu Nathuji Lonkar,
         Aged about 38 years, Occ. Labourer,
         R/o Kasarpura, Morshi,
         Tq. Morshi, (P.S. Morshi),




                                          
         District Amravati. (In Jail).                        ....             APPELLANT.
                             
                      // VERSUS //

         The State of Maharashtra, 
                            
         through its Police Station
         Officer, Police Station Morshi,
         Tq. Morshi, District Amravati.                       ....           RESPONDENT.
      


         Mr. C.B. Dharmadhikari, Advocate for appellant,
   



         Mr. S.M. Ukey, Additional Public Prosecutor for respondent.





                               CORAM :  B.R. GAVAI & V.M. DESHPANDE, JJ.     
                                DATED  :  JUNE 6, 2016.


         JUDGMENT (PER B.R. GAVAI, J.)

1] The appeal challenges the judgment and order passed by

the learned Additional Sessions Judge, Amravati dated 1.8.2013 in

Sessions Trial Case No. 122/10, thereby convicting and sentencing

APEAL.462.13

the appellant for the offence punishable under Section 302 of the

Indian Penal Code.

2] The prosecution case, in brief, as could be gathered from

the material placed on record is as under :-

That the brother of the deceased Arun, namely, Onkar

PW.2 was constructing a house and that the deceased was working

for that construction and was also supervising the said construction.

There was a dispute between Onkar and the accused with regard to

extension of the slab by 6 inches. On the date of the incident, i.e. on

23.5.2010 there was a quarrel between the deceased and the

appellant on that count. The accused no.2 Anita, the wife of the

appellant brought one brass pot from her house and assaulted

deceased Arun. The accused no.1 Pramod went inside his house

and brought one axe and then gave a blow of it on the head of Arun,

due to which the deceased collapsed. He was taken to the

Government Hospital, Morshi and thereafter to Civil Hospital,

Amravati. At Amravati, he was advised to be taken to Medical

College & Hospital, Nagpur. However, before he could be admitted to

the Medical Hospital, he died. On the basis of oral report below Exh.

APEAL.462.13

46 of PW.1 Geeta, First Information Report came to be lodged below

Exh. 47. At the conclusion of investigation, a charge-sheet came to

be filed against the appellant and his wife Anita for the offence

punishable under Section 302 read with Section 34 of the Indian

Penal Code. The accused pleaded "not guilty" and claimed to be

tried. At the conclusion of the trial, the learned trial Judge passed an

order of conviction against the present appellant; however, acquitted

the accused no.2 Anita. Being aggrieved thereby, the present

appeal has been filed.

3] Shri C.B. Dharmadhikari, the learned Counsel for the

appellant, submits that all the witnesses are interested witnesses and

as such, the conviction on the basis of testimony of such interested

witnesses would not be sustainable. He, therefore, submits that the

appeal deserves to be allowed and the order of conviction set aside.

4] Shri S.M. Ukey, the learned Additional Public Prosecutor

for the respondent/State, on the contrary, submits that merely

because the witnesses are interested cannot be a ground for

discarding their testimony. It is further submitted that in any case

APEAL.462.13

there is also an independent witness available. The learned A.P.P.,

therefore, submits that the appeal is without merit and as such, liable

to be dismissed.

5] With the assistance of the learned A.P.P. as well as the

learned Counsel for the appellant, we have scrutinized the evidence

on record.

6] PW.1 Geeta wife of the deceased states that on 23.5.2010

at around 1.30 p.m. her husband had returned home. Thereafter, he

had gone to see the construction work of his brother. At that time,

there was a quarrel between the accused and her husband on

account of slab. Accused no.2 Anita brought Brass Gangal and

assaulted by it on the head of her husband. Accused no.1 Pramod

brought axe from his house and assaulted on the head of her

husband. From the said assault, there was a serious injury and her

husband fell down and started bleeding profusely. She further

states in her evidence that Pankaj, Deepa and Bharti also witnessed

the incident. Though this witness is thoroughly cross-examined,

nothing damaging has come in her evidence. Her evidence is also

APEAL.462.13

duly corroborated by the oral report below Exh. 46 and the First

Information Report which is lodged immediately.

7] PW.2 Onkar is the brother of the deceased. He also

supports the version given by PW.1 Geeta.

8] PW.4 Pankaj Ghotkar is an independent witness. He is a

neighbour. He states that on the day of the incident, he was at

house. He heard the noise of the quarrel and, therefore, he came

outside and saw that there was a quarrel between the accused no.1

and the deceased. He states that the accused Anita had brought

Gangal (brass pot) and she rushed to assault deceased Arun by the

said pot but it was caught hold by Onkar, brother of Arun. He states

that Pramod brought axe from his house and assaulted by axe on the

head of Arun. Arun sustained bleeding injury and fell on the ground.

9] PW.5 Bharti is the daughter of PW.2 Onkar. She also

gives the similar version.

10] By now it is a settled law that merely because the

APEAL.462.13

witnesses are interested witnesses cannot be a ground to discard

their testimony. The only requirement is that the testimony of such of

the witnesses is required to be scrutinized with greater caution. As

already discussed hereinabove, though PW.1 Geeta, PW.2 Onkar

and PW.5 Bharti are interested witnesses, their evidence is cogent,

reliable and trustworthy. Nothing damaging has come in their cross-

examination. In any case, the evidence of these witnesses is also

corroborated by independent witness, namely, PW.4 Pankaj. As

such, we find that the prosecution has proved beyond reasonable

doubt that it is the present appellant who is the author of the death of

the deceased Arun.

11] That leaves us with the question as to whether the

conviction under Section 302 of Indian Penal Code needs to be

maintained or converted to a lesser offence. From the evidence of all

the witnesses, it would be clear that there was a quarrel between the

appellant and the deceased with regard to the slab coming on the

road. While there was a quarrel, the appellant went inside the house

and brought an axe and assaulted the deceased on his head. It could

thus be seen that there was no premeditation. The perusal of the

APEAL.462.13

evidence of PW.9 Dr. Nilesh Tumram would reveal that there was

only one major injury as under :-

"chop wound over mid parietal regions, horizontally placed

of size 3 c.m. x 1 c.m. x by bone deep underline bone was fractured it was fresh injury."

It could thus be seen that from the evidence of the prosecution

witnesses itself, it would reveal that there was a quarrel between the

appellant and the deceased, as a result of which the appellant went

inside the house, brought an axe and assaulted on the head of the

deceased. From the nature of injuries sustained, it would also be

clear that the appellant had not taken undue advantage or acted in a

cruel or unusual manner. It could thus clearly be seen from the

evidence of prosecution witnesses itself, that the offence was

committed without premeditation, in a sudden fight, in the heat of

passion, upon a sudden quarrel and that the offender has not taken

undue advantage or acted in a cruel or unusual manner. We are,

therefore, of the considered view that the appellant is entitled to

benefit of Exception 4 of Section 300 of the Indian Penal Code and as

such, the conviction under Section 302 would not be tenable. In the

APEAL.462.13

facts of the present case, we find that the case would rather fall under

Part I of Section 304 of the Indian Penal Code.

12] In the result, the Criminal Appeal is partly allowed.

The conviction and sentence under Section 302 of the

Indian Penal Code are altered to one under Section 304 Part-I of the

Indian Penal Code. The appellant is sentenced to suffer rigorous

imprisonment for the period of ten years.

Rest of the order regarding fine, etc. is maintained.

JUDGE JUDGE .

J.