Indrasen S/O Ambika Kripal (In ... vs The State Of Maharashtra, Thr. ...
2016 Latest Caselaw 3054 Bom

     apeal515.14.odt                                                                                                             1/8



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                      
                      NAGPUR BENCH : NAGPUR




                                                                                     
                             CRIMINAL APPEAL NO. 515 OF 2014


                Indrasen s/o Ambika Kripal,




                                                                                    
                aged about 24 yrs., Occp. Labour
                r/o Kripal Nawagaon, Tah. Lohara,
                Distt. Durg (Chattisgarh),
                At present Balaki Mineral Company,




                                                                
                Wanoja, Tah. Korpana, 
                Distt. Chandrapur (In Jail).
                                      ig           ::            APPELLANT

                         .. Versus
                                   ..
                                    
                State of Maharashtra,
                through Police Station Officer,
                Police Station, Korpana, Tah. Korpana,
                Distt. Chandrapur.               ::             RESPONDENT
      


     ...................................................................................................................................
                         Mrs. S. P. Kulkarni, Advocate (appointed) for the appellant.
   



                                         Shri S. S. Doifode, A.P.P. for the State.
      ...................................................................................................................................

                                                                   CORAM :  S. B. SHUKRE, J.

DATED : 21 JUNE, 2016.

O R A L J U D G M E N T O R A L J U D G M E N T

1. This is an appeal preferred against the judgment and order

dated 27th August, 2014 rendered in Sessions Case No. 79 of 2012 by

Additional Sessions Judge, Chandrapur, thereby convicting the

appellant of the offence punishable under Section 304-II of the Indian

Penal Code and sentencing him to suffer rigorous imprisonment for

apeal515.14.odt 2/8

five years and also to pay fine of Rs.1,000/- with default sentence of

rigorous imprisonment of one month. The appellant has been

prosecuted for an offence punishable under Section 302 of the Indian

Penal Code on the allegation that in the evening of 05/4/2012,

between 3.00 p.m. and 4.00 p.m., in the courtyard of his hut, the

appellant picked up a quarrel with the deceased Rambharose, his

father-in-law, residing in a separate but adjoining hut and by beating

him by means of stones and stick on his head, the appellant killed him.

It was alleged that on the previous day as well, there was quarrel

between the appellant and the deceased in which the appellant had

threatened him to kill if the deceased interfered in the domestic issues

of the appellant.

2. The report of the incident was lodged almost immediately

at about 4.00 p.m. of 05/4/2012 and the law was set in motion. The

appellant was arrested on 06/4/2012. Necessary panchanamas were

prepared and postmortem examination of the dead body of

Rambharose was conducted. The postmortem report revealed that the

deceased had sustained in all seven injuries on the head and around

the head region and the cause of his death was the head injury.

Statements of witnesses were recorded. After completion of

investigation, the charge-sheet was filed. On the merits of the case,

the learned Additional Sessions Judge found that though the death of

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Rambharose was homicidal in nature, it did not fit into the parameters

of culpable homicide amounting to murder punishable under Section

302 of the Indian Penal Code and was within the scope and ambit of

culpable homicide not amounting to murder punishable under Section

304-II of the Indian Penal Code, and accordingly by an impugned

judgment and order, convicted the appellant for the said offence. The

appellant, however, is not satisfied with the same and, therefore, he

has approached this Court by filing this appeal.

3. I have heard Mrs. Kulkarni, learned Counsel for the

appellant and Shri Doifode, learned A.P.P. for the State. I have

carefully gone through the record of the case including the impugned

judgment and order.

4. It is the contention of the learned Counsel for the appellant

that there are no witnesses examined by the prosecution, who had

actually seen the present appellant as carrying out any assault on the

person of the deceased and that their evidence regarding presence of

the appellant at the place where deceased Rambharose was lying in

injured condition is also of doubtful nature. She also submits that

although P.W.-2 Anupabai has stated that she had seen the accused as

standing near the deceased holding stick in his hand, the same is an

omission and that no human blood has been found to be present on

the stick as per the C.A. report vide Exh.62. She has, therefore,

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submitted that this is a case wherein benefit of doubt must go to the

appellant and by giving the same, he deserves to be acquitted of the

offence for which he has been held guilty, albeit wrongly by the trial

Court.

5. According to the learned A.P.P. for the State, the evidence

of three material witnesses; P.W.-2 Anupabai, P.W.-3 Anandrao and

P.W.-4 Dharamdas is consistent with each other and their evidence

shows that the appellant was not only present at the place where the

deceased was lying in injured condition but had also quarreled with

him just before the deceased fell on the ground. He also submits that

their evidence also shows that in their presence, the appellant had

issued a threat that he would again beat up the deceased Rambharose.

He further submits that the accused, though a son-in-law of the

deceased, did not inform anybody regarding the bleeding injuries

sustained by the deceased, leave apart taking the deceased to the

hospital immediately for management of the serious injuries suffered

by him. He also submits that there is evidence showing that when the

appellant was asked about the reason for sustaining of bleeding injury

by the deceased, the appellant maintained complete silence. According

to him, such subsequent conduct of the appellant only goes to show

that the prosecution has established beyond reasonable doubt the fact

that it were only the appellant who mercilessly assaulted the deceased,

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which assault caused his death.

6. On going through the evidence brought on record, I find

that there is great substance in the argument advanced by the learned

A.P.P. for the State and there is no merit in the argument canvassed on

behalf of the appellant. The evidence of three witnesses; P.W.-2

Anupabai, P.W.-3 Anandrao and P.W.-4 Dharamdas is of great

significance and their testimony is consistent with each other. There

are hardly any proved omissions in their testimonies, which would

create any doubt about their trustworthiness. These witnesses had

seen the accused as present at the spot of the incident just near the

place where the deceased Rambharose was lying in injured condition.

P.W.-4 Dharamdas has stated that he had seen Rambharose as lying in

a pool of blood. During the course of cross-examination taken on

behalf of the appellant, certain suggestions were put to him by the

learned Counsel for the appellant. The answers given to these

suggestions disclose that this witness had even seen the quarrel as

going on between the appellant and Rambharose for about five

minutes and that he had also seen that both of them were abusing

each other during the quarrel.

7. P.W.-3 Anandrao had also seen the appellant as present

near the place where deceased Rambharose was lying in a pool of

blood. He has particularly stated that when he reached the spot he

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saw the injured condition of Rambharose and that he also saw the

accused as present there. The accused did not give any explanation as

to how the deceased suffered those injuries. According to this

witness, the accused, on seeing him, even issued a threat that he

would again beat up the deceased. The fact that the appellant did not

say anything about the reason for those injuries and even used the

words that, "he would again beat up" itself shows that the appellant

had impliedly admitted the guilt by way of extra judicial confession

that he had subjected Rambharose to beating by him. These

circumstances reveal relevant fact in the nature of subsequent conduct

prescribed under Section 8 of the Indian Evidence Act, 1872, as rightly

submitted by the learned A.P.P. for the State. They go to establish that

the assault on the deceased was carried out by nobody else other than

the accused himself. This assault resulted into the deceased sustaining

grievous injuries on his head, which ultimately caused his death. The

conclusion reached in this regard, therefore, by the learned Additional

Sessions Judge cannot be seen as perverse or arbitrary or illogical.

The death of deceased Rambharose was thus homicidal in nature and

the appellant had caused it.

8. Now, the next question would be, whether such homicidal

death amounted to murder or not? Learned Counsel for the appellant

submits that it did not amount to murder as there were no

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circumstances proved on the record sufficiently indicating the requisite

intention or knowledge on the part of the appellant. I think, learned

Counsel for the appellant is right in saying so. The evidence on record

does not clearly indicate that the appellant, when he assaulted

deceased Rambharose, had done it with an intention to kill him or

with such a knowledge as to be aware that the injuries that he was

causing would in all probability bring about his death. There was

sudden fight in between the accused and the deceased Rambharose in

which the passions ran high and the appellant hit the deceased by

means of stones and stick on his head, which ultimately resulted in the

death of Rambharose. This circumstance only shows that the act was

committed without any premeditation. There is no evidence showing

that the appellant had taken undue advantage of the situation or acted

cruely or in an unusual manner. Therefore, the finding recorded in

this regard by the learned Additional Sessions Judge cannot be seen as

erroneous.

9. Learned Counsel for the appellant submits that the

appellant is a man of family, who has a son to take care of and,

therefore, he should be released by reducing his sentence to the period

of detention already undergone by him. The prayer is opposed by the

learned A.P.P. for the State.

10. I find that the learned Additional Sessions Judge has

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already taken sufficiently lenient view and no scope is left for me to

reduce his sentence of imprisonment even further. In the result, I am

of the view that no sufficient grounds have been made out for making

any interference in the judgment and order impugned and the appeal

deserves to be dismissed.

The appeal stands dismissed.

This Court places on record its appreciation for the effective

presentation of the case by learned Advocate on behalf of the

appellant so also by the learned A.P.P. for the State.

The legal remuneration payable to the learned Counsel for

the appellant is determined to be at Rs.5,000/-, which may be paid to

her as per rules.

JUDGE

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