Bhaudas S/O Shrawan Meshram (In ... vs The State Of Maharshtra, Through ...
2016 Latest Caselaw 3063 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH, NAGPUR




                                                           
                         CRIMINAL APPEAL NO.572 OF 2014




                                             
          Bhaudas s/o. Shrawan Meshram,
                             
          Aged 35 years, r/o. Khamari 
          (Butt Toli), Tq. and District
          Bhandara.                     ..........     APPELLANT
                            
                  // VERSUS //
      
   



          The State of Maharashtra,
          through P.S.O., Bhandara,
          Distt. Bhandara.                  ..........     RESPONDENT





          -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                    Mr.N.A.Badar, Adv. for the Appellant.
               Mrs.G.R.Tiwari, A.P.P. for the respondent/State.





           -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                             CORAM     :  B.R.GAVAI &
                                                                  V.M.DESHPANDE, JJ.

                                             DATE         :  21.6.2016.





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          ORAL JUDGMENT (Per B.R.Gavai, J)     :




                                                       

1. Being aggrieved by the Judgment and Order passed by

the learned Sessions Judge, Bhandara in Sessions Trial No.73

of 2004 thereby convicting the appellant for the offence

punishable under Section 302 of the Indian Penal Code and

sentencing him to undergo life imprisonment and to pay a

fine of Rs.2,000/-; in default, to undergo simple

imprisonment for two months, the appellant has approached

this Court.

2. The prosecution case, as could be gathered from the

material placed on record, is thus :

On 15.8.2004, wife of deceased Ramesh namely

Durgabai had cooked eggs for the dinner. However, the

accused was angry since she had not cooked meat.

Therefore, deceased Ramesh abused his wife as well as his

mother. The accused is neighbour of deceased Ramesh. The

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accused felt that those abuses were hurled by deceased

Ramesh for him and his family members. Therefore, he

came to the courtyard of accused and then he pulled him

out of fencing gate of deceased Ramesh and brought him to

the kaccha road there. Thereafter, the accused gave blows

by means of a stick with wire and nails to deceased

Ramesh. He fell down. The accused gave blows of stick to

the deceased and went away from the spot. The first

informant Durgabai Ramesh Gaidhane (PW-1) and the

mother of deceased namely Manjulabai Mahadeo Gaidhane

(PW-3) lifted the accused and kept him on a cot. Durgabai

thereafter went to the doctor, but she could not find him.

She tried to make a telephone call to the police, but the

phone was out of order. She returned home. She found that

her husband has succumbed to the injuries. The accused

went to the Police Station and surrendered himself. On

receipt of information, the Investigating Officer Yograj

Ramaji Bankar (PW-8) went to the spot. He brought the

wife of the deceased to the Police Station. On her oral

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report below Exh.23, the First Information Report came to

be registered.

3. After conclusion of the investigation, the charge sheet

came to be filed in the Court of learned Judicial Magistrate,

First Class. Bhandara. However, since the case was

exclusively triable by the Sessions Judge, the same came to

be committed to the Sessions Court. The learned Sessions

Judge framed charge below Exh.6 for the offence

punishable under Section 302 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

the order of conviction and sentence, as aforesaid.

4. Mr.N.A.Badar, learned Counsel appearing on behalf

of the appellant submits that the learned trial Judge has

erred in convicting the appellant only on the basis of

evidence of interested witnesses. The learned Counsel

submits that all the independent witnesses have turned

hostile and as such, conviction could not have been

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recorded only on the basis of evidence of interested

witnesses. The learned Counsel, therefore, submits that the

order of conviction needs to be set aside and the appellant

needs to be acquitted of the charges charged with.

5. Mrs.G.R.Tiwari, learned A.P.P., on the contrary,

submits that merely because the witnesses are interested

witnesses, it cannot be a ground to discard their

testimonies. It is submitted that their testimonies are found

to be reliable and trustworthy and as such, no interference

is warranted.

6. With the assistance of the learned A.P.P. and the

learned Counsel for the appellant, we have scrutinized the

evidence on record.

7. Durgabai Ramesh Gaidhane (PW-1) is the first

informant. She states that, on 15.8.2004, her husband had

come home and asked her as to why she had cooked eggs

instead of mutton. She informed him that since she had no

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money to purchase mutton, therefore, she cooked eggs. She

further states that thereafter, quarrel took place between

her and her husband and that her husband also quarrelled

with her mother-in-law on the point of cooking eggs.

Thereafter, accused Ramesh came inside the house and

asked her husband as to why he gave abuses to his wife.

She further states that she told him that her husband had

given abuses to her and not to his wife. However, the

accused brought her husband out of the house by pulling

him. He assaulted him with a bamboo stick which had nail

fixed on it. She states that thereafter he fell down. The

accused thereafter gave 4 to 5 blows of stick on the person

of deceased. Thereafter, she went to the house of doctor.

He was not there. She then went to the house of one Shakti

to make a phone call to police. However, the phone was out

of order. This witness is thoroughly cross-examined.

However, except minor contradictions and omissions, she

has withstood the rigor of cross-examination. Her

testimony, insofar as the assault is concerned, has remained

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unshaken. Not only that, but the First Information Report

lodged on her oral report also corroborates her version.

8. The evidence of Durgabai Gaidhane (PW-1) is also

corroborated by the evidence of Manjulabai Mahadeo

Gaidhane (PW-3). She states that, on the day of incident,

her son had come to the house and quarrelled with her and

her daughter-in-law on the point as to why mutton was

cooked. Then accused Bhaudas came in front of their

accused and asked deceased Ramesh as to why he gave

abuses to them. The accused was told that the abuses were

not given to him but to them. She states that the accused

was holding stick of bamboo and he assaulted the deceased

with the said stick.

9. Nodoubt that both these witnesses are interested

witnesses inasmuch as they are relatives of deceased.

However, merely because the witnesses are interested, it

cannot be a ground to discard their testimonies if their

evidence is found to be trustworthy, reliable and cogent

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and the order of conviction could be based on the same. We

find the testimonies of these witnesses to be reliable and

trustworthy and the conviction based on their testimonies

warrants no interference. Apart from that, the ocular

testimonies of these witnesses are corroborated by the

evidence of Dr.Kishor Jogewar (PW-7).

10. Having come to the conclusion that it is the appellant

only who is the author of the injury which led to death of

deceased, the question that we are required to answer is as

to whether conviction u/s.302 of the Indian Penal Code

needs to be maintained or altered to the smaller offence.

11. From perusal of the material placed on record, it

would reveal that there is nothing placed on record to show

that the accused had an intention to cause death of the

deceased. On the contrary, from the evidence of Manjulabai

Gaidhane (PW-3), it would reveal that she has admitted

that, after the dinner, deceased Ramesh went to the

courtyard and made murmuring as to why mutton was not

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cooked. She has also admitted that deceased Ramesh alone

went to the gate on seeing Durgabai. Both the witnesses

have admitted that the deceased was under the influence of

liquor. As such, we find that the prosecution has failed to

place real genesis of incident on record. The possibility of

quarrel taking place and in that quarrel, the appellant

assaulting the deceased with a stick, which is readily

available, cannot be ruled out. In that view of the matter,

we find that the conviction under Section 302 of the Indian

Penal Code will not be tenable and the case would rather

fall under Part II of Section 304 of the Indian Penal Code.

12. The appellant has almost undergone sentence of 12

years. We find that the said sentence will be more than

sufficient to meet the ends of justice. In the result, the

appeal is partly allowed.

The order of conviction under Section 302 of the

Indian Penal Code is altered to one under Part II of Section

304 of the Indian Penal Code.

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The appellant is sentenced to suffer rigorous

imprisonment for the period already undergone by him.

The appellant is directed to be set at liberty forthwith,

if not required in any other case.

                                   JUDGE                   JUDGE




                                          
           jaiswal