Supadu @ Bapu Kautik Patil vs The State Of Maharashtra
2016 Latest Caselaw 5213 Bom

                                                              cria766.14.odt
                                            1


                                            
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 




                                                                          
                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.766 OF 2014

     Supadu @ Bapu Kautik Patil,




                                                 
     Age-30 years, Occu:Agriculture,
     R/o-Rajwad, Tq-Parola,
     Dist-Jalgaon.
                                     ...APPELLANT 
                                   (Orig. Accused)




                                         
            VERSUS             
                             
     The State of Maharashtra  
                                     ...RESPONDENT
                            
                          ...
        Mr. Satej S. Jadhav Advocate for  Appellant.
        Mr. K.D. Mundhe, A.P.P. for Respondent-State. 
      

                          ...    
   



                   CORAM:   A.I.S. CHEEMA, J.

        DATE OF RESERVING JUDGMENT  : 10TH AUGUST,2016  

        DATE OF PRONOUNCING JUDGMENT: 8TH SEPTEMBER, 2016





                                      

     JUDGMENT :

1. The Appellant - original accused has been

convicted by the Additional Sessions Judge,

Amalner in Sessions Case No.24 of 2008, under

Section 354 of Indian Penal Code, 1860 ("I.P.C."

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in brief) and sentenced to suffer rigorous

imprisonment for two years and to pay fine of

Rs.2000/- and in default of payment of fine, to

suffer simple imprisonment for three months. He

has been convicted also for offence under Section

307 of I.P.C. and sentenced to suffer rigorous

imprisonment for ten years and to pay fine of

Rs.5000/- and in default of payment of fine to

suffer simple imprisonment for three months. The

conviction is also under Section 506 of the I.P.C.

and sentence of rigorous imprisonment for one year

and fine of Rs.1000/- and in default to suffer

simple imprisonment for one month has been

imposed. There was charge also under Section 504

of I.P.C. but the accused came to be acquitted for

the same. Being aggrieved, the present Appeal has

been filed.

CASE OF PROSECUTION:

2. To appreciate case of prosecution, it

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would be appropriate to make brief reference to

the contents of the F.I.R. Exhibit 40 which was

filed by the complainant Sachin Laxman Patil at

Parola Police Station and Crime No.45 of 2008 was

registered at about 9.15 a.m. on 25th April 2008.

The F.I.R. states as under:

(A) (i) The F.I.R. referred to the situation

on the spot and the family details of the

complainant and that in the evening of 24th April

2008 there was a Halad Ceremony in the village

which was not attended by the complainant and his

family and that they went to sleep at about 9.30 -

10.00 p.m. in front of their house on cots. It is

stated that at about 2.00 - 2.30 a.m. in the night

in the date of 25th April 2008, the complainant,

his mother and father were sleeping in front of

the house and suddenly the mother shouted because

of which the complainant got up. The mother had

called out to her husband saying as to see who has

come and sat on her bed. When complainant saw in

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that direction, he saw that accused Supdu Patil

who resides on the back side of their house, was

sitting there. Because of shouts of mother of

complainant, the father also got up and at that

time the accused ran away from the spot. The

mother told the complainant that while she was

sleeping, the accused had come and sat on her cot

and had roamed his hand on her person because of

which her sleep got disturbed and she got up. The

father of complainant at that time said that they

will look into the incident in the morning. As the

accused had gone away, they slept.

(A) (ii). The F.I.R. then refers to the second

part of the incident by recording that in the

morning at about 5.00 a.m. when water comes in the

taps, they got up and complainant and his mother

(PW-5) went to the tap on the back side of their

house. Time was at about 7.00 a.m. when the

accused came there along with his sister Bebabai

to the adjoining tap which is belonging to him.

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PW-5 Nirmalabai was filling the water from the pit

near the tap and the accused went and sat besides

her. Mother of the complainant asked him to get up

from there and he stated as to why he should get

up. When the mother of the complainant tried to

make the accused get up, the accused slapped her.

Consequently, mother of complainant called out to

her husband. Her husband (Laxman Patil) came

there. Mother of complainant told her husband the

incident on the tap. Laxman, father of complainant

started telling accused that in the night also he

had come and sat on the cot of his wife. When

Laxman was so speaking, accused raised his hand

holding a bucket to assault and mother of

complainant obstructed the assault by hand,

because of which the bucket hit back to the

accused near his ear and head. F.I.R. gives names

of six persons and states that those persons and

others came there and explained to the accused and

took him to his house.

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A) (iii). The F.I.R. then refers to the third

part of the incident mentioning that the

complainant and his father (Laxman) came in front

of their house to attend the cattle. Laxman asked

the complainant to take the cow-dung collected in

the basket and throw it on the heap of cow-dung.

The said heap was on the back side of the house of

the accused. When the complainant was going

towards that direction, the accused ran towards

the complainant with an axe in his hand. Seeing

this, the complainant threw the basket on the way

itself and ran towards his house. The accused

threw the axe towards the complainant. Complainant

went and told the incident to his father Laxman.

The father (Laxman) asked sister of complainant -

Vaishali (PW-6) to go and get the basket. When she

tried to go there, accused threatened her also to

come and he will hit her by the axe. Because of

the threat, the sister did not go to pick up the

basket. Thereafter Laxman himself went to get the

basket and at that time the accused, with the axe

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which he had in his hand, gave 2-3 blows on the

head of the father of the complainant and tried to

kill him. Because of the blows given by the axe on

the head, the father started bleeding and his

clothes got blood stained. The F.I.R. refers to

villagers who came there at such time including

Ishwar Dagadu Patil (PW-4) who took Laxman

(hereafter referred as "victim") to the Government

Hospital at Parola. F.I.R. states that the

incident took place at about 7.00 - 7.45 a.m.

Thus, the F.I.R. was being filed.

THE INVESTIGATION:

B). Then P.I. PW-8 Sadashiv Bhadane

registered the offence and immediately went to the

spot and prepared spot Panchnama Exhibit 42. One

of the Panchas was PW-2 Ravindra Patil. From the

spot, samples of plain soil as well as blood mixed

soil were collected. The Investigating Officer

recorded statements of witnesses. The accused came

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to be arrested. While the accused was in custody,

he agreed to give discovery of the axe. In

presence of Panchas, the Memorandum Exhibit 46 was

recorded. The accused led the Police and Panchas

to another hut which was near his house and gave

discovery of the axe (Article D) hidden between

leaves of sugarcane. The axe had blood stains.

Panchnama Exhibit 47 was drawn. One of the Panch

was PW-3 Kalim Patel. This discovery took place on

26th April 2008 between 5.30 - 5.45 p.m. On 25th

April 2008 PW-4 Ishwar Patil who had helped to

take the victim to the hospital, had collected the

blood stained clothes of the victim and produced

the same before the police and the same were

seized by the investigating officer vide Panchnama

Exhibit 56 in presence of Panchas. One of the

Panch was PW-7 Manoj Patil. In presence of PW-7

Manoj Patil blood stained shirt from the person of

accused was also seized on 25th April 2008 vide

Panchnama Exhibit 55.

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. It appears that the victim was earlier

taken to the Cottage Hospital at Parola and was

examined by PW-10 Dr. Sachin Pralhad Patil, who

immediately referred the victim to the hospital at

Dhule and the victim was taken to "Dr. Shah's

Neuro Surgery Center" at Dhule and was treated by

PW-9 Dr. Nikhil Shah, a Neuro Surgeon. The victim

had three injuries on his head. The Investigating

Officer earlier tried to record the statement of

the victim but he was not in fit condition. The

statement could be recorded only after the victim

was discharged from the hospital. As per PW-9 Dr.

Shah, victim was discharged on 14th May 2008. The

Investigating Officer sent the seized Muddemal to

C.A. and reports Exhibit 58 to 60 were collected.

After the investigation, charge-sheet came to be

filed.

DEFENCE:

3. The accused pleaded not guilty to the

charge which was framed against him for offences

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punishable under Sections 354, 307, 504 and 506 of

I.P.C. His defence is of denial. In the cross-

examination it was vaguely tried to suggest that

PW-5 Nirmalabai got hurt due to slip of leg. It

was also tried to say that as the family of

accused did not vote for the candidate of party of

complainant in Gram Panchayat Election, false

complaint is filed. The suggestion was denied.

4. The prosecution brought on record

evidence of ten witnesses. The trial Court

considered the oral and documentary evidence and

although it did not find offence under Section 504

of I.P.C. proved, it found that the offences under

other Sections proved beyond reasonable doubt and

convicted and sentenced the accused as above.

ARGUMENTS:

5. I have heard learned counsel for the

Appellant - accused and learned A.P.P. for State.

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The learned counsel for the accused has taken me

through the evidence. It is argued that the C.A.

Reports show that the blood group of the accused

is "O" and as such if C.A. Reports show that blood

on the axe was also of "O" group, it would not be

an evidence against the accused. According to the

learned counsel, the victim Laxman himself was not

examined in the trial Court and thus important

evidence was missing. It is argued that PW-4

Ishwar stated that he saw accused throwing axe

towards PW-1 Sachin but the witness did not depose

about PW-6 Vaishali being threatened by the

accused, which part of the incident was stated by

PW-1 and PW-6 as having occurred before the victim

was assaulted. The counsel expressed surprise as

to how PW-4 Ishwar himself collected the clothes

of the victim and directly took them to the police

station. The counsel further expressed surprise

that PW-6 Vaishali, the daughter of victim did not

depose about part of the incident which is stated

to have taken place at 2.00 a.m. in the night.

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According to the counsel, PW-7 Manoj Patil, the

Panch of seizure of clothes of the victim as well

as of the accused, should be disbelieved because

he admitted that he was the friend of PW-1

complainant. Referring to the evidence of PW-9 Dr.

Nikhil Shah and PW-10 Dr. Sachin, the counsel

submitted that in the evidence and certificate

issued by Dr. Sachin who first examined the

victim, there is no reference of brain matter

coming out. The counsel stated that the evidence

of PW-8 P.I. Sadashiv Bhadane shows that he did

record statement of the injured victim Laxman but

Laxman was not examined in the trial Court. It is

argued that although the evidence is that in the

course of incident due to PW-5 Nirmalabai

obstructing assault the bucket rebounded and hurt

the accused himself, the medical evidence of the

accused was not brought on record. According to

the counsel, regarding outraging modesty of PW-5,

there is no other independent witness except the

complainant and his mother PW-5 Nirmala. Regarding

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the incident on the tap, the counsel argued that

it would be difficult to accept that in presence

of his sister the accused would go and sit near

PW-5 Nirmala and misbehave with her. Learned

counsel argued in alternative that if the Court

does not agree to acquit the accused, the Section

for punishment should be converted from Section

307 to 326 of the I.P.C., as according to the

counsel the victim alone could have stated about

the intention of the accused and the victim has

not been examined. The spot of incident was closer

to the house of accused and the evidence shows

that the accused was angry about some thing, the

reason of which has not come on record. There were

no repeated assaults by the accused and so

according to the counsel, at the most the offence

under Section 326 of I.P.C. could be stated to be

there. According to him, there was no prior enmity

and so the sentence should be reduced.

6. Per contra, the learned A.P.P. submitted

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that the Judgment of the trial Court itself shows

that the victim died subsequently on 9th September

2009 regarding which purshis Exhibit 69 was filed.

The evidence started in 2014 and by that time the

victim was not available for evidence. According

to learned A.P.P., there was no reason to

disbelieve the complainant, his mother and sister,

looking to the grievous injuries inflicted on the

head of the victim. According to the learned

A.P.P., there were more than one blow given on the

head. The certificates of doctors PW-9 and PW-10

shows that there were three injuries on the head

of the victim and by the time the victim was taken

to Neuro Surgeon, the brain matter had started

coming out. According to the learned A.P.P., facts

of the matter clearly show that intention was to

kill as with the help of axe grievous injuries

were caused on the head of the victim. The A.P.P.

referred to C.A. Report Exhibit 58 to submit that

C.A. Report showed that the blood group of the

victim was also "O" and thus according to the

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learned A.P.P., only because accused has also

blood group "O" does not make any difference and

the blood on the axe and clothes of the victim and

accused was of "O" group which belonged to the

victim. The A.P.P. submitted that the offence has

been duly proved and the trial Court has rightly

convicted the accused and the conviction may not

be disturbed.

FIRST PART OF INCIDENT:

7. I have gone through the oral and

documentary evidence brought on record by the

prosecution in the trial Court. Coming to the

first part of incident which took place between

the night of 24th April 2008 and 25th April 2008,

there is evidence of PW-1 Sachin, the complainant

and PW-5 Nirmala the mother. The evidence of both

these witnesses read collectively makes it clear

that in the concerned night this family slept in

the court-yard in front of their house and it

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appears that at about 2.00 - 2.30 a.m. sleep of

PW-5 Nirmala got disturbed as she felt that a hand

was moving on her person. She has deposed that the

accused came and sat on her bed at about 2.00 -

2.30 a.m. and moved his hand on her cheek. Her

evidence is that she called out to her husband and

her husband and son woke up. Seeing them wake up,

the accused ran away. The evidence of PW-1 and

PW-5 shows that PW-5 Nirmala had immediately told

as to how the accused had come and sat on her bed

while she was sleeping and moved his hand on her

cheek. It appears from the evidence of these two

witnesses that the father (victim Laxman)

suggested that they will look into the matter in

the morning.

8. I have gone through the cross-examination

of both these witnesses. Apart from suggestions

which have been denied, there is nothing material

in the cross-examination so as to disbelieve these

witnesses regarding this part of the incident.

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Learned counsel for the accused expressed surprise

that PW-6 Vaishali, who must also have been

sleeping nearby, did not refer to the incident

which took place in the night. I do not think that

because PW-6 Vaishali did not refer to this part

of incident, PW-1 and PW-5 should be disbelieved.

If the evidence of PW-5 Nirmalabai is examined,

what she deposed was, in the night when she had

called out, her husband and son woke up. Thus, if

PW-6 Vaishali did not wake up from her sleep, and

thus did not refer to that part of incident in her

evidence, that by itself cannot be reason to

disbelieve PW-1 and PW-5. It would also depend on

how deep sleep she was in at that prime time of

the night.

SECOND PART OF INCIDENT:

9. Coming to the second part of the

incident, the evidence of PW-1 and PW-5 shows that

at about 5.00 - 5.30 a.m. these people woke up and

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PW-5 Nirmala alongwith her son went to fill water

on the tap which was behind their house. The

evidence is that the accused and his sister

Bebabai also came there to fetch water. The taps

are stated to be near each other. PW-5 Nirmala was

fetching water from the pit and the evidence shows

that the accused went and sat besides her. PW-5

Nirmala asked him to stand up and go away but

accused started saying that as to why he should

stand and go away. The evidence shows that at such

time accused slapped Nirmala, who immediately

called out to her husband. The evidence is that

when victim Laxman came there, he reminded accused

of the facts of the incident which took place in

the night. Thus what appears is that the victim

had tried to tell the accused that he misbehaved

in the night also and now also he was misbehaving.

The evidence shows that at such time the accused

raised bucket which was in his hand in order to

assault PW-5 Nirmala. PW-1 Sachin has deposed that

at such time his mother raised her hands to save

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the assault and consequently the bucket hit to the

ear and head of the accused himself, who sustained

injury. The evidence shows that thereafter some

villagers gathered and the accused was taken away

to his house.

10. The learned counsel for the accused has

argued that if this evidence is seen, the accused

must have suffered injury but the medical

certificate of the accused was not brought on

record by the State. Even if the medical

certificate has not been brought on record, the

Arrest Memo available in the original file of the

trial Court shows that the accused was arrested on

25th April 2008 itself at about 4.10 p.m. and entry

in Column No.7 is that he had been medically

examined. The photo affixed on the Arrest Memo

shows the accused with head bandage. Thus, it does

appear that PW-1 and PW-5 were giving truthful

account of the incident. The injury on the person

of the accused has rather been explained. Looking

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to the cross-examination of PW-1 and PW-5 although

various suggestions are put denying the details of

the incident, nothing material has come out. No

contradictions or omissions are proved.

. The argument that accused is unlikely to

misbehave in presence of his sister so as to go

and sit near PW-5, has no substance. It depends on

the person and merely because the sister was

there, does not make it an impossibility.

THIRD PART OF INCIDENT:

11. In the chain of instances, the third part

then unfolded. Evidence of PW-1 Sachin is that

after the incident which took place on the tap the

accused was taken away to his house by villagers,

and the complainant and his father came back to their

house to clean the cattle-shed. He collected the

dung of cows and buffalos and put it into a basket

as it was to be thrown on the heap of dung which

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was near the house of the accused. PW-1 deposed

that when he collected the dung to throw it near

the heap of dung, the accused holding axe came

towards him. Seeing the accused coming like this,

the witness has deposed that he threw the basket

containing dung there only and started running

towards his house at which time the accused threw

axe towards his person. It appears the axe missed

him. He came back home running and told the

incident to his father. PW-1 is corroborated by

PW-5 Nirmala who has also deposed that when her

son collected dung and her husband asked

complainant to go and throw it on the heap of dung

which is on the back side of the house of the

accused, the accused had rushed towards her son

and accused threw axe towards the person of

complainant but same did not hit him and the son

came back home weeping and told the incident to

her and her husband. The evidence of PW-1

complainant Sachin, PW-5 Nirmala and the evidence

of PW-6 Vaishali shows that after such incident,

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Vaishali was asked by the father to go and get the

basket. The evidence is that when Vaishali had

gone towards the heap of dung to get the basket,

the accused told her to come to him and he will

assault her on her head by means of axe.

Consequently Vaishali also came back. Thus, it is

clear that the accused threatened complainant PW-1

as well as PW-6 Vaishali with injury if they went

towards the heap of dung and threatened them with

assault and hurt.

. The evidence of PW-1, PW-5 and PW-6

further shows that after this part of incident,

victim Laxman went to get the basket and at that

time the accused went near the victim who had

reached near Neem tree which is in the open ground

behind the house of the complainant (and is in

between the house of complainant and the accused).

When the victim was near the said Neem tree, the

accused went up to him and gave 2-3 blows by the

axe on the head, is the evidence of these

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witnesses. The victim started bleeding from the

head and collapsed on the ground with his clothes

getting blood stained. At this point of time the

accused ran away. PW-1, PW-5 and PW-6 get

corroboration from independent witness PW-4 Ishwar

Patil also.

12. PW-4 Ishwar Patil has deposed that on 25 th

April 2008 he was going as he wanted to engage

labourers. He was along with one Sambhaji Patil.

They heard shouts of quarrel and his evidence is

that he saw that the quarrel was going on between

wife of Laxman Patil (PW-5 Nirmala) and accused.

He deposed that they rescued the quarrel. This

relates to Second Part of Incident. According to

this witness, he then went to call labourers and

while they were returning, he saw the part of

incident of accused throwing axe towards

complainant PW-1 Sachin. PW-4 Ishwar deposed that

thereafter victim Laxman went there to take the

basket and accused gave two axe blows on the head

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of the victim Laxman, due to which Laxman fell

down with blood falling on his clothes and the

accused ran away from the spot. This witness PW-4

Ishwar has deposed that he rushed home and brought

his Pick-up vehicle and carried Laxman in the

Pick-up van to Government Hospital, Parola. The

doctors referred the patient to Dhule and the

victim was taken there by ambulance.

. I have gone through the cross-examination

of PW-4 Ishwar. He was asked details regarding his

purchase of Pick-up vehicle and its permit. Then

various suggestions have been given so as to deny

the evidence given by the witness. The suggestions

given by the accused were not accepted by the

witness and going through the examination, it

cannot be said that the witness was shattered in

any manner. There appears no reason why this PW-4

Ishwar should have deposed against the accused or

in favour of the victim Laxman or his wife. The

witness remained un-shattered in the cross-

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examination.

13. The learned counsel for the accused

submitted that PW-4 Ishwar did not depose about

PW-6 Vaishali trying to go and get the basket

before Laxman went to do so. Even if PW-4 Ishwar

did not refer to that part of the incident, it

must have been a brief incident unlike the act of

throwing axe towards PW-1 Sachin which would

register in the mind of a person witnessing the

incident and the actual assault on Laxman which

would remain unforgotten when such incident takes

place, for a witness. Thus only because the small

part of PW-6 Vaishali trying to go and get the

basket and accused threatening her, has missed the

attention of PW-4 Ishwar Patil, that will not make

any difference. It is not that the witness has

accepted that no such incident occurred of PW-6

Vaishali trying to go and get the basket. There is

no contra evidence and only because some portion

of incident is not deposed to by PW-4 Ishwar, that

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will not make the evidence doubtful.

MEDICAL EVIDENCE:

14. Coming to the medical evidence, the

evidence of PW-10 Dr. Sachin Patil shows that he

was working as medical officer at Cottage

Hospital, Parola. He deposed that at about 7.30

a.m. injured Laxman was brought to the hospital

and the history given was of assault at about 6.00

a.m. The doctor noted the following injuries on

the person of victim:-

"1) Contused lacerated wound on right parietal occipital region, liner in shape,

antero-posterior in direction. Size 12 X 1 X 1 ½ cm.

2) Contused lacerated wound on right side

extending from forehead to parietal region antero-posterior in direction. Liner in shape of size 7 x 1 x 1 ½ cm.

3) Right frontal bone suspicious fracture

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of right frontal bone".

. This doctor deposed that the patient was

referred to Civil Hospital, Dhule for further

investigation and the injuries were within six

hours and had been caused due to sharp and hard

object. He deposed that nature of injury No.3 was

grievous. He issued Certificate Exhibit 70.

15. Then there is evidence of PW-9 Dr. Nikhil

Shah. The victim appears to have been rushed from

Parola to Dhule and had reached the Hospital of

PW-9 Dr. Nikhil Shah by 9.30 a.m. The wife Nirmala

appears to have been there with him. The Doctor

PW-9 has deposed that the victim had injury on

right tempo parietal of the skull with brain

matter coming out in 15 cm. in long C.L.W. The

doctor had taken C.T. Scan photo of the injury of

the patient. The doctor PW-9 recorded the

following injuries:-

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"1] There was right high parietal

hemorrhagic infarct with entra cerebral bone fragment noted.

2] Sub arachnoid hemorrhage pneunocephalus with diffused cerebral oedema.

3] Frontal bone fracture on right side with depressed fracture parietal bone on the

right side with bone fragment."

.

According to this doctor the injuries had been

caused by sharp and hard object. He issued

certificate Exhibit 66. The doctor was shown the

axe which had been seized. According to the

doctor, the injuries were possible by such axe. In

the cross-examination PW-9 Dr. Nikhil Shah

admitted that if forcibly person is made to fall

down on stone, the injuries would be possible.

Other than this, from the evidence of PW-9 and

PW-10 nothing material is found in the cross-

examination so as to disbelieve these doctors

regarding the injuries they had recorded and the

fact that they had examined the victim. Even if

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PW-9 Dr. Nikhil deposed about possibility of such

injuries by forcibly falling of a person on stone,

there is neither such defence nor, evidence

indicates any such possibility. Again, if a person

is forcibly made to fall, it would still be an

offence. A given injury is possible by various

ways and means. That is not material. Important is

to see whether the evidence regarding the incident

and the injury noticed by the doctor match, so as

to appreciate the evidence regarding the incident.

16. It has been argued by the learned counsel

for the Appellant-accused that PW-10 Dr. Sachin

Patil had not mentioned about brain matter coming

out. I do not find that this is material. The

doctor PW-10 who has examined the victim at

Cottage Hospital, Parola and his notings of the

injuries must be treated as prima facie, from

external examination of the victim whereas doctor

PW-9 had the advantage of going into C.T. Scan and

is even otherwise qualified Neuro Surgeon and his

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evidence is material. In the rush-up of the victim

being taken from the spot to the Cottage Hospital

at Parola and then being taken to Dhule, if by the

time patient reached Dhule the brain matter had

started coming out, that does not mean that there

is any contradiction between the findings recorded

by the doctor at Parola and the doctor at Dhule.

PROMPT F.I.R.:

17. Frontal bone fracture on the parietal

region of the head and the fact that brain matter

had started to come out shows that it was a

grievous injury on most vital part of the body

which is the head, and apparently the injury was

sufficient in ordinary course of nature to cause

death. Had it not been that the victim was rushed

so fast, the consequences could have been

different. The evidence shows that while PW-5

Nirmala rushed with her husband to take him to two

different Hospitals, PW-1 Sachin Patil had rushed

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to the police station and had immediately filed

F.I.R. with the offence also getting registered

by 9.15 a.m.

18. The counsel for the accused did not

submit but it was claimed by the accused in the

trial Court as a surprise that PW-10 Dr. Sachin

Patil had mentioned that the victim had been

brought to the Hospital at about 7.30 a.m.,

whereas the witnesses had claimed the incident to

have occurred at about 7.00 - 7.30 a.m. If the

evidence of witnesses is seen, it appears that at

about 5.00 - 5.30 a.m. the second part of the

incident was taking place near the tap which was

followed by further incident of the assault on the

victim in quick succession. The trial Court has

discussed this evidence and observed that the

witnesses were from rural background and their

evidence can not be judged with the same standard

as that of the witnesses from the urban areas.

Trial Court observed that the witnesses are not

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expected to have photographic memory and with

regard to time usually people make their estimate

by guess work or on the spur of moment at the time

of interrogation. Trial Court did not refer, but

appears to have picked up the reasoning from the

Judgment of the Hon'ble Supreme Court in the

matter of Bharwada Bhoginbhai Hirjibhai vs. State

of Gujarat, reported in (1983) 3 Supreme Court

Cases 217. I find that the appreciation of

evidence and reasonings recorded by the trial

Court in this regard are proper and there is no

reason to doubt the evidence which is brought on

record by the prosecution.

ORAL EVIDENCE:

19. The prosecution brought on record further

evidence which shows that in presence of PW-7

Manoj Patil from person of the accused, PW-8 P.I.

Sadashiv Bhadane seized blood stained shirt. PW-4

Ishwar Patil produced clothes of the victim which

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were also seized. Panchnamas on this count

Exhibits 55 and 56 were proved by the State.

Evidence of Investigating Officer is that these

clothes were sent to C.A. The C.A. Reports show

that clothes sent to C.A. had blood stains of "O"

group. It also appears that the accused and the

victim both had blood group "O". Looking this

evidence alongwith ocular evidence of the incident

there is an additional circumstance supporting the

case of prosecution. Then there is evidence of

PW-3 Kalim Patil as well as Investigating Officer

PW-8 Sadashiv Bhadane which shows that on 26th

April 2008 the accused while in custody agreed in

presence of Panchas and led the Police and Panchas

to a hut near his house and from below the

Sugarcane leaves the axe was discovered. The

evidence is that axe had blood stains. C.A. report

shows the blood stains were of "O" group. The

evidence of PW-2 Ravindra Patil shows that from

the spot, the police had seized blood stained mud

sample and even this sample has later on been

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found of blood group "O". Thus these corroborative

pieces of evidence are also available and lend

credence to the oral evidence of witnesses

regarding the incident. The ocular evidence, it

may be stated, stands strongly, with or without

support of these corroborative pieces of evidence.

20. There is no substance in the argument

that Panch PW-7 Manoj Patil should be disbelieved

only because he accepted that he is friend of the

complainant.

21. I have gone through the Judgment of the

trial Court. I am ignoring the observations of the

trial Court in Para 20 of its Judgment where it

attempted to read the statement of the victim

given to police, under Section 32(1) of the

Evidence Act because by the time the evidence was

recorded the victim had passed away. Counsel for

accused did not argue on this count but I am

preferring to ignore these reasonings as recorded

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in Para 20 of the impugned Judgment. However, rest

of the reasonings recorded by the trial Court for

accepting the evidence appear to be correct and

proper and the trial Court appears to have rightly

convicted the accused for the Sections as

mentioned earlier.

SECTION 307 OR SECTION 326 OF I.P.C.?

22. The submission of the learned counsel for

the accused that offence under Section 307 of the

I.P.C. is not made out and it should be converted

into Section 326 of I.P.C. deserves to be

rejected. I have already discussed medical

evidence which shows that the injuries of the

victim were sufficient in ordinary course of

nature to cause death. The facts proved in this

matter show that the accused went on behaving like

a bully so as to go and violate modesty of PW-5

Nirmala in the night and in the morning also on

the tap started misbehaving with her and when

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resisted he himself got injured by the bucket he

was trying to use against PW-5 Nirmala. He was

taken back by villagers. Thereafter he rather

aggravated his assault by trying to attack PW-1

Sachin and PW-6 Vaishali when they tried to go

towards heap of dung and actually assaulted the

victim. He gave more than one blows on the head by

axe and the intention and knowledge must be stated

to be obvious. He gave vent to his anger when PW-1

Sachin and PW-6 Vaishali and the victim were

trying to go towards heap of cow dung. It cannot

be said to be any grave and sudden provocation

from the side of these persons for the accused to

behave in the manner in which it has been noticed

in this matter. The over-all reading of the

evidence of PW-1, PW-5 and PW-6 shows that inspite

of provocation from the side of accused, they had

not retaliated. Rather they were defensive. In the

incident of night rather the victim postponed

taking action by saying that they will look into

the matter in the morning. The accused rather got

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encouraged to misbehave on the tap and when he

himself got injured due to his own act, he started

behaving violently. While the victim and his

family went on tolerating misbehaviour after

misbehaviour, accused went on aggravating bullying

behaviour and in the process committed offences of

not merely outraging modesty of a woman and

criminal intimidation but when got injured on

being resisted went on to attempt to commit murder

of his weak neighbour. Bullies don't really need

reason to misbehave and trouble and in the process

to commit offence. I find that the offence under

Section 307 of I.P.C. has been rightly concluded

by the trial Court.

23. There is no substance in the Appeal. The

Appeal is dismissed. The Appellant-accused shall

surrender to his bail bonds. Trial Court to ensure

sentence passed is complied with.

[A.I.S. CHEEMA, J.]

asb/SEP16