Bombay High Court

Ramesh S/O Bakaram Nagose (In ... vs State Of Maharashtra Through P. S. ... on 17 April, 2017

Bench: I.K. Jain

apeal.192.16.jud.doc                        1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR


                    CRIMINAL APPEAL NO.192 OF 2016


Ramesh Bakaram Nagose,
Aged 53 years, Occupation : Farmer,
R/o Near Weekly Market, Paradsinga,
Tahsil Katol, District Nagpur.
(At present in Central Jail, Nagpur)                                .... Appellant


       -- Versus --

The State of Maharashtra,
through P.S.O. of P.S. Katol,
District Nagpur                                                 .... Respondent

                   -------------
Shri A.K. Bhangde, Advocate for the Appellant.
Shri R.S. Nayak, Additional Public Prosecutor for the Respondent/State.
                   -------------

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : APRIL 17, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 10/05/2016 passed by the learned Additional

Sessions Judge, Nagpur in Sessions Trial No.372/2013. By the

said judgment and order, accused has been convicted of the

offence punishable under Section 304-II of the Indian Penal Code

and sentenced to suffer rigorous imprisonment for seven years

and to pay fine of Rs.2,000/-, in default to suffer further simple

imprisonment for six months.

02] Prosecution case in nut shell is as under :

i. Deceased Bakaram Nagose was resident of

Paradsingh, Tahsil Katol, District Nagpur. Accused is

son of the deceased. First informant- Arvind Nagose

is brother of accused and another son of deceased.

ii. Incident occurred on 10/06/2013 at around 11:30 a.m

in the shed situated in weekly market at Mouza

Paradsinga. It is the case of prosecution that a

quarrel took place between accused and deceased,

and accused struck the head of his father on cement

platform (Ota), due to which he received head injury.

iii. Arvind was informed on phone by PW-4 Umesh

Waghade, nephew, about the incident. Arvind rushed

to the hospital. Doctor asked them to take the injured

to Nagpur. On 12/06/2013, injured was brought to

Nagpur and he was under treatment till 14/06/2013.

He succumbed to injury on 15/06/2013. Thereafter,

Arvind lodged report to Katol Police Station. On the

basis of report, Crime No.119/2013 was registered

against the accused for the offence punishable under

Section 302 of the Indian Penal Code. PW-6 API

Mandwe took over investigation. He had been to

Government Medical College, Nagpur and recorded

inquest-panchnama. The dead body was sent for

postmortem. PW-5 Dr. Ashutosh Deshmukh performed

postmortem and opined cause of death as head injury.

iv. On 16/06/2013, Investigating Officer visited the place

of occurrence and recorded spot-panchnama.

Accused was arrested. Statements of witnesses were

recorded. The clothes of deceased and accused were

seized. Blood samples of the accused were collected.

Circle Inspector was requested to prepare sketch of

the place of occurrence. Statements of eye-witnesses

were recorded under Section 164 of the Code of

Criminal Procedure by the Judicial Magistrate First

Class, Katol. Seized muddemal was sent to Chemical

Analyzer. After completing investigation, charge-

sheet was submitted to the Court of Judicial

Magistrate First Class, Katol, who in turn committed

the case for trial to the Court of Sessions.

03] On committal, charge came to be framed by the Trial

Court vide Exh.6. Accused pleaded not guilty and claimed to be

tried. He raised a specific defence that due to property dispute,

he has been falsely implicated by his brother.

04] To substantiate the guilt of accused, prosecution

examined in all six witnesses. Taking into consideration the

evidence of prosecution witnesses, Trial Court came to the

conclusion that offence under Section 302 of the Indian Penal

Code is not made out against the accused, but offence under

Section 304-II of the Indian Penal Code has been established by

the prosecution beyond reasonable doubt. Accused was

accordingly convicted of the offence and sentenced as stated in

paragraph 1 above. Hence, this appeal.

05] Heard Shri A.K. Bhangde, learned Counsel for the

appellant and Shri R.S. Nayak, learned A.P.P. for the State.

Perused the evidence of prosecution witnesses. On careful

scrutiny of the evidence, submissions made on behalf of the

parties, reasonings recorded by the Trial Court and judgment and

order under challenge, this Court, for the below mentioned

reasons, is of the view that prosecution could prove the guilt of

accused beyond reasonable doubt.

06] PW-4 Umesh is the star witness. He is a solitary eye-

witness. According to him, on 10/06/2013, he had gone to the

house of accused and the deceased to meet them. At about

05:00 to 06:00 p.m., quarrel took place between accused and

the deceased. He pacified them. At about 07:00 p.m., after

dinner, deceased went to sleep on cement ota situated in weekly

market of Paradsinga. At around 08:00 to 08:30 p.m., two police

personnel came to the house of accused and told him to attend

Katol Court and gave summons to accused, his wife and son.

They thought that deceased must have lodged the report. So

accused went to the place, where his father was sleeping. He

started assaulting him. He then lifted the deceased and threw

him. The head of deceased struck against cement ota, he

sustained bleeding injury and became unconscious. Initially, he

was taken to hospital at Katol. Thereafter, he was brought to

Nagpur and during treatment, he breathed his last on

15/06/2013.

07] According to first informant PW-1 Arvind, son of

deceased and brother of accused, he received information on

phone from Umesh about the incident. PW-4 Umesh has denied

in his cross-examination that he ever informed Arvind about the

incident. The evidence of first informant is, therefore, of no use

to the prosecution, firstly because he is not an eye-witness and

secondly because the source of information to him is denied by

PW-4 Umesh.

08] Reverting to the evidence of PW-4 Umesh, it is

pertinent to note that his statement under Section 161 of the

Code of Criminal Procedure was recorded on 16/06/2013 i.e. after

5 days of the incident. Umesh admitted in unequivocal terms in

cross-examination that till his statement, he did not disclose to

police or anyone regarding incident. The delay of five days in

recording statement of an eye-witness has not been explained

by the Investigating Officer or by the witness. The conduct of

PW-4 in not informing the police about the incident, though he

claims himself to be the close relative of the accused and the

victim, and not disclosing the incident to anyone is self-

explanatory to show that the witness is a got up witness and his

testimony cannot be relied as the sole basis for conviction. If

evidence of PW-4 Umesh is disbelieved, on the sole ground of

inordinate and unexplained delay in recording his statement,

nothing remains in the prosecution case. .

09] In the above background and for want of sufficient

evidence, this Court holds that even an offence under Section

304-II of the Indian Penal Code is not proved against the accused

and the judgment and order of conviction is unsustainable in law.

In the result, appeal deserves to be allowed. Hence, the following

order :

ORDER

i. Criminal Appeal No.192/2016 is allowed.

ii. Impugned judgment and order of conviction and

sentence passed by the learned Additional Sessions

Judge, Nagpur, dated 10/05/2016 in Sessions Trial

No.372/2013 is quashed and set aside.

iii. Accused is acquitted of the offence punishable

under Section 304-II of the Indian Penal Code.

iv. Accused shall be set at liberty forthwith, if not

required in any other case.