Ashok Rama Yeshode vs The State Of Maharashtra
2017 Latest Caselaw 5511 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD
                              
              CRIMINAL APPEAL NO.329 OF 2001 

Ashok s/o. Rama Yeshode,
Age : 28 years, Occ. Labour,
r/o. Hatkarwadi,
Tq. Pathri,
Dist. Parbhani                                      ..Appellant

       Vs.

The State of Maharashtra                            ..Respondent

                         --
Mr.Rahul Mote, Advocate for appellant 

Ms.R.P.Gaur, APP for respondent 
                         --

                                 CORAM : SANGITRAO S. PATIL, J. 

DATE : AUGUST 03, 2017

ORAL JUDGMENT :

By this appeal, the original accused no.1

has challenged his conviction and sentence for the

offence punishable under Section 304, Part II of

the Indian Penal Code ("the I.P.C.", for short)

recorded on 24.07.2001 by the learned Additional

Sessions Judge, Parbhani.

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2. The appellant and other 26 accused

persons were prosecuted for the offences

punishable under Sections 302 and 324 read with

Section 149 and also under Sections 147 and 148 of

the I.P.C. After considering the evidence on

record, the learned trial Judge convicted the

appellant only for the offence under Section 304-

II of the I.P.C. and acquitted all the accused,

including the appellant, of the offences under

Sections 302, 324, 147 and 148 of the I.P.C. The

judgment and order of acquittal have not been

challenged and as such, have attained finality.

3. The case of the prosecution, in short, is

that there had been a quarrel between the son of

the informant namely, Shankar Ramchandra Jadhav,

r/o. Hatkarwadi with the appellant on 12.07.1996

at about 8:00 a.m. On 15.07.1996 at about 8.00

a.m., the informant went to the house of one

Namdeo Rakhmaji Bhandare along with his sons-in-

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law namely, Chandu Kondiba Gaikwad and the

deceased Narsing Ramchandra Gaikwad. They sat

under the shed that was in front of the house of

Namdeo Bhandare. No sooner they sat there than the

appellant and other accused persons came there and

started pelting stones against them. The first

stone was thrown by the appellant towards the

informant, which he evaded by moving himself

aside, however, that stone hit on the left side of

head of the deceased Narsing. The deceased Narsing

shouted and fell on the cot. He died

instantaneously. Thereafter, stones were thrown on

the person of the informant also. He sustained

bleeding injuries on his head. Another son-in-law

of the informant concealed himself inside the

house of Namdeo Bhandare. He also sustained

injuries on his back, right knee and both of the

arms. The informant was taken to Primary Health

Centre at Rampuri for treatment. His FIR was

recorded in Police Station, Manwat on 16.07.1996

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at 1.00 a.m. On the basis of that report, Crime

No.91 of 1996 came to be registered for the

offences punishable under Sections 302, 337, 324

read with Section 149 and also under Sections 147

and 148 of the I.P.C. The inquest on the body of

the deceased Narsing was prepared. His dead body

was referred to the Medical Officer, Primary

Health Center, Rampuri, for post mortem. Spot

panchnama was prepared. Statements of the

witnesses were recorded. The clothes of the

deceased were seized under a panchnama. The blood

samples of the deceased were collected by the

Medical Officer. The seized articles were sent to

the Chemical Analyzer for analysis and report. The

Medical Officer noticed four external injuries on

the head of the deceased Narsing. He opined that

Narsing died due to multiple fractures of skull

bones extensive intra-cranial hemorrhage leading

to shock and death. After completion of the

investigation, the appellant and other 26 accused

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persons came to be charge-sheeted for the above

mentioned offences.

4. The learned trial Judge framed charge

against all the accused persons for the above-

mentioned offences and explained the contents

thereof to them in vernacular. Thy pleaded not

guilty and claimed to be tried. Their defence is

of total denial and false implication.

5. The prosecution examined the informant at

Exh.49 and his wife Nilawati (PW 3) (Exh.55) to

prove the occurrence of the incident. The

prosecution further examined the Medical Officer

Dr.Joshi (PW 1)(Exh.47), who conducted post-mortem

examination of the deceased Narsing, and the

Investigating Officer API Sangale (PW 4) (Exh.56).

6. Dr.Joshi (PW 1) states that he conducted

post-portem of the body of the deceased Narsing on

16.07.1996 and found the following four external

injuries :-

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                       i)           Lacerated   wound   on   left 

temporal region transverse 1½" x ½"

blood clots over the would.

ii) Contusion on the left

frontal region ½" x ½" transverse.

iii) Lacerated would on the left

occipital region ½" x ½" x ½"

transverse blood clots over the wound

seen.

                       iv)          Lacerated   wound   on   right 

                       occipital   region   ½"   x   1/8" 

                       transverse." 

Dr.Joshi states that above-mentioned injuries were

ante-mortem. He found the following internal

injuries :-

i) On head multiple fracture on the

left temporal bone of the skull. This

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fracture corresponds with external

injury No.1 on the head.

                       ii)      Brain 

                                1)  Extra-dural hemorrhage;



                                2)       Rupture        of           middle 
                                meningeal artery;

                                3)       Diplopic veins


                                4)       Portion   of   dura   matter 
                                is torn off;

                                5)       Blood   clots   seen   all 
                                over   the   brain   matter   and 
                                also   in   the   base   of   the 
                                brain   about   10   CC.   Clotted 
                                blood   seen   in   the   brain 
                                cavity. Right  side  of  heart 
                                full   of   blood,   left   side 
                                empty.
                        

7. Joshi (PW 1) opined that the deceased

Narsing died of shock due to multiple fractures of

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skull bones extensive intra-cranial hemorrhage.

He states that injury no.1 found on the body of

the deceased Narsing was sufficient in the

ordinary course to cause his death. He states that

the said injury was possible by a hard and blunt

object like stone that was shown to him before the

Court. However, he expressed inability to state

whether all the injuries found on the head of the

deceased Narsing were possible by one stroke of

stone or by different strokes.

8. The learned Counsel for the appellant

submits that all the above-mentioned injuries,

though are on the head, injury nos.1 to 3 are on

the left side, while injury no.4 was on the right

side. He further submits that injury nos.1 to 3

are at different places on the left side of the

head. All these injuries were not possible by a

single stroke of stone. Therefore, according to

him, the case of the prosecution that the deceased

Narsing suffered head injury because of a single

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stroke of stone that was allegedly thrown by the

appellant, cannot be accepted.

9. The learned APP submits that the evidence

of the informant is natural and probable. The

evidence is sufficient to establish the guilt of

the appellant for the above-mentioned offence. It

is corroborated by the Medical Officer. She

submits that the learned trial Judge has rightly

appreciated the evidence and rightly held the

appellant guilty of the above-mentioned offence.

10. It has come in the evidence of the

informant (PW 2) that at the time of the incident,

the deceased Narsing, Chandu Gaikwad and himself

were sitting in front side of the house of Namdeo

Bhandare. He then states that all the accused

persons came there and pelted stones towards them.

One of the stones thrown by the appellant hit on

the head of Narsing, due to which he sustained

injuries and fell down. It has come in his cross-

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examination that from the place where they were

sitting, they were not able to see anything

outside. They were sitting inside the thrashed

partition (called Kud). He specifically states

that when the deceased Narsing was hit by stone,

he was in sitting condition. However, he changed

his version subsequently and stated that when the

stone pelting started, all of them got frightened

and started running away. He admits that the

deceased Narsing sustained injury, while he was

running away.

11. The learned Counsel for the appellant

submits that the evidence of the informant in

respect of the events took place at the time of

the incident, is not at all consistent. He submits

that if it is accepted that the informant and the

deceased Narsing were sitting at the place from

where nothing was visible from outside then it

cannot be accepted that they had seen as to who

was pelting stone and if it is accepted that after

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they noticed that the stones were being pelted,

they started running and at that time, the

deceased Narsing sustained injury, then also, it

cannot be accepted that they had an occasion to

see as to who actually threw the stone that hit on

the head of the deceased Narsing. I find substance

in this contention.

12. When the informant admits that after

stone pelting started, all of them got frightened

and started running, the version of the informant

that he saw the appellant throwing the stone,

which ultimately hit on the head of the deceased

Narsing, cannot be believed.

13. The informant alleged that the appellant

threw stone that hit on the head of the deceased

Narsing. As seen from the medical evidence, there

were four external injuries at four different

places on the head of the deceased Narsing. Their

locations themselves would be sufficient to

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indicate that in all probabilities, they must have

been caused by four different strokes of stone.

When there were allegedly 27 accused persons

involved in the alleged pelting of stones, it is

difficult to connect the appellant only with

injury no.1 sustained by the deceased Narsing,

which, according to Mr.Joshi was sufficient in

ordinary course to cause his death. It is likely

that the said injury might have been caused

because of the stone thrown by some other accused

person and not by the appellant only. There is no

positive and clinching evidence on record to show

that the said injury was caused by the stone

allegedly hit by the appellant only.

14. Nilawati (PW 3) was not present at the

time of the incident. She states that when she

came to know about the incident, she went to the

spot of the incident from the agricultural land

that was adjacent to the village. As such, her

evidence is of no use to the prosecution to

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connect the appellant with the incident in

question.

15. Though the incident took place in front

of the house of Namdeo Bhandare, he has not been

examined by the prosecution. It is stated that the

wife of of Namdeo Bhandare namely, Annapurna and

one Suman were present at the time of the

incident, but both of them have not been examined

as witnesses. The prosecution has not assigned any

reason for non-examination of these witnesses.

There is no independent corroboration to the

version of the informant. Moreover, the evidence

of the informant that the deceased Narsing

sustained head injury, causing his death, because

of the stone thrown by appellant no.1, is not

believable. In the circumstances, it cannot be

said that the prosecution established the guilt of

the appellant for above-mentioned offence beyond

reasonable doubt.

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16. The learned trial Judge did not

appreciate the evidence on record properly and

wrongly held that the prosecution established

guilt of the appellant for the offence of culpable

homicide not amounting to murder punishable under

Section 304 Part II of the I.P.C. The impugned

judgment and order are not sustainable. The appeal

is liable to be allowed.

17. In the result, I pass the following

order:-

(i)            The appeal is allowed.

(ii)           The impugned judgment and order passed in 

Sessions Trial No.110 of 1998 are quashed and set

aside.

(iii) The appellant is acquitted of the offence

punishable under Section 304 Part II of the I.P.C.

(iv) Bail bonds of the appellant stand

cancelled. He is set at liberty.

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(v)            Fine   amount   of   Rs.3,000/-   deposited   by 

the appellant be refunded to him.

[SANGITRAO S. PATIL, J.] kbp