Bombay High Court
Puran Bhayyalal Sonwal vs State Of Maharashtra,Thr.Pso.Ps ... on 29 August, 2017
Bench: R. B. Deo
1 apeal475.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 475 OF 2002
Puran Bhayyalal Sonwal,
Aged about 24 years,
R/o Nawalbaba Ward, Pusad,
Tq. Pusad, District Yavatmal. .... APPELLANT
VERSUS
The State of Maharashtra,
through P.S.O. P.S. Pusad City,
District Yavatmal. .... RESPONDENT
______________________________________________________________
Shri H.G. Katekar, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 29
AUGUST, 2017.
th
ORAL JUDGMENT :
Challenge is to the judgment and order dated 23-8-2002
in Sessions Trial 60/1993 delivered by the II nd Ad hoc Additional
Sessions Judge, Pusad, by and under which the appellant is convicted
for offence punishable under Section 304 Part-II of the Indian Penal
Code and is sentenced to suffer rigorous imprisonment for seven years
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and to pay a fine of Rs.500/-.
2. Heard Shri H.G. Katekar, learned Counsel for the
appellant (appointed) and Shri A.V. Palshikar, learned Additional
Public Prosecutor for the respondent.
3. Shri H.G. Katekar, learned Counsel contends that the
judgment of conviction impugned is manifestly erroneous and
dangerously borders on perversity, I am inclined to agree.
The appellant was charged with offence punishable under Section 302
of the Indian Penal Code on the allegation that on 08-3-1993,
on Dhulivandan day, the appellant inflicted an elbow blow on the head
of one Kishor Tank and caused the death of Kishor.
4. The prosecution case is that one Suresh Tank and the
accused consumed liquor on Dhuliwandan day and went to the
residence of the concubine of the accused Puran. Suresh and accused
consumed Bhang (cannabis) at a grocery shop and the accused
thereafter went to meet his concubine. Suresh, who is the cousin
brother of the deceased Kishor, tried to dissuade the accused from
visiting his concubine. An altercation ensued between Suresh and the
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accused. Suresh took some blows in the altercation. One Mohan and
Kishor the deceased came to know of the altercation and arrived at the
spot. Kishor tried to intervene, however, in the process, he was
inflicted an elbow by the accused. Injured Kishor was taken to the
Government Hospital where he expired.
5. The inquest report (Exhibit 19) records that white fluid is
found oozing from nostrils which is stinking like intoxicant "jari".
6. P.W.1 Suresh states in the examination-in-chief that his
cousin brother Kishor suffered a single elbow blow on the head while
intervening between the altercation going on between P.W.1 and
accused. He admits that the deceased Kishor may have consumed
Bhang (cannabis) or liquor. He admits that the deceased was shorter
in comparison with the accused. P.W.1 was given a suggestion that the
deceased fell down and suffered an injury, which suggestion is denied.
P.W.2 is Vasanta, the elder brother of the deceased who is not an
eyewitness and is examined to prove the oral report (Exhibit 40) and
first information report (Exhibit 41). P.W.3 is Noorjahan Abbas. She,
as is revealed in the cross-examination, in her own words is "keep of
the elder brother of the deceased". She claims to be an eyewitness to
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the incident and states that the accused delivered an elbow blow to the
head of the deceased, the deceased fainted and was taken to the
hospital and was declared dead on admission. In the cross-
examination, P.W.3, however, admits that there was no scuffle
(gkrkikbZ) between the deceased and the accused and that there was
only a verbal altercation (ckpkckph) between the two. P.W.4 Dr. Ram
Rathod is the medical officer who conducted the post-mortem and
admits that the brain was found intact and no damage to the brain was
noticed in the post-mortem.
7. The learned Additional Public Prosecutor, does make a
spirited attempt to defend the judgment impugned. However, having
given my anxious consideration to the evidence on record, I am
compelled to hold that the judgment impugned is absolutely
indefensible.
8. It is irrefutable that P.W.1, accused and the deceased were
under the influence of either alcohol or other intoxicant. The only
credible part of the prosecution story appears to be that there was an
altercation between P.W.1 and the accused and the deceased tried to
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intervene. However, in view of the admission of P.W.3 Noorjahan
Abbas that there was no physical exchange of blows or physical
altercation between the accused and the deceased, the prosecution
version that the accused dealt a single elbow blow to the deceased is
unreliable to say the least. The cross-examination of P.W.1 would
further suggest that the version of P.W.1 that the accused gave an
elbow blow on the head of the deceased is improbable. The inquest
report is suggestive of the deceased having consumed liquor or other
intoxicant or both. The possibility, which is suggested to the two
eyewitnesses by the defence, that the deceased fell and hurt himself, is
a real possibility. The intoxicant which the deceased is likely to have
consumed could have played a role. In any perspective of the evidence
on record, I find it extremely hazardous to accept the prosecution
version that an elbow blow was inflicted on the deceased and that the
alleged single elbow blow caused death.
9. The judgment and order dated 23-8-2002 of the learned
IInd Ad hoc Additional Sessions Judge, Pusad in Sessions Trial
60/1993 is manifestly erroneous and is set aside. Appeal is allowed.
The bail bond of the accused stands discharged. The fine, if any, paid
by the appellant be refunded to him.
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The appeal is disposed of accordingly.
JUDGE
adgokar
