Bombay High Court
Vijay S/O Gangadhar Kendre vs The State Of Maharashtra on 1 September, 2017
Bench: Sangitrao S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.349 OF 2015
Vijay Gangadhar Kendre
Age: 25 years, Occu.: Agri.,
R/o Kendrewadi, Tq. Ambajogai,
Dist. Beed. ..APPELLANT
(Orig.Accused No.1)
VERSUS
State of Maharashtra,
Through Police Station Officer,
Police Station Dharur,
Tq. Dharur, Dist. Beed. ..RESPONDENT
----
Mr. N.S. Ghanekar, Advocate for the appellant
Ms. G.O. Wattamwar, A.P.P. for the respondent/State
----
CORAM : SANGITRAO S. PATIL, J.
RESERVED ON : 21st AUGUST, 2017
PRONOUNCED ON: 1st SEPTEMBER, 2017
JUDGMENT :
The appellant (original accused no.1) has
taken exception to the judgment and order dated 26th
March, 2015 passed in Sessions Case No. 71 of 2012 by
the learned Additional Sessions Judge, Majalgaon
whereby he has been convicted for the offence
punishable under Section 304 Part II of the Indian
Penal Code ("I.P.C.", for short) and sentenced to
2 CRIAPEAL-349-2015
suffer rigorous imprisonment for seven years and to pay
fine of Rs.2,000/-, in default, to suffer simple
imprisonment for three months.
2. It is the case of the State/prosecution that on
19th August, 2012, at about 03.00 p.m., the deceased -
Angad Gangadhar Kendre was sleeping on the Varanda of
the Zilla Parishad Primary School of village Kendrewadi.
One Baliram Kendre put a small stick in the ear of the
deceased - Angad, due to which he got up from the sleep.
He was annoyed. He threw his shoe towards Baliram
Kendre which hit on the person of one Gangadhar Kendre,
due to that Gangadhar Kendre started hurling abuses
against the deceased - Angad. The deceased - Angad also
hurled abuses against Gangadhar Kendre. At that time,
the appellant Vijay and his brother Ajay (juvenile), who
are the sons of Gangadhar Kendre, came there and
questioned the deceased - Angad as to why he was hurling
abuses against their father. The appellant then hit the
cricket bat on the head of the deceased - Angad, due to
which he fell down on the ground. Ajay also inflicted
cricket stump blow on the head of the deceased - Angad.
3 CRIAPEAL-349-2015
Thereafter, both of them ran away. One Navnath Kendre
and Neminath Kendre came there and took the deceased -
Angad for medical treatment to Ambajogai. The wife of
the deceased - Angad also accompanied him while going to
Ambajogai. The deceased was admitted in the S.R.T.R.
Hospital, Ambajogai. The doctors advised them to shift
the deceased - Angad to Aurangabad for further
treatment. On the next day of the incident, the
deceased succumbed to the injuries on the way to
Aurangabad.
3. Sugriv (P.W.9) - son of the deceased - Angad
was present at the time of the incident. He narrated
about the incident to P.H.C. Manik Rathod (P.W.1), who,
in turn, lodged the F.I.R. in respect of the incident in
Police Station, Dharur on 20th August, 2012 at about
07.00 p.m.
4. On the basis of the report lodged by P.H.C.
Rathod (P.W.1), Crime No. 114 of 2012 came to be
registered against the appellant and his minor brother -
Ajay for the offence punishable under Section 302 read
4 CRIAPEAL-349-2015
with Section 34 of the I.P.C. The investigation
followed. The Investigating Officer prepared the
inquest panchnama in respect of the body of Angad and
also the spot panchnama. Postmortem of the dead body of
the deceased - Angad was conducted in S.R.T.R. Hospital,
Ambajogai. The medical officer opined that the deceased
- Angad died due to hemorrhage and shock due to injury
to the brain. The statements of witnesses were
recorded. The cricket bat and stump came to be
recovered at the instance of the appellant. After
completion of the investigation, the appellant came to
be charge-sheeted for the offence punishable under
Section 302 read with Section 34 of the I.P.C. Since
another accused - Ajay, brother of the appellant was
juvenile, a separate charge-sheet came to be filed
against him before the Juvenile Justice Board.
5. The learned Trial Judge framed the charge
against the appellant for the offence punishable under
Section 302 read with Section 34 of the I.P.C. vide Exh.
10 to which the appellant pleaded not guilty and claimed
to be tried. His defence is of total denial and false
implication on account of the previous rivalry.
5 CRIAPEAL-349-2015
6. The prosecution examined ten witnesses to
establish the guilt of the appellant for the above
mentioned offence. After evaluating the evidence of the
prosecution, the learned Trial Judge held the appellant
guilty of the offence of committing culpable homicide
not amounting to murder made punishable under Section
304 Part II of the I.P.C. and accordingly convicted and
sentenced him for the said offence as stated above.
7. The learned Counsel for the appellant submits
that the case of the prosecution is depending on the
sole eye witness viz. Sugriv (P.W.9), who is none other
than the son of the deceased - Angad. Though
independent witnesses were available, none has been
examined by the prosecution. The evidence of Sugriv
(P.W.9) suffers from omissions and improvements. It
does not inspire confidence. He further submits that
there has been delay of one day in lodging the F.I.R.
which has not been explained by the prosecution. Sugriv
- (P.W.9) did not lodge the F.I.R. There is no
explanation as to why P.H.C. Rathod (P.W.1) lodged the
F.I.R. He submits that one Captain Lamb had given
6 CRIAPEAL-349-2015
information about the incident to the police station on
20th August, 2012 itself, however, the said witness has
not been examined by the prosecution. According to him,
the source of information about the incident, as stated
by P.H.C. Rathod (P.W.1), is not believable. No
explanation is given as to why the statement of Sugriv
(P.W.9) was not recorded on 19th August, 2012 or 20th
August, 2012. The delay in recording his statement
creates suspicion about his presence at the time of the
alleged incident. He submits that the prosecution has
failed to establish the guilt of the appellant for the
offence of which he is convicted. According to him, if
the nature of the injuries found on the body of the
deceased - Angad and the object by which the said
injuries are stated to have been caused are considered,
the appellant cannot be attributed with the knowledge
that the injuries caused on the head of the deceased -
Angad would be sufficient to cause his death. According
to him, at the most, the offence under Section 326 of
the I.P.C. would be disclosed from the facts of the case
and the evidence on record. He, therefore, submits that
the appellant may be acquitted or in the alternate, he
may be convicted for the offence punishable under
7 CRIAPEAL-349-2015
Section 326 of the I.P.C. and may be sentenced to suffer
imprisonment which he has already undergone, i.e. from
20th August, 2012 till the date of disposal of this
appeal.
8. The learned A.P.P., on the other hand, submits
that the evidence of Sugriv (P.W.9) is quite natural,
probable and dependable. He sustained mental shock due
to the incident and therefore, he was required to be
admitted in the hospital. Consequently there has been
delay in recording his statement. He had narrated about
the incident to P.H.C. Rathod (P.W.1). Since Sugriv
(P.W.9) was not available, P.H.C. Rathod (P.W.1) lodged
the report against the appellant after knowing that
cognizable offence was committed. According to him,
after the incident, the family members of the deceased -
Angad were busy in extending medical treatment to him to
save his life. It is only after the death of Angad,
when he was being taken to Aurangabad from Ambajogai,
that they approached the police to move the criminal
machinery. He submits that the delay, in the
circumstances of the case, cannot be said to be fatal to
8 CRIAPEAL-349-2015
the prosecution. According to the learned A.P.P., there
was no reason for Sugriv (P.W.9) to state false against
the appellant. The evidence of Sugriv (P.W.9) itself is
sufficient to connect the appellant with the incident in
question. The medical evidence supports the
prosecution. The Trial Judge has rightly appreciated
the facts as well as evidence on record and has rightly
convicted the appellant for the above mentioned offence.
He, therefore, prays that the appeal may be dismissed.
9. Dr. Amit (P.W.2) (Exh.19) states that he
conducted postmortem of the body of the deceased - Angad
in S.R.T.R. Hospital, Ambajogai on 20 th August, 2012
between 4.50 p.m. to 5.45. p.m. and found the following
external injuries :-
1) Three stitch wounds over left side of
parieto temporal region, verticle in direction,
11 c.m. away from left mastoid process on
opening 4 c.m. x 0.5 c.m. in size, sub-scapular
haemorrhage present.
2) Contusion over right maxillary region
3 c.m. x 1.2 c.m. in size, verticle in
9 CRIAPEAL-349-2015
direction, 5 c.m. from right angle of mouth,
bluish in colour.
3) Contusion over right frontal region 1
c.m. x 0.5 c.m. in size, oblique in direction,
3 c.m. from glabella, bluish in colour, on
opening single lacerated wound present over
right frontal region 3 c.m. x 1 c.m. in size
obliquely downwards in direction, 3 c.m. from
glabella bluish in colour, edges inverted,
varying in direction.
4) Contusion over right toe 1 c.m. x 0.5
c.m. in size, horizontal in direction, bluish
in colour.
5) Swelling and blackening around left
eye.
10. Dr. Amit (P.W.2) states that the above injuries
were antemortem and caused by hard, blunt and sharp
objects. According to him, injury nos. 1 to 3 were
sufficient to cause death of the deceased - Angad. He
further states that internal examination of the body of
the deceased - Angad, exhibited the following
injuries :-
10 CRIAPEAL-349-2015
1) Subscapular haemorrhage with haematoma
over left parieto - temporal region, single
linear fracture over left parieto - temporal
region, horizontal in direction 11 c.m. in
length, 4 c.m. from left mastoid process.
2) Subdural haemorrhage sub arachnoid
haemorrhage intracarnial haemorrhage over left
prieto-temporal as well as on right frontal
region.
3) Anterior cranial fossa as well as
middle cranial fossa linear fracture present.
11. Considering the above mentioned injuries, Dr.
Amit (P.W.2) opined that the deceased - Angad died due
to haemorrhage and shock due to injury to brain.
Accordingly, he prepared memorandum (Exh. 20) of
postmortem. In his cross-examination, it was suggested
that the injuries found on the body of the deceased -
Angad were possible by falling down from motorcycle.
However, he denied that suggestion. There is nothing on
record to show that the injuries sustained by the
deceased - Angad were either suicidal or accidental.
11 CRIAPEAL-349-2015
Thus, the evidence of Dr. Amit (P.W.2) clearly shows
that the death of Angad was homicidal.
12. The prosecution is relying on the sole
testimony of Sugriv (P.W.9) (Exh.32), who is the son of
the deceased - Angad, to establish involvement of the
appellant in the incident in question. He deposes that
on 19th August, 2012, at about 3.30 p.m., the deceased -
Angad was sleeping on the Varanda of Zilla Parishad
Primary School at Kendrewadi. At that time, he was
playing alongwith some other children near the school.
One Baliram Kendre inserted a small stick in the ear of
the deceased - Angad. The deceased - Angad got up from
sleep and got annoyed. He threw his shoe towards
Baliram Kendre, which hit on the shirt of Gangadhar
Kendre, who is the father of the appellant. Therefore,
Gangadhar Kendre started hurling abuses against the
deceased - Angad. The deceased - Angad also hurled
abuses against Gangadhar and Baliram. At that time, the
appellant and his younger brother - Ajay came there and
questioned the deceased - Angad, as to why he was
abusing their father. Then immediately, the appellant
beat on the head of the deceased - Angad by means of a
12 CRIAPEAL-349-2015
cricket bat. Due to that, the deceased - Angad fell
down on the ground. Then Ajay also gave cricket stump
blow on the head of the deceased - Angad. Then both of
them ran away from the spot. This is what is the
account of the incident given by Sugriv (P.W.9).
13. The statement of Sugriv (P.W.9) was recorded by
P.I. Sudke (P.W.10) on 21st August, 2012 and by the
Judicial Magistrate First Class, Dharur on 27 th August,
2012. There were some minor omissions brought in the
cross-examination of this witness, which do not go to
the root of the incident in question. So far as the
role attributed by this witness against the appellant is
concerned, nothing has been brought in his cross-
examination to shatter his evidence.
14. The learned Counsel for the appellant submits
that Sugriv (P.W.9) is stated to have narrated about the
incident before P.H.C. Rathod (P.W.1), who lodged the
F.I.R. (Exh. 18). However, it is not explained by the
prosecution, as to why the F.I.R. was not lodged on the
basis of that statement in the name of Sugriv (P.W.9)
only and why it came to be lodged by P.H.C. Rathod
13 CRIAPEAL-349-2015
(P.W.1). He submits that the statement of Sugriv (P.W.9)
has been recorded by P.I. Sudke (P.W.10) on 21st August,
2012. He questioned as to why the statement of Sugriv
(P.W.9) was not recorded on 20th August, 2012 itself.
15. It has come in the evidences of P.H.C. Rathod
(P.W.1) and P.I. Sudke (P.W.10) that after receiving a
phone message from one Captain Lamb, they went to
village Kendrewadi alongwith police officers having
surnames Deshmukh and Chaudhary. P.H.C. Rathod (P.W.1)
has given their badge numbers as 650 and 331
respectively. P.H.C. Rathod (P.W.1) states that they
made enquiry about the incident with Sugriv (P.W.9), who
narrated about the cause of the injuries sustained by
the deceased - Angad. He states that at that time, the
dead body of the deceased - Angad was brought to the
village Kendrewadi. He prepared inquest panchnama
(Exh.16) of that body and referred it to S.R.T.R.
Hospital, Ambajogai for postmortem. P.I. Sudke (P.W.10)
and panch - Dhondiram (P.W.3) state that panchnama in
respect of the spot and seizure of shirt (Article 6) of
the deceased - Angad and samples of plain soil and blood
mixed soil from the spot of the incident was prepared on
14 CRIAPEAL-349-2015
that date between 2 p.m. and 3 p.m. It has come in the
cross-examination of P.I. Sudke (P.W.10) that on 20 th
August, 2012, the witnesses were crying and therefore,
he could not record their statements on that date. It is
quite natural for Sugriv (P.W.9), who was aged about 13
to 14 years at the time of the incident, to be under a
great sorrow because of the unnatural death of his
father. It has come in his cross-examination that after
he came to know at about 2 p.m. about the death of his
father - Angad, he suffered from giddiness and was
required to be shifted to Adas for medical treatment.
Then, within half an hour, he came back to village
Kendrewadi. Considering the age of this witness and the
effect of shock because of the unnatural death of his
father on his mind, the version of P.I. Sudke (P.W.10)
that because the said witness was crying, he could not
record his statement on that date, being natural and
probable, will have to be accepted and, accordingly
accepted. After coming to know about the incident,
considering the fact that Sugriv (P.W.9) was not in a
position to lodge the F.I.R. on that day, it seems that,
in order to set the criminal machinery into motion,
P.H.C. Rathod (P.W.1) lodged the F.I.R. Thus, there is
15 CRIAPEAL-349-2015
sufficient explanation coming in the cross-examination
of this witness for not lodging the F.I.R. on the name
of Sugriv(P.W.9) on 20th August, 2012.
16. It has come in the evidence of P.I. Sudke
(P.W.10) and Dhondiram (P.W.3) that they prepared
panchnama (Exh.22) in respect of the spot of the
incident which was shown by Sugriv (P.W.9). Sugriv
(P.W.9) also states that he showed the spot of the
incident to the police. Blood mixed soil was collected
from that spot. C.A. report (Exh.39) shows that the
blood having group "O" was found in that sample of
earth. Thus, the spot of the incident was duly proved
by the prosecution.
17. The prosecution examined Navnath Kendre (P.W.7)
(Exh.27) who happened to be an eye witness to the
incident. However, he did not support the prosecution.
It has come in his cross-examination that the appellant
is the son of his cousin uncle and that he has good
relations with the appellant. He could not assign any
reason, as to why the police recorded the contents of
portions marked as Exhs. 37 and 38 in his statement. It
16 CRIAPEAL-349-2015
is, thus, clear that he tried to save the appellant and
therefore, did not support the version of Sugriv
(P.W.9). Any way, his evidence is of no use to the
prosecution.
18. It has come in the evidence of Sugriv (P.W.9)
that at the time of the incident, about 5 to 7 persons
were present there. However, he could not tell the
names of those persons. The learned Counsel for the
appellant submits that though the independent witnesses
were available, they were not examined by the
prosecution. In my view, in the facts of the present
case, the said contention cannot be accepted. The
prosecution has tried to examine an eye witness -
Navnath Kendre (P.W.7), however, he turned hostile and
did not support the prosecution. Now a days, it is a
common tendency that third persons do not come forward
to support the prosecution in order to save themselves
from the wrath of the accused. The evidence of Sugriv
(P.W.9) is quite natural and probable. Considering his
age, it cannot be said that he would leave the real
culprits of the deceased - Angad scot-free and falsely
implicate the appellant. If he had the tendency to
17 CRIAPEAL-349-2015
speak false, he would have implicated the father of the
appellant also, who was very much present at the spot of
the incident and because of his quarrel with the
deceased - Angad, the incident took place. This
circumstance itself is sufficient to lend assurance to
the fairness and truthfulness of Sugriv (P.W.9). In my
view, the sole testimony of Sugriv (P.W.9) creates a
great confidence. It is corroborated by the medical
evidence. It cannot be said that he falsely implicated
the appellant in the incident in question. In the
circumstances of the case, lodging of the F.I.R.
(Exh.18) by P.H.C. Rathod (P.W.1), on the basis of the
cryptic information received from Sugriv (P.W.9), to set
the criminal machinery in motion, cannot be viewed with
suspicion.
19. It has come in the cross-examination of Sugriv
(P.W.9) that the police had taken away the seized bat
and stump on the very day, on which the funeral of the
deceased - Angad was performed i.e. on 20 th August, 2012.
If that be so, the evidence of Shivaji Mundhe (P.W.8)
and P.I. Sudke (P.W.10) about the discovery of cricket
bat (Article 2) and cricket stump (Article 3) vide
18 CRIAPEAL-349-2015
panchnama (Exh.31) on 25th August, 2012 in pursuance of
memorandum (Exh.30) of the statement of the appellant,
cannot be believed.
20. There is positive and dependable evidence of
Sugriv (P.W.9) that the appellant hit cricket bat on the
head of the deceased - Angad due to which the deceased -
Angad sustained serious head injury and fell down on the
ground. The medical evidence shows that the injury on
the head of the deceased - Angad was possible by hard,
blunt and sharp objects. The cricket bat is certainly a
hard and blunt object. It seems that in respect of the
sutured injury, Dr.Amit (P.W.2) seems to have added that
the injuries found on the head of the deceased - Angad
were possible by sharp object also in addition to hard
and blunt object. He states that injury nos. 1 to 3,
which were grievous in nature, were sufficient to cause
death of the deceased - Angad. It is, thus, clear that
the death of the deceased - Angad was the direct result
of the injury sustained on his head because of the blow
of cricket bat given by the appellant.
21. The facts on record clearly show that the
incident took place on a very trivial ground. There was
19 CRIAPEAL-349-2015
no predetermination to cause death of Angad. The
incident took place on the spur of the moment. The
contention of the learned Counsel for the appellant that
the injury sustained by Angad on his head and the
circumstances in which it was caused, at the most, would
disclose the offence under Section 326 of the I.P.C. He
submits that the appellant cannot be attributed with the
knowledge that the said injury might cause death of
Angad. He, in the alternate, submits that the
appellant, at the most, could be convicted for the
offence under Section 326 of the I.P.C. I am not
inclined to accept this contention. When the appellant
gave the blow of cricket bat on the head i.e. the vital
part of the body with such a force that because of that
blow, the deceased - Angad instantaneously fell down on
the ground, the appellant certainly can be attributed
with the knowledge that such forceful blow of cricket
bat on the head of the deceased - Angad would cause his
death. The learned Trial Judge, therefore, rightly
acquitted the appellant of the offence punishable under
Section 302 of the I.P.C. and convicted him for the
offence punishable under Section 304 Part-II of the
I.P.C. Consequently, the conviction of the appellant
20 CRIAPEAL-349-2015
cannot be altered into the offence under Section 326 of
the I.P.C.
22. The learned Counsel for the appellant submits
that considering the age of the appellant, the
circumstances under which the incident took place and
the fact that the appellant is not a previous convict,
the sentence of imprisonment may be reduced to the
period of imprisonment, which he has already undergone.
The appellant was in jail from 20th August, 2012 till 22nd
November, 2012 and from 26th March, 2015 till today i.e.
02 years, 08 months and 07 days.
23. The learned A.P.P. opposed this contention. He
submits that considering the serious consequences of the
act of the appellant, he may not be shown more leniency
than that has been shown by the Trial Court.
24. The appellant has been convicted with rigorous
imprisonment for seven years and a fine of Rs.2,000/-
He has already deposited the fine amount. The appellant
was aged about 22 years at the time of the incident.
Considering his young age, the circumstances under which
21 CRIAPEAL-349-2015
the incident took place and the fact that he is not a
previous convict, in my view, some more leniency will
have to be shown to the appellant than that has been
shown by the Trial Court. According to me, if the
sentence of rigorous imprisonment for seven years is
reduced to the period of five years, it will meet the
ends of justice. The impugned judgment convicting the
appellant for the offence under Section 304 Part-II of
the I.P.C. call for no interference. However, the order
of sentence passed by the Trial Court will have to be
modified reducing the sentence of rigorous imprisonment
from seven years to five years. In the result, I pass
the following order:-
O R D E R
i) Criminal Appeal is partly allowed.
ii) The conviction of the appellant for the offence
punishable under Section 304 Part-II of the I.P.C. is
maintained as it is.
iii) The impugned order, sentencing the appellant to
suffer rigorous imprisonment for seven years, is
22 CRIAPEAL-349-2015
modified and he is sentenced to suffer rigorous
imprisonment for five years.
iv) The order of sentence of fine passed against
the appellant is maintained as it is.
v) The appellant be given benefit of set off in
respect of the period of his detention in connection
with this case.
vi) Criminal Appeal is accordingly disposed off.
[SANGITRAO S. PATIL]
JUDGE
SSD
