Laldas Ganpatrao Katole vs Govt.Of ...
2017 Latest Caselaw 7308 Bom

                                                                                                             CRI.APPEAL665.03
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                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         BENCH AT NAGPUR, NAGPUR.
                                                    ...

                                                 CRIMINAL APPEAL NO. 665/2003

            Laldas s/o Ganpatrao Katole
            Aged about 28 years, occu : Agriculturist
            R/o Hiwarmath, Dist. Nagpur.                                                          ..           APPELLANT

                        versus

            The State of Maharashtra
            Through P.S.O.
            Police Station Jalalkheda
            Dist. Nagpur .                                                                         ..         RESPONDENT

...............................................................................................................................................
            Shri N D Khamborkar, Advocate for the appellant
            Mr. N.H.Joshi, Additional Public Prosecutor for respondent -State
................................................................................................................................................

                                                                           CORAM: MRS.SWAPNA JOSHI, J.

DATED: 20th September, 2017

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 07.11.2003 in

Sessions Trial No.86/2001 delivered by the learned 3rd Ad-hoc Additional

Sessions Judge, Nagpur, convicting the appellant (hereinafter referred to as 'the

accused') for the offence punishable under section 304 Part-II of the Indian Penal

Code and sentencing him to suffer R.I. for four years and to pay a fine of Rs.

2000/-, in default, to suffer S.I. for six months, the present Appeal is filed.

2. Brief facts giving rise to the instant Appeal may be summarized as

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under:-

Shivram and accused Laldas were adjoining land holders. There

was a dhura in between their fields. Similarly, there were babool trees on the said

dhura. The accused and the deceased were on inimical terms, on the point of

dhura and Babool trees. On the day of the incident i.e. 13.5.2000 at about 11.00

am, while Shivram was cutting branches of tree at the dhura i.e. boundary of the

field, at that time, his servant Ashok (PW5) was working in his field. The

accused was also working in his field. As Shivram was cutting babool tree

branches, the accused objected for the same. On this issue, quarrel took place

between the accused and Shivram. At that point of time, accused gave a blow of

stick on the head of Shivram, as a result, he fell down and sustained bleeding

injury on his head. The people from neighbouring fields gathered at that place. In

the meantime Ashok (PW5) intimated the family members and Sheela (PW 6),

who is the daughter-in-law of Shivram. The neighbours of the Shivram too

reached at that place. Accused tried to give water to the deceased. Shivram was

then shifted by a bullock cart to his village and thereafter to the hospital where

he was declared dead. It is the case of the prosecution that accused visited

Jalalkheda Police Station and lodged his report thereby confessing his guilt. On

the basis of the report given by the accused, an offence was registered for

offence punishable u/s 302 of the IPC.

3. At the relevant time, Police Inspector-Namdeo Ingole (PW10) was

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attached to Jalalkheda Police Station. He recorded the spot panchnama and

referred the dead body of Shivram to the hospital for post-mortem. PW10 then

arrested the accused. The clothes of the accused were taken charge. At the

instance of the accused, a babool stick was seized by the police under

Panchnama. The seized articles were sent to the C.A. office for analysis. After the

investigation was over, charge-sheet was filed in the court of learned JMFC. The

case was committed to the court of Sessions. The learned Additional Sessions

Judge framed the charge. On appreciation of the evidence and after hearing both

sides, the learned trial Judge convicted the accused, as aforesaid.

4. Heard Shri N.D. Khamborkar, the learned counsel for the appellant/

accused and Shri N.H. Joshi, the learned A.P.P. for the respondent -State.

5. The prosecution mainly relied upon the testimony of PW1-

Dr.Ravindra Ade, Medical Officer, PW 6-Sheela, daughter-in-law of the deceased,

PW 9-Rajnarayan Mishra and PW 10-Namdeo Ingole, both Investigating officers.

6. In order to prove that it was a homicidal death, the prosecution

relied upon the testimony of Medical officer-Dr.Ravindra Ande (PW1) who

conducted the autopsy on deceased-Shivram.

On external examination, he noticed the following injuries :-

1. Right eye black swollen, blood oozing from left ear and both

nostrils, position of tongue normal,

In Column No.17, following external injuries were noted:

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1. Contusion of size 2.5x2.5cm over left tempo parietal bone

above left ear with extravaccasation of blood in skin with infiluation of

subcutaneous tissues with blood figure is also drawn regarding injury

-1, age of injury 20 to 24 hrs, object hard and blunt.

2. Fracture right tempo parietal bone of size 5 x 5 circumference

fracture lines radiates towards ferental bone, age 20 to 24 hours.

Object hard and blunt, nature grievous injury.

3. Contused abrasion 5x3 cm over left side of back age about 20

to 24 hrs. object hard and blunt.

On internal examination following injuries were mentioned in

Column No.19:

1. Fractural of right tempo parietal bone 5 x 5 cm circumference

fracture lines radiates towards frontal bone as per figure no.II. Nature

of injury dangerous (grievous).

2. Brain intra cerebral haemorrhage present profusely over right

side of brain beneath skull (right tempo parietal) due to injury to

brain and its membrane.

3. Slight intracerebral haemorrhage present over left side. No

any abnormality seen. All organs are pale.

According to PW1-Dr.Ravindra, the cause of death was due to intra

cranial haemorrhage due to forceful impact of hard and blunt object over the

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skull. However PW1 stated that death may be due to cardio respiratory arrest

due to haemorrhagic shock. PW1 stated that exact cause would be revealed

after C.A. of viscera. He prepared the PM notes Exh.18. On going through the

CA Report he stated that the CA report rules out the possibility of poison and he

confirmed his opinion. On examination of the stick PW1 found the blood stains.

According to him, the injuries over the skull was possible by the stick. Similarly,

the injury Nos.1 to 3 were possible by a stick. He issued the report accordingly

(Exh.20). It is significant to note that during the cross-examination PW1 stated

that the injuries were possible if the person falls from tree on branches and then

down, but there would be other fracture or dislocation. He however stated that he

had not examined the spinal cord of the deceased.

7. Thus, the testimony of PW1 does not rule out the possibility of the

deceased falling from tree and receiving injuries. No doubt, the Medical Officer

has examined the weapon i.e babool stick and has opined that the injury over the

skull is possible by stick and the death is possible by hard and blunt object. He

issued the medical certificate (Exh.20). According to him, the blood stains were

found on the Babool stick. In this regard, recovery the CA report (Exh.42)

reveals that no blood was found on the wooden stick. Thus, the testimony of the

Medical Officer although indicates that the injury can be caused by a stick, the

C.A. report does not reveal blood stains on the said stick.

8. At this juncture, the learned counsel for the appellant/accused

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vehemently argued that the learned trial Judge has not considered the aspect

that the homicidal death has not been proved by the prosecution and the testimony

of the Medical Officer PW1 reveals that the injury can be caused due to fall from

tree. He further contended that the eye witness PW5-Ashok, who has not

supported the case of the prosecution had, in fact, his testimony shows that the

accused gave him a call that his master had fallen down from the tree. He

contended that actually the death of the accused was caused due to falling from

the tree and as such, the persons working in the field at the time of the incident,

they had not supported the case of the prosecution that deceased died due to the

assault by the accused by means of Babool stick. He pointed out that even the

discovery and recovery of Babool stick has not been proved by the prosecution

beyond reasonable doubt. Thus, he contended that the prosecution has failed to

prove that it is a homicidal death and it was in fact an accidental death.

9. Reverting back to the prosecution case, PW9-Mishra deposed that

on 13.5.2000 the accused visited the Police Station, Jalalkheda and has given an

oral report that the land of Shivram is adjacent to the land accused and there is a

babool tree on the border of the said dhura of that land and because of that

quarrel took place and in that quarrel Shivram pelted stone on accused and

thereafter accused assaulted Shivram by babool stick. The assault was on the

left side of his head and while taking him in the hospital Shivram died. The

report was marked as Exh.31. So far as the report is concerned, it is significant

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to note that under the provisions of Section 25 of the Evidence Act, confession of

the accused before the police is hit by Section 25 of the Evidence Act and it

cannot be read in evidence as such.

10. Apart from the said evidence, the prosecution relied upon the

testimony of PW 6-Sheela, who is the daughter-in-law of the deceased. According

to her, on the fateful day, her servant Ashok (PW5) and Shivram went to the field

in the morning. At about 11.30, Ashok came home and informed her that her

father-in-law was beaten by Laldas/accused. On this, she along with Kundabai,

Dipak, Ashok, Subhash proceeded to the field. A babool stag was lying near the

dhura and her father in law was laying down and blood was oozing from his

mouth, nose and eyes . They offered water to him, however he could not drink it.

PW6-Sheela stated that she had not seen the accused at that time. Shivram was

taken in a bullock cart to his house and thereafter shifted to Hospital, however he

was declared dead. From the testimony of PW6 it can be gathered that Ashok

(PW 5) informed that the deceased was beaten by the accused. However there

is no corroboration to the testimony of PW6-Sheela as PW 5-Ashok turned

hostile. She has not supported the case of the prosecution, so far as actual

incident is concerned.

11. According to PW5-Ashok, on that day he had come to his

employer's field. Shivram was cutting branches of babool tree and he was

ploughing the field and the accused was in his field. The accused called him and

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said that his master had fallen down from the tree. Thereafter, the family

members of Shivram came to that place and took him to their house. PW5

specifically denied that the accused has assaulted Shivram by means of babool

stick. Thus, the testimony of PW 5 does not throw any light on the aspect of the

accused assaulting the deceased by means of babool stick. The testimony of

PW5-Ashok and PW6-Sheela is of no assistance to the prosecution case.

12. The prosecution further relied upon the testimony of PW10-

Namdeo Ingole , Police Inspector. According to him, on 13.5.2000, the accused

while in custody gave information that the stick of babhool was thrown in the

field and he showed his willingness to produce the said stick. The memorandum

panchnama was drawn accordingly at Exh.40. PW 10 stated that the stick was

concealed in the heap of branches of babool tree. He took charge of the said

stick under panchnama (Exh.48). The testimony of PW10 reveals that the babool

stick was kept in a heap of branches of babool tree. Significantly, it cannot be

termed as a disclosure of the stick i.e. weapon as such as the said place was

an open space and accessible to public. Thus, the seizure of the stick at the

instance of the accused has not been proved by the prosecution beyond

reasonable doubt and it cannot be termed as discovery under section 27 of the

Evidence Act.

13. With regard to the confession made by the accused vide F.I.R.

(Exh.32) , an useful reference can be made to the judgment reported in (1994) 2

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SCC 467 in the case of Bherusingh vs.State of Rajasthan, wherein the Hon'ble

Apex Court observed thus:-

17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 CrPC is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non- confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act.

14. The Hon'ble Supreme Court in Bandlamuddi Ramaiah and others

vs. State of A.P., reported in (1996) 11 SCC 133 observed thus,

"17. The legal position, therefore, is this: A statement contained in the FIR furnished by one of the accused in the case cannot, in any manner, be used against another accused. Even as against the accused who made it, the statement cannot be used if it is inculpatory

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in nature nor can it be used for the purpose of corroboration or contradiction unless its maker offers himself as a witness in the trial. The very limited use of it is as an admission under section 21 of the Evidence Act against its maker alone unless the admission does not amount to confession."

15. The Hon'ble Apex Court in Aghnoo Nagesia vs.State of Bihar,

reported in AIR 1966 SC 119, in paragraph no.10 observed thus:

"10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under s. 157 of the Evidence Act or to contradict him under s. 145 of the Act, if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s. 8 of the Evidence Art. If the information is a non-confessional statement, it is admissible against the accused as an admission under s. 21 of the Evidence 139 Act and is relevant."

16. In the instant case, on applying the principles laid down by the

Hon'ble Apex Court in the above-mentioned cases, it is found that from the FIR

the only circumstance which can be utilised against the appellant is motive in the

crime, PW5 proceeded towards the village. The accused along with others, put

Shivram in bullock-cart and took him to village. The other facts disclosed in the

FIR are in nature of confession made to the police (PW9) which cannot be used

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against the appellant. Thus, the FIR lodged by the accused is hit by Section 25 of

the Evidence Act and cannot be used against the appellant.

17. Apart from the complaint lodged by the accused which is not

admissible u/s 25 of the Evidence Act, the prosecution has failed to produce any

convincing evidence on record to show that the accused committed the offence

punishable u/s 304 Part II of the IPC. Thus, the learned trial Judge has committed

an error in convicting the accused The judgment, therefore, needs to be set

aside. Hence the order :-

ORDER

i) Criminal Appeal No. 655/2003 is allowed.

ii) The judgment and order dated 07.11.2003 in Sessions Trial No.86/2001

delivered by the learned 3rd Ad-hoc Additional Sessions Judge, Nagpur,

convicting the appellant for the offence punishable under section 304 Part-II of

the Indian Penal Code is hereby set aside.

(iii) The appellant is acquitted of the offence punishable under section 304 part

II of the IPC.

iv) The bail bond of the appellant shall stand cancelled.

JUDGE

sahare