Amar Singh @ Angya Pita Pawara vs State Of Mah
2018 Latest Caselaw 591 Bom

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           IN THE HIGH COURT OF JUDICATURE AT B0MBAY
                     BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 220 OF 2006



          Amar Sing alias Angya Pita Pawara
          Aged about 26 years, occupation :
          R/o Fattepur Khalacha Pada,                  .. Appellant /
          Taluka Shirpur, District Dhule                  orig. accused

                  versus

          State of Maharashtra                         .. Respondent
                     -----
 Shree Joydeep Chatterji, Advocate for appellant
 Ms. S. S. Raut, Additional Public Prosecutor for respondent



                           CORAM :   SUNIL P. DESHMUKH AND
                                     SANGITRAO S. PATIL, JJ.


                           JUDGMENT RESERVED ON :   09-11-2017
                           JUDGMENT PRONOUNCED ON : 18-01-2018

 JUDGMENT (PER : SUNIL P. DESHMUKH, J.)

1. This is an appeal by the accused who has been

convicted by the Second Adhoc Additional Sessions Judge,

Dhule in sessions case no. 39 of 2004 for commission of

offence punishable under section 302 of the Indian Penal

Code, 1860 (''IPC'' for brevity) sentencing him to suffer life

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imprisonment and to pay a fine of Rs.5,000/- and in default

to suffer further rigorous imprisonment for a period of six

months.

2. The law has been set in motion upon a statement

recorded of Bhimsing Raja Pawara to the police head

constable on 07-01-2004 in cottage hospital, Shirpur, after

the endorsement by doctor on very day about patient being

fully conscious, that on 06-01-2004 around 7.00 p.m. while

he (Bhimsing Raja Pawara) had been returning from a

marriage with residents of his village, namely, Ratan Pawara

and Devising Pawara (P.Ws. 4 and 5 respectively), had seen

Shrawan Pawara of their village from whom Bhimsing was to

take back a gunny bag of maize which had been lent by him

to said Shrawan and had thus asked Shrawan to return the

same. At that time, Shrawan's brother Amshya @ Amarsing

Pita Pawara had come from behind him and started beating

Bhimsing with fists and kicks, abusing him and had pushed

him with force making him fall over a stone and had suffered

injury in the process. Immediately, Bhimsing had been

moved in a jeep by aforesaid persons to Cottage hospital for

treatment.

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 3.       Based on first information report,                P.N.C. came to be

registered with Police Station, Shirpur.

4. Dr. Surekha Deshpande (P.W.3) had treated Bhimsing

at Shirpur. Subsequently, Bhimsing had been taken to

government hospital at Dhule for treatment where he died on

09-01-2004.

5. Upon receipt of injury certificate of Bhimsing, on 09-

01-2004 crime no. 5 of 2004 was registered for offences

punishable sections 325, 323, 504 and 506 of IPC for having

voluntariy caused grievous hurt to Bhimsing and upon death

of Bhimsing, offence punishable under section 302 of IPC was

added.

6. Investigation was carried initially by police head

constable Borse of Shirpur Police Station (P.W.2). He prepared

spot panchanama, recorded statements of witnesses

Ratansing Pawara (P.W. 4), Devsing Pawra (P. W. 5) and

Hiraman. Upon receipt of death certificate of Bhimsing,

inquest panchanama (Exhibit - 18) and post mortem report

showing cause of death of Bhimsing being head injury,

further investigation was carried out by Chhagan Sitaram

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Devra, Police Inspector of Police Station, Shirpur (P.W. 8). A

map of the spot had also been prepared by Tahsildar. Clothes

of deceased Bhimsing were seized. The appellant had been

arrested on 09-01-2004. His clothes were also seized. The

clothes and stone were bearing blood stains.

7. After completion of investigation, charge-sheet had

been filed in the court of Judicial Magistrate, First Class,

Shirpur. Since appellant came to be charge-sheeted for

offence punishable under section 302 of IPC and said offence

being triable exclusively by Sessions Court, learned

Magistrate committed the case to the Court of Session.

8. Learned 2nd Adhoc Additional Sessions Judge

(hereinafter '' Trial Judge'' ) framed charge against appellant

at Exhibit 3 and explained contents of the same to him in

vernacular. The appellant pleaded not guilty and claimed to

be tried.

9. The prosecution has examined as many as eight

witnesses. Dr. Ajit R. Patil who is lecturer in Bhausaheb Hire

Medical College has been examined as P.W. no.1 at Exh.8. He

had conducted post mortem along with one Dr. S.C. Patil.

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Ratan Pawara and Devsing Bhil are examined as P. Ws. no. 4

and 5 at Exhibits - 24 and 25 respectively, Thansing Pawara is

examined as witness no. 6 at Exhibit 26. Mamadabai Pawara -

wife of deceased Bhimsing Pawara is examined at Exhibit 27

as witness no. 7. Chhagan Sitaram Devraj who was attached

to Shirpur Police Station as Police Inspector has been

examined as witness no. 8 at Exhibit 31, while police head

constables Yuvraj Borse and Vinayak Kulkarni are examined

as witnesses no. 2 and 3 at Exhibits 10 and 14 respectively.

10. The Trial Judge, as referred to above, on appreciation of

evidence held the appellant guilty of offence punishable under

section 302 of IPC and convicted and sentenced him as earlier

referred to.

11. Learned counsel Mr. Joydeep Chatterji appearing on

behalf of the appellants contends that appreciation of

evidence by Trial Judge has not only been erroneous but is

also a result of him being oblivious of lot of vital aspects. He

submits, it cannot be said that appreciation of evidence

corresponds to material on record. Very genesis of putting

law in motion eloquently and more than sufficiently bears

that no amount of evidence would lead to conviction and

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punishment awarded in the present matter. He submits, Trial

Judge had been in oblivion of requirements, constituting

alleged improved offence punishable under section 302 of

IPC, him having not considered the facts as have emerged,

the context, text and exceptions in law. The evidence amply

bears that witnesses were tutored and reasons therefor have

also come on record during the course of evidence. Further,

he submits, it has come on record that deceased had

consumed liquor and the injury suffered by deceased, is not

ruled out, can be caused to person of healthy stature as that

of the deceased as a result of falling on a hard, craggy or

blunt object. Even if it is assumed, according to him, that the

appellant had caused deceased to fall, alleged improved

offence cannot even be imputed. He submits that besides,

there have been lot of omissions which have emerged on

record in the evidence of so called eye witnesses and submits

that evidence of wife of the deceased making accusations

against the appellant has really ripped open the truth

requiring acquittal of the appellant. He submits that

appreciation of evidence by the Trial Judge tends to be

perverse.

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12. Learned Additional Public Prosecutor Ms. Raut supports

the order impugned and contents of the judgment, submitting

that learned Judge has taken into account all the relevant

aspects and evidence of eye witnesses who were present on

the spot and had rescued the victim. She submits, it clearly

emerges that the deceased had been hit by a hard, craggy or

blunt object i.e. stone by the appellant who had got enraged

upon demand by the victim for return of five year old debt of

one gunny bag maize. She further submits that human blood

stains have been found on the seized clothes and the hard

object - the stone. She submits that there is direct evidence

establishing the guilt of the appellant and for cogent reasons

Trial Judge has convicted and sentenced the appellant.

13. The incident had occurred in the evening of

06-01-2004. In his last statement recorded, Bhimsing has

said that there had been altercation and scuffle between him

and appellant over return of one gunny bag of maize lent by

him to the appellant's brother. Statement of the deceased

categorically refers to that the injury had been caused by fall

during scuffle. The statements of eye witnesses were

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recorded on 09-01-2004 and 10-01-2004 while the health

condition of Bhimsing had been deteriorating. It further may

have to be taken into account that the stone had been seized

on 10-01-2004.

14. Blood group of stains on Bhimsing's clothes depicts to

be 'A' whereas the report of the chemical analyzer does not

show any blood stains on seized clothes of appellant.

15. It has come on record that there has been a scuffle and

forceful push. It further appears that while two statements

of the witnesses were recorded, one on 09-01-2004 and one

on 10-01-2004, such recording was after considerable length

of time after the statement of Bhimsing was recorded in the

hospital.

16. Statements of the two eye witnesses recorded by

police show that Bhimsing in their presence had told his

relatives while he was taken to his house after he suffered

injury in the same fashion as they did to the police yet,

recorded first information does not depict the same at all.

17. There is nothing on record to show that the two

witnesses had narrated the incident to the relatives as

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described by them on 09-01-2004 or 10-01-2004 at any time

before, save statements made by some persons on

10-01-2004. If that had been so, an FIR ought to have been

and could have been filed with reference to such statements.

18. The aspect which requires consideration is that while

the two eye witnesses have stated that the incident had been

described by the deceased to his relatives after he was

immediately taken into his house after the incident as stated

by them yet, while statement of the deceased had been

recorded in the hospital, the same is wide apart as far as

cause of injury is concerned. If really deceased had narrated

the incident as per version of the eye witnesses, yet the same

was not informed to the police immediately.

19. Reading of evidence of witnesses Ratan and Devsing

does not inspire confidence, for, evidence of Devsing had

been absolutely dithering even in respect of schedule of

marriage and ceremonies and rituals and time of event of

marriage. Both the witnesses have been concurring on that

Bhimsing had consumed liquor and that there had been

scuffle between Bhimsing and appellant over demand of

gunny bag of maize, corroborating the statement of the

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deceased. There is different version by the eye witnesses in

their further statements in respect of hitting of stone.

20. Evidence of Ratan and Devsing also shows that

deceased Bhimsing had consumed liquor in marriage

celebration according to customs prevailing in the community.

The evidence on record sufficiently bears that the statements

by Ratan and Devsing have been an improvement over the

statement of the deceased which had been recorded while he

was taken to the hospital. Subsequent statements have been

made after health condition of deceased Bhimsing was

deteriorating. Those are discrepant and inconsistent in

narration of collection of object for hitting. Having regard to

the evidence as is appearing on record those tend to be

dubious and unreliable about hitting by accused - appellant

to the deceased.

21. Evidence brings out lot of inconsistencies,

discrepancies and omissions in the evidence of the witnesses

and their statements before the police.

22. The appellant in the cross examination has sufficiently

brought forth the omissions in the statements of eye

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witnesses and has tore open that eye witnesses had been

tutored ones. The wife of deceased Bhimsing has clearly

stated in her cross examination that there had been meetings

with Shivaji Pawara, her uncle who had lost elections to one

Bhattu Dita who is uncle of appellant and that there had been

a meeting on the date of death of her husband in their house

in which her uncle Shivaji and witnesses Devsing and Ratan

were present wherein it was decided to lodge a report in the

Police Station against accused - appellant Amarsing Pawara

and the witnesses were told to tell in the police statement

that Amarsing had hit deceased by stone. In her statement,

she does not refer to deceased having told her about one

gunny bag maize having been lent to the appellant.

23. Though it is contended that evidence of eye witnesses

which is replete with omissions, the evidence shows that

deceased had fallen down on the stone albeit the same had

been improved by eye witnesses with that deceased was

trying to stand up after falling and he was hit by stone. The

evidence of two eye witnesses does corroborate the fact that

deceased had fallen down during scuffle. Rest of the story

appears to be cooked up one in order to arraign and implicate

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the appellant for the offence which he has not committed.

24. The statement as recorded of the deceased and the

long gap between statements recorded of the two eye

witnesses with deterioration of health condition deceased,

their statements do not appear to be credible beyond the

statement of deceased as recorded.

25. There is a corroboration to statement of the deceased,

by witnesses Ratan and Devsing about him having a fall and

hitting a hard and blunt object. The evidence of eye witnesses

shows that deceased had been pushed and made to fall

during scuffle by appellant Amarsing.

26. All these circumstances taken into account would not

lead to conclusively estaiblish case for improved offence

alleged against the appellant, of murder of deceased.

27. In the instant case, it would have to be taken into

account that there was no premeditation and there was

scuffle and it does not appear that any undue advantage had

been taken.

28. From the incident as occurred and as narrated, on

either versions, it does not appear that the case is of murder

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punishable under section 302 of the IPC as it can be seen that

an offence of murder under section 300 of IPC is not

imputable to the appellant - accused, and, the case even

otherwise would be covered by exception 4 to section 300 of

the IPC.

29. Having regard to aforesaid, it does not appear to be a

case wherein conviction of appellant for offence punishable

under section 302 of IPC is sustainable and the sentence

therefor awarded to him under impugned judgment and order

is liable to be set aside.

30. Though circumstances and evidence do not sustain

allegation of murder, yet, evidence does with certainty

establishes that Bhimsing during scuffle with appellant over

a return of one gunny bag of maize had been pushed making

him fall and sustain injury.

31. The evidence, since as observed with degree of

certainty, does indicate that the scuffle had caused the

deceased to fall and suffer an injury leading to his death, the

appellant is guilty of causing fall leading to injury which would

cause death and thus there is commission of offence

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punishable under section 304 part II of IPC and appellant is

liable for conviction on that count, since he may not have

intention to cause such bodily injury which was likely to cause

death of Bhimsing but, would have knowledge that fall would

cause injury likely to cause his death.

32. Considering the facts and circumstances of the case and

serious consequence of the offending act of the appellant, we

are not inclined to extend him the benefit of probation.

33. Having regard to aforesaid, appeal is partly allowed.

34. The judgment and order rendered by 2nd Ad-hoc

Additional Sessions Judge, Dhule on 24-02-2006 in Sessions

case No. 39 of 2004, convicting and sentencing appellant for

offence under section 302 of Indian Penal Code is set aside.

Appellant - accused stands acquitted of the offence

punishable under section 302 of Indian Penal Code.

35. The appellant is convicted for offence punishable under

section 304 part II of Indian Penal Code and is sentenced to

suffer rigorous imprisonment of five years. Appellant shall pay

fine of Rs.5000/- as awarded by the Trial Judge, if not already

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paid. In default of payment of fine, appellant shall undergo

rigorous imprisonment of three months. He should surrender

to his bail-bonds by appearing before the Trial Court within a

period of two weeks from today for undergoing the sentence

passed against him today. In case the appellant fails to

appear before the Trial Court as aforesaid, the Trial Court

shall issue coercive process to secure his presence and

commit him to prison for undergoing the sentence.

36. The appeal is, accordingly, disposed of.

 SANGITRAO S. PATIL                           SUNIL P. DESHMUKH
      JUDGE                                        JUDGE




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