Parasram Kisan Dakhore vs State Of Mah., Thr. P.S.O. Ps ...
2021 Latest Caselaw 12553 Bom

 Judgment                                      1                 230judgmentapeal36.20odt




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


                               CRIMINAL APPEAL NO. 36/2020



          Parasram Kisan Dakhore,
          Aged 45 years, R/o. Pokhari,
          Mahagaon, Tal. Mahagaon,
          Dist. Yavatmal.                                              .... APPELLANT
                                                                             (In Jail)

                                      // VERSUS //

          State of Maharashtra,
          through Police Station Officer,
          Police Station Mahagaon,
          Tal. Mahagaon & Dist. Yavatmal.                     .... RESPONDENT

 ___________________________________________________________________
 Shri Shyam Jaiswal, Advocate for appellant (appointed)
 Shri A. Kadukar, APP for respondent/State.
 ___________________________________________________________________

                                           CORAM : VINAY JOSHI, J.
                                           DATED : 03.09.2021
 JUDGMENT

Heard.

2. The challenge in this appeal is to the judgment and order

of conviction dated 01.06.2019 in Sessions Trial No. 45/2015 by the

Additional Sessions Judge, Pusad, District Yavatmal. The

appellant/accused was held guilty for the offence punishable under

Sections 304-II and Section 324 of the Indian Penal Code. The Trial

Judgment 2 230judgmentapeal36.20odt

Court has sentenced him to suffer rigorous imprisonment for 8 years

along with fine of Rs. 1500/- for the offence punishable under Section

304-II of the Indian Penal Code, whilst imprisonment for 2 years along

with fine of Rs. 1000/- for the offence punishable under Section 324 of

the Indian Penal Code. Both sentences were directed to run

concurrently. The accused was in Jail from the date of arrest i.e.

13.04.2015 till the date of conviction and thereafter.

3. It is the prosecution case that on 09.04.2015, informant -

Vinod was at his house along with his family members. The accused

was informant's real uncle. The accused came to the house of

informant and picked up quarrel at the instance of allotment of one

acre land to him. The informant's father Narayan asked accused to go

away, on which he left. Within short time, accused brought iron rod

from his house and dealt a blow at the chest of deceased Narayan.

Informant intervened, on which accused also dealt a blow at his head

by means of iron rod. Neighboring resident Yadao arrived on the spot

and snatched iron rod from the accused. Soon after the occurrence, by

arranging vehicle injured Narayan was being taken to the Hospital,

however, he died midway. On the following day, informant (son of

deceased) lodged report about the occurrence.

Judgment 3 230judgmentapeal36.20odt

4. On completion of investigation, charge-sheet has been

filed. In order to establish the guilt of accused, prosecution has

examined in all eight witnesses. Though the accused was charged for

murder, however the Trial Court held that the act of accused constitutes

the offence of culpable homicide not amounting to murder punishable

under Section 304-II of the Indian Penal Code. As regards to head

injury caused to the informant, offence punishable under Section 324

of the Indian Penal Code was held to be proved. The State has not

challenged the acquittal of accused from Section 302 of the Indian

Penal Code.

5. Heard Shri Shyam Jaiswal, learned Advocate for the

appellant/accused and Shri A. Kadukar, learned Additional Public

Prosecutor (APP) for the respondent/State.

6. The prosecution case is based on the evidence of PW-1

Vinod who is informant and injured in the incident. Likewise,

prosecution has relied on the evidence of PW-2 Jijabai who is wife of

deceased and eye witness. Next reliance is placed on the evidence of

PW-3 Yadav who is neighbouring resident and witness to the incident.

With assistance of both sides, I have gone through the evidence led by

prosecution. The evidence of these three witnesses was carefully

Judgment 4 230judgmentapeal36.20odt

examined. PW-1 Vinod has stated on material aspect that the accused

returned to his house with iron rod and dealt a blow at the chest of his

father and at his head also. Even PW-2 Jijabai was consistent with the

evidence of PW-1 on the point of assault. PW-3 Yadav equally deposed

about the assault and snatching of iron rod from the accused. Nothing

emerges from their cross-examination so as to discard their testimony.

Lame attempt was made to claim a case of false implication, however, it

was denied by the witnesses.

7. The prosecution has examined PW-7 Dr. Datta Jude who

has conducted autopsy on the dead body. It has come in his evidence

that deceased sustained fracture of 4th, 5th, 6th rib on midclacular line.

He has opined caused of death as due to injury on chest, due to

hemorrhagic shock and bleeding in right thoraic cavity which is due to

hemorrhagic shock. Doctor stated that the injury was possible by hard

and blunt object. Particularly he stated that iron rod which was shown

to him can possibly cause said injury. The Medical Officer has

specifically ruled out the defence theory about sustaining injury by fall

of big stone from the roof.

8. Notably, the defence has not challenged the finding

recorded by the Trial Court that it was homicidal death. However, the

Judgment 5 230judgmentapeal36.20odt

prosecution has duly proved the homicidal death by leading medical

evidence. The evidence of eye-witnesses is consistent, cogent and

reliable. There was no reason for false implication of accused. Learned

defence counsel would submit that the prosecution has not examined

any independent witness. Always, it depends upon the facts and

circumstances of the case. The incident occurred in the late evening at

the house of deceased therefore, naturally there is no possibility of

viewing occurrence by stranger. Besides, son and wife of deceased

neighbouring witness has been examined. The presence of these

witnesses on the spot is quite natural. Mere relationship would not

ipso facto affect the credibility of the witness. PW-1 Vinod also

sustained head injury in the occurrence. Cogent and consistent

evidence of these witnesses can be safely relied.

9. Learned defence counsel has placed reliance on decisions

in cases of - (1) Gaffar Khan S/o Rashid Khan Vs. State of Maharashtra,

2017 ALL MR (Cri) 3501, (2) J. Karthi @ Karthikayan Vs. the State by

the Inspector of Police, 2019(2) MLJ (Criminal) 185 and (3) Prakash

Vs. Sate of Karnataka, 2014(2) Crimes 207. On that basis, the learned

counsel would submit that the prosecution has failed to examine

independent witness, seized weapon was not sent for finger print

Judgment 6 230judgmentapeal36.20odt

examination, as well as seizure of weapon is doubtful. It is suffice to

say that this is a case based on direct evidence of three consistent

reliable eye-witnesses. Their evidence remained unshattered during

cross-examination. Therefore, being distinct facts, the defence cannot

muster any strength from the above cited decisions.

10. Though the defence has criticized on the point of delay in

lodging First Information Report (FIR), however prosecution gave

plausible explanation for the delay. The incident took place on

09.04.2015 at 08.00 p.m. Soon after the occurrence, injured was taken

towards hospital but died in the way, hence brought back. Informant-

son despite death of his father, lodged report on the following day in

the afternoon, therefore, time taken by him to lodge report is quite

natural. The Trial Court after considering entire material concluded

that the accused dealt a single blow by rod at chest of deceased which

attracts the offence punishable under Section 304-II of the Indian Penal

Code. The reasons are legal, weighty, and convincing. On re-

assessment of entire material, I fully concur with the view of the

learned Trial Court holding accused guilty for the offence punishable

under Sections 304-II and 324 of the Indian Penal Code.

Judgment 7 230judgmentapeal36.20odt

11. Coming to the point of sentence, the offence punishable

Section 304-II of the Indian Penal Code attracts punishment of

imprisonment which may extend upto 10 years. Legislature has left

judicial discretion with the Courts to impose any term of sentence upto

10 years. No minimum rider has been fixed by the Statute. Always

sentence should be in proportion to the atrocity committed by accused.

It reveals from the record that accused was agricultural labour. The

incident was outcome of altercation between two brothers. No deadly

weapon was used. The accused gave single blow by iron rod which

was proved to be fatal. The accused is real brother of deceased.

12. The record indicates that accused is in Jail from the date of

arrest i.e. from 13.04.2015 till date, meaning thereby, he has served

sentence of near about six years and five months. Having regard to all

these facts, the said period of incarceration is sufficient. In view of

that, appeal deserves to be partly allowed to the extent of modifying

sentence to that extent, by maintaining the fine as imposed by the Trail

Court.

13. Appeal stands partly allowed to the extent of sentence.

Conviction under Sections 304-II and 324 of the Indian Penal Code is

Judgment 8 230judgmentapeal36.20odt

maintained. Accused is sentenced for imprisonment for the period

which he has already undergone along with fine as imposed by the

Trial Court. The accused be set at liberty forthwith if fine is paid and if

not required in other offence. If fine is not paid, he be released after

undergoing default sentence.

14. Appeal stand disposed of in above terms.

15. Fees of appointed counsel for the appellant, be paid as per

Rules.

JUDGE Gohane.