Gajanan Narayan Parihar (In Jail) vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 12842 Bom

 Judgment                                 1                           apeal587.17.odt




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


                         CRIMINAL APPEAL NO. 587/2017


          Gajanan Narayan Parihar,
          Aged about 24 years,
          R/o. Jamthi, Tq. Warud,
          Dist. Amravati
                                                             .... APPELLANT

                                  // VERSUS //

          State of Maharashtra,
          Through Police Station Officer,
          Police Station Warud,
          Tq. Warud, Dist. Amravati
                                                           .... RESPONDENT

  *******************************************************************
                     Shri Amit Band, Amicus Curiae
              Shri T.A. Mirza, APP for the respondent/State
  *******************************************************************

                    CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

SEPTEMBER 08, 2021

ORAL JUDGMENT : (PER:- V.M. DESHPANDE, J.)

1] The present case is of patricide. The appellant was charged

for committing the murder of his father on 18/12/2012 in between 10:00

am to 10:30 am in the agricultural field which falls within the jurisdiction

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of Police Station Warud. He was charged in Sessions Case

No. 117/2013 for the offence punishable under Section 302 of the Indian

Penal Code. After the charge was framed and it was explained to the

accused, he denied the same and claimed for his trial. In order to bring

home the guilt of the accused, the prosecution has examined, in all, six

witnesses and also relied upon the Chemical Analyzer's report (Exh. 55)

coupled with the seizure panchanamas pertaining to the seizure of the

clothes of the accused & deceased & their samples etc. After the full

dressed trial, the learned Sessions Judge, Amravati found that the

prosecution was successful in bring home the guilt of the appellant and

therefore after recording the finding of conviction for the offence

punishable under Section 302 of the Indian Penal Code, sentenced him

to suffer imprisonment for life and to pay fine of Rs. 10,000/- and in

default to suffer further rigorous imprisonment of two years.

2] Though initially this appeal was presented by the appellant

through his private Advocate, the Farad order shows that his Advocate

always remained absent and therefore vide order dated 02/03/2020, this

Court (Coram : Sunil B. Shukre & Madhav J. Jamdar, JJ.) appointed Shri

Amit Band as Amicus in this matter and as such today we have heard Shri

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Amit Band, learned Amicus. We have also heard Shri T.A. Mirza, learned

APP for the respondent/State. With the able assistance of both the

counsel, we have gone through the record and proceedings, notes of

evidence and also the judgment and order of conviction impugned in the

appeal.

3] PW1 is Surendra Narayan Parihar, another son of deceased

Narayan who was born from his first wife. He has lodged the report on

18/12/2012. The oral report is at Exh. 19 and the printed FIR is at

Exh. 20.

4] PW2 is Jivan Jogi Parihar. This witness is a solitary witness

who has actually seen the assault on the deceased by the appellant.

5] PW3 is Masuram Dhondiba Naramwad. He has acted as

panch in respect of the various seizures and spot panchanama (Exh. 24).

He was also witness to the inquest panchanama (Exh. 25). He has also

proved panchanama of guava tree (Exh. 26). Similarly, in his presence

from the spot, the Investigating Officer has seized the articles namely the

cell phone, shirt's button, sleeper, three blood stained stones as well as

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simple and blood smeared earth under seizure panchanama (Exh. 27).

This witness has also proved Exh. 28 i.e. seizure memo in respect of

seizing the clothes of the appellant which were on his person at the time

of incident. Exh. 29 is the seizure panchanama of the clothes of the

deceased.

6] PW4 Dr. Pramod Uddhavrao Potdar is the Autopsy Surgeon.

He has performed autopsy over the dead body of Narayan. He has also

examined the appellant Gajanan.

7] PW5 is Mahadev Suryabhanji Charmode who firstly received

the telephone call from PW1 Surendra intimating about the murder of

his father and thereafter PW5 reached to the spot and has done initial

part of the investigation. He also arrested the appellant under arrest

panchanama (Exh. 43) on the date of incident itself i.e. 18/12/2012.

8] PW6 is Shriram Devraoji Lambade - Investigating Officer

who has completed the investigation and filed the final report in the

Court of learned Jurisdictional Magistrate.

  Judgment                                5                           apeal587.17.odt




 9]               From the evidence of PW1 Surendra and also from his oral

report (Exh. 19), it is clear that he is not the eye-witness. His evidence is

on the line of the first information report. In the first information report,

he did state that on the date of incident, he received telephone call from

one Nandkishore intimating him that his father is lying dead near the

well in the agricultural field, therefore he immediately rushed to the spot.

When he reached to the spot, that time he noticed presence of PW2 Jivan

in his agricultural field. He made enquiry with him. Upon that, it was

revealed to him by PW2 Jivan that there was a scuffle in between the

deceased and the step brother of the first informant. The first information

report recites that the first informant made enquiry regarding the cause of

the scuffle. At that time, it was stated that it was noticed by the appellant

that the deceased was plucking guava from the guava tree. It was further

stated to the first informant as claimed in the first information report that

they started abusing each other and scuffle took place. PW2 Jivan tried to

rescue, however, nobody was ready to compromise and in that process,

the appellant hit on the head of the deceased by stone resulting into his

death.

  Judgment                                    6                             apeal587.17.odt




 10]              PW4 Dr. Pramod found the following injuries when he

conducted the post-mortem over the body of deceased:-

"i. Compression fracture of skull slightly elliptical shape over fronto parietal region of left side. 7' x 6' incised. ii. Contusion over anterior surface of middle part of strenum."

11] PW4 Dr. Pramod proved the post-mortem report which is at

Exh. 33. He also examined the appellant on the very same day i.e.

18/12/2012 and that time, he found one injury i.e. abrasion over anterior

surface of neck of Gajanan's person. He proved the injury certificate of

Gajanan (Exh. 35).

12] Looking to the opinion given by Autopsy Surgeon to the

cause of death and the injury appearing on the person, there can be no

second opinion that the deceased died homicidal death. From the

evidence of PW2 Jivan (eye-witness), it is clear that it is the appellant

who has assaulted on the person of the deceased by means of stone

resulting into the injury which caused the death of Narayan. The

evidence of PW2 Jivan is free from embellishment. A close scrutiny of his

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evidence inspires confidence in our mind and we have no hesitation to

record a finding that he is witness to the truth. Further, during the course

of investigation, the Investigating Officer has sent the muddemal

property to the chemical analyzer. The CA report (Exh. 55) shows that

blood group of the deceased was 'A'. On the clothes of the appellant, the

blood stains having blood group 'A' was found. No doubt true that even

the blood group of the appellant is also 'A', however, in his statement

which was recorded under Section 313 of the Code of Criminal

Procedure, he did not offer any explanation regarding noticing of the

blood on his clothes. Further, the injury which was found on the neck of

the appellant was in the nature of abrasion. Therefore, it could not be said

that the blood oozed from the said injury on his clothes. Neither the

doctor nor the contemporaneous document show that the doctor noticed

blood was oozing from injury when he examined Gajanan. Therefore, in

our view, the learned Judge was absolutely right in holding that the

appellant is the author of causing injury on the person of the deceased

resulting into his death.

13] The question now before the Court is as to whether the

learned Judge was right in convicting the appellant for the offence

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punishable under Section 302 of the Indian Penal Code or whether this

Court should scale down for lesser offence as argued by the learned

Amicus.

14] Undisputedly, the deceased was the father of the appellant.

From the cross-examination of PW2 Jivan, it is brought on record that

the deceased Narayan gave half portion of the field to the appellant and

half portion to his another son PW1 Surendra. It is also brought on

record through his cross-examination that 4-5 years back to the incident,

it is PW1 Surendra who assaulted on his father.

15] Be that as it may. In the light of the trustworthy evidence of

PW2 Jivan, dispute arose in between father and son regarding plucking of

guava from guava tree which was standing on the portion which was

given to the appellant. Not only that the evidence of PW2 Jivan further

shows that for the said reason, there was a dispute between them which

resulted firstly into verbal altercation in between them which was

followed in scuffle in between them. As per the evidence of PW2 Jivan,

both the appellant as well as the deceased were pushing and dragging

each other. This particular portion of his evidence is also corroborated by

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the medical evidence inasmuch as PW4 Dr. Pramod noticed injury in the

nature of abrasion on the neck of the appellant. As per the evidence, in

that scuffle, the appellant picked up stone and assaulted on the head of

the deceased resulting into his death.

16] From the aforesaid evidence, it is clear that the incident has

occurred on trivial issue of plucking guava. There was no intention on the

part of the appellant to cause death of Narayan. He was also not armed.

The stone which was available in the agricultural field, he picked up and

assaulted the deceased by the same. In that view of the matter, it is our

considered opinion that this case falls in exception 4 of Section 300 of

the Indian Penal Code. Since the part of the body which the appellant

chose to assault is head, that too by a stone, we are of the considered view

that this is a fit case wherein the appellant can be convicted for the

offence punishable under Section 304-I of the Indian Penal Code instead

of Section 302 of the Indian Penal Code as punished by the learned

Sessions Judge, Amravati.

17] The appellant was arrested on 18/12/2012. The record shows

that during the pendency of the trial, application for bail was moved

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before the learned Sessions Judge and vide order dated 20/05/2013, the

appellant was released on bail and he was on bail throughout during the

trial. Thus, the appellant was in jail for period from 18/12/2012 till

20/05/2013. The impugned judgment is delivered on 31/10/2017 and he

was taken immediately in custody and since then he is in jail.

18] In the background of the entire prosecution case, since we

are holding the appellant guilty for the offence punishable under Section

304-I of the Indian Penal Code, in our considered view the sentence of

10 years to the appellant will be appropriate and adequate punishment.

 19]              Accordingly, we pass the following order:-



           (a)     The judgment and order of conviction dated 31/10/2017

passed by the learned Sessions Judge, Amravati in Sessions

Case No. 117/2013 is hereby quashed and set aside.

(b) The appellant is acquitted of the offence punishable under

Section 302 of the Indian Penal Code. Instead, the appellant

is convicted for the offence punishable under Section 304-I

of the Indian Penal Code.

  Judgment                                  11                           apeal587.17.odt




           (c)     The appellant is directed to suffer rigorous imprisonment for

                   10 years.

           (d)     The fine amount as directed by the learned Sessions Judge is

                   maintained.

           (e)     The appellant will be entitled for set-off under Section 428

                   of the Code of Criminal Procedure.



 20]              The criminal appeal is partly allowed. Pending application(s),

 if any, stand(s) disposed of.



 21]              We appreciate the efforts taken by Shri Amit Band to provide

 assistance as Amicus in the matter.



                   (JUDGE)                                 (JUDGE)




 ANSARI