Subhash S/O. Sahdeo Naitam (In ... vs State Of Maharashtra Thr. P.S.O., ...
2022 Latest Caselaw 3525 Bom

                                         1                               216-cr-apeal-82-19j.odt



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

                        CRIMINAL APPEAL NO. 82 OF 2019

Subhash S/o. Sahdeo Naitam,
Aged about 35 years, Occ. Labour,
R/o. Dipratola, Tah. Kurkheda,
Dist. Gadchiroli.                                                          . . . APPELLANT

                       ...V E R S U S..

The State of Maharashtra through
Police Station Officer,
Police Station Kurkheda,
Tah. Kurkheda, Dist. Gadchiroli                                       . . . RESPONDENT

------------------------------------------------------------------------------------------------
Shri A. M. Kukday, Advocate for appellant.
Shri T. A. Mirza, APP for respondent/State.
-----------------------------------------------------------------------------------------------
                 CORAM :- V. M. DESHPANDE AND
                          AMIT B. BORKAR, JJ.

DATED :- 31.03.2022

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

1. Heard.

2. By this appeal, the appellant is challenging the judgment

and order passed by learned Additional Sessions Judge, Gadchiroli

dated 22.08.2017 in Sessions Case No. 37/2013 thereby the learned

Judge found the appellant to be guilty for the offence punishable

under Section 302 of the Indian Penal Code (IPC) and thereafter

awarded punishment that he shall suffer imprisonment of life and to 2 216-cr-apeal-82-19j.odt

pay fine of Rs. 500/-, in default to suffer further rigorous

imprisonment for one month.

3. Heard Shri A. M. Kukday, learned Advocate for the

appellant and Shri T. A. Mirza, learned APP for respondent/State. Also

perused R.&P., notes of evidence and other documents incorporated in

paper-book with the assistance of learned Advocates for the parties.

4. The only argument that was advanced before the Court by

learned Advocate for the appellant is that in any case even if the entire

case of the prosecution is scanned in correct prospective, the appellant

can be convicted for the offence punishable under Section 304 Part-I of

the IPC and not under Section 302 of the IPC. Per contra, learned APP

supported the impugned judgment and order.

5. The deceased in this case is one Deshlal Naitam. The

deceased was working as Manager of one Udaylal (PW3) in respect of

construction of house of the first informant whereas the appellant was

working as Mason.

6. Bhaiyyaram Naitam (PW2) is brother of the deceased. He

is not an eye-witness. However, when he returned to his house from

field he came to know occurrence of the incident behind his house. He 3 216-cr-apeal-82-19j.odt

saw crowd of people behind his house, therefore he went there. He

noticed the appellant running away from spot and deceased was

having head injury therefore, he and other person removed the

deceased in an Ambulance to Sub District Hospital, Kurkheda.

7. After the incident, Deshlal was admitted to Kurkheda Sub-

District Hospital. From the said Hospital, intimation was given to

Police Station Kurkheda (Exh.25), which was received by Ramesh

Bagmare, Police Constable (PW1). He thereafter gave letter (Exh.26)

to the Doctor as to whether the patient is in condition to give his

statement. On the said document itself it has been stated by Dr. Rahul

Kshirsagar that the patient is unconscious and therefore, he is not able

to give his statement. When the deceased was at Kurkheda, he was

examined by Dr. Rahul Kshirsagar and he gave injury certificate

Exh.26. The following injuries are mentioned in the certificate:-

1) Abrasion- left lateral to left eye 2 X 2 cm below lower lip (left) 2 X 2 cm left side of nose 1 X 2 cm Tip of nose 1 X 1 cm.

          2)      CLW- Right side of scalp 10 X 1 X 1 cm.
          3)      Bleeding (Active) from right ear.

8. The Medico legal certificate is at Exh.27, which shows that

there was injury on the right side of scalp measuring 10 X 1 X 1 cm

and abrasion and bleeding from ear. The injury was found to be fresh.

The patient was referred to Gadchiroli.

4 216-cr-apeal-82-19j.odt

9. In the meantime, Bhagvati Naitam (PW4) lodged report

with Police Station Kurkheda. The oral report is at Exh.47 and printed

First Information Report is at Exh.67. Initially the offence was

registered as C.R. No. 45/2012 for the offence punishable under

Sections 307 and 302 of the IPC.

10. Kanchan Pande-API (PW12) conducted the investigation in

his usual manner and after collecting the evidence, he presented

challan before the Jurisdictional Magistrate and ultimately the case

was committed to the Court of Sessions. The charge was framed

against the appellant, he denied the charge and claimed trial.

11. In order to bring home guilt of the accused, the

prosecution has examined 15 witnesses and also relied upon various

documents. The defence of the appellant was of total denial and

alternatively it was his defence that there was scuffle between him and

the deceased and he fell down on ground and sustained injury, which

ultimately culminated into his death.

12. Bhagwati (PW4) is not only first informant but he is also

an eye-witness. From his evidence, it is clear that the appellant gave

stick blow on the head of the deceased. From the evidence of 5 216-cr-apeal-82-19j.odt

Bhagwati it is clear that quarrel took place in between the appellant

and the deceased on account of missing centering plates.

13. The post-mortem over the dead-body was conducted by

Dr. Nilesh Tumram (PW11) and he found following injuries:-

"i] stitches lacerated wound over right occipetal region of length 10 cm with insitu stitches. On removal of stitches there is lacerated wound of size 10 X 2 cm. X bone deep obliquely placed.

ii] contused abrasion over left zygomatic region, size 3 X 2 cm. reddish brown.

iii] contused abrasaion over left cheek 2 X 1 cm. reddish brown.

iv] contused abrasion over nose 3 X 2 cm. reddish brown.

v] contused abrasion over left side of mouth 3 X 2 cm. reddish brown.

vi] contused abrasion over back of right arm lateral aspect in lower 1/3 rd 2 X 1 cm reddish brown.

Age of injury was between 1 to 2 days old and can be possible by hard and blunt object.

Internal Injuries

Head- underscalp hematoma over right pariotemporooccipetal region 12 X 10 cm. dark red. Fissured fracture over right pariotoaccipetal bone 12 X 1 cm. obliquely placed. Dura congested. Extradural hamotoma over right pariotemporal region about 100 gms. dark read. Subdural hamotoma over right pariototemporal region about 100 gms. and left temporal region about 40 gm. dark red. Subarachnoid haemorrage as red film all over brain surface. Brain congested and edematous 1100 gm."

14. As per the evidence of Doctor, all the injuries are ante-

mortem. The injury no. 1 as stated in column no. 17 with its internal

injury mentioned in column no. 19 in Exh.64 are sufficient in ordinary 6 216-cr-apeal-82-19j.odt

course of nature to cause death. Form the medical evidence, it is clear

that there was only one injury on head of the deceased.

15. There is nothing on record that there is previous enmity

between the appellant and the deceased. It appears from the totality

of the circumstance, as brought on record in the prosecution case, that

quarrel ensued in between them in respect of missing centering plates.

The appellant has not taken any undue advantage. In that view of the

matter and in view of the submission made by the learned Advocate

for the appellant that offence can be converted from Section 302 of the

IPC to under Section 304 Part-I of the IPC has substance inasmuch as

there was no intention on the part of the appellant to commit murder

of the deceased. The appellant has not taken any undue advantage

after the first blow of stick was given to the deceased. The appellant is

in jail from 12.11.2012, as can be seen from Arrest Form (Exh.69).

16. There is nothing on record to show that the appellant is

having any criminal antecedent to his credit. In that view of the

matter, we proposed to pass following order:-

i)          The appeal is partly allowed.

ii)         The judgment and order of conviction, convicting the

appellant for the offence punishable under Section 302 of the Indian

Penal Code is hereby set aside.

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                         iii)         Appellate- Subhash S/o. Sahdeo Naitam is hereby

acquitted for the offence punishable under Section 302 of the Indian

Penal Code, instead he is convicted for offence punishable under

Section 304 Part-I of the Indian Penal Code and for that the appellant

shall undergo imprisonment for a period of 10 years.

iv) Needless to mention that the appellant is entitled for set

off.

                                (AMIT B. BORKAR, J.)                 (V. M. DESHPANDE, J.)




  RR Jaiswal

          Digitally signed
          by JAISWAL
JAISWAL   RAJNESH
RAJNESH   RAMESH
          Date:
RAMESH    2022.04.01
          18:58:15 +0530