Dipakkumar Nankuprasad Dube vs The State Of Maharashtra
2022 Latest Caselaw 12301 Bom

                                                                     Judgment.Cr.Apeal.931.2018.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO. 931 OF 2018

Dipakkumar Nankuprasad Dube,                            )
Age : 25 year, Occ: Labour,                             )
R/o. Sitkhana, Jotkeshav,                               )         ...Appellant
Tq. and Dist. Bahraich                                  )

     Versus

State of Maharashtra                                    )        ...Respondent

                          ***
Mr. Anilkumar P. Basarkar, Advocate (Appointed) for the
Appellant.
Mr. R.V. Dasalkar, APP for Respondent - State.
                          ***

                                        CORAM : R.G. AVACHAT &
                                                R.M. JOSHI, JJ.
                           RESERVED ON : NOVEMBER 24, 2022
                         PRONOUNCED ON : NOVEMBER 29, 2022

JUDGMENT (PER R.M. JOSHI, J)

1. Appellant - accused is challenging the

judgment and order dated 01st June, 2018 passed in

Sessions Case No. 52 of 2016 convicting him for the

offences punishable under Section 302 of the Indian

Penal Code, 1860, by filing present Appeal under

Section 374 of Code of Criminal Procedure, 1973.

2. Short case of the prosecution, as it appears

from the material on record, is as under:

On 08.02.2016 at the place below railway

Judgment.Cr.Apeal.931.2018.doc

bridge a painting work was going on and workers were

engaged by the contractors for performing the said

work. At about 02.00 pm workers came back after

purchasing grocery and liquor. Meal was being prepared.

At that time, Pannelal Sonkar (deceased) and Dipak were

consuming liquor. Thereafter, there occurred a quarrel

between them on account of voting during election.

Thereafter, Dipak started beating Pannelal with bamboo

and the said attack was prevented by Vijay by snatching

bamboo from the hands of Dipak. Thereafter, Dipak took

fry pan and inflicted blow on the head of Pannelal.

Ambulance was called and initially injured was taken to

Civil Hospital by Vijay and Anilkumar Gautam. It seems

that thereafter injured was shifted to Seva Hospital

where he succumbed to the injuries on 17.02.2016. FIR

came to be recorded on 10.02.2016.

3. During the course of investigation medical

certificate and postmortem notes were obtained. Accused

made statement in custody of the police and pursuant to

the said statement his clothes, stained with blood,

were seized under panchnama. Spot of the incident was

inspected from where bamboo stick and fry pan were

Judgment.Cr.Apeal.931.2018.doc

recovered. Statement of witnesses were recorded. On

conclusion of investigation, charge-sheet came to be

filed and matter was committed before the Court of

Sessions for trial.

4. Charge was framed at Exhibit 4 and since

accused abjured the charge he was tried. Prosecution in

order to prove the guilt of the accused examined Vijay

Vishwakarma (PW 6) and Anilkumar Gautam (PW 10), who

have witnessed the incident of assault caused by the

accused on the deceased. Both these witnesses gave

account of the incident. Spot of the incident is sought

proved through Narendra (PW 1) who noticed blood stains

at the spot and deposed about the seizure of one bamboo

and fry pan. Prosecution also examined Dr. Bramhe of

Seva Hospital who had issued injury certificate Exhibit

42. Cause of death is proved through testimony of Dr.

Deoraj (PW 8) who had conducted autopsy on the dead

body of Pannelal.

5. Learned Advocate for the Appellant submitted

that there is delay in lodging FIR as the same has been

lodged after 2 days of the alleged incident. He also

submitted that no explanation is forthcoming from the

Judgment.Cr.Apeal.931.2018.doc

investigating officer as to why statement of injured

was not recorded when the incident has occurred on

08.02.2016 and injured died on 17.02.2016. He also drew

attention of this Court to the inconsistencies in the

testimonies of alleged eye witnesses and it is

submitted that since their version is altogether

different about the weapon of assault same cannot be

relied upon for the purpose of conviction. It is also

argued that there is no motive established for the

accused to kill deceased. By referring to the relevant

dates, it is submitted that there is delay in sending

muddemal articles to FSL and there is no evidence to

show as to where muddemal articles were kept before

sending them for chemical examination. In support of

his submissions, learned Advocate for Appellant placed

reliance on judgment of the Apex Court in the matter of

Lavghanbhai Devjibhai Vasava Vs. State of Gujarat1.

6. Learned APP supported the impugned judgment

and order by contending that the same is passed upon

testimonies of eye witnesses who had no inimical terms

with the accused in order to falsely deposed against

him. It is submitted that the recovery of clothes of 1 (2018) 4 SCC 329

Judgment.Cr.Apeal.931.2018.doc

accused stained with blood corroborates with version of

eye witnesses. According to him, there is no reason for

causing interference in the impugned judgment and order

of conviction.

7. Dr. Nilesh Deoraj (PW 8), medical officer

attached to Shri. Bhausaheb Hire Medical College and

General Hospital, Dhule along with Dr. Vijay Jadhav

conducted postmortem on the dead body of the deceased

and they found partially healed sutured wound present

over right tempro-parictal region, horizontally placed

of length 15 cm. They also noticed 8 injuries on the

dead body and those injuries were antemortem in nature.

According to medical officer, cause of death of the

deceased is head injury. During the cross-examination,

it is admitted by the medical officer that the injuries

caused to the deceased are possible by fall on hard and

blunt object. However, this admission cannot be

considered in isolation by ignoring other circumstances

appearing on record.

8. Here in this case there are two eye witnesses

to the incident in which deceased sustained injuries.

Vijay (PW 6) narrated occurrences of 08.02.2016. He

Judgment.Cr.Apeal.931.2018.doc

specifically deposed that accused and deceased consumed

liquor together and thereafter, there was quarrel

between them over the issue of voting during election.

He specifically stated about accused beating deceased

with bamboo, which was snatched by witness from the

hands of accused. This witness thereafter went to call

other persons and when he came back he saw accused

holding a fry pan and there was bleeding injury on the

head of deceased. Anilkumar (PW 10) testifies about

accused abusing wife of deceased and there was quarrel

between them. He also claim that accused pelted stones

and thereby caused injury to the head of deceased.

After occurrence of this incident, they all went for

work and came back at around 08.00 pm. This witness

along with Vijay prepared food. At that time, there was

quarrel between accused and deceased for not voting him

during election. This witness claims that accused

assaulted deceased with fry pan on his head.

9. Though medical officer during his cross-

examination admitted about possibility of causing of

injury to the deceased by fall, but, there is no

suggestion made to the eye witnesses to the effect that

Judgment.Cr.Apeal.931.2018.doc

deceased fell down of multiple occasions to sustain

these number of injuries. In absence of any such

suggestion made to the eye witnesses, it is not

possible to accept general opinion of medical officer

that such injuries are possible by fall on hard and

blunt object, to rule out homicidal death.

10. From the cross-examination of eye witnesses it

does not appear that they have any inimical terms with

the accused in order to falsely depose against him.

Defence was unable to elicit anything on record to

create doubt about presence of these witnesses at the

time of occurrence of the incident. On the contrary,

suggestions made to these witnesses indicate that they

all were working together and certainly some incident

has occurred at relevant time resulting into causing of

injuries to deceased. As far as case of the defence

about discrepancies in their testimony is concerned, it

is pertinent to note that Anilkumar (PW 10) has

narrated the incident occurred prior to the incident in

question though on the same day and has stated having

seen assault by fry pan on deceased. Pertinently

according to Vijay after he snatched bamboo from hands

Judgment.Cr.Apeal.931.2018.doc

of accused he went away to call others and coming back

to the scene, noticed fry pan in hand of accused and

injury to head of deceased. Needless to mention that it

is practically impossible that two witnesses to the

incident will speak in one tone and make stereotype

statement. Both eye witnesses, withstood searching

cross-examination and we find no reason to discard

their testimony. Consideration of ocular evidence

supported by medical evidence, leaves no room for doubt

that deceased Pannelal met homicidal death and accused

is author of injuries which led to his death.

11. As far as the contention of the defence about

delay in lodging FIR is concerned, evidence of Vijay

(PW 6) shows that after occurrence of the incident

ambulance was called and injured was taken to the Civil

Hospital by this witness along with Anilkumar Gautam

and they were with the injured throughout night. It

seems that preference was given to the treatment of the

injured over approaching to the police. In absence of

any material on record to show the reason for false

implication of the accused, non-lodgment of FIR

immediately per se will not become a ground for

Judgment.Cr.Apeal.931.2018.doc

acquittal of the accused.

12. Now question arises as to what offence is

committed by accused. Evidence on record shows that

except for the quarrel on fatal day just before

incident of assault on account of elections and hurling

of abuses, there was no serious dispute between accused

and deceased. On the contrary, testimony of Vijay

(PW 6) shows that even after the quarrel between them

when he told accused to take meal he refused to take

the same unless deceased eats. From this evidence it

can be definitely concluded that both were having

cordial relations and certainly not in inimical terms.

Both accused as well as deceased consumed liquor which

was followed by the incident and hurling of abuses and

quarrel between them. Record also indicates that

initially blows were inflicted with bamboo on deceased

and postmortem notes (Exhibit 37) indicate one injury

to the head which is caused by fry pan. There is

nothing on record to show that accused was prevented by

others from inflicting further injuries to the deceased

with fry pan. No attempt is seen to cause any other

fatal injury. Incident has occurred on 08.02.2016

Judgment.Cr.Apeal.931.2018.doc

whereas deceased died on 17.02.2016. All these

circumstances do not show that accused had any

intention to kill deceased and hence present case is

not covered by mischief of Section 300 of the Indian

Penal Code.

13. As observed above, there was no motive for the

accused to kill deceased. Incident in question has

occurred during quarrel and abuses between accused and

deceased. There was no preparation and frying pan

available at the spot came to be used to give single

blow on the head of the deceased which proved to be

fatal. In such circumstances, evidence on record falls

short for convicting the accused for the offence

punishable under Section 302 of the Indian Penal Code.

14. Accused, however, had knowledge that causing

of injury to the head of the deceased with frying pan

is likely to cause death and therefore, he is held

guilty for the culpable homicide not amounting to

murder as contemplated under Part I of Section 304 of

the Indian Penal Code.

15. Accused is in jail since 11.02.2016. Accused

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has no criminal antecedents. The incident in question

was not pre-meditated and has occurred in spur of

moment. In the circumstances, it is not the fit case to

award maximum sentence to the accused. He has already

undergone 6 years 9 months and 13 days incarceration,

which in view of this Court, would be sufficient

punishment for offence in question.

16. In view of above discussions, we proceed to

pass following order:

O R D E R

1. Criminal Appeal is partly allowed.

2. The sentence recorded by learned Sessions Judge, Dhule in his judgment and order dated 01st June, 2018 in Sessions Case No. 52 of 2016 is altered from Section 302 of IPC, 1860 to Section 304(I) of the IPC, 1860.

3. The appellant is held guilty for the offence punishable under Section 304(I) of IPC, 1860 and sentenced to suffer imprisonment already undergone. The order of the learned Sessions Judge in respect of fine is confirmed and in default of payment of fine amount Appellant to suffer RI for 2 days.

Judgment.Cr.Apeal.931.2018.doc

4. Mr. Anil P. Basarkar, learned Advocate was appointed through Legal Aid to represent Appellant and we quantified his fees at Rs. 10,000/- to be paid by Legal Aid Services Authority.

(R.M. JOSHI, J.)                                           (R.G. AVACHAT, J.)
Malani