P.N. Deshmukh, J.
1. Challenge in this appeal is to the Judgment passed by learned Extra Joint Adhoc Additional Sessions Judge, Wardha in Sessions Trial No.147 of 2009 delivered on 29.1.2011 by which accused came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for three months. Accused is acquitted of the offence punishable under Section 201 of the Indian Penal Code.
2. The case of prosecution can be briefly stated as follows :
PW6 Pankaj Deotare, the Complainant lodged report to the effect that, on 1.8.2009, at around 9.00 p.m., when he went out for visiting to pan shop of one Sanjiv Chaudhari, deceased Khushal Patil met him on the way, who asked Complainant to accompany him to the house of one Ashik Sweeper saying that Ashik had called him for settlement of case pending between them and for that reason, Complainant accompanied deceased and both of them proceeded to house of Ashik on a two wheeler. Deceased was travelling as a pillion rider. On reaching to the house of Ashik, father of Ashik informed that he was not present in the house and therefore, both of them were returning back when they found accused present near the house wearing towel only and on intercepting his motor cycle, started abusing saying as to why they were roaming around his house and on saying so, pulled deceased from the motor cycle. Upon Complainant Pankaj requesting accused to not to assault deceased, he was directed to not to intervene. Even mother of Complainant asked accused to leave the deceased. However, without listening to any one, accused lifted one big stone which was lying on the spot and dropped it on the head of Khushal, due to which he sustained bleeding injury on his head and succumbed to same on the spot.
3. It is further case of prosecution that Pankaj, the Complainant thereafter left from the spot and visited to pan stall of Sanjiv Chaudhari where he met PW10 Kiran Tandulkar and narrated incident to him and thereafter, both of them attended Police Station and lodged report (Exh.37).
According to case of prosecution, in the year 2008, deceased Khushal Patil had committed assault on Rupam Marve, brother of accused and therefore, since then, their relations were strained and to take revenge, on the day of incident, accused committed fatal assault on deceased causing his death.
4. On the basis of report (Exh.37) lodged by PW6 Complainant Pankaj Deotare, PW14 Pramod Duratkar, P.S.I. registered offence vide Crime No.305 of 2009, under Section 302 of the Indian Penal Code and at the same time, recorded statement of PW10 Kiran Tandulkar and arrested accused under Arrest Panchanama (Ex.89).
According to case of prosecution, before Complainant lodged report as aforesaid, Triveni Marve, mother of accused, at around 10.20 p.m. visited Police Station and orally informed of quarrel and assault on her son by the accused, upon which PW14 Pramod Duratkar, P.S.I., on taking Station diary entry thereof, reached the spot situated opposite to the house of accused and noted that dead body of Khushal Patil was lying near one big stone having stained with blood. He, therefore, arranged for two witnesses and drew Spot panchanama (Ex.86) and seized blood stained stone vide Seizure Panchanama (Exh.87). On his returning back to Police Station, PW6 Pankaj Deotare, the Complainant with PW10 Kiran Tandulkar arrived in the Police Station and lodged report as aforesaid.
5. After registering offence, PW14 Pramod Duratkar, Investigating Officer drew Inquest panchanama (Exh.90) in the hospital and forwarded the dead body for post mortem. He also made certain queries with Medical Officer as per requisition memos (Exh. Nos. 91 and 92) about possibility of head injury sustained by deceased by stone and had also got accused medically examined under requisition memo (Exh.94), who was initially examined by PW1 Dr.Avinash Khilekar, who gave his report.
Further investigation was carried out by PW13 Pradip Ubale, who has recorded statements of witnesses and seized blood stained clothes of deceased as produced by P.C. No. 472 Sumedh Aglave after post mortem being one shirt, jeans pant, baniyan and knicker and blood sample of deceased vide Seizure panchanama (Exh.66).
6. On 4.8.2009, on interrogation, Memorandum statement of accused came to be recorded for discovering towel and knicker from his house, which was on his person at the time of incident and in pursuance of said Memorandum (Exh.68), investigating agency seized one towel and knicker as produced by accused, which was concealed in the loft in the kitchen room in his house, under Seizure panchanama (Exh.69) and forwarded the accused under requisition memo (Exh.70) for collecting his blood sample, which was accordingly collected and was seized as produced by P.C. Rajendra under Seizure panchanama (Exh.71).
7. After recording statements of witnesses, requisition was issued by learned Judicial Magistrate. First Class for recording statement of Complainant under Section 164 of the Code of Criminal Procedure. The seized muddemal articles were forwarded for its analysis to the Chemical Analyser under requisition memo (Exh.78), of which C.A. reports are on record (Exh.79 and 80). On completion of investigation, chargesheet is filed before the Court of Judicial Magistrate, First Class, Hinganghat.
8. In due course of time, case was committed for trial to the Court of Sessions. Charge is framed against the accused for the offences punishable under Sections 302, 201 of the Indian Penal Code at Exh.5, which he denied. Defence of accused is of total denial and false implication. Accused did not examine any defence witness in support of his case. It is the specific defence of accused that since there was prosecution pending between them for the offence punishable under Section 326 of the Indian Penal Code registered on the strength of report by accused, their relations were strained and therefore, he is falsely implicated.
9. To establish the case, prosecution in all examined 14 witnesses and had commenced its evidence by examining PW1 Dr.Avinash Khilekar and PW2 Dr. Avinash Bhuikar, who had examined the accused, PW3 Rajendra Chaware, P.C. B.No.198, Carrier of seized property to C.A., PW4 Ganesh Surkar, witness on memorandum statement of accused and seizure; however, he did not support the case of prosecution and is declared hostile, PW5 Sher Ali Sayyad Noor Ali along with PW11 Babarao Beriwar, both on Spot panchanama and seizure of articles from the spot; however, both did not support the case of prosecution, PW6 Pankaj Deotare, the Complainant who has proved his report (Exh.37), PW7 Laxman Satpute on seizure of clothes of deceased, who is also declared hostile, PW8 Photographer Arun Bhore, PW9 Subhash Tandulkar on seizure of clothes of Complainant, PW10 Kiran Tandulkar to whom Complainant made immediate disclosure of incident after witnessing the same, PW11 Babarao Beniwar who is declared hostile, PW12 Dr.Nilesh Gaddewar on autopsy, PW13 Pradip Ubale, P.S.I. and PW14 Pramod Duratkar, P.S.I. both Investigating Officers. Learned trial Judge having considering the evidence and documents on record convicted the accused as aforesaid. Hence, this appeal.
10. Heard Mr.R.M.Patwardhan, learned Counsel for the appellant. The learned Counsel, by referring to the evidence of eye witnesses, had contended that, from the evidence of PW6 Pankaj Deotare, it has come on record that the stone which is alleged to have been lifted by accused and dropped on the head of deceased is 37 kilograms and as such, it is submitted that it is impossible for accused, who was a young boy aged 25 years, to lift such a heavy stone alone and therefore, raised doubt on the case of prosecution. It is also submitted that even otherwise it is no case of prosecution that in the meantime deceased attempted to ran away from the spot.
11. Similarly, by referring to evidence of PW10 Kiran Tandulkar, who is relied by prosecution as a person to whom PW6 Pankaj Deotare, eye witness had made immediate disclosure of assault by accused upon deceased near the pan shop, it is submitted that since no independent witness from pan shop is examined, evidence of PW6 Pankaj Deotare of meeting PW10 Kiran at pan shop and about his disclosing incident to Kiran is also not sufficiently established. It is, therefore, contended that if evidence of these two witnesses is brushed aside, no case can be said to be established against the appellant/accused. Learned Counsel for the appellant, however, had concluded that if case of accused as aforesaid is not found to be reliable then, in the alternative, accused be punished for a lesser offence as from the evidence of eye witnesses it cannot be said that accused had intention to commit murder of deceased as there is no overt act attributed to accused.
12. Ms M.H.Deshmukh, learned Additional Public Prosecutor for respondent/State, on the other hand, submitted that evidence of PW6 Pankaj Deotare fully corroborates evidence of PW10 Kiran Tandulkar and medical evidence of PW12 Dr.Nilesh Gaddewar, whose evidence establishes that deceased died homicidal death involving appellant as he had intentionally caused death of deceased by putting heavy stone on his head. It is further contended that involvement of appellant is further established from the evidence of PW1 Dr.Avinash Khilekar who, on examining the accused, certified him to have sustained fresh injuries to his fingers of which no explanation is putforth by accused. In response to submissions of learned Counsel for the appellant that considering the weight of stone which is stated to be 37 kilograms, appellant must have required some time to lift the same before it is alleged to be dropped on the head of deceased and in spite of that, it is no case of prosecution that deceased made any attempt to run away from the spot nor PW6 Pankaj Deotare made any attempt to save the deceased. Learned Additional Public Prosecutor by referring to relevant evidence of PW6 Pankaj has pointed out that said witness has admitted that the entire incident took place within 1 minutes and thus, submitted that there was no chance for either deceased to run away or for to Pankaj to do anything. Learned Additional Public Prosecutor, therefore, prayed that, in view of evidence of PW6 Pankaj, PW10 Kiran coupled with medical evidence, appellant's involvement is established and hence, the appeal is liable to be dismissed.
13. Having considering the submissions advanced as aforesaid we, with the assistance of learned Counsels for both the sides, have scrutinized material evidence and on perusal of evidence of PW6 Pankaj, Complainant have found that his evidence establishes appellant's involvement as assailant of deceased when he has deposed that, on 1.8.2009, at about 9.00 p.m. while he was proceeding to pan shop of Sanjiv Chaudhari, deceased met him there and informed him that Ashik Sweeper had called them for considering settlement of case which was pending between them and had, therefore, went to house of Ashik. However, since he was not present in the house, were returning back on the two wheeler. As per his evidence, deceased was travelling as a pillion rider and while when they were returning, they found accused having only towel tied around his waist, (to have intercepted their vehicle and abusively said as to why they were roaming from in front of his house and by saying so, pulled deceased by his caller and fell him down. After he fell down, accused assaulted him by kick and fist blows and on PW6 Pankaj Deotare intervening and asking him as to why he is beating Khushal, accused directed him to not to intervene. It has also come in the evidence of PW6 Pankaj Deotare that, at that time, even mother of accused told him to leave deceased. However, accused lifted one heavy stone lying on the spot and dropped it on the head of deceased causing him fatal injury, due to which the deceased was lying on the ground without any response) and fearing assault upon himself, Pankaj flee away from the spot on motor cycle and went to pan shop where he met PW10 Kiran Tandulkar and narrated him the entire incident. It has further come in his evidence that prior to this incident deceased had assaulted Rupam Marve, brother of accused and as such, there was enmity between Rupam and deceased and due to this enmity, accused committed assault on deceased by stone causing his death. PW6 Pankaj had accordingly lodged his report (Exh.37) upon which offence is registered.
14. Though Complainant PW6 Pankaj is cross-examined at length, nothing material could be brought on record in his cross-examination except for certain omissions from his report (Exh.37) that, on the day of incident, he returned home at 6.30 p.m. or that father of Ashik had asked Pankaj and deceased their names and about assault by kick blows and fist blows. Further omission in report is about his running away from the spot on motor cycle after assault due to fear that accused would also beat him and also Pankaj visiting Police Station with PW10 Kiran to lodge report. Looking to the nature of omissions, it is material to note that they are minor as evidence of PW6 Pankaj on the aspect of assault on deceased by stone at the hands of accused is not by way of omission nor this material evidence is shattered in any manner in the cross-examination. PW6 Pankaj has infact denied the entire case suggested to him on behalf of accused that, on the day of incident, he and deceased did not go to house of Ashik or that while returning back, they were not intercepted by accused nor he, on abusing deceased, pulled him down from the motor cycle and dropped stone on his head. Admittedly, relations between deceased and accused were strained since, prior to incident deceased had committed assault on Rupam Marve, brother of accused and according to this witness, this is the reason for accused to commit fatal assault on deceased.
15. Evidence of PW6 Pankaj Deotare is found materially corroborated by the contents of his report (Exh.37) and with evidence of PW10 Kiran Tandulkar who has deposed that he knew accused, since prior to the incident and Complainant Pankaj as both of them used to visit pan stall of Sanjiv Chaudhari and has deposed that, on 1.8.2009, at 10.30 p.m., PW6 Pankaj came to said pan shop in frightened condition and informed him that when he along with deceased had visited house of Ashik to talk about settlement of Criminal case which was pending amongst them and since Ashik was not present in the house and thus, while they were returning back on two wheeler, they were intercepted by accused on the road, who pull down Khushal from the motor cycle saying as to how they dared to roam around his house and after assaulting deceased by kick blows and fist blows when Khushal was attempting to proceed ahead, he caught him, made him fall on the ground and then by lifting stone dropped it on his head, due to which he died on the spot. He further corroborates PW6 Pankaj about his visiting to Police Station and lodging report and also on the point of old enmity between deceased Khushal and younger brother of accused Rupam Marve and also on the aspect of deceased assaulting Rupam prior to incident, and has also stated that this is the reason why accused committed assault on the deceased. Above evidence of PW10 Kiran fully corroborates evidence of PW6 Pankaj, the eye witness, who immediately after the incident, on reaching pan shop made, immediate disclosure to Kiran of assault by accused upon deceased. There is nothing to disbelieve evidence of PW6 Pankaj and PW10 Kiran, whose evidence in fact establish motive on the part of accused of assaulting deceased who prior to incident had committed assault on Rupam Marve, brother of accused.
16. In view of above discussed evidence and for the reasons stated aforesaid, we did not find much substance when it is argued on behalf of appellant that evidence of PW10 Kiran needs no consideration in absence of examination of Sanjiv Chaudhari, the pan stall owner as, in the absence of his evidence, there is nothing to establish if PW6 Pankaj and PW10 Kiran met at pan stall at 10.30 p.m. In fact, evidence of Pankaj meeting Kiran at the pan stall of Sanjiv Chaudhari on the day of incident at 10.30 p.m. does not appear to be challenged as what is suggested to PW10 Kiran is that, on the day of incident, PW6 Pankaj did not meet him nor had told him anything about the incident. It is nowhere denied that, on the day of incident, at 10.30 p.m., after Pankaj returned to pan stall in frightened condition, he met Kiran and had not disclosed him of the incident witnessed by him.
17. After considering above said evidence, we find evidence of PW12 Dr.Nilesh Gaddewar worthy to be considered, who has stated that, on 2.8.2009, he performed post mortem on the body of deceased who is certified to have sustained lacerated wound over scalp on left side near temporal hair line of size 5 cm x 2 cm extending towards backwards with contusion underlined it. According to his evidence, cause of death is due to head injury which was sufficient to cause death in ordinary course of nature and was ante mortem. He has accordingly proved his post mortem report at Exh.56.
He has further deposed that while he was on duty on 25.9.2009 as Medical Officer at Sub-District hospital, Hinganghat, he had received query along with one stone in sealed condition and copy of post mortem report. It is deposed that the blood stained stone was huge in size having irregular dimensions weighing about 37 kilograms and on examining the same, gave opinion on requisition (Exh.59) that head injuries sustained by deceased can be caused by above weapon (stone) and is dangerous to life.
18. Evidence of PW12 Dr.Nilesh, as such, further corroborates evidence of PW6 Pankaj and PW10 Kiran, whose evidence is found corroborated with the injuries as deposed by the doctor. From the evidence of doctor, it is also established that the stone, since was huge and weighing 37 kilograms, was sufficient enough to cause injury resulting into death.
19. Involvement of appellant is further found established from the evidence of PW1 Dr.Avinash Killedar who, on 2.8.2009, while was working as Medical Officer, Sub-District hospital, Hinganghat had received requisition from Police for examination of accused and on examination found him to have sustained abrasion over right elbow region admeasuring 2 x 1 cm and swelling over right little finger with tenderness. He has, therefore, advised xray as accused was also complaining pain over left great toe and as there was tenderness and swelling. He also advised xray of left foot anterior posterior as well as lateral position and has issued Injury Certificate (Exh.13) and has also identified accused to be the same person who was present in the Court.
He has further deposed that, on 28.10.2009, he received requisition memo along with Xray film dt.5.8.2009 of accused and on going through the same, noted accused to have sustained fracture of proximal phalanx of little finger of right side and accordingly, issued his opinion as per Exh.14. According to PW1 Dr.Avinash, injuries sustained by accused were about 5 to 6 hours old. The incident is dt.1.8.2009 at 11.30 p.m., while accused is examined by Dr.Avinash in the night intervening 1.8.2009 and 2.8.2009 at 3.45 a.m. as can be seen from the Medical Certificate (Exh.14) which aspect, therefore, goes to establish that accused had sustained injury as aforesaid in the incident of assault caused by him on deceased by stone. Moreover, there is no satisfactory explanation on the part of accused about injury sustained by him within 5 to 6 hours of incident to his hand.
20. Evidence of PW14 Pramod Duratkar, Investigating Officer establishes seizure of big stone having blood stain from spot under Panchanama (Exh.87) along with other articles. He has also proved Spot panchanama at Exh.86. As per C.A. report (Exh.80), blood group of deceased Khushal Patil is of Group 'A' and according to C.A. report (Exh.79), stone is stained with blood of Group 'A'. Similarly, clothes of deceased being shirt, jeans, baniyan and underwear are also stained with blood of same group. No blood is detected on the towel and underwear which were on the person of the deceased. Detection of blood of Group 'A' on the stone which belongs to deceased is another incriminating factor thereby establishing appellant's involvement, more particularly in the absence of any explanation by accused on this incriminating circumstance.
21. Having considering above stated evidence which we find to be consistent establishing appellant's involvement in the present crime, we have considered alternative submissions advanced for accused, to test if case would fall for any lesser offence then the offence punishable under Section 302 of the Indian Penal Code. For that purpose, learned Counsel for appellant had relied upon case of Hanmappa .vs. State of Karnataka reported in AIR 2009 SC 2303. In that case, it was noted by the Apex Court that prior to incident there was quarrel between deceased and accused as PW5 had categorically stated that when he went near the place of occurrence after hearing cries of deceased, he found that the accused and the deceased were scuffling with each other and also found deceased being assaulted with stone on left rib causing his death. In the background of above evidence, it was found appropriate to convict the accused for the offence under Section 304II of the Indian Penal Code.
22. Another Authority relied for the accused is in the case of Pularu vs. State of Madhya Pradesh reported in AIR 1993 SC 1487 wherein, evidence of direct witnesses, established single blow to be given on the head of deceased by appellant resulting into fracture of bones, and his ultimate death. It is held that as only one blow with an agricultural implement is caused, having regard to the time and surrounding circumstances, it was observed to be difficult to hold that the accused had intended to cause death of the deceased. Accordingly, conviction was awarded under Section 304II of the Indian Penal Code.
23. Appellant has lastly relied on the case of Namdeo s/o. Hidaku Shende .vs. State of Maharashtra of the Division Bench of this High Court reported in 2004 ALL MR (Cri) 1337 wherein case of Joseph .vs. State of Kerala reported in AIR 1994 SC 34 is relied. In the case of Joseph (supra), it is observed as under :
'9. That the accused attacked the deceased with the weapon 'lathi' and he dealt with two blows on the head of deceased. Deceased died after two days of the assault. The Apex Court found that the whole occurrence of the incident was the result of a trivial incident and in the circumstances, even though two blows were given with lathi on the head, it could not be said that the accused intended to cause injury which was sufficient; but, at the most, it can be said that by inflicting such injury, he had knowledge that he was likely to cause the death. The appellant was, therefore, convicted u/s.304II of the Indian Penal Code.'
24. The weapon involved in that case was a stick weighing 600 grams only with girth of 4.5 inches in the middle portion and thus it was found t
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hat the weapon stick was light stick which by no means can be termed to be deadly weapon and in the facts and circumstances it was, therefore, held that accused had no intention to cause death, but can be attributed with knowledge that the appellant was likely to cause death by giving single blow and hence, the appellant was convicted under Section 304II of the Indian Penal Code. 25. Authorities relied by appellant as aforesaid, facts involved therein are found to be different than the facts in appeal in hand as from the evidence of PW6 Pankaj and PW10 Kiran, it cannot be said that, prior to incident, there was any scuffle between deceased and accused. In fact, from the evidence of these witnesses it has also come on record that they had never gone to the house of accused, but had gone to house of one Ashik Sweeper for settlement of some Criminal Case with him. However, since he was not present, were returning back on two wheeler, however were intercepted by appellant, who on interception abused deceased saying as to why they were roaming around his house and on saying so, caught hold of collar of deceased, who was sitting as a pillion rider and pull him down and assaulted by kick blows and fist blows. It has also come in the evidence of that, due to such assault, deceased was trying to run ahead, but he was made to fall down on the ground and in spite of PW6 Pankaj as well as mother of accused insisting him to leave the deceased, accused lifted big stone lying on the ground and dropped it on the head of deceased causing his death on the spot. From the evidence as aforesaid, thus it cannot be said that before assault there was quarrel between deceased and accused. Though it is submitted on behalf of accused that it was impossible for accused who, at the time of incident was aged 23 years as stated in the Medical Certificate issued by PW1 Dr.Avinash after medically examining him, to lift such a heavy stone being 37 kilograms, the submissions advanced are not at all convincing. However, having considering the weight of stone of 37 kilograms, we find that since accused had intention to commit murder of deceased, he chose to select such a heavy stone to drop on the head of deceased with an intention to cause his death. In that view of the matter, we find that the case do not fall for any lesser offence as submitted, but the act by which death is caused is found done with an intention of causing death. 26. In that view of the matter, we hold that prosecution has proved the charges levelled against the accused beyond reasonable doubt. The appeal is accordingly dismissed.