Criminal Appeal No. 79 of 1995

4th December, 1998

Respondent Counsel: Mr. PRAVIN SINGHAL

JUDGMENT

DESAI, J.:- This appeal by the original accused is directed against his conviction for the offence punishable under section 302 of the Indian Penal Code. The learned IInd Addl. Sessions Judge, accepting the testimony of P.W. 6 Kamalabai, the only eye-witness, and P.W.4 Dr. Patil, held the appellant guilty for committing murder of one Pandurang by assaulting him with article no. 9 (kochera) on 17-5-1992 at about 10.30 p.m.

2. The eye account of P.W. 6 Kamalabai was that the deceased picked up a quarrel with the accused by making utterances that earlier he was engaged with his wife Laxmi and he should pay the expenses. Heated exchange before the incident went on for quite sometime. At about 10.30 p.m., when they were sleeping in the orchard, the accused came with a Kochera and started assaulting Pandurang. She rushed and informed P.W. 1 Santosh. They, thereafter, reached the spot and took the deceased to the hospital where he succumbed to his injuries.

3. The counsel for the appellant is absent. Therefore, we have carefully perused the record with the assistance of the learned Addl. Public Prosecutor. We have perused the testimony of P.W. 6 Kamalabai. Her testimony is convincing and trustworthy. It does not suffer from any material contradictions or omissions. She has given a detailed account of what had happened earlier and at the time of the incident of assault. Her testimony gets support from the First Information Report marked as Exh. 32 and further corroboration from the testimony of P.W. 1 Santosh. As such, the learned IInd Addl. Sessions Judge is right in holding the appellant as the person responsible for causing the injuries to Pandurang.

4. After scrutinising the entire record with the medical evidence, the question before us is what is the nature of the offence. We have perused the testimony of P.W. 4 Dr. Patil. He has disclosed that on postmortem, he noticed the following injuries :-

1) Incised wound - right Zygomatic area, vertical in direction 1 1/4" x 1/2" x bone deep.

2) Incised wound - right side of neck behind upper 1/3 of st. cl. muscle vertical in direction 1 1/2" x 1/2 x 1 1/2".

3) Incised wound - right foot medial aspect below medial mallepus 1" x 1/2" x 1/2".

4) Incised wound - left thigh middle 1/3" vertical, post aspect 1" x 3/4" x 3".

5) Incised wound - right ankle, lateral aspect 1 1/2" x 1" x 1".

6) Contusions - right suprascaputal and scapula, infrascapular area, vertical in direction about 5 in numbers 12" x 1/4" parrellel to each other.

7) Abrasion scapular part right side 4" x 5".

8) Abrasion right join side 2 in number.

a) 2 c.m. x 1 c.m. b) 3 c.m. x 1 c.m.

9) Abrasion both knee joint, 1 x 1 c.m. each.

10) Fracture right maxilla (compound).

11) Fracture right tibia, fibula, tallis and tarsal bones - bleeding plus, compound fracture."

He further opined that the fracture at sr. no. 11 was bleeding and this fracture was sufficient to cause death due to haemorrhagic shock.

5. Injury no.11 which is a fracture is to right tibia. We have heard the learned Addl. Public Prosecutor. He could not support that this injury could be sufficient, in the ordinary course of nature, to cause death. As such, the expert opinion as expressed cannot be relied upon to uphold the conviction under section 302 of the Indian Penal Code.

6. Having regard to the nature of background that there was quarrel, the deceased Pandurang tried to tease the accused and, thereafter, he selected a wooden like Kochera which is, as recorded in the evidence, meant for killing rats. The nature of the injury sustained by the deceased no doubt led to homicidal death. However, the homidical death could not amount to murder. The act of the accused out of anguish was with knowledge to cause injuries to Pandurang which was likely to cause death. We, therefore, hold that the appellant-accused is guilty for the offence punishable under section 304 Part II of the Indian Penal Code. It is reported that the appellant is in jail since 18-5-1992. In view of this , we pass the following order :-

O R D E R

The finding of conviction and sentence for the offence punishable under section 302 of the Indian Penal Code is hereby set aside. Instead, we convict the appellant for the offence punishable under section 304 Part II of the Indian Penal Code and direct him to suffer sentence of rigorous imprisonment as already undergone. The appellant be released forthwith, if not necessary in any other offence.

Order accordingly.