Criminal Appeal No.198 of 2002

27th November, 2006

Petitioner Counsel: R. M. DAGA
Respondent Counsel: S. G. LONEY

JUDGMENT

R. C. CHAVAN, J. :- Taking exception to his conviction for offence punishable under Section 302 of the Penal Code and sentence of imprisonment for life and fine of Rs.5,000/- inflicted upon him by the learned Additional Sessions Judge, Gondia, the sole accused in Sessions Trial No.72 of 2000 before the learned Judge has preferred this appeal.

2. Facts, which led to the prosecution and conviction of the appellant, are as under :

Appellant Premlal and victim Dhanlal are real brothers. There was a partition in the family, in which 1.35 acres of land was allotted to the share of their father Shankar. Shankar was residing with the appellant and had executed a will in favour of appellant's son. Since the appellant was not treating Shankar properly, Shankar had shifted to the house of victim Dhanlal and cancelled the will executed in favour of appellant's son. Shankar then executed a will in favour of Dhanlal. This led to a strain in the relations of the appellant and his brother Dhanlal. On 20-07-2000, when Dhanlal and his servant Kashiram were tethering cattle in the site meant for tying cattle, a quarrel broke out between the appellant and Dhanlal. The appellant was armed with a stick and gave blows by the stick on the head of Dhanlal, who fell down. Dhanlal was shifted to Rural Hospital, Tirora and from there, to Government Medical College and Hospital, Nagpur, where he succumbed to his injuries on 21-07-2000.

3. After registration of an offence on a report by victim's son Prakash, the police caused an inquest to be performed and sent the dead body for post-mortem examination. In course of investigation, the police recorded statements of witnesses, recovered incriminating articles, caused them to be examined by the Forensic Science Laboratory, and on completion of investigation, sent the charge-sheet to the Court of learned Judicial Magistrate First Class, Tirora, who committed the case to the Court of Session at Gondia.

4. Since the appellant pleaded not guilty to the charge of offence punishable under Section 302 of the Penal Code framed by the learned Additional Sessions Judge, Gondia, he was put on trial; in course of which, the prosecution examined as many as ten witnesses. After considering the evidence tendered, the learned Additional Sessions Judge held that the guilt of the appellant was proved and, therefore, proceeded to convict the appellant, and sentenced him as aforementioned. Aggrieved thereby, he has preferred this appeal.

5. We have heard Shri. R. M. Daga, the learned counsel for the appellant, and Shri. S. G. Loney, the learned Additional Public Prosecutor for the State.

6. The learned counsel for the appellant submitted that the medical evidence in the form of testimonies of Dr. Khobragade as P.w.5 and Dr. Mohite as P.W.10 would rule out homicide attack on the victim. He submitted that the injuries observed by P.W.5 Dr. Khobragade before the victim was referred to Government Medical College and Hospital, were only lacerated wounds on forehead and occipital region on the back of the scalp. P.W.10 Dr. Mohite, who conducted post-mortem examination, too, had observed a lacerated wound on the right side of mid-parietal region, a stitched wound over the left forehead and two contusions - one over the left angle of eye and the other over the left cheek. The notes of post-mortem examination proved by P.w.10 Dr. Mohite would show that upon dissection, he had found that the skull had a depressed communited fracture over the right parietal region with radiative linear fracture towards frontal bone. The right temporal bone, and the occipital bone - part of the parietal bone - were depressed inwards. Brain matter was lacerated and there was a sub-dural haemorrhage.

7. The learned Additional Public Prosecutor for the State rightly submitted that the force with which blow must have been given can be imagined by the fact that the skull had a depressed communited fracture over the right parietal region. Indeed, considering the nature of injuries observed by the two Medical Officers, it would be difficult to conclude that the injuries inflicted were not homicidal in nature.

8. The learned counsel for the appellant next submitted that the evidence in this case was not indicative of complicity of the appellant in the injuries sustained by the victim. He submitted that P.W.1 Prakash, victim's son, who had given reports at Exhibits 12 and 13, was not an eye-witness to the incident. P.W.1 Prakash had stated that he came to know of the incident from Kashiram, who had been examined as P.W.2, but did not support the prosecution. According to the learned counsel for the appellant, categorical statement of Kashiram that he did not know what happened after he had a talk with deceased Dhanlal, would rule out Kashiram having witnessed the incident. The learned Additional Public Prosecutor submitted that the witness was permitted to be cross-examined and in course of this cross-examination, Kashiram did admit that the appellant had given a stick blow on the head of Dhanlal and that he had intervened and attempted to hold the stick. He had also admitted that the appellant gave a second blow of stick on the forehead of Dhanlal and due to the blows of the stick, Dhanlal fell down. However, again, when cross-examined on behalf of the appellant, the witness stated that he did not see how Dhanlal sustained injuries or as to whether Dhanlal fell down or as attacked by someone. The learned Additional Public Prosecutor submitted that though the witness had thus changed his versions and may not be a reliable witness, the fact that in course of cross-examination by the Prosecutor, he did admit having witnessed the assault by the appellant on the victim, cannot be brushed aside. However, in view of somersault, which P.W.2 Kashiram had taken, it would be safe to exclude his evidence from consideration.

9. The learned counsel for the appellant submitted that the other eye-witness P.W.3 Kailash, who is the victim's son, had come to the spot on hearing cries, that is obviously after the incident was over, and, therefore, his version of the incident was not worth acceptance. He pointed out that this witness had referred to presence of Ramraj Chaudhari, who had been examined as P.W.4. This Ramraj, however, stated that when he reached, Dhanlal was lying on the spot and then Kailash and others came. Therefore, according to the learned counsel for the appellant, the evidence of P.W.4 Ramraj would rule out the presence of P.w.3 Kailash at the time of assault. We are unable to accept this contention. While the evidence of witnesses, who had been won over, could be excluded, it would be inappropriate to find fault with the evidence of other witnesses because of the deviations, which appear in the evidence of the hostile witnesses. Therefore, hostility of P.W.2 Kashiram or P.W.4 Ramraj cannot reduce the credibility of the evidence of victim's son P.w.3 Kailash, who would have no reason to make a false accusation in respect of assailant of his own father. Further the cross-examination of P.W.1 Prakash, the other son of the victim, clearly brings out the motive for this attack. Cancellation of a will in favour of the appellant's son by the appellant's father and execution of a fresh will in favour of the victim, was a natural cause for the appellant to get irked. Since the victim's family had already got the will of victim's father in their favour, they were unlikely to have an axe to grind or to gain anything by falsely implicating the appellant.

10. As rightly pointed out by the learned Additional Public Prosecutor, the cross-examination of P.W.5 Dr. Khobragade would show that the defence sought to be taken was that the victim fell in the cattle-shed on being hit by the cattle and sustained such injuries. A similar suggestion was made to P.W.10 Dr. Mohite, who conducted the post-mortem examination. The learned Additional Public Prosecutor submitted that these suggestions to the Medical Officers and the cross-examination of other eye-witnesses deprive the appellant of any benefit that he could have otherwise had by explaining the assault by giving its correct genesis. Therefore, the contention of the learned counsel for the appellant, based on the recital in FIR at Exhibit 12, that the incident was preceded by a quarrel between the appellant and the victim, has to be rejected, since the appellant had himself ruled out such a defence.

11. To sum up the medical evidence points to a homicidal attack leading to the death of victim Dhanlal, and the victim's son Kailash had no reason to falsely name the appellant as the assailant, since the victim's side had already secured a will of Dhanlal's father in their favour. Therefore, it cannot be said that the learned Trial Judge erred in relying on the eye-witness account of Kailash in respect of the assault and holding the appellant guilty of murder. Since the defence has not made out a case of the appellant being involved in any offence of lesser gravity, the question of altering the conviction or sentence does not arise.

12. Consequently, the appeal is dismissed.

Appeal dismissed.