2009 ALL MR (Cri) 3359
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. BHANGALE, J.
Atul Shivaji Bhurase Vs. State Of Maharashtra
Criminal Appeal No.535 of 2008
15th October, 2009
Petitioner Counsel: Mr. M. N. KHAN
Respondent Counsel: Ms. RACHANA WASNIK
Penal Code (1860), S.304, Part-II - Culpable homicide not amounting to murder - Accused not coming prepared with weapons - Alleged weapon like iron bar, stones pelted were readily available on construction site - Intention to commit murder of deceased, cannot be attributed to accused - Accused acting without pre-meditation and did not behave in cruel and unusual manner - However, accused had knowledge that he was likely to cause death of deceased - Conviction of accused under S.304, Part-II of I.P.C., upheld. (Para 10)
JUDGMENT :- Appellant along with three others was tried for an offence punishable under Section 302 read with Section 34. Learned Sessions Judge, Gadchiroli who concluded Sessions Case No. 67 of 2006 by judgment and order dated 18.6.2008, convicted appellant for the offence punishable under Section 304, Part-II of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to suffer further imprisonment for six months. It is against this order of conviction and sentence that the present appeal has been preferred.
2. Facts are that Vilas son of Janardan Chafle was engaged in sale-purchase business of paddy. Appellant Atul was working in the shop of original accused no.3 Waman and accused no. 4 Santoshi. Original accused no.2 Leelabai is mother of accused no.1/appellant. It appears that appellant Atul was trying to allure customer of Vilas which Vilas did not like and on his expressing displeasure, appellant Vilas followed and beat him. Other accused also joined appellant. When Janardhan, father of Vilas tried to rescue Vilas, he was also beaten. In that, appellant Atul and accused Waman lifted Janardhan and fell him down on road, with the result, Janardhan sustained bleeding injuries to his head. Janardhan, in an unconscious condition, was removed initially to Civil Hospital, Gadchiroli where doctor advised Vilas to have CT-Scan done on Janardhan. After CT-Scan at a private hospital, Janardhan was brought back to Civil Hospital. At about 07.00 p.m. Janardhan was declared dead. Incident took place on 11.01.2006. Vilas lodged report with Police Station, Dhanora against accused on which Crime No.1/2006 under Section 302 read with Section 34 of the Indian Penal Code against accused persons including appellant. ASI Pathan (PW 8) held inquest on deceased Janardhan and issued requisition for the purpose of post-mortem on the body of Janardhan. Dr. Choudhary (PW 7) carried post-mortem on the body of Janardhan on 12.1.2006 and he opined that death occurred due to head injury. Post-mortem report is on record at exhibit 39. PSO Kosurkar (PW 10) visited spot of occurrence and recorded panchanama (exhibit 25) in presence of panchas. He also recorded statements of witnesses. Appellant and his mother (accused no.2) were arrested on 15.1.2006. At the instance of appellant, bamboo stick was recovered while accused no.2 Leelabai led the police to recovery of stone used as weapon of offence. Accused nos.3 and 4 who were initially absconding, were arrested on 16.2.2006. After investigation was over, charge-sheet was filed before the Judicial Magistrate, First Class, Gadchiroli against all the accused under Section 302 read with Section 34 of the Indian Penal Code. Learned Magistrate then committed case to the Court of Sessions for trial according to law.
3. Charge (exhibit 10) was framed on 3.12.2007. It was read over and explained to accused in vernacular to which they pleaded not guilty and claimed to be tried. Defence of the appellant was that of total denial.
4. Prosecution examined Vilas and Yeshwant (PWs.1 and 2 - sons of deceased Janardhan) and one Prakash Kolte (PW 6) to prove the incident. Besides panchas, Dr. Chaudhary was examined to prove memorandum of PM report. ASI Pathan, ASI Bawanwade and PSO Kosurkar were also examined.
5. Learned Sessions Judge held accused nos.2 to 4 guilty of an offence punishable under Section 323 of the Indian Penal Code and sentenced them to suffer simple imprisonment for the period of their detention. Learned Sessions Judge held accused no.1/appellant guilty of the offence under Section 304, Part-II of the Indian Penal Code and upon conviction, sentenced him as aforesaid.
7. It is submitted on behalf of the appellant (convict) that the learned trial Judge ought to have acquitted the appellant for want of evidence beyond all reasonable doubts to prove the charge. Learned counsel for the appellant further submitted that the learned trial Court ought to have discarded evidence of prosecution witnesses on the ground that there were contradictions and omission in evidence of alleged eye-witnesses PWs.1, 2 and 6. According to learned Advocate for appellant, the trial Court ought to have held that the appellant was entitled to benefit of doubt.
9. I have carefully considered the evidence on record in the light of submission advanced. P.W.1 Vilas, PW 2 Yashwant and PW 6 Prakash were eye-witnesses. From their evidence, it appeared that deceased Janardhan had intended to rescue Vilas from being assaulted by appellant Atul. Janardhan (deceased) had run to rescue Vilas. The role attributed to accused was that they started pelting stones and used iron bars. It appeared from cross-examination of PW 2 Yashwant that construction of the house was in progress. Therefore, it must be inferred that iron rods and stones were readily available at construction site. According to eye-witness Prakash (PW 6), there was scuffle between Vilas and Janardhan on one hand and Atul on the other side over rate of paddy. It is also in evidence of Yashwant (PW 2) that Janardhan (deceased) was operated for urine-stone.
10. Considering the evidence of PWs.1, 2 and 6 in juxtaposition to medical evidence of P.W. 7 Dr. Vinod injuries observed in column no.17 of post-mortem notes were possible by violent contact and violent fall and abrasions were simple injuries, it appears that appellant Atul had not come prepared with weapons. The alleged weapon like iron bar, stones pelted were readily available on the construction site. Intention to commit murder of Janardhan cannot be attributed to Atul (appellant). There is reason to believe that he acted without premeditation and did not behave in cruel and unusual manner although it must be observed that Atul must be attributed with knowledge under the circumstances that he was likely to cause death of Janardhan although he had no requisite intention to commit murder. Therefore, the trial Court has rightly convicted the appellant under Section 304, Part-II of the Indian Penal Code and conclusion drawn by the trial Court in the facts and circumstances of the case does not warrant any interference.