2008 Supreme(Bom) 777
F.I.REBELLO, K.U.CHANDIWAL
SUBHASH BABU PATIL – Appellant
Versus
STATE OF MAHARASHTRA – Respondent
Advocates appeared:
For appellant: A.P. Mundergi, Senior Counsel with S.V. Katwal
For State: P.S. Hingarani, A.P.P.
Judgement Key Points
- The appellant was convicted under Section 302 IPC and sentenced to life imprisonment and fine; appeal led to partial acquittal under Section 304 Part I by prior bench, remanded by Supreme Court for fresh disposal. (!) [4000303900001]
- Charges included rioting and murder under Section 302 r/w 34 IPC against appellant and father; prosecution relied on three eye-witnesses, recovery of weapons, post-mortem doctor, and investigating officers. [4000303900001]
- Defense produced injury certificates and panchanamas from cross-case (Sessions Case No. 102/1987) under Section 294 CrPC; prosecution similarly produced prior depositions. [4000303900001][4000303900012]
- Defense arguments: prosecution failed to prove guilt beyond doubt; improbabilities from cross-complaint; doubtful recoveries; single injury suggests Section 304 Part II or self-defense. [4000303900002]
- Prosecution arguments: eye-witnesses and recoveries establish guilt; PW 10's cross-examination on Dilip's police station visit not conclusive. (!)
- Trial court erred in de-exhibiting first map (Exh. 22) after recalling PW 1 for correct map; once exhibited, document remains on record and can be considered. [4000303900003] (!)
- Section 294 CrPC allows documents admitted without genuineness dispute to be read in evidence without formal proof; applies to defense documents like injury certificates and panchanamas from cross-case. [4000303900004] (!) (!) (!) (!) (!) (!)
- Eye-witness PW 2 (complainant) described sequence: bullocks trespass, quarrel at house, slap, return with iron bar, fatal blow to Dilip's head by appellant; supported by PW 3 and 4; Dilip unconscious thereafter. [4000303900005]
- Cross-examination revealed Gram Panchayat disputes and cross-complaint by appellant alleging assault by 20-22 persons including Dilip. [4000303900005]
- PW 10 (IO) deposed Dilip visited police station conscious with PW 2, inquired about assault but no disclosure of assailant named; sent to dispensary; no medical records produced. (!) (!) [4000303900006]
- Blood marks (100 ft) in front of appellant's house unexplained; sticks/stones with blood recovered there; shifts scene from prosecution version; undermines eye-witnesses. [4000303900007]
- Recoveries doubtful: stick attributed to father not appellant per panchanama; iron bar no blood per CA report, unsealed when attached; panch hostile. [4000303900008]
- Post-mortem: multiple injuries, two on skull sufficient to cause death (possible by iron bar or stick); clothes panchanama unhelpful. [4000303900009]
- Right of private defense available considering injuries to accused, blood at his house, single blow, Dilip conscious per PW 10; not precluded even if not pleaded. [4000303900010] (!)
- Prosecution failed to prove guilt beyond reasonable doubt; benefit of doubt to accused; appeal allowed, conviction set aside, appellant released. [4000303900011] (!) (!) (!)
JUDGMENT:
F.I. REBELLO, J.:-
The appellant herein was convicted of the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- or in default to undergo R.I. for four years. Against the conviction and sentence the appellant preferred an appeal against the judgment dated 17-7-1990. A learned Bench of this Court by their judgment dated 01-03-2007 partly allowed the appeal and acquitted the appellant of the offence punishable under section 302 of the Indian Penal Code, however, convicted the appellant under section 304-11 of the Indian Penal Code and sentenced him to suffer R.I. for 10 years and fine of Rs. 5,0001- and in default of fine imprisonment for one year. The appellant aggrieved preferred an appeal before the Supreme Court being Criminal Appeal No. 18 of 2008. By order dated 4-1-2008 considering that the appellant was not represented at the time of hearing, the learned Supreme Court was pleased to set aside the judgment of this Court and remand the matter to this Court for fresh disposal. This matter had been placed before us on 2-5-2008 and has since been heard.
2. The appellant herein was charg
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