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2014 Supreme(Bom) 819
High Court of Judicature at Bombay
SADHANA S. JADHAV, J.
Ramesh Baburao Pharande
Versus
State of Maharashtra & Another
Criminal Appeal No. 100 of 1995
Decided on: 03-04-2014
Advocate Appeared
For the Appellant:Rutuja Ambekar, Advocate.
For the Respondents: P.P. Shinde, APP.
Headnote:Indian Penal Code, 1860 - Sections 97, 308 and 323 - Fatal Accidents Act, 1855, Section 1(A) - Offence of murder. - Where accused assaulted deceased by means of Kick blows on his stomach having no intention to cause his death therefore accused liable to be convicted under Section 323 and not under Section 302, IPC. - In the present case, it cannot be inferred that the accused had lost his mental equilibrium upon apprehending that the young boys would cause damage to his crops. In any case, no latitude be given to him for causing the brutal attack upon an young lad. The recitals of the spot panchanama show that the victim was dragged on a stony surface. There is direct evidence to the effect that accused/appellant had given fist and kick blows on the stomach of the young lad and therefore, there was rupture of spleen. The brutality is in the act of appellant giving kick blows on the stomach after he had fall n. unconscious at the door step of his own hut.
It cannot be said that accused had no knowledge that giving forcible kicks and fist blows after dragging the victim on a stony surface may not result into death. It can be said that the bodily injury was such as was likely to cause death. Doctor PW 4 has also opined that the injuries sustained by the deceased were sufficient in ordinary course of nature of cause of death. There is no sufficient cross-examination to disprove that the injuries were not sufficient to cause death. However, by efflux of time and the fact that there is no appeal for the enhancement filed by the State and neither notice of the enhancement issued by the Court, the Court is not inclined to interfere with the conviction under Section 323 of Indian Penal Code.
It is true that the appellant had no intention to cause death of deceased, however, the brutality with which, he has reacted to mischief of a young lad, has resulted into his death.
1. Appellant herein is convicted for offence punishable under punishable under section 323 of Indian Penal Code and is sentenced to rigorous imprisonment for 6 months and fine of Rs.1,000/-in Sessions Case No.195/1990 by 2nd Additional Sessions Judge, Satara vide Judgment and Order dated 28/02/1995. Hence, this appeal.
2. Such of the facts which are necessary for the decision of this appeal are as follows.
3. On 27/02/1990, at about 6.15 pm, Kisan Valandiya, maternal uncle of deceased Santosh was present in the house. He heard the cries of victim Santosh. When they came out of the house, they saw accused/present appellant had brought Santosh near the house by dragging him with his leg. Accused had given a blow on the abdomen of victim Santosh. Santosh became unconscious. Kisan had questioned the accused as to why he had assaulted Santosh and the accused had replied that Santosh had entered into his field and therefore he assaulted him. It is alleged that accused had taken kerosene lamp from the house of Balu Mithapura and had threatened father of Vinod, P.W. 3 that he would set the hut on fire. Accused had fled from the spot. Victim Santosh was taken to the doctor at Saigaon. However, victim Santosh had expired.
4. Kisan Valandiya had lodged a report on the same day at about 9.15 pm. On the basis of his report, crime No.28/1990 was registered against present appellant for offence punishable under section 302 and 506 of Indian Penal Code. Investigation was set in motion. Accused was also arrested on the same day. After completion of investigation, charge-sheet was filed on 08/10/1990. Case was committed to the Court of Sessions and was registered as Sessions Case No.195/1990. Prosecution examined 8 witnesses to bring home the guilt of the accused.
5. P.W. 1 Yeshwant Narayan Malusare is panch in the panchanama of the seized of the clothes of accused. It is elicited in the cross-examination that the clothes which were seized were not removed from the person of the accused in his presence.
6. P.W. 2 Shriram Shamrao Nanaware panch for spot panchanama. He has deposed before the Court that the spot of incident is situated to the south of S.T. stand. There were standing crops in that field. However, according to him, at the place of incident, there was no any standing crop. Feet marks were seen at the place of incident. There was mud. It appeared that the crop was damaged. Panchanama is at Exhibit 12. It is elicited in the cross-examination that there are about 7 to 8 small strips of agricultural lands between the S.T. stand and place of incident. Several vegetables seen in the said field. He could not state as to what crop was damaged at the place of incident. However, he further states that it appears that the crops were some vegetable. According to him, spot was shown by the police. He had attested the panchanama in the premises of S.T. stand and not at the spot of incident. According to him, there were thorny bushes on the eastern boundary on the said small fields.
7. P.W. 3 Vinod Baku Mithapura was residing behind the S.T. stand at Anewadi. He stayed in a tent. Santosh was his maternal cousin. Santosh was originally resident of Mahuli, Taluka : Satara. He has deposed before the Court that field of the accused is near to his house i.e. at about 25 feet from his house. On the day of incident, he along with his brother Manoj and Santosh had gone to the field of accused at about 6.15 pm casually. Accused came near them. He was suspecting that they would cause some damage to his crops. On seeing accused, they fled towards their house. At that time, accused caught hold of Santosh. He assaulted him with fist and kick blows on his abdomen. He had informed his mother and maternal uncle about the assault by the accused on Santosh. In the meanwhile, accused had dragged Santosh to his house. He again kicked Santosh on his abdomen by his right leg. Santosh fell down and became unconscious. There was froth oozing from his mouth. Up
