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2015 Supreme(Bom) 2035
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
T.V. Nalawade, J.
Santosh - Appellant
Vs.
The State of Maharashtra - Respondent
Criminal Appeal No. 146 of 2000
Decided On: 09.02.2015
For the Appellant: Joydeep Chatterji, Adv.
For the Respondents: N.B. Patil, A.P.P. and S.V. Nathu, Adv. to assist A.P.P.
Headnote:[INDIAN] PENAL CODE, 1860 - Sections 302 and 304, Part II Conviction for culpable homicide. Where accused assaulted deceased without any intention to cause his death therefore conviction of accused is under Section 304, Part II, IPC justified. The evidence on the record has created a possibility that probably there was a free-fight and in the free-fight both the sides used dangerous weapons. He submitted that in view of the nature of evidence, the sentence of imprisonment of 5 years is little bit harsh and it needs to be reduced. He also submitted that the probability that some other person had inflicted the injuries cannot be ruled out as it was night time and the evidence shows that there was no sufficient light on the spot. The Court holds that these submissions are not acceptable. The appellant was known to both the complainant and his son ’S’. 7 persons were specifically named in the FIR and the name of the appellant was taken at serial No. 6. There is other evidence which gives corroboration to the versions of eye-witnesses. The Court has no hesitation to hold that recovery of weapon under Section 27 of the Evidence Act is a convincing circumstance and it needs to be used against the appellant. In view of nature of evidence of the doctor, his opinion that this weapon did not cause the injury, cannot be accepted. Further, when there is direct evidence, such discrepancy cannot affect the fate of the case. There is no need to discuss the evidence of other witnesses as they were declared hostile by the prosecution. there was no reason to father of deceased and brother of deceased to falsely implicate present appellant in such a case. The evidence on the record shows that the appellant went to his residential place and from there he brought knife and that was done after starting of the quarrel. On the basis of this circumstance, the Court could have held the appellant guilty of the offence of murder also. It can be said that the appellant is fortunate for not getting that result of the matter. In view of this circumstance, the Court holds that it is not possible to reduce the sentence further.
T.V. Nalawade, J.
1. The appeal is filed against judgment and order of Sessions Case No. 64 of 1995 which was pending in the Court of Additional Sessions Judge, Ambajogai, district Beed. The Appellant was charged for offence punishable under section 302 read with 34 of I.P. Code. He is convicted for the offence under section 304 Part II of I.P. Code and sentenced to suffer R.I. for 5 years and to pay a fine of Rs. 500/-. Both the sides are heard. The incident in question took place on 10th August, 1995 in Mochi Galli, Sadar Bazar, Ambajogai. The complainant Homlal Choudhari was a Member of the Committee formed by his community for resolving the disputes amongst the members of the community and for taking policy decisions in the community. There are allegations that Appellant and some other persons of his side were against Homlal and they used to pick up quarrels with Homlal and the members of his family.
2. Deceased Ravichandra was working with one Orchestra unit and he was attending a tuition to learn the use of musical instruments. On the day of the incident, Homlal and his son Santosh were invited to attend a function of Bhajan in the house of Shivram Pitambre. They went there to attend the function. 15 to 20 persons were attending the function. When the function was going on, after 10.15 p.m. accused Yuvraj Pardeshi entered the house and questioned as to how the function was held there. He also asked about the President of Committee. The President was present in his house situated adjacent to the house of Shivlal and so Yuvraj went there to question him. The President did not give response to Yuvraj and so he returned to the spot in angry mood and with him present Applicant and other accused also came. They picked up quarrel with the persons who had arranged the function.
3. As the Appellant and other boys had dispute with the family of Homlal, they picked up quarrel with Homlal and they started giving abuses. To avoid further trouble Homlal and his son Santosh came out of the house of Shivlal and they started returning to home. Present Appellant and other accused then intercepted them and they started pushing and pulling Homlal and his son Santosh. At the same time, deceased Ravichandra, other son of Homlal, was returning home from the place of his tuition and he witnessed the incident. When he came forward to intervene in the incident, accused Smt. Hansabai instigated the other boys to finish Ravichandra. Then, two boys held Ravichandra, Appellant Santosh Shitole fetched Jambiya from his residential place and gave blow of the weapon on the right side of the chest of Ravichandra. Ravichandra collapsed on the spot. Blood was oozing from the injury and after seeing that Appellant and his associates ran away. Nobody dared to interfere in the incident. Homlal shifted Ravichandra to hospital but doctors declared that he was already dead. On the same night, Homlal gave report against the appellant and 6 other persons, including the aforesaid lady and the crime came to be registered for offence of murder.
4. During investigation, statements of witnesses came to be recorded. Appellant came to be arrested. As per statement given by Appellant under section 27 of Evidence Act the weapon came to be recovered from his house. Bloodstains were found on the weapon Jambiya - dagger. Spot Panchanama came to be prepared. P.M. report was collected and the charge sheet came to be filed for offence punishable under section 302 read with 34 of I.P.C. against 7 persons.
5. The trial Court framed the charge for aforesaid offence. Appellant pleaded not guilty. Prosecution examined 3 eye witnesses. All of them stuck to their versions given before police. Doctor was examined to prove that Ravichandra died due to the injuries inflicted on him during the incident. On the basis of aforesaid evidence, the trial Court has given conviction for offence under section 304 Part II of I.P.C.
6. Homlal P.W. 1 has given evidence that during incident, which t
