Prasanna B. Varale, J.:— Being aggrieved by the judgment and order dated 29th September, 2003 passed by the 2nd Ad hoc Additional Sessions Judge, Akola in Sessions Trial No. 117 of 2002 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo rigorous imprisonment for two months; the appellant has preferred the present appeal.
2. The case of the prosecution in brief is as under:-
3. One Nagorao Kharate (PW-1) submitted the report at Police Station, Borgaon Manju on 08.04.2002 that he was the resident of Borgaon Manju and was doing agricultural work. It was further stated in the report that his cousin brother Dashrath Kharate was residing in his neighbourhood along with his son Gajanan Kharate. It was further stated that Gajanan was addicted to liquor and gambling and was demanding money from his father Dashrath and on refusal to pay money by Dashrath, Gajanan was abusing and beating his father Dashrath. It was further stated in the report that on 07.04.2002, in the night at about 08:30 p.m, the informant Nagorao heard shouts of abuses by Gajanan to Dashrath. On the next day, i.e on 08.04.2002, one Madhukar informed about the death of Dashrath. Nagorao, on receiving information, went to the house of Dashrath and found that Dashrath was lying in pool of blood. He further found a blood smeared stone lying beside Dashrath. Nagorao filed his report submitting that Gajanan assaulted his father with stone and committed his murder. On receiving the report, the Police Inspector Rathod, who was incharge of the Police Station, registered the offence vide Crime No. 40/2002 and proceeded with the investigation. PW-7 Mr. Rathod rushed to the spot and undertook various steps of the investigation such as drawing the panchnama of the spot of offence, seizure of the articles, drawing of inquest panchnama, recording of the statements of witnesses. The appellant/accused came to be arrested on 09.04.2002 The appellant/accused who was in the police custody expressed his desire to show the blood stained clothes, which were kept in his house. The recovery of blood stained stone was effected at the instance of the accused in presence of panchas under the panchnama (Exh.25A and 25B). The dead body was forwarded for postmortem. The postmortem notes were obtained, the report from CA was also obtained. ON completion of investigation, the charge sheet came to be filed against the accused and as the offence under Section 302 of the Indian Penal Code being exclusively triable by the Court of Sessions, the case was committed to the Sessions Court. The defence of the appellant/accused was total denial and was false implication. On appreciation of the evidence, the learned trial Court found that the prosecution was successful in proving the charge of murder against the accused and was accordingly convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer life imprisonment with find of Rs. 1000/-, in default, to suffer RI for two months. The judgment of the learned trial Court is under challenge.
4. Shri R.M Daga, the learned Counsel appearing on behalf of the appellant submitted that there is no evidence against the appellant so as to connect him with the crime in question and only on suspicion, the appellant/accused is roped in the offence. He further submitted that there is no eye witness to the incident and the witnesses brought by the prosecution are got up witnesses. The learned Counsel further submitted that PW-1 Nagorao i.e the informant though claims to be an eye witness, he has stated nothing about the incident in the report lodged by him at the Police Station and as such it is difficult to rely on the testimony of so called eye witness PW-1 Nagorao.
5. Per contra, Shri J.B Jaiswal, the learned Additional Public Prosecutor appearing on behalf of the respondent/State, supported the impugned judgment and order.
6. We have considered the contentions raised by the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the respondent/State. With the assistance of the learned Counsel, we have gone through the records and proceeded.
7. From the tenor of the evidence, we find the following circumstances have been relied upon by the prosecution to prove its case; (i) that the death of deceased Dashrath is homicidal in view of the medical evidence i.e postmortem report, the inquest panchnama; (ii) the account of the incident i.e ocular version of the witnesses; and (iii) the conduct of the appellant/accused.
8. We shall deal with the above mentioned circumstances. The prosecution places heavy reliance on the medical evidence i.e postmortem report (Exh.29) to prove that the deceased Dashrath died homicidal death. Exh.29 is proved through PW-6 Dr. Prashant Agrawal. Dr. Prashant in his testimony deposed that on external examination, he found the following injuries:
(i) Contusion of left eye and surrounding cheek and forehead 3 × 4 inches.
(ii) Subconjuncti val hemorrhage in left eye.
(iii) Contusion on right cheek 2 × 3 inches.
(iv) Contusion on right forehead 2 × 2 inches.
(v) Contusion on neck on front side 2 ½ inches from the chin, 1 ½″ × 4″ extravasated blood present in subcutaneous tissue.
(vi) Abraded contusion on back of right elbow 2 × 3 inches.
(vii) Abraded contusion on back side of left elbow 2 × 2 inches.
(viii) Contusion on left knee anteriorly 1 × 1 inch and 2 × 1 ½ inch.
(ix) Contusion on left shoulder 2 × 2 inches.
(x) Contusion on right shoulder 2 × 2 ½ inches.
(xi) Abraded contusion on back of right side infrascapular area 1 ½″ × 2 ½″ inches.
9. He further deposed about the internal corresponding injuries and they are -
(i) Haematoma to right temporo parietal area 3 × 4 inches.
(ii) Haematoma to left tempore parietal area 3 × 3 ½″.
(iii) Haematoma in occipital region 2 × 3 inches.
(iv) Injuries to brain (a) haematoma to right parietal area 3 × 3 inches; (b) haematoma to left temporo parietal region 3 × 4 inches.
(v) Fracture or ribs present anteriorly and anterolaterally on right side 2 to 8 ribs and on left side 5 to 7 ribs.
(vi) Pleura right contains blood around 150 cc and left adherent to lung and chest wall.
(vii) Larynx, Trechea and bronchi contains blood but no fracture.
(viii) Right lung lacerated around 3 cm × 1 × ½ cm on lower lobe, it was pale and on cut section oozing of blood, left lung pale, on cut section oozing of blood with some yellowish discharge.
(ix) Abdomen cavity contains blood around 500 cc. Oesofagus contains blood.
(x) Stomach contains altered blood around 50 cc. Haematoma present on posterior wall of stomach 4 × 4 ½ inches, mucosa congested in posterior part. No abnormal smell perceived.
(xi) Small intestine - Deodenal wall of it shows haematoma on initial ¼ part, mucosa congested in this part. Rest of the mucosa is pale.
(xii) Large intestine mucosa pale, contains feacal material and gases.
(xiii) Liver pale.
(xiv) Spleen lacerated on lateral aspect 3 × ½ × ½ cm.
(xv) Kidney pale.
10. Dr. Prashant opined that the death was caused due to shock due to injuries to vital organs including brain, lung and spleen. The weapon i.e the stone used in the attack was seized by the investigating agency and Dr. Prashant opined that the injuries are possible by the stone (Article-1) and he further opined that the injuries were sufficient to cause death in normal course. He also opined that the injury Nos. 1 and 4 corresponds to internal injury to head and brain. Though the defence in cross examination tried to suggest that because of the old age, the fall can cause fracture of ribs, but Dr. Prashant deposed that the fracture of all the ribs at one and same time by fall is not possible. Though the learned Counsel for the appellant tried to submit that there was no internal damage, we are not in agreement with the submission in view of the medical evidence which specifically mentioned that there were injuries to vital organs including brain, lung and spleen. It is also opined by PW-6 Dr. Prashant that the injuries mentioned in Postmortem Report can be caused by hard and blunt object and all these injuries are sufficient to cause death in normal course. The inquest panchnama is placed at Exh.20 The panch to the inquest panchnama Kailash Gawande in his corss examination stated that his signatures were obtained on one written paper in the night and as such the inquest panchnama is proved through the Investigating Officer Mr. Rathod. The inquest panchnama discloses that there was swelling above the eyes. The nose was smeared with blood, the blood had oozed out from right nostrils, lips were smeared with blood. The face of the deceased was swollen. There were abrasions on the left side of the neck. The cloth i.e baniyan worn by the deceased was smeared with blood. There were injuries like abrasions on the back side near elbow. The palm was smeared with blood. There were bruises below the knee. There were abhrasions on the left shoulder at three places. The spot panchnama (Exh.24) which is proved by the Investigating Officer discloses that there was blood accumulated in the dry condition on the spot of the incident. The flooring of the room was trampled and one heavy stone smeared with blood was found on the spot of occurrence. The medical evidence coupled with the inquest panchnama and the heavy stone smeared with blood found at the spot of the incident leave no doubt in our mind to arrive at conclusion that the deceased died homicidal death.
11. The prosecution to connect the appellant/accused with the crime in question relied on the ocular testimonies of the witnesses. The important witnesses are PW-1 Nagorao, PW-2 Ratnaprabha, PW-3 Panchfula and PW-4 Madhukar. PW-1 Nagorao is the cousin of deceased Dashrath. PW-1 Nagorao deposed that Gajanan is the son of his cousin brother Dashrath. He further deposed that Gajanan was addicted to liquor and gambling and was not doing any work. He further deposed that Gajanan used to demand money from his father. On 07.04.2002, his brother Dashrath and Gajanan were present in the house. The mother of Gajanan (i.e wife of Dashrath) had gone to Dahigaon. He further deposed that in the evening when he was present in his house along with his wife and grand daughter, he heard the dialogue between Dashrath and Gajanan. He deposed that the appellant/accused Gajanan was asking for money and Dashrath was refusing to give him money saying that he requires money for household purpose and he would not give money for drinking liquor and gambling. On refusal by Dashrath, Gajanan started abusing Dashrath and left home. Nagorao further deposed that in the night at 08:30, Gajanan started assaulting his father and Dashrath was requesting him not to beat him. On hearing the shouts, Nagorao, his wife and grand daughter came out of the house and saw the accused beating his father with stone. He further deposed that they heard the houts of Dashrath and thereafter assuming that Dashrath might have slept they also slept in the house. It is further deposed by Nagorao that in the morning one Madhukar informed about the death of Dashrath and immediately Nagorao rushed the house of Dashrath and found that Dashrath was lying in the pool of blood. Nagorao further deposed that he saw blood stained stone lying near the dead body. Thereafter, Nagorao went to Borgaon Manju Police Station and lodged report.
12. Shri R.M Daga, the learned Counsel for the appellant attacking the testimony of Nagorao submitted that in the report lodged by Nagorao, there is no mention that Nagorao witnessed the incident. He further submitted that it is difficult to believe that on hearing the shouts of the quarrel between Dashrath and Gajanan, Nagorao had not intervened in the quarrel. He further submitted that there is delay in lodging the report as the incident took place in the night of 07.04.2002 and the incident is reported to the police by Nagorao on 08.04.2002 and the incident is reported to the police by Nagorao on 08.04.2002 at about 07:00 p.m
13. We have carefully gone through the testimony of Nagorao. We find that there is no mention in the report lodged by Nagorao that he had witnessed the incident, in his substantive evidence, Nagorao gave the detail account of the incident witnessed by him. It is the settled law that first information report is not an encyclopedia and no fault can be found with the prosecution only on the ground that the first information report is brief. In the substantive evidence, Nagorao gave a detailed account of the incident. Though Mr. Daga submitted that Nagorao has not intervened in the quarrel we find that Nagorao has stated that it was a regular feature of the quarrel between Dashrath and Gajanan on the ground of demand of money. Nagorao also deposed that because of the quarrel, Nagorao felt apprehended and due to fear he did not intervene in the quarrel. We find no fault in the reaction of Nagorao. We also find from the testimony of Nagorao that after visiting the house of Dashrath when he found that Dashrath was lying in the pool of blood, he went to Police Station, Borgaon Manju via Akola as the distance from Borgaon Manju is 8 miles and it requires two to three hours to reach Borgaon Manju without going via Akola and it took some time for Nagorao to reach Borgaon Manju as he travelled via Akola by ST bus as there was no vehicle available. We find the explanation for the delay in lodging report is quite satisfactory. We also find that the delay is not such a fatal delay to raise suspicion. We further find that Nagorao was not shaken in the cross examination. In our opinion, Nagorao is reliable witness. It is also not in disute that Nagorao is the cousin brother of deceased Dashrath and uncle of appellant/accused Gajanan and as such there is no reason to disbelieve version of Nagorao.
14. PW-2 Ratnaprabha also deosed in the lines of PW-1 Nagorao. PW-3 Panchfula is also not of much helpful to the prosecution. She deposed that it was a regular feature of the quarrel between the appellant/accused Gajanan and Dashrath.
15. The next material circumstance is the recovery of the cloth at the instance of the appellant/accused. The cloth i.e one full sleeves shirt having blood stains was recovered at the instance of accused under panchnama which is proved through Investigating Officer. The articles such as the stone, the clothes i.e the shirt, baniyan, dhoti, the soil mixed with blood collected frrom the spot of incident were forwarded to CA. The blood detected on the soil, the stone, the shirt and the torn dhoti was reported to be human blood and the blood group was detected as “B” group. This is also one of the circumstances which connects the appellant/accused with the commission of crime. The statement under Section 313 of the Code of Criminal Procedure of the accused discloses that the accused/appellant had not offered any explanation in view of the fact that the appellant/accused was residing with his father and on the date of incident, there was none else in the house except the appellant/accused and his father. Though the appellant/accused has tried to take a stand of alibi and the enmity between him and Nagorao, there is no material produced by the appellant/accused to substantiate either his defence of alibi or enmity with Nagorao. The next important circumstance from the record, we find that in view of the testimony of PW-4 Madhukar who had deposed that on the day of incident as he was going towards his land he found that people gathered in front of the house of Dashrath, Madhukar entered the house of Dashrath and found that the dead body of Dashrath was lying. The blood was oozing from the nose and ear of Dashrath and there were stones lying near the dead body. Madhukar further deposed that the appellant/accused Gajanan was sleeping in the said house. In view of the testimony of the evidence of Madhukar, the presence of the appellant/accused is established by the prosecution. There is no explanation offered by the appellant/accused regarding the incident of death of his father. In our considered opinion, the prosecution has proved its case against the appellant/accused by cogent, reliable and clinching evidence against the appellant/accused.
16. Shri Daga, the learned Counsel submitted that taking overall view of the matter, the offence against the accused will not attract the provision of Section 302 of the Indian Penal Code but it would be the case under Section 304-II of the Indian Penal Code as there was no intention to murder but the incident was the result of quarrel and altercations between Dashrath and appellant/accused Gajanan. He referred to the judgments in the matters of Mohan Sopan Barbole v. State of Maharashtra (reported in 2008 All MR (Cri) 1457); Tukaram Datta Potase v. State of Maharashtra (reorted in 2009 All MR (Cri) 2553); and Goura Venkata Reddy v. State of Andhra Pradesh (reported in 2004 (1) Crimnes 238 (SC)).
17. In view of the facts of the case at hand, the judgments relied upon by the learned Counsel for the appellant are not applicable. The medical evidence, the weapon used by the appellant and the ocular testimonies of the witnesses clearly establish the offence under Section 302 of the Indian Penal Code against the appellant/accused and as such we are not inclined to accept the submissions of the learned Counsel for the appellant.
18. In view of the above discussions, we see no reason to interfere with the judgment and order passed by the learned trial Court. The appeal lacks merit and the same is dismissed accordingly.
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