Hansraj Jogeshwar Urade vs The State of Maharashtra

Challenge is to the judgment and order dated

24.6.2004 rendered by the 1st Adhoc Additional Sessions Judge,

Gadchiroli, in Sessions Case 36 of 1993, by and under which the

appellant (hereinafter referred to as "the accused") is convicted for

offence punishable under section 304 part II of the Indian Penal

Code (" IPC ") and is sentenced to suffer rigorous imprisonment for

five years and to payment of fine of Rs. 1000/- and is further

convicted for offence punishable under section 324 of IPC and is

sentenced to suffer rigorous imprisonment for two years and to

payment of fine of Rs. 500/-. The accused is however acquitted of

the offence punishable under section 302 of the IPC.

Heard Shri A.K. Bhangde, the learned counsel for the

accused and Shri V.P. Gangane, the learned Additional Public

Prosecutor for the respondent / State.

The prosecution case, as is unfolded in the course of

the trial is thus:

Deceased Sukhdeo Dewaji Zade and the accused were

residing in village Darpanguda. The incident occurred on

28.8.1992, the day following Pola. The villagers purchased a goat

from Police Patil, the goat was killed and the list of villagers

desirous of purchasing the meat was prepared. Sukhdeo Zade

could not get a share in the meat for which he blamed his wife and

quarreled with her. Anita Zade, the sister in law of the deceased

invited the deceased Sukhdeo to have meals at her house. At

11.00 am, the deceased accompanied by his son Bandu and sister

in laws Anita and Manjulabai was proceeding towards the

house of Anita. When they were so proceeding, the accused came

out of his house armed with Ubhari (stump of bullock cart) and

dealt a blow on the head of Sukhdeo Zade who fell down. The

accused dealt two blows of Ubhari on the side of chest. Bandu,

the son of Sukhdeo Zade who intervened to save his father from

assault, suffered one blow of stick on his shoulder. One Prakash

Gedam came to the spot and snatched the ubhari from the

accused. An injured Sukhdeo was taken to the police outpost Ghot

where he lodged the oral report (Exh. 28), the gist of which is that

the accused assaulted him with Ubhari and Kisan Gedam, Namdeo

Urade and Sadashiv Urade also attempted to assault him with

stick, but were prevented from doing so by people residing in the

vicinity. On the basis of said report, offence punishable under

section 324 read with section 34 of IPC was registered against

accused Hansraj and others.

Sukhdeo was referred to Rural Hospital, Chamorshi for

medical examination. He expired at 2.00 a.m. in the hospital.

Inquest panchanama was prepared, the autopsy conducted, the

spot panchanama was recorded, seizure of Ubhari was effected

from the house of accused Hansraj, statements of witnesses were

recorded and upon completion of the investigation charge sheet

under section 302 of the IPC was submitted in the court of Chief

Judicial Magistrate, Gadchiroli who committed the proceedings to

the Sessions Court. The learned Sessions Judge framed charge

under section 302 of IPC (Exh. 8), the accused pleaded not guilty.

The defence is of total denial.

The prosecution has examined eight witnesses. PW 1

Durre Bhaiyya is witness to the spot panchanama and seizure

panchanama. PW 2 - Bandu Zade is the son of the deceased and

an injured eyewitness. The sister in law of the deceased Anita

Zade is PW 3, Kalidas Zade - the brother of the deceased is PW 4,

PW 5 Yashwant Naitam is the police head constable who took the

injured Sukhdeo and Bandu for medical examination, PW 6

Nilkanth Mankar recorded the report, PW 7 is the Investigating

Officer and the Medical Officer Dr. Khade is examined as PW 8.

The evidence of Dr. Khade (PW 8) who conducted the

autopsy on the dead body of Sukhdeo Zade reveals that he noticed

a contused lacerated wound on occipital region of scalp of size 1

1/2" x 1/2" x 1/2" with bleeding and fracture of 8th rib on the right

side which injuries were ante mortem. In the internal examination

of the body, the doctor noticed the presence of hematoma on

occipital region, linear fracture of the right temporal bone and

presence of subdural hematoma in the brain. Injury on right lung

and blood clots on the lower side of the right lung were noticed.

The conclusion of PW 8 is that the probable cause of death was

due to cardio respiratory arrest due to the injury to brain and on

right lung which cause subdural haemorrhage and haemo thorax.

PW 8 Dr. Khade proves the post mortem report Exh. 39. PW 8 has

deposed that contused lacerated wound noticed is possible due to

stick blow.

PW 2 Bandu Zade is an injured eyewitness. He has

deposed that on the day of the incident, which was the day

following Pola, one goat was purchased from the police patil. The

goat was killed. However, his family did not purchase the meat.

His uncle (the husband of the sister in law of the deceased) invited

the family for meals. PW 2 alongwith deceased Sukhdeo and

Manjulabai and Anita were proceeding towards the house of the

uncle, the house of the accused was on the way, Sadashiv the

brother of the accused asked Sukhdeo as to why he was abusing.

PW 2 states that his father Sukhdeo was not abusing anybody and

Sukhdeo told so to Sadashiv. The accused came out from the

cattle shed armed with Ubhari and dealt a blow on the head of

Sukhdeo from behind. Sukhdeo fell down and then the accused

inflicted two blows on the ribs. Bandu attempted to save Sukhdeo

and suffered a stick blow on the shoulder.

PW 2 was subjected to a lengthy cross examination. The

attempt was to bring on record that deceased Sukhdeo used to

quarrel with the villagers under the influence of liquor. PW 2 has

however, denied the suggestion given by the defence. PW 2

admits that deceased Sukhdeo did quarrel with his wife, but

denies Sukhdeo slapped his wife (mother of PW 2). He however

admits that his father did beat his mother and she had gone to call

her brother (maternal uncle of PW 2). PW 2 denies the suggestion

that the deceased abused his maternal uncle Tarachand and

Kawadu Zade in filthy language. He denies the suggestion that

deceased Sukhdeo was abusing the Urade family. The suggestion

that since Tarachand and Kawadu could not control the behavior

of deceased Sukhdeo, they called Kalidas, is denied. PW 2 denies

the suggestion that since the deceased abused Kalidas, it was

Kalidas who assaulted Sukhdeo.

The trend and tenor of the cross examination would suggest

that the defence is not disputing that the deceased Sukhdeo

suffered injury on head and on ribs due to stick. The endavour of

the defence is to show that it was not the accused who assaulted

the deceased, but it was Kalidas who is responsible for the assault

The sister in law of the deceased Anita, who is

examined as PW 3 is also an eyewitness. She has deposed that it

was accused Hansraj who assaulted Sukhdeo with Ubhari. PW 3

has deposed that the accused first dealt a Ubhari blow on the head

which caused the deceased to fall down and thereafter the accused

inflicted two blows of the Ubhari to the side portion of the body on

rib. She has also deposed that the accused assaulted PW 2 Bandu

when Bandu attempted to intervene.

Few minor omissions are brought on record. However,

minor omissions are most natural and can be attributed to

imperfect memory or an error of observation and in the case at

hand to the fact that the evidence was recorded more than 12

years after the incident. Illustratively, the omission that

Manjulabai asked the accused not to beat Sukhdeo and that the

accused pushed Manjulabai, does not dent the credibility of the

evidence. The testimony of PW 3 Anitabai is not shaken in the

cross examination.

Kalidas Zade, on whom the defence attempted to pin

the blame is examined as PW 4. He is examined as an eyewitness.

He has denied the suggestion that it was he who assaulted

Sukhdeo. Strangely, a suggestion is also given to PW 4 Kalidas

that no incident took place in his presence, although, the defence

has brought on record, in view of the admission given by PW 3

Kalidas, that his testimony is apparently hearsay, the suggestion is

not consistent with the defence that accused Sukhdeo was

assaulted by his brother Kalidas PW 4. That apart, the defence

that Kalidas brutally assaulted his brother only because he was

abused is not probalized on the touchstone of preponderance of

probabilities.

The oral report Exh 28 lodged by the deceased

Sukhdeo, which is an admissible evidence under section 32(i) of

the Indian Evidence Act is seriously attacked by the defence

contending that the PW 2 Bandu Zade admitted that the deceased

was unconscious and that he did not lodge report with the police.

The learned Sessions Judge has rightly noted that the defence has

also brought on record that Kalidas, Kapil and Anusaya took the

deceased to Police Station Ghot and that Bandu did not go to the

police station. PW 6 Nilkanth Mankar who recorded the oral

report has denied the suggestion that Sukhdeo was unconscious

and did not lodge oral report. The evidence of PW 6 is reliable

and confidence inspiring. The contention of the defence that the

oral report is fabricated to falsely implicate the accused in the

crime deserves rejection. In the teeth of the evidence on record,

the finding recorded by the learned Sessions Judge that the

prosecution has proved offence punishable under section 304 part

II of IPC is unexceptionable. The assault, even if it is assumed that

there was some provocation, was brutal. The deceased was

assaulted on the head with the Ubhari and after he fell down was

dealt two blows on the rib. The intention to cause death may be

absent but requisite knowledge must be attributed to the accused,

as is rightly held by the learned Sessions Judge.

I do not find any infirmity in the judgment and order of

conviction. The appeal is sans merit and is rejected.

Accused be taken into custody forthwith to serve the sentence. He shall be entitled to the benefit of section 428 of the Code of Criminal Procedure.

Police Station Chamorshi shall file the compliance report in the Registry of this Court, within three weeks of the receipt of the copy of the judgment and order.

The Registry to communicate this judgment and order to Police Station Chamorshi within a week.