Rameshwar Balabhau Mangale vs State of Maharashtra

P.B. Varale, J.—Being aggrieved by the judgment and order dated 14th December, 2012 passed by the learned Additional Sessions Judge, Akot in Sessions Trial No. 36 of 2011 thereby holding the accused/appellant guilty and awarding the conviction under Section 302 of the Indian Penal Code and Section 3(1) (x) of the SC and ST (Prevention of Atrocities) Act, 1989 and sentencing the appellant to undergo life imprisonment along with fine, in default, to suffer further RI for two years with fine; the appellant is before this Court.

From perusal of the material, the case of the prosecution is unfolded thus:--

"On the fateful day i.e. on 16.04.2011 at about 07:00 p.m., Smt. Sushila Mahadeo Solanke (PW-1), the wife of deceased Mahadeo Solanke had been to fetch the water from hand-pump and her husband Mahadeo was proceeding to temple, the accused, by abusing deceased Mahadeo on his caste i.e. "Takardya, Jasta Majala, Aaj Tula Baghun Gheto", gave blow on the head of Mahadeo. Mahadeo raised shouts. Sushila, on hearing the shouts, rushed to the spot and found that Mahadeo was lying on the floor and the accused/appellant was abusing Mahadeo as well Sushila (PW-1). He was about to rush on PW-1 also, but with the intervention of the villagers, she was saved. The Police Patil and the Sarpanch of the village, immediately shifted Mahadeo in the hospital at Akot and thereafter he was shifted to the Civil Hospital at Akola. Sushila (PW-1) initially had been to Adgaon Outpost and thereafter she approached the police personnel at Hiwarkhed Police Station and lodged her report. The investigating agency was set in motion. Initially offence was registered under Section 307 of the Indian Penal Code. The necessary formalities of the investigation were carried out, such as, drawing the spot panchnama, collecting the material from the spot, recording the statements of the witnesses, obtaining the necessary medical certificates, such as, the postmortem report, forwarding the material for chemical analysis and obtaining the report of the Chemical Analyser. On conclusion of the investigation, charge-sheet was filed against the accused/appellant. Though initially offence was registered under Section 307 of the Indian Penal Code against the appellant, victim Mahadeo, who was admitted in the hospital initially at Akola and subsequently at the Government Medical College and Hospital, Nagpur, breathe his last on 19.04.2011, the offence was converted into Section 302 of the Indian Penal code. The case being exclusively triable by the Court of Session, the Magistrate, Telhara committed the case to the Court of Session. The charge was framed against the accused. The accused pleaded not guilty and claimed trial. The prosecution, in support of its case, examined 13 witnesses and placed reliance on the other material in the form of documents. The defence of the accused was of denial as well as false implication on account of village politics. The learned Sessions Judge, on appreciation of the evidence, passed the judgment and order referred to above."

Dr. Kalsi, the learned Counsel appearing on behalf of the appellant vehemently submits that the appellant/accused is falsely implicated and submits that there is no material against the appellant and the so called witnesses, who are alleged eye witnesses, are the family members of the deceased and being interested witnesses their version cannot be accepted as a truthful version. She further submits that the prosecution has not examined any independent witness and there is variance in the testimony of the witnesses and the omissions brought on record in the examination of these witnesses make the case of the prosecution doubtful. She also submits that the witnesses are got up witnesses and the report is an after thought material posed against the appellant/accused. The learned Counsel further submits that there is absolutely no material to attract the provisions of the atrocities Act against the accused/appellant. Dr. Kalsi, the learned Counsel then submits that though assuming that there is some material against the appellant and not admitting the same, the material is wholly unsustainable for the conviction of the appellant under Section 302 of the Indian Penal Code. She further submits the case would not certainly fall under Section 302 of the Indian Penal Code but for a lesser offence.

Per contra, Shri Ahirkar, the learned APP for the respondent/State supports the case of the prosecution and submits that the witnesses are most natural witnesses. The witnesses are the eye witnesses and the account of these witnesses is not at all shaken when they were subjected to detailed cross-examination. He further submits that merely because the witnesses are the family members, their testimony cannot be thrown clamping these witnesses as interested witnesses. Shri Ahirkar, the learned APP also submits that apart from the oral account of these witnesses, the other material in the form of scientific evidence such as the Postmortem Report and the recovery of the weapon at the instance of the appellant clearly reveals that it is the accused/appellant and none else is the author of the said crime. He submits that this is a case wherein the prosecution has collected a strong evidence in the form of the eye witnesses. Thus, the learned APP prays for dismissal of the appeal.

With the assistance of the learned Counsel for the appellant and the learned APP for the respondent/State, we have gone through the material on record. Insofar as the material consists of the direct evidence in the form of the account of the eye witnesses as well as the other evidence in the form of the documents are concerned, firstly, we will deal with the oral account of the witnesses. As the prosecution relies on the account of these eye witnesses, we would deal with the evidence of Sushila (PW-1), Sangita (PW-3) and Jaikumar (PW-5) who are referred to as the eye witnesses.

Sushila (PW-1), wife of the deceased, in her oral testimony before the Court, gives a detailed account. Sushila refers to the prequel of the incident dated 16.04.2011 and states that deceased Mahadeo i.e. her husband used to work as Watchman in the fields of one Kisan Chaukhande and Jairam Navalkar since one month prior to the occurrence. She then submits that the appellant/accused had uprooted gram crop from the field of Kisan and her husband prevented from doing so. The appellant/accused at that point of time abused her husband saying, "Takaldya, Baherun Aala, Jasta Majala, Tule Gammat Dakhavito, Shahanpana Karun Rahila". This incident was informed by Mahadeo to Sushila (PW-1) as well to Kisan and Jaikumar who happened to be the Vice President of Gram Panchayat and the Police Patil of the village respectively. These persons by calling accused/appellant, gave him an understanding. The accused/appellant was carrying a grudge against Mahadeo on that count. PW-1 Sushila then refers to the incident in question occurred on 16.04.2011. She states that on 16.04.2011, at about 06:30 p.m., she along with her sister-in-law Sangita (PW-3), was fetching water from the hand-pump. At that time, her husband Mahadeo and Jaikumar were passing from the house of Ashok Bele. The duo (Sushila (PW-1) and Sangita (PW-3)) heard voice of Rameshwar saying "Takaldya, I will kill you today". On hearing this, they looked to the other direction and saw that the appellant came from backside of victim Mahadeo and gave a blow on his head by means of Kopali. Mahadeo raised shouts saying, "Me Melo". Sushila (PW-1) and Sangita (PW-3) immediately rushed towards Mahadeo and found that Mahadeo was lying on the ground. The accused, who was standing there, was asking for Jaikumar. Jaikumar sensing a threat to him, ran away from the spot. The Police Patil and the Deputy Sarpanch of the village reached on the spot by arranging a motor cycle. One Narendra and Madhukar shifted Mahadeo to the hospital of Dr. Sikwal. Sushila further states that the appellant also threatened and abused her and rushed towards her. Sushila (PW-1) who was apprehended, ran away from the spot. The villagers who were gathered there, obstructed the accused and saved her. She then states that she went to the hospital of Dr. Sikwal at Akot and then gave phone call to the elder brother of deceased Mahadeo. She then states that along with Mohansingh, the elder brother of the deceased, she initially went to Adgaon Outpost and thereafter Hiwarkhed Police Station. She narrated the incident to the police and the same was reduced in writing and on the assurance of the correctness of the contents by reading it over to her, the printed FIR is also prepared. The report of Sushila (PW-1) is at Exh. 18 and the printed FIR is at Exh. 19. She further states that initially Mahadeo was referred to Akola Hospital and thereafter to the Government Medical College and Hospital, Nagpur and on 19.04.2011, Mahadeo succumbed to the injuries. She identified the clothes worn by her husband at the time of the incident. She states that she and her husband belong to "Takonkar" caste; whereas the accused/appellant belongs to "Maratha" caste.

The witness was subjected to a detailed cross-examination. Though the certain omissions were brought on record on assessing the oral evidence of this witness, we find that the omissions are not of such nature to create doubt on the actual incident, witnessed by this witness late i.e. PW-1 Sushila. In the cross-examination, an attempt was also made to suggest that the presence of another witness Sangita (PW-3) is doubtful as her presence is not referred to in the FIR. An attempt is also made to suggest that the report is lodged in consultation with the relatives. On assessing the oral testimony of this witness, we find that this witness is a natural witness on account of the assault made by the appellant on the victim. She also states the sequence of the events such as shifting the victim initially to a private hospital of Dr. Sikwal at Akot, informing the elder brother of the victim namely Mohansingh approaching Hiwarkhed Police Station, shifting the victim to Akola Hospital and then Government Medical College and Hospital, Nagpur and the death of the victim on 19.04.2011 at Nagpur. She also identifies the apparels worn by her husband at the time of the incident.

Though an attempt was made by giving suggestion to this witness that on the day of the incident, the victim and one Jaikumar Navalkar who were under the influence of liquor and a fight took place between them, the witness flatly denies this suggestion. Though Dr. Kalsi, the learned Counsel for the appellant makes an attempt to submit that the presence of Sangita is brought on record and the same is not referred to in the FIR by this witness, it is now settled position of law that the FIR is not an encyclopedia and the defence has not brought any omission about the presence of Sangita in the substantive oral evidence of PW-1 Sushila.

The next witness is Sangita (PW-3). She also states about the incident and the role played by the appellant. Sangita though subjected to cross-examination and certain omissions were brought on record, the same are in respect of utterance of the words by the victim and utterance of the threats given by the appellant to Sushila (PW-1). Sangita on the aspect of the presence of the appellant and giving a blow by means of kopali on the head of deceased Mahadeo, stood firm.

The next witness to the incident is Jaikumar (PW-5). He states that Mahadeo was working as watchman in his filed as well as in the field of Kisan. He also refers to the earlier incident of the appellant/accused uprooted gram crop and the information about the same given to him by Mahadeo. He states that he asked Mahadeo to keep mum as it is the matter between the neighbours. In the cross-examination of this witness, an omission was brought in respect of the incident of entangling the water pot of the wife of accused Rameshwar when she had been to the well of this witness and the deceased removed that water pot, on that account the accused carrying a grudge against Mahadeo. An attempt was made to submit that this witness approaching the house of Mahadeo when no family member was present. Thus, an attempt was made to attack the version of this witness. Though such attempt was made as referred to above and though there are certain omissions, these omissions are in respect of old incident informed by deceased Mahadeo and an assumption that because of that incident, the appellant/accused was carrying grudge against him. As this omission no way results in shaking the version of this witness on the aspect of the presence of the appellant and his act of giving blow of weapon kopali on the head of Mahadeo, we are unable to accept the submission of the learned Counsel for the appellant that the version of this witness is not trustworthy. On the contrary, we find that PW-5 is an independent eye witness who is not the family member of the victim. We also find that this witness on information given by the victim that the appellant was uprooting the gram crop from the field, informed Mahadeo that he should keep mum as this is the matter between neighbours. Thus, the oral testimony of this witness shows that this witness was not carrying any grudge against the appellant and wanted to forgive the appellant. On assessing this witness, we find that the version of this witness is cogent, reliable and the witness is an independent and trustworthy witness. Thus, these eye witnesses in chorus establish the complicity of the appellant in the crime in question.

Now, turning to the other material evidence is in the form of the account of the doctors namely PW-10 Dr. Gopal Sikwal; PW-11 Dr. Sainath Mitkare; and PW-12 Dr. Rishikesh Pathak. Dr. Sikwal is the medical practitioner running a private hospital at Akot and in his hospital, Mahadeo was shifted immediately after the incident i.e. on 16.04.2011 at about 09:30 p.m. He found two injuries on examination; (i) CLW of size 5x3 cm on left parietal region; and (ii) CLW of size 4x5 cm on occipital region with profused bleeding. He states that he provided primary treatment in the form of stitches, IV fluid and referred the patient to higher center for further treatment. The Medico Legal Certificate issued from his hospital at Exh. 64 is proved by this witness. He also states that the injuries may cause due to the weapon kopali shown to him. He further states that the injuries received by the victim may cause by the blunt side of the weapon.

Dr. Sainath Mitkare (PW-11) deposed that on 17.04.2011 he was attached to the Government Medical College and Hospital, Nagpur in surgical department and states that Mahadeo was brought in the hospital with the case of head injury and admitted in the hospital. He also states that Mahadeo had undergone surgery and tomography of head was performed previously suggestive of large extra dural haemorrhage in left temporal parietal region of volume 50 cc with mid line shift to right by 1 cm with sub tentorial herniation with burr whole evacuation done on 17.04.2011. He states that a query was received from the police authorities asking the fitness of the patient for recording his statement and he replied that the patient was unfit to give statement. He then states that on 19.04.2011 at 05:00 p.m., the patient expired and an information was given to the police and the body was sent to postmortem examination. He further states that he admits the contents of Exh. 69 i.e. Death Certificate endorsed by him. He then states that the injury referred by him may cause by blunt side of kopali.

Dr. Rishikesh Pathak (PW-12) is the Medical Officer who had performed the autopsy and issued the postmortem report (Exh. 72). He states that on external examination of the body, he noted the injuries in column No. 17 and on internal examination, he noted the injuries in column No. 19. Then he refers to injuries in column No. 17 as under:--

"Injury No. 1: Lacerated wound over high parietal region, mid line of size 2.5 x 0.5 cm x bone deep, placed sagittally, 7.5 cm above occipital protuberance.

Injury No. 2: Lacerated wound over left parietal region of size 5 cm left to injury No. 1 of size 3 x 0.5 cm x bone deep. Placed sagitally.

Injury No. 3: Surgical incised wound with 7 stitches in situ, suggestive of an incision for therapeutic craniotomy over left parietal region, 8 cm in length, placed 12 cm above tip of left mastoid.

Injury No. 4: Abrasion over posterior aspect of trunk on left side, 3 cm below lower angle of scapula of size 2.5 x 2 cm. brownish in colour.

Injury No. 5: Therapeutic intravenous puncture mark over dorsum of right hand."

He states that considering the external and internal findings, he had opined about the cause of death as head injury. He then states that the injuries mentioned in column Nos. 17 and 19 of postmortem may cause by the blunt side and handle of the weapon. Though an attempt was made to suggest that the injury suffered by the victim i.e. head injury cannot be the cause of death. The suggestion is flatly denied by this witness. This evidence leaves no doubt of the factum that the death of Mahadeo was homicidal death.

Though the panch witnesses turned hostile on account of recovery of the weapon at the instance of the appellant, the same is proved through the Investigating Officer (PW-13). PW-13 Sk. Sultan Sk. Fakira deposed that at the relevant time, he was posted as SDPO at Akot. He states that he took up the investigation of registration of the offence and carried out the various formalities of the investigation. Then he states that the weapon kopali was recovered at the instance of the accused and the memorandum statement (Exh. 82) was recorded and the weapon was recovered from the house of the appellant/accused which was kept hidden below the heap of husk in a room. He then states that the blood stained clothes of the appellant/accused were also recovered. The panchnama was drawn in presence of the panchas i.e. Exh. 83. He further states that the weapon and the clothes were forwarded for chemical analysis. The perusal of the CA report shows that the blood detected on the clothes of the deceased was of A-Group; whereas no blood was detected from the clothes of the accused as well the weapon kopali.

Thus, taking into account the material collected by the investigating agency and relied on by the prosecution in support of its case, the material in the form of ocular testimony of the eye witnesses establishes the complicity of the appellant in the commission of crime in question. The material also establishes that the death of the deceased is homicidal death. On assessing the material, it further reveals that the material falls too short and is wholly unsustainable on the aspect of attracting the provisions of atrocities Act against the appellant. The abuses and utterances of the words on the caste of the victim are shattered in cross-examination of the eye witnesses. Though we find that the material establishes the complicity of the appellant in commission of crime and the death of the victim being homicidal one, in our opinion, the material by itself is not sufficient enough to convict the appellant for the offence punishable under Section 302 of the Indian Penal code. The medical evidence assumes much importance on this aspect. All three Medical Officers i.e. PW Nos. 10, 11 and 12 in chorus state that the injury caused to the victim was by the blunt side of the weapon kopali/axe. Thus, considering the fact that the blow given by the appellant is by the blunt side of the weapon and this being the case of single blow that too given by the blunt side of the weapon, the appellant would be at the most guilty of an offence under Section 304 Part (II). It also reveals from the perusal of the evidence that though the incident took place on 16.04.2011 and the victim breathe his last on 19.04.2011, we find that as the death is neither an instantaneous nor an immediate result of the assault, Section 302 of the Indian Penal Code would not be attracted against the appellant and the case of the appellant would fall under Section 304 Part-II of the Indian Penal Code.

It will not be out of place to refer to the judgment of Delhi High Court in the case of Shiv Kumar Vs. State of Delhi . On the backdrop of single knife blow, it was submitted that in the heat of passion, the appellant/accused gave a knife blow to the victim. The Delhi High Court, by observing that the appellant who had no intention to kill, gave a single blow to the deceased, was a result of sudden fight in the heat of passion and the appellant who had not taken any undue advantage or act in unusual manner resulting in the unfortunate death of the victim and as such the case of the appellant falls within the exception to Section 300 of the Indian Penal Code and as such the offence committed by the appellant is one punishable under Section 304 Part (II) and not under Section 302 of the Indian Penal code.

In the result, the appeal is partly allowed.

The conviction for the offence punishable under Sections 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is set aside. The accused is acquitted of the said charges.

The conviction for the offence punishable under Section 302 of the Indian Penal Code is altered to Part-II of Section 304 of the Indian Penal Code and the sentence awarded by the learned Sessions Judge is reduced to seven years rigorous imprisonment.

Rest of the order is maintained.