Bombay High Court
Kishor Ramrao Lahane vs The State Of Maharashtra on 19 December, 2017
Author: T.V.Nalawade
Bench: T.V.Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.371 OF 2001
Kishor S/o. Ramrao Lahane .. Appellant
Aged-39 years, (Ori.Accused No.2)
Occu-Taxi Bicycle Shop,
R/o. Gautam Nagar, Parbhani,
Dist.Parbhani
Versus
The State of Maharashtra .. Respondent
Through Police Station,
New Mondha, Parbhani
Mr.R.D.Sanap, Advocate for the appellant (appointed)
Mr.V.S.Badakh, APP for the respondent/State
CORAM :T.V.NALAWADE &
S.M. GAVHANE, JJ.
RESERVED ON :25.09.2017
PRONOUNCED ON :19.12.2017
J U D G M E N T [PER: S.M. GAVHANE, J.S]
. The appellant (hereinafter referred to as
accused No.2) was convicted and sentenced to suffer
imprisonment for life and to pay a fine of Rs.500/-
(Rupees Five Hundred), in default to suffer simple
imprisonment for three months, who was tried alongwith
accused No.1 Dhuraji Sane (Whose Criminal Appeal
No.421/2001 against conviction has been abated as per
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order dated 05.08.2014), for the offence punishable under
Section 302 r/w Section 34 of the Indian Penal Code (For
short the IPC) as per the judgment and order dated
20.08.2001 in Sessions Trial No.45/1997 passed by the 3 rd
Additional Sessions Judge, Parbhani, has preferred this
appeal challenging the conviction and sentence recorded
against him. The appellant was also given benefit of set
off as per the impugned judgment and order for the period
from 04.09.1996 to 17.04.1997 when he was in jail.
2. Facts of the prosecution case, as it appears
from the police papers, are as under:-
A] The deceased Sirajoddin was working as a Police
Constable in New Mondha Police Station, Parbhani. The
complainant Shaikh Mehboob Shaikh Habib (PW-2) is the
maternal uncle of the deceased Sirajoddin. Accused No.1
was resident of Milind Nagar, Parbhani while accused No.2
was resident of Gautam Nagar, Parbhani. Accused No.1
Dhuraji Sane had borrowed money from the deceased.
B] It is alleged that on 03.09.1996 in the night at
about 10.00 pm when the deceased constable was passing
from Gautam Nagar locality he met accused persons. The
deceased demanded cash amount to accused No.1 which he
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had borrowed from the deceased. Accused No.1 then gave a
stick blow to the deceased Sirajoddin. Accused No.2
Kishor who was present alongwith accused No.1 had thrown
bicycle on the head of the deceased. There was one
another person alongwith accused persons and he also gave
stick blow to the deceased. The deceased sustained
bleeding head injury besides other injuries.
C] Immediately after the incident as above the
deceased who was attached to New Mondha Police Station,
Parbhani as a Constable went to the said police station.
He requested Police Officer to refer him to Civil
Hospital as he had sustained bleeding head injury and to
record his complaint subsequently. Accordingly after
taking entry in the station diary the deceased was
referred to Civil Hospital alongwith Police Constable
Bhagwan Wadkile (PW-6). While going to the Civil Hospital
alongwith Police Constable Wadkile (PW-6), the deceased
on enquiry disclosed to him incident as above. After the
deceased was admitted in Civil Hospital, Parbhani his
maternal uncle the complainant (PW-2) on knowing that the
deceased was assaulted at Gautam Nagar Pati went to the
Civil Hospital in the night. On enquiry the deceased
disclosed to him that accused No.1 gave stick blow to
him, accused No.2 had thrown bicycle on his head and one
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another person with whom he was not acquainted had also
given stick blow to him. During night of 03.09.1996 and
04.09.1996 at about 01.15 am Sirajoddin died.
D] Thereafter at about 04.00 am the complainant
Shaikh Mehboob (PW-2) went to New Mondha Police Station,
Parbhani and lodged the complaint (Exh.29) making
aforesaid allegations against the accused and
particularly that in the night of 03.09.1996 at about
10.00 pm on account of money the accused caused serious
head injury to the deceased by stick and by throwing
bicycle on his head and as a result he died in the night
at 01.15 am. Treating the said complaint as FIR Crime
No.204/1996 for the offence under Section 302 r/w Section
34 of the IPC came to be registered in New Mondha Police
Station, Parbhani against accused assailants and the
investigation was started. During initial investigation
inquest panchanama (Exh.59) was prepared by Police Head
Constable Dadake and the postmortem examination was
conducted by Dr. Pande (PW-1) in the Civil Hospital,
Parbhani and he issued postmortem report (Exh.26). As
regards cause of death he opined that death was caused
due to cardio respiratory arrest due to cerebral
laceration, with intra cerebral hemorrhage with fracture
of skull.
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E] In further investigation PSI Sarode (PW-10)
visited the scene of offence and prepared panchanama. He
arrested the accused and seized clothes on the person of
the accused and prepared separate panchanamas. The
complainant Shaikh Mehboob produced shirt of the deceased
and it was seized under panchanama. The pant and nicker
of the deceased were also seized under separate
panchanama. The accused were referred to Civil Hospital
for examination. Doctor examined them and issued
certificates. The Investigating Officer recorded
statements of witnesses. On 10.09.1996 when the accused
No.1 was in police custody, PSI Sarode recorded statement
that he would produce the stick and accordingly at his
instance stick was seized and panchanama was prepared.
So also, witness Jaiwant Waghmare had produced bicycle
stating that it was kept with him by the deceased and
said bicycle was seized.
3. After completion of the investigation police
submitted the charge-sheet in the Court of JMFC, Parbhani
against in all five accused for the offence punishable
under Section 302 r/w Section 149 and Section 147 of the
IPC. As the offence under Section 302 of the IPC was
exclusively triable by Court of Session, learned
Magistrate committed the case to the Sessions Court,
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Parbhani.
4. At the time of framing charge the accused Nos. 3
to 5 were discharged by the Additional Sessions Judge,
Parbhani and charge was ordered to be framed against
accused Nos.1 and 2.
5. The charge was framed against the accused i.e.
accused Nos.1 and 2 for the offence punishable under
Section 302 r/w Section 34 of the IPC to which they
pleaded not guilty and claimed to be tried. Their
defence as it appears from their statements under Section
313 of the Code of Criminal Procedure and trend of the
cross-examination of the material prosecution witnesses
is that they have been falsely involved by the PSI Sarode
(PW-10) the Investigating Officer.
6. To prove the guilt of the accused the
prosecution has examined in all 10 witnesses and it has
relied upon the panchanamas and postmortem report
referred to above. Considering the evidence trial Court
has held that the prosecution has proved that death of
the deceased is homicidal and the accused are responsible
for the death of the deceased and accordingly it has
convicted both the accused for the offence punishable
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under Section 302 r/w 34 of the IPC and sentenced each of
them to suffer life imprisonment and to pay a fine of
Rs.500/- [Rupees Five Hundred] in default, to suffer
simple imprisonment for three months and also directed to
give set off of the period under gone by the accused by
the impugned judgment and order dated 20.08.2001.
7. Aggrieved by the aforesaid judgment and order
the appellant /accused No.2 has preferred this appeal on
several grounds mentioned in the memorandum of appeal.
8. We have heard Mr.Sanap, learned Advocate
(appointed) for the appellant/accused No.2 and the
learned APP for the respondent/State and with their able
assistance we have perused the evidence adduced by the
prosecution. We have also perused the impugned judgment
and order.
9. Learned Advocate for the appellant/accused No.2
submits that the evidence in the form of eye witnesses
Pws.3 and 4, station diary entry No.49 and oral dying
declaration allgedly made by the deceased to Police
Constable Wadkile (PW-6) and Shaikh Habib (PW-2) is not
believable and the trial Court has erred in relying upon
the said evidence. PW-2 is maternal uncle of the deceased
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and as such he is interested witness. Learned Advocate
for the appellant/accused No.2 has thus prayed to set
aside the impugned judgment and order and to acquit the
appellant/accused No.2 by allowing the appeal.
10. On the other hand learned APP submits that the
trial Court has properly considered the evidence of
aforesaid eye witnesses, evidence in the form of oral
dying declaration to Pws.2 and 6 and Exh.49 extract of
station diary and rightly concluded that death of the
deceased was homicidal and the accused were responsible
to the death of the deceased. He submitted that the trial
Court has rightly held the accused No.2/appellant guilty
for the offence under Section 302 r/w 34 of the IPC and
sentenced him by the impugned judgment and order and
there is no ground to interfere with the said judgment
and order. He claimed to dismiss the appeal.
11. Case of the prosecution is that death of the
deceased was homicidal and the accused are responsible
for his death. As regards motive to the accused to commit
the offence is concerned it is alleged that accused
committed murder of the deceased as he demanded cash
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amount borrowed by accused No.1 from him.
12. As regards homicidal death of the deceased Dr.
Pande (PW-1) in his evidence at Exh.25 deposed that on
04.09.1996 he was attached to Parbhani Civil Hospital. On
that day dead body of Shirajoddin/deceased was referred
to him for conducting postmortem examination. He
conducted the postmortem examination and found following
surface wounds and injuries on the dead body:
i. Abrasion over midarm left side about 1cm. In
diametre (Red to blue colour)
ii. Abrasion over left leg anterior aspect midle 1/3rd
portion having size 2x1 cm. (Red to blue)
iii. CLW over left temporal scalp region above ear having
size 3x2x2 cm.
iv. Contusion abrasion over extending from upper end of
scapula laterally up to upper part of arm on left side
having size 21 cm x 2 cm. (Red to blue colour)
v. Contusion abrasion on from upper end of scapula
towards post axillary line fold having size 14x1.5 cm.
(Red to blue colour)
vi. Contusion mid scapular region left side having size
8 cm 0.5 cm (Red to blue)
vii. CLW about 3 cm diameter left forearm lower 1/3rd.
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13. According to Dr. Pande corresponding to above
said surface wound No.3 mentioned in column No.17 there
was internal injury fracture of temporo parietal region
on left side just behind and above mastoid area of 'L'
shaped having 3 x 4 cm. There was cerebral laceration
caused due to by Injury No.3 temporo occipital region of
size 3x5x1/2 cm. Due to injury No.3 there was contusion
with pattachial hemorrhage of size 2 x 2 cm. at the base
of brain. There was blood collected at the inside middle
post drainal fossa. (The back of portion of the head
inside of the skull). Dr. Pande further deposed that all
these injuries were ante-mortem in nature, caused by hard
and blunt object. The person died within 24 hours of
taking the last meal. The viscera was preserved for
chemical analysis. The cause of death was due to cardio
respiratory arrest due to crebral laceration intra
cerebral hemorrhage due to fracture of skull. He stated
that he issued postmortem report (Exh.26). He deposed
that injuries can be caused by stick article No.8 showed
to him. Injury No.3 is sufficient to cause death. The
handle or other part of bicycle can also cause such
injury if the bicycle is thrown by force at this portion
of the body.
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14. In the cross-examination Dr. Pande has stated
that except injury No.3 other injuries like injury Nos.
1,2,6 and 7 can be caused due to fall on hard and blunt
object. He denied that injury No.3 is possible only due
to sharp object. He stated that injury No.3 had bleeding
but could not tell as to whether there was excessive
bleeding. According to him in such cases the period of 12
hours after receiving of the injury is crucial. In the
cross-examination on behalf of accused No.2 he has denied
that unless some sharp weapon is used the injury No.3
cannot be caused. So also, he stated that if the person
is lying on the ground and bicycle is simply thrown on
the head and it is not hit on the head by using force
then there may not be injury like injury No.3. Thus, the
evidence of Dr. Pande regarding cause of death due to
cardio respiratory arrest due to cerebral laceration,
with intra cerebral hemorrhage with fracture of skull and
that in the ordinary course of nature injury No.3 is
sufficient to cause death has not been specifically
challenged in the course of his cross-examination on
behalf of the accused. It was not suggested to Dr. Pande,
that injury No.3 which was sufficient to cause death was
caused accidentally. The postmortem report (Exh.26) shows
that injuries as deposed by Dr. Pande were found on dead
body and it also shows cause of death as deposed by Dr.
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Pande. Thus, on the basis of above medical evidence it
can be inferred that death of the deceased was homicidal.
The trial Court has rightly held so. We find no fault
with the said findings.
15. Now it is to be seen whether the accused i.e.
present appellant accused No.2 and accused No.1 whose
appeal is abated, have in furtherance of their common
intention caused death of the deceased and as such they
are responsible for death of the deceased.
16. To Prove above facts, the prosecution has relied
upon the evidence of following categories:
a] The evidence of eye witnesses PWs-3 and 4.
b] Exh.49 station diary entry No.47 dated 03.09.1996.
c] Oral dying declaration to Police Constable Bhagwan
Wadkile (PW-6) and Shaikh Mehboob complainant (PW-2) by
the deceased and evidence of Dr. Dhanorkar (PW-8)
regarding condition of the deceased at the relevant time.
d] Memorandum Exh.33 of accused No.1 to produce the
stick and seizure of stick at his instance as per
panchanama Exh.33-A.
e] Finding of injuries on the person of accused Nos. 1
and 2 as per injury certficates (Exh.44 and 45)
respectively on the basis of evidence of Dr. Jainapurkar
(PW-7).
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17. The evidence of PW-3 Sayyad Habib, who is eye
witness, is that the incident took place about 5 years
back. It was at about 10.00 pm. At about 09.50 pm
passengers boarded in his cycle-rickshaw at bus-stand and
they were to be taken to A-1 market. After reaching the
passengers at A-1 market he was returning home via
Gulshanbag road. It was at about 10.00 pm. After reaching
Gautam Nagar Pati he saw crowd of people. He parked his
cycle-rikckshaw by the side of the road and he went
towards the crowd to see as to what was happening. He saw
that three persons were giving beating to constable
Sirajoddin. He had seen police constable Sirajoddin in
the past and he knew him. He further deposed that two
persons were holding sticks and they were beating
Sirajoddin with sticks. The third person lifted a bicycle
and he forcibly threw the bicycle on the head of the
Sirajoddin. Due to this blow of bicycle Sirajoddin
sustained bleeding injury to his head and near ear. He
stated that one person gave a blow of stick on the head
of Sirajoddin and after that other persons hit Sirajoddin
by bicycle on the head. He stated that he saw Sirajoddin
had put his hand on the injury and he walked towards the
police station. As regards identification of the accused,
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Sayyad Habib (PW-3) has stated that the persons who gave
stick blow on the head of the Sirajoddin was Dhuraji
accused No.1 and he identified him in the Court. He
stated that person who hit bicycle on the head of
Sirajoddin was Kishor Cycle Taxiwala. His name is also
Kishor. He identified accused No.2 in the Court. Thus, he
identified both the accused in the Court.
18. Though PW-3 has been cross-examined at length on
behalf of the accused nothing is found in favour of the
accused. In the cross-examination he stated that he used
to take his Cycle-rickshaw at the shop of Kishor (accused
No.2) for removing puncture and so he knows him. He
stated that he has to maintain cordial relation with
police due to nature of his work. But he has denied that
he is deposing false at the instance of police and the
complainant. He also denied that he deposed false that
Kishor accused No.2 hit bicycle on the head of Sirajoddin
and due to that he sustained bleeding injury. This
witness is not related to the deceased or PW-2 the
complainant who is maternal uncle of the deceased. He is
an independent witness. He has no reason to depose false
against the accused or to support the prosecution
unnecessarily. His evidence shows that he used to take
Cycle-rickshaw at the shop of accused No.2 for removing
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puncture. Therefore, it is quite natural for him to know
the accused No.2. Thus, on the basis of his evidence an
inference can be drawn that accused No.1 who is now dead
and one more person had given stick blows to the deceased
and present appellant/accused No.2 had thrown bicycle on
the head of the deceased and due to that the deceased
sustained bleeding injury to his head and near ear.
19. The evidence of PW-4 Sayyad Nasir Sayyad
Mohammadali another eye witness is that he was working as
a contractor. At the relevant time the construction was
going on at Ramkrishna Nagar, Parbhani. The incident took
place five years back. At about 08.30 pm he returned home
to have a dinner. After having dinner he was proceeding
to the site of work at Ramkrishna Nagar. He ascertained
as to whether the bricks were brought at the work site.
When he found that the bricks were not brought, he went
to the person, Shaikh Mehboob who was to supply the
bricks, near the Super Market. He could not see him. He
went to the Yusuf Colony to the house of Mk. Mehboob but
he was not present in his house. Then he started
proceeding towards Gautam Nagar.
20. Sayyad Mohammadali (PW-4) has further deposed
regarding incident that when he reached near Gautam Nagar
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Pati he saw that the people had gathered there. The
people were saying that Sirajoddin a Police man was being
beaten. He was on his Hero Honda motor cycle. He
stopped his motorcycle by the side of the road. 3-4
persons were there and they were giving abuses to Siraj.
He saw that one person gave blow of stick on the head of
Siraj, one person gave blow of stick on the back of Siraj
and third person hit bicycle on the head of Siraj. Siraj
proceeded towards Mondha Police Station on foot. He
(witness) was frightened and he returned to home. As
regards identification of the accused his evidence shows
that he identified accused No.1 to be the person who gave
stick blow on the head of Sirajoddin and accused No.2 to
be the person who hit Sirajoddin by using bicycle.
21. In the cross-examination (PW-4) stated that he
did not intervene in the incident. He did not take
Sirajoddin to Police or hospital on his motorcycle as he
was frightened. He has denied that he is deposing false
that he has seen the incident. He stated that police did
not hold identification pared and accused persons were
not shown to him by police at any time and for the first
time he pointed out the persons who gave stick blows and
person who hit bicycle to the deceased. He denied that
he had no occasion to come via Gautam Nagar and he did
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not see the incident. He also denied that he is deposing
false at the instance of PSI Sarode. It is true that
police did not hold identification pared and this witness
has identified the accused for the first time in the
Court. But, nothing is brought on record in his cross-
examination on behalf of the accused as to why he is
deposing false against the accused. He is an independent
witness. He is not relative of complainant or the
deceased. Therefore, it cannot be said that he is
interested witness. In such circumstances there is no
reason to disbelieve his evidence and on the basis of his
evidence an inference can be drawn that at the material
time of incident accused No.1 gave stick blow on the head
of deceased and accused No.2 hit bicycle on the head of
the deceased. As such he has corroborated the evidence
of PW-3 in respect of these material particulars.
22. Exh.49 station diary extract of 03.09.1996 shows
that said entry was taken at Sr. No.47 at 10.30 pm on the
said day. As per said entry the deceased Sirajoddin was
assaulted by accused Nos. 1,2 and unknown person in front
of Cycle Taxi Shop near Gautam Nagar Pati, Parbhani and
that he was assaulted by stick and bicycle was hit on his
head. Therefore, he sustained beating and head injury
and he said that firstly he be sent to the hospital and
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his complaint be taken subsequently. Therefore, he was
sent in Government Hospital, Parbhani alongwith Police
Constable Wadkile (PW-6). The station diary entry
corroborates evidence of eye witnesses PWs.3 and 4
regarding assaulting deceased by stick and hitting
bicycle to his head by the accused.
23. As regards oral dying declaration made by the
deceased to PWs.2 and 6 is concerned the evidence of
PWs.2 Shaikh Habib shows that while he was at his home on
the day of incident at 11.30 pm he came to know that
deceased was assaulted at Gautam Nagar Pati and admitted
in Civil Hospital. Then he went to Civil Hospital. After
reaching there he saw that Rafiuddin Bashiroddin, the
maternal uncle of the wife of the deceased, Mahraj Ahmad
brother of the deceased and Jebunissabegum the wife of
the deceased were present near Sirajoddin. He asked
Sirajoddin as to what had happened and he disclosed in
presence of these four persons that he was proceeding by
the side of Gautam Nagar Pati and when he was present
near Kishor Cycle Taxi, two persons like Dhuraji and
Kishor were present near Kishor Taxi. He demanded amount
given as hand loan to Dhuraji (accused No.1) and after
that Dhuraji started giving abuses to him. He further
disclosed that Dhuraji was holding stick and Dhuraji
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assaulted him with the stick. He further disclosed that
Kishor accused No.2 then hit on his head with the
bicycle. That there was one more person who was unknown
to Sirajoddin and he assaulted him with stick on his back
and on his head. According to him Sirajoddin disclosed
that in the incident Dhuraji gave blow of stick on his
head and he sustained injuries in the assault. He also
disclosed that in that condition he went to police
station. He requested police to admit him in the
hospital and thereafter to record his complaint. He was
sent in the hospital. In the cross-examination he has
denied that Sirajoddin has two wives, second wife was
living in a separate house, that he had given divorce to
his first wife and that due to said divorce the relatives
of first wife of Sirajoddin were angry with him. So
also, he has denied that Sirajoddin was unconscious and
he could not have given such statement. He denied that so
many persons were on enimical terms with Sirajoddin and
only out of suspicion, the accused persons are implicated
in this case. He denied that accused No. 2 has been
falsely implicated in this case at the instance of PSI
Sarode and no such dying declaration was given before him
by Sirajoddin. Thus, nothing is found in favour of the
accused in the cross-examination of PW-2 and his evidence
regarding oral dying declaration to him by the deceased
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is not shattered.
24. As regards oral dying declaration to PW-6 Police
Constable Bhagwan Wadkile is concerned, he stated that on
03.09.1996 he was on duty in New Mondha Police Station,
Parbhani. His duty was from 08.00 pm on 03.09.1996 to
08.00 am on 04.09.1996. At about 10.30 pm Constable
Sirajoddin B.No. 62 came to the police station. Head
Constable Pungar was on duty as PSO and said
Sirajoddin /deceased met him. Sirajoddin was in injured
condition. The Police Station Officer had directed him
in writing to take Sirajoddin to the Civil Hospital,
Parbhani. Accordingly he had taken Sirajoddin to Civil
Hospital. He had returned the office copy of said letter
(Exh.42) in the Police Station. He stated that he and
Sirajoddin went to Civil Hospital in autorickshaw and
while they were going towards the Civil Hospital from
Police Station in autorickshaw he had enquired with
deceased Sirajoddin as to how the incident occurred. He
had informed that he had been to the accused persons who
were standing near the Board of Gautam Nagar, in Gautam
Nagar locality. When he had demanded cash amount which
accused No.1 borrowed from him, accused No.1 Dhurqaji
addressed abuses such as 'Haramkhor' and enquired as to
how he is liable to pay cash amount and gave stick blow
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to him. Accused No.2 Kishor had thrown bicycle on his
head. Though he has been cross-examined at length on
behalf of the accused nothing is found in favour of the
accused. Exh.42 copy of letter addressed to the Medical
Officer, Civil Hospital, Parbhani shows that the deceased
Sirajoddin was sent in the said Civil Hospital in injured
condition. In such circumstances there is no reason to
disbelieve the evidence of PW-6 Police Constable Wadkile
simply because he is Police Constable and that the
deceased was also Police Constable. Thus, on the basis
of evidence of PW-6 it can be inferred that the deceased
made oral dying declaration to PW-6 that accused No.1
assaulted him on his head by the stick and accused No.2
had thrown bicycle on the head of the deceased when
deceased had demanded cash amount which was borrowed from
him by the accused No.1.
25. Now, it is to be seen whether the deceased was
conscious when he made oral dying declaration to PW-6
Police Constable Wadkile and thereafter to PW-2 Shaikh
Habib his maternal uncle in the Hospital. The evidence
of Dr. Shripad Dhanorkar (PW-8) shows that on 03.09.1996
he was on duty as Medical Officer in Civil Hospital,
Parbhani from 08.00 pm to 08.00 am of the next day
morning. From New Mondha Police Station, Parbhani Mohd.
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Sirajoddin was referred to him. He examined him at about
10.50 pm and he found four injuries i.e. three contusions
and one abrasion on the person of the deceased. He stated
that when he examined Sirajoddin he was conscious and he
was talking. He has of course not mentioned in injury
certificate (Exh.47) issued by him that deceased was
conscious and able to talk when he examined him. But and
the fact remains that after the deceased was admitted in
the hospital at about 10.50 pm in the night on 03.09.1996
and he died at 01.15 am on 04.09.1996. Thus, he died
after about two hours of his admitting in the hospital.
As referred earlier PW-2 has denied that the deceased was
unconscious and there is no suggestion to PW-6 that the
deceased was unconscious when he disclosed incident to
him. Thus, on the basis of above evidence it can be said
that the deceased was conscious when he made oral dying
declaration to PWs.2 and 6 in the night after incident.
For the above reasons on the basis of evidence of Pws.2
and 6 it can be inferred that the deceased made oral
dying declaration to both the PWs.2 and 6 that the
accused No.1 assaulted the deceased by stick on his head
and accused No.2 had thrown bicycle on the head of the
deceased and as a result the deceased sustained head
injury.
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26. As referred earlier it has come in the evidence
of Dr. Pande (PW-1) that he noticed in all 7 injuries, as
referred earlier on the person of the deceased, including
injury No.3 i.e. CLW over left temporal scalp region
above ear having size 3x2x2cm which is proved fatal
injury and which was sufficient to cause death.
Considering the fact that said injury was over left
temporal scalp region above ear and evidence of both eye
witnesses PWs-3 and 4 that accused No.1 gave stick blow
on the head of the deceased and accused No.2 hit bicycle
on the head of the deceased and oral dying declarations
made by the deceased to PWs.2 and 6 particularly that
accused No.1 had assaulted the deceased on his head with
stick and accused No.2 had thrown bicycle on the head of
the deceased it can be said that the medical evidence
i.e. evidence of Dr. Pande and postmortem report
(Exh.26), has corroborated the evidence of eye witnesses
PWs.3 and 4 and oral dying declaration to PWs.2 and 6
regarding act of the accused Nos.1 and 2 in assaulting
the deceased on his head.
27. As regards finding of injuries on the person of
accused Nos.1 and 2 respectively as per injury
certificates (Exh.44 & 45) is concerned the evidence of
PW-7 Dr. Jainapurkar shows that on 04.09.1996 he was on
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duty at Civil Hospital, Parbhani. Accused No.1 Dhuraji
and accused No.2 Kishor were referred to him by New
Mondha Police Station. He examined them at 04.30 pm. His
evidence shows that on examination of accused No.1
Dhuraji he found only one injury i.e. abrasion at the
base of the right thumb pamar aspect. The size of the
injury was ½ cm by ¼ cm. It was simple in nature, caused
by hard and blunt object within about 24 hours and he
issued certificate (Exh.44). Similarly, he stated that
he examined accused No.2 Kishor and found abrasion on
right side of forehead just above right eye brow. Size
about 1 cm by 1 cm. It was simple in nature caused by
hard and blunt object within about 24 hours and he issued
certificate (Exh.45). He stated that injuries on person
of both the accused were simple in nature. His evidence
is not shattered in the cross-examination on behalf of
the accused. He stated that injury No.2 on the person of
accused No.2 is not possible by self infliction due to
scratching of that portion by nails. Thus, on the basis
of evidence of Dr. Jainapurkar and injury certificates of
accused Nos. 1 and 2 the possibility of sustaining such
injuries to the accused in the incident cannot be ruled
out and on the basis of the same an inference can be
drawn regarding presence of the accused at the spot of
incident and their involvement in the incident of
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assaulting the deceased. The accused have not explained
how they sustained the injuries noticed on their persons.
28. Accused No.1 made statement (Exh.33) that he
would produce the stick in presence of panchas and
Investigating Officer Sarode. The prosecution has
examined Abdul Mosin (PW-5) who stated that accused No.1
made statement as per Exh.33 that he would produce the
stick. He stated that it bears his signature and
signature of another panch. So also, he has stated that
at the instance of accused No.1 stick was seized from the
house of accused No.1 as per panchanama (Exh.33-A). In
the cross-examination evidence of PW-5 is not shattered.
The Investigating Officer (PW-10) has also stated
regarding seizure of stick as above at the instance of
accused No.1 as per panchanama (Exh.33-A) after recording
his statement. Thus, the circumstance of seizure of
stick as above shows that stick was used by accused No.1
in the commission of offence although there is no
specific evidence in the form of C.A. report showing that
any blood was found on the said stick.
29. For all the reasons discussed above on the basis
of evidence of eye witnesses PWs. 3 and 4, Exh.49 extract
of station diary, oral dying declaration to PWs-2 and 6
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and circumstantial evidence referred to above an
inference can be drawn that on 03.09.1996 at about 10.00
pm when the deceased demanded amount borrowed by accused
No.1 from him, the accused No.1 abused him, then he gave
a stick blow on the head of the deceased and accused No.2
had thrown bicycle on the head of the deceased and as a
result caused injuries including injury No.3 which
resulted into his death as deposed by Dr. Pande (PW-1).
Therefore, both the accused were responsible for death of
the deceased. The trial Court held both the accused
guilty for the offence punishable under Section 302 r/w
Section 34 of the IPC. As discussed earlier accused No.1
Dhuraji had filed separate appeal which has been abated
as he is dead.
30. Now it is to be seen whether the
appellant/accused No.2 Kishor had intention to cause
death of the deceased. Admittedly there was no money
transaction between accused No.2 and the deceased. The
money transaction was only between accused No.1 and
deceased. As the accused No.1 had borrowed money from the
deceased and when deceased demanded said amount to the
accused No.1 the incident had taken place. Therefore,
the accused No.2 had no motive to cause death of
deceased. As discussed earlier the evidence
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( 27 ) criapl371.01
shows that the accused No.1 first assaulted the deceased
on his head with stick and then the appellant/accused
No.2 had thrown the bicycle on the head of the deceased.
This was only act of the appellant/accused No.2. It is
not the case of the prosecution that the accused No.2
repeatedly threw the bicycle on the head of deceased or
hit the bicycle to the head of the deceased repeatedly.
Therefore, on the basis of evidence adduced by the
prosecution it cannot be said that the appellant/accused
No.2 had intention to cause death of the deceased.
However, on considering the act of the appellant/accused
No.2 of hitting the bicycle to the head of the deceased
only once, it can be said that he had knowledge that the
injury inflicted by him by the said act was likely to
cause death. Therefore, when the accused No.2 had no
intention to cause death of the deceased, we hold that
the prosecution has failed to prove offence under Section
302 r/w Section 34 of the IPC against the
appellant/accused No.2. There is also no evidence to show
that appellant/accused No.2 had shared common intention
with accused No.1 to cause death of the deceased.
However, we hold that act of appellant/accused No.2
in throwing bicycle on the head of the deceased and
causing his death amounts to culpable homicide not
amounting to murder punishable under Section 304 Part-II
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( 28 ) criapl371.01
of the IPC. Therefore, impugned judgment and order
convicting and sentencing the appellant/accused No.2 for
the offence punishable under Section 302 r/w 34 of the
IPC is liable to be quashed and set aside and instead he
is liable to be convicted and sentenced for the offence
punishable under Section 304 Part-II of the IPC by
allowing the appeal partly to modify impugned conviction
and sentence accordingly. In the result, we pass the
following order.
ORDER
i. The criminal appeal is partly allowed.
ii. The impugned judgment and order dated 20.08.2001 in Sessions Trial No.45/1997 convicting the appellant/accused No.2-Kishor S/o. Ramrao Lahane and sentencing him to suffer imprisonment for life and to pay fine of Rs.500/- (Rupees Five Hundred) in default, to suffer simple imprisonment for three months for the offence punishable under Section 302 r/w Section 34 of the IPC is set aside.
iii. The appellant/ accused No.2 is convicted for the offence punishable under Section 304 Part-II of the ::: Uploaded on - 19/12/2017 ::: Downloaded on - 23/12/2017 02:06:27 ::: ( 29 ) criapl371.01 IPC and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.500/- (Rupees Five Hundred) in default, to suffer simple imprisonment for three months.
iv. He is entitled to set off for the period he was in jail as mentioned in impugned dorder.
v. The bail bond of the appellant/accused No.2 stands cancelled.
vi. The appellant/accused No.2 shall surrender before the Sessions Judge, Parbhani immediately to under go the sentence as above.
vii. Mr.R.D.Sanap, Advocate was appointed to represent the appellant. We appreciate his sincere efforts in rendering able assistance during the course of hearing the appeal, so as to arrive at the proper conclusion. We quantify his fees at Rs.7,500/- [Rupees Seven Thousand Five Hundred only] [S.M. GAVHANE, J.] [T.V. NALAWADE, J.] VishalK/criapl371.01 ::: Uploaded on - 19/12/2017 ::: Downloaded on - 23/12/2017 02:06:27 :::