REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1643 OF 2005
Laxmichand @ Balbutya ....
Appellant(s)
Versus
State of Maharashtra .... Respondent(s)
JUDGMENT
P.Sathasivam,J.
1) This appeal is filed by the appellant-accused, who is in
Jail, through Superintendent, Nagpur Central Prison,
Nagpur under Section 2 of the Supreme Court
Enlargement of Criminal Appellate Jurisdiction Act
against the final order and judgment dated 15.10.2004
passed by the High Court of Bombay, Nagpur Bench,
Nagpur in Criminal Appeal No. 48 of 1990 whereby the
High Court allowed the appeal filed by the State and set
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aside the order of acquittal passed by the Additional
Sessions Judge, Gondia.
2) The prosecution case is as follows:
(a) On 10.08.1986, at about 3.00 p.m., there was a
quarrel between Laxmichand @ Balbutya – the accused
and Gyaniram Mahajan – the deceased, who was in
drunken state, at the house of the accused. The
appellant-accused asked Gyaniram to go home but he was
not acceding to his request. The accused brought
Gyaniram from his house on the road by lifting him but he
fell down. The accused struck him with a spade on his
head. As a result, Gyaniram sustained injury on his head
and had become unconscious. The accused proceeded
towards the house of one Police Patel. While going there,
he made disclosure to some persons that he had killed
Gyaniram Mahajan. One Ghanshyam, who was in the
employment of Fulchand and who had heard the
utterances of the accused to the above effect, informed
Tejram (PW-2) who was sitting in
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the house of Fulchand that the appellant-accused was
telling that he had killed Gyaniram. Tejram went towards
the Gram Panchayat. The accused was coming from the
side of the house of Police Patel. He again made similar
utterances and informed Tejram that he had killed
Gyaniram and further asked him to scribe a report.
Tejram advised him to go to the police station.
(b) Tejram went to the police station and lodged an oral
report that he was informed by the accused that he had
killed Gyaniram. The oral report was reduced into writing
by P.S.I. Narkhede (PW-12) under Section 302 of the
Indian Penal Code. By the time, the accused reached
there alongwith spade, P.S.I. Narkhede (PW-12) arrested
him and seized the spade. Thereafter, he went to the spot
and noticed that Gyaniram was lying unconsciously. Spot
panchnama was prepared and the samples of blood
stained earth and plain earth were collected.
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(c) Gyaniram was sent to the hospital in the cart of
Primary Health Centre, Tirora. The doctor examined him
at 9.45 p.m. and found a lacerated wound on his fore
head with underlying bony fractures into pieces. As
Gyaniram was unconsciousness, P.S.I. could not take his
statement. On 17.08.1986, A.S.I. Sahare received a
message from Dr. Jaiswal of K.T.S. Hospital, Gondia that
Gyaniram had expired. On the same day itself the post
mortem was conducted.
(d) After the investigation, the charge sheet was sent to
the Court of J.M.F.C. Gondia. The J.M.F.C. committed
the case under Section 209(a) of the Code of Criminal
Procedure to the Court of Sessions for trial of the accused.
The charge for the offence under Section 302 I.P.C. was
framed against the accused. The Sessions Judge, Gondia,
vide his judgment dated 29.07.1989, acquitted the
accused of the charges framed against him.
(e) Against the said judgment of acquittal, the State filed
an appeal before the High Court of Bombay, Nagpur
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Bench. The High Court, vide its judgment dated
15.10.2004, set aside the order of acquittal and convicted
the appellant-accused for offence punishable under
Section 302 I.P.C.
(f) Aggrieved by the judgment of the High Court, the
appellant-accused has filed this appeal from Jail through
the Superintendent, Nagpur Central Prison, Nagpur before
this Court.
3) Heard Mr. Sushil Karanjakar, learned amicus curiae
for the appellant and Mr. Shankar Chillarge, learned
counsel for the State.
4) As far as the incident and the involvement of the
appellant-accused is concerned, the prosecution has
mainly relied on the evidence of Fattu Madavi (PW-3) and
Mahadeo (PW-4) who are the two eye-witnesses. Apart
from these two eye-witnesses, the prosecution has also
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relied on extra-judicial confession said to have been made
by the accused to some of the witnesses.
5) It is seen from the evidence of Fattu (PW-3) that the
accused gave a call to him and said that Gyaniram – the
deceased was under the influence of liquor and he was not
willing to leave his house. There was a quarrel between
the accused and the deceased at the house of the accused.
At the time of quarrel, Mahadeo (PW-4), who was present
in the nearby house of Bhaurao Neware was witnessing
the same. It is also seen from the evidence of Fattu (PW-3)
and Mahadeo (PW-4) that in the course of quarrel, the
accused dragged Gyaniram outside of his house and gave
a stroke of spade on his head. From the evidence of PWs
3 & 4, the prosecution has established that the quarrel
was going on between the accused and the deceased and
the deceased was under the influence of liquor and he was
adamant and refused to leave the house of the accused
which forced the accused to drag him outside his house
and also inflicted injuries with the spade. As rightly
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observed by the High Court, there is no reason to
disbelieve the version of eye-witnesses, PWs 3 & 4, in this
regard. On perusal of their evidence, we found no
material omission or contradiction to disbelieve their
version. On the other hand, we agree with the conclusion
arrived at by the High Court as regard to the reliability of
two eye-witnesses.
6) Apart from two eye-witnesses, the prosecution has
examined one Tejram as PW-2 who made a complaint to
the police. The accused has made an extra-judicial
confession to him. Tejram (PW-2) is the person who
lodged the report (Ex.21). The perusal of the above report
strengthened the evidence of Tejram (PW-2) about the
statement said to have been made to him by the accused.
7) It is also seen from the evidence of Narkhede, P.S.I.
(PW-12) that when he was scribing the report, the accused
arrived at the police station with a spade and immediately
he arrested him and seized the spade. Though no much
importance needs to be given to the statement of Tejram
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(PW-2) but if we consider the same along with other
materials, there is no reason to reject his version. Another
person before whom the accused has made a confessional
statement is Govardhan (PW-7). The accused had gone to
his place and informed him about the incident. In the
same way, one Udelal, who was examined as PW-8, also
apprised the Court about the admission of guilt by the
accused. Though their is no need to attach importance to
the statements of PWs 7 & 8, as observed earlier, if we
consider all the materials together, it prove the case of the
prosecution that it was the accused who was responsible
for the death of Gyaniram-the deceased.
8) It was submitted that though the injured was alive
for seven days but no attempt was made to record his
statement about the incident. It is seen from the evidence
of Narkhede, PSI (PW-12) that he was not allowed to
record his statement by the Doctors as the victim was not
in a position to give the statement. It is relevant to note
that an attempt was made to record his statement by the
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Special Executive Magistrate, that also could not be done.
The evidence of Dr. Arvind Manwatkar (PW-1), Medical
Officer attached to Primary Health Centre, Tirora also
supports the version of the prosecution. He also issued a
certificate (Ex.19) that the injured person was not able to
give any statement. When Dr. Arvind Manwatkar (PW-1)
was shown spade at the time of examination in Court, he
opined that it would be possible that such injury could be
caused with spade. As observed by the High Court, the
medical report, evidence of Doctor and the statement of
eye-witnesses support the case of the prosecution. Dr.
Pradip Kumar Gujar (PW-9) who conducted the post-
mortem on the dead body of Gyaniram also found that the
cause of death was head injury, laceration of the brain
matter, resulting into neurogenic shock and peripheral
circulatory failure. All the above materials including oral
and documentary evidence clearly prove the case of the
prosecution and we agree with the conclusion arrived at
by the High Court.
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9) Coming to the argument that instead of convicting
the accused for culpable homicide amounting to murder,
his case would fall in the category of culpable homicide
not amounting to murder as even according to the
prosecution one blow alone was caused by the accused
that too in a quarrel, we have already pointed out and it is
clear from the evidence of PWs 3 & 4 – eye-witnesses that
prior to the incident, there was a quarrel between the
accused and the deceased inside the house of the accused
and the deceased consumed liquor and adamant to leave
the house of the accused which necessitated the accused
to drag him out of his house and inasmuch as the
deceased still refused to accede to the request of the
accused, he inflicted blow on the head with the spade. As
pointed out by the appellant-accused, he had no pre-plan
or intention to kill the deceased and his main worry was to
get the deceased out of his house, who consumed
excessive liquor. Considering all these aspects,
particularly, the conduct of the deceased in not leaving the
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house of the accused, he dragged him out of his house,
put him on the road and assaulted him with a spade, we
are of the view that the accused has no intention to kill
the deceased. It is true that blow given by the accused on
the deceased was at the vital part because of which he
was unconscious for seven days and ultimately
succumbed to his injuries. However, as discussed earlier,
the accused had no intention to commit the offence.
10) Considering all the materials and reasons, we feel
that the commission of offence attributed to the accused-
appellant would come under Section 304 Part II Indian
Penal Code. Taking note of the fact that the incident had
occurred in the year 1986 and the accused had no
intention to kill the deceased but due to the reasons and
circumstances stated above, we feel that the ends of
justice would be met by awarding sentence of rigorous
imprisonment for five years. The accused is entitled to
have the benefit of deduction of the period already
undergone.
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11) With the above modification, the appeal is allowed in
part.
………………………………………….J.
(HARJIT SINGH BEDI)
…………………………………….
……J.
(P. SATHASIVAM)
………………………………………..J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI;
JANUARY 6, 2011.
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