JUDGMENT
Vishnu Sahai, J.
1. Vide judgment and order dated 31-12-1981 the Additional Sessions Judge, Nashik in Sessions Case No. 62 of 1981 convicted and sentenced the appellants in the manner stated hereinafter:—
Appellant Parashram Gangadhar Fugat:—
(i) under section 302 I.P.C. to life imprisonment; and
(ii) under section 323 I.P.C. to one week’s R.I. and to pay a fine of Rs. 100/- in default to suffer R.I. for one week.
Appellant Gangadhar Fakira Fugat:—
(i) under section 323 I.P.C. to one week’s R.I. and to pay a fine of Rs. 100/- in default to suffer R.I. for one week; and
(ii) under section 325 I.P.C. to two weeks’ R.I. and to pay a fine of Rs. 200/- in default to suffer R.I. for two weeks.
Hence this appeal.
It may be mentioned that along with the appellants two others viz. Popat Gangadhar Fugat and Kisan Gangadhar Fugat were also tried but they have been acquitted vide the impugned judgment.
2. Briefly stated the prosecution case runs as under:—
Appellant Gangadhar Fakira Fugat is the father of appellant Parsharam Gangadhar Fugat and the acquitted accused Popat Gangadhar Fugat and Kisan Gangadhar Phugat. Four of them were living jointly in village Janori. Deceased Prakash and the witnesses Vinayak, Dinkar and Dnyaneshwar were the sons of witness Pandurang and were also residing in the same village. There was a piece of land called “Sherry” of which Pandurang became the owner. However, he transferred eastern portion of that land to appellant-Gangadhar Fugat and retained western portion of the land. It is also alleged that there was a small bandh between the portions of land belonging to Gangadhar and Pandurang. It is said that on account of this land relations between Gangadhar Fugat and his family members on one side and those of Pandurang and his family members on the other side were not cordial.
On 22nd November, 1980 at about 6.30 a.m. in the land Sherry informant Surekha P.W. 13, niece of Pandurang P.W. 10 was keeping watch over the cattle. Some cattle are alleged to have entered the portion of field Sherry belonging to appellant Gangadhar and started damaging the standing crop. The appellant Parsharam caught the cattle and brought them in the shed and abused Surekha who was standing on the bandh. Feeling insulted by these abuses Surekha called her cousin brothers Dinkar P.W. 11, Vinayak P.W. 12 and deceased Prakash who were working in the field at that time. They rushed to the place of incident. Acquitted accused Popat was with appellant Parsharam at the said time. Some hot words were exchanged between Dinkar, Vinayak and Prakash on one side and appellant Parsharam and Popat on the other. It is said that Parsharam was holding Rumna (wooden agricultural implement) in his hand and with the same he inflicted blows on Dinkar, Vinayak and Prakash. It is also said that Popat hurled abuses. Witness Pandurang who was in the village at that time was informed about the incident and accordingly he rushed to the place of the incident with his son Dnyaneshwar P.W. 16. As soon as Pandurang and Dnyaneshwar reached the road near the place of the incident appellant Gangadhar Fugat who was proceeding toward the place of the incident obstructed them. Appellant Kisan Gangadhar Fugat was also with him at that time. Kisan was holding a Bhala stick in his hand and with the same inflicted some blows on Pandurang’s person. There was some uproar hearing which appellant Parsharam and acquitted accused Popat followed by Dinkar, Vinayak, deceased Prakash and Surekha rushed towards the road. It is alleged that two appellants started inflicting blows on Pandurang, Dinkar, Vinayak, and Prakash with Rumna and Bhala stick, and acquitted accused Popat and Kisan started pelting stones towards them. Parsharam is said to have lifted a stone and inflicted a severe blow with the same on the head of Prakash as a result of which the latter fell down.
As a consequence of the assault launched by appellants and others Vinayak, Pandurang, Prakash, Dinkar, Surekha and Nivrutti sustained injuries. It is also said that appellant Parsharam sustained some injuries during scuffle and as a consequence of falling on the ground.
3. As Prakash was precariously injured persons who had gathered there put him in a bullock cart. All of them came to the outpost at Mohadi. Constable Yeshwant Ananda P.W. 18 who was attached to the Mohodi out post gave a Yadi for the medical examination of the victims to the Medical Officer, Mohodi.
4. The injuries of Vinayak Pandurang, Pandurang Trimbak, Prakash Pandurang, Dinkar Pandurang, Surekha Shankar and Nivrutti Pandurang were medically examined the same day i.e. on 22-11-1980 at 8.25 a.m., 8.30 a.m., 8.35 a.m., 8.40 a.m., 8.45 a.m. and 8.50 a.m. respectively by Dr. Bhagwat Vithal Patil P.W. 2 at Primary Health Centre, Mohodi.
On the person of Vinayak Pandurang following injuries were found:—
“1. Contused lacerated wound on the occipital region of the skull, 2″ x 1/2” into skin deep.
2. Complains of pains on left neck, however, no external injury was seen.
3. Abrasion above right elbow joint on posterior portion of right hand 1/2″ x 1/2″.”
On the person of Pandurang Trimbak the injuries enumerated below were found:-
“1. Contusion on right hand wrist-joint on the posterior portion 2″ x 1”.
2. Contused wound on the right shoulder joint 2″ x 2″.
3. Contused wound on left hand upper arm in the middle portion, horizontal, 3″ x 1/2″.
4. Contused wound on the left leg thigh on the outer portion and lateral portion 4″ x 1/2″.”
On the person of Prakash Pandurang following injuries were noticed-
“1. Contused lacerated wound situated vertically and three inches above right ear tip on the parietal bone of the skull, 2″ x 1/4” x skin deep.
2. Contused lacerated wound situated vertically on the left parietal bone of skull, 2″ above the left ear tip, 1″ x 1/4″ skin deep.
3. Contused lacerated situated vertically 4″ above the left ear tip on the parietal and occipital bone of the skull, 1″ x 1/4″ skin deep.”
On the person of Dinkar Pandurang following injuries were found:-
“1. haematoma on the left side of forehead 3″ x 3”.
2. Contused lacerated wound on the left parietal bone of the skull 2″ x1/2″.
3. Contused wound on the left check size 1/2″ x 2″.
On the person of Surekha Shankar following injuries were found:—
“Complaints of pain on right hand below the right elbow joint. I did not notice any signs of violence.”
On the person of Nivrutti Pandurang following injuries were found:–
“Contused lacerated wound on the parietal bone of skull, 4″ above the left ear tip, situated vertically, 1/2″ x 1/2″ x 1/10″.”
In the opinion of Dr. Bhagwat Patil, the injuries of all the victims were caused within 12 hours and were attributable to hard blunt object.
It may also be mentioned that Dr. Patil medically examined appellant Parsharam Gangadhar Fugat and acquitted accused Popat Gangadhar Fugat the same day at 9.15 a.m. and 9.20 a.m. respectively. On the person of Parsharam Fugat he found the following injuries:—
“1. Contused lacerated wound on the left forehead of skull, above the left eye-brow situated vertically 11/2″ x 1/2” skin deep.
2 Contusion on the right back below the right scapular, 11/2″ 1″.”
In the opinion of doctor these injuries were 12 hours old and were attributable to hard blunt object.
On the person of Popat Gangadhar Fugat he noticed the injuries enumerated below:-
“1. Complaints of pain on the right hand. But I did not notice any signs of violence.
2. Complaints of pains on neck, no signs of violence.”
5. F.I.R. of the incident was lodged by Surekha P.W. 13 on 22nd November, 1980 at 1.00 p.m. at Police Station, Dindori. On the basis of the F.I.R. a case under sections 326, 323, 504 read with 34 I.P.C. was registered against the appellants and the acquitted accused.
6. It also appears that a non-cognizable report in respect of the same incident was lodged by acquitted accused Popat at Police Station, Dindori, the same day. On its basis a case under sections 324, 323, 504 read with 34 I.P.C. was registered. It appears that the Police did not submit any charge-sheet and neither any complaint was filed by Popat.
7. Investigation of the case was conducted by P.S.I. Dhondiram Kisanrao Wagh P.W. 22. On 23-11-80 he visited the place of the incident and prepared spot panchanama Exh. 24. From the place of the incident he recovered a stone weighing about 2-3 Kgs. having blood on it and also took in possession blood stained earth. He recorded statements of some witnesses. The same day on receiving information about Prakash’s death he converted the case to one under section 302 I.P.C. The same day he arrested the acquitted accused Popat Gangadhar, Kisan Gangadhar and appellant Gangadhar Fugat. On the pointing out of acquitted accused Kisan Gangadhar he recovered Bhala stick. On 25-11-1980 he took into possession blood stained clothes of victims Pandurang, Vinayak and Dinkar vide panchanama Exh. 36. During the course of investigation he also took into possession blood stained saree and blouse of Surekha vide panchanama Exh. 39. During the course of investigation he arrested appellant Parsharam Fugat and under a panchanama recovered some clothes which he was putting on. He sent recovered articles to the chemical analyst. After completing the investigation on 4-5-1981 he submitted the charge-sheet against the appellants and the acquitted accused.
8. Going backwards the autopsy on the dead body of deceased Prakash was conducted on 23-11-1980 between 1.45 p.m. to 2.45 p.m. by Dr. Kutubuddin P.W. 19. The doctor found the following ante-mortem injuries on the person of the deceased:—
“1. Contused lacerated wound on the scalp 2″ length transverse 11/2” to the left of midline in the line joining to ear. 5 stitches are given to that injury.
2. Contused lacerated wound on the scalp 1/2″ to the left of the midline transverse inline joining to ear, 1/2″ in length 3 stitches were given to that injury.
3. Contused lacerated wound on the scalp 1″ to the right of midline 1/2″ behind the line joining to ear 1″ in length, 3 stitches were given to that injury.”
On internal examination the doctor found the following injuries:—
“1. Haema-toma under the scalp on both the sides 2″ x 3” each.
2. Both sub-dural subarechroid haemorrhage inside the scalp occupying middle and posterior cranial fossa left side cerebral hemisphere compression, haemorrhage at pons.”
Dr. Kutubuddin opined that the deceased died on account of cardio respiratory failure due to intra cranial and pontine haemorrhage which was sufficient in the ordinary course of nature to cause death.
9. The case was committed to the Court of Sessions in the usual manner. In the trial Court charges under section 302 read with 34 I.P.C. were framed against the appellants and the acquitted accused to which they pleaded not guilty and claimed to be tried. The defence of appellant Parashram Gangadhar Fugat and acquitted accused Popat Gangadhar Fugat was right of private defence of person and the acquitted accused pleaded denial.
In the trial Court prosecution examined as many as 22 witnesses. Four of them viz. P.W. 10 Pandurang, P.W. 11 Dinkar, P.W. 12 Vinayak and P.W. 13 Surekha were examined as eye witnesses. In defence no witness was examined.
The learned trial Judge convicted the appellants in the manner mentioned above. However he acquitted Popat Gangadhar Fugat and Kisan Gangadhar Fugat.
Hence this appeal.
10. We have heard Mr. B.G. Vaidya for the appellants and Mr. D.T. Palekar for the respondent at considerable length. We have perused the deposition of the prosecution witnesses, the material exhibits tendered by the prosecution and the impugned judgment. After giving our anxious consideration to the matter we are firmly of the opinion that the involvement of the appellants in the crime has been established but instead of an offence under section 302 I.P.C. only one under section 304(II) I.P.C. is made out against Parsharam Gangadhar Fugat and his sentence deserves to be reduced. The short question in this appeal is whether the evidence adduced by the prosecution inspires confidence or not? Our answer to the same is in the affirmative. In the instant case we find that apart from the deceased Prakash as many as five persons viz. Vinayak, Pandurang, Dinkar, Surekha and Nivrutti sustained injuries. Excepting Nivrutti other four persons have been examined as witnesses. We have gone through the testimony of these injured witnesses and we find that the same inspires confidence. The manner of assault deposed to by these witnesses is corroborated by the nature of injuries received by them and the deceased. Circumstances like recovery of blood stained earth and a stone weighing 2-3 Kgs. and a prompt F.I.R. also corroborate these eye witnesses. In our view the learned trial Judge acted correctly in accepting the testimony of these witnesses viz-a-viz appellants.
11. Mr. B.G. Vaidya learned Counsel for the appellants made two submissions before us. He firstly urged that in view of the fact that injuries on head were sustained by appellant Parsharam Gangadhar Fugat at the hands of the prosecution witnesses and deceased the appellants had the right of private defence of person to kill the deceased. He secondly urged that at any rate only an offence under section 304(II) I.P.C. is made out and sentence awarded to appellant Parsharam Gangadhar Fugat is grossly excessive.
12. Taking up the first submission canvassed by Mr. Vaidya we find that the same is devoid of substance. The prosecution witnesses have sought to explain the injuries sustained by Parsharam Gangadhar Fugat by saying that they were caused in a scuffle and as a result of the aforesaid appellant falling on the ground. Dr. Bhagwat Patil P.W. 2 who medically examined Gangadhar Fugat in his cross-examination admitted that the injuries of the said appellant were possible by a fall on a hard and blunt object. We have examined the injuries and find his opinion tenable. In such a situation we feel that the prosecution has offered adequate explanation with respect to the injuries sustained by the said appellant. In this view of the matter decision of the Apex Court reported in 1976 S.C.C. (Criminal) 671 Laxmi Singh & others v. State of Bihar, which lays down that the failure on the part of the prosecution witnesses to explain injuries of accused may probabalise the plea of self defence, cited by Mr. Vaidya, would have no application. Hence we reject the first argument. Taking up the second argument of Mr. Vaidya viz. that the offence against Parashram Gangadhar Fugat would fall within the ambit of section 304 Part (II) I.P.C., we find the same to be pregnant with substance. In the instant case Dr. Kutubuddin P.W. 10 who performed the post mortem examination on the dead body of the deceased clearly stated in his statement that all the injuries sustained by the deceased were simple in nature and that he did not notice any fracture in any of the injuries. He also stated that he did not find any injury in the brain of the deceased. He further stated that had assault on the skull been made with force fractures would have resulted.
According to Dr. Kutubuddin the deceased died on account of cardio respiratory failure due to intra cranial and pontine haemorrhage. It may be mentioned that he stated in his cross examination that internal haemmorrhage is not necessarily fatal. In our view looking to Dr. Kutubuddin’s statement in entirety it cannot be said with certainty that when the appellant Parashram Gangadhar Fugat assaulted the deceased on his head with Rumna, he had the intention to cause intra cranial and pontine haemorrhage. That being so this appellant cannot intended to have inflicted injuries which were sufficient in the ordinary course of nature to cause death and hence clause thirdly of section 300 of I.P.C. would have no application. At the best what can be said is that when he assaulted the deceased with the Rumna on his head he had the knowledge of his death. For that knowledge he would only be liable, in our view, under section 304 Part (II). In our view when the medical evidence and the circumstances in which the incident took place are borne in mind; especially the circumstance that in a sudden quarrel the deceased was killed, it would be both legal and equitable to set aside the conviction of the appellant Parashram Gangadhar Fugat under section 302 I.P.C. and to convict him under section 304 Part (II) I.P.C. instead. Accordingly, we set aside the conviction and sentence of this appellant under section 302 I.P.C. and instead convict him under section 304 Part (II) I.P.C.
13. The sole question which remains is as to what should be the quantum of sentence which should be awarded to appellant Parashram Gangadhar Fugat under section 304 Part (II) I.P.C. Considering the fact that the incident took place nearly 16 years ago; that it was a case of sudden quarrel; that there is nothing to indicate that appellant Parsharam Gangadhar Fugat has to his discredit any criminal history or bad antecedents; and that he was aged about 23 and 1/2 years at the time of the incident, in our view the ends of justice would be squarely met if he is awarded a sentence of 2 and 1/2 years ( 30 months) R.I. coupled with a fine of Rs. 5000/- and one year’s S.I in default under section 304 Part (II). His conviction and sentence under section 323 I.P.C. however calls for no interference. We also feel that no modification is called for in the conviction and sentence of appellant Gangadhar Fugat.
14. In the result this appeal is partly allowed and partly dismissed. Although we acquit appellant Parsharam Gangadhar Fugat under section 302 I.P.C. and set aside his conviction and sentence of imprisonment for life on that account, we convict and sentence him to under go a sentence of 2 and 1/2 years ( 30 months) R.I. coupled with a find of Rs. 5000/- in default one year’s S.I., under section 304(II) I.P.C. We also uphold his conviction and sentence 323 I.P.C. We confirm the conviction and sentence of appellant Gangadhar Fugat on both the counts viz. 323 and 325 I.P.C. Appellant Parsharam Gangadhar Fakira Fugat is given a time of six months from today to deposit the fine in the trial Court. In case he pays the fine of Rs. 5000/- the same shall be paid as compensation to the heirs of the deceased Prakash Pandurang Waghmare. The trial Court would inform his heirs about this compensation. Mr. Vaidya informs us that appellant Gangadhar Fakira Fugat has already served out his sentence and has paid the fine. If that is so he shall not be taken into custody. If not, he shall be taken into custody to serve out his sentence. Appellant Parsharam Gangadhar Fugat is on bail. He shall be taken into custody to serve out the sentence awarded to him.
Before parting with this judgment we would be failing in our duty if we do not put on record the extremely fair manner in which the case has been argued by learned Counsel on either sides.
