JUDGMENT
S.T. Kharche, J.
Page 1502
1. This appeal takes an exception to the judgment and order of conviction dated 16.3.1996 passed by the learned 1st Additional Sessions Judge in Sessions trial No. 382 of 1992, whereby the appellant/accused has been convicted for the offence punishable under Section 304 Part II of Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 200/- in default to suffer rigorous imprisonment for 15 days. However, the appellant/accused has been acquitted of the offence punishable under Sections 302 and 324 of Indian Penal Code and the State did not prefer any appeal against the acquittal nor has preferred any appeal for enhancement of the sentence imposed on the accused for the offence punishable under Section 304 Part II of Indian Penal Code.
2. Brief facts are required to be stated as under :
(a) The spot of incident is situated in the hutment area of Mang Garodi Toli, Tharsa Road, Kanhan. The deceased and accused own the huts situated in that locality and they are adjoining each other. On 25.3.1992 at about 19-00 hours there was a quarrel between Vijay, who is the grand son of the deceased, and Bijesh- the son of the accused and consequently Bijesh had gone to his hut while weeping and narrated about his quarrel with Vijay. On hearing about the quarrel from his son the accused got enraged and he rushed at the hut of the deceased armed with a stick and questioned as to where is Vijay and also started abusing him and when the deceased asked him as to why he was abusing, the accused suddenly delivered a blow of stick on his head.
(b) Kamlabai (P.W.3), who is the first wife of the deceased, came to his rescue. At that time the accused delivered a second blow which was warded off by Kamlabai by her hand and she sustained bleeding injury. The deceased had fallen down then and there in a pool of blood as he had sustained bleeding injury. He was immediately taken to Mayo Hospital, Nagpur, for the purpose of medical treatment and ultimately he succumbed to the injuries on 7.4.1992 at about 11-50 p.m.
(c) Dr. Vinod (P.W.1) effected autopsy on the dead body of Maharu on 8.4.1992 in between 12-00 noon and 1-05 p.m. and found two injuries appearing on the head of the deceased. He opined that the probable cause of death was head injuries and that those injuries were sufficient in the ordinary course of nature to cause death and must have been caused by the stick Article 9.
(d) On 26.3.1992 Kamlabai had gone to the police station Kanhan and lodged the first information report on the basis of which crime No. 54/92 for the offence punishable under Sections 324 was registered. Thereafter, on the death of Maharu, Section 302 of Indian Penal Code was Page 1503 added. On 26.3.1992 itself the investigating officer visited the spot of incident and drew spot panchanama. The accused was arrested on the same day and while he was in custody he had furnished an information in presence of panchas that the stick was concealed inside his hut and he was ready to point out the same. Accordingly this information was reduced into writing in the form of memorandum. Thereafter the accused led the police party and the panch witnesses to his hut and pointed out the stick which was discovered in consequence of the information vide discovery panchanama (Ex.40). P.S.I. Sukhdu (P.W.8) had seized the clothes of the deceased and had also forwarded the muddemal articles of this crime to chemical analyser for examination. On completion of investigation the charge-sheet against the accused was filed in the Court of J.M.F.C.
(e) On committal of the case, the learned Additional Sessions Judge framed and explained the charge to the accused to which he pleaded not guilty and thus the trial proceeded with. In order to bring home guilt at the doors of the accused, the prosecution has relied on direct as well as circumstantial evidence and also on the medical evidence. The defence that has been put forth by the accused is that of total denial. However, he did not examine any defence witness. Alternatively, it was contended by the accused that he has delivered a single blow on the head of the deceased and since the blow was due to provocation caused, the offence would be covered by Section 304 of Indian Penal Code. The learned Additional Sessions Judge on consideration of the evidence has recorded the finding that Maharu died as a result of homicidal death and that the complicity of the accused in assaulting the deceased by the stick has been established beyond reasonable doubt. However, the learned Additional Sessions Judge on appreciation of the facts and circumstances was of the view that the offence would be covered by Section 304 Part II of Indian Penal Code. Consistent with these findings, he convicted the accused and sentenced him as mentioned above. This judgment and order of conviction is under challenge in this appeal.
3. Mr. Thakur, learned Counsel, for the appellant contended that the spot of incident in this case has been changed by the prosecution witnesses. He contended that Kamlabai (P.W. 3), Shalu (P.W.4) and Vijay (P.W.5) admit to their cross-examination that the incident was seen by them after earning out of their houses but the examination-in-chief of these witnesses would show that the incident of assault occurred inside the hut. He pointed out that the height of the hut was about 3-4 feet and it was impossible for the accused to deliver a blow by the stick on the head of the deceased Inside the hut. He contended that it the incident had occurred outside the hut then it was possible for the aforesaid three witnesses to see the incident and. therefore, their testimony is liable to be discarded because they are the close relatives of the deceased and being interested witnesses. He contended that the testimony of Vijay (P.W. 5) would show that the assault on the deceased took place outside the hut. ‘Therefore, the version of the witnesses is not consistent and make their testimony doubtful. He contended that in such circumstances the learned Additional. Sessions Judge ought to have acquitted the accused.
4. In the alternative the learned Counsel contended that the accused has undergone the jail sentence for the period of about 36 months and therefore Page 1504 leniency may be shown to the accused. He has two wives and six children. He contended that in view of these circumstances. The accused may kindly be released on execution of Bond for good behaviour as provided under Section 360 of the Code of Criminal Procedure. In support of these submissions he relied on the decision of Supreme Court in the case of State of Karnataka v. Muddappa 1999 SCC (Cri) 1045
5. The learned A.P.P. supports the judgment and order of conviction passed by the learned Additional Sessions Judge and contended that the direct evidence of Kamlabai, Shalu and Vijay is quite consistent with the first, information report which was lodged by Kamlabai at the police station within 35 minutes of the incident. He contended that prompt lodging of the first information report rules out the possibility of concoction. embellishment and embroideries. He contended that in fact the incident occurred in front of the hut of the deceased and though the prosecution witnesses Kamlabai and Shalu state that the deceased was assaulted inside the hut, it did not follow that their testimony is liable to be rejected. He contended that the witnesses were referring to the platform which was situated In front of the hut of the accused and the deceased and therefore, the discrepancy brought on record would not be sufficient to brand these three eye witnesses as liars. He contended that the close relations of the deceased would not screen the real culprit and only because of their close relations, their evidence is not liable to be ignored. He contended that the evidence of the aforesaid three witnesses has been corroborated in. material particulars by the independent evidence of Hema (P.W.6) who is the next door neighbour of the deceased. He therefore, contended that there is no reason for this Court to interfere into the findings recorded by the learned Additional Sessions Judge.
6. Since it has been brought on record in the evidence that the accused had delivered blow by the stick on the head of the deceased because he was enraged on hearing the quarrel between the children, he contended that on considering the nature of the injuries the learned Additional. Sessions Judge was justified In coming to the’ conclusion that the offence would be squarely covered by the provisions of Section 304 Part B of Indian Penal Code. He contended that though the accused has undergone some sentence, the sentence imposed by the learned Additional Sessions Judge was “Inadequate and in such circumstances no leniency should be shown to the accused and the accused does not deserve to be released on execution of bond as per Section 360 of the Code of Criminal Procedure, and the appeal may kindly be dismissed.
7. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not disputed that the accused and the deceased are the next door neighbours and their huts are situated in the hutment in Mang Garodi Toli at Tharsa Road, Kanhan. It is also not in dispute that the hut of Hema (P.W. 6) is adjoining to the hut of the deceased and she had an opportunity to watch the incident which occurred at about 19-00 hours on 25.3.1992 in front of the hut of the deceased. It is not disputed that Kamla (P.W.3). is the first wife and Shalu (P.W. 4) is the second wife and Vijay (P.W.5) is the grand son of the deceased,
Page 1505
8. The testimony of the three prosecution witnesses, namely Kamla (P.W.3), Shalu (P.W.4) and Vijay (P.W.5) would clearly reveal that all of them were present in the hut it has been brought on record in their evidence that at the time of incident there was some quarrel between Vijay and Bijesh, who is the son of the accused. Therefore Bijesh had gone to home and informed his father about the quarrel. On hearing this the accused got enraged and he armed with stick went to the hut of the deceased and started abusing him. When the deceased questioned him as to why he was abusing, the accused suddenly delivered stick blow on his head. The accused was about to deliver the second blow of the stick but it was warded off by Kamlabai and in that process she had sustained injury on her hand. The deceased had fallen down on the ground in a pool of blood and he was immediately taken to Mayo Hospital, Nagpur, for the purpose of medical treatment.
9. It is also not in dispute that the deceased succumbed to the injuries in the hospital on 7.4.1994 at about 11-50 p.m.. Dr. Vinod effected autopsy on the dead body on 8.4.1992 in between 12-00 noon to 1-05 p.m. The evidence of Dr. Vinod would reveal that he found the following ante mortem injuries on the person of the deceased, which are described in col. No. 17 of the post mortem report –
(i) 3″ long vertical injury with scab formation behind the left ear.
(ii). Left side of frontal bone showing depressed fracture; triangular area with sides each of 3 cm and apex pointing antly.
The medical officer also found the Internal injuries -Fracture lines radiating to
(i) right side frontal bone up to right sup.
Orbital ridge
(ii) right temporal bone
(iii) occipital bone in sagital plane
(iv) separation of left temporal bone from frontal bone
(v) Extradural hematoma in left temporo parietal and occipital region, size 8 x 4 cm and 9 x 6 cm resp.
(vi) subdural hematoma all over the brain surface
(vii) fracture anterior cranila fossa sagitally extending from orbital plate to sphernoid 5 cm long.
Dr. Vinod opined that the injuries mentioned in col. No. 17 and 19 of the post mortem report are sufficient in the ordinary course of nature to cause death and sufficient force was applied while inflicting the above injuries and the cause of death was head injury.
10. Dr. Vinod had also examined the weapon, i.e. true stick Article 9 which was shown to him and opined that this stick can cause the injuries described above. In the cross examination the doctor has admitted that except two injuries mentioned in col. No. 19 which are at Sr.No. (vi) and (vii), these two are also connected with the injury mentioned in col. No. 17, The medical officer reiterated in the cross-examination that if a great amount of force is used then the injuries mentioned in col. No. 17 can be caused. This medical evidence do corroborate the direct version of three witnesses, namely Kamla (P.W.3) Shalu (P.W.4) and Page 1506 Vijay (P.W.6), in material particulars and there is no reason as to why the testimony of these witnesses should be discarded. Simply because they are close relations of the deceased, that per se is not sufficient to discredit their versions.
11. Moreover, this is a case wherein independent corroboration has also been brought on record through the testimony of Hema (P.W, 6), who is the next door neighbour of the deceased. Her evidence would clearly reveal that the incident occurred at about 7-00 p.m. and the accused, resides nearby the house of the deceased. Her evidence ‘ would further reveal that she saw the accused assaulting on the person of the deceased because at that time she was sitting in front of her house since she had delivered a child before seven days. There was a quarrel between Vijay and Bijesh and the accused had delivered a blow of stick on the head of the deceased in front of his hut. Blood was oozing from his mouth and the injured was carried to the hospital in an auto rickshaw. Perusal of the cross-examination of this witness would reveal that nothing has been brought on record to show that the prosecution witnesses have changed the spot of incident, which obviously was the place in front of the hut of the deceased. The contents of the spot panchanama would also indicate that the incident occurred in front of the hut of the deceased and the witnesses Kamla, Shalu and Vijay were not confronted with the contents of the spot panchanama, and therefore it is not possible to accept the submission of the learned Counsel for the accused that the prosecution witnesses have changed the spot of incident.
12. In fact, the prosecution witnesses and the accused were living in small huts. One does not know what was the size of the hut. There is absolutely no reason as to why Hema (P.W.6) who is an independent witness would depose false against the accused. The incident positively occurred in front of the hut of the deceased. Admittedly none of the prosecution witnesses had an axe to grind against the accused and it is not the case of the accused that the prosecution witnesses nave deposed against him due to any prior inimical relations. In such circumstances, this Court is not at all inclined to reject the testimony of these eye witnesses whose testimony is corroborated in material particulars by the evidence of Dr. Vinod.
13. The learned Additional Sessions Judge has rightly appreciated the evidence of these four eye witnesses in proper perspective and the judgment is well reasoned and no different view is possible in the matter. The learned Additional Sessions Judge has held that the death of Maharu was the result of single blow delivered by the stick on the head and Maharu had survived for about 14 days in the hospital. He also considered the circumstance that the cause for the assault was a trivial quarrel between the children because of which the accused was enraged and therefore, he armed with a stick had gone in front of the hut of the deceased, questioned him as to where was Vijay and also abused them. When Maharu asked the accused. as to why he was abusing, he suddenly delivered the stick blow and to such a situation, the learned Additional. Sessions Judge was perfectly correct in observing that the accused assaulted the deceased without any intention to kill him because there was absolutely no preparation when he came to the house of the deceased and the act of the accused would not be covered by Section 302 of Indian Penal Code, but the offence committed by the accused would fall within the ambit of Section 304 Part II of Indian Penal Code. There was no question of intention to kill but only Page 1507 the knowledge must be attributed to the accused that it was sufficient and likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
14. It is necessary to reproduce Section 304 of Indian Penal Code which applies to two different circumstances. It reads thus:
(I) If the act by which death is caused with the intention of causing death or causing such bodily injury as is likely to cause death, the punishment provided is imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and
(II) if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death, the punishment provided is imprisonment of either description which may extend to ten years, or with line, or with both.
15. In the present case, the cause of death was due to single blow of stick and having regard to the nature of the injury, the manner in which it has been caused and the fact that the accused was enraged because of a trivial quarrel between the children, it is obvious that the accused must be attributed with the knowledge, but without any intention to cause such bodily injury as is likely to cause death and, therefore, the learned Additional Sessions Judge was perfectly correct in recording the finding that the act of the accused would foe squarely covered-by Section 304. Part II of Indian Penal Code.
16. So far as the question of sentence is concerned the State did not prefer any appeal for enhancement of the sentence and, therefore, no Interference into the same is warranted.
17. The learned Counsel for the accused relied on the decision of Supreme Court in State of Karnataka v. Muddappa – 1999 SCC(Cri) 1046, cited supra, wherein the High Court had released the offender on probation alter considering the relevant material as per Section 360 of the Code of Criminal Procedure and under the provision of Section 4 of the Probation of Offenders Act, 1958. In this decision, the Supreme Court, clearly observed, “whether the benefit of the ‘Probation of Offenders Act could be extended in any particular case depends upon the circumstances of that case.”
18. There cannot be any quarrel with the ratio laid down by the Supreme Court in the aforementioned case. In the present case, though the accused has undergone the sentence of six months for the period. 16.3.1992 till 22.9.1992, this Court is of the view that that by itself would not be sufficient to show leniency because the sentence imposed by the learned Additional. Sessions Judge was too Inadequate, No doubt the accused is stated to be having a wile and children dependent on him, but that by itself cannot be considered to be a ground for releasing the accused on bond by giving him the benefit 61 Section 4 of the Probation of Offenders Act. In such circumstances there is no reason whatsoever for this Court to interfere into the impugned Judgment and order of conviction as well as the sentence. Consequently, the appeal falls and stands dismissed. The accused shall be entitled to set off under Section, 428 of the Code of Criminal Procedure.