{"id":27021,"date":"2011-01-06T00:00:00","date_gmt":"2011-01-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/laxmichand-balbutya-vs-state-of-maharashtra-on-6-january-2011"},"modified":"2018-12-23T22:40:59","modified_gmt":"2018-12-23T17:10:59","slug":"laxmichand-balbutya-vs-state-of-maharashtra-on-6-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/laxmichand-balbutya-vs-state-of-maharashtra-on-6-january-2011","title":{"rendered":"Laxmichand @ Balbutya vs State Of Maharashtra on 6 January, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Laxmichand @ Balbutya vs State Of Maharashtra on 6 January, 2011<\/div>\n
Author: P.Sathasivam<\/div>\n
Bench: Harjit Singh Bedi, P. Sathasivam, Chandramauli Kr. Prasad<\/div>\n
                                                  REPORTABLE\n            IN THE SUPREME COURT OF INDIA\n\n           CRIMINAL APPELLATE JURISDICTION\n\n          CRIMINAL APPEAL NO. 1643 OF 2005\n\n\n\nLaxmichand @ Balbutya                                  ....\nAppellant(s)\n\n         Versus\n\nState of Maharashtra                           .... Respondent(s)\n\n\n\n\n                       JUDGMENT\n<\/pre>\n
P.Sathasivam,J.\n<\/p>\n
1) This appeal is filed by the appellant-accused, who is in<\/p>\n
Jail, through Superintendent, Nagpur Central Prison,<\/p>\n
Nagpur   under      Section    2    of   the   Supreme        Court<\/p>\n
Enlargement    of   Criminal       Appellate   Jurisdiction     Act<\/p>\n
against the final order and judgment dated 15.10.2004<\/p>\n
passed by the High Court of Bombay, Nagpur Bench,<\/p>\n
Nagpur in Criminal Appeal No. 48 of 1990 whereby the<\/p>\n
High Court allowed the appeal filed by the State and set<\/p>\n
                                                                 1<\/span>
\naside the order of acquittal passed by the Additional<\/p>\n
Sessions Judge, Gondia.\n<\/p>\n
2)    The prosecution case is as follows:\n<\/p>\n
(a)   On 10.08.1986, at about 3.00 p.m., there was a<\/p>\n
quarrel between Laxmichand @ Balbutya – the accused<\/p>\n
and Gyaniram Mahajan – the deceased, who was in<\/p>\n
drunken state, at the house of the accused.                The<\/p>\n
appellant-accused asked Gyaniram to go home but he was<\/p>\n
not acceding to his request.          The accused brought<\/p>\n
Gyaniram from his house on the road by lifting him but he<\/p>\n
fell down. The accused struck him with a spade on his<\/p>\n
head. As a result, Gyaniram sustained injury on his head<\/p>\n
and had become unconscious.           The accused proceeded<\/p>\n
towards the house of one Police Patel. While going there,<\/p>\n
he made disclosure to some persons that he had killed<\/p>\n
Gyaniram Mahajan.       One Ghanshyam, who was in the<\/p>\n
employment     of   Fulchand    and    who   had   heard   the<\/p>\n
utterances of the accused to the above effect, informed<\/p>\n
Tejram        (PW-2)      who         was      sitting      in<\/p>\n
                                                            2<\/span>
\nthe house of Fulchand that the appellant-accused was<\/p>\n
telling that he had killed Gyaniram. Tejram went towards<\/p>\n
the Gram Panchayat. The accused was coming from the<\/p>\n
side of the house of Police Patel. He again made similar<\/p>\n
utterances and informed Tejram that he had killed<\/p>\n
Gyaniram and further asked him to scribe a report.<\/p>\n
Tejram advised him to go to the police station.<\/p>\n
(b)   Tejram went to the police station and lodged an oral<\/p>\n
report that he was informed by the accused that he had<\/p>\n
killed Gyaniram. The oral report was reduced into writing<\/p>\n
by P.S.I. Narkhede (PW-12) under Section 302 of the<\/p>\n
Indian Penal Code.     By the time, the accused reached<\/p>\n
there alongwith spade, P.S.I. Narkhede (PW-12) arrested<\/p>\n
him and seized the spade. Thereafter, he went to the spot<\/p>\n
and noticed that Gyaniram was lying unconsciously. Spot<\/p>\n
panchnama was prepared and the samples of blood<\/p>\n
stained earth and plain earth were collected.<\/p>\n
                                                        3<\/span>\n<\/p>\n
(c)   Gyaniram was sent to the hospital in the cart of<\/p>\n
Primary Health Centre, Tirora. The doctor examined him<\/p>\n
at 9.45 p.m. and found a lacerated wound on his fore<\/p>\n
head with underlying bony fractures into pieces.          As<\/p>\n
Gyaniram was unconsciousness, P.S.I. could not take his<\/p>\n
statement.     On 17.08.1986, A.S.I. Sahare received a<\/p>\n
message from Dr. Jaiswal of K.T.S. Hospital, Gondia that<\/p>\n
Gyaniram had expired. On the same day itself the post<\/p>\n
mortem was conducted.\n<\/p>\n
(d)   After the investigation, the charge sheet was sent to<\/p>\n
the Court of J.M.F.C. Gondia.      The J.M.F.C. committed<\/p>\n
the case under Section 209(a) of the Code of Criminal<\/p>\n
Procedure to the Court of Sessions for trial of the accused.<\/p>\n
The charge for the offence under Section 302 I.P.C. was<\/p>\n
framed against the accused. The Sessions Judge, Gondia,<\/p>\n
vide his judgment dated 29.07.1989, acquitted the<\/p>\n
accused of the charges framed against him.<\/p>\n
(e)   Against the said judgment of acquittal, the State filed<\/p>\n
an appeal before the High Court of Bombay, Nagpur<\/p>\n
                                                           4<\/span>
\nBench.        The High Court, vide its judgment dated<\/p>\n
15.10.2004, set aside the order of acquittal and convicted<\/p>\n
the   appellant-accused   for   offence   punishable   under<\/p>\n
Section 302 I.P.C.\n<\/p>\n
(f)   Aggrieved by the judgment of the High Court, the<\/p>\n
appellant-accused has filed this appeal from Jail through<\/p>\n
the Superintendent, Nagpur Central Prison, Nagpur before<\/p>\n
this Court.\n<\/p>\n<\/p>\n
3)    Heard Mr. Sushil Karanjakar, learned amicus curiae<\/p>\n
for the appellant and Mr. Shankar Chillarge, learned<\/p>\n
counsel for the State.\n<\/p>\n<\/p>\n
4)    As far as the incident and the involvement of the<\/p>\n
appellant-accused is concerned, the prosecution has<\/p>\n
mainly relied on the evidence of Fattu Madavi (PW-3) and<\/p>\n
Mahadeo (PW-4) who are the two eye-witnesses.          Apart<\/p>\n
from these two eye-witnesses, the prosecution has also<\/p>\n
                                                          5<\/span>
\nrelied on extra-judicial confession said to have been made<\/p>\n
by the accused to some of the witnesses.\n<\/p>\n
5)   It is seen from the evidence of Fattu (PW-3) that the<\/p>\n
accused gave a call to him and said that Gyaniram – the<\/p>\n
deceased was under the influence of liquor and he was not<\/p>\n
willing to leave his house. There was a quarrel between<\/p>\n
the accused and the deceased at the house of the accused.<\/p>\n
At the time of quarrel, Mahadeo (PW-4), who was present<\/p>\n
in the nearby house of Bhaurao Neware was witnessing<\/p>\n
the same. It is also seen from the evidence of Fattu (PW-3)<\/p>\n
and Mahadeo (PW-4) that in the course of quarrel, the<\/p>\n
accused dragged Gyaniram outside of his house and gave<\/p>\n
a stroke of spade on his head. From the evidence of PWs<\/p>\n
3 & 4, the prosecution has established that the quarrel<\/p>\n
was going on between the accused and the deceased and<\/p>\n
the deceased was under the influence of liquor and he was<\/p>\n
adamant and refused to leave the house of the accused<\/p>\n
which forced the accused to drag him outside his house<\/p>\n
and also inflicted injuries with the spade.     As rightly<\/p>\n
                                                         6<\/span>
\nobserved by the High Court, there is no reason to<\/p>\n
disbelieve the version of eye-witnesses, PWs 3 & 4, in this<\/p>\n
regard.   On perusal of their evidence, we found no<\/p>\n
material omission or contradiction to disbelieve their<\/p>\n
version. On the other hand, we agree with the conclusion<\/p>\n
arrived at by the High Court as regard to the reliability of<\/p>\n
two eye-witnesses.\n<\/p>\n
6)   Apart from two eye-witnesses, the prosecution has<\/p>\n
examined one Tejram as PW-2 who made a complaint to<\/p>\n
the police.   The accused has made an extra-judicial<\/p>\n
confession to him.     Tejram (PW-2) is the person who<\/p>\n
lodged the report (Ex.21). The perusal of the above report<\/p>\n
strengthened the evidence of Tejram (PW-2) about the<\/p>\n
statement said to have been made to him by the accused.<\/p>\n
7)   It is also seen from the evidence of Narkhede, P.S.I.<\/p>\n
(PW-12) that when he was scribing the report, the accused<\/p>\n
arrived at the police station with a spade and immediately<\/p>\n
he arrested him and seized the spade. Though no much<\/p>\n
importance needs to be given to the statement of Tejram<\/p>\n
                                                          7<\/span>
\n(PW-2) but if we consider the same along with other<\/p>\n
materials, there is no reason to reject his version. Another<\/p>\n
person before whom the accused has made a confessional<\/p>\n
statement is Govardhan (PW-7). The accused had gone to<\/p>\n
his place and informed him about the incident.        In the<\/p>\n
same way, one Udelal, who was examined as PW-8, also<\/p>\n
apprised the Court about the admission of guilt by the<\/p>\n
accused. Though their is no need to attach importance to<\/p>\n
the statements of PWs 7 & 8, as observed earlier, if we<\/p>\n
consider all the materials together, it prove the case of the<\/p>\n
prosecution that it was the accused who was responsible<\/p>\n
for the death of Gyaniram-the deceased.<\/p>\n
8)   It was submitted that though the injured was alive<\/p>\n
for seven days but no attempt was made to record his<\/p>\n
statement about the incident. It is seen from the evidence<\/p>\n
of Narkhede, PSI (PW-12) that he was not allowed to<\/p>\n
record his statement by the Doctors as the victim was not<\/p>\n
in a position to give the statement. It is relevant to note<\/p>\n
that an attempt was made to record his statement by the<\/p>\n
                                                           8<\/span>
\nSpecial Executive Magistrate, that also could not be done.<\/p>\n
The evidence of Dr. Arvind Manwatkar (PW-1), Medical<\/p>\n
Officer attached to Primary Health Centre, Tirora also<\/p>\n
supports the version of the prosecution. He also issued a<\/p>\n
certificate (Ex.19) that the injured person was not able to<\/p>\n
give any statement. When Dr. Arvind Manwatkar (PW-1)<\/p>\n
was shown spade at the time of examination in Court, he<\/p>\n
opined that it would be possible that such injury could be<\/p>\n
caused with spade. As observed by the High Court, the<\/p>\n
medical report, evidence of Doctor and the statement of<\/p>\n
eye-witnesses support the case of the prosecution.     Dr.<\/p>\n
Pradip Kumar Gujar (PW-9) who conducted the post-<\/p>\n
mortem on the dead body of Gyaniram also found that the<\/p>\n
cause of death was head injury, laceration of the brain<\/p>\n
matter, resulting into neurogenic shock and peripheral<\/p>\n
circulatory failure. All the above materials including oral<\/p>\n
and documentary evidence clearly prove the case of the<\/p>\n
prosecution and we agree with the conclusion arrived at<\/p>\n
by the High Court.\n<\/p>\n
                                                         9<\/span>\n<\/p>\n
9)   Coming to the argument that instead of convicting<\/p>\n
the accused for culpable homicide amounting to murder,<\/p>\n
his case would fall in the category of culpable homicide<\/p>\n
not amounting to murder as even according to the<\/p>\n
prosecution one blow alone was caused by the accused<\/p>\n
that too in a quarrel, we have already pointed out and it is<\/p>\n
clear from the evidence of PWs 3 & 4 – eye-witnesses that<\/p>\n
prior to the incident, there was a quarrel between the<\/p>\n
accused and the deceased inside the house of the accused<\/p>\n
and the deceased consumed liquor and adamant to leave<\/p>\n
the house of the accused which necessitated the accused<\/p>\n
to drag him out of his house and inasmuch as the<\/p>\n
deceased still refused to accede to the request of the<\/p>\n
accused, he inflicted blow on the head with the spade. As<\/p>\n
pointed out by the appellant-accused, he had no pre-plan<\/p>\n
or intention to kill the deceased and his main worry was to<\/p>\n
get the deceased out of his house, who consumed<\/p>\n
excessive   liquor.    Considering    all   these   aspects,<\/p>\n
particularly, the conduct of the deceased in not leaving the<\/p>\n
                                                          10<\/span>
\nhouse of the accused, he dragged him out of his house,<\/p>\n
put him on the road and assaulted him with a spade, we<\/p>\n
are of the view that the accused has no intention to kill<\/p>\n
the deceased. It is true that blow given by the accused on<\/p>\n
the deceased was at the vital part because of which he<\/p>\n
was   unconscious    for   seven   days   and   ultimately<\/p>\n
succumbed to his injuries. However, as discussed earlier,<\/p>\n
the accused had no intention to commit the offence.<\/p>\n
10) Considering all the materials and reasons, we feel<\/p>\n
that the commission of offence attributed to the accused-<\/p>\n
appellant would come under Section 304 Part II Indian<\/p>\n
Penal Code. Taking note of the fact that the incident had<\/p>\n
occurred in the year 1986 and the accused had no<\/p>\n
intention to kill the deceased but due to the reasons and<\/p>\n
circumstances stated above, we feel that the ends of<\/p>\n
justice would be met by awarding sentence of rigorous<\/p>\n
imprisonment for five years.   The accused is entitled to<\/p>\n
have the benefit of deduction of the period already<\/p>\n
undergone.\n<\/p>\n
                                                        11<\/span>\n<\/p>\n
11) With the above modification, the appeal is allowed in<\/p>\n
part.\n<\/p>\n<\/p>\n
                        ………………………………………….J.
\n                         (HARJIT SINGH BEDI)<\/p>\n
                                …………………………………….
\n                             ……J.\n<\/p>\n
                         (P. SATHASIVAM)<\/p>\n
                        ………………………………………..J.
\n                        (CHANDRAMAULI KR. PRASAD)<\/p>\n
NEW DELHI;\n<\/p>\n
JANUARY 6, 2011.\n<\/p>\n
                                                                        12<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Laxmichand @ Balbutya vs State Of Maharashtra on 6 January, 2011 Author: P.Sathasivam Bench: Harjit Singh Bedi, P. Sathasivam, Chandramauli Kr. Prasad 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-27021","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nLaxmichand @ Balbutya vs State Of Maharashtra on 6 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/laxmichand-balbutya-vs-state-of-maharashtra-on-6-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Laxmichand @ Balbutya vs State Of Maharashtra on 6 January, 2011 - 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