:1: Sessions Case No.872/2016 Received on : 26.12.2016 Registered on : 26.12.2016 Decided on : 02.02.2022 Duration : Y05:M01:D07: IN THE COURT OF SESSIONS FOR GREATER BOMBAY AT BOMBAY SESSIONS CASE NO.872 OF 2016 (CNR NO.
:MHCC020156162016) Exhibit No.
: State of Maharashtra (Through Police Officer, Dongari P.Stn.C.R.No.17916) … Prosecution Versus Sunilkumar Sriniwas Kutty @ Kalya, Age : 37 years.
Occ.
: Labour.
R/O.
: Footpath near Wadi Bunder Traffic Police Chowky, P.D'Mellow Road, Dongari, Mumbai9.
… Accused.
Charge Offences punishable U/S 302 of the Indian Penal Code Shri.
R.V.Tiwari, learned A.P.P.
for the State.
Shri.Aniket Gawand, learned advocate for the accused.
CORAM : H.H.
THE SESSIONS JUDGE URMILA S. JOSHI – PHALKE (COURT ROOM No.19) DATE : 2nd FEBRUARY 2022 .
JUDGMENT
----------------------------------------------------------------------------------------------------1. Present accused is facing trial on an allegation that on 06.09.2016 he caused the death of Ramesh @ Ramya @ Ransingh Bhiwa Pawar by giving blow on his head by wooden bamboo with an intention of causing death and thereby committed an offence punishable U/s.302 of Indian Penal Code. :2: Sessions Case No.872/2016
2. Brief facts, of the prosecution as emerges from the police papers and recorded evidence, are as under:
3. On 07.09.2016 informant Badshah Khan Rahim Khan has lodged report at Dongari Police Station on an allegation that he is residing on footpath at Wadibunder Traffic Police Chowky, Near Saibaba Temple, Dongari Wadibunder, Mumbai09. The accused Sunilkumar Sriniwas Kutty @ Kalya and deceased Ramesh Pawar are acquainted with him as they were also residing on the same footpath. Accused and deceased both were working and doing the work of pulling handcarts. On 06.09.2016 at about 9.00 p.m. he along with his friend Sadik Shaikh were sitting in front of Wadibunder Traffic Police Chowky, at that time deceased Ramesh was taking his dinner behind the police chowky on footpath. At that relevant time accused also came there and sat along with him for taking the meal. At the relevant time hot exchange of words between them on the count of money. Both have caught hold the collar of each other therefore, he along with Sajid went to intervene the quarrel but accused told them that they would not intervene and therefore, they remained standing at some distance. After hot exchange of words Ramesh again sat for taking meal at that time accused took the wooden bamboo lying there and gave blow of bamboo on the head of Ramesh from front side. After seeing this, he along with Sadik went to rescue Ramesh but accused ran away from the said place. Ramesh was lying on the footpath and blood was oozing from his head. They tried to wake up him but Ramesh was not responding. Therefore, he immediately approached to the police available at Wadibunder traffic Police Chowky. They have immediately called the police officials of Dongari Police Station. Thereafter Ramesh :3: Sessions Case No.872/2016 was removed to the hospital in an injured condition. They also followed the police as Ramesh was taken in JJ Hospital. Medical Officer of JJ Hospital examined Ramesh and declared him dead. Thereafter, he lodged the report at Dongari Police Station.
4. On the basis of said report, police have registered the offence against accused vide CR No.179 of 2016 U/s.302 of IPC. After registration of the crime Investigating Officer has visited the alleged spot of incident and drawn spot panchanama. Accused was also arrested. During investigation, Investigating Officer has drawn the inquest panchanama on the deadbody of the deceased. Deadbody was also handed over to the relatives. Clothes of the deceased are also seized by drawing the panchanama. Clothes of the accused are also produced by the accused which were also seized by the police drawing panchanama in presence of panchas. During investigation accused made a memorandum statement in presence of panchas and in pursuant of the said statement wooden bamboo was recovered at the instance of accused. During investigation, Investigating Officer has collected the Postmortem report and Cause of Death Certificate. All the incriminating articles are forwarded to the Chemical Analyzer along with letter. After completion of investigation, Investigating Officer submitted the chargesheet against the accused.
5. As the offence punishable U/s.302 of IPC is exclusively triable by the Court of Sessions, Learned Metropolitan Magistrate has committed the case to the Court of Sessions. :4: Sessions Case No.872/2016
6. My learned predecessor has framed the charge vide Exh.3. Contents of the charge are read over and explained to the accused in vernacular in Marathi as well as in Hindi. He pleaded not guilty and claimed to be tried.
7. In support of the prosecution case, prosecution has examined in all 11 witnesses. PW Nos. Name of Witness Exh. Nos. PW 1 Ananda Ramchandra Bhosale, Traffic Hawaldar Exh.10 PW 2 Mohd.Sadik Gaffur Shaikh, eye witness Exh.11 PW 3 Kiran Mohan Gohil, panch on spot panchanama Exh.12 PW 4 Dattatray Shripati Patil, Police Constable Exh.17 PW 5 Subhash Waman Shirsath, panch on seizure of Exh.18 clothes PW 6 Dr.Sushil Digambar Kamble, Medical Officer Exh.20 PW 7 Popat Haribhau Patil, Investigating Officer Exh.23 PW 8 Sushil Ashokrao Ingale, Investigating Officer Exh.28 PW 9 Ankuh Shamrao Katkar, Investigating Officer Exh.34 PW 10 Badshah Rahim Khan, Informant and eye witness Exh.46 PW 11 Sunita Ramesh Pawar, wife of deceased Exh.54
8. Besides this oral evidence, prosecution relied upon documentary evidence. Sr. No. Particulars of document Exh. Nos. 1 Spot Panchanama Exh.13 2 Inquest Panchanama Exh.14 3 Clothes seizure panchanama of accused Exh.15 :5: Sessions Case No.872/2016 4 Clothes seizure panchanama of deceased Exh.19 5 Postmortem notes Exh.21 6 Cause of Death Certificate Exh.22 7 Complaint @ FIR Exh.29 8 Memorandum statement Exh.30 9 Discovery panchanama Exh.31 10 Letter to Medical officer Exh.32 11 C.A. Reports Exh.35,36&37 12 Letter to C.A. Exh.38
9. Prosecution also relied upon the following article, ArticleA – Wooden stick.
10. On the basis of said oral as well as documentary evidence, prosecution claimed that prosecution has proved its case beyond reasonable doubt.
11. All the incriminating evidence is put to the accused in order to obtain his explanation regarding the evidence appearing against him by recording his statement U/s.313 of Cr.P.C. The defence of the accused is of total denial and of false implication.
12. Heard Learned APP Shri R.V.Tiwari for the State. He submitted that prosecution has examined in all 11 witnesses. Defence has also challenged the identity of the deceased as name of the deceased is mentioned in the postmortem report as Ransingh Bhiwa Pawar, therefore prosecution has examined PW11, wife of the deceased. She categorically stated the name of deceased is Ramesh @ Ransingh. He was also known as Ramya. She also produced on record the documents :6: Sessions Case No.872/2016 like Ration Card, Voters Card etc. which proves that deceased was known other than Ramesh @ Ramya @ Ransingh Bhiwa Pawar. His identity is established by the prosecution. Prosecution has also examined PW6 Dr.Sushil Digambar Kamble, Medical Officer, who has conducted the postmortem examination on the deadbody of the deceased. On examination he found in all six injuries on the person of the deceased. He testified that death of the deceased is due to head injury. He specifically denied that the injuries mentioned in column no.19 are possible by fall on rough surface. He specifically denied that none of the injuries is not possible by falling on rough surface. He admitted that injuries mentioned in column No.17 may be possible due to fall of stone on head. But there is no such suggestion to the eye witnesses by the defence that due to the fall of stone on head deceased has sustained the injuries. The homicidal death of the deceased is proved by the prosecution. Prosecution has also proved that in sudden fight and sudden quarrel accused took out the wooden bamboo and gave blow of the same on the vital part i.e. head of the deceased and there is instantaneous death of the deceased due to the said blow. Thus, prosecution has proved the charge against the accused, hence accused to be convicted.
13. On the other hand, learned advocate Shri Aniket Gawand for the defence submitted that to prove the charge U/s.302 of Indian Penal Code, the evidence of eye witnesses are not consistent and cogent. The seizure of the articles at the instance of the accused is also not proved by the prosecution. The evidence of eye witnesses are contradictory on material points. Evidence of the panchas is also not inspired confidence. :7: Sessions Case No.872/2016 Medical evidence is also contradictory to the oral evidence. As per the prosecution, only one blow is given, but Medical Officer observed six injuries on the person of the deceased and therefore, the entire evidence of prosecution is not sufficient to warrant the conviction against the accused, hence accused to be acquitted from the charge.
14. Heard rival submissions of the parties. Perused the evidence on record. Following points arise for my consideration and I answer the same as follows: POINTS FINDINGS
1. Whether the death of deceased Ramesh @ In the Ramya Bhiwa Pawar is a homicidal one? Affirmative
2. Whether the prosecution proves that on 06.09.2016 at about 9.00 p.m. accused has Section 304(I) given a blow of wooden bamboo on the head of proved deceased Ramesh @ Ramya Bhiwa Pawar with intention to cause his death and thereby committed an offence punishable U/s.302 of IPC?
3. What order? As per final order R E A S O N S As to Point No.1:
15. To prove the homicidal death, prosecution relied upon on the evidence of PW6 Dr.Sushil Digamber Kamble, who is examined vide Exh.20. He testified that he was attached to JJ Hospital as a Resident Doctor. On 07.09.2016 deadbody of Ramesh Bhiwa Pawar was received at JJ Hospital for postmortem along with the requisition letter. After conducting the postmortem, he found internal head injuries underscalp :8: Sessions Case No.872/2016 contusion of size 7cmX4cm over the left parietal region, dark red in colour. The scalp was found intact and there was no fracture seen. The brain was congested oedematous. Subarachroid hemorrhage of size 4cmX2.5cm over right mideparietal lobe dark red in colour and subarchroid haemorrhge of size 3cmX2cm over cerebellar region medially, dark red in colour. He mentioned the injuries in column No.17 of the postmortem report which are as follows:
1. Swelling of size 3c.m. X 3 C.m. present over left posterior part of parietal region.
2. Laceration of size 6 c.m. X 0.5 c.m. X scalp deep present over left frontpareital region obliquely, margins irregular with blood infilbetion crushing of hair bulbs at the margins, dark red in colour.
3. Abrasion of size 5 c.m. X 1 c.m. present, 1.5 c.m. below injury no.2 15.5 c.m. below the left nipple redish in colour.
4. Abrasion of size 5 c.m. X 1 c.m. over left part of lower chest region 13.5 c.m. from the left nipple, present horizontally, reddish in colour.
5. Incised wound of size 4 c.m. X 0.5 muscle deep present obliquely over ventral aspeel of left forearm 10.5 from the cubical foci margins regular clear cut.
6. Abraded contusion of size 1.5 c.m. X 0.5 c.m. X subcutaneous deep over left mid arm posterior aspect redish in colour. He preserved the viscera for chemical Analysis. He also collected the blood samples, nail clippings. He handed over the samples to the police of Dongari Police Station and after conducting postmortem he opined :9: Sessions Case No.872/2016 that “Evidence of head injury. However final opinion reserved pending for chemical analysis reports” . Accordingly, he issued postmortem notes Exh.21. He also issued the Cause of Death Certificate which is at Exh.22. He is crossexamined at length. During his crossexamination he denied that injuries mentioned in the column no.19 of the postmortem report can be possible due to fall on rough surface. He stated that none of the injuries mentioned in column no.19 can be possible by fall on the rough surface. The injuries mentioned in column no.19 due to fall of stone on head. He further stated none of the injuries mentioned in column no.17 can be possible due to fall on rough surface. He admitted that correction of the name of deceased in the postmortem report was subsequent to issuing the postmortem report. Thus, during the crossexamination defence has tried to bring on record such type of injuries are possible by fall on rough surface. It is contention of the defence that deceased has sustained injuries due to fall on rough surface, but Medical Officer has denied the same. Evidence of Medical Officer shows that on internal examination he found head injury on left pareital region. He also observed the hamorrhage due to the said injury and according to him death is due to the head injury. Though he preserved the viscera, C.A. report of viscera is not received by the Court so nothing is on record to show that deceased died due to any other reason.
16. Beside the evidence of Medical Officer, prosecution also relied upon on the evidence of PW2 Mohd.Sadik Gaffur Shaikh examined vide Exh.11 and PW10 Badshah Rahim Khan examined vide Exh.46 who are eye witnesses. As per the evidence of PW2 alleged incident :10: Sessions Case No.872/2016 has took place on 06.09.2016 on the day of incident after finishing his work at about 9.00 p.m. he was chitchatting along with his friend i.e. PW10 Badshah at Wadibunder Traffic office, at that time accused Sunilkumar and Ramesh i.e. deceased were fighting on the road behind the traffic walls. They heard the noise of fighting and therefore they went there but both deceased and accused sent them away. At that time they saw that accused and deceased were taking meals and accused finished his meal and while washing hands he was staring towards deceased and thereafter accused took out the bamboo which was laying there and gave blow on the head of deceased. Deceased sustained the head injury and accused ran away from the said spot. They immediately informed the traffic police who were present at Wadibunder traffic police chowkey, traffic police called the Dongari police and police arrived there and removed the deceased in the hospital but deceased was declared dead.
17. PW10 Badshah Khan also deposed in the similar manner. The sum and substance of his evidence is that deceased and accused both were taking their meals on the footpath. At the relevant time he along with his friend Sadik were chitchatting in front of traffic police chowkey. They saw the quarrel and they went there for intervention but accused told them that they are not concern with the same. Deceased again started taking his meal, at that time accused took out the bamboo which was lying there and gave blow on the head of deceased Ramesh. They tried to wake up the deceased Ramesh but he did not respond. The blood was oozing from the head. They immediately approached to police available at traffic police chowkey :11: Sessions Case No.872/2016 and informed the incident to traffic police. Traffic police informed the Dongari police station. Dongari police came at the spot of incident and removed the deceased in the hospital. Both the witnesses are crossexamined at length. During their crossexamination defence has attempted to bring on record that deceased died due to fall on hard rough surface. Both the witnesses have denied that there was rough surface, deceased fall on the ground and died. PW2 admitted that the footpath over which the body of Ramya was lying, there was no even surface, but he denied that deceased died due to fall on the said hard surface. It is also suggested that PW2 and PW10 were following the deceased and while running he fell down on the ground and sustained injuries but this fact is denied by PW2. PW10 also denied that deceased sustained the injuries due to the fall. It is suggested to him that there was quarrel between him and deceased on account of place which was chosen by the deceased for taking meal but PW10 has denied the same. He also denied that paver blocks on the spot of incident uprooted. Thus, contention of the defence that the deceased sustained the injuries due to fall is specifically denied by PW2 and PW10. Medical officer has also denied that these injuries are possible due to fall on hard and rough surface. Inquest panchanama is at Exh.14 admitted by the defence. The recitals of the inquest panchanama shows that on verification of the deadbody of the deceased, it reveals to the panchas that deceased has sustained injuries on his head 2.5c.m.X 2c.m. having width of 4 c.m. The blood was oozing from the said injury. Thus, the medical evidence as well as oral evidence of PW2 and PW10 shows that deceased has sustained the injury on his head which resulted into his death. This fact is also supported by the evidence of inquest :12: Sessions Case No.872/2016 panchanama which shows that deceased has sustained the injury on his head. Thus, prosecution has proved that deceased died due to the head injury which is homicidal one. Hence, I answer point no.1 in the affirmative. As to Point No.2:18. As per prosecution, homicidal death of the deceased Ramesh is caused by the accused. The story of the prosecution describes that on the day of incident informant as well as PW2 were chitchatting in front of traffic office at Wadibunder and accused and deceased were also taking their meals on the backside of said traffic office on the same footpath. Suddenly quarrel started between them on account of money and accused took wooden bamboo lying there and gave a blow of the said bamboo on the head of the deceased. Thus, as per the prosecution, PW2 Mohd.Sadik and PW10 Badshah Khan are the eye witnesses. It is further case of the prosecution that these both witnesses informed the incident to traffic police available at Traffic police chowkey and said traffic police informed Dongari Police Station. To prove the said circumstance and homicidal death of the deceased at the hands of the accused, prosecution mainly relied upon on the evidence of these two eye witnesses. The evidence of PW10 Badshah shows that on the relevant day he was chitchatting with PW2 Modh.Saidk and they were sitting in front of Wadibunder traffic police chokey. Deceased Ramesh was taking his meal near the wall on footpath. At that time accused also came there and sat along with him for taking meal. At that time, they had a quarrel. He along with PW2 intervened but accused told them that they should stay away as they were not concern. Deceased :13: Sessions Case No.872/2016 Ramesh was again taking the meal at that time one bamboo was lying there and accused took the said bamboo and gave a blow of said bamboo on the head of Ramya. Ramya fell down and sustained the injury on his head. Blood was oozing from his head and accused ran away from the spot along with bamboo. Accordingly, he informed the police available in traffic police chowkey and said traffic police informed Dongari police station and police came there. PW2 Mohd.Sadik also testified vide Exh.11 in a similar manner. He also corroborated the version of PW10 Badshah that he was chitchatting with PW10, at that time quarrel was started between accused and deceased Ramesh near the traffic office wall. They went there but both accused and deceased asked them to stay away. Thereafter, accused after finishing his dinner, he took bamboo lying there and gave a blow of that bamboo on his head therefore, Ramesh has sustained injuries. They immediately informed the Wadibunder traffic police. Said traffic police informed Dongari police station and police Van came there and injured was removed to the hospital. They also followed the deceased when he was taken in the hospital. Both the witnesses are crossexamined at length. During their crossexamination the fact that both the witnesses are residing on the same footpath is not denied by the defence. On the contrary, it came on record that PW2, PW10, deceased Ramesh and accused Sunil used to sleep at Wadibunder traffic office. It also came on record that PW2 and PW10 were doing the work on Towing Van and accused and deceased used to do the work of pushing the handcarts. It further came on record that even deceased Ramesh used to cook his dinner on the said footpath. Thus, crossexamination shows that not only deceased and accused but PW2 and :14: Sessions Case No.872/2016 PW10 were also residing on the same footpath. During crossexamination he admitted that the place where deceased Ramya was taking dinner was not visible to him as there was wall in between them. It further came on record that when he and PW10 went towards Ramya, at that time Ramya and accused were having dinner together. Thus, the crossexamination clears the facts that when PW2 and PW10 reached near the accused and deceased at that time they both were taking the dinner and subsequently there was quarrel between them and in presence of these witnesses accused gave a blow of bamboo on the head of the deceased. Defence has tried to shatter the evidence by bringing it on record that PW2 and PW10 both were in the habit of drinking liquor. PW2 also admitted that he and PW10 used to consume liquor every day after finishing their work. It nowhere came on record that at the time of incident also they were under the influence of liquor. Similarly, PW10 is also crossexamined at length. In his crossexamination also it came on record that they were residing on the same footpath and accused and deceased were also residing on the same footpath. Learned defence counsel has invited the attention towards the crossexamination wherein PW10 has stated that he and PW2 both went to the traffic police chowkey whereas PW2 stated only PW10 approached to the traffic police chowkey. Another deficiency is pointed out that PW2 has admitted that he and PW10 are in habit of drinking liquor every day, but PW10 has denied the same. On the basis of these deficiencies it is tried to bring on record that evidence of PW2 and PW10 is not consistent and suffering from deficiencies. If the crossexamination of PW10 is taken into consideration, he also admitted that he along with PW2 were residing on the same footpath. It further :15: Sessions Case No.872/2016 came on record that they used to cook on footpath and thereafter accused and deceased used to take their meals. It specifically came on record that on the day of incident also accused and deceased were also taking meals together. He specifically denied that footpath is in a damaged condition. He denied that some paver blocks were uprooted. But PW2 has admitted that the footpath was in a uneven condition. It is suggested to both the witnesses that deceased sustained injuries due to fall on uneven surface, but both have denied the same.
19. If the evidence of these two witnesses is taken into consideration, it appears that they are natural witnesses. Their presence at the spot of incident is also natural. It is not denied that they are residing at the said place. On the contrary crossexamination shows that they are residing there. They are not only residing but they are also taking their meals at the said place. Thus, presence of these witnesses is natural since they are residing there and at the time of incident they were present there. Their evidence is further tried to be shattered on the ground that the place where the accused and deceased were taking meals is not visible to them. PW2 admitted the same, but evidence on record shows that they were in front of traffic police chowkey where deceased and accused were taking the meals behind said chowkey when the quarrel was started between deceased and accused. Their evidence clearly shows that after hearing the noise they went there and the quarrel was going on between them on the count of money. Thereafter, accused stand up and deceased was sitting and taking meal but accused took bamboo lying there and gave a blow of the said bamboo on the head of deceased. Thus, the presence of these :16: Sessions Case No.872/2016 two witnesses is quite natural at the place of incident. The fact that they witnessed the incident is also proved by the prosecution.
20. To corroborate the version of PW2 and PW10 that they approached to the Wadibunder traffic police chowkey immediately after the incident, prosecution has examined PW1 Anand Ramchandra Bhosale vide Exh.10. He testified that on 06.09.2016 he was on duty at night hours in the traffic police chowkey. Due to Ganesh Festival he joined his duty at 5.00p.m.. At about 9.00 p.m. two boys working on police towing Van namely Sajid and Badshah came to traffic office at Pydhunie and informed him that accused assaulted Ramya Pawar by bamboo on his head. Therefore, he immediately went along with two constables at the spot of incident which adjacent to their traffic office. He saw Ramya Pawar was in unconscious condition lying on ground and having head injury. Therefore, he immediately gave wireless call to the police control room and informed about the incident. Thereafter, Bit Marshal from Dongari Police Station reached on the spot and they also gave wireless call to the control room and called Van to take the injured. Accordingly, injured was taken to JJ Hospital in the police Van. After some time, he came to know that Ramya Pawar died due to the said injury. He is crossexamined at length, but during crossexamination nothing incriminating came on record.
21. To prove that deceased has sustained the head injury, prosecution also relied upon the inquest panchanama. Inquest panchanama is admitted by defence which is at Exh.14. Recitals of inquest panchama shows that panchas were called in JJ Hospital and in :17: Sessions Case No.872/2016 their presence inquest panchanama was drawn. On verification of dead body, they found that deceased has sustained injury on his head having blood from the said injuries. The description of the clothes of the deceased is also mentioned in the said panchanama.
22. Another circumstance on which prosecution is relied upon is the evidence of spot panchanama. PW3 Kiran Mohan Gohil is examined vide Exh.12 to prove the spot panchanama. He deposed that on 07.09.2016 he was proceeding in front of Dongari Police Station, at that time police requested him to act as panch for preparing the spot panchanama. Accordingly, he acted as a panch on the said spot panchanama. As per his evidence, the spot of incident was behind traffic office at Wadibunder Dongari on footpath. At the spot of incident there was food material scattered on the footpath. Blood stains were also found there. Police collected the blood samples from the footpath with the help of cotton and police also collected the simple soil from the spot of incident. Accordingly, panchanama was drawn. Police also took his signature on the label attached to both the samples. Said panchanama is at Exh.13 and the labels of the said samples are Articles A2 and A3. He is also crossexamined at length. During crossexamination he denied that he visited Dongari police station for permission of Ganesh Festival. He also denied that footpath was of uneven surface and was damaged. Thus, from the crossexamination of PW3 nothing incriminating came on record.
23. To corroborate the version of PW2 and PW10, prosecution also examined PW4 Dattatray Shripati Patil vide Exh.17, who is the Police :18: Sessions Case No.872/2016 Constable i.e. Bit Marshal of Dongari Police Station. He also testified that on the day of incident he was on duty as Bit Marshal. He was standing near Pydhunie traffic office on the junction. One police constable came to him and informed him that one person is lying unconscious at P.D'Mello Road behind Wadibandar traffic office. Accordingly, he visited the spot and found that one person was lying unconscious and having injury on his head. Therefore, he gave wireless call to control room. His evidence is not challenged by the defence during the crossexamination.
24. Another circumstance on which prosecution is relied upon is the recovery of the clothes, recovery of blood stains' clothes of the accused. To prove the said circumstance, prosecution relied upon the evidence of PW5 Subhash Waman Shirsath vide Exh.18. He testified that on 07.09.2016 police called him at Dongari Police Station for acting as a panch. He consented for the same. Accused Sunilkumar Kutty was present there. His shirt and pant were having blood stains over them and the same were given by accused to police in his presence. Accordingly, police seized and sealed the said clothes and drawn the panchanama. Said panchanama is at Exh.19. He further deposed that prior to sealing of the said clothes of the accused, police marked the blood stains as X1 to X3. The shirt of the accused was marked as “X” and pant as “Y” and affixed the label bearing his signature and signature of another panch. He identified the said clothes which are shown to him which are Articles 4 and 5. The labels are marked as Articles 6 and 7. During his crossexamination it came on record that he used to help the Police Officers whenever they asked for the same. :19: Sessions Case No.872/2016 He also admitted that he acted as a panch witness prior to the present case. From rest of the crossexamination nothing incriminating came on record.
25. Another material circumstance on which prosecution is relied upon is the memorandum statement of the accused and discovery of weapon at the instance of the accused. To prove the said circumstance admittedly prosecution has not examined panch witness but prosecution has examined PW8 Sushil Ashokrao Ingale vide Exh.28 who is the investigating officer. He testified that when accused was in the police custody he shown his willingness to give voluntary statement. Therefore, he called two panchas for recording the memorandum statement of accused. In presence of panchas accused made a statement that he will show the place where he concealed the weapon of the offence. Accordingly, his statement was reduced into writing. Said statement is at Exh.30. Thereafter, accused led them. Accused asked the police to stop the vehicle at the signal of traffic office at Wadibander. Thereafter, he led them by walk on the backside of police colony from the main gate of said colony. The police colony was situated just behind the traffic office of Wadibandar. The accused from one place where the waste material of police colony was kept and took one bamboo from the bushes. Accordingly, he seized the said article Bamboo and by affixing the label obtained the signature of panchas. Accordingly, discovery panchanama Exh.31 was drawn. The article1 is the same wooden bamboo and label is marked as Art.8. Though this witness is crossexamined at length mere denial is not sufficient to discard his evidence :20: Sessions Case No.872/2016 and the discovery at the hands of the accused. Nothing incriminating has come on record.
26. Beside the evidence of PW8 Investigating Officer, prosecution also examined PW7 Popat Haribhau Patil vide Exh.23, who has conducted the investigation at the initial stage. As per his evidence on 06.09.2016 he joined his duty at 8.00 p.m. He was present in the police station till 8.00 a.m. of the next day. When he was on the Mobile Van he received a message that one person is lying in a injured condition on backside of Wadibandar traffic chowkey. He immediately along with the staff proceeded towards backside of Wadibunder Traffic police chowkey. He found one injured present on the said footpath. Said person was unconscious condition. Thereafter, he directed the staff to remove the said person to the hospital. He also gave a message to South control that the injured was declared as dead. During his crossexamination, it is suggested that he has not witnessed the incident. Admittedly it is not the case of the prosecution also that he witnessed the incident. As mentioned above PW8 is the Investigating Officer he has narrated about the investigation carried out by him. The sum and substance of his evidence is that he received the message that one injured person is lying behind the traffic office at Wadibandar. He visited the JJ Hospital on that night itself. He received the message that said person was declared as dead. Therefore, he drawn the inquest panchanama Exh.40. Thereafter, he visited the alleged spot of incident and drawn the spot panchanama. He also obtained the FIR which was lodged by PW10. He has collected the blood stains while drawing the spot panchanama. He seized the clothes of the deceased by drawing :21: Sessions Case No.872/2016 panchanama. He also seized the clothes of the accused and after completion of investigation he submitted the chargesheet against the accused. During crossexamination much stress is given on the point that the articles were lying in the muddemal room from its seizure till its sending to the Chemical analyzer office. As per his evidence on 09.09.2016 he sent the seized articles to DFSL, Kalina. Admittedly articles are seized on 07.09.2016 and within two days the articles are forwarded to C.A. along with letter. Rest of the crossexamination is in the denial form. During crossexamination it came on record that firstly investigating officer came to know the name of the deceased as Ramesh @ Ramya, but thereafter he came to know his name as Ransingh Bhima Pawar. Therefore, he issued the letter to Medical Officer to show the name of the deceased on postmortem report as Ransingh Bhiwa Pawar.
27. PW9 Sr.PI Ankush Shamrao Katkar examined vide Exh.34 is also an Investigating Officer. His role in the investigation is only to the extent that he forwarded the seized muddemal to C.A. After receipt of the C.A. report collected the said C.A reports Exh.35, 36 and 37 and included in the investigation papers. He also forwarded the witnesses to record their statements U/s.164 of Cr.P.C. He is crossexamination at length. During his crossexamination nothing incriminating has come on record.
28. Prosecution also relied upon the medical evidence of PW6 Dr.Sushil Digambar Kamble examined vide Exh.20. Medical Officer has narrated that after conducting the postmortem he found internal head injuries underscalp contusion of size 7 c.m. X 4 c.m. over the left :22: Sessions Case No.872/2016 parietal region. It was not corresponding with the fracture, but he has seen hemorrhage on right mideparietal lobe dark red in colour and also hemorrhge has seen over cerebellar region medially. He also observed injuries like swelling of size 3 c.m. X 3 c.m. present over left posterior part of parietal region. Laceration of size 6 c.m. X 0.5 c.m. X scalp deep present over left frontpareital region obliquely, margins irregular with blood infillbetion crushing of hair bulbs at the margins, dark red in colour, Abrasion of size 5 c.m. X 1 c.m. present, 1.5 c.m. below injury no.2 15.5 c.m. below the left nipple redish in colour, Abrasion of size 5 c.m. X 1 c.m. over left part of lower chest region 13.5 c.m. from the left nipple, present horizontally, reddish in colour, incised wound of size 4 c.m. X 0.5 muscle deep present obliquely over ventral aspeel of left forearm 10.5 from the cubical foci margins regular clear cut and Abraded contusion of size 1.5 c.m. X 0.5 c.m. X subcutaneous deep over left mid arm posterior aspect redish in colour. He further deposed that accordingly he prepared the postmortem report mentioning the cause of death is due to head injury. He also issued the cause of death certificate. During his crossexamination, it is tried to bring on record that injury mentioned in column no.19 are possible due to fall on rough surface but he denied the same. He specifically stated that none of the injuries mentioned in column no.19 can be possible by fall on rough surface. The injuries mentioned in column no.19 may be possible due to fall of stone on head. Though defence has brought on record by the medical officer that injuries mentioned in column no.17 may be possible due to fall of stone on head, but during crossexamination of PW2 and PW10 nowhere it is suggested that deceased has sustained injuries due :23: Sessions Case No.872/2016 to fall of stone on his head. Therefore, mere suggestion to the Medical officer is not sufficient as no such case is put up to the eye witnesses.
29. Besides medical evidence prosecution also relied upon the C.A. report EXhs.35, 36, 37 and 59. Exh.35 is regarding nail clipping of the deceased which is in the negative form. Exh.36 shows that blood obtained is of blood group B. Exh.37 shows that blood grouping of deceased was not ascertained as blood was not suitable for the blood grouping. Exh.59 is a chemical analysis regarding the articles i.e. cotton swab, simple earth, blood stains earth. Clothes of the accused and wooden stick forwarded to C.A. Exh.59 shows that Exh.1 cotton swab is stained with blood. Exh.2 earth is mixed with blood. Exh.4 and Exh.7 i.e. full shirt and handkerchief of the deceased are stained with blood at places. Exh.5 full pant of the deceased has two blood stains each of about 1cm in diameter situated at front right upper portion. Exh.6 Burmuda has few blood stains ranging from about 0.1cm to 2cm. No blood is detected on Exhs.3, 8, 9 and 10. Thus, no blood stains are found on the clothes of the deceased and the bamboo stick. But the blood is found on the clothes of the deceased. On the basis of this oral as well as documentary evidence, prosecution claimed that prosecution has proved its case beyond reasonable doubt against the accused. Whereas it is contention of learned defence counsel that evidence of PW2 and PW10 that only one blow is given on the head of the deceased. Whereas medical evidence shows deceased has sustained in all six injuries. Thus, medical evidence and oral evidence is contradictory to each other and hence not helpful to the prosecution. :24: Sessions Case No.872/2016 Hence, the evidence adduced by the prosecution is not sufficient to warrant the conviction against the accused.
30. Lastly, prosecution has also examined wife of the deceased as PW11 Sunita Ramesh Pawar. During argument defence has challenged the identity of the deceased. PW11 has stated that deceased Ramesh Bhiwa Pawar is her husband. Her husband deceased was also known as Ransingh Bhiwa Pawar. She has also produced on record Voter and Ration Card.
31. Learned APP Shri R.V. Tiwari submitted that the act of the accused is with intention and knowledge. Accused has chosen the vital part of the body for the assault which resulted into the death of the deceased. In support of his contention he relied upon Ananta Kamilya V/s. State of West Bengal reported in AIR 2020 Supreme Court 315 wherein it is observed that accused during altercation and on spur of moment caused injury on head of deceased by Lathi. No premeditationor intention to kill deceased. Exception4 of Section 300 attracted and case of the accused covers U/s.304(I) of IPC. He also relied upon Ghapoo Yadav and Others V/s. State of M.P. reported in (2003)3 Supreme Court Cases 528 wherein it is observed by the Hon’ble Apex Court that for the application of Exception4 apart from showing that there was a sudden quarrel and there was no premeditation it must further be shown that the offender has not taken undue advantage or acted in cruel and unusual manner. Conviction U/s.302 of IPC altered to Section 304(I) IPC. He submitted that accused has committed the offence U/s.302 of IPC is with intention :25: Sessions Case No.872/2016 and knowledge. He gave a blow on the vital part of the body. Alternatively, he submitted that even if the Court comes to the conclusion that the case of the accused covers under the exception, the case of the accused at the most covers under section 304(I) and not below that.
32. On the other hand, learned advocate for the defence submitted that the evidence of the prosecution is not cogent, consistent and suffering from deficiencies. Prosecution miserably failed to prove the charges against the accused. Hence, accused be acquitted from the charges.
33. In support of his contention he relied upon Karam Chand V/s. State of Himachal Pradesh reported in 2007 Criminal Law Journal wherein Hon’ble High Court of Himachal Pradesh has observed that accused assaulted with stick on forehead of deceased resulting into her death. Statements of eye witnesses are inconsistent and contradictory to each other. There is no reference in FIR to the manner in which alleged murder had been committed, nor there is a mention of any stick or any other wooden. Recovery of weapon before the alleged disclosure statement was made by accused. Prosecution version that only one blow with stick was given is contrary to the fact that two injuries were found on deadbody. Guilt of the accused was not proved beyond reasonable doubt.
34. He also relied upon K. Subramani alias Mani V/s. State of Karnataka reported in 2021 CRI.L.J. 317 wherein it is observed that :26: Sessions Case No.872/2016 motive – accused, friend of deceased allegedly murdered him out of financial dispute Entire motive of financial transaction is negated, as no documents produced to prove financial transaction between deceased and accused Motive not established Accused entitled to acquittal.
35. After appraisal of the evidence on record in the present case, prosecution mainly relied upon on the evidence of eye witnesses which is supported by the circumstantial evidence. It is well settled that when direct evidence is available, motive takes back seat. It is submitted by the learned advocate for the defence that the evidence of the eye witnesses is inconsistent and not corroborative. If the evidence of PW2 and PW10 is taken into consideration not only the chiefexamination but crossexamination of these witnesses also shows that not only the accused and the deceased but both the eye witnesses were also residing on the same footpath. The evidence of these two witnesses shows that when the alleged incident taken place they were sitting in front of Wadibander traffic police chowkey and the alleged incident has taken place behind the said police chowkey. The evidence of these two witnesses also shows that as soon as they heard the noise of quarrel, they immediately went near the accused and deceased to intervene the quarrel but they were asked to stay away from the said quarrel and they were standing at some distance. Thereafter, accused took a bamboo stick lying there and gave blow of said bamboo stick on the head of the deceased. Deceased sustained the injury and due to the said injury deceased succumbed to the death. If the evidence of two eye witnesses taken into consideration their presence at the spot of incident is natural :27: Sessions Case No.872/2016 as they were standing there. Their residence at the same footpath is not denied by the defence. On the contrary, crossexamination shows that they all four persons were residing on the said footpath and working. Accused and deceased were doing the work of pulling handcarts and PW2 and PW10 were working on the towing van. Thus, the presence of these witnesses is natural since they were residing there. Defence has tried to argue that their evidence is inconsistent as they were not corroborating to each other. If the chiefexamination and crossexamination taken into consideration on material particulars regarding the alleged incident, the evidence of both the witnesses is cogent and corroborative to each other. It is tried to canvassed that as per PW2 only PW10 went to inform the Wadibunder traffic office. Whereas, as per PW10 they both went to inform the Wandibander Traffic office. Evidence of PW1 Ananda Ramchandra Bhosale who is Traffic Hawaldar at Wadibunder traffic office stated that both Sajid and Badshah came to traffic office and informed about the incident. Thus, the inconsistencies and deficiencies which are brought on record are minor in nature. The evidence of PW1 shows that they both informed the said incident. It is well settled that the inconsistencies or discrepancies may occur due to normal error of observation, normal error of memory due to lapse of the time, due to mental disposition. Stereotype version is not expected from the witnesses. It is well settled that discrepancies which does not go to the root of the matter will not affect the prosecution case. It is observed by the Hon’ble Apex Court in a case of Smt.Shamim V/s. State of Delhi in Criminal Appeal No.56 of 2018 decided on 19.09.2018 that while appreciating the evidence of witness, the approach must be whether the evidence of witness read as a whole, :28: Sessions Case No.872/2016 inspires confidence. Once that impression is found, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against general tenor of the evidence and whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on triffle matters not touching the core of the prosecution case. Hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter without ordinarily permit rejection of the evidence as a whole. Minor omissions are never considered to be fatal. Thus, in the present case alleged incident has taken place in the year, 2016, whereas evidence of the witnesses is recorded after two years. Evidence of PW10 is recorded after three years. Due to the lapse of time some discrepancies bound to occur but said discrepancies are not affecting the core of the prosecution case and hence the evidence of these witnesses is to be accepted.
36. The evidence of these witnesses not only corroborated by PW1 but it is also corroborated by PW4 Dattatray Shripati Patil, Police Constable, who has also received the information about the incident from the office of traffic police. Therefore, the evidence of PW2 and PW10 that they approached to the traffic police immediately after the incident is corroborated by PW1 and PW4.
37. Evidence of eye witnesses is also corroborated by the medical evidence. PW6 is the Medical Officer. He denied that such injuries are :29: Sessions Case No.872/2016 possible due to fall on rough surface. He completely denied the possibility that any of the injury is possible due to fall on rough surface. It is submitted by the learned defence counsel that medical evidence and oral evidence is contradictory to each other. He submitted that as per the prosecution witness only one blow is given, whereas deceased has sustained six injuries. For that purpose, evidence of PW6 medical officer if considered, he specifically stated that he found internal head injury underscalp contusion of size 7cmX4cm. The brain was congested oedematous. He also seen hemorrhge of size 3cmX2cm over cerebellar region medially. He also found external injury i.e. Swelling of size 3c.m. X 3 c.m. present over left posterior part of parietal region, Laceration of size 6 c.m. X 0.5 c.m. X scalp deep, Abrasion of size 5 c.m. X 1 c.m. present, 1.5 c.m. below the left nipple, Abrasion of size 5 c.m. X 1 c.m. over left part of lower chest region 13.5 c.m. from the left nipple, incised wound of size 4 c.m. X 0.5 muscle deep present obliquely over ventral aspeel of left forearm and abraded contusion of size 1.5 c.m. X 0.5 c.m. X subcutaneous deep over left mid arm posterior aspect. Admittedly the external injury nos.1, 2 are the corresponding injuries regarding the head injury sustained by the injured. Admittedly, there is no explanation by the prosecution regarding injury no.5 i.e. incised wound of size 4 c.m. X 0.5 muscle deep. But it is well settled that when oral evidence is contradictory to the medical evidence, oral evidence will prevail and no reason came forward before this court to discard the evidence of eye witnesses and medical evidence is not totally contradictory to the oral evidence. It corroborates the version that deceased has sustained the head injury. Inquest panchanama proved by the investigating officer also discloses that deceased has :30: Sessions Case No.872/2016 sustained the head injury and panchas have seen the said injury. The C.A. reports also supports that deceased has sustained the injury as blood stains are found on the clothes of the deceased.
38. Another material circumstance on which prosecution is relied upon is the evidence of memorandum statement of the accused and discovery of the weapon at the instance of the accused. Admittedly, prosecution has not examined the panch witness. It is well settled that panchanama can be proved through the evidence of investigating officer. There is no reason for the investigating officer to implicate the accused falsely by showing the recovery of the said bamboo stick. Evidence of PW8 shows that when accused was in police custody he gave a memorandum statement in presence of panchas and in pursuant of the said statement he led the panchas and police and shown the said place was behind the police colony. The weapon was recovered from the place where all waste material was lying and accused has produced the said stick from the bushes. Thus, the recovery is not from the open or the accessible place but the recovery is from the place which is known to the accused. The only requirement of Section 27 of Indian Evidence Act is that the discovery of some facts should be significant to the information given by the accused. What is essential, is that discovery of some facts. In other words, the facts discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused. :31: Sessions Case No.872/2016
39. It is observed by the Hon’ble High court in case of Kamru @ Javed Haniflala Khan V/s. State of Maharashtra reported in 2016 ALL MR in Criminal 3348 that Section 27 of Evidence Act does not state expressly or otherwise that in his statement made before police and panchas that accused should state the place from where he was going to produce the article. What is essential is that his information has led to the discovery of the fact which is direct outcome of such information. The law even does not contemplate that the actual discovery needs to be made by the accused himself or that the accused should personally accompany the police officer and the panchas to the spot. Though in most of the cases, the accused who makes the disclosure himself leads the police officer and panchas to the place when an object is concealed and point out the same to him, it is not essential that there should be such pointing out by the accused in order to make the information admissible U/s.27. It could be very well be dealt on the basis of information furnished by the accused. Investigating Officer may go to the spot in the company of panchas and recover the material object. It is observed by the Hon’ble High Bombay High Court that only essential requisite is that the information furnished by the accused was the immediate and proximate cause of the discovery.
40. In the present case, accused made a memorandum statement and in pursuant of the said statement he shown the place where the article bamboo was concealed. Evidence of PW2 and PW10 eye witnesses also shows that accused ran away from the spot along with the said bamboo stick. Thus, the evidence of recovery is also proved by the :32: Sessions Case No.872/2016 prosecution. Evidence as to recovery need not be rejected on the ground that prosecution has not examined the panch witness. Even evidence of Investigating Officer can be considered for proving recovery as official acts. It is observed by the Hon’ble Bombay High Court in Amir Nanhejan Shaikh & Ors. V/s. The State of Maharashtra reported in AIR 2017 ALL MR (Cri) 1671 in para24 by referring the judgment of Hon’ble Apex Court in Mohansingh V/s. State of Rajasthan (1978)4 S.C. 435 that where the evidence of investigating officer who recovered the material object is convincing, the evidence as to recovery need not be rejected on the ground that seizure witness did not support the prosecution version. Similar view is expressed in Mohd.Aslam V/s. State of Maharashtra(2002)9 SCC 362 and in Antar Singh V/s. State of Rajasthan (2004)10 SCC 657 wherein it is further held that even if panch turn hostile, the evidence of the person who effected the recovery would not stand vitiated. Thus, the evidence of Investigating Officer is sufficient to prove the recovery.
41. Prosecution has also adduced the evidence of spot panchanama to show the corroboration regarding the alleged incident. Spot panchanama is at Exh.30 and proved by PW3. The evidence of PW3 Kiran Mohan Gohil, panch on spot panchanama, shows that at the spot of incident there was food material scattered on the footpath and blood stains were found there. The prosecution case itself shows that when deceased was taking the meal there was quarrel between him and the accused and accused gave a blow of bamboo stick. This fact of the prosecution is supported by the spot panchanama as evidence of spot panch shows that when he was at the spot he found that food material :33: Sessions Case No.872/2016 was scattered on the footpath and he also found blood stains there. Police have collected said blood stains and forwarded to C.A. C.A. report also shows that cotton swab is stained with blood and blood group of cotton swab is ‘A’. Thus, the circumstances found in the spot panchanama and the C.A. reports also corroborates the facts that alleged incident has taken place on the footpath when deceased was taking the meal. Recitals of the spot panchanama also shows that the foods in scattered condition were found at the spot. Police have also collected the blood stains from the said spot.
42. Defence has challenged the identity of the deceased but said identity of the deceased is also established by the prosecution by examining PW11 Sunita Ramesh Pawar, wife of deceased. Her oral as well as documentary evidence shows that deceased was also known as Ransingh Bhiwa Pawar.
43. After appreciation of evidence, it appears that the quarrel between deceased and accused had taken place when they were taking meal. Admittedly, the evidence on record shows that the quarrel between them has taken place suddenly. Admittedly, the evidence nowhere shows that accused has prepared for the said incident. Thus, there was no premeditation prior to the incident. On the contrary, evidence shows that deceased and accused took lunch together on the day of incident also. When deceased was taking meal, accused has joined him and they both taken meals and while taking meals there was quarrel between them on the count of money. In the light of the above evidence, it has to be seen whether there was intention to commit the :34: Sessions Case No.872/2016 murder of the deceased. Admittedly, while appreciating the evidence, Court has to see whether there was an intention to commit murder of the deceased. The evidence of prosecution witnesses shows that incident took place as there was sudden quarrel between accused and deceased. Admittedly, deceased and accused were living on the said footpath. They were working together. They were taking food with each other. There was no previous enmity or animoisty between them. Thus, the alleged incident has taken place in sudden fight and sudden quarrel and therefore Exception4 of Section 300 is attracted.
44. In order to find out the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder, it is necessary to understand the scheme adopted in the code in defining the culpable homicide and murder.
45. Culpable homicide is defined in Section 299 of the IPC and it is genus, whereas murder is defined in Section 300 of the IPC and it is specie. U/s.299 of IPC whoever causes death with the intention or knowledge specified in that section, commits offence of culpable homicide. However, since culpable homicide is only genus, it includes two forms; one is the graver offence which amounts to murder and lesser one which does not amount to murder. It can be seen that, therefore, though the offence of culpable homicide is defined, the said provision does not provide for any punishment for that offence as such and for the purpose of punishment, the court has to examine facts and find out whether the offence falls or does not fall under Section 300 of IPC. In view of this scheme, therefore, every act of homicide falls :35: Sessions Case No.872/2016 within the definition of culpable homicide in Section 299 of the IPC. Section 300 of the IPC on the one hand mentioned that a homicide is murder. However, in that exceptions lay down the circumstances in which the act which causes death is not murder even though it may have been done with the intention or knowledge specified in Section 300 of the IPC. The question of punishment which has to be awarded, therefore, is twofold i.e. (1) what was the intention or knowledge with which the act was done and (2) what were the circumstances in which it was done.
46. If it is established that the offence is culpable homicide but it is of such a nature that it does not fall within the definition of 'murder' in Section 300 of IPC or even though it does, if it falls under any of the exceptions to that section, the offence is punishable U/s.304 of IPC. Once it is held that offence falls U/s.304 of the IPC, then the punishment differs, depending upon whether death is caused with intention or only with knowledge and therefore, if the element of intention exists the offence is punishable under partI of Section 304 of the IPC, otherwise the offence falls under partII of Section 304. In the former case punishment may extend to imprisonment to life and in the later case it may extend upto a term of 10 years.
47. In view of above settled position, it has to be seen whether there was an intention on the part of the accused to commit the murder of the deceased. Admittedly in the present case deceased and accused were working together living on the said footpath. There is no evidence that they are having any previous enmity or animoisty between them. :36: Sessions Case No.872/2016 Admittedly, quarrel between deceased and accused started suddenly on account of money and in a spur of moment accused took the bamboo which was laying there and gave a blow of bamboo on the head of the deceased. Thus, while giving the blow accused has chosen the vital part of the body. Admittedly, there is no evidence that accused has prepared or there was any premeditation prior to the incident. In a spur of moment accused got annoyed and picked up a said bamboo and gave blow on the vital part of the body. The evidence further shows that accused has not acted in a cruel manner by taking disadvantage of the fight and not given the repeated blows but admittedly accused has chosen the vital part of the body i.e. head is sufficient to show the intention of the accused. Admittedly, no direct evidence will be available to show the intention. Intention of the accused is the inner compartment of his mind and therefore no direct evidence is available for gathering the intention of the accused. The circumstance that accused has chosen the vital part of the body and said vital blow on the vital part proved to be fatal and deceased succumbed to the death. Thus, intention of the accused can be gathered from the said circumstance. The evidence of the eye witnesses and the medical evidence shows the gravity of the injured. Deceased died because of the injury which is caused by the accused. The incident has taken place in the spur of moment when there was hot exchange of words between deceased and accused. Thus, act of the accused will cover U/s.304(I) of IPC. Though learned advocate for defence counsel has relied upon Karam Chand V/s. State of Himachal Pradesh(supa) the facts of the cited case shows that evidence of eye witnesses was inconsistent and contradictory. Even recovery of the weapon was also doubtful and :37: Sessions Case No.872/2016 therefore, the facts of the cited case relied upon by the defence are not identical with the present case, hence not helpful to the defence. Defence also relied upon K. Subramani alias Mani V/s. State of Karnataka(supra), I have already observed when direct evidence available then motive takes backseat. Here in the present case direct evidence of two eye witnesses is sufficient to prove the case of the prosecution. The cited case on which defence is relied upon is the case based on the circumstantial evidence. Therefore, the facts of the cited case and the present case are not identical to the defence, hence not helpful to the defence.
48. On the other hand, though learned APP vehemently argued that case of the accused will cover U/s.302 of IPC but alternatively he submitted that even Court comes to the conclusion that the act of the accused covers under homicidal not amounting to murder then also case of the accused covers U/s.304 (I) of IPC and not U/s.304(II). He relied upon on the two judgments of the Hon’ble Apex Court. Quarrel has started in a sudden quarrel, accused took out the weapon which was already lying there. Accused has also not taken the undue advantage and not given the repeated blows. Therefore, it is sufficient to infer that the case of the prosecution covers under Exception4 of Section 300 i.e. culpable homicide not amounting to murder due to sudden fight and sudden quarrel and therefore, I have no hesitation to hold that the accused is guilty U/s.304(I) of IPC. Hence, I answer the point no.2 accordingly. :38: Sessions Case No.872/2016
49. Due to the mandate Section 235(2) of Cr.P.C., I suspend my judgment here to hear the accused on the point of sentence. Dated: 02/02/2022 (Urmila S. Joshi Phalke) Sessions Judge, City Civil & Sessions Court Gr. Bombay
50. Heard accused on the point of sentence. He submitted that he is only earning member of the family. He is doing labour work. His old parents are depending upon him. There is no other person to look after them. Hence, leniency be shown to him.
51. Learned advocate Shri Aniket Gawand for the accused also endorsed the same contention. In addition, he submitted that only single blow given by the accused proved to be fatal. There is no disadvantage by the accused and no repeated blows are given by the him. Therefore, minimum punishment be awarded to the accused.
52. On the other hand, learned APP Shri R.V.Tiwari for state submitted that though Court has come to the conclusion that case covers U/s.304 PartI of IPC but considering the act of the accused weapon used by the accused and the blow given by the accused which proved to be fatal and deceased lost his life therefore, maximum punishment of 10 years is to be awarded to the accused considering the act.
53. I have recapitalized the entire episode. The evidence on record shows that accused and deceased were working together. They were :39: Sessions Case No.872/2016 residing on the same footpath. There was good relation between them but alleged incident has occurred in a sudden fight and sudden quarrel. Accused took out the wooden bamboo lying at the spot of incident and gave blow of the said bamboo on the vital part of the body which proved to be fatal and thus the case of the accused covers under Exception4 of Section 300.
54. It is well settled that when offence is proved then awarding the punishment lightly is affront to the society. Admittedly offence committed by the accused is against the society and if lessor punishment is awarded wrong message will be circulated in the society. It is also well settled that when offence is proved then adequate punishment is to be awarded by the Court. In the present case it is already observed that the act of the accused covers U/s.304(I) of IPC for which minimum punishment of 10 years is provided and therefore rigorous imprisonment of 10 years and fine of Rs.5,000/ is the adequate punishment. At the same time, Court has to consider compensation which is to be awarded to the wife of the deceased. Legislature has made a provision in Code of Criminal Procedure regarding the compensation U/s.357. Compensation can be awarded to the victim or the relatives of the victim out of the fine amount which is imposed on the accused, but here in the present case, accused is doing the labour work, he is not in a position to pay the fine. The fine amount more than Rs.5000/ considering his financial position, the awarding of compensation out of fine amount will be only a paper order and therefore, Court has to consider the compensation U/s.357A. By incorporating the provision U/s.357A. Government is directed to :40: Sessions Case No.872/2016 prepare a scheme for providing funds for the purpose of compensation to the victim or his dependent who has suffered loss or injury as a result of the crime and who required rehabilitation. SubSection2 of Section357A states that whenever a recommendation is made by the Court for compensation the District Legal Services Authority or the State Legal Services Authority shall decide the quantum of compensation to be awarded under the scheme referred to in Sub section1. In the present case wife of the deceased has to lead her life alone as she has lost her husband. She has lost love and affection of her husband. Deceased was also only earning member of the family. Now she is depending on her children as well as she has to do the labour work. The object behind the provision 357A is that the victim or the legal representative of the victim are not forgotten in the criminal justice system. This is a fit case wherein recommendation can be made for the compensation. Deceased lost his life due to the act of the accused and due to the death of the deceased, PW11 Sunita Ramesh Pawar, wife of deceased, has to suffer life long and therefore this Court recommend that Secretary DLSA shall put up the case before the committee for assessing the compensation.
55. In the result, I proceed to pass following order. O R D E R
1. Accused Sunilkumar Sriniwas Kutty @ Kalya is hereby convicted under Section 235(2) of Code of Criminal Procedure of the offence punishable under Section 304(I) of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for Ten Years and to pay fine of Rs.5,000 / (Rs.Five Thousand Only), in default of payment of fine, accused to suffer further rigorous imprisonment for One Year. :41: Sessions Case No.872/2016
2. Accused is in Judicial Custody. He is entitled for set off under section 428 of Code of Criminal Procedure.
3. Muddemal property i.e. clothes of the deceased and accused and Article1 Wooden Bamboo and any marked or unmarked articles, if any, be destroyed after appeal period is over and after obtaining the report from Hon'ble High Court regarding the disposal of the appeal, in case, if appeal is filed.
4. The copy of the judgment be forwarded to Secretary DLSA to put up the claim of compensation before the committee.
6. Copy of this judgment be given to accused free of cost. (Dictated and pronounced in open court) URMILA Digitally signed by URMILA SACHIN SACHIN JOSHI JOSHI PHALKE Date: 2022.02.09 PHALKE 14:09:09 +0530 Dated: 02/02/2022 (Urmila S. Joshi Phalke) Sessions Judge, City Civil & Sessions Court Gr. Bombay Dictated on : 02/02/2022 Transcribed on : 08/02/2022 Signed by HHJ on : 08/02/2022 :42: Sessions Case No.872/2016 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGEMENT/ORDER” UPLOAD DATE TIME NAME OF STENOGRAPHER 09/02/2022
3.00 P.M. B.R.HATEKAR (S.G.) Name of the Judge HH THE SESSIONS JUDGE URMILA S.JOSHI-PHALKE (CR No.19) Date of Pronouncement of Judgment/Order. 02/02/2022 Judgment/order signed by P.O on 08/02/2022 Judgment/order uploaded on 09/02/2022
----------------------------------------------------------------------------------------------------
:MHCC020156162016) Exhibit No.
: State of Maharashtra (Through Police Officer, Dongari P.Stn.C.R.No.17916) … Prosecution Versus Sunilkumar Sriniwas Kutty @ Kalya, Age : 37 years.
Occ.
: Labour.
R/O.
: Footpath near Wadi Bunder Traffic Police Chowky, P.D'Mellow Road, Dongari, Mumbai9.
… Accused.
Charge Offences punishable U/S 302 of the Indian Penal Code Shri.
R.V.Tiwari, learned A.P.P.
for the State.
Shri.Aniket Gawand, learned advocate for the accused.
CORAM : H.H.
THE SESSIONS JUDGE URMILA S. JOSHI – PHALKE (COURT ROOM No.19) DATE : 2nd FEBRUARY 2022 .
JUDGMENT
----------------------------------------------------------------------------------------------------1. Present accused is facing trial on an allegation that on 06.09.2016 he caused the death of Ramesh @ Ramya @ Ransingh Bhiwa Pawar by giving blow on his head by wooden bamboo with an intention of causing death and thereby committed an offence punishable U/s.302 of Indian Penal Code. :2: Sessions Case No.872/2016
2. Brief facts, of the prosecution as emerges from the police papers and recorded evidence, are as under:
3. On 07.09.2016 informant Badshah Khan Rahim Khan has lodged report at Dongari Police Station on an allegation that he is residing on footpath at Wadibunder Traffic Police Chowky, Near Saibaba Temple, Dongari Wadibunder, Mumbai09. The accused Sunilkumar Sriniwas Kutty @ Kalya and deceased Ramesh Pawar are acquainted with him as they were also residing on the same footpath. Accused and deceased both were working and doing the work of pulling handcarts. On 06.09.2016 at about 9.00 p.m. he along with his friend Sadik Shaikh were sitting in front of Wadibunder Traffic Police Chowky, at that time deceased Ramesh was taking his dinner behind the police chowky on footpath. At that relevant time accused also came there and sat along with him for taking the meal. At the relevant time hot exchange of words between them on the count of money. Both have caught hold the collar of each other therefore, he along with Sajid went to intervene the quarrel but accused told them that they would not intervene and therefore, they remained standing at some distance. After hot exchange of words Ramesh again sat for taking meal at that time accused took the wooden bamboo lying there and gave blow of bamboo on the head of Ramesh from front side. After seeing this, he along with Sadik went to rescue Ramesh but accused ran away from the said place. Ramesh was lying on the footpath and blood was oozing from his head. They tried to wake up him but Ramesh was not responding. Therefore, he immediately approached to the police available at Wadibunder traffic Police Chowky. They have immediately called the police officials of Dongari Police Station. Thereafter Ramesh :3: Sessions Case No.872/2016 was removed to the hospital in an injured condition. They also followed the police as Ramesh was taken in JJ Hospital. Medical Officer of JJ Hospital examined Ramesh and declared him dead. Thereafter, he lodged the report at Dongari Police Station.
4. On the basis of said report, police have registered the offence against accused vide CR No.179 of 2016 U/s.302 of IPC. After registration of the crime Investigating Officer has visited the alleged spot of incident and drawn spot panchanama. Accused was also arrested. During investigation, Investigating Officer has drawn the inquest panchanama on the deadbody of the deceased. Deadbody was also handed over to the relatives. Clothes of the deceased are also seized by drawing the panchanama. Clothes of the accused are also produced by the accused which were also seized by the police drawing panchanama in presence of panchas. During investigation accused made a memorandum statement in presence of panchas and in pursuant of the said statement wooden bamboo was recovered at the instance of accused. During investigation, Investigating Officer has collected the Postmortem report and Cause of Death Certificate. All the incriminating articles are forwarded to the Chemical Analyzer along with letter. After completion of investigation, Investigating Officer submitted the chargesheet against the accused.
5. As the offence punishable U/s.302 of IPC is exclusively triable by the Court of Sessions, Learned Metropolitan Magistrate has committed the case to the Court of Sessions. :4: Sessions Case No.872/2016
6. My learned predecessor has framed the charge vide Exh.3. Contents of the charge are read over and explained to the accused in vernacular in Marathi as well as in Hindi. He pleaded not guilty and claimed to be tried.
7. In support of the prosecution case, prosecution has examined in all 11 witnesses. PW Nos. Name of Witness Exh. Nos. PW 1 Ananda Ramchandra Bhosale, Traffic Hawaldar Exh.10 PW 2 Mohd.Sadik Gaffur Shaikh, eye witness Exh.11 PW 3 Kiran Mohan Gohil, panch on spot panchanama Exh.12 PW 4 Dattatray Shripati Patil, Police Constable Exh.17 PW 5 Subhash Waman Shirsath, panch on seizure of Exh.18 clothes PW 6 Dr.Sushil Digambar Kamble, Medical Officer Exh.20 PW 7 Popat Haribhau Patil, Investigating Officer Exh.23 PW 8 Sushil Ashokrao Ingale, Investigating Officer Exh.28 PW 9 Ankuh Shamrao Katkar, Investigating Officer Exh.34 PW 10 Badshah Rahim Khan, Informant and eye witness Exh.46 PW 11 Sunita Ramesh Pawar, wife of deceased Exh.54
8. Besides this oral evidence, prosecution relied upon documentary evidence. Sr. No. Particulars of document Exh. Nos. 1 Spot Panchanama Exh.13 2 Inquest Panchanama Exh.14 3 Clothes seizure panchanama of accused Exh.15 :5: Sessions Case No.872/2016 4 Clothes seizure panchanama of deceased Exh.19 5 Postmortem notes Exh.21 6 Cause of Death Certificate Exh.22 7 Complaint @ FIR Exh.29 8 Memorandum statement Exh.30 9 Discovery panchanama Exh.31 10 Letter to Medical officer Exh.32 11 C.A. Reports Exh.35,36&37 12 Letter to C.A. Exh.38
9. Prosecution also relied upon the following article, ArticleA – Wooden stick.
10. On the basis of said oral as well as documentary evidence, prosecution claimed that prosecution has proved its case beyond reasonable doubt.
11. All the incriminating evidence is put to the accused in order to obtain his explanation regarding the evidence appearing against him by recording his statement U/s.313 of Cr.P.C. The defence of the accused is of total denial and of false implication.
12. Heard Learned APP Shri R.V.Tiwari for the State. He submitted that prosecution has examined in all 11 witnesses. Defence has also challenged the identity of the deceased as name of the deceased is mentioned in the postmortem report as Ransingh Bhiwa Pawar, therefore prosecution has examined PW11, wife of the deceased. She categorically stated the name of deceased is Ramesh @ Ransingh. He was also known as Ramya. She also produced on record the documents :6: Sessions Case No.872/2016 like Ration Card, Voters Card etc. which proves that deceased was known other than Ramesh @ Ramya @ Ransingh Bhiwa Pawar. His identity is established by the prosecution. Prosecution has also examined PW6 Dr.Sushil Digambar Kamble, Medical Officer, who has conducted the postmortem examination on the deadbody of the deceased. On examination he found in all six injuries on the person of the deceased. He testified that death of the deceased is due to head injury. He specifically denied that the injuries mentioned in column no.19 are possible by fall on rough surface. He specifically denied that none of the injuries is not possible by falling on rough surface. He admitted that injuries mentioned in column No.17 may be possible due to fall of stone on head. But there is no such suggestion to the eye witnesses by the defence that due to the fall of stone on head deceased has sustained the injuries. The homicidal death of the deceased is proved by the prosecution. Prosecution has also proved that in sudden fight and sudden quarrel accused took out the wooden bamboo and gave blow of the same on the vital part i.e. head of the deceased and there is instantaneous death of the deceased due to the said blow. Thus, prosecution has proved the charge against the accused, hence accused to be convicted.
13. On the other hand, learned advocate Shri Aniket Gawand for the defence submitted that to prove the charge U/s.302 of Indian Penal Code, the evidence of eye witnesses are not consistent and cogent. The seizure of the articles at the instance of the accused is also not proved by the prosecution. The evidence of eye witnesses are contradictory on material points. Evidence of the panchas is also not inspired confidence. :7: Sessions Case No.872/2016 Medical evidence is also contradictory to the oral evidence. As per the prosecution, only one blow is given, but Medical Officer observed six injuries on the person of the deceased and therefore, the entire evidence of prosecution is not sufficient to warrant the conviction against the accused, hence accused to be acquitted from the charge.
14. Heard rival submissions of the parties. Perused the evidence on record. Following points arise for my consideration and I answer the same as follows: POINTS FINDINGS
1. Whether the death of deceased Ramesh @ In the Ramya Bhiwa Pawar is a homicidal one? Affirmative
2. Whether the prosecution proves that on 06.09.2016 at about 9.00 p.m. accused has Section 304(I) given a blow of wooden bamboo on the head of proved deceased Ramesh @ Ramya Bhiwa Pawar with intention to cause his death and thereby committed an offence punishable U/s.302 of IPC?
3. What order? As per final order R E A S O N S As to Point No.1:
15. To prove the homicidal death, prosecution relied upon on the evidence of PW6 Dr.Sushil Digamber Kamble, who is examined vide Exh.20. He testified that he was attached to JJ Hospital as a Resident Doctor. On 07.09.2016 deadbody of Ramesh Bhiwa Pawar was received at JJ Hospital for postmortem along with the requisition letter. After conducting the postmortem, he found internal head injuries underscalp :8: Sessions Case No.872/2016 contusion of size 7cmX4cm over the left parietal region, dark red in colour. The scalp was found intact and there was no fracture seen. The brain was congested oedematous. Subarachroid hemorrhage of size 4cmX2.5cm over right mideparietal lobe dark red in colour and subarchroid haemorrhge of size 3cmX2cm over cerebellar region medially, dark red in colour. He mentioned the injuries in column No.17 of the postmortem report which are as follows:
1. Swelling of size 3c.m. X 3 C.m. present over left posterior part of parietal region.
2. Laceration of size 6 c.m. X 0.5 c.m. X scalp deep present over left frontpareital region obliquely, margins irregular with blood infilbetion crushing of hair bulbs at the margins, dark red in colour.
3. Abrasion of size 5 c.m. X 1 c.m. present, 1.5 c.m. below injury no.2 15.5 c.m. below the left nipple redish in colour.
4. Abrasion of size 5 c.m. X 1 c.m. over left part of lower chest region 13.5 c.m. from the left nipple, present horizontally, reddish in colour.
5. Incised wound of size 4 c.m. X 0.5 muscle deep present obliquely over ventral aspeel of left forearm 10.5 from the cubical foci margins regular clear cut.
6. Abraded contusion of size 1.5 c.m. X 0.5 c.m. X subcutaneous deep over left mid arm posterior aspect redish in colour. He preserved the viscera for chemical Analysis. He also collected the blood samples, nail clippings. He handed over the samples to the police of Dongari Police Station and after conducting postmortem he opined :9: Sessions Case No.872/2016 that “Evidence of head injury. However final opinion reserved pending for chemical analysis reports” . Accordingly, he issued postmortem notes Exh.21. He also issued the Cause of Death Certificate which is at Exh.22. He is crossexamined at length. During his crossexamination he denied that injuries mentioned in the column no.19 of the postmortem report can be possible due to fall on rough surface. He stated that none of the injuries mentioned in column no.19 can be possible by fall on the rough surface. The injuries mentioned in column no.19 due to fall of stone on head. He further stated none of the injuries mentioned in column no.17 can be possible due to fall on rough surface. He admitted that correction of the name of deceased in the postmortem report was subsequent to issuing the postmortem report. Thus, during the crossexamination defence has tried to bring on record such type of injuries are possible by fall on rough surface. It is contention of the defence that deceased has sustained injuries due to fall on rough surface, but Medical Officer has denied the same. Evidence of Medical Officer shows that on internal examination he found head injury on left pareital region. He also observed the hamorrhage due to the said injury and according to him death is due to the head injury. Though he preserved the viscera, C.A. report of viscera is not received by the Court so nothing is on record to show that deceased died due to any other reason.
16. Beside the evidence of Medical Officer, prosecution also relied upon on the evidence of PW2 Mohd.Sadik Gaffur Shaikh examined vide Exh.11 and PW10 Badshah Rahim Khan examined vide Exh.46 who are eye witnesses. As per the evidence of PW2 alleged incident :10: Sessions Case No.872/2016 has took place on 06.09.2016 on the day of incident after finishing his work at about 9.00 p.m. he was chitchatting along with his friend i.e. PW10 Badshah at Wadibunder Traffic office, at that time accused Sunilkumar and Ramesh i.e. deceased were fighting on the road behind the traffic walls. They heard the noise of fighting and therefore they went there but both deceased and accused sent them away. At that time they saw that accused and deceased were taking meals and accused finished his meal and while washing hands he was staring towards deceased and thereafter accused took out the bamboo which was laying there and gave blow on the head of deceased. Deceased sustained the head injury and accused ran away from the said spot. They immediately informed the traffic police who were present at Wadibunder traffic police chowkey, traffic police called the Dongari police and police arrived there and removed the deceased in the hospital but deceased was declared dead.
17. PW10 Badshah Khan also deposed in the similar manner. The sum and substance of his evidence is that deceased and accused both were taking their meals on the footpath. At the relevant time he along with his friend Sadik were chitchatting in front of traffic police chowkey. They saw the quarrel and they went there for intervention but accused told them that they are not concern with the same. Deceased again started taking his meal, at that time accused took out the bamboo which was lying there and gave blow on the head of deceased Ramesh. They tried to wake up the deceased Ramesh but he did not respond. The blood was oozing from the head. They immediately approached to police available at traffic police chowkey :11: Sessions Case No.872/2016 and informed the incident to traffic police. Traffic police informed the Dongari police station. Dongari police came at the spot of incident and removed the deceased in the hospital. Both the witnesses are crossexamined at length. During their crossexamination defence has attempted to bring on record that deceased died due to fall on hard rough surface. Both the witnesses have denied that there was rough surface, deceased fall on the ground and died. PW2 admitted that the footpath over which the body of Ramya was lying, there was no even surface, but he denied that deceased died due to fall on the said hard surface. It is also suggested that PW2 and PW10 were following the deceased and while running he fell down on the ground and sustained injuries but this fact is denied by PW2. PW10 also denied that deceased sustained the injuries due to the fall. It is suggested to him that there was quarrel between him and deceased on account of place which was chosen by the deceased for taking meal but PW10 has denied the same. He also denied that paver blocks on the spot of incident uprooted. Thus, contention of the defence that the deceased sustained the injuries due to fall is specifically denied by PW2 and PW10. Medical officer has also denied that these injuries are possible due to fall on hard and rough surface. Inquest panchanama is at Exh.14 admitted by the defence. The recitals of the inquest panchanama shows that on verification of the deadbody of the deceased, it reveals to the panchas that deceased has sustained injuries on his head 2.5c.m.X 2c.m. having width of 4 c.m. The blood was oozing from the said injury. Thus, the medical evidence as well as oral evidence of PW2 and PW10 shows that deceased has sustained the injury on his head which resulted into his death. This fact is also supported by the evidence of inquest :12: Sessions Case No.872/2016 panchanama which shows that deceased has sustained the injury on his head. Thus, prosecution has proved that deceased died due to the head injury which is homicidal one. Hence, I answer point no.1 in the affirmative. As to Point No.2:18. As per prosecution, homicidal death of the deceased Ramesh is caused by the accused. The story of the prosecution describes that on the day of incident informant as well as PW2 were chitchatting in front of traffic office at Wadibunder and accused and deceased were also taking their meals on the backside of said traffic office on the same footpath. Suddenly quarrel started between them on account of money and accused took wooden bamboo lying there and gave a blow of the said bamboo on the head of the deceased. Thus, as per the prosecution, PW2 Mohd.Sadik and PW10 Badshah Khan are the eye witnesses. It is further case of the prosecution that these both witnesses informed the incident to traffic police available at Traffic police chowkey and said traffic police informed Dongari Police Station. To prove the said circumstance and homicidal death of the deceased at the hands of the accused, prosecution mainly relied upon on the evidence of these two eye witnesses. The evidence of PW10 Badshah shows that on the relevant day he was chitchatting with PW2 Modh.Saidk and they were sitting in front of Wadibunder traffic police chokey. Deceased Ramesh was taking his meal near the wall on footpath. At that time accused also came there and sat along with him for taking meal. At that time, they had a quarrel. He along with PW2 intervened but accused told them that they should stay away as they were not concern. Deceased :13: Sessions Case No.872/2016 Ramesh was again taking the meal at that time one bamboo was lying there and accused took the said bamboo and gave a blow of said bamboo on the head of Ramya. Ramya fell down and sustained the injury on his head. Blood was oozing from his head and accused ran away from the spot along with bamboo. Accordingly, he informed the police available in traffic police chowkey and said traffic police informed Dongari police station and police came there. PW2 Mohd.Sadik also testified vide Exh.11 in a similar manner. He also corroborated the version of PW10 Badshah that he was chitchatting with PW10, at that time quarrel was started between accused and deceased Ramesh near the traffic office wall. They went there but both accused and deceased asked them to stay away. Thereafter, accused after finishing his dinner, he took bamboo lying there and gave a blow of that bamboo on his head therefore, Ramesh has sustained injuries. They immediately informed the Wadibunder traffic police. Said traffic police informed Dongari police station and police Van came there and injured was removed to the hospital. They also followed the deceased when he was taken in the hospital. Both the witnesses are crossexamined at length. During their crossexamination the fact that both the witnesses are residing on the same footpath is not denied by the defence. On the contrary, it came on record that PW2, PW10, deceased Ramesh and accused Sunil used to sleep at Wadibunder traffic office. It also came on record that PW2 and PW10 were doing the work on Towing Van and accused and deceased used to do the work of pushing the handcarts. It further came on record that even deceased Ramesh used to cook his dinner on the said footpath. Thus, crossexamination shows that not only deceased and accused but PW2 and :14: Sessions Case No.872/2016 PW10 were also residing on the same footpath. During crossexamination he admitted that the place where deceased Ramya was taking dinner was not visible to him as there was wall in between them. It further came on record that when he and PW10 went towards Ramya, at that time Ramya and accused were having dinner together. Thus, the crossexamination clears the facts that when PW2 and PW10 reached near the accused and deceased at that time they both were taking the dinner and subsequently there was quarrel between them and in presence of these witnesses accused gave a blow of bamboo on the head of the deceased. Defence has tried to shatter the evidence by bringing it on record that PW2 and PW10 both were in the habit of drinking liquor. PW2 also admitted that he and PW10 used to consume liquor every day after finishing their work. It nowhere came on record that at the time of incident also they were under the influence of liquor. Similarly, PW10 is also crossexamined at length. In his crossexamination also it came on record that they were residing on the same footpath and accused and deceased were also residing on the same footpath. Learned defence counsel has invited the attention towards the crossexamination wherein PW10 has stated that he and PW2 both went to the traffic police chowkey whereas PW2 stated only PW10 approached to the traffic police chowkey. Another deficiency is pointed out that PW2 has admitted that he and PW10 are in habit of drinking liquor every day, but PW10 has denied the same. On the basis of these deficiencies it is tried to bring on record that evidence of PW2 and PW10 is not consistent and suffering from deficiencies. If the crossexamination of PW10 is taken into consideration, he also admitted that he along with PW2 were residing on the same footpath. It further :15: Sessions Case No.872/2016 came on record that they used to cook on footpath and thereafter accused and deceased used to take their meals. It specifically came on record that on the day of incident also accused and deceased were also taking meals together. He specifically denied that footpath is in a damaged condition. He denied that some paver blocks were uprooted. But PW2 has admitted that the footpath was in a uneven condition. It is suggested to both the witnesses that deceased sustained injuries due to fall on uneven surface, but both have denied the same.
19. If the evidence of these two witnesses is taken into consideration, it appears that they are natural witnesses. Their presence at the spot of incident is also natural. It is not denied that they are residing at the said place. On the contrary crossexamination shows that they are residing there. They are not only residing but they are also taking their meals at the said place. Thus, presence of these witnesses is natural since they are residing there and at the time of incident they were present there. Their evidence is further tried to be shattered on the ground that the place where the accused and deceased were taking meals is not visible to them. PW2 admitted the same, but evidence on record shows that they were in front of traffic police chowkey where deceased and accused were taking the meals behind said chowkey when the quarrel was started between deceased and accused. Their evidence clearly shows that after hearing the noise they went there and the quarrel was going on between them on the count of money. Thereafter, accused stand up and deceased was sitting and taking meal but accused took bamboo lying there and gave a blow of the said bamboo on the head of deceased. Thus, the presence of these :16: Sessions Case No.872/2016 two witnesses is quite natural at the place of incident. The fact that they witnessed the incident is also proved by the prosecution.
20. To corroborate the version of PW2 and PW10 that they approached to the Wadibunder traffic police chowkey immediately after the incident, prosecution has examined PW1 Anand Ramchandra Bhosale vide Exh.10. He testified that on 06.09.2016 he was on duty at night hours in the traffic police chowkey. Due to Ganesh Festival he joined his duty at 5.00p.m.. At about 9.00 p.m. two boys working on police towing Van namely Sajid and Badshah came to traffic office at Pydhunie and informed him that accused assaulted Ramya Pawar by bamboo on his head. Therefore, he immediately went along with two constables at the spot of incident which adjacent to their traffic office. He saw Ramya Pawar was in unconscious condition lying on ground and having head injury. Therefore, he immediately gave wireless call to the police control room and informed about the incident. Thereafter, Bit Marshal from Dongari Police Station reached on the spot and they also gave wireless call to the control room and called Van to take the injured. Accordingly, injured was taken to JJ Hospital in the police Van. After some time, he came to know that Ramya Pawar died due to the said injury. He is crossexamined at length, but during crossexamination nothing incriminating came on record.
21. To prove that deceased has sustained the head injury, prosecution also relied upon the inquest panchanama. Inquest panchanama is admitted by defence which is at Exh.14. Recitals of inquest panchama shows that panchas were called in JJ Hospital and in :17: Sessions Case No.872/2016 their presence inquest panchanama was drawn. On verification of dead body, they found that deceased has sustained injury on his head having blood from the said injuries. The description of the clothes of the deceased is also mentioned in the said panchanama.
22. Another circumstance on which prosecution is relied upon is the evidence of spot panchanama. PW3 Kiran Mohan Gohil is examined vide Exh.12 to prove the spot panchanama. He deposed that on 07.09.2016 he was proceeding in front of Dongari Police Station, at that time police requested him to act as panch for preparing the spot panchanama. Accordingly, he acted as a panch on the said spot panchanama. As per his evidence, the spot of incident was behind traffic office at Wadibunder Dongari on footpath. At the spot of incident there was food material scattered on the footpath. Blood stains were also found there. Police collected the blood samples from the footpath with the help of cotton and police also collected the simple soil from the spot of incident. Accordingly, panchanama was drawn. Police also took his signature on the label attached to both the samples. Said panchanama is at Exh.13 and the labels of the said samples are Articles A2 and A3. He is also crossexamined at length. During crossexamination he denied that he visited Dongari police station for permission of Ganesh Festival. He also denied that footpath was of uneven surface and was damaged. Thus, from the crossexamination of PW3 nothing incriminating came on record.
23. To corroborate the version of PW2 and PW10, prosecution also examined PW4 Dattatray Shripati Patil vide Exh.17, who is the Police :18: Sessions Case No.872/2016 Constable i.e. Bit Marshal of Dongari Police Station. He also testified that on the day of incident he was on duty as Bit Marshal. He was standing near Pydhunie traffic office on the junction. One police constable came to him and informed him that one person is lying unconscious at P.D'Mello Road behind Wadibandar traffic office. Accordingly, he visited the spot and found that one person was lying unconscious and having injury on his head. Therefore, he gave wireless call to control room. His evidence is not challenged by the defence during the crossexamination.
24. Another circumstance on which prosecution is relied upon is the recovery of the clothes, recovery of blood stains' clothes of the accused. To prove the said circumstance, prosecution relied upon the evidence of PW5 Subhash Waman Shirsath vide Exh.18. He testified that on 07.09.2016 police called him at Dongari Police Station for acting as a panch. He consented for the same. Accused Sunilkumar Kutty was present there. His shirt and pant were having blood stains over them and the same were given by accused to police in his presence. Accordingly, police seized and sealed the said clothes and drawn the panchanama. Said panchanama is at Exh.19. He further deposed that prior to sealing of the said clothes of the accused, police marked the blood stains as X1 to X3. The shirt of the accused was marked as “X” and pant as “Y” and affixed the label bearing his signature and signature of another panch. He identified the said clothes which are shown to him which are Articles 4 and 5. The labels are marked as Articles 6 and 7. During his crossexamination it came on record that he used to help the Police Officers whenever they asked for the same. :19: Sessions Case No.872/2016 He also admitted that he acted as a panch witness prior to the present case. From rest of the crossexamination nothing incriminating came on record.
25. Another material circumstance on which prosecution is relied upon is the memorandum statement of the accused and discovery of weapon at the instance of the accused. To prove the said circumstance admittedly prosecution has not examined panch witness but prosecution has examined PW8 Sushil Ashokrao Ingale vide Exh.28 who is the investigating officer. He testified that when accused was in the police custody he shown his willingness to give voluntary statement. Therefore, he called two panchas for recording the memorandum statement of accused. In presence of panchas accused made a statement that he will show the place where he concealed the weapon of the offence. Accordingly, his statement was reduced into writing. Said statement is at Exh.30. Thereafter, accused led them. Accused asked the police to stop the vehicle at the signal of traffic office at Wadibander. Thereafter, he led them by walk on the backside of police colony from the main gate of said colony. The police colony was situated just behind the traffic office of Wadibandar. The accused from one place where the waste material of police colony was kept and took one bamboo from the bushes. Accordingly, he seized the said article Bamboo and by affixing the label obtained the signature of panchas. Accordingly, discovery panchanama Exh.31 was drawn. The article1 is the same wooden bamboo and label is marked as Art.8. Though this witness is crossexamined at length mere denial is not sufficient to discard his evidence :20: Sessions Case No.872/2016 and the discovery at the hands of the accused. Nothing incriminating has come on record.
26. Beside the evidence of PW8 Investigating Officer, prosecution also examined PW7 Popat Haribhau Patil vide Exh.23, who has conducted the investigation at the initial stage. As per his evidence on 06.09.2016 he joined his duty at 8.00 p.m. He was present in the police station till 8.00 a.m. of the next day. When he was on the Mobile Van he received a message that one person is lying in a injured condition on backside of Wadibandar traffic chowkey. He immediately along with the staff proceeded towards backside of Wadibunder Traffic police chowkey. He found one injured present on the said footpath. Said person was unconscious condition. Thereafter, he directed the staff to remove the said person to the hospital. He also gave a message to South control that the injured was declared as dead. During his crossexamination, it is suggested that he has not witnessed the incident. Admittedly it is not the case of the prosecution also that he witnessed the incident. As mentioned above PW8 is the Investigating Officer he has narrated about the investigation carried out by him. The sum and substance of his evidence is that he received the message that one injured person is lying behind the traffic office at Wadibandar. He visited the JJ Hospital on that night itself. He received the message that said person was declared as dead. Therefore, he drawn the inquest panchanama Exh.40. Thereafter, he visited the alleged spot of incident and drawn the spot panchanama. He also obtained the FIR which was lodged by PW10. He has collected the blood stains while drawing the spot panchanama. He seized the clothes of the deceased by drawing :21: Sessions Case No.872/2016 panchanama. He also seized the clothes of the accused and after completion of investigation he submitted the chargesheet against the accused. During crossexamination much stress is given on the point that the articles were lying in the muddemal room from its seizure till its sending to the Chemical analyzer office. As per his evidence on 09.09.2016 he sent the seized articles to DFSL, Kalina. Admittedly articles are seized on 07.09.2016 and within two days the articles are forwarded to C.A. along with letter. Rest of the crossexamination is in the denial form. During crossexamination it came on record that firstly investigating officer came to know the name of the deceased as Ramesh @ Ramya, but thereafter he came to know his name as Ransingh Bhima Pawar. Therefore, he issued the letter to Medical Officer to show the name of the deceased on postmortem report as Ransingh Bhiwa Pawar.
27. PW9 Sr.PI Ankush Shamrao Katkar examined vide Exh.34 is also an Investigating Officer. His role in the investigation is only to the extent that he forwarded the seized muddemal to C.A. After receipt of the C.A. report collected the said C.A reports Exh.35, 36 and 37 and included in the investigation papers. He also forwarded the witnesses to record their statements U/s.164 of Cr.P.C. He is crossexamination at length. During his crossexamination nothing incriminating has come on record.
28. Prosecution also relied upon the medical evidence of PW6 Dr.Sushil Digambar Kamble examined vide Exh.20. Medical Officer has narrated that after conducting the postmortem he found internal head injuries underscalp contusion of size 7 c.m. X 4 c.m. over the left :22: Sessions Case No.872/2016 parietal region. It was not corresponding with the fracture, but he has seen hemorrhage on right mideparietal lobe dark red in colour and also hemorrhge has seen over cerebellar region medially. He also observed injuries like swelling of size 3 c.m. X 3 c.m. present over left posterior part of parietal region. Laceration of size 6 c.m. X 0.5 c.m. X scalp deep present over left frontpareital region obliquely, margins irregular with blood infillbetion crushing of hair bulbs at the margins, dark red in colour, Abrasion of size 5 c.m. X 1 c.m. present, 1.5 c.m. below injury no.2 15.5 c.m. below the left nipple redish in colour, Abrasion of size 5 c.m. X 1 c.m. over left part of lower chest region 13.5 c.m. from the left nipple, present horizontally, reddish in colour, incised wound of size 4 c.m. X 0.5 muscle deep present obliquely over ventral aspeel of left forearm 10.5 from the cubical foci margins regular clear cut and Abraded contusion of size 1.5 c.m. X 0.5 c.m. X subcutaneous deep over left mid arm posterior aspect redish in colour. He further deposed that accordingly he prepared the postmortem report mentioning the cause of death is due to head injury. He also issued the cause of death certificate. During his crossexamination, it is tried to bring on record that injury mentioned in column no.19 are possible due to fall on rough surface but he denied the same. He specifically stated that none of the injuries mentioned in column no.19 can be possible by fall on rough surface. The injuries mentioned in column no.19 may be possible due to fall of stone on head. Though defence has brought on record by the medical officer that injuries mentioned in column no.17 may be possible due to fall of stone on head, but during crossexamination of PW2 and PW10 nowhere it is suggested that deceased has sustained injuries due :23: Sessions Case No.872/2016 to fall of stone on his head. Therefore, mere suggestion to the Medical officer is not sufficient as no such case is put up to the eye witnesses.
29. Besides medical evidence prosecution also relied upon the C.A. report EXhs.35, 36, 37 and 59. Exh.35 is regarding nail clipping of the deceased which is in the negative form. Exh.36 shows that blood obtained is of blood group B. Exh.37 shows that blood grouping of deceased was not ascertained as blood was not suitable for the blood grouping. Exh.59 is a chemical analysis regarding the articles i.e. cotton swab, simple earth, blood stains earth. Clothes of the accused and wooden stick forwarded to C.A. Exh.59 shows that Exh.1 cotton swab is stained with blood. Exh.2 earth is mixed with blood. Exh.4 and Exh.7 i.e. full shirt and handkerchief of the deceased are stained with blood at places. Exh.5 full pant of the deceased has two blood stains each of about 1cm in diameter situated at front right upper portion. Exh.6 Burmuda has few blood stains ranging from about 0.1cm to 2cm. No blood is detected on Exhs.3, 8, 9 and 10. Thus, no blood stains are found on the clothes of the deceased and the bamboo stick. But the blood is found on the clothes of the deceased. On the basis of this oral as well as documentary evidence, prosecution claimed that prosecution has proved its case beyond reasonable doubt against the accused. Whereas it is contention of learned defence counsel that evidence of PW2 and PW10 that only one blow is given on the head of the deceased. Whereas medical evidence shows deceased has sustained in all six injuries. Thus, medical evidence and oral evidence is contradictory to each other and hence not helpful to the prosecution. :24: Sessions Case No.872/2016 Hence, the evidence adduced by the prosecution is not sufficient to warrant the conviction against the accused.
30. Lastly, prosecution has also examined wife of the deceased as PW11 Sunita Ramesh Pawar. During argument defence has challenged the identity of the deceased. PW11 has stated that deceased Ramesh Bhiwa Pawar is her husband. Her husband deceased was also known as Ransingh Bhiwa Pawar. She has also produced on record Voter and Ration Card.
31. Learned APP Shri R.V. Tiwari submitted that the act of the accused is with intention and knowledge. Accused has chosen the vital part of the body for the assault which resulted into the death of the deceased. In support of his contention he relied upon Ananta Kamilya V/s. State of West Bengal reported in AIR 2020 Supreme Court 315 wherein it is observed that accused during altercation and on spur of moment caused injury on head of deceased by Lathi. No premeditationor intention to kill deceased. Exception4 of Section 300 attracted and case of the accused covers U/s.304(I) of IPC. He also relied upon Ghapoo Yadav and Others V/s. State of M.P. reported in (2003)3 Supreme Court Cases 528 wherein it is observed by the Hon’ble Apex Court that for the application of Exception4 apart from showing that there was a sudden quarrel and there was no premeditation it must further be shown that the offender has not taken undue advantage or acted in cruel and unusual manner. Conviction U/s.302 of IPC altered to Section 304(I) IPC. He submitted that accused has committed the offence U/s.302 of IPC is with intention :25: Sessions Case No.872/2016 and knowledge. He gave a blow on the vital part of the body. Alternatively, he submitted that even if the Court comes to the conclusion that the case of the accused covers under the exception, the case of the accused at the most covers under section 304(I) and not below that.
32. On the other hand, learned advocate for the defence submitted that the evidence of the prosecution is not cogent, consistent and suffering from deficiencies. Prosecution miserably failed to prove the charges against the accused. Hence, accused be acquitted from the charges.
33. In support of his contention he relied upon Karam Chand V/s. State of Himachal Pradesh reported in 2007 Criminal Law Journal wherein Hon’ble High Court of Himachal Pradesh has observed that accused assaulted with stick on forehead of deceased resulting into her death. Statements of eye witnesses are inconsistent and contradictory to each other. There is no reference in FIR to the manner in which alleged murder had been committed, nor there is a mention of any stick or any other wooden. Recovery of weapon before the alleged disclosure statement was made by accused. Prosecution version that only one blow with stick was given is contrary to the fact that two injuries were found on deadbody. Guilt of the accused was not proved beyond reasonable doubt.
34. He also relied upon K. Subramani alias Mani V/s. State of Karnataka reported in 2021 CRI.L.J. 317 wherein it is observed that :26: Sessions Case No.872/2016 motive – accused, friend of deceased allegedly murdered him out of financial dispute Entire motive of financial transaction is negated, as no documents produced to prove financial transaction between deceased and accused Motive not established Accused entitled to acquittal.
35. After appraisal of the evidence on record in the present case, prosecution mainly relied upon on the evidence of eye witnesses which is supported by the circumstantial evidence. It is well settled that when direct evidence is available, motive takes back seat. It is submitted by the learned advocate for the defence that the evidence of the eye witnesses is inconsistent and not corroborative. If the evidence of PW2 and PW10 is taken into consideration not only the chiefexamination but crossexamination of these witnesses also shows that not only the accused and the deceased but both the eye witnesses were also residing on the same footpath. The evidence of these two witnesses shows that when the alleged incident taken place they were sitting in front of Wadibander traffic police chowkey and the alleged incident has taken place behind the said police chowkey. The evidence of these two witnesses also shows that as soon as they heard the noise of quarrel, they immediately went near the accused and deceased to intervene the quarrel but they were asked to stay away from the said quarrel and they were standing at some distance. Thereafter, accused took a bamboo stick lying there and gave blow of said bamboo stick on the head of the deceased. Deceased sustained the injury and due to the said injury deceased succumbed to the death. If the evidence of two eye witnesses taken into consideration their presence at the spot of incident is natural :27: Sessions Case No.872/2016 as they were standing there. Their residence at the same footpath is not denied by the defence. On the contrary, crossexamination shows that they all four persons were residing on the said footpath and working. Accused and deceased were doing the work of pulling handcarts and PW2 and PW10 were working on the towing van. Thus, the presence of these witnesses is natural since they were residing there. Defence has tried to argue that their evidence is inconsistent as they were not corroborating to each other. If the chiefexamination and crossexamination taken into consideration on material particulars regarding the alleged incident, the evidence of both the witnesses is cogent and corroborative to each other. It is tried to canvassed that as per PW2 only PW10 went to inform the Wadibunder traffic office. Whereas, as per PW10 they both went to inform the Wandibander Traffic office. Evidence of PW1 Ananda Ramchandra Bhosale who is Traffic Hawaldar at Wadibunder traffic office stated that both Sajid and Badshah came to traffic office and informed about the incident. Thus, the inconsistencies and deficiencies which are brought on record are minor in nature. The evidence of PW1 shows that they both informed the said incident. It is well settled that the inconsistencies or discrepancies may occur due to normal error of observation, normal error of memory due to lapse of the time, due to mental disposition. Stereotype version is not expected from the witnesses. It is well settled that discrepancies which does not go to the root of the matter will not affect the prosecution case. It is observed by the Hon’ble Apex Court in a case of Smt.Shamim V/s. State of Delhi in Criminal Appeal No.56 of 2018 decided on 19.09.2018 that while appreciating the evidence of witness, the approach must be whether the evidence of witness read as a whole, :28: Sessions Case No.872/2016 inspires confidence. Once that impression is found, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against general tenor of the evidence and whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on triffle matters not touching the core of the prosecution case. Hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter without ordinarily permit rejection of the evidence as a whole. Minor omissions are never considered to be fatal. Thus, in the present case alleged incident has taken place in the year, 2016, whereas evidence of the witnesses is recorded after two years. Evidence of PW10 is recorded after three years. Due to the lapse of time some discrepancies bound to occur but said discrepancies are not affecting the core of the prosecution case and hence the evidence of these witnesses is to be accepted.
36. The evidence of these witnesses not only corroborated by PW1 but it is also corroborated by PW4 Dattatray Shripati Patil, Police Constable, who has also received the information about the incident from the office of traffic police. Therefore, the evidence of PW2 and PW10 that they approached to the traffic police immediately after the incident is corroborated by PW1 and PW4.
37. Evidence of eye witnesses is also corroborated by the medical evidence. PW6 is the Medical Officer. He denied that such injuries are :29: Sessions Case No.872/2016 possible due to fall on rough surface. He completely denied the possibility that any of the injury is possible due to fall on rough surface. It is submitted by the learned defence counsel that medical evidence and oral evidence is contradictory to each other. He submitted that as per the prosecution witness only one blow is given, whereas deceased has sustained six injuries. For that purpose, evidence of PW6 medical officer if considered, he specifically stated that he found internal head injury underscalp contusion of size 7cmX4cm. The brain was congested oedematous. He also seen hemorrhge of size 3cmX2cm over cerebellar region medially. He also found external injury i.e. Swelling of size 3c.m. X 3 c.m. present over left posterior part of parietal region, Laceration of size 6 c.m. X 0.5 c.m. X scalp deep, Abrasion of size 5 c.m. X 1 c.m. present, 1.5 c.m. below the left nipple, Abrasion of size 5 c.m. X 1 c.m. over left part of lower chest region 13.5 c.m. from the left nipple, incised wound of size 4 c.m. X 0.5 muscle deep present obliquely over ventral aspeel of left forearm and abraded contusion of size 1.5 c.m. X 0.5 c.m. X subcutaneous deep over left mid arm posterior aspect. Admittedly the external injury nos.1, 2 are the corresponding injuries regarding the head injury sustained by the injured. Admittedly, there is no explanation by the prosecution regarding injury no.5 i.e. incised wound of size 4 c.m. X 0.5 muscle deep. But it is well settled that when oral evidence is contradictory to the medical evidence, oral evidence will prevail and no reason came forward before this court to discard the evidence of eye witnesses and medical evidence is not totally contradictory to the oral evidence. It corroborates the version that deceased has sustained the head injury. Inquest panchanama proved by the investigating officer also discloses that deceased has :30: Sessions Case No.872/2016 sustained the head injury and panchas have seen the said injury. The C.A. reports also supports that deceased has sustained the injury as blood stains are found on the clothes of the deceased.
38. Another material circumstance on which prosecution is relied upon is the evidence of memorandum statement of the accused and discovery of the weapon at the instance of the accused. Admittedly, prosecution has not examined the panch witness. It is well settled that panchanama can be proved through the evidence of investigating officer. There is no reason for the investigating officer to implicate the accused falsely by showing the recovery of the said bamboo stick. Evidence of PW8 shows that when accused was in police custody he gave a memorandum statement in presence of panchas and in pursuant of the said statement he led the panchas and police and shown the said place was behind the police colony. The weapon was recovered from the place where all waste material was lying and accused has produced the said stick from the bushes. Thus, the recovery is not from the open or the accessible place but the recovery is from the place which is known to the accused. The only requirement of Section 27 of Indian Evidence Act is that the discovery of some facts should be significant to the information given by the accused. What is essential, is that discovery of some facts. In other words, the facts discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused. :31: Sessions Case No.872/2016
39. It is observed by the Hon’ble High court in case of Kamru @ Javed Haniflala Khan V/s. State of Maharashtra reported in 2016 ALL MR in Criminal 3348 that Section 27 of Evidence Act does not state expressly or otherwise that in his statement made before police and panchas that accused should state the place from where he was going to produce the article. What is essential is that his information has led to the discovery of the fact which is direct outcome of such information. The law even does not contemplate that the actual discovery needs to be made by the accused himself or that the accused should personally accompany the police officer and the panchas to the spot. Though in most of the cases, the accused who makes the disclosure himself leads the police officer and panchas to the place when an object is concealed and point out the same to him, it is not essential that there should be such pointing out by the accused in order to make the information admissible U/s.27. It could be very well be dealt on the basis of information furnished by the accused. Investigating Officer may go to the spot in the company of panchas and recover the material object. It is observed by the Hon’ble High Bombay High Court that only essential requisite is that the information furnished by the accused was the immediate and proximate cause of the discovery.
40. In the present case, accused made a memorandum statement and in pursuant of the said statement he shown the place where the article bamboo was concealed. Evidence of PW2 and PW10 eye witnesses also shows that accused ran away from the spot along with the said bamboo stick. Thus, the evidence of recovery is also proved by the :32: Sessions Case No.872/2016 prosecution. Evidence as to recovery need not be rejected on the ground that prosecution has not examined the panch witness. Even evidence of Investigating Officer can be considered for proving recovery as official acts. It is observed by the Hon’ble Bombay High Court in Amir Nanhejan Shaikh & Ors. V/s. The State of Maharashtra reported in AIR 2017 ALL MR (Cri) 1671 in para24 by referring the judgment of Hon’ble Apex Court in Mohansingh V/s. State of Rajasthan (1978)4 S.C. 435 that where the evidence of investigating officer who recovered the material object is convincing, the evidence as to recovery need not be rejected on the ground that seizure witness did not support the prosecution version. Similar view is expressed in Mohd.Aslam V/s. State of Maharashtra(2002)9 SCC 362 and in Antar Singh V/s. State of Rajasthan (2004)10 SCC 657 wherein it is further held that even if panch turn hostile, the evidence of the person who effected the recovery would not stand vitiated. Thus, the evidence of Investigating Officer is sufficient to prove the recovery.
41. Prosecution has also adduced the evidence of spot panchanama to show the corroboration regarding the alleged incident. Spot panchanama is at Exh.30 and proved by PW3. The evidence of PW3 Kiran Mohan Gohil, panch on spot panchanama, shows that at the spot of incident there was food material scattered on the footpath and blood stains were found there. The prosecution case itself shows that when deceased was taking the meal there was quarrel between him and the accused and accused gave a blow of bamboo stick. This fact of the prosecution is supported by the spot panchanama as evidence of spot panch shows that when he was at the spot he found that food material :33: Sessions Case No.872/2016 was scattered on the footpath and he also found blood stains there. Police have collected said blood stains and forwarded to C.A. C.A. report also shows that cotton swab is stained with blood and blood group of cotton swab is ‘A’. Thus, the circumstances found in the spot panchanama and the C.A. reports also corroborates the facts that alleged incident has taken place on the footpath when deceased was taking the meal. Recitals of the spot panchanama also shows that the foods in scattered condition were found at the spot. Police have also collected the blood stains from the said spot.
42. Defence has challenged the identity of the deceased but said identity of the deceased is also established by the prosecution by examining PW11 Sunita Ramesh Pawar, wife of deceased. Her oral as well as documentary evidence shows that deceased was also known as Ransingh Bhiwa Pawar.
43. After appreciation of evidence, it appears that the quarrel between deceased and accused had taken place when they were taking meal. Admittedly, the evidence on record shows that the quarrel between them has taken place suddenly. Admittedly, the evidence nowhere shows that accused has prepared for the said incident. Thus, there was no premeditation prior to the incident. On the contrary, evidence shows that deceased and accused took lunch together on the day of incident also. When deceased was taking meal, accused has joined him and they both taken meals and while taking meals there was quarrel between them on the count of money. In the light of the above evidence, it has to be seen whether there was intention to commit the :34: Sessions Case No.872/2016 murder of the deceased. Admittedly, while appreciating the evidence, Court has to see whether there was an intention to commit murder of the deceased. The evidence of prosecution witnesses shows that incident took place as there was sudden quarrel between accused and deceased. Admittedly, deceased and accused were living on the said footpath. They were working together. They were taking food with each other. There was no previous enmity or animoisty between them. Thus, the alleged incident has taken place in sudden fight and sudden quarrel and therefore Exception4 of Section 300 is attracted.
44. In order to find out the distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder, it is necessary to understand the scheme adopted in the code in defining the culpable homicide and murder.
45. Culpable homicide is defined in Section 299 of the IPC and it is genus, whereas murder is defined in Section 300 of the IPC and it is specie. U/s.299 of IPC whoever causes death with the intention or knowledge specified in that section, commits offence of culpable homicide. However, since culpable homicide is only genus, it includes two forms; one is the graver offence which amounts to murder and lesser one which does not amount to murder. It can be seen that, therefore, though the offence of culpable homicide is defined, the said provision does not provide for any punishment for that offence as such and for the purpose of punishment, the court has to examine facts and find out whether the offence falls or does not fall under Section 300 of IPC. In view of this scheme, therefore, every act of homicide falls :35: Sessions Case No.872/2016 within the definition of culpable homicide in Section 299 of the IPC. Section 300 of the IPC on the one hand mentioned that a homicide is murder. However, in that exceptions lay down the circumstances in which the act which causes death is not murder even though it may have been done with the intention or knowledge specified in Section 300 of the IPC. The question of punishment which has to be awarded, therefore, is twofold i.e. (1) what was the intention or knowledge with which the act was done and (2) what were the circumstances in which it was done.
46. If it is established that the offence is culpable homicide but it is of such a nature that it does not fall within the definition of 'murder' in Section 300 of IPC or even though it does, if it falls under any of the exceptions to that section, the offence is punishable U/s.304 of IPC. Once it is held that offence falls U/s.304 of the IPC, then the punishment differs, depending upon whether death is caused with intention or only with knowledge and therefore, if the element of intention exists the offence is punishable under partI of Section 304 of the IPC, otherwise the offence falls under partII of Section 304. In the former case punishment may extend to imprisonment to life and in the later case it may extend upto a term of 10 years.
47. In view of above settled position, it has to be seen whether there was an intention on the part of the accused to commit the murder of the deceased. Admittedly in the present case deceased and accused were working together living on the said footpath. There is no evidence that they are having any previous enmity or animoisty between them. :36: Sessions Case No.872/2016 Admittedly, quarrel between deceased and accused started suddenly on account of money and in a spur of moment accused took the bamboo which was laying there and gave a blow of bamboo on the head of the deceased. Thus, while giving the blow accused has chosen the vital part of the body. Admittedly, there is no evidence that accused has prepared or there was any premeditation prior to the incident. In a spur of moment accused got annoyed and picked up a said bamboo and gave blow on the vital part of the body. The evidence further shows that accused has not acted in a cruel manner by taking disadvantage of the fight and not given the repeated blows but admittedly accused has chosen the vital part of the body i.e. head is sufficient to show the intention of the accused. Admittedly, no direct evidence will be available to show the intention. Intention of the accused is the inner compartment of his mind and therefore no direct evidence is available for gathering the intention of the accused. The circumstance that accused has chosen the vital part of the body and said vital blow on the vital part proved to be fatal and deceased succumbed to the death. Thus, intention of the accused can be gathered from the said circumstance. The evidence of the eye witnesses and the medical evidence shows the gravity of the injured. Deceased died because of the injury which is caused by the accused. The incident has taken place in the spur of moment when there was hot exchange of words between deceased and accused. Thus, act of the accused will cover U/s.304(I) of IPC. Though learned advocate for defence counsel has relied upon Karam Chand V/s. State of Himachal Pradesh(supa) the facts of the cited case shows that evidence of eye witnesses was inconsistent and contradictory. Even recovery of the weapon was also doubtful and :37: Sessions Case No.872/2016 therefore, the facts of the cited case relied upon by the defence are not identical with the present case, hence not helpful to the defence. Defence also relied upon K. Subramani alias Mani V/s. State of Karnataka(supra), I have already observed when direct evidence available then motive takes backseat. Here in the present case direct evidence of two eye witnesses is sufficient to prove the case of the prosecution. The cited case on which defence is relied upon is the case based on the circumstantial evidence. Therefore, the facts of the cited case and the present case are not identical to the defence, hence not helpful to the defence.
48. On the other hand, though learned APP vehemently argued that case of the accused will cover U/s.302 of IPC but alternatively he submitted that even Court comes to the conclusion that the act of the accused covers under homicidal not amounting to murder then also case of the accused covers U/s.304 (I) of IPC and not U/s.304(II). He relied upon on the two judgments of the Hon’ble Apex Court. Quarrel has started in a sudden quarrel, accused took out the weapon which was already lying there. Accused has also not taken the undue advantage and not given the repeated blows. Therefore, it is sufficient to infer that the case of the prosecution covers under Exception4 of Section 300 i.e. culpable homicide not amounting to murder due to sudden fight and sudden quarrel and therefore, I have no hesitation to hold that the accused is guilty U/s.304(I) of IPC. Hence, I answer the point no.2 accordingly. :38: Sessions Case No.872/2016
49. Due to the mandate Section 235(2) of Cr.P.C., I suspend my judgment here to hear the accused on the point of sentence. Dated: 02/02/2022 (Urmila S. Joshi Phalke) Sessions Judge, City Civil & Sessions Court Gr. Bombay
50. Heard accused on the point of sentence. He submitted that he is only earning member of the family. He is doing labour work. His old parents are depending upon him. There is no other person to look after them. Hence, leniency be shown to him.
51. Learned advocate Shri Aniket Gawand for the accused also endorsed the same contention. In addition, he submitted that only single blow given by the accused proved to be fatal. There is no disadvantage by the accused and no repeated blows are given by the him. Therefore, minimum punishment be awarded to the accused.
52. On the other hand, learned APP Shri R.V.Tiwari for state submitted that though Court has come to the conclusion that case covers U/s.304 PartI of IPC but considering the act of the accused weapon used by the accused and the blow given by the accused which proved to be fatal and deceased lost his life therefore, maximum punishment of 10 years is to be awarded to the accused considering the act.
53. I have recapitalized the entire episode. The evidence on record shows that accused and deceased were working together. They were :39: Sessions Case No.872/2016 residing on the same footpath. There was good relation between them but alleged incident has occurred in a sudden fight and sudden quarrel. Accused took out the wooden bamboo lying at the spot of incident and gave blow of the said bamboo on the vital part of the body which proved to be fatal and thus the case of the accused covers under Exception4 of Section 300.
54. It is well settled that when offence is proved then awarding the punishment lightly is affront to the society. Admittedly offence committed by the accused is against the society and if lessor punishment is awarded wrong message will be circulated in the society. It is also well settled that when offence is proved then adequate punishment is to be awarded by the Court. In the present case it is already observed that the act of the accused covers U/s.304(I) of IPC for which minimum punishment of 10 years is provided and therefore rigorous imprisonment of 10 years and fine of Rs.5,000/ is the adequate punishment. At the same time, Court has to consider compensation which is to be awarded to the wife of the deceased. Legislature has made a provision in Code of Criminal Procedure regarding the compensation U/s.357. Compensation can be awarded to the victim or the relatives of the victim out of the fine amount which is imposed on the accused, but here in the present case, accused is doing the labour work, he is not in a position to pay the fine. The fine amount more than Rs.5000/ considering his financial position, the awarding of compensation out of fine amount will be only a paper order and therefore, Court has to consider the compensation U/s.357A. By incorporating the provision U/s.357A. Government is directed to :40: Sessions Case No.872/2016 prepare a scheme for providing funds for the purpose of compensation to the victim or his dependent who has suffered loss or injury as a result of the crime and who required rehabilitation. SubSection2 of Section357A states that whenever a recommendation is made by the Court for compensation the District Legal Services Authority or the State Legal Services Authority shall decide the quantum of compensation to be awarded under the scheme referred to in Sub section1. In the present case wife of the deceased has to lead her life alone as she has lost her husband. She has lost love and affection of her husband. Deceased was also only earning member of the family. Now she is depending on her children as well as she has to do the labour work. The object behind the provision 357A is that the victim or the legal representative of the victim are not forgotten in the criminal justice system. This is a fit case wherein recommendation can be made for the compensation. Deceased lost his life due to the act of the accused and due to the death of the deceased, PW11 Sunita Ramesh Pawar, wife of deceased, has to suffer life long and therefore this Court recommend that Secretary DLSA shall put up the case before the committee for assessing the compensation.
55. In the result, I proceed to pass following order. O R D E R
1. Accused Sunilkumar Sriniwas Kutty @ Kalya is hereby convicted under Section 235(2) of Code of Criminal Procedure of the offence punishable under Section 304(I) of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for Ten Years and to pay fine of Rs.5,000 / (Rs.Five Thousand Only), in default of payment of fine, accused to suffer further rigorous imprisonment for One Year. :41: Sessions Case No.872/2016
2. Accused is in Judicial Custody. He is entitled for set off under section 428 of Code of Criminal Procedure.
3. Muddemal property i.e. clothes of the deceased and accused and Article1 Wooden Bamboo and any marked or unmarked articles, if any, be destroyed after appeal period is over and after obtaining the report from Hon'ble High Court regarding the disposal of the appeal, in case, if appeal is filed.
4. The copy of the judgment be forwarded to Secretary DLSA to put up the claim of compensation before the committee.
6. Copy of this judgment be given to accused free of cost. (Dictated and pronounced in open court) URMILA Digitally signed by URMILA SACHIN SACHIN JOSHI JOSHI PHALKE Date: 2022.02.09 PHALKE 14:09:09 +0530 Dated: 02/02/2022 (Urmila S. Joshi Phalke) Sessions Judge, City Civil & Sessions Court Gr. Bombay Dictated on : 02/02/2022 Transcribed on : 08/02/2022 Signed by HHJ on : 08/02/2022 :42: Sessions Case No.872/2016 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGEMENT/ORDER” UPLOAD DATE TIME NAME OF STENOGRAPHER 09/02/2022
3.00 P.M. B.R.HATEKAR (S.G.) Name of the Judge HH THE SESSIONS JUDGE URMILA S.JOSHI-PHALKE (CR No.19) Date of Pronouncement of Judgment/Order. 02/02/2022 Judgment/order signed by P.O on 08/02/2022 Judgment/order uploaded on 09/02/2022
----------------------------------------------------------------------------------------------------