Criminal appeal against conviction and sentence for offences under IPC Sections 304, 326, etc. The High Court allowed the appeal, setting aside the conviction, noting the prosecution failed to examine witnesses to corroborate the fatal assault on the victim.
Conviction and sentence set aside; accused set at liberty forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
cr appeal 864.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
smt
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.864 OF 2013
| 1. Smt. Bamubai Keshav Babade | ) |
|---|---|
| Age 73 years, Occ : Nil, | ) |
| R/at – Dhakate Shahad Gaon, | ) |
| Near Hanuman Temple, Tal. Kalyan, | ) |
| Dist. Thane. | ) |
| 2. Shri Deepak Keshav Babade, | ) |
| Age 34 years, Occ : Nil, | ) |
| R/at – Dhakate Shahad Gaon, | ) |
| Near Hanuman Temple, Tal. Kalyan, | ) |
| Dist. Thane. Vs. |
) .. Appellants. (original accused) |
| The State of Maharashtra | ) |
| (Through Ulhasnagar Police Station | ) .. Respondent. |
| S/Shri S.M. Oak a/w Pranav Madhav Phad the appellants/applicants. |
ke i/by Sagar Joshi, for |
| Shri V.B. Konde Deshmukh, APP for the | respondent-State. |
CORAM : A. H. JOSHI, J. DATED : 15TH OCTOBER, 2013.
JUDGEMENT
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cr appeal 864.13
| PW1 | - | Smt. Nanda Bhagwan Srimangal |
|---|---|---|
| PW2 | - | Shri Raghunath Ramchandra Naikwade |
| PW3 | - | Shri Rehmat Abudulla Razzak Shaikh |
| PW4 | - | Dr. Pramod Baburao Satpute |
| PW5 | - | Shri Yogeshkumar Ramshankar Bapjpayee |
“..........However, the accused and the other two
accused hit my husband with fists and kicks. They
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also abused my husband in filthy language. The 3 accused then took my husband towards direction of Shahad all the while dragging him.................”
(Quoted from Page No. 22 of the Appeal)
“Accordingly, I conducted post-mortem on 07.02.2005 from 7.00 a.m. to 9.30 a.m. and found following external injuries.
i) Fracture – Right 2nd ribs
ii) Fracture – Left – 4th , 5th and 6th ribs at mid axillary line.
On internal examination, I found following
injuries :
i) Contusion with patch of hemorrhage about 2” x 2” at left parietal region. ii) Contusion on right upper region associated with fracture – Right 2nd ribs near sternum with hemorrhage patch about 3” x 2” under the wall.
iii) Fracture – left 4th , 5th , 6th ribs at mid axillary line with hemorrhage under the thoracic wall due to injury.
iv) Contusion over left lower thorax.
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v) Pleura – Tear left mid zone – Haemothorax. vi) Left Lung – Laceration – left mid lobe, laterally 3/4” X 1/2” X 1/4”.
All injuries were ante-mortem. Accordingly, I prepared post-mortem report. The P.M. Report now shown to me is the same. It bears my signature. Its contents are correct. It is at Ex.45. In my opinion the cause of death was hemorrhagic shock due to hemothorax due to blunt trauma to left lung on account of fracture of left ribs. It is correct that fracture as found on the deceased is possible due to assault by fist blows and being dragged for a distance thereafter.”
(Quoted from Page Nos. 28 and 29 of the Appeal).
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show as to what efforts were made by the IO to search out witnesses who probably saw actual fatal assault by blunt weapon or otherwise which could be or was grave enough to fracture ribs and even fataly damage lungs thereby to cause haemothorax and consequent haemmoragic shock. Therefore, conviction of the accused for offence u/sec. 304 of IPC comes under grave shadow of doubt and hence seriously unsustainable.
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2 issues framed by the court
Whether conviction under Section 304 IPC was reliable given the failure to examine witnesses who could testify about the actual fatal assault.
Whether the benefit of the doubt should be given to the accused due to insufficient evidence linking the evidence to the cause of death.
2 provisions across 1 enactments
Smt. Bamubai Keshav Babade
Shri Deepak Keshav Babade
The State of Maharashtra
A. H. JOSHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
