Baliram Hausaji Ingole Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2016)

Baliram Hausaji Ingole Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2016)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 158 OF 2013

Baliram S/o Hausaji Ingole,
Age : 67 years, Occu.: Labour,
R/o. Pardi (Bagal), Tq. Basmat,
Dist. Hingoli

APPELLANT

(Ori. Accused No.1)

VERSUS

The State of Maharashtra
Through Police Station Kurunda,
Tq. Basmat, Dist. Hingoli (M.S.)

RESPONDENT

AND

CRIMINAL APPEAL NO. 205 OF 2013

Prakash s/o Baliram Ingole,
Age : 34 years, Occ.: Labour,
R/o.: Pardi (Bagal), Tq. Basmat,
Dist. HingoliAPPELLANT
(Ori. Accused No.2)

VERSUS

The State of Maharashtra,
Through Police Station,
Kurunda, Tq. Basmat,
Dist. Hingoli (M.S.)

RESPONDENT

Mr. Vikram R. Dhorde, Advocate for the appellant
in both the Criminal Appeals
Mr. D.R. Kale, A.P.P. for respondent/State
in both the Criminal Appeals

CORAM :S.S. SHINDE AND

SANGITRAO S. PATIL, JJ.

 Reserved on : 24th AUGUST, 2016
 Pronounced on : 15th SEPTEMBER, 2016

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JUDGMENT (PER : SANGITRAO S. PATIL, J.):

Appeal No.158 of 2013 has been preferred by
original accused no.1 - Baliram Hausaji Ingole while
Appeal No.205 of 2013 has been preferred by accused no.2
– Prakash Baliram Ingole, challenging their conviction
and sentences passed against them by the learned
Additional Sessions Judge, Basmat District-Hingoli on
14th March, 2013 in Sessions Trial No.4 of 2012. Since
both these appeals have arisen out of the same criminal
case, they are being disposed of by this common
judgment.

2.For the sake of convenience, the appellants are
herein-after referred to by their original nomenclature
i.e. accused no.1 and accused no.2. There were two more
accused persons who have been acquitted by the trial
Court. They also are referred to by their original
nomenclature i.e. accused no.3 and accused no.4,
wherever, their reference would be necessary.

3.Accused No. 2 and accused No. 3 are the sons,

while accused No. 4 is the wife of accused No. 1. The
deceased Kishan Tukaram Ingole was the husband of the

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informant namely Radhabai. The house of the informant

is to the East of the house of the accused, situate at
village Pardi (Bk.), Taluka Basmat, District Hingoli.
It is facing towards West. Thus, the accused are the
neighbours of the informant.

4.The case of the respondent (prosecution), in
brief, is that on 12th September, 2011 at about 8.00

p.m., the deceased Kishan, aged about 75 years, was
lying on the verandah (osri) that was in front of his
house. The informant was inside the house. At that
time, accused No. 1 came in front of the house of the
informant and started hurling abuses on the say that
the waste water from the iron-sheet roof of the house of
the informant was falling in his house. Then accused No.
2 also came there armed with an iron bar. He gave blows
of iron bar on the head, near both the ears, on the
right hand and legs of the deceased Kishan. The deceased
Kishan sustained serious injuries. His right hand got
fractured. Accused Nos. 3 and 4 also hurled abuses
against the deceased Kishan. Accused Nos. 1, 3 and 4
beat the deceased Kishan by fists and chappals. The
informed raised shouts whereon, her neighbours Janabai

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Chanduji Narwade, Kundlik Tukaram Ingole, Kavita Suresh

Bhutkar and others came there and intervened to pacify
the incident.

5.The deceased Kishan was taken to Kurunda Police
Station from where he was referred to P.H.C., Kurunda
and then was shifted to Sub-District Hospital at Basmat.
After extending preliminary treatment at Basmat, he was
referred to the Civil Hospital at Nanded. The informant
had accompanied the deceased Kishan. She lodged the
First Information Report (“the report”, for short) in
respect of the incident in Police Station, Kurunda on
15th September, 2011 at about 7.10 p.m. On the basis of
that report, Crime No. 68 of 2011 came to be registered
against accused Nos. 1 to 4 for the offences punishable
under sections 325, 326, 323, 504 read with section 34
of the Indian Penal Code (for short, “I.P.C.”).

6.The investigation followed. The spot panchanama
came to be prepared. The clothes of the deceased Kishan
came to be seized. Accused Nos. 2 and 3 came to be
arrested on 16th September, 2011, while accused Nos. 1
and 4 on 17th September, 2011. An iron rod came to be

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seized from accused No. 2 under a panchanama on 16th
September, 2011. The statements of the witnesses were
recorded.

7.The injured Kishan expired during treatment in
the Government Hospital at Nanded on 22nd September,
2011. The postmortem of his body was conducted on the
same day between 12.30 p.m. and 1.30 p.m. The Autopsy
Surgeon found six external and corresponding internal
injuries on the body of the deceased Kishan. He opined
that Kishan died due to head injury associated with
blunt trauma to chest. He sent viscera of the deceased
Kishan for chemical analysis. No poison was detected
therein.

8.After the death of Kishan, the offence

punishable under section 302 of the I.P. C. came to be
added in the above numbered crime. The inquest of the
deceased Kishan came to be prepared. The statements of
the witnesses were recorded. The blood stained clothes
of the deceased Kishan and his blood samples collected

from the Autopsy Surgeon were sent for chemical
analysis.

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9.After completion of the investigation, accused
Nos. 1 to 4 came to be chargesheeted in the Court of
Judicial Magistrate First Class (3rdCourt) at
Basmatnagar.

10.Since the offence punishable under section 302
of the I.P.C. was exclusively triable by the Court of
Session, the case was committed to the Sessions Court at
Basmatnagar.

11.The learned Additional Sessions Judge, Basmat
framed charges against accused Nos. 1 to 4 vide Exh-17
for the offences punishable under sections 302, 326,
325, 323, 448 and 504 read with section 34 of the I.P.
C. and explained the contents thereof to them in
vernacular to which they pleaded not guilty and claimed
to be tried. Their defence is that of total denial and
false implication on account of previous dispute.

12.To establish guilt of the accused, the

prosecution examined in all ten witnesses and produced
certain documentary evidence. After evaluating the said

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evidence, the learned Additional Sessions Judge found
that no offence was proved against accused Nos. 3 and 4.
Therefore, he acquitted them of all the offences. The
learned Judge found accused No. 2 guilty of the offences
punishable under section 302 and 448 of the I.P. Code.
He, therefore, convicted him for the said offences and
sentenced him to undergo imprisonment for life and to
pay a fine of Rs. 3000/-, in default to suffer rigorous
imprisonment for six months for committing the offence
punishable under section 302 of the I.P.C. and rigorous
imprisonment for six months and a fine of Rs. 500/-, in
default to suffer rigorous imprisonment for one month in
respect of the offence punishable under section 448 of
the I.P.C. The learned Judge convicted accused No. 1 for
the offences punishable under sections 323 and 448 of

the I.P.C. and sentenced him to suffer simple
imprisonment for six months and to pay a fine of Rs.
500/-, on each count, in default to suffer simple
imprisonment for one month, on each count. He directed
that the substantive sentences shall run concurrently.
These convictions and sentences are under challenge in

these appeals filed by accused Nos. 1 and 2,
respectively.

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13.The learned counsel for the appellants submits
that there is delay of three days in filing the FIR,
which has not been satisfactorily explained by the
respondent. He further submits that there is delay in
recording the statements of the alleged eye witnesses
which also has not been explained. In the circumstances,
according to him, the oral evidence of the informant and
that of the alleged eye witnesses cannot be relied on.
He submits that the spot of the incident is situate in a
thickly populated area. A number of independent
witnesses must be available. No independent witness has
been examined to corroborate the version of the
informant who is an interested witness. He submits that
there is concoction, embellishment and improvement made
by the witnesses of the respondent. The history of
assault has not been disclosed from the medical papers
of the deceased Kishan. He further submits that the
alleged motive behind the incident itself has not been
established. From the evidence of the witnesses, it is
clear that there were no rains prior to the incident and
therefore, there was no question of falling of water
from the roof of the house of the informant into the

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house of the accused. As such, according to him, the
very reason for occurrence of the incident was not in
existence. He further submits that there is no

circumstantial evidence also to connect the accused with
the incident in question. The learned Trial Judge did
not believe the evidence of the informant, Kavita (PW2)
and Janabai (PW3) to hold accused Nos. 3 and 4 guilty of
any offence. Therefore, on the basis of the evidence of
the same witnesses, the learned Trial Judge was not
justified in convicting accused Nos. 1 and 2. He prays
that the appeals may be allowed and accused Nos. 1 and 2
may be acquitted of the above mentioned offences.

14.In the alternative, the learned counsel for the
appellants submits that the deceased Kishan was aged
about 75 years, he survived for about ten days after the
incident, there was no premeditation on the part of
accused No. 2 to commit murder of the deceased Kishan,
he had not taken any dangerous weapon with him, the
incident seems to have taken place on the spur of the
moment and the cause of the incident appears to be very
trifle. In the circumstances, the case against accused
No. 2 would fall within the ambit of section 299 and not

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section 300 of the I.P. Code. Therefore, at the most,

he can be convicted for the offence of committing
culpable homicide not amounting to murder, punishable
under section 304 Part-II of the I.P.C.

15.As against this, the learned A.P.P. submits

that the informant was with the deceased Kishan in the
hospital for ensuring his proper care and medical
treatment. Her priority was to take care of the
deceased Kishan in the hospital after the incident.
Therefore, she could not lodge the report immediately
after the incident. She has properly explained the delay
in lodging the report. He submits that there was no
reason for the informant to lodge false report against
the accused. The same was the position of the ocular
witnesses Kavita (PW2) and Janabai (PW3). Though they
are related to the deceased Kishan, they cannot be said
to have deliberately involved accused Nos. 1 and 2 in

the incident of murder of Kishan.He submits that

accused Nos. 3 and 4 came to be acquitted because the
evidence against them was very vague and general.

Accused Nos. 1 and 2 cannot reap any benefit of
acquittal of accused Nos. 3 and 4. According to him,

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there is specific positive and dependable evidence to
prove guilt of accused Nos. 1 and 2 for the above
mentioned offences. The medical evidence supports the
case of the respondent. He submits that giving a blow

of iron bar on the vital part of the body of the
deceased Kishan i.e. head, by accused No. 2 itself would
be sufficient to indicate his intention to cause death
of Kishan. Therefore, he has rightly been convicted for
the offence punishable under section 302 of the I.P.C.
According to him, the learned Trial Judge has rightly
convicted accused Nos. 1 and 2 for the above mentioned
offences. He supports the impugned judgment and order
passed against accused Nos. 1 and 2 and prays that the
appeals may be dismissed.

16.At the threshold, we would like to mention that

the respondent has not challenged the acquittal of
accused Nos. 3 and 4 of the offences alleged against
them. Moreover, the acquittal of accused No. 1 of the
offence punishable under section 302 of the I.P.C. also
has not been challenged by the respondent. The impugned
judgment to the extent of the above referred acquittal
of accused Nos. 1, 3 and 4 has got finality. Therefore,

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we would scrutinize the evidence in order to see whether

accused Nos. 1 and 2 have been rightly convicted or
otherwise for the offences referred to above.

17.The respondent has relied on the ocular
evidence of the informant – Radhabai i.e. the widow of

the deceased Kishan (Exh-47), her granddaughter Kavita
(PW2) (Exh-51) and Janabai (PW3) (Exh-52), who is the
sister of the deceased Kishan. The informant deposes
that on the day of the incident at about 8.00 p.m., the
deceased Kishan was lying on the verandah of his house.
Kavita (PW2) was playing in front of the house and the
informant herself was inside the house. Accused No. 1
came to the house of the informant and started abusing
the deceased Kishan on the ground that the roof water of
the house of the informant was falling into his house.
Then accused No. 2 also came there armed with an iron
bar (Art. 4). Accused No. 2 gave blows of iron bar
(Art. 4) on the head, behind the ear, both the hands and
chest of the deceased Kishan. The deceased Kishan
sustained bleeding injuries. His hand was fractured.
Accused No. 1 assaulted the deceased Kishan by fists and
kicks. The informant states that she raised shouts. At

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that time, Janabai (PW3), one Kundlik, Ambaji and Kavita
(PW2) came there and intervened. The deceased Kishan
had sustained serious injuries. He was taken to Kurunda
Government Hospital from where he was shifted to Sub-
District Hospital at Basmat and then to the Government
Hospital at Nanded, for treatment. The version of the
informant in respect of the overt acts committed by
accused nos. 1 and 2 has been materially corroborated by
the contents of the FIR (Exh-48) lodged by her in Police
Station, Kurunda on 15th September, 2011 at about 7.10
p.m. Her version is further substantially supported by
Kavita (PW2) and Janabai (PW3). The learned Trial Judge
believed the evidence of these witnesses, which,
according to him, was consistent and reliable.

18.The learned counsel for accused Nos. 1 and 2

assailed the ocular evidence on the ground that though
the spot of the incident is situate in a thickly
populated area and the other independent witnesses had
the occasion to witness the incident, none of such
witnesses has been examined. He further submits that

there is delay in lodging the report as well as
recording the statements of Kavita (PW2) and Janabai

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(PW3) which has not been satisfactorily explained.
Therefore, relying on the judgments in the cases of
State of Andhra Pradesh Vs. M. Madhusudhan Rao (2008) 15
S.C.C. 582 and Balakrushna Swain V. The State of Orissa
AIR 1971 S.C. 804, he submits that the evidence of the
ocular witnesses, who are interested witnesses, in the
absence of independent corroboration thereto, cannot be
believed, more particularly when the delay in recording
the report as well as recording the statements of these
witnesses has not been explained. According to him,
there is every possibility of concoction, embellishment,
exaggeration and false implication of the accused in
this case. He submits that the learned Trial Judge did
not believe the evidence of these ocular witnesses as
against accused Nos. 3 and 4. Therefore, the learned
Trial Judge was not right in relying on the evidence of
the same witnesses for holding accused Nos. 1 and 2
guilty.

19.The incident took place on 12th September, 2011

at about 8.00 p.m. The report (Exh-48) has been lodged
in Police Station, Kurunda on 15th September, 2011 at
about 7.10 p.m. As such, there is delay of three days

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in lodging the report. Indisputably, the deceased
Kishan had sustained serious injuries and had been
admitted in the Government Hospital, Nanded as an indoor
patient for treatment. The informant explains that she
was paying attention towards medical treatment of the
deceased Kishan and therefore, she could not lodge the
report earlier in Kurunda Police Station. The
explanation given by the informant appears to be
satisfactory. It was but natural on her part to give
priority to the medical treatment of her husband instead
of leaving the hospital at Nanded and proceed to Kurunda
to lodge the FIR. The informant is an illiterate person.
In all probabilities, she must not be knowing the
importance of taking care to see that the FIR has to be
lodged in the Police Station at the earliest possible
opportunity. Even otherwise, from her evidence, in
paragraph 12 of her cross-examination, it has come on
record that the deceased Kishan was taken to Police
Station, Kurunda at about 8.30 p.m. after the incident.
At that time, she narrated the police as to who and in
what manner, assaulted the deceased Kishan. It has come

in paragraph No. 2 of the cross-examination of P.H.C.
Pandit (PW6) (Exh-61) that the informant had come to the

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Police Station at Kurunda with the deceased Kishan on

the day of the incident at 8.30 p.m. It has further come
in his cross-examination in paragraph 3 that he obtained
the information from the informant that Kishan was
injured because of beating and that a cognizable offence
had taken place. However, he did not note the said fact
in the Station Diary. This evidence of P.H.C. Pandit
(PW6) supports the version of the informant that she had
narrated the incident to him on the day of incident
itself when the deceased Kishan was taken to the Police
Station. It was the duty of P.H.C. Pandit (PW6) to
record whatever was stated by the informant to him in
respect of the occurrence of the incident. It is
obvious that he failed to perform his duty. The failure
on the part of P.H.C. Pandit (PW6) in performing his
duty of recording the FIR at the earliest point of time
after receiving the information in respect of occurrence
of the incident from the informant, cannot be used as a

device to throw suspicion on the version of the
informant on the ground of delay in lodging the report
(Exh-47).

20.The Station Diary entry (Exh-88) taken by

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P.H.C. Pandit (PW6) shows that the deceased Kishan was

produced in the Police Station in the injured condition.
He had sustained head injuries. He was not in a position
to speak. He was referred to the Sub-District Hospital
at Basmat. It was further mentioned that on his return
after taking medical treatment, further steps would be
taken. P.H.C. Pandit (PW6) states that he did not
mention in the Station Diary about the cause of the
injuries sustained by the deceased Kishan though the
informant had narrated before him the said cause. As
stated above, it was the duty of P.H.C. Pandit (PW6) to

note in the Station Diary the cause of the injuries
sustained by the deceased Kishan as narrated by the
informant. It was sheer negligence on his part to
perform his duty in this regard. However, the version of
the informant cannot be discarded by attaching doubt
thereto only because the duty of recording her FIR was
performed by P.H.C. Pandit (PW6) after three days of the
incident.

21.The injury certificate of the deceased Kishan
issued by the Medical Officer, who examined him on the
day of the incident at about 10.30 p.m. in the Sub-

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District Hospital at Basmat on receiving the reference
from the Police Station Officer (P.S.O.), Kurunda i.e.
P.H.C. Pandit (PW6) contains the history behind the
injuries found on the person of the deceased Kishan as
assault at about 8.00 p.m. on 12th September, 2011. This
fact supports the case of the prosecution that the
deceased Kishan had sustained injuries due to the
physical violence and not otherwise.

22.There was no reason for the informant to spare

the real culprits and falsely involve the
appellants/accused in the incident in question. The
evidence of the informant is very natural and probable.

It has come in paragraph 8 of her cross-examination that
there was no previous enmity between her family and that
of the appellants. If that be so, the possibility of
false implication of the appellants in the incident in
question would get ruled out. There is no material
omission or contradiction in the evidence of the
informant which would indicate that she had the tendency

of speaking false and inclination to involve the
appellants falsely in the incident in question.
Consequently, the delay in recording the FIR (Exh-48)

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cannot be attached with any importance so as to brush

aside her evidence. In the facts and circumstances of
the present case, the decision cited by the learned
counsel for the appellants in the case of Andhra
Pradesh V. Madhusudan Rao (supra), wherein there was
delay of one month and four days in lodging the FIR by
the informant against her husband and inlaws, more
particularly when she decided to lodge the FIR as no-one
from the family of the accused persons had gone to her
to inquire about her welfare, was held to be fatal to
the prosecution, would not be of any help to present
accused No. 1 and 2 in the case at hand to discard the
evidence of the informant on the ground that there was
delay of three days in lodging the FIR (Exh-48).

23.In so far as the roles of accused Nos. 1 and 2
are concerned, the evidence of Kavita (PW2) and Janabai
(PW3) is quite consistent. It fully corroborates the
version of the informant. Kavita (PW2) being grand-
daughter of the deceased Kishan, her presence at the
time of incident was quite natural. Janabai (PW3)
states that her house is at the distance of fifteen feet
from the house of the deceased Kishan. As such, it was

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not difficult for her to see what was happening in the
front portion of the house of the deceased Kishan and to
witness the incident. No omission and contradiction has
been elicited in the cross-examination of Kavita (PW2)
and Janabai (PW3) in respect of the roles played by
accused Nos. 1 and 2.

24.The learned counsel for accused Nos. 1 and 2

submits that there has been delay in recording the
statements of Kavita (PW2) and Janabai (PW3), which has
not been explained by the prosecution. Moreover, both
of them are close relatives of the deceased Kishan.
Therefore, in the absence of any independent evidence,

it will be risky to rely on the evidence of these
witnesses. In support of this contention, he relies on
the judgment in the case of Balakrushna Swain (supra),
wherein there was delay of 10 to 11 days in recording
the statements of the witnesses though they could have
been examined prior to that.

25.As stated above, there were latches on the part

of P.H.C. Pandit (PW6) in recording the FIR of the
informant. Had he recorded the FIR of the informant on
the day of the incident itself when the informant had

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narrated him about the incident in Police Station,

Kurunda, at about 8.30 p.m., the investigation would
have been set in motion and the statements of the
witnesses would have been recorded at the most on the
next day of the incident. When P.H.C. Pandit (PW6) did
not record the FIR of the informant, did not register
the crime though he realised that the cognizable offence
had taken place, the investigation did not commence and
consequently, the statements of Kavita (PW2) and Janabai
(PW3) could not be recorded until the crime was
registered after receiving the FIR (Exh-48) from the
informant on 15th September, 2011 at 7.10 p.m. There is
specific reference about presence of Kavita (PW2) and
Janabai (PW3) in the evidence of the informant as the
persons who had the occasion to witness the incident.
In the circumstances, the delay on the part of the
Investigating Officer in recording the statements of
these witnesses would not be fatal to the prosecution
case, more particularly when nothing is brought in the
evidence of these witnesses to show any exaggeration or
embellishment on their part.

The learned counsel for accused Nos. 1 and 2

26.

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submits that the informant as well as Kavita (PW2) and
Janabai (PW3) are the close relations of the deceased
Kishan. He pointed out the evidence on record showing

that there were houses of other persons and a road
frequently used by many persons near the spot of
incident. Some other persons also had come to the spot
of incident after hearing the commotions. He submits
that none of the independent witnesses who were present
at or near the spot of incident when the incident took
place, has been examined by the prosecution. Therefore,
the evidence of these witnesses – relatives of the

deceased Kishan would not be sufficient to connect
accused Nos. 1 and 2 with the incident in question.

27.It is true that some persons other than the
present ocular witnesses also could have been examined
by the prosecution. However, it is common knowledge
that now-a-days, the tendency has grown up amongst the
citizens to avoid to appear as witnesses in such
incidents. Coming forward as witnesses to state the
factual position is generally construed by the accused
persons to mean that such witnesses are their rivals.
The witnesses, therefore, are subjected to the wrath of

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the accused and have to face the difficulties created by
the accused persons with a view to pressurize them so
that they should not stand as witnesses on behalf of the
victim or his/her family members. In the circumstances,

it is rather difficult to get independent witnesses
though available. It is well settled that only because
the witnesses happen to be the relatives of the victim,
their evidence cannot be discarded. However, the rule
of caution demands that their evidence should be
scrutinized carefully, cautiously and thoroughly. As
stated above, there is no material omission or
contradiction in the evidence of Kavita (PW2) or Janabai
(PW3). Therefore, only because they are relatives of the
deceased Kishan, their evidence cannot be discarded. We

find both of these witnesses trustworthy. Their
evidence creates great confidence.

28.The deceased Kishan was examined by the Medical
Officer, Sub-District Hospital, Basmat on the day of the
incident i.e. on 12th September, 2011 at 10.30 p.m. He
noted contused abrasion over right mastoid region behind

right ear pinna having size 1” x 1” and a contused
lacerated wound over left mastoid region, having size 1”

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x 1/2”, which was skindeep. He noted bleeding from left

ear of the deceased Kishan. He accordingly issued injury
certificate (Exh-99) wherein it was mentioned that the
injuries found on the body of the deceased Kishan were
caused by hard and blunt object within six hours of his
examination. Thereafter, the deceased Kishan was
admitted in the Government Hospital at Nanded for
treatment. He succumbed to the injuries sustained by
him in the incident on 21st September, 2011 at about 9.10
p.m. The inquest panchanama (Exh-56) of the body of the
deceased Kishan came to be prepared on 22nd September,
2011 between 11.15 a.m. and 12.00 noon. The injuries
were noted on the head and both of his hands.

29.Dr. Take (PW4) (Exh-53) conducted the

postmortem of the body of the deceased Kishan on 22nd
September, 2011 between 12.30 p.m. and 1.30 p.m. and

found the following external injuries.

(i)Healed injury with fallen scab present
on right frontal prominence, size 2 cm X 1 cm
pale scar.

(ii)Lacerated wound with blackish scab
present on left mastoid region, size 2 cm X 2
cm. X bone deep.

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(iii)Abraded contusion present on right
clavicular region, size 4 cm X 3 cm. Brownish.

(iv)Contusion present on right wrist and
hand posterior aspect, size 12 cm X 10 cm.
Brownish.

(v)Lacerated wound with fallen scab
present on right subcostal margin, in mid
clavicular line, size 3cm X 2 cms.

(vi) Contusion with swelling present on
left foot and ankle, size 12 cm. X 11 cms
Brownish.

30.Dr. Take (PW4) further found the following

internal injuries sustained by the deceased Kishan.

(i) Under the scalp heamatoma present on
right temporal region 7 cms X 7 cms and left
mastoid region, size 3 X 2 cms. Brownish.

(ii)Skull-Intact, no fracture to the
vault. Base fracture horizontally and mid-
cranial fossa on right side.

(iii)Brain : Meninges, intact, congested,
sub-arachnoid hemorrhage present all over brain
surface, red, CSF-redish- brain congested,
edematous, compression effect present on right
side.

(iv)Contusion- with blood and blood clot
present in left cerebral parenchyma about 100
gms.

(v)4th and 6th rib fractured on left side
anteriorly. Left lung was intact, congested,
edimatous, contusion present on anterior
lateral aspect of both lobes. Other organs were
congested.

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26

31.Dr. Take (PW4) deposes that the injuries found
on the body of the deceased Kishan were ante-mortem and
were caused within 7 to 10 days prior to the postmortem.
In his opinion, Kishan died because of head injury
associated with blunt trauma to chest. He prepared the
memorandum of postmortem (Exh-54). He preserved the
viscera of the deceased Kishan and sent it for chemical
analysis. The report thereof showed absence of poison.
He further states that external injury Nos. 1 and 2,
referred to above, correspond to the injuries caused to
ribs and the lungs of the deceased Kishan. He opined
that the external injuries found on the body of the
deceased Kishan were possible by forceful blows of iron
bar (Art. 4) and were sufficient in the ordinary course
to cause his death. The evidence of Dr. Take (PW4)
fully corroborates the evidence of the ocular witnesses
on the point of the cause of the injuries sustained by
the deceased Kishan.

32.It has come in paragraph 7 of the cross-
examination of Dr. Take (PW4) that the doctor, who
initially treated the deceased Kishan, would be in a

27 criapl158-2013+

position to depose whether external injury No. 1 found

on the right frontal prominence of the deceased Kishan,
was possible by the blow of iron bar (Art. 4). On the
strength of this statement, the learned counsel for
accused Nos. 1 and 2 submits that in absence of the
evidence of the doctor who treated the deceased Kishan
initially, it cannot be said that the injury sustained
to the head of the deceased Kishan was possible by the
blow of iron bar (Art. 4). We are not inclined to
accept this contention. It is well settled that when
there is cogent, consistent and dependable ocular
evidence about the cause of the injuries sustained by
the victim, the medical evidence, which is an opinion
evidence, would get secondary status. In the present
case, there is consistent, cogent and dependable
evidence of the ocular witnesses that accused No.2
inflicted a blow of iron bar on the head of the deceased
Kishan. Therefore, even if the doctor, who initially
examined the deceased Kishan, is not examined as a
witness, the evidence of Dr. Take (PW4) that the
injuries found on the head of the deceased Kishan could

be caused by forceful blow of iron bar (Art. 4) cannot
be disbelieved.

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28

33.The evidence of the ocular witnesses is

corroborated by the medical evidence. We do not find
any reason to disbelieve the said evidence which
clinchingly established that accused No. 2 gave blows of
iron bar on the person of the deceased Kishan and caused
him serious injuries to which he ultimately succumbed on
21st September, 2011. This evidence further proves
beyond doubt that accused No. 1 gave fist blows to the
deceased Kishan.

34.It has come in the evidence of Gangadhar (PW7)
(Exh-62), who happens to be a panch to the spot
panchanama (Exh-63), that the incident took place on the
verandah which is in the front portion of the two rooms
of the house of the deceased Kishan. The rough sketch
of the house of the deceased Kishan has been given at
page 4 of the panchanama (Exh-63). It shows that the
verandah is a part and parcel of the house of the
deceased Kishan. There are stairs to the western side of
the verandah through which one can step up for going
into the house of the deceased Kishan. The incident took
place on the said verandah which is a part and parcel of

criapl158-2013+

29

the dwelling house of the deceased Kishan.

Consequently, the provisions of Section 448 of the
I.P.C. would get attracted to the facts of the present
case.

35.The evidence of the other witnesses is of
formal nature. We find the evidence of the informant,
Kavita (PW2), Janabai (PW3) and Dr. Take (PW4) to be the
material evidence to establish the guilt of accused Nos.
1 and 2 for the above mentioned offences.

36.It is the contention of the learned counsel for
accused Nos. 1 and 2 is that on the basis of the same
evidence, accused Nos. 3 and 4 have been acquitted by
the learned Trial Judge and therefore, the said evidence
cannot be used to convict accused Nos. 1 and 2. We are
not inclined to accept this contention. The evidence of
these witnesses against accused Nos. 3 and 4 is very
vague and general. None of the witnesses states as to
on what part of the body of the deceased Kishan and by
what means, accused Nos.3 and 4 assaulted him. Because
of this vague and general evidence, accused Nos.3 and 4

have been given the benefit of the doubt. It is not

criapl158-2013+

30

that the learned Trial Judge characterized the evidence

of the ocular witnesses as false in respect of accused
Nos. 3 and 4. In the circumstances, accused Nos. 1 and
2 cannot derive any benefit from the fact that accused
Nos. 3 and 4 have been acquitted by the learned Trial
Judge, particularly when there is positive, a clinching
and dependable evidence of the ocular witnesses about
the specific roles played by them in the commission of
the above mentioned offences.

37.The learned counsel for accused Nos. 1 and 2

submits that the incident is said to have taken place
because accused No. 1 expressed his grudge against the
deceased Kishan on the count that the roof water from
the house of the deceased Kishan was falling into his
(accused No. 1's) house. However, the informant
specifically states in her cross-examination that on the
day of the incident, there were no rains. According to
him, the very cause for occurrence of the incident,

which would be the motive behind the incident, was non-
existent. Hence, the case of the respondent cannot be
believed.

criapl158-2013+

31

38.It is true that there were no rains prior to

the incident. However, the possibility cannot be ruled
out that the roof of the house of the deceased Kishan

must be in such a condition that in the event of
raining, the rain water would fall in the house of
accused No. 1. Therefore, accused No.1 must have gone
to the deceased Kishan to express his grievance.
Albeit, it is well settled that when there is direct
evidence on the occurrence of the incident, the motive
would lose its importance. In the present case, there
is direct evidence of the ocular witnesses to show the
involvement of accused Nos. 1 and 2 in the incident in
question. Therefore, the contention of the learned
counsel for accused Nos. 1 and 2 that the prosecution
failed to establish the motive behind the incident and
therefore, the case of the prosecution is liable to be
discarded, cannot be accepted.

39.As stated above, there is sufficient, cogent,

consistent and dependable evidence to establish that
accused No. 1 gave fist and kick blows to the deceased
Kishan by entering into the verandah of the house of the
deceased Kishan. We subscribe to the findings of the

criapl158-2013+

32

learned Trial Judge to the extent of holding accused No.
1 guilty of the offences punishable under sections 448
and 323 of the I.P.C.

40.The learned counsel for accused No. 2 submits
that the deceased Kishan was aged about 75 years at the
time of the incident. The incident took place without
any premeditation to kill the deceased Kishan. No
deadly weapon was used by accused No. 2 at the time of
incident. The deceased Kishan survived for about ten
days after the incident. There was no intention on the
part of accused No. 2 to cause death of Kishan. Under
the circumstances, he submits that accused No. 2 cannot
be said to have committed murder of the deceased Kishan,
made punishable under section 302 of the I.P.C. He
submits that the case would fall within the II part of
section 304 of the I.P.C. i.e. culpable homicide not
amounting to murder. He, therefore, prays that the
conviction of accused No. 2 for the offence punishable
under section 302 of the I.P.C. may be converted into
the conviction for the offence punishable under section

304 Part-II of the I.P.C. In support of this
contention, he relied on the judgment in the cases of

33 criapl158-2013+

Suresh s/o Ghanshyamrao Chopade Vs. The State of

Maharashtra and another 2014 ALL MR (Cri.) 3894 and an
unreported judgment dated 10th August, 2016, delivered
by the Bombay High Court, Bench at Nagpur in Criminal

Appeal No. 458 of 2014 (Giridhar s/o Keshav Kohapare
Vs. The State of Maharashtra).

41.As seen from the evidence of the informant,

there were no serious disputes between the accused on
one hand and the deceased Kishan and his family on the
other, prior to the incident. There may be some dispute
on the ground of falling of roof water from the house of
the deceased Kishan into the house of the accused or on
account of allotment of the house to the deceased Kishan
under Gharkul scheme, but the nature of the said dispute

certainly was not such that accused No. 2 would have
intended to commit murder of the deceased Kishan. The

learned Trial Judge has not accepted the theory that
accused Nos. 1 and 2 participated in the commission of
the alleged offence in furtherance of their common
intention. This finding of fact recorded by the learned

Trial Judge has not been challenged by the respondent.

The said finding suggests that there was no

34 criapl158-2013+

premeditation on the part of accused No. 2 to commit
murder of the deceased Kishan. No deadly weapon was
used by him. A single blow of iron bar was given on the
head of the deceased Kishan. Accused No. 2 did not take

any undue advantage of the situation. The deceased
Kishan was aged about 75 years. He succumbed to the
injuries after about nine days of the incident while
taking medical treatment. All these facts would
indicate that accused No. 2 had no intention to cause
death of the deceased Kishan. Considering these facts
as well as the law propounded in the above referred two
judgments cited by the learned counsel for accused No.
2, we are of the view that the ingredients of the
offence of murder as defined in section 300 of the
I.P.C. are not satisfied from the facts and evidence of
the present case. Accused No. 2 cannot be attributed
with the intention of causing the death of the deceased
Kishan though he can be said to have the knowledge of
likelihood of the death of Kishan consequent upon the
blow of iron bar inflicted by him on the head of the
deceased Kishan. The case against accused No. 2,

therefore, would fall under Part-II of section 304 of
the I.P.C. and he is liable to be held guilty for the

criapl158-2013+

35

offence of culpable homicide not amounting to murder.

42.Since the incident in question took place on
the verandah which was a part and parcel of the dwelling
house of the deceased Kishan, accused No. 2 is liable to
be held guilty for the offence punishable under section
448 of the I.P.C. as well.

43.Considering the serious consequences of the

acts committed by accused No.2 i.e. the death of Kishan,
we are not inclined to extend him the benefit of

probation. In our view, it would be just and proper if
he is sentenced to suffer rigorous imprisonment for
seven years and to pay a fine of Rs. 20,000/-, in

default to suffer rigorous imprisonment for three months
for committing the offence punishable under section 304
Part-II of the I.P.C. and further rigorous imprisonment

for six months and to pay a fine of Rs. 500/-, in

default to suffer rigorous imprisonment for one month,
in respect of the offence punishable under section 448
of the I.P.C.

36 criapl158-2013+

44.It is proved beyond doubt that accused No. 1

entered into the verandah of the dwelling house of the
deceased Kishan and beat him by fists and kicks as
stated above and thereby committed the offences
punishable under sections 448 and 323 of the I.P.C.
Accused No. 1 has not been connected with the acts
committed by accused No. 2 with the aid of section 34
of the I.P.C. The learned Trial Judge has acquitted
accused No. 1 of the offence of causing death of Kishan.
This finding of fact has got finality since the
respondent has not challenged the same by filing appeal.
In our view, accused No. 1 being the father of accused
No. 2 should have effectively controlled accused No. 2
at the time of the incident and should have refrained
him from assaulting the deceased Kishan by means of an
iron bar. Since accused No. 1 did not do so, we are not
inclined to extend the benefit of probation to him.

45.Accused No. 1 was detained in connection with

the present crime from 17th September, 2011 to 1st
December, 2011 i.e. for 75 days. Considering the age of
accused No. 1 which is now 70 years and the nature of
the offences established against him, we are of the view

37 criapl158-2013+

that the ends of justice would be satisfied if he is
sentenced to suffer imprisonment for the period which he
has already undergone and ordered to pay a fine of
Rs. 500/- each for the offences punishable under
sections 323 and 448 of the I.P.C., in default to suffer
simple imprisonment for one month on each count. Out of

the amount of fine, if deposited by the accused, an
amount of Rs. 20,000/- will have to be ordered to be
paid to the widow of the deceased Kishan, namely,
Radhabai, as compensation.

46.Accused No. 2 is in jail since 16th September,
2011. He is entitled to get set-off from 16th September,

2011 till today vide section 428 of the Code of Criminal
Procedure.

47.In the above facts and circumstances of the
case, we allow the appeals partly with the following

order:-

O R D E R

(i)The appeals are partly allowed.

criapl158-2013+

38

(ii)The impugned order of conviction and sentence

of the appellant – Prakash Baliram Ingole (original
accused No. 2) for the offence punishable under section
302 of the Indian Penal Code is hereby set aside.
Instead, he is convicted for the offence punishable
under section 304 Part II of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for seven
years and to pay a fine of Rs. 20,000/- (rupees twenty
thousand), in default to suffer rigorous imprisonment
for three months.

(iii)The impugned order of conviction and sentence
of the appellant Prakash Baliram Ingole (original
accused No. 2) for the offence punishable under section
448 of the Indian Penal Code is confirmed.

(iv)The substantive sentences awarded against
appellant Prakash Baliram Ingole (original accused No.
2) shall run concurrently.

(v)The appellant Prakash Baliram Ingole shall be

given set off for the period from 16th September, 2011
till today vide Section 428 of the Code of Criminal

criapl158-2013+

39

Procedure, 1973.

(vi)The impugned order of conviction of the
appellant Baliram Hausaji Ingole (original accused No.
1), for the offences punishable under sections 323 and
448 of the Indian Penal Code is confirmed. However, the
substantive sentences of imprisonment awarded against
him vide the impugned order, for the offences punishable
under sections 323 and 448 of the Indian Penal Code, are
modified and he is ordered to suffer imprisonment for
the period which he has already undergone and to pay a
fine of Rs. 500/- (rupees five hundred) on each count,
in default to suffer simple imprisonment for one month
on each count.

(vii)The bail bonds of the appellant – Baliram

Hausaji Ingole shall stand cancelled.

(viii)Out of the amount of fine, if recovered from

the appellants, an amount of Rs. 20,000/- (rupees twenty
thousand) be paid to Smt. Radhabai widow of Kishan
Ingole, resident of Pardi (Bagal), Taluka Basmat,
District Hingoli as compensation.

criapl158-2013+

40

(ix)The amount of fine of Rs. 4500/-, deposited by
the appellants (original accused Nos. 1 and 2) before
the Trial Court on 14th March, 2013 be appropriated
towards the amount of fine due and payable from them as
ordered hereinabove.

(x)Both the appeals stand disposed of in the above

terms.

npj/criapl158-2013+