P. S. BRAHME, J. - (1.) HEARD Shri. Bapat, Advocate for the appellant and Shri. Fulzele, Additional Public Prosecutor for the Respondent-State.
(2.) IN regard to the incident which took place on13-8-1994 wherein appellant's real brother Rambhau Rekhate was done to death, the learned Additional Sessions Judge, Achalpur, in Sessions Case No. 79 of 1994, by his judgment and order dated-30-9-1999, convicted the appellant for the offence under Section302 of INdian Penal Code and sentenced him to imprisonment for life and to pay fine of Rs. 1,000/- and in default of payment of fine, the appellant was to undergo further Rigorous Imprisonment for two years. The appellant has challenged the said judgment in this appeal. As per the prosecution case, in the morning of 13-8-1994 when deceased Rambhau was taking his food, the appellant, who was occupying other half of the house, started giving abuses to him for the reason that the wooden plank used as partition for separating their respective shares has been shifted by the deceased. The deceased tried to pacify the appellant saying that there were guests at his house and that he shall set the partition right soon after the guests leave. As the appellant did not refrain himself from giving abuses, Sumanbai (P. W.1) wife of the deceased Rambhau sent for her son Madhukar (P. W.10 ). Deceased Rambhau, after finishing his meals, left the house saying that he shall get the betel leaf roll for himself. When Rambhau was going by the road and was passing by the house of the appellant, the appellant armed with a spear suddenly accosted him and struck him in the chest on the left side, causing bleeding injuries. Rambhau raised shouts and fell down. Madhukar and Nandkishor, the sons of the deceased, who were in the house, ran out to find their father Rambhau lying in a road side gutter, with his face down and having sustained bleeding injuries in the chest. The witness - Dhanraj and Virendra, who were standing nearby saw Rambhau lying in the pool of blood and the accused/appellant standing nearby with a spear in his hand. Madhukar with the help of Ravindra and some others rushed Rambhau to hospital at Anjangaon, sending Nandkishor to police station for giving information. The Medical Officer at the hospital at Anjangaon, informed the police, examined the victim and gave first aid and referred him to hospital at Amravati for further treatment. On information from Nandkishor, API Todse, deputed PSI Sharma for the spot panchanama and himself went to the hospital to see the patient. Mr. Todse, on his arrival at the hospital, on being satisfied that Rambhau was conscious and was able to give his statement, recorded the statement in the presence of Dr. Kokate and witness Mustafa Khan. After Rambhau was admitted in the hospital at Amravati, the Police Officer on duty arranged for recording his dying declaration by Special Judicial Magistrate Mr. Kende. The injured Rambhau did not respond to the Medical treatment given to him and succumbed to the injuries he had suffered. In the meantime, PSI Sharma, after having visited the place of occurrence, made spot panchanama and having found mud mixed with blood and a pair of sleepers lying at the spot, seized them under seizure memo (Exh. 30 ). The accused/appellant was arrested under arrest panchanama (Exh. 24) on the same day in the evening and at his instance discovered blood stained spear and seized the same under Seizure memo (Exh. 31) from inside his house. On the death of Rambhau, the police in the hospital at Amravti, made inquest panchanama (Exh. 58) and arranged for post mortem examination, which was conducted by Medical Officer Dr. Firoz Khan (P.W.2) who prepared post mortem report (Exh. 27 ). Having registered a case of accidental death, the police on duty at Amravati forwarded the papers to the Investigating Officer, Anjangaon. PSI Sharma collected the injury certificate from the Medical Officer at Anjangaon and sent the spear (Article No. 1) to Medical Officer Dr. Kokate (P.W.8), who had examined the deceased Rambhau when he was brought to Primary Health Centre, Anjangaon and issued injury certificate (Exh. 48), for his opinion whether the injuries found on the person of Rambhau could be caused by the spear. Accordingly, Dr. Kokate, on16-8-1994, examined the spear and found that the injuries suffered by the deceased could be caused by the spear (Article No. 1) and he gave certificate (Exh. 53) accordingly. During the course of investigation, the seizure of clothes of the deceased and accused were made. All the articles and samples seized and collected during the investigation were sent to the Chemical Analyser at Nagpur for analysis and report. After investigation was over, the case was committed to the Court of Sessions.
(3.) THE appellant pleaded not guilty to the charge and claimed to be tried. THE prosecution examined in all 14 witnesses including Sumanbai (P. W.1), Dr. Firoz Khan (P.W.2), who conducted the autopsy on the dead body of Rambhau and stated in the post mortem report (Exh. 27) that the probable cause of death was haemorrhagic shock due to penetrating injuries with stomach and liver damage; Dhanraj Bundele (P.W.3), Prakash Awankar (P.W.6), Ravindra Awankar (P.W.7) as alleged witnesses to the occurrence of incident, Girdhar Bhong (P.W.4), Mr. Kende (P.W.5) Special Judicial Magistrate, who recorded dying declaration (Exh. 41), Dr. Kokate (P.W.8), Mustafa Khan (P.W.9) in whose presence API Todse (P. W.12) recorded the statement of Rambhau, Madhukar (P. W.10) and Nandkishor (P. W.11), PSI Sharma (P. W.13) and Medical Officer Dr. Pathak (P. W.14), who examined the deceased Rambhau before and after witness Kende, Special Judicial Magistrate, recorded the dying declaration. He issued certificate (Exh. 80) that the patient was in a state of giving statement. He also issued certificate (Exh. 81) after the dying declaration of Rambhau was recorded and he certified that the patient was fully conscious while giving the statement. Accepting the evidence of witnesses including medical evidence as also the opinion given by the doctor as to the cause of death, the learned Judge found that the victim Rambhau died homicidal death as a result of injuries sustained when he was assaulted with the spear (Article No. 1) by the appellant. THE learned trial Court Judge found both the statements of deceased Rambhau truthful declaring that he sustained injuries as a result of attack by the appellant with a spear. THE trial Court also found the circumstantial evidence of finding human blood on the spear, on the cloth of the appellant incriminating in nature as also recovery of the spear (Article No. 1) at the instance of the appellant. THE trial Court found the appellant guilty of committing murder of Rambhau and accordingly the appellant came to be convicted and sentenced as stated earlier. Hence this appeal. Mr. Bapat, learned counsel for the appellant took us through the evidence of witnesses and the judgment of the trial Court. He submitted that though the trial Court based its findings on the dying declaration, the fact showing the existence of fit state of mind and the body of the deceased, enabling him to give such statement, is not at all stated much less proved by the prosecution. That mere issuance of certificate in that regard by the Medical Officer at the time of recording the dying declaration is not sufficient. The trial Court has failed to appreciate the prosecution case which is entirely based on circumstantial evidence. The evidence against the accused is neither clear nor reliable nor the motive for committing the murderous assault on the victim is sufficiently proved. It is contended that there is glaring disparity between the medical evidence and the injuries suffered by the victim and also the factum of injuries caused by the spear (Article No. 1 ). He pointed out the evidence of Dr. Firoz Khan (P.W.2) wherein he has stated that the injuries described at Sr. Nos. 1 and 3 in column No. 7 might have been caused by weapons of different sizes because of different length of the injuries. As against that the prosecution case is that all the injuries were caused by spear (Article No. 1 ). It is, therefore, submitted that this disparity is so glaring that it makes the prosecution case of assault on the victim by the appellant with the spear (Article No. 1), inflicting all the injuries, doubtful. The learned counsel also submitted that it is a case of single blow and as such conviction of the appellant for the offence under Section302 of Indian Penal Code was not proper and justified. He submitted that in the facts and circumstances of the case, the case is covered under Exception (4) to Section300 of Indian Penal Code for which punishment is provided under Section304 of Indian Penal Code.;