P. Sathasivam, J. - (1.) This appeal is filed by the Appellant-accused, who is in Jail, through Superintendent, Nagpur Central Prison, Nagpur under Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act against the final order and judgment dated 15.10.2004 passed by the High Court of Bombay, Nagpur Bench, Nagpur in Criminal Appeal No. 48 of 1990 whereby the High Court allowed the appeal filed by the State and set aside the order of acquittal passed by the Additional Sessions Judge, Gondia.
(2.) The prosecution case is as follows: (a) On 10.08.1986, at about 3.00 p.m., there was a quarrel between Laxmichand @ Balbutya - the accused and Gyaniram Mahajan - the deceased, who was in drunken state, at the house of the accused. The Appellant-accused asked Gyaniram to go home but he was not acceding to his request. The accused brought Gyaniram from his house on the road by lifting him but he fell down. The accused struck him with a spade on his head. As a result, Gyaniram sustained injury on his head and had become unconscious. The accused proceeded towards the house of one Police Patel. While going there, he made disclosure to some persons that he had killed Gyaniram Mahajan. One Ghanshyam, who was in the employment of Fulchand and who had heard the utterances of the accused to the above effect, informed Tejram (PW-2) who was sitting in the house of Fulchand that the Appellant-accused was telling that he had killed Gyaniram. Tejram went towards the Gram Panchayat. The accused was coming from the side of the house of Police Patel. He again made similar utterances and informed Tejram that he had killed Gyaniram and further asked him to scribe a report. Tejram advised him to go to the police station. (b) Tejram went to the police station and lodged an oral report that he was informed by the accused that he had killed Gyaniram. The oral report was reduced into writing by P.S.I. Narkhede (PW-12) under Section 302 of the Indian Penal Code. By the time, the accused reached there alongwith spade, P.S.I. Narkhede (PW-12) arrested him and seized the spade. Thereafter, he went to the spot and noticed that Gyaniram was lying unconsciously. Spot panchnama was prepared and the samples of blood stained earth and plain earth were collected. (c) Gyaniram was sent to the hospital in the cart of Primary Health Centre, Tirora. The doctor examined him at 9.45 p.m. and found a lacerated wound on his fore head with underlying bony fractures into pieces. As Gyaniram was unconsciousness, P.S.I. could not take his statement. On 17.08.1986, A.S.I. Sahare received a message from Dr. Jaiswal of K.T.S. Hospital, Gondia that Gyaniram had expired. On the same day itself the post mortem was conducted. (d) After the investigation, the charge sheet was sent to the Court of J.M.F.C. Gondia. The J.M.F.C. committed the case under Section 209(a) of the Code of Criminal Procedure to the Court of Sessions for trial of the accused. The charge for the offence under Section 302 I.P.C. was framed against the accused. The Sessions Judge, Gondia, vide his judgment dated 29.07.1989, acquitted the accused of the charges framed against him. (e) Against the said judgment of acquittal, the State filed an appeal before the High Court of Bombay, Nagpur Bench. The High Court, vide its judgment dated 15.10.2004, set aside the order of acquittal and convicted the Appellant-accused for offence punishable under Section 302 I.P.C. (f) Aggrieved by the judgment of the High Court, the Appellant-accused has filed this appeal from Jail through the Superintendent, Nagpur Central Prison, Nagpur before this Court.
(3.) Heard Mr. Sushil Karanjakar, learned amicus curiae for the Appellant and Mr. Shankar Chillarge, learned Counsel for the State.;