Bombay High Court
Gajanan Laxman Ingle vs State Of Maharashtra, Thr. P.S.O. … on 31 August, 2018
Bench: Ravi K. Deshpande
apeal254.16.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPEAL NO.254/2016 APPELLANT: Shri Gajanan Laxman Ingle, aged about 35 years, Occ : Agriculturist, R/o Hiwarkhed, Tah. Khamgaon, Distt. Buldana. In Jail. …VERSUS… RESPONDENT : State of Maharashtra, through Police Station Officer, Hiwarkhed, Tah. Khamgaon, Distt. Buldana. —————————————————————————————————– Shri D.A. Sonwane, Counsel (appointed) for appellant Shri N.R. Rode, APP for respondent – State —————————————————————————————————– CORAM : R.K. DESHPANDE AND ARUN D. UPADHYE, JJ. Date of reserving the judgment : 23/08/2018 Date of pronouncing the judgment : 31/08/2018 J U D G M E N T (PER : ARUN D. UPADHYE, J.)
1. The appellant/accused has challenged the judgment and order dated 24/11/2015 passed by the Additional Sessions Judge, Khamgaon in Sessions Trial No.113/2010 convicting him for the offence punishable under Sections 302, 323 and 509 of Indian Penal Code. The appellant/accused is sentenced to suffer::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:22 ::: apeal254.16.odt 2 imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine to suffer further rigorous imprisonment for one month for the offence punishable under Section 302 of Indian Penal Code. He is also sentenced for the offence punishable under Sections 509 and 323 of Indian Penal for simple imprisonment for one year. All the substantive sentences to run concurrently.
2. The brief facts of the case are as under : –
The complainant Vishnu Ingle is the son of deceased Shrikrishna. According to the prosecution, on 30/6/2010 at about 4:30 p.m. the victim girl had gone to river for washing clothes and after 10 to 15 minutes came to her house. She told her parents that the accused Gajanan Ingle came there and removed his pant and chased her. The parents of the girl thereafter went to the river to see the accused but he was not there. Thereafter at about 8:30 p.m. complainant Vishnu along with his father went to the house of accused Gajanan and gave call to him. The accused came out of the house. The deceased Shrikrishna asked him why he was chasing his daughter. The accused however raised quarrel with him and gave him kick blows. The complainant tried to intervene. However, he was also assaulted by kick blows. The accused went in the house::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:22 ::: apeal254.16.odt 3 and took iron-pas (iron object) and started beating the father of the complainant. He assaulted his father on head, back, neck and hand. Due to the said beating, the deceased sustained bleeding injuries and he fell down on the earth. The complainant thereafter took his father to the police station for lodging report.
3. The police referred the injured for medical treatment to General Hospital, Khamgaon. The complainant thereafter produced the injury certificate and lodged the report in the police station vide Exh.38. The offence came to be registered under Sections 323, 324 and 325 of Indian Penal Code. The First Information Report is at Exh.72.
4. The prosecution further came with a case that thereafter the injured Shrikrishna was referred to Government Hospital at Akola. On 1/7/2010 the injured Shrikrishna succumbed to injuries. During the course of investigation, police prepared inquest panchanama and dead body was referred for post mortem. The post mortem was conducted and Doctor prepared post mortem report vide Exh.45. On the basis of the post mortem report, police added offence punishable under Section 302 of Indian Penal Code.::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:22 :::
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5. During the course of investigation, police arrested accused, seized blood stained clothes from the person of the accused under seizure panchanama (Exh.77). The accused made confessional statement while in police custody and accordingly seized iron-pas at his instance. The police collected blood sample and seized the clothes of the deceased. Thereafter muddemal was sent to the Chemical Analyzer for analysis. The police recorded statements of the witnesses. After completing the necessary investigation, police filed charge-sheet against the accused.
6. The accused appeared in the proceedings before the Sessions Court. Charge came to be framed vide Exh.3. The contents of the charge were read over to him in vernacular. He pleaded not guilty and claimed to be tried. The defence of the accused is of total denial.
7. After recording the evidence in the matter and after hearing both sides, the learned Additional Sessions Judge has convicted and sentenced the accused for the offence accordingly.
8. We have heard Shri D.A. Sonwane, the learned Counsel (appointed) for the appellant/accused and Shri N.R. Rode, the learned Additional Public Prosecutor for the respondent/State.::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:22 :::
apeal254.16.odt 5 Shri Sonwane, the learned Counsel for the appellant/accused has submitted that the victim girl has admitted that accused is mad and goes behind any person in village. The accused has also given suggestion to the complainant – Vishnu Ingle (P.W.7) that the accused was mad and his psychiatric treatment was going on. He therefore submitted that the accused be given benefit of provisions of Section 84 of Indian Penal Code and he be acquitted for the offence charged. In the alternative, the learned Counsel for the appellant has submitted that the deceased and the complainant went to the house of the accused and incident took place. He submitted that the offence is committed without premeditation in a sudden fight and in a heat of passion and therefore at the most offence comes under Exception 4 to Section 300 of Indian Penal Code and accused could be convicted for the offence punishable under Section 304 Part-II of Indian Penal Code. He therefore prayed for awarding undergone sentence and the accused be released immediately.
9. The learned Additional Public Prosecutor Shri N.R. Rode however submitted that no defence is taken by the accused under Section 84 of Indian penal Code and therefore no question::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:22 ::: apeal254.16.odt 6 arises to consider the same. He further submitted that mere suggestion was given to the complainant that the accused is taking treatment of psychiatrist but no documentary evidence is adduced to that effect. He also submitted that there is no whisper in the statement recorded under Section 313 of the Code of Criminal Procedure of the said defence. The victim girl admitted that the accused is mad, but the same is not enough to come to the conclusion that the accused was mad. He also submitted that the prosecution has proved the guilt of the accused beyond doubt. There is no merit in the appeal. The appeal therefore be dismissed.
10. We have perused the record of the case with the help of the learned Counsel for the parties. P.W.7 – Vishnu Ingle is the complainant who has lodged complaint vide Exh.38 and printed F.I.R. is at Exh.72. The evidence of the complainant indicates that the incident took place in the room of accused. The accused initially assaulted by fists and kick blows and thereafter he went inside the room and brought iron-pas and assaulted his father on the head, ear and back and caused injuries and thereafter he went to the police station and brought the police. His father was taken to the General Hospital, Khamgaon and thereafter to Akola and then he lodged the::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:22 ::: apeal254.16.odt 7 report. The offence was registered vide Crime No.54/2010 under Sections 324, 325 and 323 of Indian Penal Code. In the evidence, he also deposed that thereafter on the next day morning his father died in the hospital at Akola. In the cross-examination some minor omissions are brought on record, however, same are not significant. His evidence clearly indicates that the accused is responsible for the injuries caused to the deceased. He is an eyewitness to the incident. The accused has also beaten to him by fists and kick blows. There is no reason to disbelieve him.
11. P.W.3 – Narayan Washimkar is the panch witness on memorandum and seizure panchanama Exhs.25 and 26 respectively. In the evidence, this witness has deposed that the accused while in police custody made a statement that he will produce the iron-pas and memorandum was recorded. Thereafter, the accused took them to his house and produced instrument, i.e., iron-pas from inside the corner of the house and seized the same under panchanama. He identified Article – A is the same. In the cross-examination, nothing is brought on record to disbelieve his version. It was suggested to him that he did not go to the house of the accused and nothing was seized, but he denied. P.W.10 – Devidas Raghunath Bhoj, the::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:22 ::: apeal254.16.odt 8 Investigating Officer has also stated in his evidence that on 3/7/2010 the accused gave statement that he will produce the iron-pas and the same was recorded in the presence of the panchas and accordingly produced the iron-pas from his house and seized under panchanama. In the cross-examination, no question is put to him on the memorandum statement as well as seizure of the iron-pas at the instance of the accused. The evidence of this witness goes unchallenged. The prosecution thus proved that the iron-pas was seized at the instance of the accused. The incriminating circumstance was put to him in the statement recorded under Section 313 of the Code of Criminal Procedure. However, he replied that it is not correct. The accused has not given any explanation. This circumstance goes against him and is consistent to the guilt of the accused.
12. The blood stained clothes of the deceased and the accused were seized. The blood phials of the deceased and the accused were also taken. The same were sent to the Chemical Analyzer for analysis. The Chemical Analyzer’s reports are placed on record at Exhs.13, 14 and 15. As per the Chemical Analyzer’s report on record, the blood group of the deceased was detected “A” and the::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:23 ::: apeal254.16.odt 9 blood group of the accused is “B”. As per the Chemical Analyzer’s reports on record, the blood found on the pant of the accused is of group “A” which is the blood group of the deceased. The accused failed to explain as to how his pant was stained with blood of the deceased. This circumstance is also not explained by the accused and therefore, the Chemical Analyzer’s reports clearly link the accused to the offence alleged against him.
13. The medical evidence on record also indicates that the cause of death is injuries to liver and spleen due to blunt injury abdomen as mentioned in the post mortem report (Exh.45). P.W.9 – Dr. Snehal Fakira Jumanke has conducted the post mortem and found the injuries mentioned in column no.17 of post portem, which read as under :- “(i) incise wound right ear pinna 2 ½ c.m. x 1 cm. ear pinna cut through and through, (ii) Lacerated wound right eye-brow in middle half of size 2 x 1 cm. x muscle deep, (iii) Contusion right side of chest extending from below the clavical interpostal space in an area of 10 cm x 4 cm, reddish in colour, (iv) Contusion lateral aspect of right arm in upper 1/3rd of size 8 cm. x 3 cm. reddish in colour, ::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:23 ::: apeal254.16.odt 10 (v) contusion over right thigh in middle 1/3rd of size 8 cm. x 3 cm. reddish in colour. (vi) Incise wound left ear pinna of size 2 ½ cm. x 1 ½ in to muscle deep. (vii) Lacerated wound behind left ear 3 cm. below the amastye process of size 5 x 2 cm. x muscle deep. (viii) Liner abrasion present dorsum of left forearm extending from elbow up to 3 cm. below wrist of size 18 cm. x 2 cm. by reddish in colour (ix) Lacerated wound over left hand dorsum of middle finger corresponding to within pharynx of size 1 x 1 cm. x bone deep. (x) Contusion postero later aspect of left thigh extending up to back 3 cm. below anterior super illiac spine of size 18 x 3 cm. by reddish in colour.”

He further found following internal injuries, as described in para no.19 and 20 of post mortem report :-

“(i) Hematoma under scalp present right frontal region 15 gms. blood clots present red in colour,
(ii) Fracture of right 7th rib present mid clavicular line with hematoma of 30 gms. in inter postal muscle red in colour.”
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14. Dr. Snehal Fakira Jumanke has opined that the cause of death is injury to liver and spleen due to blunt injury abdomen. Doctor also opined that all the injuries are possible due to fist blows and assault by iron-pas and identified Article – 1 and stated that the above injuries are sufficient in ordinary course to cause death.
15. In the cross-examination, P.W. 9 – Dr. Snehal stated that the above injuries are not possible by fall on the ground. The Doctor also denied that the injuries are not sufficient in ordinary course to cause death. The medical evidence on record clearly indicates that the death is homicidal and the injuries are sufficient in ordinary course to cause death.
16. Considering the oral evidence as well as medical evidence on record, we have no doubt that the prosecution has established beyond doubt that the accused is the author of the said injuries and is responsible for the death of the deceased. The complicity of the accused is established by the prosecution beyond any doubt. The findings recorded by the learned Additional Sessions Judge is based upon the relevant and admissible evidence as well as proper appreciation.
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17. The submission put forth by the learned Counsel for the appellant/accused that the accused was insane and therefore entitles to the benefit of Section 84 of Indian Penal Code is concerned, the material on record will have to be considered. It is to be noted that no specific defence of insanity is taken by the accused. In the statement under Section 313 of the Code of Criminal Procedure there is no whisper about the defence of insanity. It appears that the accused has given suggestion to the complainant – P.W.7 – Vishnu Ingle during trial that the accused is mad and psychiatric treatment was going on. However, the said suggestion was denied by the complainant. The accused has also put question to the Investigating Officer in the cross- examination about mental sickness of the accused, but the Investigating Officer has stated that it was not transpired during the investigation that the accused is mentally sick. Except the suggestion, no other material is placed by the accused to show that he was mentally sick and taking treatment of psychiatrist.
18. From perusal of the evidence of P.W.4 – Ku. Gokula Ingle it appears that she has stated in the cross-examination that the accused Gajanan is mad, he beats his parents also, he goes behind any person in the village and after seeing him the villagers run away.::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:23 :::
apeal254.16.odt 13 The fact that the victim girl has stated that he is mad and goes behind any person in the village itself is not sufficient to hold that the accused is insane. The accused has not produced any material on record to show that he has taken treatment of psychiatrist. Therefore, the submission put forth on behalf of the learned Counsel for the appellant cannot be accepted. It is to be noted that during the trial the letter dated 6/5/2014 (Exh.62) along with medical certificate dated 24/4/2014 (Exh.63) is sent by the Regional Mental Hospital, Nagpur, which show that the accused is unfit for the trial. Subsequently, the letter dated 28/1/2015 (Exh.65) and medical certificate dated 22/1/2015 (Exh.66) issued by the Regional Mental Hospital, Nagpur show that the accused is fit for discharge and trial.
19. Considering the above two letters and medical certificates on record the accused was found fit for trial. The accused has not challenged the certificate. Considering the medical certificates on record, we are of the view that no case is put forth on behalf of the accused that he was insane at the time of committing murder or at the time of trial. It is to be noted that the initial burden is on the prosecution to establish the guilt beyond any doubt. As per Section 106 of Indian Penal Code when any fact is within the::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:23 ::: apeal254.16.odt 14 knowledge of the accused he has to throw light on the same. If he fails to throw light on the same, that could be considered additional circumstance against him, but it cannot be said that he has not discharged the burden. In this case, no specific defence is taken by the accused about the insanity and no evidence is given about the psychiatric treatment taken by him. The benefit therefore cannot be extended to him as per Section 84 of Indian Penal Code. The submission put forth on behalf of the appellant/accused therefore cannot be accepted.
20. The next submission put forth on behalf of the appellant/accused is that the offence falls under Section 304 Part II and not under Section 302 of Indian Penal Code. The learned Counsel for the appellant has submitted that the deceased and the complainant went to the house of the accused, the quarrel took place all of sudden and in a heat of passion he has caused the injuries and on the next day the injured died in the hospital and therefore, the offence falls under Exception 4 of Section 300 of Indian Penal Code. He further submitted that the act is committed without premeditation in sudden fight and in a heat of passion and therefore it is not murder.
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21. We have already discussed the evidence of the complainant and the medical evidence on record. The incident took place in the room of the accused as the deceased and the complainant went there to ask him why he chased the victim girl. It appears that the incident took place all of a sudden. There is no premeditation to commit the murder. Initially, the deceased was assaulted by kicks and fist blows and thereafter the accused went in the room and took iron-pas and assaulted the deceased. Initially, the offence was registered under Section 323, 324 and 325 of Indian Penal Code and the deceased was admitted in the hospital at Khamgaon and shifted to Akola General Hospital and on the next day he died. The facts and circumstances of the case indicate that the incident took place in sudden quarrel and without premeditation. The Doctor has clearly opined that the injuries mentioned in column no.17 are sufficient to cause death in ordinary course of nature. The act of the accused is culpable homicide not amounting to murder and falls under Exception 4 of Section 300 of Indian Penal Code. We therefore find much force in the submission put forth on behalf of the learned Counsel for the appellant.
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22. The learned Counsel for the appellant has relied upon the ruling, reported in (2017) 13 Supreme Court Cases 481 (Shahajan Ali and others…Versus…State of Maharashtra and others).
In the above ruling, Their Lordships of the Apex Court have held that altercation leading to sudden fight, during which accused attacked deceased with knife, causing injury on his neck, resulting in his death. Exception 4 to Section 300 of Indian Penal Code is applicable. There was neither prior concert nor common intention to commit a murder. Therefore, conviction is converted from Section 302 to Section 304 Part II of Indian Penal Code.
23. Considering the ratio laid down in the above ruling, we are of the view that the above ruling is made applicable in the case at hand. The conviction under Section 302 of Indian Penal Code could be converted to Section 304 Part II of Indian Penal Code.
24. After considering the evidence on record and after hearing both the sides, we are of the view that the learned Additional Sessions Judge has not considered the facts and circumstances of the case in proper perspective and wrongly convicted the accused under Section 302 of Indian Penal Code. The conviction for the offence::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:23 ::: apeal254.16.odt 17 punishable under Section 302 of Indian Penal Code is liable to be quashed and set aside. The accused will have to be convicted for the offence punishable under Section 304 Part II of Indian Penal Code.
25. As regards the offence punishable under Sections 509 and 323 of Indian Penal Code is concerned, no submission is put forth on behalf of the accused. The evidence on record suggests that the accused had tried to insult the modesty of the minor girl and also assaulted the complainant and deceased and therefore, the learned Additional Sessions Judge has convicted him for the said offence. The conviction for the said offence therefore will have to be confirmed. Hence, we pass the following order.
O R D E R (i) The conviction and sentence of the
appellant/accused for the offence punishable under Section 302 of Indian Penal Code is set aside. Instead, the appellant/accused – Shri Gajanan Laxman Ingle is convicted for the offence punishable under Section 304 Part II of Indian Penal Code and for the said offence he is sentenced to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.500/- (Rupees Five Hundred Only), in::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:23 ::: apeal254.16.odt 18 default of payment of fine to suffer simple imprisonment for one month.
(ii) The conviction and sentence of the appellant/accused for the offence punishable under Sections 509 and 323 of Indian Penal Code is maintained.
(iii) All the substantive sentences to run concurrently.
(iv) The period of detention, if any, be given as a set off to the appellant.
(v) The order regarding muddemal is maintained.
(vi) The criminal appeal is accordingly, partly allowed and disposed of.
(vii) Fees payable to the learned Counsel (appointed) for the appellant/accused are quantified at Rs.5,000/- (Rupees Five Thousand Only).

(Arun D. Upadhye, J.) (R.K. Deshpande, J.) Wadkar, P.S.::: Uploaded on – 31/08/2018 ::: Downloaded on – 01/09/2018 03:05:23 :::

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