SANJAY BHIKU GADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appellant is challenging the judgment and order passed by the Additional Sessions Judge, Baramati in Sessions Case No. 43 of 2003. By the said judgment and order dated 13 th December, 2005 the Additional Sessions Judge was pleased to convict the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/-, in default to suffer simple imprisonment for three months.

(2.) The prosecution case in brief is that deceased Dattatraya had borrowed Rs. 500/- and according to him, he had repaid Rs.400/- and only Rs. 100/- was to be repaid. However, the accused was demanding the entire amount of Rs. 500/- and therefore, there was dispute between them. On 8-10-2002, the appellant demanded an amount of Rs. 500/-. As a result, there was quarrel between the accused and the deceased. On 9-10-2002 the accused abused the deceased near the grocery shop of one Salunkhe and there was a scuffle in which the deceased was assaulted by sickle by the accused and thereafter the deceased was taken to the hospital at Lonand. However, he succumbed to the injuries and died.

(3.) The prosecution examined 8 witnesses. On the basis of the evidence adduced by the prosecution, the trial Court convicted the appellant for the offence punishable under Section 302 of the I. P. Code. The learned counsel appearing on behalf of the appellant has taken us through the judgment and order of the trial Court and also invited our attention to the evidence adduced by the prosecution. It is firstly, submitted that there was no eye witness to the said incident and the entire case of the prosecution is based on the circumstantial evidence. It is submitted that no witness had seen the accused assaulting the accused with sickle, and therefore, it is submitted that the trial Court ought to have given the benefit of doubt to the accused. It is then submitted that PW 7 Dr. Satishkumar Sarode who had conducted the post mortem has clearly admitted in his crossexamination that the injuries which were caused to the deceased could be caused as a result of fall on the steel cot, which was there on the spot. The learned counsel further submitted that two conflicting versions were given by the two doctors, which were examined by the prosecution. It is submitted that PW 7 had clearly stated in his crossexamination that the injuries which were caused to the deceased could have been possible as a result of fall on a steel cot; on the other hand, PW 8 Dr. Sanjay Shivade had stated that these injuries could be caused by the sickle, which was seen in the hands of the appellant /accused by the son of the deceased (PW 4) and by the brother of the deceased (PW 5). It is submitted that it was not open for the trial Court to reject the evidence of PW 7 Dr. Sarode, and to accept the version given by PW 8 Dr. Sanjay Shivade. It is submitted that the complainant/wife of the deceased did not see the incident and her evidence in respect of the assault by the appellant on the deceased was hearsay evidence, since she herself had not witnessed the incident. It is then submitted that in any case, the appellant and the deceased were both under the influence of alcohol and the incident had taken place at the spur of the moment. In all probability the Appellant had in self-defence or under grave and sudden provocation assaulted the deceased and therefore, the offence at the highest would fall in Exception first or second to Section 300 and not under S. 302 of the I. P. C. In support of the said submission, the learned counsel has relied on following two judgments of the Apex Court.