OMKAR NANDLAL DAMAHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by judgment and order dated 12.03.2003 in Sessions Trial No. 45/1997, passed by Additional Sessions Judge, Gondia, by which the appellant/accused No. 1 Omkar Nandlal Damahe was convicted for an offence punishable under Sec. 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life and pay a fine of Rs. 2500/ -, present appeal was filed by the appellant -accused No. 1.

(2.) In brief, case of the prosecution is that one Shamlal Mansaram Maharwade was coming from the place of incident towards his house when accused Nos. 1 to 4 started quarreling with him on the allegation that his brother Baliram disclosed their names to the police that accused were dealing in illicit liquor. When the quarrel was going on, wife of Shamlal came to the complainant -Baliram and told him about it. Baliram intervened in the matter for pacifying them but then appellant -Omkar gave a stick blow on his head and accused No. 2 also gave blow of stick over his back, due to which he sustained injuries on his head and he fell down. Female members of his family took him inside the house. Thereafter, the deceased Mansaram, father of Baliram and Shamlal, came out and tried to convince the accused persons not to quarrel. The appellant -Omkar gave a blow of stick over his right parietal region. As a result, he fell down and went unconscious. The other accused persons started giving blows of sticks. The incident was witnessed by Renubai Patole and Sukhdeo Patole since they came out upon hearing shouts and saw all the accused assaulting Mansaram and Baliram. The complainant Baliram took his father to the hospital at Gondia. The Doctor did not notice any external injuries but still the patient was in coma and his condition was poor. There was no bleeding at all from anywhere, therefore, he had suspected the case of head injury, cerebral vascular episode. Report was lodged at about 3.00 a.m. on 02.05.1997. Crime No. 50/1997 was registered under Sec. 302 and 324 read with Sec. 34 of the Indian Penal Code with Police Station, Gondia. All the five accused persons were arrested. The appellant -Omkar discovered the stick. The Investigating Officer, thereafter, conducted investigation, filed chargesheet and after completing all other formalities, the accused persons were put on trial. The defence was of total denial. It was alleged that it was the complainant who had caused injuries to accused No. 2 -Sunderlal and the prosecution has suppressed the real manner of occurrence of the incident. The trial Court heard the parties and, thereafter, acquitted the three accused persons and convicted the appellant -Omkar for the offence of murder of Mansaram. Hence this appeal.

(3.) In support of the appeal, Mr. Joshi, learned counsel for the appellant, submitted that overall reading of the evidence of the prosecution clearly shows that the prosecution wanted to suppress the genesis of the occurrence of incident and prosecuted the appellant -party when as a matter of fact the prosecution very well knew that the complainant -party had assaulted the accused persons who had received bleeding injuries also. He submitted that though it is true that there is no burden on the prosecution to explain the injuries on the person of the accused, the fact remains that the same is required to be evaluated in each and every individual case and found out whether non explanation of injuries on the person of the accused would be fatal to the prosecution, benefit of doubt should be given to the accused persons. According to Mr. Joshi, in the present case, there is an admission by the Investigating Officer that the accused persons were injured with bleeding injuries. He also argued that there is an evidence on record that the accused party were present in the Police Station even before the complainant had come to lodge the report to Police Station that was obviously so because the accused party wanted to lodge the report to Police Station about the assault on them in which they suffered bleeding injuries. Merely because deceased Mansaram ultimately succumbed to the injuries, the prosecution was not justified in suppressing the prosecution case from the court. He then submitted that the prosecution did not examine any independent witness from the village. He also relied on the decision in the case of Laxmi Singh and others vs. State of Bihar, : AIR 1976 SC 2263. Mr. Joshi took us through the entire evidence so also all the papers, which were exhibited during trial before the Court.