SUBHASH BABU PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant herein was convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- or in default to undergo R.I. for four years. Against the conviction and sentence the appellant preferred an appeal against the judgment dated 17.7.1990. A learned Bench of this court by their judgment dated 1.3.2007 partly allowed the appeal and acquitted the appellant of the offence punishable under Section 302 of the Indian Penal Code, however, convicted the appellant under Section 304-II of the Indian Penal Code and sentenced him to suffer R.I. for 10 years and fine of Rs. 5,000/- and in default of fine imprisonment for one year. The appellant aggrieved preferred an appeal before the Supreme Court being Criminal Appeal No. 18 of 2008. By order dated 4.1.2008 considering that the appellant was not represented at the time of hearing, the learned Supreme Court was pleased to set aside the judgment of this court and remand the matter to this court for fresh disposal.

(2.) The appellant herein was charged along with his father Babu Vithal Patil and 13 others for various offences including rioting and for knowingly causing death of one Dilip Baburao Deshmukh. Alternatively, the charge was framed against the accused and his father for the offence punishable under Section 302 read with 34 of the Indian Penal Code. In support of their case, the prosecution has examined three eye witnesses including the complainant P.W. No. 2 Pramod Deshmukh. According to prosecution the recovery of weapon used in the assault was also made at the instance of the appellant and his father. The doctor who conducted the post mortem was examined as P.W. No. 6. Two police officers were examined being P.W. No. 10 Pardeshi, P.S.I. who initially commenced the investigation and P.W. No. 11 Satishchandra who subsequently carried on the investigation and filed charge-sheet.

(3.) At the hearing of this appeal, on behalf of the appellant, the learned counsel has firstly submitted that the prosecution has been unable to discharge their burden of proving the guilt of the accused beyond reasonable doubt. It is submitted that there are inherent improbabilities in the case of the prosecution considering the complaint filed by the accused themselves and the panchanamas prepared in that case. It is further submitted that the recoveries itself are doubtful considering the evidence of the panch witnesses and further in so far as purported recovery done at the instance of the appellant herein, there is nothing on record to indicate that at the time the iron rod was attached and sent to the C.A. it was sealed. Alternatively it is submitted that it is only deceased Dilip who suffered one injury on the head. From the evidence which has come on record through P.W. No. 10 it is clear that the deceased Dilip had been to the police station along with complainant P.W. No. 2. Though P.W. No. 10 asked him as to how the injuries were occasioned, he has not deposed to the said fact. Two plans were exhibited through P.W. No. 1 Vishwanath Thakur based on the spot panchanamas in the present case and in Sessions Case No. 102 of 1987 shows that there was blood in front of the house of the appellant. There is also evidence to show that the appellant suffered injury with a stick and in these circumstances it was open to the appellant in the right of self defence to have hit a blow. The fact that only one blow was inflicted itself would indicate that the appellant did not exceed his right of self defence. In the third alternative, it is submitted that considering that there was only one blow on the head of the deceased Dilip, and no further injuries were inflicted, the case at the highest would fall under Section 304 Part II of the Indian Penal Code consequently the conviction of the appellant under Section 302 of the Indian Penal Code ought to be set aside.