SUKHADEO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by the accused who was convicted under Section 304, Part n of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs. 1,000/- in default to suffer Rigorous Imprisonment for six months. The incident, out of which the prosecution arose, was said to have occurred on April 26, 1984. There was a quarrel between the appellant Sukhadeo and his mother Bhiwarabai on the construction of a compound wall near the appellant residential premises. The appellant got enraged, dealt fist blows to Bhiwarabai the mother, kicked her and lifted her and carried her to a drain and threw her down. The appellant then is said to have picked up a stone and threw it on the person of Bhiwarabai; She died instantaneously. The post-mortem examination was conducted by P. W. 4 Dr. Kudale who found an abarasion over Bhiwarabais right knee 1 x 1/4 superficial just below the pattela; Internally, her brain was heavily congested with multiple haematoma allover the brain. In his opinion, the probable cause of death was intra cranial haemorrhage without injury. The learned Additional Sessions Judge accepted the evidence of two eye-witnesses P. W. Indrakishore and P. W. 2 Indra kumar and convicted and sentenced the appellant as stated above, while acquitting his wife Sarubai who was accused No. 2 in the Trial Court.

(2.) IN this appeal, Shri V. R. Manohar, the learned Counsel for the appellant, pointed out that the charge against the appellant was that he throttled Bhiwarabai, pushed her in a drain and pelted a big stone on her. If we go to the evidence of the witnesses, we find that according to P. W.-1 Indrakishore, the appellant was giving kicks and fist blows to his mother as a result of which she fell on the ground. The appellant then picked her and took her to the Nalee near the court-yard and threw her there and then tried to throttle her. P. W. 1 Indrakishore then went to the house of Dr. Yusuf and on return he was told by P. W. 2 Indrakumar that the appellant had thrown a stone on Bhiwarabais body and therefore she died. Thus P. W. 1 Indrakishore is not a witness to the throwing of a stone. P. W. 2 Indrakumar spoke about the incident upto the appellant throwing Bhiwarabai into the drain and added that the appellant then picked up a stone and threw it fin her head and she had already become motionless when the accused threw her in the drain. The stone, to which reference was made, has been described in the Seizure Memo (Exhibit 20) as weighing about 30 Kg. The medical evidence is clear about the absence of any external injuries except the abrasion referred to above. According to P. W. 4 Dr. Kudale, if the stone (article 8) is thrown on Bhiwarabais body, it would cause external injury of a severe nature and he did not notice any external injury either to the skull, throat or chest. The haematoma and internal haemorrhage were caused, according to him, by diseased artery in the brain and such haematoma or haemorrhage is not possible without a diseased artery. The disease of the artery is caused by diabetes, atherosclerosis or hypertension. The medical evidence thus rules out the use of the stone as well as death due to throttling and absence of any other external injuries. In the circumstances, we find the account given by the two alleged eye-witnesses to be extremely unreliable considering their tendency to exaggerate the incident. Once, the evidence of these two eye-witnesses is ruled, as being inconsistent to the medical evidence, there is no other material which would be of assistance in locating the exact nature of the incident. It appears to us that the death was the unfortunate result of an apparent quarrel over the construction of the compound wall and if regard it had to the medical evidence, even excitement could have resulted in the type of the brain injury noticed. Having regard to the state of evidence, to find that the learned Additional Sessions Judge was not justified is attributing the death of Bhiwarsbai to any of the alleged acts of the appellant. We find that the appellant is entitled to be acquitted.

(3.) IN the result, we allow the appeal, set aside the order of conviction and sentence passed against the appellant Sukbadeo and while acquitting him direct that he be set at liberty. The bail bonds of the appellant shall stand cancelled. Fine, if paid, be refunded to the appellant. Appeal allowed