REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1643 OF 2005

Laxmichand @ Balbutya                                            ....  Appellant(s)

Versus

State of Maharashtra              .... Respondent(s)

J U D G M E N T P.Sathasivam,J.

1)  This appeal is filed by the appellant-accused, who is in  

Jail,  through  Superintendent,  Nagpur  Central  Prison,  

Nagpur  under  Section  2  of  the  Supreme  Court  

Enlargement  of  Criminal  Appellate  Jurisdiction  Act  

against  the  final  order  and judgment  dated  15.10.2004  

passed  by  the  High  Court  of  Bombay,  Nagpur  Bench,  

Nagpur in Criminal Appeal No. 48 of 1990 whereby the  

High Court allowed the appeal filed by the State and set  

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aside  the  order  of  acquittal  passed  by  the  Additional  

Sessions Judge, Gondia.

2) The prosecution case is as follows:

(a) On  10.08.1986,  at  about  3.00  p.m.,  there  was  a  

quarrel  between Laxmichand @ Balbutya  -  the  accused  

and  Gyaniram  Mahajan  –  the  deceased,  who  was  in  

drunken  state,  at  the  house  of  the  accused.   The  

appellant-accused asked Gyaniram to go home but he was  

not  acceding  to  his  request.   The  accused  brought  

Gyaniram from his house on the road by lifting him but he  

fell down.  The accused struck him with a spade on his  

head.  As a result, Gyaniram sustained injury on his head  

and  had  become unconscious.   The  accused  proceeded  

towards the house of one Police Patel.  While going there,  

he made disclosure to some persons that he had killed  

Gyaniram Mahajan.   One  Ghanshyam,  who was  in  the  

employment  of  Fulchand  and  who  had  heard  the  

utterances  of  the  accused to  the  above  effect,  informed  

Tejram  (PW-2)  who  was  sitting  in  

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the  house  of  Fulchand  that  the  appellant-accused  was  

telling that he had killed Gyaniram.  Tejram went towards  

the Gram Panchayat.  The accused was coming from the  

side of the house of Police Patel.  He again made similar  

utterances  and  informed  Tejram  that  he  had  killed  

Gyaniram  and  further  asked  him  to  scribe  a  report.  

Tejram advised him to go to the police station.   

(b) Tejram went to the police station and lodged an oral  

report that he was informed by the accused that he had  

killed Gyaniram.  The oral report was reduced into writing  

by  P.S.I.  Narkhede  (PW-12)  under  Section  302  of  the  

Indian  Penal  Code.   By  the  time,  the  accused  reached  

there alongwith spade, P.S.I.  Narkhede (PW-12) arrested  

him and seized the spade.  Thereafter, he went to the spot  

and noticed that Gyaniram was lying unconsciously.  Spot  

panchnama  was  prepared  and  the  samples  of  blood  

stained earth and plain earth were collected.   

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(c) Gyaniram  was  sent  to  the  hospital  in  the  cart  of  

Primary Health Centre, Tirora.  The doctor examined him  

at  9.45  p.m.  and found a  lacerated  wound on his  fore  

head  with  underlying  bony  fractures  into  pieces.   As  

Gyaniram was unconsciousness, P.S.I. could not take his  

statement.   On  17.08.1986,  A.S.I.  Sahare  received  a  

message from Dr. Jaiswal of K.T.S. Hospital, Gondia that  

Gyaniram had expired.  On the same day itself the post  

mortem was conducted.  

(d) After the investigation, the charge sheet was sent to  

the Court  of  J.M.F.C.  Gondia.   The J.M.F.C.  committed  

the  case  under  Section  209(a)  of  the  Code  of  Criminal  

Procedure to the Court of Sessions for trial of the accused.  

The charge for the offence under Section 302 I.P.C. was  

framed against the accused.  The Sessions Judge, Gondia,  

vide  his  judgment  dated  29.07.1989,  acquitted  the  

accused of the charges framed against him.   

(e) Against the said judgment of acquittal, the State filed  

an  appeal  before  the  High  Court  of  Bombay,  Nagpur  

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Bench.   The  High  Court,  vide  its  judgment  dated  

15.10.2004, set aside the order of acquittal and convicted  

the  appellant-accused  for  offence  punishable  under  

Section 302 I.P.C.   

(f) Aggrieved  by  the  judgment  of  the  High  Court,  the  

appellant-accused has filed this appeal from Jail through  

the Superintendent, Nagpur Central Prison, Nagpur before  

this Court.     

3) Heard Mr. Sushil Karanjakar, learned  amicus curiae  

for  the  appellant  and  Mr.  Shankar  Chillarge,  learned  

counsel for the State.

4) As  far  as  the  incident  and  the  involvement  of  the  

appellant-accused  is  concerned,  the  prosecution  has  

mainly relied on the evidence of Fattu Madavi (PW-3) and  

Mahadeo (PW-4)  who are  the  two eye-witnesses.   Apart  

from these  two  eye-witnesses,  the  prosecution  has  also  

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relied on extra-judicial confession said to have been made  

by the accused to some of the witnesses.   

5) It is seen from the evidence of Fattu (PW-3) that the  

accused gave a call to him and said that Gyaniram – the  

deceased was under the influence of liquor and he was not  

willing to leave his house.  There was a quarrel between  

the accused and the deceased at the house of the accused.  

At the time of quarrel, Mahadeo (PW-4), who was present  

in the nearby house of Bhaurao Neware was witnessing  

the same.  It is also seen from the evidence of Fattu (PW-3)  

and Mahadeo  (PW-4)  that  in  the  course  of  quarrel,  the  

accused dragged Gyaniram outside of his house and gave  

a stroke of spade on his head.  From the evidence of PWs  

3 & 4, the prosecution has established that the quarrel  

was going on between the accused and the deceased and  

the deceased was under the influence of liquor and he was  

adamant and refused to leave the house of the accused  

which forced the accused to drag him outside his house  

and  also  inflicted  injuries  with  the  spade.   As  rightly  

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observed  by  the  High  Court,  there  is  no  reason  to  

disbelieve the version of eye-witnesses, PWs 3 & 4, in this  

regard.   On  perusal  of  their  evidence,  we  found  no  

material  omission  or  contradiction  to  disbelieve  their  

version.  On the other hand, we agree with the conclusion  

arrived at by the High Court as regard to the reliability of  

two eye-witnesses.

6) Apart  from two  eye-witnesses,  the  prosecution  has  

examined one Tejram as PW-2 who made a complaint to  

the  police.   The  accused  has  made  an  extra-judicial  

confession  to  him.   Tejram  (PW-2)  is  the  person  who  

lodged the report (Ex.21).  The perusal of the above report  

strengthened  the  evidence  of  Tejram  (PW-2)  about  the  

statement said to have been made to him by the accused.   

7) It is also seen from the evidence of Narkhede, P.S.I.  

(PW-12) that when he was scribing the report, the accused  

arrived at the police station with a spade and immediately  

he arrested him and seized the spade.  Though no much  

importance needs to be given to the statement of Tejram  

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(PW-2)  but  if  we  consider  the  same  along  with  other  

materials, there is no reason to reject his version.  Another  

person before whom the accused has made a confessional  

statement is Govardhan (PW-7).  The accused had gone to  

his place and informed him about the incident.   In the  

same way, one Udelal, who was examined as PW-8, also  

apprised the Court  about the admission of  guilt  by the  

accused.  Though their is no need to  attach importance to  

the statements of PWs 7 & 8, as observed earlier, if  we  

consider all the materials together, it prove the case of the  

prosecution that it was the accused who was responsible  

for the death of Gyaniram-the deceased.

8) It was submitted that though the injured was alive  

for  seven days but no attempt  was made to  record his  

statement about the incident.  It is seen from the evidence  

of  Narkhede,  PSI  (PW-12)  that  he  was  not  allowed  to  

record his statement by the Doctors as the victim was not  

in a position to give the statement.  It is relevant to note  

that an attempt was made to record his statement by the  

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Special Executive Magistrate, that also could not be done.  

The  evidence  of  Dr.  Arvind  Manwatkar  (PW-1),  Medical  

Officer  attached  to  Primary  Health  Centre,  Tirora  also  

supports the version of the prosecution.  He also issued a  

certificate (Ex.19) that the injured person was not able to  

give any statement.  When Dr. Arvind Manwatkar (PW-1)  

was shown spade at the time of examination in Court, he  

opined that it would be possible that such injury could be  

caused with spade.  As observed by the High Court, the  

medical report,  evidence of Doctor and the statement of  

eye-witnesses support  the case of  the prosecution.   Dr.  

Pradip  Kumar  Gujar  (PW-9)  who  conducted  the  post-

mortem on the dead body of Gyaniram also found that the  

cause of  death was head injury,  laceration of  the brain  

matter,  resulting  into  neurogenic  shock  and  peripheral  

circulatory failure.  All the above materials including oral  

and documentary evidence clearly prove the case of  the  

prosecution and we agree with the conclusion arrived at  

by the High Court.

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9) Coming to  the  argument  that  instead of  convicting  

the accused for culpable homicide amounting to murder,  

his case would fall  in the category of culpable homicide  

not  amounting  to  murder  as  even  according  to  the  

prosecution one blow alone was caused by the accused  

that too in a quarrel, we have already pointed out and it is  

clear from the evidence  of PWs 3 & 4 – eye-witnesses that  

prior  to  the  incident,  there  was  a  quarrel  between  the  

accused and the deceased inside the house of the accused  

and the deceased consumed liquor and adamant to leave  

the house of the accused which necessitated the accused  

to  drag  him  out  of  his  house  and  inasmuch  as  the  

deceased  still  refused  to  accede  to  the  request  of  the  

accused, he inflicted blow on the head with the spade.  As  

pointed out by the appellant-accused, he had no pre-plan  

or intention to kill the deceased and his main worry was to  

get  the  deceased  out  of  his  house,  who  consumed  

excessive  liquor.   Considering  all  these  aspects,  

particularly, the conduct of the deceased in not leaving the  

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house of the accused, he dragged him out of his house,  

put him on the road and assaulted him with a spade, we  

are of the view that the accused has no intention to kill  

the deceased.  It is true that blow given by the accused on  

the deceased was at the vital  part because of which he  

was  unconscious  for  seven  days  and  ultimately  

succumbed to his injuries.  However, as discussed earlier,  

the accused had no intention to commit the offence.   

10) Considering  all  the  materials  and  reasons,  we  feel  

that the commission of offence attributed to the accused-

appellant  would come under  Section 304 Part  II  Indian  

Penal Code.  Taking note of the fact that the incident had  

occurred  in  the  year  1986  and  the  accused  had  no  

intention to kill the deceased but due to the reasons and  

circumstances  stated  above,  we  feel  that  the  ends  of  

justice  would  be  met  by  awarding  sentence  of  rigorous  

imprisonment for five years.   The accused is entitled to  

have  the  benefit  of  deduction  of  the  period  already  

undergone.

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11) With the above modification, the appeal is allowed in  

part.  

 .……...…………………………………J.            (HARJIT SINGH BEDI)  

  ...…………….…………………… ……J.                                 

         (P. SATHASIVAM)                                   

 .…....…………………………………J.    (CHANDRAMAULI KR. PRASAD)  

NEW DELHI; JANUARY 6, 2011.                    

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