Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 426 of 2003
Appellant : Vinod son of bapuna Kolhe, aged about
43 years, resident of Wasadi Bk, Taluka
Khamgaon, District Buldana
versus.
Respondent : The State of Maharashtra
Mr A.S. Manohar, Advocate for appellant.
Mr S.J. Jichkar, APP for respondent-State
Coram : K.J. Rohee and
A.P. Bhangale, JJ
th
Dated : 5 December 2008
Judgment (Per A.P. Bhangale, J)
1. The appellant questions legality and validity of judgment
and order passed by II Additional Sessions Judge, Khamgaon on
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17.5.2003 convicting appellant for offences punishable under Sections
302, 324 and 452 of the Indian Penal Code whereby appellant was
sentenced to suffer rigorous imprisonment for life and to pay fine in
the sum of Rs. 1000/-, in default, to suffer rigorous imprisonment for
six months for offence of murder. The trial Court also awarded
rigorous imprisonment for one year and fine in the sum of Rs. 100/-,
in default, to suffer simple imprisonment for one month for offence
punishable under Section 324 of the Indian Penal Code and further
more directed appellant to suffer rigorous imprisonment for one year
and to pay fine in the sum of Rs. 100/-, in default, to suffer simple
imprisonment of one month for offence punishable under Section 452
of the Indian Penal Code.
2. Prosecution case briefly stated is as under :
On the basis of oral report dated 12.9.1995 by Prayagbai
Bhaurao Kolhe (PW 1), Pimpalgaon Raja Police Station registered
Crime No. 41/1995 under Sections 302, 323 and 452 of the Indian
Penal Code. Police were informed about the incident occurred on
12.9.1995 at about 10.00 pm about appellant Vinod assaulting her
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husband Bhaurao on the abdomen by means of “Bhala” (spear)
causing bleeding injuries on left cheek, left chest, right ear and near
right ear and also causing injuries to first informant Prayagbai (PW 1)
and Bharti (PW 2) before appellant Vinod ran away. In the result,
Bhaurao after some time succumbed to injuries. On the basis of FIR
(exhibit 18) the investigation was taken up. Inquest was held over
dead body of Bhaurao (exhibit 23) and spot panchanama was also
drawn on the same day. Post-mortem examination was done (vide
post-mortem report exhibit 48). Blood-stained clothes of deceased
were seized under panchanama (exhibit 30). Seized muddemal
articles were sent to the office of Chemical Analyser. Reports were
received as per exhibits 52, 52A and 53. After completion of
investigation, charge-sheet was submitted before II Judicial
Magistrate's court at Khamgaon who committed the case to the Court
of Sessions at Khamgaon giving rise to Sessions Case No. 83 of 1995
before II Additional Sessions Judge, Khamgaon. Charge (exhibit 9)
was framed on 24.9.2002 to which the appellant pleaded not guilty
and claimed trial.
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3. Twelve witnesses were examined by the prosecution while
one witness was examined by the defence. PWs 1 to 3 were examined
as eye witnesses. Placing reliance upon evidence, the trial Court found
appellant guilty and sentenced him, as stated in paragraph 1 above.
4. In support of the appeal, learned Advocate Mr A.S.
Manohar submitted that the conviction is bad in law on the ground
that real story was suppressed by the prosecution and that false and
fabricated story was portrayed against appellant by means of got-up
witnesses. Further, according to learned Advocate, there was delay of
more than three hours to lodge report and possibility of tutoring
cannot be ruled out. Mr Manohar also submitted that the conviction
ought not to have been recorded on the basis of witnesses who were
interested in the success of the prosecution being relatives of the
deceased. According to learned Advocate, offence was not proved
against appellant beyond reasonable doubt on account of defects in
prosecution evidence and, therefore, appellant be acquitted.
5. Learned APP Mr S.J. Jichkar, on the other hand, supported
impugned judgment and order and canvassed submission that offences
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were proved beyond reasonable doubt.
6. It appears from the prosecution evidence that mainly the
evidence consisted of PW 1 Prayagbai (wife of deceased), PW 2 Bharti
(daughter-in-law of deceased) and witness no.3 Onkar (independent
witness) who were eye witnesses and deposed as to the incident of
assault which resulted into death of Bhaurao Kolhe. PW 4 Laxman
Wagh deposed that he acted as panch in respect of inquest
panchanama (exhibit 23) and spot panchanama (exhibit 24). PW 6
Awachitrao deposed having acted as panch in respect of memorandum
panchanama (exhibit 27) and PW 7 Sudhakar deposed about seizure
of blood-stained clothes of the deceased (exhibit 30) which were
carried in sealed condition to chemical anlayser's office by PW 10
Police Constable Gajanan Kulkarni (vide reports from C.A. exhibits 52,
52A and 53). Medical evidence was led of Dr Gaikwad (PW 12) who
performed post-mortem examination (exhibit 48) over dead body of
Bhaurao and Dr Mendhe was examined to prove injury certificate
issued by him (exhibit 46). We have also gone through evidence of
topography of the spot of offence as deposed by PW 9 Mr Hadke, a
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revenue inspector who prepared map and other circumstantial
evidence, deposed by Madhumati Kolhe (PW 5) and Prabhakar (PW 8
– son of deceased) as evidence of sole defence witness DW 1 Laxmibai
(wife of appellant). PW 13 API Mahore deposed as investigating
officer. We have also examined impugned judgment and order in the
light of submissions at the bar.
7. The first and foremost question is as to whether Bhaurao
Kolhe met with homicidal death. Dr Gaikwad (PW 12) who conducted
post-mortem examination (exhibit 48) found following ante-mortem
external injuries on the dead body of Bhaurao :
“(a) stab injury anterior abdominal wall supra umbilical with
oventum outside the stab above 1-1” x 1” horizontal;
(b) stab injury left chest infra clavicular region 2” x 1” x 1”.
(c ) Incised wound left cheek vertically 4-1/2” x 11-1/4”.
(d) CLW with avulsion of skin right supra curicular region 2” x
2”.
(e) Abrasion right leg anterior lower third 1” x 1/2” there was
no fracture. These injuries were ante-mortem injuries.”
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Observations as to Internal injuries noted in the post-
mortem report proved by Dr Gaikwad are as under :
“Abdomen :
Walls : Stab injury ant. abd. wall supra umbilical horizontal.
Peritoneum: Haemoperitoneum 2 litres.
Cavity : Full of coils of intestine. Omental vessels ruptured.
Stomach
and its
contents : Stab Stab ant. wall horizontal 1” x 1” Pale empty.
No noxious smell.
Liver with
weight and
gall
bladder : Stab injury. Post surface 1”x1”x1” 900 gms.”
8. In the opinion of Dr Gaikwad, the deceased died on
account of haemorrhagic shock due to stab injuries. Further, according
to Dr Gaikwad, the stab injuries observed were possible by means of
“Bhala” (spear) Article No. 9 before the trial Court. Learned Advocate
for the appellant invited our attention to the fact that there was
absence of medical opinion as to whether injuries were sufficient to
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cause death in the ordinary course of nature and, therefore, the
evidence cannot lead to the conclusion that deceased Bhaurao met
with homicidal death. learned Additional Public Prosecutor, to
counter this submission, invited our attention to ruling in Brij Bhukhan
v. State of UP (AIR 1957 SC 474) to canvass submission that perusal of
injuries observed on abdomen and chest (a) and (b) in post-mortem
notes as deposed by Dr Gaikwad demonstrates that they were on vital
part like chest and abdomen and were sufficient to cause death in
ordinary course of nature. Therefore, absence of the specific statement
by Dr Gaikwad would be of no consequence.
9. It is true that in a murder trial, the public prosecutor
conducting prosecution should be careful to bring on record as to
whether injuries observed in a given case were sufficient in the
ordinary course of nature likely to cause death. Medical witness is
expected to assist the Court. Similarly, presiding Sessions Judge shall
also exercise proper care in recording the statement of the medical
witness to ensure that proper dates as also such opinion are brought
on record to get at the truth in the interest of justice to arrive at just
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and proper decision in a sessions case. A sessions judge can certainly
obtain clarification from the medical officer concerned to prevent or
remove any obscurity in the medical evidence. In the present case,
however, considering the nature of ante-mortem injuries observed in
the post-mortem report as deposed by Dr Gaikwad (PW 12) i.e.
dimensions; spots where they were inflicted upon; penetration and
depth etc., we find that they were inflicted upon vital parts viz. chest
and abdomen. Dr Gaikwad observed stab injury anterior abdominal
wall; supra umbilical and horizontal and also observed
haemoperitoneum 3 litre in the cavity with rupture of omental vessels
accompanied with stab injury. Dr Gaikwad also gave specific medical
opinion that the deceased died on account of haemorhagic shock due
to stab injuries which were possible by means of “Bhala” (spear) –
Article No. 9 before the court. Bearing in mind ocular evidence led in
the case in juxtaposition to the medical evidence, in our opinion,
injuries were sufficiently described by Dr Gaikwad demonstrating
themselves that injuries were on vital part of the body although there
is no specific medical opinion about sufficiency thereof to cause death
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in ordinary course of nature. We, therefore, agree with submission
advanced by learned Addl. Public Prosecutor that prosecution has
succeeded to establish the fact of homicidal death of Bhaurao Kolhe.
In the submission of learned counsel for appellant, Dr Gaikwad
admitted that injuries observed in post-mortem report did not occur at
one and the same time. Dr Gaikwad was questioned by defence about
injuries described in column 17 of post-mortem notes regarding
contused lacerated wound described as (d) above that skin was peeled
and about possibility of injury (e) if the body was dragged on hard and
rough surface as also the possibility that if haemorrhage was
controlled, the patient would have survived. In our considered
opinion, merely putting questions in the cross-examination about
possibility as above would not be sufficient to nullify the effect of
direct ocular evidence led in the case. In our opinion, in the facts and
circumstances of the present case, when stab injuries were attributable
to the appellant, there is no escape from the conclusion that deceased
Bhaurao Kolhe met with homicidal death.
10. The prosecution led direct evidence of Prayagbai (wife of
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deceased) who had seen appellant Vinod coming armed with spear
and inflicting injury on the abdomen of her husband. Prayagbai (PW
1) had also during the course of incident sustained injuries on her
right palm, shoulder and near eyebrow while she tried to save her
husband. She had informed police about the incident and lodged a
detailed First Information Report (exhibit 17) on the same day at
Pimpalgaon Raja Police Station which corroborate her evidence.
Another witness PW 2 Bharti (daughter-in-law of the deceased) also
deposed as an eye witness having seen the appellant Vinod inflicting
spear blow upon her father-in-law while her mother-in-law (PW 1)
was obstructing appellant Vinod. According to Bharti (PW 2), after
the assault, her father-in-law fell unconscious and Vinod ran away
from the back-side of house. Third eye witness Onkar Wagh (PW 3)
also deposed that while he was present talking about fodder in the
house of deceased Bhaurao he had seen appellant Vinod questioning
them as to why they were talking about him and pushing Bhaurao in
his presence, Vinod had returned to his house, but later on Vinod came
again armed with spear and inflicted spear blow upon Bhaurao. Due
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to fear, Onkar (PW 3) returned home. It appears that PW3 Onkar had
seen appellant Vinod twice. First, when Vinod questioned them as to
why they were talking about him and at that time, Vinod had pushed
Bhaurao. Later, Vinod came with spear and inflicted blow on
Bhaurao. The admission elicited in the cross-examination that he had
seen Bhaurao running at noon time from the river-side, followed by
Vinod does not, in our opinion, damage the direct ocular evidence. It
is sufficient and reliable to unequivocally impute guilt to appellant
Vinod. It is in evidence of Madhumati (PW 5) that appellant Vinod
had written a chit to her with obscene contents which was shown by
her to Bhaurao (her brother-in-law-deceased) and they had lodged
report at Police Station leading to arrest of appellant Vinod. Thus,
appellant Vinod was bound to harbour grudge against Bhaurao
irrespective of result of that criminal case. From the evidence of PW 6
Awachitrao it appears that weapon of offence namely, blood-stained
spear (Article 9) was seized under panchanama during house-search of
Vinod. C.A. Report (exhibit 52) indicates that spear was stained with
blood on blade and blood detected on it was human.
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11. The criticism by learned defence Advocate that PW 1
Prayagbai and PW 2 Bharti were close relatives of the deceased and
ought not to have been believed by the trial Court is unwarranted. In
our opinion, evidence by close relatives is not to be discarded, because
they may be last persons to screen the real culprit and to involve
innocent falsely. PW 1 Prayagbai had also suffered assault upon her
from appellant Vinod during the incident. Hence, we cannot agree
with the submission that the appellant was falsely implicated. It is
further submitted on behalf of appellant that PW 2 Bharti and PW 3
Onkar are got-up witnesses and not real eye witnesses. Considering
the entire evidence, we cannot accept the submission as correct. The
learned trial Judge has considered the direct as well as circumstantial
evidence on record to reach conclusion as to guilt of appellant. There
is reason to believe that author of the crime was none other than the
appellant himself. The trial Court also considered evidence of DW 1
Laxmibai (wife of appellant) who entered in the witness box with a
view to save her husband from punishment by introducing a story that
Bhaurao had run away with spear after snatching it from her. The
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story appears borne of clear after-thought and imaginary. Had it been
true, DW 1 Laxmibai would have lodged report with police station
since DW 1 alleged that deceased Bhaurao came to her house; used
obscene words and outraged her modesty and she took the spear and
followed him. Bhaurao snatched it from her and ran away. The story
appears invented by the accused with the help of his wife DW 1
Laxmibai only with a view to save himself and, therefore, must be
brushed aside as defence which is neither reliable not acceptable.
There was ample direct evidence to prove culpable homicide; assault
and house trespass after preparation of assault by the appellant.
12. Next question is as to whether the trial Court was justified
to hold appellant guilty of murdering Bhaurao. From the evidence led
by the prosecution we have no doubt whatsoever to conclude that
appellant Vinod had caused death of Bhaurao Kolhe and it amounted
to culpable homicide. However, as already observed by us the medical
evidence is absent as to whether the injuries observed were
cumulatively sufficient to cause death in the ordinary course of nature.
The evidence as to whether the injuries caused were necessarily fatal
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or were sufficient in the ordinary course of nature to cause death is
important in a murder trial. In the absence of such medical opinion on
record, it is not safe to hold appellant guilty of murder punishable
under Section 302 of the Indian Penal Code as trial Court cannot judge
on probabilities in the absence of such clear medical opinion.
Nevertheless the appellant cannot escape liability for culpable
homicide not amounting to murder in view of Section 299 of the
Indian Penal Code as the appellant by means of “Bhala” (spear) had
caused death of Bhaurao by inflicting injuries which were likely to
cause death although he may not have intended to aim at vital parts of
body of Bhaurao. Learned Advocate for the appellant invited our
attention to admission by Dr Gaikwad in the course of his cross-
examination that had the haemorrhage due to these injuries
controlled, then the patient would have survived. The admission by
Dr Gaikwad can no doubt indicate probability of survival in such case
notwithstanding the bodily injuries inflicted on the deceased.
However, there can be no doubt that the appellant armed with spear
(Bhala) had inflicted bodily injuries upon deceased which were likely
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to cause death and assaulted Bhaurao. In Sukumar Roy v. State of
West Bengal reported in AIR 2006 SC 3406 the Apex Court has
observed thus :
“13. From the above evidence it is evident that the
deceased Prafulla died due to the wound in his abdomen
which was 4 inches deep. In our opinion this shows the
intention of the assailant to kill or to cause such bodily
injury as is likely to cause death. There is no reason to
disbelieve the evidence of the prosecution witnesses that it
was the appellant Sukumar who caused the injury on
Prafulla, the deceased. The prosecution evidence of the
eye-witnesses is corroborated by the medical evidence.
14. Learned counsel for the appellant submitted that
it was a case of self-defence because the appellant had
purchased the land in question from the deceased who had
entered into his land inspite of warning and as a result an
altercation ensued. He contended that the deceased and his
men assaulted the accused person and the injury on
Prafulla was an accidental one in the scuffle which
followed. We do not agree.
15. From the evidence it is clear that the deceased
and his men were unarmed and there was no provocation
on their part. It also seems that the deceased and the
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appellant are co-sharers in the land being plot no. 743.
There is no evidence on record to show that the deceased
and his men assaulted the appellant and his family
members. Hence, in our opinion, the conviction under
Section 304 Part I read with Section 34 IPC was fully
justified.”
It is apparent that the case of the appellant herein is similarly situated.
In the facts and circumstances considered in totality, therefore,
appellant is liable to be punished under the first part of Section 304 of
the Indian Penal Code instead of offence of murder punishable under
Section 302 of the Indian Penal Code. The sentence of rigorous
imprisonment for ten years and fine in the sum of Rs. 100/- would
meet the ends of justice instead of rigorous imprisonment for life with
fine.
13. In view of the discussion as above, the appeal is partly
allowed. The conviction of the appellant is altered from Section 302
IPC to Section 304, Part-I IPC and the sentence is reduced and
modified as below :
The appellant is convicted for offence punishable under
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Section 304 Part-I of the Indian Penal Code instead of Section 302 of
the Indian Penal Code and shall suffer rigorous imprisonment for ten
years and to pay a fine of Rs. 100/-, in default, to suffer simple
imprisonment for one month for the offence of culpable homicide not
amounting to murder. Rest of the conviction and sentence is
confirmed as imposed by the trial Court for offences punishable under
Sections 324 and 452 of the Indian Penal Code.
JUDGE. JUDGE.
hsj
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 426 of 2003
Appellant : Vinod son of bapuna Kolhe, aged about
43 years, resident of Wasadi Bk, Taluka
Khamgaon, District Buldana
versus.
Respondent : The State of Maharashtra
Mr A.S. Manohar, Advocate for appellant.
Mr S.J. Jichkar, APP for respondent-State
Coram : K.J. Rohee and
A.P. Bhangale, JJ
th
Dated : 5 December 2008
Judgment (Per A.P. Bhangale, J)
1. The appellant questions legality and validity of judgment
and order passed by II Additional Sessions Judge, Khamgaon on
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17.5.2003 convicting appellant for offences punishable under Sections
302, 324 and 452 of the Indian Penal Code whereby appellant was
sentenced to suffer rigorous imprisonment for life and to pay fine in
the sum of Rs. 1000/-, in default, to suffer rigorous imprisonment for
six months for offence of murder. The trial Court also awarded
rigorous imprisonment for one year and fine in the sum of Rs. 100/-,
in default, to suffer simple imprisonment for one month for offence
punishable under Section 324 of the Indian Penal Code and further
more directed appellant to suffer rigorous imprisonment for one year
and to pay fine in the sum of Rs. 100/-, in default, to suffer simple
imprisonment of one month for offence punishable under Section 452
of the Indian Penal Code.
2. Prosecution case briefly stated is as under :
On the basis of oral report dated 12.9.1995 by Prayagbai
Bhaurao Kolhe (PW 1), Pimpalgaon Raja Police Station registered
Crime No. 41/1995 under Sections 302, 323 and 452 of the Indian
Penal Code. Police were informed about the incident occurred on
12.9.1995 at about 10.00 pm about appellant Vinod assaulting her
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husband Bhaurao on the abdomen by means of “Bhala” (spear)
causing bleeding injuries on left cheek, left chest, right ear and near
right ear and also causing injuries to first informant Prayagbai (PW 1)
and Bharti (PW 2) before appellant Vinod ran away. In the result,
Bhaurao after some time succumbed to injuries. On the basis of FIR
(exhibit 18) the investigation was taken up. Inquest was held over
dead body of Bhaurao (exhibit 23) and spot panchanama was also
drawn on the same day. Post-mortem examination was done (vide
post-mortem report exhibit 48). Blood-stained clothes of deceased
were seized under panchanama (exhibit 30). Seized muddemal
articles were sent to the office of Chemical Analyser. Reports were
received as per exhibits 52, 52A and 53. After completion of
investigation, charge-sheet was submitted before II Judicial
Magistrate's court at Khamgaon who committed the case to the Court
of Sessions at Khamgaon giving rise to Sessions Case No. 83 of 1995
before II Additional Sessions Judge, Khamgaon. Charge (exhibit 9)
was framed on 24.9.2002 to which the appellant pleaded not guilty
and claimed trial.
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3. Twelve witnesses were examined by the prosecution while
one witness was examined by the defence. PWs 1 to 3 were examined
as eye witnesses. Placing reliance upon evidence, the trial Court found
appellant guilty and sentenced him, as stated in paragraph 1 above.
4. In support of the appeal, learned Advocate Mr A.S.
Manohar submitted that the conviction is bad in law on the ground
that real story was suppressed by the prosecution and that false and
fabricated story was portrayed against appellant by means of got-up
witnesses. Further, according to learned Advocate, there was delay of
more than three hours to lodge report and possibility of tutoring
cannot be ruled out. Mr Manohar also submitted that the conviction
ought not to have been recorded on the basis of witnesses who were
interested in the success of the prosecution being relatives of the
deceased. According to learned Advocate, offence was not proved
against appellant beyond reasonable doubt on account of defects in
prosecution evidence and, therefore, appellant be acquitted.
5. Learned APP Mr S.J. Jichkar, on the other hand, supported
impugned judgment and order and canvassed submission that offences
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were proved beyond reasonable doubt.
6. It appears from the prosecution evidence that mainly the
evidence consisted of PW 1 Prayagbai (wife of deceased), PW 2 Bharti
(daughter-in-law of deceased) and witness no.3 Onkar (independent
witness) who were eye witnesses and deposed as to the incident of
assault which resulted into death of Bhaurao Kolhe. PW 4 Laxman
Wagh deposed that he acted as panch in respect of inquest
panchanama (exhibit 23) and spot panchanama (exhibit 24). PW 6
Awachitrao deposed having acted as panch in respect of memorandum
panchanama (exhibit 27) and PW 7 Sudhakar deposed about seizure
of blood-stained clothes of the deceased (exhibit 30) which were
carried in sealed condition to chemical anlayser's office by PW 10
Police Constable Gajanan Kulkarni (vide reports from C.A. exhibits 52,
52A and 53). Medical evidence was led of Dr Gaikwad (PW 12) who
performed post-mortem examination (exhibit 48) over dead body of
Bhaurao and Dr Mendhe was examined to prove injury certificate
issued by him (exhibit 46). We have also gone through evidence of
topography of the spot of offence as deposed by PW 9 Mr Hadke, a
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revenue inspector who prepared map and other circumstantial
evidence, deposed by Madhumati Kolhe (PW 5) and Prabhakar (PW 8
– son of deceased) as evidence of sole defence witness DW 1 Laxmibai
(wife of appellant). PW 13 API Mahore deposed as investigating
officer. We have also examined impugned judgment and order in the
light of submissions at the bar.
7. The first and foremost question is as to whether Bhaurao
Kolhe met with homicidal death. Dr Gaikwad (PW 12) who conducted
post-mortem examination (exhibit 48) found following ante-mortem
external injuries on the dead body of Bhaurao :
“(a) stab injury anterior abdominal wall supra umbilical with
oventum outside the stab above 1-1” x 1” horizontal;
(b) stab injury left chest infra clavicular region 2” x 1” x 1”.
(c ) Incised wound left cheek vertically 4-1/2” x 11-1/4”.
(d) CLW with avulsion of skin right supra curicular region 2” x
2”.
(e) Abrasion right leg anterior lower third 1” x 1/2” there was
no fracture. These injuries were ante-mortem injuries.”
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Observations as to Internal injuries noted in the post-
mortem report proved by Dr Gaikwad are as under :
“Abdomen :
Walls : Stab injury ant. abd. wall supra umbilical horizontal.
Peritoneum: Haemoperitoneum 2 litres.
Cavity : Full of coils of intestine. Omental vessels ruptured.
Stomach
and its
contents : Stab Stab ant. wall horizontal 1” x 1” Pale empty.
No noxious smell.
Liver with
weight and
gall
bladder : Stab injury. Post surface 1”x1”x1” 900 gms.”
8. In the opinion of Dr Gaikwad, the deceased died on
account of haemorrhagic shock due to stab injuries. Further, according
to Dr Gaikwad, the stab injuries observed were possible by means of
“Bhala” (spear) Article No. 9 before the trial Court. Learned Advocate
for the appellant invited our attention to the fact that there was
absence of medical opinion as to whether injuries were sufficient to
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cause death in the ordinary course of nature and, therefore, the
evidence cannot lead to the conclusion that deceased Bhaurao met
with homicidal death. learned Additional Public Prosecutor, to
counter this submission, invited our attention to ruling in Brij Bhukhan
v. State of UP (AIR 1957 SC 474) to canvass submission that perusal of
injuries observed on abdomen and chest (a) and (b) in post-mortem
notes as deposed by Dr Gaikwad demonstrates that they were on vital
part like chest and abdomen and were sufficient to cause death in
ordinary course of nature. Therefore, absence of the specific statement
by Dr Gaikwad would be of no consequence.
9. It is true that in a murder trial, the public prosecutor
conducting prosecution should be careful to bring on record as to
whether injuries observed in a given case were sufficient in the
ordinary course of nature likely to cause death. Medical witness is
expected to assist the Court. Similarly, presiding Sessions Judge shall
also exercise proper care in recording the statement of the medical
witness to ensure that proper dates as also such opinion are brought
on record to get at the truth in the interest of justice to arrive at just
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and proper decision in a sessions case. A sessions judge can certainly
obtain clarification from the medical officer concerned to prevent or
remove any obscurity in the medical evidence. In the present case,
however, considering the nature of ante-mortem injuries observed in
the post-mortem report as deposed by Dr Gaikwad (PW 12) i.e.
dimensions; spots where they were inflicted upon; penetration and
depth etc., we find that they were inflicted upon vital parts viz. chest
and abdomen. Dr Gaikwad observed stab injury anterior abdominal
wall; supra umbilical and horizontal and also observed
haemoperitoneum 3 litre in the cavity with rupture of omental vessels
accompanied with stab injury. Dr Gaikwad also gave specific medical
opinion that the deceased died on account of haemorhagic shock due
to stab injuries which were possible by means of “Bhala” (spear) –
Article No. 9 before the court. Bearing in mind ocular evidence led in
the case in juxtaposition to the medical evidence, in our opinion,
injuries were sufficiently described by Dr Gaikwad demonstrating
themselves that injuries were on vital part of the body although there
is no specific medical opinion about sufficiency thereof to cause death
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in ordinary course of nature. We, therefore, agree with submission
advanced by learned Addl. Public Prosecutor that prosecution has
succeeded to establish the fact of homicidal death of Bhaurao Kolhe.
In the submission of learned counsel for appellant, Dr Gaikwad
admitted that injuries observed in post-mortem report did not occur at
one and the same time. Dr Gaikwad was questioned by defence about
injuries described in column 17 of post-mortem notes regarding
contused lacerated wound described as (d) above that skin was peeled
and about possibility of injury (e) if the body was dragged on hard and
rough surface as also the possibility that if haemorrhage was
controlled, the patient would have survived. In our considered
opinion, merely putting questions in the cross-examination about
possibility as above would not be sufficient to nullify the effect of
direct ocular evidence led in the case. In our opinion, in the facts and
circumstances of the present case, when stab injuries were attributable
to the appellant, there is no escape from the conclusion that deceased
Bhaurao Kolhe met with homicidal death.
10. The prosecution led direct evidence of Prayagbai (wife of
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deceased) who had seen appellant Vinod coming armed with spear
and inflicting injury on the abdomen of her husband. Prayagbai (PW
1) had also during the course of incident sustained injuries on her
right palm, shoulder and near eyebrow while she tried to save her
husband. She had informed police about the incident and lodged a
detailed First Information Report (exhibit 17) on the same day at
Pimpalgaon Raja Police Station which corroborate her evidence.
Another witness PW 2 Bharti (daughter-in-law of the deceased) also
deposed as an eye witness having seen the appellant Vinod inflicting
spear blow upon her father-in-law while her mother-in-law (PW 1)
was obstructing appellant Vinod. According to Bharti (PW 2), after
the assault, her father-in-law fell unconscious and Vinod ran away
from the back-side of house. Third eye witness Onkar Wagh (PW 3)
also deposed that while he was present talking about fodder in the
house of deceased Bhaurao he had seen appellant Vinod questioning
them as to why they were talking about him and pushing Bhaurao in
his presence, Vinod had returned to his house, but later on Vinod came
again armed with spear and inflicted spear blow upon Bhaurao. Due
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to fear, Onkar (PW 3) returned home. It appears that PW3 Onkar had
seen appellant Vinod twice. First, when Vinod questioned them as to
why they were talking about him and at that time, Vinod had pushed
Bhaurao. Later, Vinod came with spear and inflicted blow on
Bhaurao. The admission elicited in the cross-examination that he had
seen Bhaurao running at noon time from the river-side, followed by
Vinod does not, in our opinion, damage the direct ocular evidence. It
is sufficient and reliable to unequivocally impute guilt to appellant
Vinod. It is in evidence of Madhumati (PW 5) that appellant Vinod
had written a chit to her with obscene contents which was shown by
her to Bhaurao (her brother-in-law-deceased) and they had lodged
report at Police Station leading to arrest of appellant Vinod. Thus,
appellant Vinod was bound to harbour grudge against Bhaurao
irrespective of result of that criminal case. From the evidence of PW 6
Awachitrao it appears that weapon of offence namely, blood-stained
spear (Article 9) was seized under panchanama during house-search of
Vinod. C.A. Report (exhibit 52) indicates that spear was stained with
blood on blade and blood detected on it was human.
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11. The criticism by learned defence Advocate that PW 1
Prayagbai and PW 2 Bharti were close relatives of the deceased and
ought not to have been believed by the trial Court is unwarranted. In
our opinion, evidence by close relatives is not to be discarded, because
they may be last persons to screen the real culprit and to involve
innocent falsely. PW 1 Prayagbai had also suffered assault upon her
from appellant Vinod during the incident. Hence, we cannot agree
with the submission that the appellant was falsely implicated. It is
further submitted on behalf of appellant that PW 2 Bharti and PW 3
Onkar are got-up witnesses and not real eye witnesses. Considering
the entire evidence, we cannot accept the submission as correct. The
learned trial Judge has considered the direct as well as circumstantial
evidence on record to reach conclusion as to guilt of appellant. There
is reason to believe that author of the crime was none other than the
appellant himself. The trial Court also considered evidence of DW 1
Laxmibai (wife of appellant) who entered in the witness box with a
view to save her husband from punishment by introducing a story that
Bhaurao had run away with spear after snatching it from her. The
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story appears borne of clear after-thought and imaginary. Had it been
true, DW 1 Laxmibai would have lodged report with police station
since DW 1 alleged that deceased Bhaurao came to her house; used
obscene words and outraged her modesty and she took the spear and
followed him. Bhaurao snatched it from her and ran away. The story
appears invented by the accused with the help of his wife DW 1
Laxmibai only with a view to save himself and, therefore, must be
brushed aside as defence which is neither reliable not acceptable.
There was ample direct evidence to prove culpable homicide; assault
and house trespass after preparation of assault by the appellant.
12. Next question is as to whether the trial Court was justified
to hold appellant guilty of murdering Bhaurao. From the evidence led
by the prosecution we have no doubt whatsoever to conclude that
appellant Vinod had caused death of Bhaurao Kolhe and it amounted
to culpable homicide. However, as already observed by us the medical
evidence is absent as to whether the injuries observed were
cumulatively sufficient to cause death in the ordinary course of nature.
The evidence as to whether the injuries caused were necessarily fatal
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or were sufficient in the ordinary course of nature to cause death is
important in a murder trial. In the absence of such medical opinion on
record, it is not safe to hold appellant guilty of murder punishable
under Section 302 of the Indian Penal Code as trial Court cannot judge
on probabilities in the absence of such clear medical opinion.
Nevertheless the appellant cannot escape liability for culpable
homicide not amounting to murder in view of Section 299 of the
Indian Penal Code as the appellant by means of “Bhala” (spear) had
caused death of Bhaurao by inflicting injuries which were likely to
cause death although he may not have intended to aim at vital parts of
body of Bhaurao. Learned Advocate for the appellant invited our
attention to admission by Dr Gaikwad in the course of his cross-
examination that had the haemorrhage due to these injuries
controlled, then the patient would have survived. The admission by
Dr Gaikwad can no doubt indicate probability of survival in such case
notwithstanding the bodily injuries inflicted on the deceased.
However, there can be no doubt that the appellant armed with spear
(Bhala) had inflicted bodily injuries upon deceased which were likely
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to cause death and assaulted Bhaurao. In Sukumar Roy v. State of
West Bengal reported in AIR 2006 SC 3406 the Apex Court has
observed thus :
“13. From the above evidence it is evident that the
deceased Prafulla died due to the wound in his abdomen
which was 4 inches deep. In our opinion this shows the
intention of the assailant to kill or to cause such bodily
injury as is likely to cause death. There is no reason to
disbelieve the evidence of the prosecution witnesses that it
was the appellant Sukumar who caused the injury on
Prafulla, the deceased. The prosecution evidence of the
eye-witnesses is corroborated by the medical evidence.
14. Learned counsel for the appellant submitted that
it was a case of self-defence because the appellant had
purchased the land in question from the deceased who had
entered into his land inspite of warning and as a result an
altercation ensued. He contended that the deceased and his
men assaulted the accused person and the injury on
Prafulla was an accidental one in the scuffle which
followed. We do not agree.
15. From the evidence it is clear that the deceased
and his men were unarmed and there was no provocation
on their part. It also seems that the deceased and the
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appellant are co-sharers in the land being plot no. 743.
There is no evidence on record to show that the deceased
and his men assaulted the appellant and his family
members. Hence, in our opinion, the conviction under
Section 304 Part I read with Section 34 IPC was fully
justified.”
It is apparent that the case of the appellant herein is similarly situated.
In the facts and circumstances considered in totality, therefore,
appellant is liable to be punished under the first part of Section 304 of
the Indian Penal Code instead of offence of murder punishable under
Section 302 of the Indian Penal Code. The sentence of rigorous
imprisonment for ten years and fine in the sum of Rs. 100/- would
meet the ends of justice instead of rigorous imprisonment for life with
fine.
13. In view of the discussion as above, the appeal is partly
allowed. The conviction of the appellant is altered from Section 302
IPC to Section 304, Part-I IPC and the sentence is reduced and
modified as below :
The appellant is convicted for offence punishable under
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Section 304 Part-I of the Indian Penal Code instead of Section 302 of
the Indian Penal Code and shall suffer rigorous imprisonment for ten
years and to pay a fine of Rs. 100/-, in default, to suffer simple
imprisonment for one month for the offence of culpable homicide not
amounting to murder. Rest of the conviction and sentence is
confirmed as imposed by the trial Court for offences punishable under
Sections 324 and 452 of the Indian Penal Code.
JUDGE. JUDGE.
hsj
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