- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMIINAL APPEAL NO.200/2008 Kavita Gautam Kokre, aged 40 yrs., residing at House No.951, Ramanandnagar, Nanded, presently in custody in the Yerwada Central Prison, Yerwada, Pune. ...Appellant.. (Org.accused) Versus The State of Maharashtra, at the instance of Shivaji Nagar Police Station, Nanded. ...Respondent... ..... Ms.Rebecca Gonsalvez, Advocate for appellant. Shri D.R. Kale, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 25.08.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : - 2 - 1] The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.500/- with a default condition of undergoing further rigorous imprisonment for 15 days in the event of non-payment of fine, by the Ad Hoc Additional Sessions Judge-2, Nanded, by judgment dated 7.6.2007, in Sessions Case No.185/2006, by this appeal questions the correctness of her conviction and sentence. 2] The facts in brief as are necessary for the decision of this appeal may briefly be stated thus: It appears that on the basis of the report lodged by PW 1 Yeshwant, father of deceased Gautam, at Exhibit 12, an offence vide Crime No.154/2006 came to be registered by PSI Utkar, who was attached to Shivaji Nagar Police Station, Nanded. Investigation of the said crime was entrusted to PW 14 PSI Sheshrao Thombre. He accordingly visited the scene of the offence and drew the scene of the offence – panchanama in the presence of witnesses at Exhibit 24. He had summoned PW 9 Sanjay, a photographer and asked him to take photographs of the scene of the offence. He recorded the statements of witnesses and seized blood stained clothes of accused vide seizure memo at Exhibit 43 in the presence of PW 12 Ashok. The appellant-accused came to be arrested vide arrest panchanama at Exhibit 47. The clothes of deceased Gautam came to be seized in the presence of PW 6 Pundlik vide seizure memo at Exhibit 20. The dead body of deceased Gautam had been referred for post mortem examination and post mortem came to be conducted by PW 13 Dr.Vithal Paratwagh. He noticed two - 3 - external injuries - [1] Injury to the fore-head, [2] Injury over the occipital region, and noticed the following internal injuries: [1] Sub-dural , [2] Scalp injury, [3] Occipital skull fracture, vault fracture, at fore-head. He opined that all the injuries were ante mortem and the probable cause of death was due to huge haematoma sub-dural due to grievous injury. The post mortem report is at Exhibit 45. The seized property came to be referred to the Chemical Analyser at Aurangabad through PW 7 Police Constable Arvind vide requisition at Exhibit 22. After completion of the investigation, a charge-sheet against the appellant came to be filed. The Chemical Analyser’s reports are at Exhibits 48, 49 and 50. 3] On committal of the case to Court of Sessions, trial Court vide Exhibit 4 framed charge against the appellant for offence punishable u/s 302 of the Indian Penal Code. 4] In order to appreciate the submissions advanced before us by the learned counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. PW 1 Yeshwant states that he has two sons and daughters and his son deceased Gautam, who was working in the - 4 - Science College at Nanded as a Clerk, was married to the appellant and was residing in Ram Nagar in rented premises. He further states that occasionally he was visiting the residence of his son Gautam. He states that on the evening of the incident, he was present in the house of his son Gautam. The appellant and two children of Gautam were also present along with Gautam. He states that he along with grand-son Sachin were sleeping in the drawing room. In the night, his grand- daughter Pushpa shouted and on hearing her shouts, he and Sachin were awakened from sleep and entered the bed room of Gautam. He noticed the appellant hitting the central portion of the fan on the head of Gautam. He states that Gautam had sustained bleeding injuries. On seeing this, he shouted and in the mean time, his grand son Sachin called his son in law Yeshwant Nikhate, who was residing on the first floor of the building. He states that Yeshwant Nikhate took the injured Gautam to a hospital in his car. He states that he had gone to the Police Station and had lodged his complaint at Exhibit 12. In cross examination, he has admitted that on hearing the shouts, he had immediately entered the bed room of Gautam. He has admitted that he did not try to snatch the fan from the hands of the appellant. He has denied the suggestion that the appellant was the second wife of deceased Gautam. He lateron corrected himself to admit that on account of demise of the first wife of Gautam, Gautam had married the appellant. He has denied the suggestion that about and one and half years prior, there was a dispute between Gautam and the appellant and the villagers had been to the house of Nikhate for settling the dispute. He has also denied that Pushpa had not cried out. In the cross examination, it has been brought out that in the bed room of - 5 - the appellant, a night lamp was burning. 5] PW 2 Pushpa, grand daughter of PW 1 Yeshwant and daughter of the appellant, states that she was sleeping along with the appellant and her father deceased Gautam in the bed room. She states that at about 12-15 in the night, she was awakened on account of hearing the shouts. She had noticed her mother giving blows on the head of her father by a ceiling fan. She states that on seeing this, she shouted, which awakened her brother Sachin and her grand-father. She thereafter deposes about arrival of Yeshwant Nikhate and Yeshwant Nikhate taking her father to the hospital. In cross examination, she has admitted that in the bed room, a night lamp was burning. She has denied the suggestion that it was dark. She has admitted that till 10 p.m., she had studied and thereafter she had gone to sleep. She has admitted that there used to be disputes between her father and mother. 6] PW 3 Sachin also deposes on similar lines as that of PW 1 Yeshwant and though he has been cross examined, nothing of importance has been elicited in the cross examination of this witness to doubt the veracity of his statement. Prosecution has also examined PW 4 Yeshwant Nikhate, who states that in between the night between 23.9.2006 and 24.9.2006, his nephew had awakened him and had informed him that his mother had assaulted his father by a fan and that his father had become unconscious. He states that he immediately rushed towards the scene of the offence and had noticed Gautam lying in a pool of blood. - 6 - He removed Gautam to Yashoda Hospital in his car and lateron he was referred to Lotus Hospital. He states that Gautam was admitted in Lotus Hospital till 25.9.2006 and thereafter was shifted to Yashoda Hospital where he died on 6.11.2006. He states that till his death, Gautam was not in a position to talk. He has denied the suggestion that about one and half years prior to the incident, there was some quarrel between Gautam and the appellant and the relatives had called a meeting for resolving the dispute. He has also denied the suggestion that on account of constant bickerings, Kavita (appellant) had consumed poisonous substance and he had admitted her in the hospital. He has also denied the suggestion that Sachin had not disclosed to him that his mother had assaulted his father with a fan. 7] PW 5 Sonaji, who was residing in the house of Yeshwant Nikhate as a tenant, claims that hat about 12-15 in the night, he had been awakened from his sleep on hearing the shouts and had gone to the house of Gautam and had noticed Gautam lying unconscious in a pool of blood. He states that Pushpa had disclosed to him that Gautam had been assaulted on his head by the appellant by a fan. 8] The learned counsel for the appellant, who has very ably argued the appeal on behalf of the appellant, has urged before us that the deceased had died after nearly more than a month of the incident and meanwhile operation had been performed on the deceased. It is the contention of the learned counsel for the - 7 - appellant that there is no evidence in respect of the surgery and there is no evidence to indicate if the deceased had in fact died on account of the injuries or had died on account of haematoma, which had occurred because of the surgery. The learned APP has supported the judgment of conviction and has urged for dismissal of the appeal. 9] In order to appreciate the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of PW 10 Dr.Arun Katte. This witness states that he runs a hospital styled as “Lotus Hospital” and on 24.9.2006 at 1-30 a.m., Gautam was referred to his hospital from Yashoda Hospital. He states that when the patient was admitted, he was unconscious with an injury on his head. He states that the brain matter was protruding out of the skull and the injury of the patient was sutured. The patient was put on a ventilator and medicines had been administered to him. He states that on 25.9.2006, the patient was again shifted to Yashoda Hospital. He states about the two external injuries, which he noticed on the person of Gautam - [1] Injury CLW on left fore-head 7 x 2 cm., brain matter was coming out of that injury, [2] Contusion on left eye. He has admitted in cross examination that central part of the ceiling fan may cause the injuries if it falls on the head of a person, who is sleeping on the floor. He has qualified the statement by saying that if blades are attached to the fan, other injuries would be possible. PW 11 Dr.Ruturaj Jadhav, who was working in Yashoda Hospital as a Neuro Surgeon states that on 25.9.2006 at about 8 p.m., - 8 - injured Gautam had been admitted in the hospital. The patient was in a comatose stage and had been referred from Lotus Hospital, Nanded. He states that he had noticed the following injuries on the person of Gautam - [1] Left periorbital oedima, [2] Sutured wound on left fore-head transverse 7 cm. [3] Sutured wound lateral to left eye oblique extending to left side eye brow with brain matter pouting out. [4] Sutured wound on left eye brow 5 cm. [5] Sutured wound on left cheek 2 cm. [6] Right ear bleed with brain matter pouting. He states that C.T. Scan was suggestive of multiple skull fractures with haemorrhagic contusions in left fronto parietal region and right temporal lobe. Sub-dural haematoma in left parietal region with sub-arachnoid haemorrhage paeumocephalus and left maxillary hemonisus. He has stated that all the injuries were sufficient in ordinary course of nature to cause death. He states that the patient died on 6.11.2006 at 11-45 p.m. Curiously, the report of the C.T. Scan has not been produced in evidence. The medical papers relating to the treatment to deceased Gautam have also not been produced. The prosecution, for reasons best known to it, has withheld all papers in respect of the treatment, which was given to deceased Gautam for the last more than a month during which he was under treatment at Yashoda Hospital. 10] PW 13 Dr.Vithal, who had performed the post mortem on the dead body of Gautam, has claimed that cause of death was due to huge haematoma. As - 9 - pointed out by us above, there is no evidence to suggest that the haematoma had been caused on account of the injuries inflicted by the appellant. The C.T. Scan report relating to the deceased has not been produced on record. The transfer summary from Lotus Hospital indicates that operation had been performed on 25.9.2006. In this background, the learned counsel has placed reliance on the judgment of the Supreme Court in Rajangam V/s State (T.N.) (1993 Criminal Law Journal, 3680). In this cited case, the accused therein had inflicted a single injury by knife on the abdomen of the deceased and another injury on the left knee. The deceased had undergone an operation and died after 8 days of the incident. The Supreme Court in that background at para 9 has observed thus: “Now coming to the nature of the offence, the accused inflicted only one injury on the abdomen. The other injury on the left knee would also have been caused in the course of causing the other injury to the abdomen. The occurrence took place on 22.6.78 and the deceased died on 30.6.78. As already noted, an operation was also conducted but gangrenous got set in. Therefore, these circumstances would show that the accused would not have intended to cause the death of the deceased by inflicting injuries which were sufficient in the ordinary course of the nature to cause the death. However, by inflicting this single injury he had knowledge that he was likely to cause the death in which case the offence is one punishable under S.304, Part II, I.P.C. Accordingly, we set aside the conviction of the appellant under S.302, I.P.C. And sentence of imprisonment for life awarded - 10 - thereunder. Instead we convict him under S.304, Part-II, I.P.C. And sentence him to undergo five years’ Rigorous Imprisonment. If the accused has already served out the sentence, he need not be arrested otherwise he shall surrender and serve out the remaining part of the sentence. The appeal is disposed of accordingly.” The learned counsel for the appellant has further placed reliance on the judgment of the Supreme Court in Randhir Singh V/s State of Punjab (AIR 1982 Supreme Court, 55). The Supreme Court at para 8 has observed thus: “The contention is that Para III of Sec.300, I.P.C. Would be attracted in that the appellant not only intended to cause that particular injury which is alleged to have been inflicted and the injury alleged to have been inflicted was sufficient in the ordinary course of nature to cause death. In a small village upon a minor quarrel, the appellant a young boy aged 18 ½ years, studying in the engineering college and not shown to have been armed, gave one blow by Kassi brought by his father; could it be said that he intended to cause that particular injury ? Merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury. The weapon was not at hand. He did not possess one. Altercation took place between his father and the deceased and he gave blow with a Kassi. In our opinion in these circumstances, it - 11 - would be difficult to say that the accused intended to cause that particular injury. True it is that the injury proved fatal and was opined in the ordinary course of nature to be sufficient to cause death. We need not dilate upon this subject in view of a very recent decision of this Court in Jagrup Singh V/s State of Haryana decided on May 7, 1981 (reported in AIR 1981 SC 1552). Sen, J. speaking for the Court, after referring to various previous decisions on the subject including the one relied upon in this case. Virsa Singh V/s State of Punjab, 1958 SCR 1495 : (AIR 1958 SC 465), observed that in order to bring the case within Para III of Sec.300, I.P.C., it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. We find it difficult to hold in the circumstances herein set out that such was the intention of the appellant.” The learned counsel for the appellant has further placed reliance on the judgment of the Supreme Court in Harish Kumar V/s State (Delhi Administration) (AIR 1993 Supreme Court, 973). The Supreme Court at para 8 has held that though the evidence establishing that the injury had resulted in the death of the deceased, it could not be conclusively said that it was sufficient to cause his death. The Supreme Court accordingly convicted the accused therein - 12 - for an offence punishable u/s 304 Part II of the Indian Penal Code. 11] As pointed out by us above, there is no evidence whatsoever of the report of the C.T. Scan, which was conducted immediately upon admission of deceased Gautam in the hospital. Thus, there is no evidence that the haematoma was caused on account of the injuries inflicted. Further it appears from Exhibit 40 that an operation had been performed on deceased Gautam and curiously, the papers relating to the operation have not been tendered in evidence. The doctors, who had performed the operation, have also not been examined. Thus, there is no evidence to indicate that deceased Gautam had died on account of the injuries, which had been inflicted by the appellant. However, the appellant can be attributed with the knowledge that by infliction of the injuries by the central portion of the fan, the deceased Gautam was likely to receive such injuries as would result in his death. The deceased had died after nearly one and half months of sustaining the injuries. No papers, relating to the treatment administered to the deceased for the period during which he was in the hospital, have been placed on record. In such circumstances, therefore, according to us, the appeal deserves to be partly allowed and the conviction of the appellant deserves to be altered from Section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code. 12] Accordingly, this criminal appeal is partly allowed and the conviction an sentence of the appellant for the offence punishable u/s 302 of the Indian Penal - 13 - Code is hereby quashed and set aside, and instead, the appellant is convicted for an offence punishable u/s 304 Part II of the Indian Penal Code and sentenced to rigorous imprisonment for seven years and fine of Rs.500/-, in default of which the appellant to suffer further rigorous imprisonment for 15 days. Since the appellant is said to be in jail from 24.9.2006 till today, the appellant shall be entitled for set off for the aforesaid period u/s 428 of the Code of Criminal Procedure. (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/kgk