1 Cri.Appeal No.286 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.286 OF 2010 1. Nana s/o Bapu Fotare, Age 26 years, Occu.Agriculture, R/o Jalgaon Ghat, Kannad, Taluka Kannad, District Aurangabad 2. Jallu s/o Bapu Fotare, Age 36 years, Agriculture, R/o As above 3. Raju @ Rajesh s/o Bapu Fotare, Age 32 years, Occu.Agriculture, R/o As above 4. Bajirao s/o Bapu Fotare, Age 30 years, Occu.Agriculture, R/o As above ..APPELLANTS VERSUS - The State of Maharashtra ..RESPONDENT Mr N.S.Ghanekar, Advocate for appellants Mr S.D.Kaldate, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 5th July 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant No.1/original accused No.1, who stands convicted for an offence punishable under Section 302, 323, 325, 504 and 506 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/- in default of which to undergo further rigorous 2 Cri.Appeal No.286 of 2010 imprisonment for one month, simple imprisonment for six months and to pay fine of Rs.500/- in default to undergo further simple imprisonment for 15 days, rigorous imprisonment for two years and to pay fine of Rs.500/-, in default of which to undergo further rigorous imprisonment for 15 days, simple imprisonment for one year and to pay fine of Rs.500/- in default of which to undergo further simple imprisonment for 15 days and rigorous imprisonment for one year and to pay fine of Rs.500/-, in default of which to undergo further rigorous imprisonment for 15 days, respectfully and accused Nos.2 to 4, who stand convicted for an offence punishable under Section 323 read with sec.34 of the Indian Penal Code and sentenced to simple imprisonment for six months and to pay fine of Rs.500/-, in default of which to undergo further simple imprisonment for 15 days, by the Additional Sessions Judge-6, Aurangabad, by judgment dated 21.7.2010 in Sessions Case No.163 of 2007, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.7 Police Head Constable Kachru Jadhav, who was attached to the Deogaon Rangari Police Station received a M.L.C. from the Ghati Hospital, Aurangabad at Exh.29 on 18.4.2007. He accordingly proceeded to the Ghati Hospital, Aurangabad and requested the Medical Officer to permit him to record the statement of injured 3 Cri.Appeal No.286 of 2010 Kakasaheb. The said letter is at Exh.30. The Medical Officer accordingly endorsed on the said letter at Exh.30 that the injured was in a suitable state of mind to give valid statement. The aforesaid endorsement was made on the said letter at Exh.30 at 11.00 a.m. P.W.7 Police Head Constable Jadhav further states that he recorded the statement of the injured at Exh.32. On the basis of the said statement, an offence came to be registered against the appellants. P.W.7 Police Head Constable Jadhav proceeded to the scene of the offence and drew the scene of the offence panchnama at Exh.33. Injured Kakasaheb succumbed to his injuries and accordingly, Section 302 of the Indian Penal Code came to be added and the investigation was entrusted to P.W.9 A.P.I. Nandedkar. P.W.9 A.P.I. Nandedkar, states that he was attached to the Devgaon Rangari Police Station and on being entrusted with the investigation of Crime No.18 of 2007, drew the inquest panchnama of injured Kakasaheb at Exh.34. The accused came to be arrested on 19.4.2007 under arrest panchnamas at Exhs. 39 to 44. The clothes on the person of the accused came to be seized vide seizure memo at Exhs.45 to 49. During custodial interrogation the appellant No.1 expressed his willingness to point out the place where the knife had been hidden. The said memorandum which was drawn in the presence of panchas is at Exh.50. The appellant/accused led the Police and the panch to his house and produced a knife which came to be seized under seizure memo at Exh.51. The said knife is Article 14. The report of the Chemical Analyzer shows that the knife was not stained with blood. Post mortem on the dead body of 4 Cri.Appeal No.286 of 2010 deceased Kakasaheb came to be performed by P.W.6 Dr.Kailash Zine. Dr.Zine noticed the following injuries : (i) Large sutured wound on the abdomen size 36 cm x 20 cm sutures were present; (ii) On the left side of the abdomen there was drain. The injury was ante mortem in nature. On internal examination he noticed that there was evidence of sutures being given to the small intestine at 35 cm from pyloric end. The liver was shown multiple nodules. He opined that cause of death of deceased Kakasaheb was due to stab injury on abdomen, associated with cirrhosis of liver. The post mortem report is at Exh.27. A request was made to the Circle Inspector for drawing the sketch of the offence, which came to be drawn at Exh.53. The seized property was sent to the Chemical Analyzer along with the requisition at Exh.54. The Magistrate at Kannad was requested to record the 164 statement of the witnesses. Further to the completion of investigation a charge-sheet came to be filed. The report of the Chemical Analyzer is at Exh.55. 3. On committal of the case to Court of Sessions, trial Court vide Exh.14 framed charge against the appellants for offence punishable under Section 302, 323, 325 read with sec.34, Section 504 and 506 (Part II) read with sec.34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. Prosecution in support of its 5 Cri.Appeal No.286 of 2010 case examined nine witnesses. P.W.1 Gangubai, mother of deceased, P.W.3 Babasaheb, brother of deceased, P.W.4 Meerabai, wife of deceased and P.W.5 Appasaheb a relative of the deceased did not support the prosecution and were declared hostile. The conviction of the appellants, therefore, rests upon the dying declaration recorded by P.W.7 Kachru at Exh.32, the seizure of clothes of accused No.1, which were found stained with blood, seizure of knife at the behest of the appellant No.1 and the recitals of the 164 statement of the witnesses. 4. A reference may straight away be made to the judgment of the Supreme Court in State of Delhi Vs.Shri Ram Lohia, AIR 1960 SUPREME COURT 490. In the said judgment the Supreme Court has held that 164 statements do not constitute substantive evidence. In the present case the witnesses whose 164 statement had been recorded have resiled from the said statement. Therefore, statement under Section 164 of the Code of Criminal Procedure, which was recorded by the Magistrate, P.W.8 Subhash could not be treated as substantive evidence. The circumstances, therefore, on which the trial Court has placed reliance is of no assistance to the prosecution. 5. In respect of the second circumstance, i.e. the dying declaration of deceased Kakasaheb, prosecution has examined P.W.7 Head Constable Jadhav, who states about recording of the statement of injured at Exh.32. In cross-examination he has admitted that the brother of deceased was present when the statement of deceased was 6 Cri.Appeal No.286 of 2010 recorded. He has further admitted that saline had been administered to Kakasaheb when P.W.7 Kachru had entered the ward and he apprehended that the injured may not survive. The injured, however, was speaking. 6. Mr Ghanekar, learned Counsel for the appellants has urged before us that no reliance can be placed on the dying declaration at Exh.32 as P.W.7 Kachru Jadhav claims to have recorded statement at 4.00 p.m. while the Medical Officer has endorsed about the fitness of the injured at 11.00 a.m. According to us no capital can be made from this as it is an obvious error on the part of P.W.7 Kachru Jadhav in stating the time of recording of the statement of the injured at Exh.32. P.W.7 Kachru has erroneously stated about the time of recording being 4.00 p.m. instead of 11.00 a.m. Since the Medical Officer has endorsed about the fitness of injured to give his statement at 11.00 a.m., it can be presumed that the statement came to be recorded at 11.00 a.m. or shortly thereafter unless something else was elicited in the cross-examination, which would show that the statement was not recorded then. However, according to us the statement of P.W.7 Kachru Jadhav, therefore, cannot be held out against the dying declaration at Exh.32. The seizure of clothes of accused No.1 show the presence of blood stains of AB group, which matched the blood group of deceased Kachru. This circumstance, therefore, has been positively established. The knife, which came to be discovered at the behest of appellant No.1, however, was not stained with blood. In such 7 Cri.Appeal No.286 of 2010 circumstances no reliance, therefore, can be placed upon the discovery of knife. 7. Mr Ghanekar, learned Counsel for the appellant No.1 has urged before us that the appellant No.1 has caused only one injury on the abdomen. The exact size of the injuries had not been noted by P.W.6 Dr.Zine while performing the post mortem examination. According to Mr Ghanekar the Medical Officer only refers to the surgical injuries. However, the Medical Officer has noticed that sutures were given to the small intestine. The exact place of the sutures is also indicated by the Medical Officer. It is obvious that peritonitis developed on account of the cut to the small intestine. The deceased was suffering from cirrhosis of liver. Dr.Zine stated that the injury sustained by the deceased was sufficient in ordinary course of nature to cause his death. In fact, in the cross-examination P.W.6 Dr.Zine has admitted that Peritonitis due to bacterial infection may or may not lead to death. He has also admitted that if the bacterial infection is prevented patient may or may not survive. The Medical Officer, therefore, in no uncertain terms has opined that the injuries sustained by deceased Kakasaheb were not sufficient in the ordinary course of nature to cause death. 8. In the light of what has been stated by us above, the question arises as to what would be the offence with which the appellant could be punished. Clause thirdly of the Indian Penal Code would not apply as the injury is not stated to be sufficient in the ordinary course of 8 Cri.Appeal No.286 of 2010 nature to cause death. We also find that the appellant/accused had no intention to kill deceased as only a single blow on the abdomen was given. The appellant/accused, it appears was labouring under a false impression that the deceased had illicit relations with his wife. The appellant/accused, therefore, would be liable to be convicted for an offence punishable under Section 304 (Part II) of the Indian Penal Code as he can be attributed with the knowledge that death was a possible consequence of the infliction of the injury. Mr Ghanekar, learned Counsel for accused No.1 states on instructions that the substantive sentence be reduced and the amount of fine be enhanced to Rs. 50,000/-, which the appellant No.1 was willing to pay. 9. In the light of what has been held by us above, the appellant No. 1/accused would not be liable to be convicted for an offence punishable under Section 302 of the Indian Penal Code but would be liable to be convicted for an offence punishable under Section 304 (Part II) of the Indian Penal Code. Offence punishable under 304 (Part II) of the Indian Penal Code is punishable with a maximum sentence of ten years. According to us, sentence of rigorous imprisonment for seven years with fine of Rs.50,000/- would meet the ends of justice. Since the post mortem report does not reveal any external injuries, according to us, the conviction of the other accused is unsustainable in law, particularly for an offence punishable under Section 323 read with sec.34 of the Indian Penal Code. We also find that since the appellant/accused was convicted for an offence punishable under 9 Cri.Appeal No.286 of 2010 Section 302 of the Indian Penal Code, his conviction for an offence punishable under Section 323, 325, 504 and 506 (Part II) of the Indian Penal Code for having caused injuries to the deceased would be unsustainable. 10. Accordingly, Criminal Appeal is partly allowed. The conviction and sentence of appellant No.1 Nana s/o Bapu Fotare is hereby set aside and instead he is convicted for an offence punishable under Section 304 (Part II) of the Indian Penal Code and is sentenced to rigorous imprisonment for seven years and to pay fine of Rs.50,000/-, in default of which to undergo further rigorous imprisonment for one year. Fine, if recovered from accused No.1 be paid to P.W.4 Meerabai, wife of deceased Kakasaheb. Accused No.1 is acquitted of the offence punishable under Section 323, 325, 504 and 506 (Part II) of the Indian Penal Code. The other appellants, i.e. appellants 2 to 4 are acquitted of the offence with which they were charged and convicted. Fine if paid by the appellants in respect of the offences with which they have been acquitted shall be refunded to them. Their bail bonds stand cancelled. Appeal is thus partly allowed. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/286.10criapeal)