1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.1137 OF 2004 Shri Prakash Singh Ramajor Singh Adult, Indian Inhabitant presently in judicial custody and last residing at Sahargaon Zopadpatti, Andheri (E), Mumbai 400 099 ...Appellant/Org. Accd.No.1. v. 1 The Inspector of police Sahar Police Station 2 The State of Maharashtra ...Respondents. Mr. Sachin Pande i/by Rishi Bhuta, advs. For the Appellant. Ms. M.H.Mhatre, APP For the Respondents/State. CORAM : J.H. BHATIA, J. DATED : JUNE 28, 2010 ORAL JUDGMENT: 1 The appellant, who was original accused no.1 has challenged his conviction for the offences punishable under Section 307 of the IPC and sentence of R.I. for seven years and fine of Rs.5,000/- awarded by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.1141/2000. 2 To state in brief, Narad Baijnath Yadav since deceased was admitted in Cooper Hospital on 2.4.2000 in injured condition. He disclosed that on that day at about 4.45 a.m. he had left his house to take 2 a morning walk and exercise in the B.M.C. Ground. At about 5.00 a.m. during the walk, he was proceeding towards the gate of Vyayam Shala , i.e., the Gym. At that time, accused no.1 Shriprakash Singh, armed with country made pistol or Gavathi Katta, alongwith his two companions accused no.2 Jagdish Yadav and accused no.3 Bala Yadav came near said Narad and due to old disputes and strained relations, he fired on the left side of abdomen of Narad with that country made pistol due to which he suffered injuries. He shouted loudly. At that time all the three culprits ran away towards Talao Pakhadi. After sustaining injuries, Narad Yadav proceeded towards his house but fell down near the compound wall of the ground. Due to his shouts, his wife, Balwantidevi and some other persons namely, Rajaram Sharma and Kashinath Yadav came there and immediately took him to Cooper Hospital in an auto rickshaw where he was admitted. On getting the information, P.W.13 Bhagwat B. Bansod, who was then on night duty at Sahar Airport Police Station as PSI, rushed to the hospital and recorded the statement of injured Yadav. That statement was treated as F.I.R. and PSI Bhagwat Bansod registered C.R.No.228/2000 under Section 307 read with Section 34 of the I.P.C. Immediately he went to the spot of the incident and recorded spot panchanama and seized blood mixed earth as well as plain earth from 3 the spot under the panchanama. Statements of other witnesses were recorded. Clothes of the injured Narad were seized. On 6.4.2000 against the medical advice, Narad was shifted from Cooper Hospital to Lilavati Hospital where he was indoor patient till his death on 15.4.2000. After death, post mortem examination on the body was conducted and the P.M.Report revealed that he had died due to septicemic shock with peritonitis due to fire arm injury. After his death, case was converted from Section 307 to Section 302 read with Section 34 of the I.P.C. Later on, accused no.1/appellant was arrested by L.T. Marg police station in a different offence and from him two country made pistols or Gavathi Kattas were seized. Pellets collected from the body of the deceased, blood stained clothes and samples of the earth were referred to C.A. and the report was received. After investigation, police filed charge-sheet against all the three accused persons for the offences punishable under Section 302 r/w Section 34 of the I.P.C. 3 The learned Additional Sessions Judge framed the charges against all the three accused under Section 302 r/w Section 34 of the I.P.C. for the murder of Narad Yadav. Accused pleaded not guilty. On behalf of the prosecution, in all 15 witnesses were examined. On behalf of the accused, one defence witness was examined. The learned trial 4 Court after hearing the parties came to conclusion that death had occurred due to septicemia , which was possibly the result of transfer from Cooper Hospital to Leelavati Hospital against the medical advice on 6.4.2000. The learned trial Court observed that none of the medical officers, who had conducted post-mortem examination, had opined that injury was sufficient in ordinary course of nature to cause death. The learned Additional Sessions Judge convicted the accused no.1 for the offence punishable under Section 307 of the I.P.C. and sentenced him as stated above. He acquitted all the accused persons for the offence punishable under Section 302 read with Section 34 of the I.P.C. 4 Heard the learned counsel for the parties. Perused the R & P of the Court below. 5 Out of the 15 witnesses examined by the prosecution, P.W.1 Balwantidevi is widow of the deceased Narad. According to her, Narad had told that Shriprakash Singh, Bala and Jagdish had fired on him. P.W. 2 Babhu N. Yadav son of the deceased reached there almost immediately after his mother. According to him, at about 5.15 a.m. or so Sadanand Yadav had come to his house and informed that his father was lying in the BMC ground. His mother was first to go to the spot and immediately, he also followed her. According to him, when he reached 5 the place where his father was lying, his father told him that accused Shriprakash had fired on the left side of his abdomen and had run away alongwith the accused Bala and Jagdish Yadav. P.W.3 Ramjanam Yadav, who also reached there, deposed that the deceased had told him that Shriprakash had fired and had run away alongwith his companions Bala and Jagdish at about 5.15 a.m.. All these three witnesses were cross- examined and it was pointed out in the cross-examination that P.W.1 Balvantidevi had not stated before the police that her husband had told her that accused Shriprakash, Bala and Jagdish had fired on him. Similarly, it was also pointed out that P.W.2 Babhu and P.W.3 Ramjanam had not stated before the police that Narad had told them that accused Shriprakash had fired on him. These omissions were proved by the Investigating Officers. 6 As per their evidence, he was immediately taken to Cooper Hospital by an auto rickshaw. As per the evidence of P.W.4 Avinash Y. Patil, who was on duty at the Cooper Hospital as police constable at the relevant time on 2.4.2000, at about 5.45. a.m. one Ramjanam Yadav had brought his brother in the injured condition in the casualty of the hospital. This witness was present at the police counter by the side of casualty section of Cooper Hospital. As he noticed one injured person 6 being taken to casualty section, he also went there. Injured was immediately taken to I.C.U. He also followed him and inquired from the injured who told him that Shivprakash, Bala and Jagdish had fired on his abdomen. Accordingly, he took entry at Sr.No.724 in the E.P.R. register immediately. Thereafter he passed on this message to his superiors at the Sahar Airport Police Station telephonically. He was cross-examined at length but no material has come on record to dis-credit this witness. His deposition is corroborated by the entry taken in E.P.R. register by him immediately after injured Narad Yadav was brought to the casualty. 7 Evidence of P.W.13 Bhagwat Bansod, then posted as PSI at Sahar police station, shows that he was on night duty as First Relief Officer from 8 p.m. to 8 a.m. during the night between 1.4.2000 and 2.4.2000. According to him, PSI R.C.Patil was Station House Officer. At about 6.05 a.m. duty police constable Patil reported from Cooper hospital telephonically that one injured person, namely, Narad, was brought to the hospital and was admitted there. That information was recorded by PSI Bhagwat Bansod in a sick message book maintained at the police station. He passed this information to his superior P.I. Suryawanshi and then proceeded to Cooper Hospital alongwith 7 P.I.Suryawanshi and other police staff, after taking entry in the station diary. They reached hospital at about 6.45 a.m. Duty constable Patil informed them that the injured was admitted in I.C.U. PSI Bhagwat Bansod inquired from the doctor in the I.C.U. about the condition of the injured and the doctor informed him that the injured was conscious and fit to make statement. Accordingly, PSI Bhagwat Bansod went to the I.C.U. and recorded statement of injured Narad Yadav. In that statement Narad disclosed that his son Babhu had some quarrel with accused no.1 Shriprakash in February, 2000. That quarrel was settled but the accused still had a grudge about that incident. He also stated that he had been to BMC ground for taking morning walk. At about 5.00 p.m. when he was proceeding towards the gate of Vyayam Shala (Gym), accused Shriprakash accompanied by accused Jagdish and Bala came near him. Accused no.1 Shriprakash was holding a gavathi katta or country made pistol and he fired from the said country made pistol on Narad Yadav which caused injuries on the left side of his body below the chest. Due to this, he shouted and then all the three accused persons ran away in the direction of Talao Pakhadi. Narad also stated that after he was injured, he tried to go to his house but he fell down and shortly, his wife Balvanti devi and Rajaram Sharma came there and he was removed to Cooper 8 Hospital in an auto rickshaw. PSI Bhagwat Bansod deposed that after recording the statement, he explained the same in Hindi to injured Narad Yadav. Thereafter, injured Narad put his signature on his complaint. PSI Bhagwat Bansod also put his signature. Immediately after recording the statement, he rushed to the police station and registered F.I.R.No. 228/00. Statement of Narad Yadav was treated as F.I.R. He also registered the offence under Section 307 read with Section 34 of the I.P.C. against all the three accused persons. Offence was registered on 2.4.2000 at 9.10 a.m. From this, it appears that PSI Bhagwat Bansod got the telephone message from the hospital at about 6.05 a.m.;, left police station at 6.15 a.m.;, reached there at about 6.45 a.m. and then recorded statement of injured Narad Yadav and by about 9.10 a.m. he registered the offence. Thus, no time was lost in registering the offence by PSI Bhagwat Bansod. PSI Bhagwat was cross-examined at length. However, he could not be shattered. There was no reason for him to record the statement of Narad Yadav falsely or wrongly. He could not have imagined that accused no.1, 2 and 3 had approached Narad Yadav at BMC Ground at 5.00 a.m. and that accused no.1 Shriprakash had assaulted him by firing from country-made pistol. The evidence of P.W. 4 Constable Patil does not specifically show that any particular accused 9 had fired at Narad Yadav. He was not expected to record the detailed statement of injured. He had just taken a brief information from the injured that he was assaulted by three known persons, who were the accused. That information was reduced to writing by him in E.P.R. register and then he passed on that information telephonically to the police station. The evidence of constable Patil with entry in the E.P.R. register provides corroboration to the testimony of PSI Bhagwat Bansod. 8 On behalf of the defence, D.W.1 Gulab Yadav auto-rickshaw driver was examined. By his auto-rickshaw, injured Narad Yadav was taken to Cooper hospital from the spot of the incident. He deposed that the injured had told him that one person alongwith two-three other persons had come to him and he had fired on him and that he had run away after firing. This witness tried to state that injured Narad had told that he was not knowing the assailants and that he had seen them for the first time. It appears from his deposition that injured was fully conscious and was speaking correctly. Dr. Gulab also admitted in the cross- examination that his relations were cordial with the accused persons. It is possible that because of cordial relations and friendship, this witness was trying to save the accused. The trial Court observed that evidence of this witness provides corroboration to the testimony of PSI Bhagwat 10 Bansod to the extent that the injured was fully conscious. There was no reason for PSI Bhagwat Bansod to record statement of the injured falsely. His statement is supported by the evidence of P.W.4 Constable Patil also. 9 The learned counsel for the accused contended that the police should have got the dying declaration of the deceased recorded through some magistrate and that statement recorded by the police officer could not be admitted in the evidence. According to him, except evidence of PSI Bhagwat Bansod , there is no evidence and, therefore, accused is entitled to be acquitted. I am unable to accept this contention when PSI Bhagwat Bansod recorded the statement of injured Narad Yadav, he was fully conscious and in view of the injuries suffered by him, nobody had anticipated that he would die and, therefore, possibly the police did not feel it necessary to get his dying declaration recorded through a Magistrate. However, after his death, his statement before the police, which was treated as F.I.R., could be treated as dying declaration. I find no reason to disbelieve the same as in my opinion, it has been recorded truthfully and correctly. 10 As per the evidence on record P.W.11 Dr. Satish Rajurkar was on emergency duty at Cooper Hospital on 2.4.2000. At about 5.55 11 a.m. injured Narad Yadav was brought to the hospital. Patient gave history of assault by known persons with fire arm at 4.45 a.m. On examination he found multiple small punctured, wounds of 0.2 to 0.5 cm. All these injuries were over the left side of the abdomen, i.e., left hypo-condrium Epi-gastrium and left sub-costal region. He also deposed that at about 8.00 a.m. police approached him with a request to examine the injured and to ascertain his mental condition and to state whether he was fit to make statement or not and, therefore, he examined the patient again at that time and declared him fit to make statement. He made an endorsement in case papers to that effect. Dr. Satish recorded injuries in the indoor medical case-papers of Narad at Exhibit 21. Patient was immediately taken to I.C.U. and then he was operated upon for the injuries. 11 From the evidence on record, it appears that against the medical advice, Narad was shifted to Leelavati Hospital from Cooper Hospital on 6.4.2000. Evidence of P.W.7 Dr.Manoj Aithal, who was attached to Lilavati Hospital during the relevant period, stated that on 6.4.2000 a patient by name Narad was brought to Leelavati Hospital by his relatives. He was conscious and gave history of assault with the fire arm. He was examined and treated by Dr. Agarwal to whom P.W.7 Dr. 12 Manoj Aithal was attached. Findings of the examination were recorded in the indoor case papers of Narad, thus: “1) 1.5 Ltrs. Hemoperitoneum 2) Multiple Small perforations in small bowel. 3) 3 to 4 gastric perforations 4) 2 small perforations on transversecolon 5) One small perforation on descending colon” 12 As per his evidence on 15.4.2000 said Narad died and his dead body was sent for post-mortem examination on the same day. Evidence of P.W.8 Dr.Manik Sangale , who was attached to Cooper Post-Mortem Centre as medical officer deposed that dead body of Narad Yadav was brought to the post-mortem centre on 15.4.2000 by the constable from Sahar police station. On the same day, post-mortem examination was conducted and he found as follows: “1) Stitch mid-line wound of 27 cms in length on abdomen going from Epigastric notch downward. There was evidence of dehiscence of wound. 2) 52 circular wounds of 0.2 cms X 0.3 cms. in dia-meters with faint bluish scabs on left abdomen. Two wounds faint bluish scabs were irregular in shape and two drainage wounds on either side of abdomen. On detection multiple (41) pellets were seen in 13 various parts of abdominal cavities. There were multiple pellets seen embedded in abdominal wall and peritorial cavity. Frank Pus seen in peritonium cavity, Peritonium was thicken and opaque. There was evidence of repair in stomach (3). There was evidence of Gastro Jejuno anastomosis. There was evidence of multiple repairs in small intestine. There was evidence of repair in transverse colom. Spleen was enlarged. Kidneys showed altered corticomedullary ratio.” He collected the blood as well as pellets and issued post-mortem report , Ex.26. According to him, death had occurred due to septicemic shock with peritonitis due to firearm injuries. Evidence on record reveals that the pellets found on the body of the deceased and his blood as well as other articles seized from the spot were referred to C.A. Ballistic expert’s report was received about the pellets, which were 61 in numbers. 13 In view of medical evidence including P.M. Report, it is clear that on 2.4.2000 early in the morning, Narad Yadav was shot with a fire arm i.e., country-made pistol or shot gun and from the shot gun, large number of pellets entered into the body of the deceased causing 14 the injuries. He died about 13 days after the incident and cause of death was septicemic shock due to fire arm injuries. Neither P.W.8 Dr. Manik Sangale, who had conducted post-mortem examination nor any other Doctor, who had treated Narad Yadav deposed that injuries suffered by him were sufficient in the ordinary course of nature to cause death. The assailant did not use a weapon from which a bullet could be fired nor he shot at chest, which could immediately cause fatal injury to the heart or lungs or on the head, which could damage the brain. The assailant fired at the abdominal part of his body and caused these injuries due to old disputes and strained relations between the parties. From the act of the accused no.1, it does not appear that he had intention to cause death. Medical evidence does not show that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, therefore, case does not fall in any of the four clauses of Section 300 which defines murder. Under Section 299 offence of culpable homicide is committed by doing of an act (a) with the intention of causing death or (b) with the intention of causing such bodily injury as is likely to cause death (c) with the knowledge that the act is likely to cause death. The assailant could be convicted for the offence of culpable homicide not amounting to murder as he intended to cause such bodily injury as 15 was likely to cause his death, therefore, case would fall under Section 304 Part I of the I.P.C. In the present case, the learned Additional Sessions Judge convicted the accused no.1 for the offence punishable under Section 307, i.e., attempt to commit murder. After reading the whole judgment it is not clear as to why and how the learned Additional Sessions Judge could convict the accused no.1 for the offence of attempt to commit murder under Section 307, when, because of the act done by him the person had died. Explanation 2 to Section 299 of the I.P.C. provides that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment, the death might have been prevented. In view of this, merely because deceased Yadav died due to the septicemic shock it could not be held that the accused was not responsible for his death. It is possible that with better and more skillful treatment, septicemia would not have developed and death could be prevented. However, septicemic shock itself was result of the injuries caused by fire arm in the said incident. Therefore, it could not be held that the accused was not responsible for death and that he was guilty of only the offence of attempt to commit murder and that death was because of some other reasons. In view of the Explanation 2 16 to Section 299, death was caused due to bodily injuries, which were caused by the accused no.1 and, therefore, he would be responsible for the death even if with better and skillful treatment his death could have been avoided. Taking into consideration these circumstances, I find that the learned trial Court was wrong in convicting the accused for the offences punishable under Section 307 of the I.P.C. He should have been convicted for the offence punishable under Section 304 (I), which is punishable with imprisonment for life or imprisonment which may extend to 10 years and also fine. Incidentally same punishment is provided for the offence of attempt to commit murder if the injury is caused. The trial Court awarded sentence of R.I. for seven years with fine. Possibly for the offence under Section 304 (I) also accused could have been awarded similar sentence. The learned APP made a statement that the State has not preferred any appeal against the acquittal for the offence punishable under Section 302 or against conviction under Section 307 I.P.C. only. The learned counsel for the accused/appellant made a statement that the accused has already undergone sentence and has been released. Record reveals that he was arrested in 2000 and was never granted bail, therefore, by this time, he must have completed his sentence and be released. Therefore, at such belated stage, I do not feel 17 it proper to invoke revisional jurisdiction and to interfere in the conviction and sentence awarded by the trial Court. 14 In view of the evidence on record, prosecution has proved beyond reasonable doubt that the accused no.1 Shriprakash Singh had fired from the countrymade pistol or shotgun and caused injury resulting into death of Narad. I see no reason to interfere in the impugned order. 15 For the aforesaid reasons, appeal stands dismissed. (J.H. BHATIA,J.)