1 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.346 OF 1997. 1. Maruti S/o Shankar Shinde, Age 54 years, 2. Kalabai Maruti Shinde, Age 42 years, 3. Dropadabai Ganpat Shinde, Age 52 years, 4. Raju Ganpat Shinde, Age 21 years, All R/o Shirdi, Maliwada Lane, Tq. Kopergaon, Dist.Ahmednagar. ... Appellants. Versus The State of Maharashtra ... Respondent. ... Mr.S.P.Chapalgaonkar, advocate for the appellants. Mr.K.S.Patil, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 01.10.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment 2 rendered by learned 2nd Additional Sessions Judge, Shrirampur in Sessions Case No.425/1994, whereby appellant Nos.1 and 4 have been convicted for offence punishable U/s 304-II read with Section 34 of the I.P.Code and have been sentenced to suffer rigorous imprisonment for two (2) years each and to pay fine of Rs.500/- (Rupees five hundred) each, in default to suffer rigorous imprisonment for one (1) month and the appellant Nos.2 and 3 have been convicted for offence punishable U/s 323 read with Section 34 of the I.P.Code and have been sentenced to suffer simple imprisonment till rising of the Court and to pay fine of Rs.500/- (Rupees five hundred) each, in default to suffer simple imprisonment for one (1) month. 2. Indisputably, deceased Mohan was the nephew of appellant No.1 Maroti. The appellant No.4 Raju is also his nephew being son of another brother. The appellant No.2 Kalabai is wife of appellant No.1 Maroti and appellant No.3 Dropadabai is widow of his another brother. The house property of appellant No.1 Maroti is 3 situated on eastern side of temple known as "Sawata Mandir" situated on New Pimpalwadi road which joins western Nagar-Manmad road. There is an open space between the temple and the residential house of appellant No.1 Maroti. There is drainage between his house and new Pimpalwadi road. The alleged incident is said to have occurred as a result of dispute in respect of the small open space sandwiched in between the temple and residential house of appellant No.1 Maroti. 3. Briefly stated, the prosecution case is that on 3.10.1994 deceased Mohan went in front of house of appellant No.1 Maroti along with his servant by nickname "Jibhau". They started removing earth which was stacked on the open space by appellant No.1 Maroti. The appellant No.1 Maroti caught hold of him by neck and abused him. He gave slap on face of Mohan. By that time, appellant No.2 Kalabai rushed there. She caught his testicles and squeezed them, whereas appellant No.3 Dropadabai caught his hair and assaulted on his back. The appellant No.4 4 Raju and appellant No.1 Maroti gave kicks and fist blows on his abdomen and nose. He was injured. He went to private hospital of PW Dr. Pandit Shelke, somewhere after mid-day. He was given some treatment for stomach ache and was sent home. In the same evening, he again went to PW Dr.Shelke and complained of pain in abdomen. He was treated and was sent home in the evening. For the third time in the morning of 4.10.1994, he again went to Hospital of PW Dr.Shelke. He told PW Dr.Shelke that abdominal pains did not subside and he was suffering from acute pains. He was restless. Then, PW Dr.Shelke called for his relatives and also summoned PW Dr.Deshmukh, who is surgeon and attached to Shri Sainath Hospital, Shirdi. On clinical examination, PW Dr.Deshmukh advised to shift injured Mohan to Shri Sainath Hospital which is a trust hospital. It was decided to operate the abdomen of injured Mohan since he was suffering from acute pains and the blood pressure was low. During course of operation PW Dr.Deshmukh, noticed perforation caused to the intestine of injured Mohan. There was some fecal particles/matter in the intestine. 5 The intestine was cleaned and the perforation was closed. Injured Mohan's statement was recorded by the Police. So also, his dying declaration was recorded by Executive Magistrate. He died on 6.10.1994, as a result of septicemia which had developed. The dead body was subjected to postmortem examination. On the basis of material gathered during course of investigation, the appellants were jointly charge-sheeted for offences punishable U/ss 302 and 504 read with Section 34 of the I.P.Code. 4. At the trial, the prosecution examined in all thirteen (13) witnesses in support of its case. The learned Additional Sessions Judge came to the conclusion that death of Mohan did occur due to physical assault mounted by the appellant Nos.1 and 4 but they were not having any intention to cause his death. The learned Additional Sessions Judge held that the appellant Nos.1 and 4 shared common intention and had reason to know that Mohan may die due to the severe beating on his abdomen. Therefore, they have been held guilty for offence punishable U/s 6 304-II read with Section 34 of the I.P.Code and sentenced as described hereinabove. The learned Additional Sessions Judge further held that the appellant Nos.2 and 3 did not share common intention with the appellant Nos.1 and 4 and that they are guilty only for the offence punishable U/s 323 read with Section 34 of the I.P.Code for which they have been convicted and sentenced as described hereinabove. 5. Heard learned counsel and learned A.P.P. 6. Before I proceed to embark upon scrutiny of the prosecution evidence, let it be noted that there is no eye witness account about the incident in question. Though, it is stated that one of the villager had been to house of deceased Mohan so as to inform his wife about the ongoing incident, yet, he is neither named as witness in the charge-sheet nor was examined. Though mother of deceased Mohan was examined as an eye witness, yet, she was declared hostile. It has come on record that residential house of 7 deceased Mohan is at a little distance away from house of appellant No.1 Maroti. It is obvious that presence of any of his family member at place of the incident was not expected. The prosecution has come out with a case that deceased Mohan had been to the disputed open site along with his servant by name "Jibhau". It appears from the record that PW 5 Atmaram is the servant who had accompanied deceased Mohan in the relevant morning to the open place. He was known by nickname "Jibhau". He himself states that deceased Mohan used to call him as "Jibhau". 7. Now, it is pertinent to notice that PW Atmaram is the only eye witness who could shed some light on the genesis of the incident and the manner of alleged assault. His version purports to show that deceased Mohan had taken him to the disputed open site as a labour. He deposed that deceased Mohan had instructed him to remove the clay from said open plot and, therefore, they had gone to the place. His version further purports to show that he attempted to remove the clay and other articles from the spot but appellant No.1 8 Maroti directed him not to do so. He further deposed that he returned to his house, whereas Mohan remained at the spot. According to him, on the way back home, he met with mother of deceased Mohan to whom he narrated that he was returning because appellant No.1 Maroti prevented him from doing the work at the spot. Thus, it is manifest that PW Atmaram did not personally witness the incident of assault. He was not declared hostile. His cross-examination would show that he did not disclose the fact pertaining to the incident of the relevant morning until death of Mohan. The version of PW Jaishree is also of no much avail to the prosecution. She is wife of deceased Mohan. Her evidence purports to show that the appellants had stored fire-wood, sand, bricks and other articles on their open site. Her version purports to show that deceased Mohan and PW Atmaram had gone to that open site around 9-30 a.m. on 3.10.1994 with a view to remove the articles which were stored by the appellant No.1 Maroti on their plot. Her version purports to show that she had come to know about the incident from one person. She did not go to 9 the spot of the incident. Her testimony is based on hearsay information. In fact, the learned Additional Sessions Judge should not have recorded her narration to the extent of hearsay information. Her version further purports to show that when she met Mohan in the Hospital then he narrated to her that appellant No.1 Maroti had abused him, appellant No.2 Kalabai had caught his private part and appellant No.3 Dropadabai caught his hair, whereas appellant No.4 Raju had beaten him by means of fist blows. She narrated as to how Mohan suffered from acute abdominal pains on 3rd and 4th October 1994. 8. Cross-examination of P.W.Jaishree reveals that the open site in question is situated adjacent to the house of appellant No.1 Maroti situated on Pimpalwadi road. She admitted that she along with deceased Mohan used to reside in Laxminagar locality. She further states that the open site belonging to them is a small piece of land comprising 10 x 10 ft. She further admitted that until death of her husband, she never had gone to Police Station. No information 10 was given about the incident of assault till Police statement of injured Mohan was recorded for the first time in the evening of 4.10.1994 vide Exh.27. 9. As stated before, mother of deceased Mohan had allegedly rushed towards spot of the incident after receiving information regarding the assault mounted on him. PW 3 Indubai, who is mother of deceased Mohan deposed that certain construction work of house property was going on in the premises of appellant No.1 Maroti and, therefore, they had stored wood, clay, stones etc. on that open plot. She narrated that around 12 noon she learnt about shifting of injured Mohan to the Hospital of PW Dr.Shelke. She did not go to the spot after she had gathered the information about the incident of assault. She was declared hostile by the prosecution. Nothing of much importance could come out from her cross- examination. She was confronted with her Police statement regarding oral dying declaration given by deceased Mohan regarding the incident in which he had narrated as to how appellant No.1 Maroti 11 and appellant No.4 Raju had assaulted on his abdomen and other accused i.e. the womenfolk also assaulted him by squeezing testicles and pulling his hair. Indeed, the version of PW Indubai neither is of help to the defence nor is of much help to the prosecution. However, she admits unequivocally that on next day of the incident, Mohan was shifted to Shri Sainath Hospital and his condition was more serious. She admits, in clear terms, that there was no talk between them during the relevant period when he was under treatment in Shri Sainath Hospital. In other words, Mohan was unable to speak while he was being treated in Shri Sainath Hospital. It has come on record that due to acute abdominal pains, he was restless. He was whimpering. 10. The entire edifice of the prosecution case hinges upon written and oral dying declaration of deceased Mohan. The first dying declaration is said to have been recorded by PW 10 HC Deorao vide Exh.27. His version purports to show that on 4.10.1994 at about 8-30 p.m. he received a Memorandum from Hospital of PW 12 Dr.Shelke regarding the incident of assault and admission of injured Mohan in that Hospital. He visited the Hospital of PW Dr.Shelke and recorded statement of injured Mohan in presence of PW Shelke. The statement was recorded around 9-50 p.m. It has come on record that PW Dr.Deshmukh had examined injured Mohan somewhere in the noon time and had advised to shift him to Shri Sainath Hospital. Thus, the dying declaration (Exh.27) is said to have been recorded just before injured Mohan was shifted to Shri Sainath Hospital from the Hospital of PW Dr.Shelke. In other words, injured Mohan himself did not approach the Police nor had disclosed the incident of assault to anyone till then. It was only after PW Dr.Deshmukh gave opinion that there was something serious which required injured Mohan to be operated, he disclosed about the alleged incident of assault. 11. The version of PW 6 Dr.Shelke would show that on 3.10.1994 at about 1-30 p.m. deceased Mohan visited his Hospital with complaint of severe abdominal pains. There was 13 an injury on his nose. According to PW Dr.Shelke, he inquired with injured Mohan. The latter told him that due to abdominal pains, he suffered from giddiness and had fallen on the ground which caused injury to his nose. Then PW Dr.Shelke gave him treatment and sent him back home. On the next day too, injured Mohan did not disclose anything about the incident of assault. Obviously, until PW Dr.Deshmukh found that something was serious which required abdominal operation of injured Mohan, the alleged story of assault was not spelt out by him. It is probable that after the opinion of PW Dr.Deshmukh was expressed, injured Mohan decided to disclose the story of the alleged assault. Until then he did not find it necessary to disclose such story because he did not consider the incident of assault as serious one. For, he had not received any visible injury except and save a minor injury on the nose. 12. What transpires from the versions of PW Dr.Shelke and PW Dr.Deshmukh is that there was no proper treatment given to injured Mohan for about 14 36 hours after the incident. The reasons for such absence of proper treatment could be attributable to either suppression of the fact of incident by injured Mohan or absence of proper diagnosis of PW Dr.Shelke at the initial stage. It is pertinent to note that PW Dr.Shelke is a Homoeopath. He is not an expert in the field of gastroenterology. It appears that he gave treatment to reduce the pains suffered by injured Mohan along with some supportive treatment. It was only when the pains had not subsided for about 36 hours after commencement of the initial treatment that PW Dr. Deshmukh was summoned. 13. At this juncture, it may be noticed that PW Dr.Shelke admits that perforation to the intestine could be caused due to ulcer. He further admits that such perforation is caused due to use of medicine or drugs if given to the patient for continuous period of 6/7 days. He further admits that if medicine is administered during the period of gastroenteritis then also such intestinal perforation may occur. He further admits that such injury could be possible 15 due to fall on abdomen. Needless to say, there are multiple reasons which could have caused the intestinal perforation that was noticed only during the course of abdominal operation of deceased Mohan. It is further admitted by PW Dr. Deshmukh, that initially on 3.10.1994, Mohan had given history of fall on the ground. 14. Considering the version of PW Dr.Deshmukh, it is amply clear that injured Mohan was found to be restless due to acute abdominal pains. At the time of operation, PW Dr.Deshmukh, noticed that peritoneum was full of fecal matter and there was perforation of ileum. The observations in Dr.Modi's Medical Jurisprudence and Toxicology (twenty-third Edition - p 703) would show that in case of a punctured wound perforating a part of the body, there are two wounds, one of entry and the other of exit. The perforation in the present case was not caused by any pointed weapon. It is admitted by PW Dr. Deshmukh, that such type of perforation or rupture to the intestine could be caused due to fall on the abdominal part while running in 16 speed. 15. The second dying declaration (Exh.35) was recorded by PW 9 Shaligram. He was working as Special Executive Magistrate, Shirdi, at the relevant time. His version purports to show that on 5.10.1994, he recorded statement of injured Mohan as per his version. His version reveals that he did not take any proper care to ensure presence of Medical Practitioner/Officer during the course of recording of the dying declaration. He states that he has no knowledge whether after completing the recorded statement of injured it was necessary to obtain certificate of the Doctor. He admits that last two lines of the dying declaration are not in his own hand. He did not ensure that close relatives of injured Mohan were sent out from near his bed. The statement of mother of the injured Mohan i.e. PW 3 Indubai purports to show that injured Mohan was unable to speak since he was admitted in Shri Sainath Hospital and, therefore, they could not talk to him till his death. If this was his medical condition, it is difficult to rely on the 17 second dying declaration (Exh.35) which is said to have been recorded by PW Shaligram. He did not take necessary precaution while recording the second dying declaration (Exh.35). 16. So far as oral dying declaration given by deceased Mohan to PW Jaishree is concerned, it may be stated that there is nothing to indicate that appellant No.1 Maroti and appellant No.4 Raju had assaulted him on the abdomen. She vaguely narrated that her husband told her that appellant No.1 Maroti had abused him, appellant No.2 Kalabai had caught his private part, appellant No.3 Dropadabai caught hold of his hair and appellant No.4 Raju had beaten him with fist blows. She further narrated that Mohan told her that due to said beating, he had fallen on the ground and had become unconscious. The oral dying declaration of Mohan, in the terms which is narrated by PW Jaishree, is not in keeping with the written dying declaration (Exh.27). There is material inconsistency in these two dying declarations as regards assault by appellant No.1 Maroti and appellant No.4 Raju on abdomen of 18 deceased Mohan. Consequently, it is difficult to place implicit reliance on either of the dying declaration. If the oral dying declaration as narrated by PW Jaishree is to be accepted then it may be gathered that after the alleged physical assault, Mohan had fallen down and had became unconscious. There is corroboration to the story that he had became unconscious immediately after the assault. If it is accepted that he had fallen down after the physical assault then one can not rule out the probability that he had fallen down on the abdomen and had come in contact with hard/rough surface which might have caused perforation injury to his intestine. Considering these deficiencies appearing from the prosecution evidence, it may be stated that there is a reasonable doubt created as regards the act of appellant No.1 Maroti and appellant No.4 Raju in the course of alleged assault which is said to have taken place in the relevant morning. It can not be said with certainty that the perforation injury found on intestine of deceased Mohan was the proximate result of the assault mounted on him by either of the appellant. It need not be 19 reiterated that Mohan did not disclose such incident for about 36 hours after the relevant morning and it was only when the medical complications were brought to his notice by PW Dr.Deshmukh, that such a story was narrated by him nor his wife had lodged any report with the Police immediately after the incident. It has come on record that Police Station is situated at a very short distance from residential house of PW Jaishree. In this view of the matter, the conviction of appellant No.1 Maroti and appellant No.4 Raju for offence punishable U/s 304-II of the I.P.Code is based on shaky foundation. 17. Nextly, there is no tangible material on record to positively conclude that the perforation injury was result of the assault mounted by the appellant No.1 Maroti and appellant No.4 Raju on deceased Mohan. It is probable that he was suffering from ulcer and due to fall on the ground, the medical complications had occurred. It is also probable that there was prognosis due to absence of immediate and adequate medical treatment soon after the 20 hospitalisation of injured Mohan. One can not be oblivious of the fact that he died as a result of septicemia. The septicemia may have been caused due to absence of post operative care or due to the development of complications after the operation. There was fecal matter found in the intestine. This fact is indicative of there being already some medical problem which was aggravated subsequently. He was being given pain killers before he was operated. Under these circumstances, it is difficult to say that there was direct nexus between the incident of assault and cause of death of Mohan. The conviction of appellant No.1 Maroti and appellant No.4 Raju for offence punishable U/s 304-II read with Section 34 of the I.P.Code is, therefore, improper and unsustainable. 18. For a moment, even if it is assumed that deceased Mohan was assaulted on his abdomen by appellant No.1 Maroti and appellant No.4 Raju in the relevant morning then also it is rather difficult to say that either of them were having knowledge that the death would be the only result 21 of their such acts. For, there is absolutely no evidence on record to show that they excessively hit on his abdomen by force and so violently that normally any one could guess that such assault was fatal enough to cause the death. Even in his dying declaration and particularly, the oral dying declaration narrated by PW Jaishree, there is no tangible material to draw such an inference. In such a situation, the learned Additional Sessions Judge erroneously over stretched the circumstances to infer that appellant No.1 Maroti and appellant No.4 Raju could have knowledge about possibility of death of Mohan as a result of their so-called act of the assault on his abdomen. 19. Taking a stock of the situation and considering the impact of the entire evidence adduced by the prosecution, I am of the opinion that the above appellants could be convicted only for offence punishable U/s 323 read with Section 34 of the I.P.Code. The incident occurred way back in 1994. Initially nobody took it seriously and, therefore, injured Mohan also did not spell 22 out the alleged incident. The parties are related to the family members of deceased Mohan inasmuch he was real nephew of appellant No.1 Maroti. It appears that there was dispute regarding ownership of the open space which is sandwiched between the residential house of the appellant No.1 Maroti and the temple of Sawata Mali. It is amply clear that in the relevant morning Mohan and his servant had gone to the open site with a view to remove the clay, stones and other construction material which was placed by appellant No.1 Maroti for the temporary purpose. The incident sparked off at spur of moment. No weapon was used by either of the appellant. The only intention of the appellants could be to drive away Mohan and his servant who had come prepared to throw away the articles and other things from the open site. Considering these aspects, I am inclined to take a lenient view in respect of the sentence. 20. For the reasons aforestated, the appeal is partly allowed. The appellant Nos.1 and 4 are acquitted for offence punishable U/s 304-II read 23 with Section 34 of the I.P.Code and the sentence awarded to them is set aside. Instead they are convicted for offence U/s 323 read with Section 34 of the I.P.Code. They are sentenced to suffer simple imprisonment till rising of the Court and to pay fine of Rs.1,000/- (Rupees one thousand), in default to suffer simple imprisonment for six (6) months each. They are also directed to pay compensation of Rs.5,000/- (Rupees five thousand) each i.e. Rs.10,000/- (Rupees ten thousand) in toto to PW Jaishree i.e. widow