:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO.639 OF 1994 Laxman Vithal Khirade age 30 years, Occupation Watchman, residing at Survey No.74, Bombelwale Chawk, Sayyednagar, Hadapser, Pune. .. Appellant (Org.Accused) Vs. The State of Maharashtra .. Respondent Mr. Nitin Jamdar for the appellant. Mr. V.B. Konde-Deshmukh, APP for Respondent-State. CORAM : S.S. PARKAR & S.R. SATHE, JJ. CORAM : S.S. PARKAR & S.R. SATHE, JJ. CORAM : S.S. PARKAR & S.R. SATHE, JJ. Date : December 10, 2004. Date : December 10, 2004. Date : December 10, 2004. ORAL JUDGMENT: (PER S.S. PARKAR,J.): ORAL JUDGMENT: (PER S.S. PARKAR,J.): ORAL JUDGMENT: (PER S.S. PARKAR,J.): 1. This appeal is filed challenging the Judgment and Order dated 22/9/1994 delivered by the II Additional Sessions Judge, Pune convicting the appellant for the offence of murder of his own wife and sentencing him to RI for life and to pay a fine of Rs.300/- in default to suffer RI for nine months in Sessions Case No.119 of 1994. 2. The prosecution case briefly narrated is as under:- . The incident of assault took place on the night of 13/1/1994 in the house of the accused at :2: about 9 p.m. immediately after the dinner. On the night of the incident there was Pooja in the house of the accused. Deceased Kamal, her father, her brother Sudhakar and one Sunil Waikar, the friend, took dinner. Complainant Sanjay PW 3, the brother of deceased Kamal, had come to the house when others were taking dinner. He did not join others for dinner because he had to take bath. After taking the dinner Kamal’s father, brother and friend Sunil Waikar went outside the room and were gossiping there. The accused had some talk with his wife Kamal and he picked up kitchen knife and raised his hand to assault his wife Kamal. Complainant Sanjay rushed to rescue Kamal but accused pushed him back and assaulted Kamal on the right side of her neck. Hearing the cry of Kamal, her brother Sudhakar, father and Sunil Waikar went inside the room while the accused ran away from the house. Complainant Sanjay told his father, brother and Sunil Waikar that accused assaulted Kamal. She was taken to Sane Guruji Hospital by Sudhakar, her father and Sunil Waikar where she was given first aid and the doctor advised to take her to the Sassoon Hospital because of the profuse bleeding. She was thereafter removed to KEM hospital in Pune itself where initially PW 4 Dr. Rajesh Walvekar attended to her and on seeing the serious condition and continuous :3: bleeding of the patient, he called senior doctor Mrs. Mehru Mehta PW 6. She advised immediate operation and, therefore, Kamal was taken to the operation theatre, where she died succumbing to her injury. Message was already given to the police station from the said hospital about the injured patient and, therefore, police had arrived in that hospital when Kamal was still in the operation theatre. After some time the police were told about the death of Kamal. Police recorded the complaint (FIR) of PW 3 Sanjay Sindhankar, who is the brother of Kamal and is an eye witness to the incident. His complaint is at Exh.21 which was recorded on that night before 3 a.m. Thereafter crime was registered for offence of murder against the accused. The police had gone out in search of the accused. Accused was arrested by 5.30 a.m. in the morning from the house of his mother which is situated about 150 metres from the house of the deceased where she was assaulted. The clothes of the accused were also seized under panchanama. His shirt was having blood stains. Inquest panchanama Exh.13 was drawn. In the morning spot panchanama Exh.15 was drawn. The statements of the witnesses were recorded. After the arrest of the accused, while in custody, he made statement and volunteered to produce the knife from the place where he had thrown :4: it. At his instance blood stained kitchen knife was recovered from the bushes from near the house where the incident had taken place. Post mortem on the dead body was performed. Blood stained clothes of the deceased also were attached and seized under panchanama. The clothes of the deceased as well as the accused and other muddemal articles, including kitchen knife (Article 10) were sent to the office of C.A. for examination. As per the report of the C.A. Exh.10 blood of group "A" was found on the shirt of the accused as well as the clothes of the deceased and the knife produced at the instance of the accused. The blood sample of the accused was also taken and sent to the office of C.A. and as per the C.A. report Exh.11 his blood group was "B". After completion of the investigation, charge-sheet was filed and the case was committed to the Sessions Court. 3. Before the Sessions Court, charge was framed against the accused for offence of murder under Section 302 of IPC, to which he pleaded not guilty. On behalf of the prosecution 11 witnesses were examined. The complainant Sanjay Sindhankar who is the brother of the deceased and was an eye witness to the incident has been examined as PW 3. The other :5: important witness is Sunil Waikar, the friend of the deceased and PW 3 Sanjay who was present in the house of the deceased on the night of the incident. He has been examined as PW 9. Prosecution has examined four medical officers. Dr. Sanjay Divakar, who attended the patient in the Sane Guruji Hospital, has been examined as PW 7. Dr. Rajesh Walwekar, who first attended the patient in the KEM Hospital, Pune has been examined as PW 4, while the senior doctor from the KEM Hospital, Pune Dr. Mrs. Mehru Mehta has been examined as PW 6. Dr. Laxmikant Bade, attached to Sassoon Hospital, Pune, who conducted post mortem on the dead body has been examined as PW 5. PW 1 is Arun Dhere, who had acted as panch for the spot panchanama Exh.15, while PW 2 is Bandu Pardeshi, who had acted as panch for the seizure of the clothes of the accused under panchanama Exh.18. PW 8 is Baban Tupe, who had acted as panch for the recovery of knife at the instance of the accused under panchanama Exh.32. PW 10 is Vijay Dalvi, the Administrative Officer who had investigated the case. Lastly, prosecution has examined PSI Abaji Ahivale as PW 11, who recorded FIR and registered the crime. The defence of the accused was of total denial and false implication. As per his statement under Section 313 he was not present at the time of the incident. In the early morning at about 5 :6: a.m. he learnt that his wife fell down and received injuries and police arrested him. 4. After considering the entire evidence on record, the trial judge by his impugned judgment and order dated 22/9/1994 convicted the appellant-accused for offence under Section 302 of IPC and sentenced him as aforesaid, which is under challenge in this appeal. 5. Mr. Jamdar the learned advocate appearing for the appellant-accused, firstly, contended that there are omissions and contradictions in the evidence of complainant Sanjay PW 3 and PW 9 Sunil Waikar, the friend, who was present on that night of the incident and, therefore, the evidence of the complainant should not be believed. He also argued that because Sanjay PW 3 was staying with the couple and was not working, the accused used to ask him to work and to stay somewhere else and, therefore, Sanjay PW 3 had grudge against the appellant and, therefore, he falsely implicated him. He then contended that in the history of the injury allegedly given by the patient to Dr. Walvekar PW 4 it was stated that it was a case of accident and the court should accept the said history recorded by the doctor for acquitting the accused. Thirdly, he contended that prosecution has not :7: examined important witnesses like the daughters of the deceased and the other brother of the deceased and therefore, adverse inference should be drawn. Lastly, he contended that since the prosecution case is of single stab injury it could be a case of 304 Part II of IPC. 6. So far as the injury of deceased Kamal is concerned, Dr. Divakar (PW 9), who was Resident Medical Officer of Sane Guruji Hospital, has deposed that he saw a wound on the neck from which the blood was oozing and then he dressed the wound and advised to take the patient to the Sassoon Hospital. PW 4 Dr. Rajesh Walvekar, who was the medical officer, attached to KEM Hospital, Pune has stated that the patient was brought to the hospital at about 11.15 p.m. On examination he found following injury:- 1. There was a deep penetrating injury - on the right lower neck, that was just above the Clavicle bone, the depth was 7 to 8 cm. The length was 2 to 2 cm and breadth about 1/2 cm. 7. Dr. Walvekar PW 4 has deposed that injury was profusely bleeding and the patient was in a shock. He consulted senior doctor and then it was decided to :8: operate the patient and, therefore, gave six bottles of blood to the patient. Then there is evidence of senior doctor Mrs. Mehru Mehta PW 6 from KEM Hospital, Pune. She deposed that the patient was straight way taken to the operation theatre from the casualty department because patient was bleeding very profusely. According to her there was wound on the neck from which the blood was oozing. The condition of the patient was critical and the Assistant doctor put his thumb on the wound with a view to prevent the bleeding. According to her they found the main artery and vein to the arm was cut and though both the artery and vein were tied at both ends, the heart of the patient had stopped. But with a cardiac massage and ventilations, the heart was revived and the patient was taken to recovery room. Thereafter patient had cardiac arrest. All efforts to resuscitate were made and efforts continued for atleast half an hour. All this time, her pupils remained dilated which is a sign of brain death. Thereafter patient was declared dead. Lastly, Dr. Bade PW 5, who conducted post mortem examination on the dead body, noticed following injuries on external examination:- 1. Surgical wound of venesection medial malleolus right leg. :9: 2. Surgical wound of inter costal drain, rubber tube 4 1/2 below right axilla - Rubber tube present. 3. Stitched incised wound - 3/4" in length, 3" below right ear and tow and 1/2" from midline of neck 1/4" above lateral end of Injury No.4. Muscle deep with one stitch. 4. Stitched wound - 1 1/2" right lateral to sternal notch on right side of neck measuring 4" in length with 12 stitches oblique in direction. . On internal examination he found following injuries:- 1. Sutured sub-clavical artery, vein along with few muscle fibree at places, upper and lower end seperated. 2. Stab injury on pleurs and right lung upper lobe through and through, wound of entry measuring 3/4" in length and breadth 1/4" wound of exit on lower surface of upper lobe measuring 3/4" X 1/4" wound of entry sutured. 3. Stab injury on upper surface of lower lobe of lung measuring 3/4" x 1/4" x 1/2". 4. Clean cut fracture of right color bone in middle Surgical. 8. The cause of death was given as shock due to stab injury. According to this doctor external and internal injuries were sufficient in the ordinary course of nature to cause death. He has deposed that the injury of Kamal was possible by the weapon knife :10: (Article 10) which was shown to him. According to him in view of the injury to the lung, upper bone through and through and superior surface of lower lobe, sufficient force would be required to cause those injuries, though suddenly. This he has deposed inspite of the fact that when the dead body was brought to his hospital, the history was of fall in the house. 9. From the medical evidence no doubt it is proved that deceased had suffered homicidal death because of the injury caused to her with knife. The injury which was incised wound and which was also described as stab injury was possible with an assault by a knife like article no.10 which was made by the accused and, therefore, also corroborates the ocular evidence that accused had assaulted the deceased on her neck with kitchen knife article no.10. 10. However, relying on the history of injury recorded in the KEM hospital and also at Sane Guruji Hospital, it was vehemently contended on behalf of the defence that it was an accidental death. As per the evidence of Dr. Divakar (PW 7) who was attached to Sane Guruji Hospital in Pune, the brother of the patient told him that patient had received injury due :11: to fall on iron cupboard. The said doctor had brought original register and had produced the extract of the register in his own hand writing under his signature at Exhs. 29 and 30. In Exh.30 the history has been mentioned as due to fall of the cupboard. A little below in column no.F, it is mentioned that "Brother not giving proper history". The injury is described as follows:- "Deep incised wound on neck near medial end of R clavicle." . There is also mention of "Profuse Bleeding". In the other column it has been mentioned "semiconscious, Pupils constricted not reacting. Mild froth to mouth - Dressing done - Ref. to Sassoon. 11. From the above extract Exh.30 it is clear that there was deep incised wound on the neck of the patient and there was profused bleeding. It is further clear that patient was semiconscious and her pupils were not reacting. There was also froth coming from the mouth and, therefore, the patient must not be in a position to give history. Doctor has deposed :12: that the history given due to fall of cupboard has been given by the brother. The remark on the aforesaid extract is important that "Brother not giving proper history". This means that according to the said doctor the history of injury due to the fall of the cupboard was not correct. In other words an injury received by the patient could not have been caused by the fall of the cupboard. Reliance is mainly placed on behalf of the defence on the evidence of PW 4 Dr. Walvekar, attached to KEM Hospital, Pune. He appears to be a very junior doctor who was 26 years old at the time of giving evidence in this case. He has deposed in the cross-examination that he had taken the history of the patient personally and at the time of taking the history the patient was conscious and well oriented. According to him the patient gave the history of "accidental, penetrating injury due to nail due to fall while putting on bulb around 9.00 p.m.". From the nature of the injury and the condition of the patient it does not appear that the patient was in a position to give history of the injury. He has produced on record the extracts of the case papers from the KEM hospital which are Exh.24. Perusal of the said case papers show that on page 5 thereof, in the date column, the date given is 13/1/1994 at 11.15 p.m. when the patient was admitted. Name of the :13: patient was shown as Khirade K.L. History of injury mentioned on that page is as follows:- " penetrating injury on the Rt. side of the neck." . It is further stated that on admission she was in profound shock with impalpable peripheral pulses. Inspite of giving her haemacceal 1 lit + 1 0 BT her condition deteriorated. Thereafter there is mention that Dr. Mrs. Mehta was informed and she came within 10 minutes. He further stated that there was massive haemorrhage controlled throughout the transit from casualty to OT by strong finger pressure. Patient became unconscious in the OT. It is pertinent to note that on that sheet there is no mention as to how the injury was caused. The one more sheet of the similar type is produced in the identical hand writing at page 8, in which patient’s name was mentioned as Khirade Kamal. The date and time given is same i.e. 13/1/1994 at 11.15 p.m. Here the history was mentioned as follows:- "History given by patient herself. History :14: taken by Dr. Walvekar. Alleged H/O accidental penetrating injury due to nail due to fall while putting on bulb at around 9.00 p.m." . The condition of the patient was mentioned as follows:- "O/E - peripheral pulses not palpable - BP not recordable, patient in shock - conscious patient well oriented". 12. It is pertinent to note that this doctor had produced two extracts both recorded on the same date and same time in respect of the same patient. On one page i.e. at page no.5 there is no mention about the history given by the patient nor it mentions as to the manner in which injury was caused. While on the said page no.5 it is mentioned that on admission patient was in profound shock with impalpable peripheral pulses and inspite of some treatment her condition deteriorated, but in another sheet i.e. at page 8 of those case papers it is mentioned that patient was conscious and well oriented. In our view this undoubtedly shows that this young and inexperienced doctor who was hardly 26 years old not at the time of the admission of the patient but at the time of giving :15: evidence in the court had tried to oblige the accused by preparing new sheet at page no.8 which is different from the earlier sheet at page no.5 which must be originally prepared. In this new sheet it has been specifically mentioned that the history was given by the patient herself and history taken by Dr. Walvekar which is not found in the earlier sheet prepared on the same date and time immediately on the admission of the patient. There was no necessity for this doctor to write as history taken by Dr. Walvekar. If Dr. Walvekar had noted down history in his own hand writing it was not necessary to mention it as history taken by Dr. Walvekar. In several such medical case papers which are produced before the courts and perused by us, we had never found the doctor mentioning in the history sheet as to which doctor had taken the history. Moreover, while on the earlier sheet, there is mention that the patient was in profound shock with impalpable peripheral pulses and her condition deteriorated, which undoubtedly creates impression that the patient must not be in a position to give history, in the new sheet the doctor writes that the patient was conscious and well oriented. It is, therefore, clear that this improvement was made by the said doctor subsequently with a view to favour and oblige the accused. :16: 13. In his examination-in-chielf also Dr. Walvekar has deposed that injury was profusely bleeding and the patient was in shock and he started giving medical treatment. He has further stated that he immediately consulted senior Dr. Mrs. Mehta who came immediately to casualty ward and after consulting her it was decided to operate the patient. He further states that the patient was given six bottles of blood and she was taken to the operation theatre. In the operation theatre, doctor tried to stop the bleeding and the patient got cardiac arrest and she died. He has also deposed that the injuries could be possible with the weapon like knife (Article No.10) and that type of injury was not possible if the person falls on a cupboard. From the evidence of the above four doctors and the initial remarks made by this very doctor PW 4 in the case papers, it is clear that there was assault on the deceased with a knife and she had received homicidal death. From the nature of injury or injuries and the fact that there was injury to the lung there can be no doubt that the injury must have been caused by use of knife article no.10 as stated by the complainant, an eye witness to the incident and the history recorded by Dr. Walvekar PW 4 is palpably false. In any way, it is inconsistent with the injury :17: and the medical papers as well as evidence of different senior medical officers examined on behalf of the prosecution. 14. The tendency on the part of this doctor (PW 4) to show favour to the accused is also obvious from the tenor of his deposition which is contrary to the deposition of other three more senior doctors who have been examined on behalf of the prosecution and is also inconsistent with the case papers initially prepared by him in KEM Hospital and his deposition in his examination-in-chief. For the first time in the cross-examination he states that he had taken the history of the patient personally and at the time of taking history, the patient was conscious and well oriented and it was the patient who gave the history of accidental penetrating injury due to nail due to fall while putting on bulb around 9.00 p.m. Apart from the fact that from the record, medical papers and the evidence of Dr.Divakar (PW 7) of Sane Guruji Hospital it is quite clear that patient must be unconscious and not in a position to say anything as to the cause of injury, even the case paper written by this very doctor (PW 4) on page 5 of the medical papers produced by him shows that the patient was in profound shock with impalpable peripheral pulses and :18: her condition had deteriorated and the patient had become unconscious in the operation theatre. It is pertinent to note that while in the case papers of Sane Guruji Hospital the history is mentioned as due to fall of cupboard, this doctor on the subsequent page no.8 gives the history as being given by the patient herself that it was accidental penetrating injury due to nail due to fall while putting on bulb around 9.00 p.m. 15. Firstly, it is difficult to accept this version of this doctor because the patient with such profused bleeding due to neck injury, when the artery and vein were cut, could not have been in a position to give the history. Secondly, this history has been written not on the very first page on the admission of the patient but on the subsequent page. Thirdly, earlier when the patient was immediately taken to Sane Guruji Hospital the history was given by the brother at about 9 p.m. but at 11.15 p.m. i.e. about more than two hours after the incident when the lady is taken to KEM Hospital, Pune she is shown to have herself given the history of injury which does not at all appear to be possible in view of the serious injury and profused bleeding. The doctor of Sane Guruji Hospital has stated that when she was admitted :19: to that hospital she was semiconscious. Fourthly, the addition has been made in the KEM Hospital giving history that the injury was caused due to nail due to fall while putting bulb around 9.00 p.m. without any reference to the fall of the cupboard as recorded in Sane Guruji Hospital. This must have been entered subsequently by the doctor (PW 4) because he must have felt that due to the fall of the cupboard the lady could not have got incised wound on her neck which resulted into cutting of the artery and vein to the neck. The desire on the part of this doctor (PW