1 Cri-Appeal-532-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 532 OF 1991 1. Maruti Shankar Patil ) Age: 36 years,Occupation: ) Agriculturist, residing at Koparde, ) Tehsil Karvir, District: Kolhapur. ) 2. Bhiva Shankar Patil ) Age: 41 years, Occupation ) Agriculturist, residing at Koparde, ) Tehsil Karvir, District Kohapur. ) (Both at present in Kolhaur Central ) Jail, Kolhapur) ).. Appellants (Orig. accused Nos. 1 & 2). Versus Versus The State of Maharashtra )..Respondent Shri Shekhar Ingawale i/b. Shri Ujwal R.Agandsurve and Shri R.R.Bhosale, Advocates for the appellants. Shri Y.M.Nakhwa, APP, for the Respondent - State. CORAM: J.H.BHATIA,J. DATE : 29th November, 2010. JUDGMMEN 1. The appellants before this Court were the accused Nos. 1 and 2 in Sessions Case No.129 of 1990, in which by the Judgment dated 13.8.1991, the 2 Cri-Appeal-532-91.sxw learned Additional Sessions Judge, Kolhapur, convicted both the accused persons for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I read with Section 34 of I.P.C. and sentenced them to undergo R.I. for ten years and to pay fine of Rs.2,000/- each. The conviction and sentence are challenged by the accused in the present Appeal. 2. The prosecution case, in brief, is that deceased Bhiva Krishna Patil along with his wife Tulsabai PW-3, son Chandrakant and PW-2 Raghunath went from Village Koparde to Kolhapur for treatment of his son Chandrakant as well as for repairing the electric motor. They left the village at about 10 a.m. Deceased Bhiva and his wife Talsabai took their son Chandrakant to a doctor for treatment and during their absence PW-2 Raghunath was waiting with electric motor. After the treatment of Chandrakant, deceased Bhiva and his wife Tulsabai as well as son Chandrakant returned to the place where PW-2 Raghunath was present with the electric motor. After that PW-3 Tulsabai and her son Chandrakant proceeded to village Koparde by Bus while deceased Bhiva and PW-2 Raghunath remained at Kolhapur for some time for repairing of the motor, which required re-winding. However, the repair work could not be completed and therefore, deceased Bhiva and PW-2 Raghunath left Kolhapur to return to the village. They left Kolhapur by S.T.Bus at 4 p.m. and instead of going to their village Koparde, they got down 3 Cri-Appeal-532-91.sxw at Sangrul Phata or cross road, which is at the distance of 1-1/2 kilometers from the village Koparde. Both of them went to a hotel belonging to PW-5 Yeshwant for taking tea. The said hotel is situated near the sugar factory site at the distance of 3-4 furlongs from the said Sangrul cross- road. After taking tea, they started returning to the village Koparde. When they reached near the hut of one Dnyanu Patil, accused Nos. 1 and 2 came from the eastern side, armed with sticks and they started beating the deceased Bhiva Krishna Patil. They did not pay any heed to the request of PW-2 Raghunath not to beat the deceased. Therefore, PW-2 Raghunath immediately went to the village Koparde and informed about incident to PW-1 Dinkar Lahu Patil, whose wife happens to be the sister of PW-3 Tulsabai wife of deceased Bhiva, PW-1 Dinkar immediately proceeded towards the spot of the incident on a bicycle and when he reached the spot of incident, he found that Bhiva Krishna Patil was lying in front of the hut of Dnyanu Patil in injured condition. He had suffered several injuries on his legs and both the arms. PW-1 Dinkar Patil asked Bhiva Krishna Patil in respect of the injuries and injured Bhiva told that Maruti Shankar Patil and Bhiva Shankar Patil, who are accused Nos. 1 and 2 respectively, had attacked and beaten with sticks. Shortly thereafter PW-2 Raghunath came to the spot. PW-3 Tulsabai saw the crowd from a long distance and therefore, she also came to the spot almost immediately after the incident. Seeing the injuries and the condition of her husband PW-3 Tulsabai began to 4 Cri-Appeal-532-91.sxw weep. On this, injured Bhiva told her not to weep and he would be alright. He also informed his wife that both the accused , namely, Maruti Shankar Patil and Bhiva Shankar Patil had assaulted and beaten with sticks. PW-1 Dinkar arranged for a vehicle and then PW-1 Dinkar, PW-2 Raghunath, PW-3 Tulasabai and PW-4 Tarubai, who is wife of brother of deceased Bhiva, took injured Bhiva to C.P.R.Hospital, Kolhapur, where he was admitted at about 8.30 p.m. The Medical Officer examined him and found a large number of injuries. At about 10.30 p.m. injured Bhiva breathed his last. Meanwhile, police also came there. After his death, PW-1 Dinkar lodged FIR Exhibit 23 and on the basis of that PW-12 Narendra Waghmare, Police Inspector at the Karvir Police Station, registered Crime No.104/1990. It was revealed during the investigation that deceased Bhiva Krishna Patil had helped one Parubai, who was aunt of the accused persons, in disposing of her property. As she did not have any male issue, the accused persons did not like disposal of the property with help of the deceased Bhiva Krishna Patil and because of that they had assaulted him on 20.5.1989. At that time also deceased Bhiva had sustained several injuries. However, due to intervention of some persons that matter was settled. According to the prosecution, for the same reason, the accused persons again assaulted the deceased on 26.4.1990 and caused his death. 5 Cri-Appeal-532-91.sxw 3. During investigation, clothes of the deceased and the sticks used for beating came to be recovered on the basis of information given by accused No.1. Muddemal property was referred to the C.A. and C.A. reports were received. After investigation, police filed charge-sheet against both the accused and eventually the case was committed to the Court of Sessions. 4. Charge was framed against the accused for the offence punishable under Section 302 read with Section 34 of IPC and they pleaded not guilty. 5. On behalf of the prosecution, in all 12 witnesses were examined and several documents were also placed on record. The learned trial court on the basis of prosecution evidence, convicted and sentenced both the accused as stated above. 6. Before proceeding to deal with the evidence to establish that the accused nos. 1 and 2 had assaulted,injured and caused death of deceased Bhiva Krishna Patil,it will be useful to see the injuries, which were caused to him. 7. Evidence of PW-9 Dr. Laxman Tendolkar reveals that on 26.4.1990 in the evening, he was on duty as a Medical Officer. At about 8.30 p.m., Bhiva 6 Cri-Appeal-532-91.sxw Krishna Patil was brought to the hospital with a history of assault and several injuries on his person. He found the following injuries:- "1. Contused lacerated wound1½" x 4" above right elbow. 2. Contused lacerated wound ½" x ½" x 2" below the first injury. 3. Contused lacerated wound 1/4" x 1/4" on right wrist. 4. C.LO.W. 4" below the elbow over extensor aspect of left fore-arm. 5. C.L.W. ½" x 1/4" on the posterior aspect of the elbow. 6. C.L.W. 1" x ½" muscle deep near left kneejoint. 7. C.L.W. 1" x 1" right ankle. 8. C.L.W. 2" x ½" on right tendoachilles." Besides these contused wounds, he also noted five injuries, which were described as linear weal mark size about 4" x 1", and six contusions on the different parts of the body. About these injuries, he issued Medical Certificate Exhibit 40 and opined that all these 19 injuries found on his person could be caused with sticks. X-rays of the injuries were taken and fractures of right and left patella, right side radius and ulna and left side radius and ulna were detected. Thus, besides the 19 visible injuries on the body of his person, the x-rays revealed six fractures on both legs and both arms of the deceased Bhiva Krishna Patil. 7 Cri-Appeal-532-91.sxw 8. As per the evidence of PW-10 Dr. Dipak Patil, he performed the post- mortem examination on the dead body of Bhiva Krishna Patil on 27.4.1990 at about 3 a.m. and he also noted sutured injuries, weal marks, contusions and fractures as noted by PW-9 Dr. Laxman Tendolkar. He deposed that on the internal examination, nothing abnormal was found in the skull, brain and thorax. The autopsy surgery opined that the cause of death was "neorogenic shock due to multiple injuries and fracture." Accordingly, he issued Post-mortem report Exhibit 44. According to him, all these injuries were sufficient in the ordinary course of nature to cause death , though PW-9 had opined that individually none of these injuries were sufficient to cause death. Looking to the cross-examination of PW-9 Dr. Laxman Tendolkar and that of PW-10 Dr. Dipak Patil, it appears that on behalf of defence, there was no challenge either to the injuries fond on his person or to the cause of death. In view of this evidence, it is clear that it was a homicidal death. 9. Now, we have to see the prosecution evidence to bring home guilt to the accused persons. For this purpose, the prosecution mainly relies on the evidence of PW-2 Raghunath, who claims to be an eye-witness and that of PW-1 Dinkar, PW-3 Tulsabai, and PW-4 Tarubai, before whom the deceased had 8 Cri-Appeal-532-91.sxw made oral dying declaration that he was assaulted and beaten by the accused Maruti Shankar Patil and his brother Bhiva Shankar Patil i.e. the accused persons. 10. Evidence of PW-2 Raghunath and PW-3 Tulsabai goes to show that on the date of incident at about 9 or 10 a.m. they along with deceased Bhiva and their son Chandrakant had left village Koparde to go to Kolhapur by a tempo. Koparde is about 10 kms. from Kolhapur. According to them, the purpose of the visit was two-fold. Bhiva and his wife PW-3 Tulsabai wanted the treatment of their son Chandrakant by some doctor at kolhapur as the boy was not keeping well. Bhiva also wanted to get the electric motor repaired. In view of this, Bhiva had requested PW-2 Raghunath also to accompany him. As Raghunath had no specific work on that day, he accompanied them to Kolhapur. The evidence reveals that after they reached Kolhapur, deceased Bhiva and his wife Tulsabai took their son Chandrakant to a doctor and they requested Raghunath to remain with the electric motor, which was kept near the Bus Stand itself. Bhiva, his wife Tulsabai and son Chandrakant came back about 1½ hour after that. By that time, it was about 3 p.m. Bhiva asked his wife and son to go back to the village Koparde and he and Raghunath remained back at Kolhapur as the electric motor was to be repaired. Evidence of PW-3 Tulasabai shows that she along with her son reached Koparde by about 4 p.m. 9 Cri-Appeal-532-91.sxw 11. As per the evidence of PW-2 Raghunath, the mechanic told them that due to Shiv Jayanti, the electric motor could not be repaired on the same day. Therefore, at about 4 p.m., they again returned to the S.T.Bus Stand Rankapal within Kolhapur City. They boarded S.T. Bus, which would go upto their village Koparde. However, when the bus reached Sangrul cross road or Phata, deceased Bhiva and PW-2 Raghunath alighted from the bus and from there they went towards the hotel of Yeshwant Kashid PW-5 near sugar factory. After taking tea, they left for village Koparde. While they were proceeding towards the village and reached in front of the hut of one Dnyanu Patil, accused No.1 Maruti Shankar Patil and accused No.2 Bhiva Shankar Patil came there with stocks in their hands and started beating Bhiva Krishna Patil. Deceased Bhiva shouted and fell down because of the beating. According to PW-2 Raghunath, he requested the accused not to beat, but they did not stop and, therefore,he himself ran towards the village Koparde and he informed PW-1 Dinkar about the incident. The evidence of PW-1 Dinkar and PW-2 Raghunath shows that Dinkar immediately proceeded towards spot of incident on his bicycle while PW-2 Raghunath followed him by walk. He also accompanied deceased Bhiva to the hospital where he was admitted and finally died. 10 Cri-Appeal-532-91.sxw 12. Evidence of PW-1 Dinkar Patil shows that PW-2 Raghunath had come to his house at about 5.30 or 5.45 p.m. and had informed that Bhiva Krishna Patil was being assaulted by the accused Maruti Shankar Patil and Bhiva Shankar Patil near the hut of Dnyanu Patil. In view of this, PW-1 Dinkar told Raghunath to follow him and he himself proceeded to the spot of the incident on a bicycle. Within few minutes, he reached at the spot of incident. At that time, deceased Bhiva was lying in front of the hut belonging to Dnyanu Patil in injured condition. PW-1 Dinkar deposed that he asked injured Bhiva Krishna Patil about the injuries and Bhiva Krishna Patil told him that Maruti Shankar Patil and Bhiva Shankar Patil had beaten him and caused the injuries. PW-1 Dinkar asked him to have confidence and he would make arrangement for taking him to the hospital for treatment. Thereafter, PW-1 Dinkar went to the sugar factory from where he contacted a Taxi Union and finally arranged for a vehicle to take the injured Bhiva to the Kolhapur Hospital. Evidence also shows that when PW-1 Dinkar was near the spot of incident, PW-1 Dinkar, PW-3 Tulsabai and PW-4 Tarubai also reached there. 13. Evidence of PW-3 Tulsabai shows that she and her son Chandakant had reached their house at about 4 p.m. After that some household work was done and thereafter she went to flour-mill along with her son. According to her, 11 Cri-Appeal-532-91.sxw when she was on the way to flour-mill, she saw some persons running and she suspected that something wrong must have happened to her husband and, therefore, she also started running. Then she took lift in a jeep and reached the spot of the incident where she saw her husband lying with several bleeding injuries. According to her, she started weeping. However, her husband asked her not to weep and that he would be alright. On enquiry by her, her husband told that he was attacked by Bhiva and Maruti. According to her, when she reached there PW-4 Tarubai also came there. After that, her husband was taken to Kolhapur by a taxi. She herself, PW-4 Taruba, PW-1 Dinkar, PW-2 Raghunath and one Sakharam accompanied Bhiva to the hospital. Tarubai deposed that she was at village Koparde. In the evening, she saw some persons running towards the sugar factory and therefore she also proceeded towards sugar factory and at about 6 p.m. she reached the spot of incident where she saw her husband's brother Bhiva lying in injured condition. At that time, Tulsabai was already present at the spot. Sakharam, another brother of her husband also came there. She also deposed that after same time, Bhiva was taken to hospital by vehicle and in the vehicle, she asked Bhiva and injured Bhiva informed her that he was attacked by Maruti and Bhiva Patil. It appears from the evidence that it took some time to arrange a vehicle and then Bhiva was taken to hospital, where he was admitted at 8.30 p.m. 12 Cri-Appeal-532-91.sxw 14. The learned Counsel for the accused-appellant vehemently attacked the prosecution evidence. According to him, PW-2 Raghunath had no reason to accompany the deceased Bhiva to Kolhapur on that day and his presence at the spot of incident is unbelievable. He further contended that the evidence of PW-1 Dinkar, PW-3 Tulsabai and PW-4 Tarubai about the oral dyeing declaration of deceased Bhiva also is unbelievable because after sustaining injuries, Bhiiva must have become unconscious. He must have gone in coma or must have suffered from shock. In support of this, he relied upon the evidence of PW-10 Dr. Dipak, the autopsy surgeon, who deposed that he had found undigested food in the stomach of Bhiva which indicated that he had taken food about 6 hours before his death. In the cross-examination, he deposed that normally there may be digestion within 4 to 6 hours. However, in this case, the patient was in shock and due to which the digestion was delayed. He agreed with the proposition that digestion remains in abeyance for a long time if the patient is in coma or in shock. According to him, within 2 or 3 hours,there may be semi-digestion, while within one hour after taking meals, it remains undigested. In the present case, food was found in undigested condition. The learned Counsel contends that presence of undigested food in the stomach indicated that the deceased had gone in coma or in the shock within one hour after taking meals and, therefore, PW-1 Dinkar, PW-3 Tulsabai and PW-4 Tarubai could not be believed that deceased had told her about 13 Cri-Appeal-532-91.sxw assault by the accused persons. It is material to note that PW-2 Raghunath was the only person, who was accompanying the deceased Bhiva from Kolhapur to Koparde, the spot of incident. the evidence shows that PW-3 Tulsabai and her son Chandrakant had left Kolhapur earlier. Their evidence also shows that after reaching Kolhapur, Bhiva, his wife and son had been to Doctor. It took 1½ hour for tratment of their son and then they came back near the S.T. Stand from where Tulasabai and her son left for Koparde. According to her, she reached Koparde at about 4 p.m. while according to PW-2 Raghunath, he and Bhiva left Kolhapur at about 4 p.m. His evidence shows that after getting down from the S.T.Bus and Sangrul Fata, they had been to the hotel of PW-5 Yeshwant just near the side of sugar factory. It is material to note that no question was put to Raghunath as to when and what food was taken by him and Bhiva ,while he deposed that he had taken tea in the hotel of PW-5 who also deposed about taking tea. As there is no evidence, it is difficult to say whether they had taken any food in the hotel of Yeshwant or not. There is also no evidence if they had taken meals or any food at Kolhapur before leaving for the village. There is possibility that they might have taken their food between 4 to 5 p.m. If they had taken tea only in the hotel of PW-5 Yeshwant, it must have been very shortly after taking meals and after taking tea they immediately walked towards their village and at a short distance the incident occurred. Within few minutes PW-2 Raghunath reached the village. 14 Cri-Appeal-532-91.sxw It appears that PW-1 Dinkar and PW-3 Tulsabai reached the spot within few minutes after the incident. Both of them claimed that on enquiry by them, deceased Bhiva had told that that he was assaulted by accused Maruti Shankar Patil and Bhiva Shankar Patil. It is to be noted that not a single injury was caused on the head. The Autopsy surgeon also found skull and the brain intact. There was no hemorrhage or bleeding in his skull or brain. As no injury was caused to the head, there was no possibility of his suffering from coma immediately after the incident. Due to the pain and some bleeding, he might have suffered the shock and possibly due to shock, the foot in his stomach remained undigested. It is not necessary that he must have gone in shock immediately after suffering the injuries. No question was put to either PW-9 Dr. Laxman Tendolkar or PW-10 Dr. Dipak as to whether such a person having suffered the injuries mainly on his upper and lower limbs would or not be in a position to speak immediately after the incident. In view of these circumstances, I see no reason to disbelieve the evidence of PW-1 Dinkar and PW-3 Tulsabai that they had reached the spot within few minutes and they were told by deceased Bhiva that he was attacked and beaten by the present accused persons. 15. As far as PW-4 Tarubai is concerned, according to her, she had asked the deceased about the injuries while they were proceeding towards Kolhapur 15 Cri-Appeal-532-91.sxw Hospital in the vehicle. He was admitted in the hospital at about 8.30 p.m. From the evidence of PW-1 Dinkar he had tried to contact several places to get the vehicle. Taking into consideration the distance of the spot of incident from Kolhapur, they would not take more than one hour to reach the hospital. It means, they must have left the spot of incident at about 7.30 p.m or thereafter. The case papers of the deceased Bhiva, prepared at the time of admission, revealed that there was a history of assault, but it does not show that the history was given by the deceased himself. It is possible that the history of assault was given by PW-1 Dinkar, who had got him admitted in the hospital. There is nothing on record to show that deceased had spoken or told anything to the doctor. Therefore, it can be believed that when he was brought to the hospital, he was not in a position to speak. Taking into consideration the fact that undigested food was found in the stomach, it can be believed that much before he was put in a vehicle for taking to Kolhapur Hospital, he must have suffered shock ad his disgestive system must have stopped working. If it s so, the evidence of PW-4 Tarubai that in the vehicle Bhiva had told her that he was beaten by the accused persons cannot be believed. Even though the evidnece of PW-4 Tarubai is of dobtful nature, I do not find any reason to disbelieve the version of PW-1 Dinkar and PW-3 Tulsabai about oral dying declaration of the deceased. 16 Cri-Appeal-532-91.sxw 16. As far as PW-2 Ragunath is concerned, he was an eye-witness of the incident. According to the prosecution, he had accompanied the deceased from village Koparde to Kolhapur and during the return journey he was with him. The learned Counsel for the appellants contended that there was no reason for Raghunath to accompany Bhiva and his wife to Kolhapur. It is material to note that as per the evidence, Bhiva and his wife also took their son Chandrakant for medical treatment and Bhiva had also taken electric motor with him for repairs. Therefore, possibly, he felt it necessary to have some friend with him who would take care of the electric motor, while he himself would be going to doctor for treatment of his son and in fact it had happened accordingly as per evidence of PW-2 Raghunath and PW-3 Tulsabai.It appears that PW-2 Raghunath and deceased had cordial relations and in view of this, if Bhiva requested him to accompany to Kolhapur, which was at a short distance of 12 kms., it is not impossible that PW-2 Raghunath accepted his request and accompanied him to Kolhapur. It is also material to note that the incident occurred on 26.4.1990. Generally in this area, during the month of April, cultivators do not have much work and if PW-2 Raghunath did not have much work in the village, he would readily accept the request of his friend to accompany to Kolhapur. As he was accompanying him in the return journey also, his presence at the spot of incident cannot be disbelieved. There was no reason for him to falsely implicate the 17 Cri-Appeal-532-91.sxw accused persons. 17. The learned Counsel for the appellant also pointed out some minor discrepancies in the evidence as well some omissions and contradictions in the evidence of witnesses. Mainly in the evidence of PW-3 Tulsabai and PW-4 Tarubai, portion marked "A" in the statement of Tarubai was proved by the Investigating Office and I do not give much importance to the same because I do not intend to place reliance on the testimony of Tarubai. As far as evidence of PW-1 Dinkar, PW-2 Raghunath and PW-3 Tulsabai is concerned, I do not find any material discrepancy or contradiction. I also do