{1} Cri. Appeal No.491/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.491 OF 2010 Somnath s/o Deorao Gajre APPELLANT Age-55 years, Occ-Agri R/o Maliwada, Behind Zilla Parishad School, Tq & Dist-Aurangabad VERSUS 1. The State of Maharashtra RESPONDENTS 2. Santosh s/o Kashinath Muley Age-30 years, Occ-Service, R/o Maliwada, Tq & Dist-Aurangabad ....... Mr.H.F.Pawar, Advocate for appellant Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 1 st AUGUST 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By this appeal, the appellant questions his conviction for an offence punishable u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.10,000/- {2} Cri. Appeal No.491/2010 in default of which to undergo Simple Imprisonment for 6 months, awarded by Additional Sessions Judge-2, Aurangabad, vide judgment dated 07.12.2010 rendered in Sessions Case No.79/2009. 2. Prosecution case, as unfolded during the trial, may briefly be stated thus - On 30.09.2008, Shashikala (deceased) approached PW-5 Dr.Pandit at 9.30 a.m. complaining about abdominal pain. Considering her critical condition, after providing primary treatment, PW-5 Dr.Pandit advised her to to go Ghati Hospital, Aurangabad. Thereafter Shashikala was shifted to another hospital at Maliwada itself where also she complained about abdominal pain. As it was MLC case, Shashikala was referred to Ghati Hospital at Aurangabad. However, she was admitted in Gadkari Hospital, Aurangabad on 01.10.2008 at 8 pm. Accordingly intimation (Exhibit-26) was given to police and around midnight she was operated by PW-4 Dr.Gadkari. Shashikala expired on 06.10.2008, while she was under treatment. Immediately, intimation (Exhibit-25) was given to police and on the basis of the said intimation an AD No.47/2008 came to be registered by police Station Chhawani. During the inquiry of the AD, inquest Panchanama (Exhibit-29), on the dead body, was drawn in Gadkari hospital itself. Thereafter, the dead body was forwarded for postmortem examination to Ghati Hospital. {3} Cri. Appeal No.491/2010 3. Dr.Sachin Gadge (PW-7) performed the postmortem, who noticed the following external injuries on the dead body. 1. Surgically made suture wound anterior aspect of abdomen mid-line of size 18 cm 2. Drains one in left pelvic region. 3. Drain one in sub hepatic region of right side. According to the medical officer all the injuries were antemortem. On internal examination, it was noticed that both the lungs of the deceased were congested. The stomach was empty. There were multiple adhesions over small and large intestine with evidence of pale yellowish flakes at right para colic gutter and messentry contuse at multiple points. There was evidence of proximal ileum sutured margin swollen and inflame. The bladder was empty. According to the medical officer, the cause of death was septicemic shock due to percolation to intestine following blunt trauma to abdomen. It was further opined that the said injuries can be possible by kick blows. Accordingly, Postmortem report (Exhibit-38) came to be prepared. 4. During the inquiry of the AD, spot Panchanama (Exhibit-18) was drawn. On 07.10.2008, after Shashikala expired, PW-3 Santosh lodged a report (Exhibit-23) with Chhawani police station, pursuant to which an offence at Crime No.254/2008 came to be registered against the appellant u/s 302 of the Indian Penal {4} Cri. Appeal No.491/2010 Code. Investigation of the said crime was taken over by API Gautam Patale (PW-8), who drew spot Panchanama (Exhibit-21). Thereafter, the appellant came to be arrested. Subsequently, statements of certain witnesses came to be recorded. The medical papers as well as papers of the AD inquiry were collected by the investigating officer and on completion of the investigation, charge sheet came to be filed against the appellant before the JMFC, Aurangabad. 5. On committal of the trial, to the Court of Sessions, trial Court framed charge (Exhibit-12) against the appellant for an offence punishable u/s 302 of the Indian Penal Code. The appellant abjured his guilt and claimed to be tried. Prosecution, in support of its case, examined in all 8 witnesses. Defence of the appellant was of total denial. It appears that the defence of the appellant was that the deceased had sustained the said injuries accidentally. On appreciation of the evidence, trial court convicted and sentenced the appellant as aforesatated. 6. For effective and proper appreciation of the submissions advanced before us by learned counsel for the appellant and that of learned APP for respondent State, it would be appropriate to advert to the evidence of material witnesses examined before the trial court. 7. PW-5, Dr.Pandit, states that on 30.09.2008 the {5} Cri. Appeal No.491/2010 deceased had came to his dispensary and was complaining of abdominal pains. The deceased, who had came alone, had given history that her husband had assaulted her in abdomen with kicks. He had informed her relatives that her condition was critical and advised to shift her at Ghati Hospital. He states that Shashikala was in conscious and oriented condition while she had came to his dispensary. On his query, Shashikala had informed him that the appellant had kicked on her abdomen and hence she was suffering pain. His evidence is not shattered even in his cross examination. He, however admits that as his dispensary was not well equipped he suggested to shift the deceased to Aurangabad. 8. PW-1 Dr.Ashok Jadhav states that Shashikala was brought in their hospital by her relatives as she was suffering from abdominal pains. PW-3 Santosh, brother of the deceased, had given history of assault by the appellant. He states that stomach of the deceased was tough. As it was the MLC case, he advised that the deceased be shifted to Ghati Hospital. In cross examination PW-1 states that on his inquiry the deceased had gave the history of assault. He, however, admits that he had not personally examined the deceased. 9. PW-3 Santosh, brother of the deceased, states that marriage of Shashikala was performed with the appellant 26 years prior to the incident and the couple was blessed with two children. They used to reside at Maliwada and his house is adjoining the {6} Cri. Appeal No.491/2010 house of the deceased. He states that the appellant used to ill-treat the deceased on the count that she was simple and the deceased used to complain, about the ill-treatment, to him. He states that on the day of the incident, he was called in the hospital where Shashikala disclosed him that the appellant intended to take bath and had directed her to make preparation and on that count the appellant took out quarrel and assaulted her on abdomen by kick blows. This disclosure was made by the deceased to PW-3 Santosh, in presence of PW-1 Dr.Jadhav and another lady doctor. Considering the critical condition of the deceased, she was advised to shift at Aurangabad. Thereafter, he informed the appellant that he was shifting the deceased for better treatment. The deceased was shifted to Aurangabad and was taken to Gadkari Hospital, where she was admitted and subsequently operated. The deceased remained in Gadkari Hospital for 3 days and expired on 06.10.2008, while under treatment. He, thereafter, lodged a report in the police station against the appellant. Certain contradictions are proved in his cross examination that he had not stated in the report before police that he met the appellant at his house and informed him that he was shifting the deceased to Aurangabad and that doctors from Ambedkar Research Hospital have given heavy estimate of medical expenses and hence he had shifted the deceased to Gadkari Hospital. He states that he concentrated to save the life of the deceased and hence he could not lodge report to the police immediately after he came to know about the assault. He admits that when the deceased was shifted to Aurangabad, the {7} Cri. Appeal No.491/2010 appellant accompanied her. He further admits that the deceased had also talked with him after she was operated. He, however denied that the deceased had sustained injuries due to fall from staircase. 10. It transpired from the evidence of Dr.Gadkari (PW-4) that Shashikala was admitted in his hospital on 01.10.2008 and after examining her and carrying out necessary investigation and tests, he had informed about serious condition of the patient to her relatives. He had performed surgery on the deceased and during the operation he had noticed one liter fluid in the abdomen. Even after the operation was performed, condition of the deceased was critical. Her condition worsened on 4th October and it was further deteriorated and ultimately she expired on 6th October. Accordingly, he informed the police. He had also informed about admission of the deceased in his hospital, to the police. He opined that the injuries sustained by the deceased may be caused by kick blows. Though he admits that the deceased was not able to speak before performing of the operation and she was unconscious and was continuously under observations, yet he states that the deceased was talking after she was operated. He had produced the medical papers (Exhibit-27/1 to 27/31) in his evidence. 11. We have heard Mr.Pawar, learned counsel for the appellant and Mr.Shaikh, learned APP for respondent State. Learned APP supported the findings arrived at by the trial court {8} Cri. Appeal No.491/2010 while convicting and sentencing the appellant. 12. Learned counsel for the appellant urged before us that the case of prosecution rests on circumstances and PW-2 Dadasaheb, son of the deceased, has not supported the prosecution. It is further urged that the spot Panchanama (Exhibit-18) indicates that there was one step at the entry of the house of the appellant and hence it can safely be inferred that the death of the deceased was accidental. It it further urged that if this Court comes to the conclusion that the death of the deceased is a homicidal one, then it is urged, in the alternative, that the evidence on record is not sufficient to hold that the appellant has intention to commit murder of Shashikala and hence urged to reduce the conviction of the appellant for an offence punishable u/s 302 of the Indian Penal Code to some lessor offence. 13. In the light of the submissions advanced before us, we have re-appreciated the entire evidence on record. Though it is urged by learned counsel for the appellant that evidence of PW-3 Santosh be discarded as he being the interested witness, yet in view of the corroborative medical evidence we are not in agreement with this submission. At the same time on appreciation of the evidence we found that the evidence of 4 medical witnesses, particularly evidence of PW-7 Dr.Sachin, who had conducted postmortem on the dead body, it is established that the injuries found on the person of the deceased are possible due to kick {9} Cri. Appeal No.491/2010 blows. Though it has come in the evidence of medical expert that the death can be possible by kick blows, however, it has nowhere come in the evidence that the said injuries were sufficient to cause death in ordinary course. On the contrary, he admits that the visible marks of injury on abdominal wall may not be seen though there laceration or rupture on internal organs. He has further admitted that kick blow may injure the pancreas, however the pancreas and spleen of the deceased were found in tact. He has further admitted that the large intestine may be injured by pointed object like corner of a step. Though this evidence is on record, yet we are not inclined to accept the theory of accidental death, as suggested by learned counsel for the appellant, for the reason, firstly that, though it is tried to urge that there is staircase in the house of the deceased and the deceased had fallen from the same while climbing, yet it is crystal clear from the Spot Panchanama (Exhibit-18) that there is no staircase in the house of the appellant and secondly no pot was brought before the Court to suggest that in fact the said water pot was carried by the deceased and the same had fallen on her abdomen. Thus, from the medical evidence, particularly, evidence of Dr.Sachin, who had conducted the post mortem, it is clearly established that death of Shashikala is a homicidal one. 14. Once it is held that the death is a homicidal, then further question requires to be considered that as to whether the said homicidal death is caused due to intentional assault {10} Cri. Appeal No.491/2010 knowingly that the same may cause death of the deceased. Prosecution has sufficiently established from the evidence of PW-5 Dr.Pandit, PW-1 Dr.Ashok Jadhav and PW-4 Dr.Gadkari, that the deceased had disclosed them that the appellant had assaulted her with kick blows on her abdomen. As pointed out by us above and in view of the evidence of PW-4 Dr.Gadkari and PW-7 Dr.Sachin, who have stated that the injuries found on the person of the deceased may be caused due to kick blows, we are of the view that the homicidal death of the deceased has been caused due to kick blows given by the appellant. Though the homicidal death is caused by the assault of the appellant, yet it requires to be considered that whether the act of the appellant was intentional or not. In view of the evidence on record, we are of the view that though the appellant had knowledge that the Shashikala may die due to his assault, yet he had no intention to cause such bodily injury which may likely to cause her death. In the premise, we are of the considered view that the act of the appellant of assaulting the deceased with kick blows, squarely covers under the purview of section 304 (Part II) of the Indian Penal Code and according to us, the act of the appellant does not cover under the offence as defined u/s 300 of the Indian Penal Code and which is punishable u/s 302 of the Indian Penal Code. Thus, in substance, according to us, the act of the appellant would not amount to an offence punishable u/s 302 of the Indian Penal Code, but the same covers u/s 304 Part II of the Indian Penal Code. Hence, the conviction and sentence of the appellant requires to be reduced by partly allowing {11} Cri. Appeal No.491/2010 the appeal. 15. Criminal Appeal is partly allowed and the conviction and sentence of the appellant for offence punishable u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay fine of Rs.10,000/- in default of which to undergo SI for 6 months, is set aside and instead the appellant is convicted for an offence punishable u/s 304 (Part II) of the Indian Penal Code and sentenced to RI for 7 years and to pay fine of Rs.10,000/-, in default of which to undergo further RI for 6 months. Appeal partly allowed accordingly. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel491-10