1 Criminal Appeal No.248 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.248 OF 2010 Parasram S/o.Gangaram Khote, Age-47 years, Occu-Agriculturist, R/o.Mudgaon, Tq.Patoda, Dist. Beed APPELLANT VERSUS State of Maharashtra RESPONDENT Mr.S.S.Jadhav h/f.Mrs.S.S.Jadhav, learned counsel for the appellant. Mr.S.K.Tambe, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 24/06/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Appellant who was sentenced to suffer life imprisonment for the offence punishable u/s. 302 of the IPC and to pay fine in the sum of Rs.2,000/-, in default to suffer SI for one year in Sessions Case no. 52/2009, by judgment and order dated 19/03/2010, passed by the Ad-hoc Additional Sessions Judge, Beed, have questioned the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal can be summarized as follows : (a) Wife of appellant by name Minabai expired in the afternoon of 31/12/2008. He himself informed about the incident to 2 Criminal Appeal No.248 of 2010 the Village Police Patil namely Vaijnath of village Mugaon, Tal.Patoda. On the basis of this information, A.D.No.51/2008 was registered in Patoda Police Station. One A.S.I. Jadhav registered this AD and took over the inquiry. During the inquiry, he visited the spot of incident i.e. the residential house of deceased and appellant. He drew spot panchnama Exh.33. He also drew inquest panchnama of the dead body at Exh.42. Information about the demise of Minabai appeared to be given to her son Kailas Parasram Khote, who was serving as a cleaner on the truck. On receipt of information about the demise of his mother, he returned back to his residence. After conducting post mortem on the dead body of Minabai, it was cremated at village Mugaon. Thereafter on 01/01/2009, Kailas Khote lodged complaint Exh.35 alleging that the appellant/his father was illtreating and harassing his mother Minabai and as Minabai was unable to satisfy the illegal demands of the appellant and as in the night of 31/12/2008, Mirabai had not prepared the meal properly, she was severely assaulted and killed by the appellant. On the basis of the complaint lodged by P.W.No.3, an offence came to be registered vide CR No.01/2009 u/s. 498(A), 302 of The IPC. Following to the registration of an offence, investigation was taken over by P.S.I. Khwaja Mainuddin Farid Shaikh, Patoda Police Station. At that time, panchnamas drawn by A.S.I. Jadhav during the inquiry, in AD No.51/2008 were handed over to him. On 01/01/2009, he visited the place of offence and recorded statements of daughter of deceased and appellant Ashwini (P.W.No.4), Ganesh (P.W.No.5), minor 3 Criminal Appeal No.248 of 2010 son of deceased and appellant, Sanjay Ramchandra, brother of the deceased (P.W.No.6) and others. On the same day, he arrested the appellant and drew arrest panchnama Exh.43 to that effect. During the investigation, he recorded statement of witnesses Kashinath, Vaijnath, Gorakh and recorded supplementary statement of Kailas (P.W.No.3) son of deceased and appellant. Again on 06/01/2009, he had recorded statement of Ganesh. While conducting the autopsy on the dead body of deceased Minabai, viscera was collected, which was sent for chemical analysis alongwith forwarding letter. On receipt of report of Chemical Analyser, on receipt of certificate about the cause of death and on completion of investigation, charge sheet was filed against the appellant on 30/03/2009 in the court of J.M.F.C. Patoda. (b) On being committal of the trial to the Court of Sessions, learned Lower Court pleased to frame charge against the appellant vide Exh.21 for an offence punishable u/s. 498-A and 302 of The IPC, to which appellant pleaded not guilty and claimed to be tried. (c) To substantiate the charge lavelled against the appellant, prosecution have examined total 7 witnesses. Defence of the accused/appellant is of total denial, so also he had claimed that the death of the victim is not homicidal death, but deceased died due to heart attack and it is a natural death as deceased was suffering from gas problem. On appreciation of evidence of the prosecution 4 Criminal Appeal No.248 of 2010 witnesses, learned Lower Court pleased to acquit the appellant accused for an offence punishable u/s. 498-A of IPC while pleased to convict the appellant for an offence punishable u/s. 302 of The IPC, which finding is impugned in this appeal. Admittedly, neither State nor the complainant have preferred any appeal against the acquittal of the appellant accused for an offence punishable u/s. 498-A of IPC by the Trial Court. 3. Here it is necessary to advert to the evidence of the material witnesses examined by the prosecution during the trial before the Trial Court, which evidence was accepted by the learned Lower Court to convict the appellant/accused for an offence punishable u/s. 302 of The IPC. Considering the submissions of learned counsel for appellant, so also learned A.P.P., and on perusal of the judgment impugned, it appears that the conviction of the appellant is based on the testimony of the alleged eye witnesses P.W.No.4 Ashwini, daughter of appellant and deceased, P.W.No.5 Ganesh and the medical evidence, so also to some extent the evidence of P.W.No.3 Kailas, the complainant. 4. It is in the evidence of Dr.Sachin Shekade (P.W.No.1) Medical Officer attached to Rural Hospital Patoda that on 31/12/2008, dead body of Minabai Khote was referred for post mortem by Patoda Police alongwith requisite documents. Dead body was identified by Sanjay Ramchandra (P.W.No.6) brother of the deceased as the dead body of 5 Criminal Appeal No.248 of 2010 his sister Minabai Khote. On examination of the dead body, he did not notice any external injuries over the body of the deceased. On internal examination, he noticed that the valves, ribs, cartilage were normal in condition. Lungs were found congested. Left chamber of heart was found empty while right chamber of heart was found with blood. Abdomen walls were intact, stomach was found containing semi digested food with 200 to 300 ml. fluid. He did not notice any smell to the semi-digested food found in the stomach of the deceased. After internal and external examination and the symptoms which he had noticed, he could not give opinion about the exact cause of death, hence viscera preserved was forwarded for chemical analysis. Post mortem report prepared by him is at Exh.27. Even in the provisional death certificate issued by him at Exh.28, he had clearly opined that, “opinion reserved and viscera preserved for chemical analysis, as the autopsy conducted by him on the body of deceased Minabai can be termed as negative autopsy or obscure autopsy.” The Medical Officer frankly admitted that the cause of death can not be determined. He has further stated that in due course, he had received the report from Chemical Analyser and thereafter a communication was made with Patoda Police Station vide letter dated 31/01/2009, which is at Exh.31, in which he had stated that he could not opine and decide the cause of death. He has further stated that in his opinion, if any person is threatened or pressurized or in a vagus functional inhibition the above symptoms mentioned in the post mortem report would occur. No exact opinion could be given. 6 Criminal Appeal No.248 of 2010 If a person is attacked or struck by his head on the hard substance like a wall, there would be an injury to the head, but he had admitted that during the post mortem, he did not notice any such injury to the head of the patient. He has further admitted that in the case of heart attack, blood would collect in right or left chamber of the heart. He has further admitted that the blood was found in the right chamber of the heart. He has further admitted that striking of head of the person to a wall or hard substance is not sufficient reason to cause death in the ordinary course of nature. 5. By drawing our attention to this evidence given by the medical expert, it is urged that the medical evidence is not sufficient to hold that the death of deceased Minabai is a homicidal death. It is further submitted that to held the accused guilty for an offence punishable u/s. 302 of The IPC, it is necessary for the prosecution to establish that the death of the victim is a homicidal death and further the prosecution to establish that the appellant/accused had an intention to cause homicidal death of the victim. It is submitted across the bar that considering the medical evidence, prosecution failed to establish that the death of deceased Mina is a homicidal death. 6. As the conviction awarded by the learned Lower Court mainly relying upon the evidence of P.W.No.4 and 5, it is necessary to advert to the evidence of these witnesses. Admittedly, complainant P.W.No. 7 Criminal Appeal No.248 of 2010 3 Kailas Parshuram or P.W.No.6 Sanjay Ramchandra, the brother of the deceased are not claiming to be the eye witnesses to the incident, but they came to know about the incident from Ashwini who claimed to be an eye witness to the alleged incident. 7. It is in the evidence of Ashwini Khote (P.W.No.4) that deceased Minabai was her mother. Appellant Parshuram is her father. Complainant Kailas is her elder brother, while witness Ganesh is her younger brother. They all are residing together. She has further deposed that in the morning of 31/12/2008, around 9.00 a.m., she was present in her house alongwith her younger brother Ganesh, mother Mina and father appellant Parshuram. She has further deposed that at that time her father demanded Rs.20,000/- from her mother to start a hotel business. Her mother informed her father that she will not ask her brother to pay the amount. She has further stated that in the intervening night of 31/12/2008 and 01/01/2009, her mother had not prepared the food properly and on that count, appellant started assaulting deceased with fist and kick blows. In that process, appellant struck head of her mother to the wall, due to which her mother had sustained injury, and blood started oozing from the head injury. Later on her mother became un-conscious. She tried to intervene and save her mother, her father pushed her away. After her mother became un-conscious, she was made to sit by the side of the wall, initially her mother went in sleep and later on expired. She gave shouts for help. She also went to the house of 8 Criminal Appeal No.248 of 2010 her cousin aunt Vaishali and narrated the incident to her. Even then, her father was assaulting the deceased with fist and kick blows. She had gone to the extent that appellant was assaulting her mother with wooden log. On her arrival at her residence, her father ran away from the spot. She has further deposed that her younger brother Ganesh informed about the incident on telephone to her maternal uncle Sanjay R/o. Tikhi, Tq.Karjat. Somebody informed her elder brother Kailas P.W.No.3 who rushed to the house immediately. In her cross examination, her testimony is not shattered in any manner about the assault by the appellant to her mother. She has stated in her cross examination that even though the blood was not present on the saree of her mother, hairs of her mother were stained with blood. She has denied the suggestion that her mother was suffering from gas trouble and in past on 2 occasions, her mother suffered from heart attack. She has further admitted in her cross examination that there was no quarrel between her parents on the count that the food was not properly prepared. She has admitted in her further cross examination that she had not stated in her statement before police that her father took quarrel with her mother on the day of incident on account of non preparation of food properly. She has further admitted that she had not stated in her statement before police that her father demanded Rs.20,000/- on the day of incident at about 9.00 a.m. from her mother. She has further admitted that she had not stated in her statement before police that her mother informed her father that she does not like to 9 Criminal Appeal No.248 of 2010 visit the house of her brother time to time for demand of money. 8. Evidence of Ganesh Khote (P.W.No.5), the younger brother of P.W.No.4 Ashwini and Kailas Khote, son of the deceased and appellant is on the similar line like the evidence given by her elder sister Ashwini P.W.No.4. In addition to that, he has deposed that on mobile, he informed about the incident to his maternal uncle Sanjay P.W.No.6, who came at the residence around 1.00 p.m. On receipt of information, his brother Kailas reached at the residence around 2.00 p.m. He has also admitted in his cross examination that he had not stated in his statement before Police that in the morning of the day of the incident, his father/appellant demanded Rs.20,000/- from his mother. He has also admitted that he had not stated in his statement before Police that his mother informed his father that she will not go to the house of her brother for demanding money. He has further admitted in her statement that his father was running hotel business much prior to the date of incident. His evidence is not shattered on the point that his father severely assaulted his mother deceased Minabai and banged her head to the wall. Thereafter, body of his mother was made to sit near the wall. It is urged before us that even though the evidence of eye witnesses is corroborating to each other, but there is no medical evidence to support it. It is further urged that post mortem was performed on the dead body within some hours after the incident. Perusal of the post mortem notes as well as the evidence of Dr.Shekade clearly indicates that no 10 Criminal Appeal No.248 of 2010 external injuries were found on the dead body of the deceased. Even though it is alleged that the blood was oozing from the injuries sustained on the back side of the head, which fact is also deposed by P.W.No.3 Kailas, P.W.No.6 Sanjay but no bleeding injury was noticed by the witnesses who examined the dead body at the time of inquest panchnama before the dead body was sent for post mortem. Considering the medical evidence and the contradictions and omissions brought on record in the evidence of P.W.No.4 and 5, it is urged that appeal be allowed, appellant be acquitted from the charges for which he is convicted and sentenced. 9. Though attempts were made by learned A.P.P. to support the findings recorded by the learned Trial Court, we are not in agreement with those efforts. 10. We have perused the judgment of the Lower Court in the light of above referred submissions of learned counsel for appellant and learned A.P.P. for State. In para no.44 of the judgment impugned, learned Lower Court have come to the conclusion that from the evidence on record, the prosecution was unable to establish the motive behind the crime about the alleged assault to the victim at the hands of the appellant. It is also observed by the learned Trial Court in its judgment that even though the medical evidence is not sufficient to hold that the death of deceased is a homicidal death, even then the evidence of P.W.No.4 and 5, the children of deceased 11 Criminal Appeal No.248 of 2010 and appellant is sufficient to hold that the appellant had assaulted the deceased, which resulted in her death. This finding recorded by the learned Trial Court can not be accepted as a finding given in accordance with Law. Learned Trial Court appeared to be impressed by the direct evidence given by P.W.No.4 and 5 about the assault on deceased Minabai, but failed to appreciate that the evidence given by the eye witnesses is contrary to the findings recorded by the medical expert. In the premise, the submissions of learned counsel for appellant that as the prosecution have failed to establish that the death of deceased is a homicidal death, in absence of this finding, appellant can not be held guilty for the offence of murder of Minabai. Possibility of death of Minabai due to heart attack can not be rulled out. Hence we are of the considered view that the findings recorded by the Trial Court is against the medical evidence on record, which require to be quashed and set aside. 11. In the substance, criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JUNE 2011/cri.appeal 248-10