1 Cr.Apeal.659-2007 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.659 OF 2007 1. Raju Mahadev Chavan .. 2. Mahadev Bhima Chavan .. 3. Baburao Sadashiv Chavan .. 4. Dattatraya Shamrao Savarde All r/o Khotwadi Tal.Hatkangale Dist. Kolhapur .. Appellants. Vs. State of Maharashtra .. Respondent. Mr.Yug Mohit Choudhary for the appellants. Smt.A.A.Mane APP for the State. ---- CORAM : U.D.SALVI, J. DATED : MARCH 28, 2011. ORAL JUDGMENT: 1 The present appeal challenges the judgment and order passed by the learned Additional Sessions Judge, Ichalkaranji convicting the appellant-accused for the offence punishable under sections 304(2) read with section 34 of Indian Penal Code, 1860 and the appellant-accused no.1 – Raju Chavan additionally for the offence punishable under section 323 of IPC, 1860. On 27.6.2007 in Sessions Case No.1 of 2006. For the commission of offence under section 304(2) read with section 34 of IPC, the appellant-accused have been sentenced to suffer rigorous imprisonment for ten years. The appellant–accused no.1 – Raju 2 Cr.Apeal.659-2007 Chavan has been sentenced additionally to pay a fine of Rs.500/- and in default to undergo simple imprisonment for 15 days for commission of offence punishable under section 323 of IPC, 1860. 2 It is undisputed fact that the victim – Chandrakant Mane, the complainant – Tatoba Mane and the accused were the residents of village Khotwadi, Taluka Hatkanangale, District Kolhapur. The complaint against the appellant-accused came to be lodged at about 12.15 pm at Hatkanangale police station, District Kolhapur on 11.9.2005. 3 The complainant – Tatoba Mane revealed in his complaint that around 9 pm on 10.9.2005 he happened to meet and ask appellant no.1 – Raju Chavan near Khotwadi Vidya Mandir School as to why they were quarrelling with them and the dispute could be resolved at the village level. Whereupon, he further revealed in his complaint the appellant – accused no.1 assaulted him and gave fist blows on his nose as a result of which his nose started bleeding. His complaint further reads that the nephew of the complainant named Chandrakant asked the appellant – accused no.1, at that time, as to why he was beating his Uncle, and about that time the other accused 3 Cr.Apeal.659-2007 Mahadeo, Baburao Chavan and Dattatraya Savarde came there and started hitting Chandrakant with fist and kick blows. Even when Chandrakant fell down, the complaint further reveals, they continued to assault him with fist and kick blows despite his intervention and due to assault Chandrakant fell unconscious at the spot. 4 According to the complainant his nephew Namdeo Mane had initially removed the victim Chandrakant to hospital of Dr.Deshpande and therefrom to Nirmaya Hospital where he was declared dead. The body of the deceased was removed to I.G.M. hospital where autopsy was conducted on his body. 5 On registration of crime at C.R.No.91 of 2005 under section 302, 323, 334 of IPC, 1860 at Hatkanangale police station on the basis of the complaint against the accused on 11.9.2005, the police recorded the statement of the witnesses, prepared spot panchnama in presence of panchas at Hatkanangale police station and arrested the appellant-accused. It appears that prior to registration of crime A.D. Report was registered at Shivaji Nagar police station under “O” number on the basis of the communication received from the Medical Officer and inquest was held on body of the deceased – 4 Cr.Apeal.659-2007 Chandrakant at I.G.M. hospital around 00.15 hrs. on 11.9.2005. 6 On completion of the investigation the charge-sheet against the appellant-accused was duly lodged and the case was committed to the court of Sessions in due course. After hearing the parties and upon considering the material placed before it the learned Additional Sessions Judge, Ichalkaranji, District Kolhapur framed the charges under sections 302, 323 read with section 34 of IPC, 1860 at Exhibit-11/C in the said case. The appellant-accused pleaded not guilty. 7 The prosecution examined the complainant, P.W.1 – Tatoba Krishna Mane at Exhibit-23, P.W.2- Dilip Sadashiv Khot, eye witness at Exhibit-25, P.W.3 – Dr.Pawan Mhetre, Medical Officer I.G.M. hospital, Ichalkaranji at Exhibit-29 and I.O. P.W.4 – Sudhir Ramchandra Chougule, P.I. Hatkanangale police station. The prosecution further adduced in the evidence, inquest panchnama (Exhibit-23), scene of offence panchnama (Exhibit-26), arrest panchnama (Exhibit-28), C.A. report (Exhibit-27), post mortem examination report (Exhibit-31). 8 The spot of scene was inspected by the learned trial Court and inspection notes wre placed on record at Exhibit-37/C.. The 5 Cr.Apeal.659-2007 accused in response to their examination under section 313 dismissed the prosecution story as false and as a concoction generated out of political animosity. After hearing the parties the learned trial Court held the appellant-accused guilty of the offences charged against them and recorded its belief in the prosecution evidence vide impugned judgment dated 27.6.2007. 9 The learned advocate Dr.Yug Choudhary for the appellant – accused at the very outset of his arguments pointed out that there was no whisper regarding homicidal death of the victim – Chandrakant in the inquest panchnama recorded by the police in presence of the relations of victim, who happened to bring the deceased – Chandrakant to I.G.M. hospital. He further pointed out that the observations recorded by mortician in the post- mortem examination report at Exhibit-31 failed to support the ocular version of assault with fist and kick blows on the deceased for a considerable period of time. On this backdrop he argued, the improbable ocular version smacked of concoction particularly when the time was taken by the complainant, one of the principal eye witness to lodge the complaint with the police. He further submitted that the clothes of victim as well as the clothes of injured witness, the complainant – Tatoba were not before the trial Court as same were not seized by the police in 6 Cr.Apeal.659-2007 the course of investigation and as such any interference drawn by the learned trial Court as to occurrence and culpability of the accused were baseless and amounted to conjectures and surmises. 10 On the other hand learned prosecutor Mrs.Mane submitted that there was no appreciable delay in lodging the complaint as the complainant and others were busy with funeral of victim and the medical evidence did not stultify or negate the ocular versions in the present case. In any event she argued that the evidence did not reveal any fabrication on the part of the witnesses and their testimonies need not be discarded as incredible simply because the investigation failed to take necessary measures like seizure of clothes of the victim and the injured witness. She, therefore, urged the court to dismiss the present appeal. 11 P.W.1 – Tatoba Mane, Uncle of the deceased – Chandrakant deposed that theirs was joint family comprising of the brothers and other family members including the deceased Chandrakant and all of them lived at their farm house situated at distance of one and half k.m. from the gaothan of village Khotwadi. According to him those were days of Ganpati festival and he had 7 Cr.Apeal.659-2007 been to the village to see Ganpati. He deposed that at about 9 pm on 10.9.2005 near Khotwadi school, he happened to meet accused no.1 – Raju Chavan and when he was telling accused no.1 – Raju Chavan to settle the dispute which occurred in the morning at village level, the Accused no.1 – Raju Chavan assaulted him with fist blow given near his nose and his nose started bleeding. At this time he added that the deceased – Chandrakant asked accused no.1 – Raju Chavan as to why he beat his Uncle without any reason and thereupon all other accused rushed at the spot and all of them started beating Chandrakant with fist and kick blows and Chandrakant fell down on the ground in front of the house of accused no.4 – Dattatraya Savarde, and even then assault on the deceased continued and as a result Chandrakant fell unconscious. His cross examination reveals that the clothes on person of the deceased – Chandrakant became dirty as a result of occurrence. P.W.1 – Tatoba Mane volunteered statement in his cross examination that the accused pushed the victim – Chandrakant upto the distance of 10 to 15 ft. while beating him with fists and kicks blows, meaning thereby that Chandrakant did not fall on the ground when the accused started beating. According to him the victim fell on the ground for the first time at distance of 10 to 15 ft. and the incident of kicking by the accused lasted for about 5 8 Cr.Apeal.659-2007 minutes. Naturally, he deposed that he was unable to quote number of kicks inflicted by the accused. Pertinently, the cross examination further reveals that he had not narrated this fact of pushing the victim upto distance of 10 to 15 ft. in the course of assault with fist and kick blows. Obviously, it means that it was an improvement made by the witness in the testimony. 12 P.W.2 – Dilip Khot, a grocer conducting his grocery shop near Khotwadi school deposed that at material time he was watching Tippery game organised by his group of village Khotwadi. The evidence of P.W.1 reveals that with the cross examination the details of topography of scene of offence were brought on record and more or less the same features of topography have been noted in the notes of inspection recorded Exh.37/C by the learned trial Court. There is no controversy over this aspect of the case. The fact of existence of Ganesh Kirana Stores conducted by Dilip Khot near the spot of incident also finds place in the notes of inspection at Exhibit-37. In the cross examination of P.W.2 – Dilip Khot it is revealed that on the date of incident the said shop was open upto 9.30 pm and P.W.2 – Khot was watching Tippery game in front of his shop. This evidence gives assurance to the fact that P.W.2 – Dilip Khot was present at the spot at material time and as such was a 9 Cr.Apeal.659-2007 natural witness. 13 P.W.2 – Khot deposed that he witnessed the quarrel between Tatoba Mane and accused no.1 – Raju Chavan at corner of Khotwadi school and at the time the accused no.1 – Raju Chavan had given fist blow on the nostril of Tatoba Mane. He proceeded to aver that when the victim - Chandrakant Mane questioned accused no.1 – Raju Chavan about beating of his Uncle, Mahadeo Chavan, Dattatraya Savarde and Babu Chavan, who were standing at the courtyard of Babu Chavan along with the accused no,1, assaulted the victim with fist and kick blows on chest and abdomen, and further pushed and dragged the victim upto the courtyard of Dattatraya Savarde. According to him the assault continued even after the victim fell on the ground. His cross examination reveals that the incident of beating continued for 8 to 10 minutes and the clothes of victim got spoiled with mud at the spot when he fell down. 14 The evidence of P.W.1 – Tatoba and P.W.2 – Dilip Khot reveals that they had removed the victim firstly to the hospital of Dr.Deshpande and thereafter to Niramaya Hospital. The evidence of P.W.1 – Tatoba further reveals that the victim was thereafter removed to I.G.M. hospital. However, it is not clearly 10 Cr.Apeal.659-2007 understood from the evidence of P.W.2 as to whether he accompanied the victim to I.G.M. hospital. 15 The learned advocate Dr.Yug Choudhary for the appellant pointed out from the inquest panchnama Exhibit-22 one of the uncontroversial piece of evidence that inquest was held on the body of the deceased at I.G.M. hospital in the presence of panchas, one of them being Sada Khot, father of P.W.2 – Dilip Khot, by Head Constable A.G.Devkule of Shivaji Nagar police station. He further pointed out that no information regarding any suspicion particularly as regards homicidal death of the deceased was recorded at paragraph 11 and 12 in Form II-B annexed to inquest panchnama Exhibit-22 despite the fact that the relations including P.W.1 – Tatoba were present at I.G.M. hospital. This fact signifies that no suspicion regarding demise of the victim fell on the ears of the police head constable Devkule at or about time of inquest panchnama. 16 P.W.2 – Dilip Khot was spared of the cross examination on this aspect of inquest panchnama at I.G.M Hospital. However, P.W.1 – Tatoba Mane was cross examined regarding inquiries made at I.G.M Hospital by the police from Shivaji Nagar police station. He deposed that the police enquired with him about the 11 Cr.Apeal.659-2007 death of Chandrakant and he did not lodge the report with the police station about the said fact. The fact remains that he lodged the complaint with Hathkanangale police station around 12 noon on 11.9.2005 after the funeral of Chandrakant at about 8 am. He added that he did not return home before he went to Hathkanangale police station alongwith his brothers and others. It appears from the cross examination that he has been blamed by the defence for lodging false report against the accused due to political rivalry and particularly, for the reason that Mahadeo Chavan lodged the complaint with Hathkanangale police station against Tukaram Mane on the allegation of having beaten him in morning hours. 17 As regards lodging of the report with the police station against Tukaram Mane, P.W.1 – Tatoba Mane acknowledged the fact that on 10.9.1995 Mahadeo Chavan had lodged report with Hathkanangale police station against Tukaram Mane regarding the incident of beating in morning hours and the efforts were made by them between 2 pm and 5 pm on that day to see Mahadeo Chavan for settling the dispute at village level. He further acknowledged the fact that they realised that the dispute would not be settled at the village level as Mahadeo Chavan did not come to house of Sada Khot, father of P.W.2 – Dilip to attend 12 Cr.Apeal.659-2007 the meeting called for settling the dispute. As regards the political rivalry, the learned advocate Mr.Yug Chouhary submitted that there is no worthy evidence. 18 This factual scenario poses a question as to whether the case in question has been concocted by the complainant and PW-2 Dilip Khot and for that purpose they brought about the demise of Chandrakant on the very day. Certainly, creation of the situation leading to the demise of their own family member is inconceivable. At the most one can conceive that the demise of Chandrakant may have been used to build up the present case whether it was so or not can be answered from the medical evidence before the court. 19 PW-3 Dr. Pawan Mhetre, Medical Officer of I.G.M Hospital, Ichalkaranji deposed that at about 11.15 p.m. on 11.9.2005, the victim Chandrkant was brought to IGM Hospital and on examination he had found the victim dead, and therefore, he immediately informed Shivaji Nagar Police Station about the said fact. Letter dated 10.9.2005 (Exh.30) vouches for the said fact. He further deposed that after preparation of inquest panchanama at IGM Hospital at the hands of the Police of Shivaji Nagar Police Station. He had performed postmortem 13 Cr.Apeal.659-2007 examination of the dead body between 1.35 a.m. and 2.30 a.m. on 11.9.2005. 20 Postmortem examination of the body of the victim Chandrakant done by PW-3 Dr. Pawan Mhetre, revealed following external injuries (i) Abrasion of size 1 cm x 1 cm. over right elbow joint reddish blackish coloured. His evidence reveals that this was the only visible external injuries, and the internal examination had revealed: (i) old scar over right iliac region. (ii) peritoneum was congested, cavity contained excessive blood, clots, fluid and semisolid food material, stomach was found perforated at lesser curvature with minimal food material present. (iii) Osephagus was pale and small intestine was empty and in large intestine faecal material was found, (iv) Liver and pancreas was pale (v) Spleen was enlarged and congested and ruptured (vi) Left kidney was lacerated sc 2cms x 2cms. and right kidney was pale. According to PW-3 Dr. Mhetre the victim died hemorrhagic shock due to rupture of kidney, spleen and stomach, and the injuries, both external and internal were possible due to fists and kick blows and they were sufficient to cause death in ordinary course of nature. All injuries, he deposed, were ante mortem. Postmortem note (Exh.31) prepared by him corroborated his version before the court. 14 Cr.Apeal.659-2007 21 Cross examination of PW-3 Dr. Pawan Mhetre adds clarity to the view of the facts leading to the demise of victim Chandrakant. PW-3 Dr. Mhetre clarified that the the abrasion found over the dead body is possible while lifting and taking one person in vehicle. As regards these injuries PW-3 Dr. Mhetre added that they were also possible due to fall on the ground. As regards the perforation of stomach, PW-3 Dr. Mhetre deposed that such perforation of stomach may be caused spontaneously or as a result of long process; and peptic ulcers either caused by drugs or alcohol are the main reason for perforation of stomach. In the case of victim it was revealed that his liver was pale. According to PW-3 Dr. Mhetre, death of liver cells or hemorrhage or production of fibrosis tissues may cause paleness of liver. Alcoholism also according, PW-3 Dr. Metre, could be the reason for paleness of liver. PW-3 Dr. Mhetre did attribute occurrence of old scar over right iliac region of abdomen due to previous surgery for abdominal problem. However, he did not clarify this further to pinpoint that the victim was operated for peptic ulcer. He was also not cross-examined on this aspect. Evidence of PW-1 Tatoba Mane and PW-2 Dilip Khot also revealed that both had denied the suggestion that the victim was operated of peptic ulcer in the hospital of Dr. Ingle. If that 15 Cr.Apeal.659-2007 was the real fact, Dr. Ingale could have been examined to bring out the truth in that regard. However, nothing further was done and matter was left at that point. Cross examination of PW-3 Dr. Mhetre also fails to show that the existence of peptic ulcer was seen upon the internal examination of the deceased Chandrakant. It, therefore, rules out possibility of perforation of stomach being caused spontaneously. 22 In the instant case the victim was not having a normal spleen. The testimony of PW-3 Dr. Mhetre reveals that the victim had enlarge spleen and as such was prone to spontaneous rupture from the contradiction of the abdominal muscles during the act of sneezing, coughing, vomiting or straining. Hemolysis, infection due to malaria, lymphomos and cirrohosis of liver were the various reasons for enlargement of the spleen. 23 PW-3 Dr. Mhetre’s evidence regarding rupture of kidney is a pointer in the present case. He deposed that due to deep situation, the rupture of kidney was rare by direct violence from blows unless considerable force was applied to the lumber region over 12 th rib. and the kidney apt to be injured when the body was violently flexed forward at the lumber region 16 Cr.Apeal.659-2007 24 In the instant case, the oral testimony reveals that the victim suffered assault with fists and kick blows at the hands of four persons for 7 to 8 minutes and in the course of assault the victim fell down on the ground and assault continued. Notes of inspection (Exh.37) described the place of incident as a road made of earth and stones. Significantly, PW-3 Dr. Mhetre in his cross examination revealed that if person is assaulted when he is lying on the stony road, he will sustain injuries on his back i.e. lumber region. Lot has been argued about lack of external injuries as a factor which improbablises the prosecution story of long drawn assault on the victim. However, the evidence of PW-3 Dr. Mhetre reveals that the skin over the abdomen is soft and elastic and there may or may not be external injuries on the person whose spleen and kidney ruptured due to fist and kick blows. Softness and elasticity of the skin over the abdomen offers a reason for non occurrence of external injuries on the victim assaulted with fist and kick blows. PW-3 Dr. Mhetre denied that the rupture of spleen and kidney was not possible due to fist and kick blows and there was every possibility of receiving external injuries such as abrasion and reddishness and tenderness if fist and kick of blows were inflicted on the person lying on the ground for 7 to 8 minutes. Evidence of PW-3 Dr. Mhetre therefore probablizes the occurence of event coming 17 Cr.Apeal.659-2007 through the mouth of PW-1 Tatoba Mane and PW-2 Dilip Khot, and thus lends the effective corroboration to their version. 25 It was the duty of the police to have PW-1 Tatoba Mane medically examined and to seize the clothes of the victim Chandrakant as well as of the witnesses. Failure to do so cannot malign the evidence of the witness who had reason to be present at the spot at the material time and witness the incident. 26 At this stage, Shri Chaudhary, the learned counsel for the appellant made a submission that having believed the prosecution story the court will have to consider whether the offence under Section 304(2) was made out. According to him, the evidence revealed that there was no pre-meditation in commission of the crime, and the victim Chandrakant was beaten as a result of his intervention and he was not the object of assault from the very inception of the incident. He further pointed out that there was no attempt to secure any weapons and the assailants could not have had any knowledge about the physical infirmities the victim was suffering with, namely, the enlarged spleen and the previous abdominal operation undergone by the victim. The evidence also reveals that the assault did not continue after the victim fell unconscious. An 18 Cr.Apeal.659-2007 F.I.R. (Exh.24) corroborates this fact. 27 In support of his submission, Mr. Chaudhary, the learned counsel for the appellant-accused invited the attention of the court to the judgment reported in 1994 (3) Bombay Case Reporter 375 in the case of Babarao s/o Namdeorao Gedam Vs. The State of Maharashtra & Ors. 28 Mrs. Mane, the learned APP for the State submitted that the assault with fist and kick blows continued till the victim fell on the ground, which suggests a fact that the appellant-accused did have knowledge that the assault was likely to cause death of the victim and therefore the learned trial court did not err in holding appellant-accused guilty of the offence punishable under Section 304(2) of IPC. 29 In para-20 of the impugned judgment, the learned trial court referring to the judgment reported in 2006 ALL MR (Cri) 1921 in the case of Janardhan Bajirao Shingare Vs. State of Maharashtra arrived at the conclusion that the assailants the appellant-accused certainly had a knowledge that the victim Chandrakant was to meet his end as a result of assault with fists and kick blows. 19 Cr.Apeal.659-2007 30 In Janardhan Bajirao Shingare’s case (Supra), the single bench of this court inferred from the circumstance of that case that the assailants who had done the act of assault with fists and kick blows on victim had a knowledge that it was likely to cause death, and as such the assailants were held guilty of the offence punishable under Section 304(2) of IPC, 1860. 31 Medical evidence, in Janardhan Bajirao Shingare’s case (Supra), revealed that the victim had died as a result of trauma to the lower abdomen causing internal bleeding leading to shock and death and the injuries leading to trauma were caused by beating with hard and blunt substance, and it was not the case of enlarged spleen or any physical infirmity. 32 In the instant case, the victim suffered from enlarged spleen and died as a result of rupture of spleen, liver and kidney, which could not be within the contemplation of the accused. The learned trial court’s observation that the accused certainly had a knowledge that