Bombay High Court
Shri Laxman Chandar Jadhav vs The State Of Maharashtra on 15 December, 2015
Bench: A.M. Thipsay
2-APPEAL-66-2001-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.66 OF 2001
LAXMAN CHANDAR JADHAV )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Shri Yashpal Thakur, Appointed Advocate for the Appellant.
Shri V.B.KondeDeshmukh, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 15th DECEMBER 2015.
JUDGMENT :
1 The appellant was prosecuted on the allegation of
having committed an offence punishable under Section 302 of the
Indian Penal Code (IPC). The learned Sessions Judge, Nashik,
after holding a trial, found him guilty only of an offence
punishable under Section 323 of the IPC. He, therefore, acquitted
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the appellant of an offence punishable under Section 302 of the
IPC and convicted him only of an offence punishable under
Section 323 of the IPC. The learned Sessions Judge imposed a
sentence of Rigorous Imprisonment for a period of 6 months and a
fine of Rs.100/- on the appellant. Being aggrieved by his
conviction and the sentence imposed upon him, the appellant has
approached this court by filing the present appeal.
2 The State of Maharashtra has not filed any appeal or
any other proceedings before any court challenging the order of
acquittal of the appellant with respect to the offence punishable
under Section 302 of the IPC, and his conviction only in respect of
a lesser offence.
3 The prosecution case, as can be gathered from the
police report and accompanying documents, and as was put forth
before the trial court, be stated thus :
One Lahanu Govind Mahale (deceased) was residing
in the neighbourhood of the appellant. On 1 st November 1998 at
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about 7.00 p.m., Lahanu after having consumed liquor was talking
incoherently. That, at that time, the appellant, to tease and
ridicule the said Lahanu, said that, 'as he (Lahanu) had no child, it
would only they (the appellant and others) who would dig a pit
for him after his death.' Lahanu, indeed had no child, though he
had two wives. He was, therefore, hurt by this remark and angrily
went towards the house of the appellant situated just near the
house of Lahanu. The appellant, who was taking a bath in his
house, came out and gave a dig to Lahanu by the right elbow
(कोपरखळी मारली). This blow fell on the chest of Lahanu, who, on
receiving the same, fell on the ground. Lahanu, however, got up,
walked towards his house situate just by the side, and sat on the
parapet. Taibai and Laxmibai - the two wives of Lahanu, had
seen the incident. The appellant's mother and father took Taibai
and Laxmibai to the Police Patil, who said that he was not well,
and that, he would look into the matter in the morning. Taibai
came back to her house and saw that her husband Lahanu had
already passed away. With the help of Laxmibai, Taibai lifted
Lahanu's body and brought in the veranda. On the next day
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morning, Taibai (PW2) went to the Police station and lodged a
report. This was recorded by Sampat Jadhav (PW7) who was the
Station House Officer at Harsul Police Station. By treating the
said report as First Information Report (FIR) (Exhibit 15), a case
in respect of an offence punishable under Section 302 of the IPC
was registered. PW7 Sampat Jadhav handed over the investigation
to Ramesh Jadhav, Police Head Constable (PW6). Ramesh Jadhav
went to the house of Taibai. He saw the dead body of Lahanu
which was pointed out by Taibai. Inquest panchnama (Exhibit 12)
was drawn. Spot panchnama (Exhibit 13) was also drawn. The
dead body was sent for postmortem examination.
4 PW6 Police Head Constable Ramesh Jadhav recorded
the statement of the second wife of Lahanu and five other persons.
The appellant was brought to the police station and arrested at
21.30 hours. On the next day, i.e., 3rd November 1998, Ramesh
Jadhav recorded the statements of some more persons. On 7th
November 1998, report in respect of the postmortem examination
on the dead body was received.
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5 On completion of investigation, a charge-sheet came to
be filed against the appellant, who, as aforesaid, was prosecuted
in respect of an offence punishable under Section 302 of the IPC,
but was convicted only of an offence punishable under Section
323 of the IPC.
The prosecution examined seven witnesses during the
trial. The first witness Laxman Mahale is a panch in respect of the
Inquest panchnama (Exhibit 12) and the Spot panchnama (Exhibit
13). The second witness, as aforesaid, is Taibai, the First
Informant. The third witness Kashinath Borse and the fourth
witness Bhimabai Medhe are the neighbours of the deceased
Lahanu and the appellant. The fifth witness is Dr.Pramod Bagul,
who had performed postmortem examination on the dead body of
Lahanu. The sixth witness Ramesh Jadhav and the seventh
witness Sampat Jadhav, as aforesaid, are the Investigating
Officers.
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7 Mr.K.M.Avhad Advocate, had filed his vakalatnama on
behalf of the appellant. He, however, did not remain present
before the court when the appeal came up for final hearing. The
office of this court was directed to give intimation to him, asking
him to remain present before the court, but inspite of such an
intimation having been given to him, he still did not remain
present before the court. Under these circumstances, to avoid
further delay in disposal of the appeal, Shri Yashpal Thakur
Advocate was appointed as amicus curiae to assist the court in
disposal of the appeal.
8 I have heard the learned amicus curiae. I have heard
Mr.V.B.KondeDeshmukh, the learned APP for the State. With their
assistance, I have gone through the entire record of the trial court,
and more particularly, the entire evidence adduced during the
trial, as also the impugned judgment.
9 The case of the prosecution is that, the death of
Lahanu was caused by the appellant by giving him a dig, by the
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elbow, on the chest of Lahanu. Obviously, this story needs to be
accepted with caution, as ordinarily, a dig or nudge by elbow
( कोपरखळी
) would not have sufficient force to cause any serious
injury or even to create a feeling of pain in the person, receiving
dig or nudge. The Inquest panchnama as well as the postmortem
examination clearly indicate that there were absolutely no
external injuries noticed on the dead body of Lahanu - not even
minor.
10 In his evidence, Dr.Pramod Bagul (PW5) stated that
when he examined the dead body, he did not find any external
injuries, and that, on internal examination of thorax, he found
that right lung was black in colour much more on posterior aspect
and was pitting on pressure. That, he found a rupture of Alveoli in
middle lobe, irregular in size with signs of bleeding and liquefied
cloth present around the wound about 4 cms in size. On
examination of the left lung which was also black in colour much
more on the posterior aspect, he found that it was pitting on
pressure. He also found a rupture on alveoli in lower limb
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irregular in size with signs of bleeding and liquefied cloth present
around the wound about 2 - 3 cm in size. He, however, could not
form any opinion as to the probable cause of death and sent the
viscera for Chemical Analysis. In due course, the report of
examination of the viscera was received, and it was normal. Later,
he opined the probable cause of death as "shock due to injury to
vital organs - lung". He opined that 'by giving a dig with elbow on
the chest, alveoli would be ruptured.' It is difficult to accept the
correctness of this proposition. It is obvious that with elbow, one
would not be able to exert sufficient pressure. If one assaults
another by elbow, the force behind such assault would not be
much. In fact, it would be absurd to think that anybody intending
to cause hurt to another would assault him by giving a dig by an
elbow (कोपरखळी). Whether rupture of alveoli is the probable cause
of death is also not very clear inasmuch as initially Dr.Bagul
(PW5) could not form such an opinion. Interestingly, in the cross-
examination, the witness has stated that by fall, rupture of alveoli
would not be possible. If that would be so, how it would be
possible by a nudge or dig, is difficult to understand. It is not
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easily possible to accept that by falling on chest, there would be
less pressure on the relevant part of the body than by a dig by
elbow received in chest. Anyway, in the further cross-
examination, this witness admitted that if a person would fall
from a height of 5 feet on chest, then rupture of alveoli would be
possible. This further shows that great force, according to this
witness, is required to cause the rupture of alveoli. If that is so, it
would not be possible to have rupture of alveoli by a dig which
would not be able to generate so much force or pressure. I leave
the matter at that, as there is no sufficient cross-examination of
this witness on this aspect. What, however, needs to be observed
is that undoubtedly - by a fall - say from a height of about 5 feet -
such a rupture can be caused.
11 Before proceeding further and concluding whether the
death of the appellant is likely to have been caused due to he
being hit on his chest by the elbow, it may be examined whether
that the deceased was assaulted by the appellant by elbow, had
been satisfactorily established.
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12 In this regard, there is evidence only of Taibai (PW2).
Her evidence shows that she was sitting with her husband Lahanu
at about 7.00 p.m on the given day and that, at that time, the
father of the appellant - Chander Jadhav - came there. According
to her, Chander Jadhav then said that he (Lahanu) had no child,
and therefore, it was he (Chander) who would bury him in a ditch
after his death. That, her husband then had come out of the
house near parapet. The appellant was taking bath near his
house. He came where Lahanu was standing. The appellant then
gave a dig with his elbow on the chest of Lahanu. Lahanu fell
down, but then got up and sat resting against a parapet.
13 Taibai claims to have asked the appellant as to why he
had beaten her husband. She also speaks about the appellant's
mother and father taking her to the police patil and the police
patil, stating, that he would look into the matter in the morning.
She then speaks about going to the police station on the next day
and lodging the First Information Report.
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14 The evidence of Taibai cannot be termed as reliable. It
is evident that she has tried to hide what actually happened
between Chander - father of the appellant - and her husband.
She has narrated the incident in such a manner so that the reason
behind the appellant giving a dig by elbow on the chest of Lahanu,
is not revealed. Going by her version, it would appear that while
Lahanu was out of his house and near parapet, the appellant who
was taking bath in his house, abruptly came there and gave a blow
with his elbow on the chest of her husband. Her evidence shows
that initiative in taking the matter to the police patil was taken not
by her, but by the appellant's mother and father. If nothing had
happened, and the appellant had abruptly beaten Lahanu
(although only by an elbow instead hitting or beating him in a
normal manner) then what was the occasion for the appellant's
mother and father to feel aggrieved, is difficult to understand. In
the cross-examination of Taibai, it is revealed that for coming
down from the parapet, a stone has been placed so as to make use
of it as a step for climbing down. The cross-examination also
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reveals that Lahanu was a paralytic since about two years.
According to Taibai, Lahanu had stopped drinking after suffering
an attack of paralysis, but her version in the First Information
Report is contrary to this. Her version in the First Information
Report is that Lahanu had started drinking liquor after he had
suffered a paralytic attack. This contradictory version (marked as
portion "A") in the FIR has been duly proved by the evidence of
Sampat Jadhav (PW 7). Taibai's denial that this has been falsely
recorded by the police, cannot be accepted. In the cross-
examination, Taibai further admitted that there was a dispute
between the father of the appellant, and one Gangubai Borse and
her husband. It was suggested to her that at the instance of the
said Borse, she had lodged a false report, which suggestion was
however, denied by her. In the cross-examination, she admitted
that when Chander - father of the appellant - had said that
Lahanu had no child, Lahanu was enraged. She, however, denied
that Lahanu, therefore, went to the house of Chander to beat the
appellant. Though this is denied, the denial cannot be accepted
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as true. Taibai tried to suggest that appellant was taking bath
outside his house when the exchange of words between Lahanu
and Chander was taking place, but her version in the FIR in that
regard is contrary to this. In the FIR, it has been mentioned that
the appellant was taking bath inside his house. This contradictory
version in the First Information Report (portion marked "B") has
been duly proved by the evidence of Sampat Jadhav (PW7). In
fact, that Taibai is not a reliable witness was observed by the
learned Sessions Judge himself. The learned Sessions Judge held
that while narrating the genesis of the occurrence. Taibai had
suppressed some facts, which support the innocence of the
accused. However, inspite of this, and inspite of noticing the
inconsistencies between her version given in evidence and her
version in the First Information Report, the learned Sessions Judge
held that inspite of these infirmities, there was "nothing on record
to disbelieve her statement that the accused gave a blow with his
elbow on the chest of her husband." This conclusion arrived at by
the learned Judge, is not sound.
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15 Except Taibai, there was no other witness to the
occurrence. The other witnesses i.e. PW No.1 - Laxman Mane,
PW 3 - Kashinath Borse, PW 4 - Bhimabai had not witnessed the
incident and the alleged assault. The evidence of Kashinath (PW
3) only shows that he had heard exchange of words between the
deceased Lahanu and Chander. Bhimabai (PW4) was declared as
hostile and questions in the nature of cross-examination were
permitted to be put to her. However, nothing which would
advance the prosecution version could be elicited from her even
pursuant to such questioning and she categorically denied having
seen the appellant giving a dig by elblow to deceased Lahanu.
When the criminal act attributed to the appellant, was sought to
be established by the testimony of a solitary witness it was
absolutely necessary for the court to arrive at a satisfaction that
such solitary witness is 'wholly reliable.' For basing a conviction on
the testimony of a solitary witness - without any corroboration -
the Court must be satisfied that such witness is 'wholly reliable.' In
the instant case, there were a number of infirmities and
contradictions in the version of Taibai and these infirmities were
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noticed and recorded by the learned Sessions Judge himself.
Apart from these infirmities and contradictory versions, what
cannot be overlooked is that the version of assaulting another by
giving him a blow by the elbow, itself is an abnormal happening.
Why would the person not give a straight and normal blow, if he
wanted to hit another and would instead only give a nudge or dig
by elbow, was not considered by the learned Sessions Judge.
Somebody intending to cause physical hurt to a person, giving
such person only a nudge, is quite unheard of. Thus, this
improbability coupled with the other infirmities in the evidence of
Taibai, and the absence of any corroboration whatsoever to her
claim, should have led the learned Sessions Judge to doubt the
assertion of Taibai to the effect that the appellant had hit her
husband by the elbow.
16 The appellant had filed a written statement (Exhibit-
25) in his defence. In this, the appellant has given his version of
the incident. According to him, the deceased was in the habit of
talking nonsense after consuming liquor. That the father of the
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appellant said to him that he (the deceased) did not have any
issues and that, therefore, in the event of his death, they (the
appellant's father and appellant etc.) would perform his last rites.
That the deceased got angered because of this remark and was
angrily climbing down the parapet. However, while climbing
down, he fell and died.
In the light of the infirmities in the prosecution case,
the suppression of facts by Taibai, the basic improbability in the
version of the prosecution, the greater likelihood of the rupture of
Alveoli having been caused by a fall, as suggested by the accused,
than that by receiving a nudge or dig (कोपरखळी); and the fact that
the First Information Report was lodged by Taibai much after the
death of Lahanu, make it hazardous to hold that, that the
appellant had hit the deceased by his elbow. It may, further be
observed that as per the prosecution case, the other wife of the
deceased had also seen the incident of assault, but she was not
examined as a witness and the case was allowed to rest only on
Taibai's evidence.
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18 In my opinion, that the appellant had assaulted the
deceased, had not been satisfactorily established. Further, that
the death of the deceased was caused due to a blow given by the
elbow (कोपरखळी) was also not satisfactorily established.
19 This was a case where the appellant deserved to be
acquitted.
20 The Appeal is allowed.
The impugned judgment of conviction and the
sentence imposed upon the appellant is set aside.
The Appellant is acquitted. His bail bonds are
discharged.
Fine, if paid, be refunded to him.
21 The professional fees payable to learned amicus curiae
Mr.Yashpal Thakur, Advocate, are quantified at Rs.3,000/-.
(ABHAY M. THIPSAY, J.)
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CERTIFICATE
Certified to be true and correct copy of the original
signed Judgment /Order.
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