Nana Shriram Wankhade vs State Of ...
2017 Latest Caselaw 1976 Bom

                                                   1                 apeal180.212.01.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH AT NAGPUR

                        CRIMINAL APPEAL NO. 180/2001

      Nana s/o Shriram Wankhade,
      aged about 37 years, Occ. Labourer,
      r/o Mudholkarpeth, Amravati,
      Tq. Dist. Amravati.                                  .....APPELLANT
                        ...V E R S U S...

      State of Maharashtra, through 
      PSO Rajapeth, Amravati, Tq. Dist.
      Amravati.                                            ...RESPONDENT

                                   AND
                        CRIMINAL APPEAL NO.212/2001

 1. Raju s/o Uttamrao Gawai,
    aged about 32 years,

 2. Uttamrao s/o Jangaluji Gawai,
    aged about 56 years, 

      Both r/o Vilas Nagar, Amravati,
      Tq. Dist. Amravati.                                  .....APPELLANTS
                        ...V E R S U S...

      State of Maharashtra, through 
      PSO P. S. Rajapeth, Amravati, Tq. Dist.
      Amravati.                                               ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. A. V. Gupta Senior Advocate with Mr. A. A. Gupta, Advocate for
 appellants.
 Mr. S. A. Ashirgade, A.P.P. for respondent-State.
 -------------------------------------------------------------------------------------------

 CORAM:-  B. P. DHARMADHIKARI AND
          V. M. DESHPANDE, JJ.

  DATE OF RESERVING THE JUDGMENT:          APRIL 10, 2017
                                       
  DATE OF PRONOUNCING THE JUDGMENT: APRIL  25, 2017




::: Uploaded on - 25/04/2017                              ::: Downloaded on - 26/04/2017 00:49:35 :::
                                             2                apeal180.212.01.odt

 J U D G M E N T (Per : V. M. Deshpande, J.)

1. These two criminal appeals take exception to the

judgment and order of conviction passed by the learned Additional

Sessions Judge, Amravati dated 09.05.2001 in Sessions Trial

No.73/1990 by which the appellants in these two appeals were

convicted for the offence punishable under Section 302 of the

Indian Penal Code read with Section 34 of the IPC and directed to

suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/-

by each of them and in default to suffer further rigorous

imprisonment for a period of six months.

2. Criminal Appeal No.180/2001 is filed by Nana Shriram

Wankhade, original accused no.4. Criminal Appeal No. 212/2001

is filed by Raju Uttamrao Gavai and Uttam Jangluji Gavai original

accused nos.1 and 3 respectively. These appellants were released

on bail by this Court on two different dates i.e. 03.04.2002 and

05.04.2002.

Since these two appeals arise out of the same judgment

and order of conviction, they were taken and heard together and

they are being disposed of by this common judgment.

                                               3               apeal180.212.01.odt

 Facts:

3. The prosecution case as it is unfolded during the course

of trial is succinctly narrated hereinunder:

(a) Pralhad Waidhure, in May-1989 was attached to

Police Station, Rajapeth at Amravati as Head Constable. On

20.05.1989 he was on duty from 8.00 am to 8.00 pm. On the

said day Shivcharan Yashvantrao Harne came to the Police

Station. That time, Pralhad Waidhure was Station Diary

Incharge. Shivcharan lodged his oral report which was

reduced into writing by Pralhad (PW15). After narration of

the report was complete, signature of Shivcharan was

obtained. The scribe Pralhad also read over the contents of

the report to Shivcharan. The said report was also signed by

Pralhad (PW15) as a station diary incharge. Consequently,

Crime No.411/1989 for the offence punishable under Section

326 read with Section 34 of the IPC was registered against the

appellants. The FIR is at Exh.-113.

(b) As per the FIR lodged by Shivcharan, on

20.05.1989 there was marriage of daughter of Pandurang

Harne, brother of Shivcharan at Yog Bhavan near Mal Tekadi.

The marriage ceremony was performed peacefully. At about

4 apeal180.212.01.odt

12.00 O'clock, first round of meals was finished and the

accused took meals, came outside to wash their hands. That

time, Raju Gavai (Original accused No.1) was throwing left out

water in the drinking water vessel. Shivcharan accosted him

as to why he had thrown the left out water in the drum

containing drinking water. On that, Raju asked whether he is

not knowing him and further asked him to come outside and

gave abuses and left the place. The report further states that at

about 3.30 p.m., father of Raju, Uttam Gavai (Original accused

no.3) came and asked as to who has accosted his son and

further quipped he would not spare him alive. In the

meanwhile, Pandurang Harne (deceased) came there and

requested the father of Raju that he should allow the marriage

to complete peacefully. Thereafter, Uttam Gavai, father of

Raju left the place.

At about 5.00 O'clock, father of Raju brought some

persons in an auto and those came in the pandal. Raju was

asking where is Pandurang Harne. This was heard by

Shivcharan from a long distance. Thereafter Raju took him in

the hall. That time Raju was accompanied by Nana Wankhade

(Original accused no.4). It is further stated in the FIR that

Nana and Uttam caught hold of Pandurang Harne and

5 apeal180.212.01.odt

thereafter suddenly Raju delivered the blow of knife. They

also threw bowls and drinking water vessels here and there

and ran away by the auto rickshaw and motorcycles.

Pandurang Harne was thereafter taken to the hospital.

(c) Chakrapal Tiwari (PW13) was Police Sub Inspector

at Rajapeth Police Station. As per the direction of Police

Station Officer, Rajapeth, he proceeded to the place of incident

immediately and prepared the spot panchanama of the place

of incident (Exh.-106). He also recorded statements of one or

two witnesses namely; Gangadhar Warthe (PW1).

(d) In the meanwhile, Pandurang Harne, the injured

who was admitted in the hospital, expired on 21.05.1989.

From 21.05.1989, the investigation of crime No.411/1989 was

took over by Vinod Sharma (PW11). On getting information

about the death of Pandurang, Crime No. 411/1989 was

altered for the offence punishable under Section 302 read with

Section 34 of the IPC from Section 326 read with Section 34 of

the IPC.

On the said day, at about 10 O'clock, Shriram,

brother of the deceased came to Police Station and produced

6 apeal180.212.01.odt

clothes of the deceased. PI Sharma deputed other police

officers on mortuary to conduct the inquest panchanama. He

also recorded statements of Shivcahran Harne, Ramesh

Athaole, Charandas Raut, Rahul Ogale, Shriram Harne,

Digambar Harne, Jaikumar Harne and Punjabrao Bihade.

Inquest over the dead body was performed. It is available on

record at Exh.-81.

(e) On 21.05.1989 at about 5.00 p.m. PI Sharma

arrested Raju. While he was in the police custody, he

volunteered to make a statement. Therefore, PI Sharma

summoned panch witnesses and in their presence, his

disclosure statement was recorded. The admissible portion of

his disclosure statement is available at Exh.-92. After

recording his statement, accused Raju led the police in a police

jeep to his house from where he took out one knife from

behind the photographs which were mounted on the wall. The

knife was seized under the seizure panchanama in presence of

panchas under recovery Panchanama Exh.-93. Under the

seizure memo Exh.-94, the clothes of Raju were also seized.

The other accused Balu Wankhade was arrested on

31.05.1989. Uttam was arrested on 11.06.1989, whereas

7 apeal180.212.01.odt

Nana Wankhade (accused No.4) was arrested on 26.06.1989.

PI Sharma also recorded statements of various witnesses. In

the meanwhile, he was transferred to Mumbai therefore he

handed over the charge to PI Arvind Giri (PW12). PI Giri

(PW12) gave a request letter to the Executive Magistrate for

holding test identification parade (Exh.-104). After

completion of the other usual investigation, he filed final

report in the court of 6th J.M.F.C. Amravati on 16.08.1989.

The learned Magistrate found that the offence is

exclusively triable by the Court of Sessions, he passed the

committal order. The learned Additional Sessions Judge,

Amravati, in whose court the sessions trial was alloted, framed

the charge against the present appellants and others for the

offence punishable under Section 147, 148 and 302 read with

section 149 of the Indian Penal Code. All the accused denied

the charge and claimed for their trial.

(f) After full dress trial, the learned Judge of the Court

below, acquitted the original accused no.2-Balu Wankhade of

the offence punishable under Section 147, 148, 302 read with

Section 149 of the IPC.

8 apeal180.212.01.odt

Accused no.1-Raju, accused no.3-Uttam and

accused no.4-Nana (all appellants before this Court) were also

acquitted of the offence punishable under Section 147, 148

and 149 of the IPC. However, the learned Judge convicted the

accused Raju for the offence punishable under Section 302 of

the IPC, whereas he convicted accused no.3-Uttam and

accused no.4-Nana for the offence punishable under Section

302 read with Section 34 of the IPC. Hence, this appeal

Submissions:

4. We have heard Mr. A. V. Gupta, learned Senior Counsel

with Mr. A.A. Gupta, for the appellants and Mr. S. A. Ashirgade, the

learned A.P.P. in extenso, in both these appeals. With the able

assistance of the learned Senior Counsel and the learned A.P.P. we

have gone through the entire record and proceedings minutely.

Gist of the submissions of the learned Senior Counsel is as under:

(i) In any case, accused no.3-Uttam and accused no.4-

Nana cannot be convicted for the offence punishable under

Section 302 of the IPC, taking aid of Section 34 of the IPC. His

submission is that there is no evidence on record to show that

there was any intention on the part of these two persons to

9 apeal180.212.01.odt

commit murder of Pandurang. He submitted that even

assuming that these two have caught hold of Pandurang, there

is no evidence to show that they share common intention with

Raju to commit murder of deceased Pandurang.

(ii) It is his further submission that the eye witnesses in

this prosecution case are at variance on material aspects.

(iii) He further submitted that the conviction of Raju for

the offence punishable under Section 302 of the IPC is bad in

law inasmuch as the injury attributed to him by giving knife

blow is not found to be the cause of death. He, therefore,

submitted that the appellants are entitled for acquittal.

(iv) In the alternative, he submitted that in any case,

looking to the medical evidence and from the quality of the

evidence as brought on record by the prosecution, the

appellant Raju is entitled for the punishment for lesser offence.

5. Per contra, the learned A.P.P. would submit that

homicidal death of Pandurang is duly proved by the prosecution.

He submitted that the evidence of the witnesses for the prosecution

shows that it is the appellant-Raju who gave stab blow on the vital

part of the body of the deceased and at the said time, he was caught

hold by the appellants-Nana and Uttam. Therefore, it could be

10 apeal180.212.01.odt

inferred that there was common intention with Raju. Consequently,

he submits that the appeal be dismissed.

Critical Analysis of Prosecution Case:

In this case, first informant Shivcharan could not be

examined since he died during pendency of trial.

6. On 20.05.1989, Dr. Raj Balkishan Agrawal (PW2), was

serving as Chief Medical Officer in Irwin Hospital, Amravati.

Pandurang was brought to the hospital at about 5.45 pm by his

relatives. He examined him and admitted in the ward. After

preliminary examination, he shifted him to the surgery ward. That

time, he could notice knife wound at hypocondrial region on the

lower side. It was around 4" x 1" x 3" and it was peritoneal deep. It

was a fresh injury. According to the doctor, it must have caused by

sharp object. He proved the injury certificate, Exh.-31.

7. Dr. Dhirendra Wagh (PW14) examined Pandurang in

surgery ward at 7.00 pm. He found that his condition was serious.

He noticed stab wound on the left hypochondrial region. The

patient was taken to surgery after due investigation. Dr. Wagh

opened his abdomen. It was found to be full of blood. According to

the Doctor, he noticed that his left kidney is torn and severe

bleeding was continued. He packed the wound from where

11 apeal180.212.01.odt

bleeding was occurring and surgery was terminated. The patient

died ultimately on 21.05.1989 at 4.50 am.

8. The post mortem over the dead body was conducted by

Dr. Ashok Lande (PW3). On external examination of the dead

body, he found following wounds:

1. Stitched wound, 9" in length from lower end of stern to 2" below umblical region;

2. Stitched wound 7" from lower end of sternum to left renal angle; 2 ½" above iliac crest, ribber drainage present at left renal angle.

3. Stitched wound ¾" at the later aspect of right elbow joint;

4. Stitched wound at 1" at the middle aspect of right elbow joint.

5. Stitched wound, ½" over anterio medial aspect of right ankle joint.

On opening the abdomen and peritoneal cavity, gauze

pieces soaked with blood dropped. He noticed that left supra

reneal angle was cut at lower end 1/4" approximately. Right

kidney was of normal size. Left kidney shows incised wound

touching upper pole obliquely 2 ½" x 1 ½". According to the

Doctor, internal injury noticed to the left Kidney was corresponding

to the external injury no.2. As per the Doctor who performed the

12 apeal180.212.01.odt

post mortem, the cause of death was due to injury to left Kidney.

He proved the post mortem report Exh.-73.

9. From the aforesaid evidence of Doctor, there cannot be

any doubt in the mind that Pandurang met with an unnatural

death. The question is whether the prosecution has successfully

brought its case against the appellants beyond reasonable doubt to

record a finding of guilt against them.

About the incident:

10. In order to prove the assault, the prosecution has

examined following witnesses:

 (i)    Gangadhar Warthe (PW1)
 (ii) Charandas Raut (PW4)
 (iii) Rahul Ogle (PW5)
 (iv) Shriram Harne (PW6)
 (v) Suresh Dhavne (PW8)
 (vi) Jaikumar Harne (PW10)

If the evidence of these witnesses are scrutinized

minutely then it comes on record that on the date of incident,

preceding the actual assault on Pandurang at about 5.00 pm, two

incidents had occurred. The first incident is in respect of spoiling of

drinking water by the accused no.1-Raju after the first round of

13 apeal180.212.01.odt

meals were served to the guests was over. The second incident is

about visiting the accused no.3-Uttam at 2.30 pm in the marriage

hall along with his younger son and then giving abuses and

extended threats that he will finish the entire progeny of Pandurang

and thereafter leaving away the marriage hall.

11. Out of these eye witnesses, Gangadhar (PW1) who is son

in law of the deceased and Rahul (PW5), turned hostile. They did

not support the prosecution case.

Charandas (PW4) speaks only about the first incident of

spoiling water and the incident of stabbing. Shriram (PW6) speaks

about all three incidents. Whereas Ajay (PW8) speaks about only

the stabbing incident. Likewise Jaikumar (PW10) also speaks only

in respect of the stabbing incident.

12. Though Charandas (PW4) speaks about spoiling water,

he is totally silent that the water was spoiled by the accused no.1-

Raju. This witness is known to the deceased and he was serving

meals to the invitees. It would be useful to refer to the portion

appearing in his examination in chief itself, which reads thus:

"Marriage was performed at about 12.00 noon. The meals were being served to the invitees of the marriage in the hall. I was

14 apeal180.212.01.odt

serving the food to them. Some boys poured tested water from their mouth in the drum in which drinking water was stored. Dispute arose on that ground. That dispute has cropped a little before taking place of marriage, but it was settled at that time."

13. Shriram (PW6) is the elder brother of the deceased

Pandurang. Therefore, his presence at the marriage is the most

natural. According to this witness, after one or two rounds of meals

were over, the appellants-Raju and Nana created problem, threw

water tested by their mouths in the drum in which the drinking

water was stored and defied the drinking water. Naturally,

according to this witness, his other younger brother Shivcharan

who lodged the FIR accosted both of them. It has resulted into

altercations between them which was intervened by Shriram and

thereafter both the appellants left the place.

The version that the accused-Nana created problem by

spoiling the water is a proved omission. Similarly, the altercation

between Shivcharan and Nana is also a proved omission.

Thus, it could be said with conviction that it is the

accused no.1-Raju alone who has spoiled the water.

14. Another incident that as per prosecution has occurred at

2.30 pm on the day of marriage i.e. in respect of barging of the

15 apeal180.212.01.odt

accused-Uttam in the marriage hall and giving abuses and

extending threats.

Insofar as this incident is concerned, the evidence of

Shriram (PW6) shows that at about 2.30 pm, accused no.3-Uttam

and his younger son came into the marriage hall where the

marriage was performed. As per the version of this witness, Uttam

started abusing after his arrival in the hall. If this witness is to be

believed, he went forward and told Uttam that everything that has

happened earlier should be forgotten and there should not be any

further quarrel. Upon that, according to this witness, Uttam told

that he has no intention to talk to him that he wishes to have a talk

with Pandurang alone. Therefore, Pandurang was called who was

near the gate of hall. He requested the accused Uttam to forget

whatever has happened. On that, Uttam extended threats that he is

capable of finishing his entire progeny. By saying that, as per the

version of this prosecution witness, Uttam left the hall. Thus, so far

as the incident of 2.30 pm is concerned, there is only one witness

i.e. Shriram (PW6). It is quite possible that all witnesses may not

have an opportunity for various reasons to witness the incident of

2.30 pm. However, in our view, Suresh (PW8) appears to be an

exception. Suresh (PW8) is a close relative of Pandurang. He has

attended the marriage function. He has admitted in his cross-

                                                 16                apeal180.212.01.odt

 examination as under:

"The marriage ceremony was performed at 11.00 am or 12.00 noon. I remained in the hall after the marriage till the arrangement for sending the bride with the bridegroom were being made."

The last incident of stabbing has occurred at the time

when preparation of sending the bride with the bridegroom was in

process. Once, this prosecution witness Suresh (PW8) admits that

after the marriage till the programme of sending the bride with the

bridegroom was in progress, he was available in the hall. It is really

unbelievable that either he will not witness the incident at 2.30 pm

or failed to hear anything about the same. As per the evidence of

Shriram (PW6), accused Uttam barged in the marriage hall and

started abusing and extending the threats. That shows that he must

be using the said language in a loud voice. If a person like Suresh

(PW8) who is the close relative of the deceased was present in the

hall, the said incident cannot escape from his notice.

15. In respect of the actual assault, Charandas (PW4) states

from the witness box that two motorcycles came there and some

people got down from the motorcycle and entered the hall. Two of

them who had come from motorcycle entered the hall, caught hold

of Pandurang and at that time, accused Raju stabbed the knife on

17 apeal180.212.01.odt

the chest of Pandurang. He identified Raju from the witness box.

However, he states that as two persons who caught hold of

Pandurang were unknown to him and since he is has not seen their

faces, he cannot say whether those two persons are amongst the

accused persons or not.

He states from the witness box that he knows the

accused Uttam and Nana, who are present in the court hall by

pointing out fingers to the them. Test identification parade was

held during the course of investigation. This prosecution witness

was called to identify the two persons who had caught hold of

Pandurang. He has identified in the identification parade Uttam

(accused no.3) and Nana (accused no.4) who caught hold of the

deceased. Interestingly, from the witness box, he stated in his

examination in chief as under:

"Because I had seen Raju Gavai (accused no.1) striking knife to the deceased and hence I identified him at the time of identification parade. I had also identified the two persons in the parade who had caught hold of Pandurang (deceased), though I had not seen the faces of those two persons in the hall, they were my relatives and hence I identified them."

Thus, it is clear that he has identified accused no.3 and

accused no.4 in the identification parade only because they are his

relatives. In his cross-examination, he has admitted that he could

18 apeal180.212.01.odt

not identify who had caught hold of Pandurang. In that view of the

matter, in our view, the evidence of this prosecution witness does

not establish that the accused nos. 3 and 4, Uttam and Nana

respectively caught hold of the deceased Pandurang.

16. Shriram (PW6) states that at about 5.00 pm when

arrangements were going on to send the bride with the bridegroom,

at that time, 4-5 persons including the present appellants rushed in

the hall from outside. Accused No.3-Uttam and accused No.4-Nana

and other two persons caught hold of Pandurang and thereafter

accused Raju, all of a sudden, gave a stab blow to Pandurang. As

per the claim of this witness, four persons namely; Uttam, Nana

(appellants), Bandu Gavai and Bandu Wankhade caught hold of

Pandurang.

Suresh (PW8) supports Shriram (PW6) that Uttam and

Nana caught hold of Pandurang and then Raju dealt with a stab

blow. Similarly, Jaikumar (PW10), son of the deceased Pandurang,

speaks about the presence of Uttam and Nana and also speaks

about holding by these two accused persons.

17. From the evidence of these witnesses, it is clear that the

role attributed to those accused persons is that they caught hold of

19 apeal180.212.01.odt

Pandurang and thereafter he was stabbed by Raju. Even the

learned Judge of the Court below has also convicted them for the

offence punishable under Section 302 only with the aid of Section

34 of the IPC. Therefore, it is to be seen as to whether these two

persons were sharing common intention with the accused Raju in

respect of the assault by knife.

18. It is clear form the evidence brought on record that the

accused Raju has spoiled the drinking water. It is not the case of

the prosecution that at that time accused Uttam was present in the

hall. Through the evidence of Shriram (PW6), the prosecution tried

to bring on record involvement of accused Nana in spoiling of the

water. However, his said version is found to be an improvement

and therefore the evidence of Shriram in respect of the accused

Nana that he also spoiled the water could conveniently be

discarded.

19. Insofar as the incident giving abuses and the incident of

threats at 2.30 pm is concerned, the said incident is being told only

by Shriram (PW6). It is to be noted that the marriage ceremony

was attended by various persons. The first two rounds of meals

were over at about 12.00 to 12.30 pm. It is not the case of the

20 apeal180.212.01.odt

prosecution that by 2.30 the programme of meals was over and the

marriage hall was either empty or the attendance was thin. It is

really hard to believe that no other person except Shriram (PW6)

noticed the incident that had occurred at 2.30 pm giving abuses

and extending threats especially in the light of admission given by

Suresh (PW8) that for all the time, he was present in the marriage

hall. Therefore, in our view, the evidence as brought on record to

show the occurrence of the incident at 2.30, comes under the

shadow of doubt.

If the incident of giving abuses or threats at 2.30 pm

comes under the shadow, there was no occasion for the accused

Uttam to nurse grudge against Pandurang, the deceased.

20. Section 34 of the Indian Penal Code, lays down a

principle of joint liability in doing of a criminal act. The essence of

that liability is to be found in the existence of common intention

animating the accused leading to the doing of a criminal act in

furtherance of such intention. The distinct feature of section 34 is

the element of participation in action. The common intention

implies acting in concert, existence of a pre-arranged plan which is

to be proved either from conduct or from circumstances or from any

incriminating facts. It requires a prearranged plan and it

21 apeal180.212.01.odt

presupposes prior concert. Therefore, there must be prior meeting

of minds. The prior concert or meeting of mind may be determined

from the conduct of the offenders unfolding itself during the course

of action and the declaration made by them just before mounting

the attack. It can also be developed at the spur of the moment but

there must be pre-arrangement or premediated concert, is the law

laid down by the Hon'ble Apex Court, time and again and it could

be noticed in a reported judgment in the case of Ramashish Yadav

And Ors vs State Of Bihar, reported in 1999 (8) SCC 555 .

By applying the aforesaid principles in the said case, the

Hon'ble Apex Court ruled in that case that, "from the mere fact that

two accused persons came and caught hold of the deceased, whereafter

the other two accused came with gandasa in their hands and gave

blows by means of gandasa, it cannot be said that the accused who

had held the deceased, shared the common intention with other two

accused, who had inflicted the blows, which resulted in the death of

the deceased."

21. In view of the aforesaid evaluation of the evidence and

in the absence of any other positive evidence available on record,

we are not able to reach to the conclusion that the accused no.3-

Uttam and accused no.4-Nana shared any common intention with

22 apeal180.212.01.odt

accused no.1-Raju. In the present case, the prosecution has not

filed any Chemcial Analyzer's report to show that the clothes of

these two accused persons were stained with blood. Thus, there is

no corroboration by scientific evidence to prove the charge of

holding by them.

Whether accused Raju could be convicted for the offence

punishable under Section 302 of the IPC?

22. In the present case, no witness was shown the knife by

which, according to the prosecution, the accused Raju gave the stab

blow. Though, the said knife was recovered, according to the

prosecution at the behest of the accused Raju on his memorandum

of statement, the said knife was not sent to Chemical Analyzer nor

the said weapon was sent to any of the doctors seeking their

opinion as to whether the weapon which is recovered at the behest

of Raju can cause the injury.

23. According to Dr. Raj Agrawal (PW2), when Pandurang

was brought to Irwin Hospital at about 5.45 pm, he noticed only

one wound on his left hypocondrial region on lower side. He has

proved the injury certificate Exh.-71. According to the said

23 apeal180.212.01.odt

certificate, nature of injury was an incised wound and size of injury

was 4" x 1" x 3", peritoneal deep. By the said certificate, it is clear

that the said injury cannot reach to the kidney.

24. Dr. Dhirendra Wagh (PW14), the surgeon found that the

condition of Pandurang was serious when he was admitted in the

surgery ward at 7.00 pm. He also noticed only one stab wound on

left hypocondrial region. When he opened abdomen, he noticed

that his left Kidney was found torn and severe bleeding was

continued. Therefore, he packed that wound and surgery was

terminated. According to this doctor,

"Stab wound was located at the hypocondrial region, which was 4" x 1" x 1" in size. But deep down this injury has resulted into tear to left Kidney, and it had resulted into extensive bleeding."

In the cross-examination, this doctor has admitted as

under:

"The left kidney was about 6 to 7 inches on the inner side inside the body from external skin of the body. External injury i.e. stab would was 4" x 1" x 1" in size. It was 4 inches in length, 1" in width and 1" in depth. Stomach, spleen, large as well as small intestines are found intact."

Thus, in his cross-examination, he has given depth of the

injury as only 1" and there was no damage to the stomach, spleen

24 apeal180.212.01.odt

and both the intestines. This is also corroborated by the post

mortem report Exh.-73. Thus, Dr. Wagh then changed his version

to a great extent to a Court's queation and he states that,

"Approximately, the depth of stab was about 7-8 inches. If counted from the outer edge of the hypochondrial skin."

However, when he was further cross-examined by the

learned cross-examiner, he admitted thus:

"In the bed-head ticket, there is no mention that depth of injury was 7 to 8 inches. I am saying the depth to be 7 to 8 inches approximately, because kidney is about 6 to 7 inches inside the body."

As per the post mortem report, cause of death is due to

cut to the left Kidney. Dr. Raj Agrawal (PW2) is silent that the

injury has given cut to peritoneal. He only says that it was an injury

at peritoneal deep. Nothing more can be expected from this doctor

since he has examined the patient externally. However, such is not

the case in respect of Dr. Dhirendra Wagh (PW14). This Doctor has

opened the abdomen and then terminated the surgery. Even after

opening the abdomen, the doctor is totally silent that he notice any

cut to peritonis. From the Atlas of Human Anatomy, authored by

Fank H. Netter and the various diagrams, it is clear that kidney is

situated on the backside. It is not the version of any prosecution

witness that accused Raju gave more than one stab blows. All the

25 apeal180.212.01.odt

eye witnesses only state that Raju gave one stab blow on his left

hypocondrial region. That means that stab was given from the left

front side. It completely rules out the possibility that stab was

given from the backside. Therefore, in order to reach to the kidney,

the injury has to travel through more than one organ. However, Dr.

Dhirendra Wagh (PW14), the surgeon who aborted the surgery,

noticed that there was no injury to any of the organs and that is

confirmed by the autopsy surgeon. In that view of the matter,

suggestion given by the learned cross-examiner, through it is

denied by Dr. Wagh, it assumes importance that during the

operation, injury to the kidney was caused. Be that as it may. The

prosecution has completely failed to establish firmly on record by

giving concrete medical evidence that the fatal injury was caused by

the knife blow given by Raju has resulted into death.

25. However, the prosecution has been able to prove that

Raju has assaulted Pandurang by means of weapon. The evidence

of the eye witnesses to the extent that it is the accused Raju who

gave a knife blow on hypocondrial region of the deceased

Pandurang is not shattered at all in their respective evidence. The

learned Senior Counsel submits that the prosecution has not filed

on record the Chemical Analyzer's report to show that the clothes of

26 apeal180.212.01.odt

Raju were stained with blood. He further submitted that the

weapon was also not sent to the Chemical Analyzer to show that it

was stained with blood. The scientific evidence in the nature of

Chemical Analyzer's report are always a piece of corroborative

evidence. It is always used to support the version of the

prosecution witnesses. However, merely because this type of

evidence is not available, that by itself is not sufficient to throw the

case of the prosecution in dustbin by discarding the consistent

ocular account given by the eye witnesses. As seen in the preceding

paragraphs, there is no improvement on the part of any of the eye

witnesses in respect of the assault made by accused Raju on the

deceased Pandurang. Their evidence is consistent. They have not

changed their earlier versions. Therefore, we have no hesitation in

our minds that it is the accused-Raju who has given the stab blow.

26. Dr. Raj Agrawal (PW2) is the first Doctor who examined

Pandurang on 20.05.1989 on his admission to Irwin Hospital,

Amravati. He has proved the injury certificate, Exh.-71. His

evidence shows that the wound would have caused death. Thus, it

is crystal clear that the accused-Raju is responsible for causing

grievous injury to Pandurang. Hence, though he may not have been

held guilty for the offence punishable under Section 302 of the IPC,

27 apeal180.212.01.odt

in our view, his act comes within the ambit of Section 326 of the

IPC. That leads us to pass the following order.

O R D E R

Criminal Appeal No.180/2001

(i) Criminal Appeal No.180/2001 is allowed.

(ii) The judgment and order dated 09.05.2001 in Sessions Trial

No.73/1990 passed by Additional Sessions Judge, Amravati thereby

convicting the appellant-Nana Wankhade for an offence punishable

under Section 302 read with Section 34 of the IPC is hereby

quashed and set aside.

(iii) The bail bonds executed by appellant stand cancelled.

Criminal Appeal No.212/2001

(i) Criminal Appeal No.212/2001 is partly allowed.

(ii) Appellant No.1-Raju Uttamrao Gawai is acquitted of the

offence punishable under Section 302 read with Section 34 of the

IPC. However, he is convicted for an offence punishable under

Section 326 of the IPC. He is directed to suffer rigorous

imprisonment for a period of 10 years.

(iii) Appellant no.1 shall surrender to his bail bonds within three

weeks. The Court below is directed to take steps against appellant

no.1 for serving him out his remaining jail sentence.

28 apeal180.212.01.odt

(iv) Appellant no.1 is entitled to set off under Section 428 of the

Criminal Procedure Code.

(iv) Appellant no.2-Uttamrao Jangluji Gawai is acquitted of the

offence punishable under Section 302 read with Section 34 of the

IPC.

(v) The bail bonds executed by appellant no.2 stand cancelled.

(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)

kahale