Bombay High Court
The State Of Maharashtra vs [email protected] Vitthal Walke And ... on 22 December, 2017
Bench: S.P. Deshmukh
1 Cri.Appeal.147-08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.147 OF 2008
The State of Maharashtra,
Through A.P.I. Shrirampur,
City Police Station ..Appellant
(Prosecution)
Vs.
1. Pinya @ Jayant Vitthal
Walke, Age : 24 years,
r/o.Saraswati Colony,
Ward No.7, Shrirampur,
Dist. Ahmednagar
2. Vasant Karbhari Pawar,
Age : 36 years, ..Respondent
r/o.Saraswati Colony, nos.1 and 2
Ward No.7, Shrirampur, (Orig.accused
Dist. Ahmednagar nos.1 and 2)
3. Fukya @ Dhananjay Pandurang
Girme, Age : 27 years,
r/o.Saraswati Colony, ..Leave refused
Ward No.7, Shrirampur, as per order
Dist. Ahmednagar dated 22/4/2008
--
Ms.S.S.Raut, APP for appellant
Mr.R.A.Tambe, Advocate for respondents
--
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : DECEMBER 08, 2017
PRONOUNCED ON : DECEMBER 22, 2017
::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:50:40 :::
2 Cri.Appeal.147-08
JUDGMENT (PER SANGITRAO S. PATIL, J.):
Heard.
2. Respondent nos.1, 2 and one Fukya @
Dhananjay Pandurang Girme (original accused nos.1,
2 and 3 respectively) were prosecuted for the
offences punishable under Sections 302 and 323
read with Section 34 of the Indian Penal Code
("I.P.C.", for short). Sessions Case No.54 of
2005 was registered against them. The learned
Addl. Sessions Judge, Shrirampur convicted them
for the offences punishable under Sections 324 and
323 read with Section 34 of the I.P.C. and
extended them the benefit of probation by
directing them to furnish bonds of good behavior
in the sum of Rs.5,000/- each, for a period of two
years, and to pay compensation of Rs.3,500/- each,
which amount, on reaslisation, was directed to be
paid to the informant Shobhabai, Kalabai and
Fulabai, to the extent of Rs.3,500/- each. The
learned trial Judge acquitted the accused persons
3 Cri.Appeal.147-08
of the offence punishable under Section 302 of the
I.P.C.
3. Being aggrieved by the judgment and order
dated 25.10.2007 passed by the learned trial
Judge, the State/Prosecution preferred this appeal
with leave of this Court. While considering the
application for leave to file appeal, this Court,
vide order dated 22.04.2008, granted leave against
respondent nos.1 and 2 (original accused nos.1
and 2) only and refused it as against respondent
no.3 (original accused no.3) namely, Fukya @
Dhananjay Pandurang Girme. Thus, the appeal
proceeded against respondent nos.1 and 2 (original
accused nos.1 and 2) only.
4. The deceased Nausabai Nivrutti Chavan,
aged about 70 years, was residing in Saraswati
Colony, Ward No.7, Shrirampur. She had three
daughters namely, Fulabai, Shobhabai and Kalabai.
Fulabai has four daughters namely, Radha, Varsha,
4 Cri.Appeal.147-08
Paru and Sakhu. Sakhu had got married to
respondent no.1 prior to about two years of the
date of incident, which took place on 01.04.2005.
5. It is the case of prosecution that on
01.04.2005 at about 5.30 p.m., Paru was coming
from a grocery shop to the house of the deceased
Nausabai. Respondent no.1 met her on the way and
asked her to send Sakhu to him. He further started
hurling abuses against Paru. Respondent no.1
followed Paru and went to the house of the
deceased Nausabai along with his friend i.e.
respondent no.2 and original accused no.3. All of
them hurled abuses against Shobhabai, who was
standing in front of the house and started beating
her. Respondent no.1 was holding an iron bar,
while respondent no.2 was having a tommy.
Respondent no.1 gave a blow of iron bar on the
nose of Shobhabai and caused her bleeding injury.
When the deceased Nausabai intervened to rescue
her, respondent no.1 gave blows of iron bar on her
5 Cri.Appeal.147-08
left shoulder and forehead. Respondent no.2 also
beat on her head, back, waist and both of the
knees by means of a tommy. She sustained bleeding
injuries on her head, shoulder and chest. Kalabai
also came to intervene in that incident. At that
time, original accused no.3 beat her by fists and
kicks.
6. Shobhabai went to Police Station,
Shrirampur and lodged report against the
respondents and accused no.3. Crime No.70 of 2005
came to be registered against them for the
offences punishable under Sections 324, 323, 504
and 506 read with Section 34 of the I.P.C. All the
injured persons were referred to Kamgar Hospital,
Shrirampur for examination and treatment. The
Medical Officer examined them. The deceased
Nausabai was referred to the Civil Hospital at
Ahmednagar, where she was admitted for treatment
for one day. She was again taken back to Kamgar
Hospital, Shrirampur, where she survived for about
6 Cri.Appeal.147-08
fifteen days. She expired on 15.04.2005 at 5.10
p.m.
7. After her demise, the offence punishable
under Section 302 of the I.P.C. came to be added
in the above-numbered crime. The investigation was
conducted. Inquest panchanama of the body of the
deceased Nausabai was prepared. Her clothes were
seized. Post mortem of the deceased Nausabai was
conducted. The Medical Officer opined that she
died of shock due to due to cardio-respiratory
failure due to hypostatic pneumatics with
pulmonary embolism in association with fracture of
acetabulum and fracture of left humerus. The iron
bar and the tommy used by the accused came to be
seized. After completion of the investigation,
respondent nos.1 and 2 and original accused no.3
came to be charge-sheeted for the above-mentioned
offences.
7 Cri.Appeal.147-08
8. The learned trial Judge framed Charges
against respondent nos.1 and 2 and original
accused no.3 for the offences punishable under
Sections 302 and 325 read with Section 34 of the
I.P.C. vide Exh.-16 and explained the contents
thereof to them in vernacular. They pleaded not
guilty and claimed to be tried. Their defence is
that of total denial and false implication.
According to them, on the day of the incident,
respondent no.1 had gone to the house of the
deceased Nausabai in a jeep to take his wife Sakhu
with him. At that time, respondent no.2 and
original accused no.3 were with him in the jeep.
When Sakhu boarded the jeep and started proceeding
with respondent no.1, all of her maternal
relations came there with sticks and snatched her
out of the jeep. Respondent no.1 took the jeep to
its reverse side. At that time, the deceased
Nausabai accidentally got pushed and sustained
injuries. Since the maternal relations of Sakhu
8 Cri.Appeal.147-08
were against her marriage with respondent no.1,
they lodged a false report against respondent no.1
and his companions. They denied that they had any
weapon with them and assaulted the deceased
Nausabai or other witnesses as alleged by the
prosecution.
9. The prosecution examined in all thirteen
witnesses. Respondent no.1 also examined his wife
Sakhu in his defence. After considering the
evidence on record, the learned trial Judge held
the respondents and original accused no.3 guilty
for the offences punishable under Sections 324 and
323 read with Section 34 of the I.P.C., but
instead of sentencing them to suffer any
imprisonment, extended them the benefit of
probation. The learned trial Judge acquitted them
of the offence punishable under Section 302 of the
I.P.C., holding that the prosecution failed to
establish that the death of the deceased Nausabai
was homicidal.
9 Cri.Appeal.147-08
10. Respondent nos.1 and 2 did not challenge
the judgment and order passed by the learned trial
Judge holding them guilty for the offences
punishable under Sections 324 and 323 read with 34
of the I.P.C. for voluntarily causing hurt to the
deceased Nausabai and witnesses Shobhabai and
Kalabai. As such, the said findings recorded by
the learned trial Judge have become final.
11. Since the findings of the learned trial
Judge holding the respondents guilty of
voluntarily causing hurt to the deceased Nausabai
and the injured witnesses, namely, Shobhabai and
Kalabai during the course of the incident narrated
above have become final, the following points
arise for our consideration :-
(1) Did the prosecution prove that the death
of the deceased Nausabai was homicidal ?
(2) Did the prosecution prove that the
respondents committed murder of
Nausabai ?
10 Cri.Appeal.147-08
(3) Whether respondent nos.1 and 2 caused
grievous hurt to the deceased Nausabai ?
(4) What offences are established against the
respondents ?
12. The learned APP submits that after the
incident, the deceased Nausabai was taken to Kamgar
Hospital, Shrirampur, from where she was referred
to the Civil Hospital at Ahmednagar on 01.04.2005
in the night. She was admitted there for treatment.
Dr. Sonawane (PW 7)(Exh.43), who examined her on
02.04.2005 at about 2.15 a.m., found the following
injuries on her person :-
(i) Head injury with contusion;
(ii) Sutured contused lacerated wound
over left eye brow;
(iii) Sutured contused lacerated wound
over left elbow joint;
(iv) Abrasion over left shoulder.
11 Cri.Appeal.147-08
The learned APP submits that Dr. Sonawane (PW 7)
(Exh.43) specifically states that the head injury
in the ordinary course would be sufficient to cause
death. She then points out the evidence of
Dr.Shinde (PW 3)(Exh.30), who conducted post-mortem
of the body of the deceased Nausabai on 15.04.2005.
He noticed the following internal injuries on the
body of the deceased Nausabai :
(i) C.L.W. at left frontal region,
size 1¼" x ½", reddish gray;
(ii) C.L.W. on left elbow dorsal
side, size - 1½ " x ½", reddish
gray;
(iii) Fracture of a acetabulum, left
side swollen (tissues around
grayish).
(iv) Fracture of neck of left
humerus; swollen tissues.
12 Cri.Appeal.147-08
He noted that the said injuries were ante-mortem.
On internal examination, he found that left side
pleura was having haemorrhagic patches on third
region and consolidation in both lungs in lower
region. Hylem of both the lungs was swollen. There
was bluish blood. He deposes that the internal
changes were due to complications due to injuries
sustained by the deceased Nausabai. He opined that
the cause of her death was shock due to cardio-
respiratory failure due to hypostatic pneumatics
with pulmonary embolism in association with
fracture of acetabulum and fracture of left
humerus. He specifically states that injury nos.1
to 4 mentioned above were possible by the blows of
iron bar that was shown to him and the said
injuries were sufficient in the ordinary course to
cause death. On the basis of that medical evidence,
the learned APP submits that the deceased Nausabai
died as a direct result of the injuries sustained
by her in the incident in question and the
13 Cri.Appeal.147-08
authorship of those injuries goes to the
respondents. She submits that since the judgment
of the trial Court has not been challenged by the
respondents, whereby they have been held guilty for
causing the above-mentioned injuries to the
deceased Nausabai, the respondents are liable to be
convicted for committing murder of the deceased
Nausabai.
13. On the other hand, the learned Counsel for
the respondents points out to the evidence of
Dr.Sonawane (PW 7) and Dr.Shinde (PW 3), which
according to him, would make it clear that the
death of Nausabai was not the direct result of the
injuries sustained by her in the incident in
question. He submits that the deceased Nausabai got
herself discharged from the Civil Hospital,
Ahmednagar on 02.04.2005 against medical advice.
As seen from the evidence of Dr.Jagdhane (PW 9)
(Exh.49) of Kamgar Hospital at Shrirampur, Nausabai
was again admitted in that hospital on 05.04.2005
14 Cri.Appeal.147-08
at 6.00 p.m. As such, Nausabai did not take any
treatment for three days after she was discharged
from the Civil Hospital, Ahmednagar. He submits
that since the deceased Nausabai had no serious
injury, she got herself discharged from the
hospital. He submits that even if it is accepted
that she was in need of medical treatment, she did
not continue the medical treatment, due to which
complications arose leading to her death. In the
circumstances, the injuries sustained by the
deceased Nausabai in the incident in question
cannot be said to be the direct cause of her death.
14. It has come in the evidence of Dr.Shinde
(PW 3)(Exh.30) that the injuries sustained by the
deceased Nausabai were not sufficient to cause
immediate death. He then states that the
complications which arose subsequently caused her
death. According to him, Hythetic Pneumonia is a
complication leading to cause death. He further
states that Hythetic Pneumonia can be caused if the
15 Cri.Appeal.147-08
patient is bed-ridden for a long time. He admits
that an injury is not always necessary for causing
Hythetic Pneumonia.
15. Dr.Sonawane (PW 7) deposes that he
examined the deceased Nausabai on 02.04.2005 at
about 2.15 a.m. He states that she was in need of
treatment, but she left the hospital on the same
day against medical advice. Though he states that
there was injury with contusion on left parietal
region of Nausabai and it was sufficient in the
ordinary course to cause death, he states that
there was no fracture of skull or any injury to the
frontal region of the deceased Nausabai. However,
Dr. Shinde (PW 3) states that there was contused
lacerated wound on left frontal region of Nausabai.
The opinion given by Dr.Shinde (PW 3) about the
cause of death of Nausabai does not indicate that
it was the result of any head injury sustained by
her.
16 Cri.Appeal.147-08
16. The medical evidence, as stated above, is
not sufficient and consistent to show that the
death of Nausabai was the direct result of the
injuries sustained by her in the incident in
question. The medical evidence shows that the
deceased Nausabai was in need of medical treatment,
but she left the hospital against medical advice on
02.04.2005 and did not take any treatment until she
was admitted again in Kamgar Hospital at Shrirampur
on 05.04.2005 at 6.00 p.m. There is every
possibility that during the period after the
discharge of Nausabai from the Civil Hospital at
Ahmednagar till her admission in Kamgar Hospital at
Ahmednagar, she developed complications for want of
medical treatment. Had she taken the medical
treatment in the Civil Hospital continuously from
02.04.2005 onwards, probably she would not have
succumbed to the injuries sustained by her. Thus,
the prosecution has failed to establish beyond
reasonable doubt that the deceased Nausabai died as
17 Cri.Appeal.147-08
a direct result of the injuries sustained by her in
the incident in question. If that be so, the
learned trial Judge cannot be said to have
committed any mistake in holding that the death of
Nausabai was not homicidal and acquitting the
respondents of the offence punishable under Section
302 of the I.P.C.
17. Dr. Satpute (PW 10)(Exh.51), who was
serving as Medical Practitioner in Kamgar Hospital
at Shrirampur deposes that he examined the
deceased Nausabai and found that x-ray of the
deceased Nausabai showed fracture of acetabulam of
left side and fracture of neck of left humerus.
Dr.Shinde (PW 3) also states that he found fracture
of acetabulum of left side and fracture of neck of
left humerus of the deceased Nausabai. This
evidence has not been shattered in the cross-
examination of these witnesses. The learned trial
Judge also observed in paragraph 33 of the impugned
judgment that respondent no.1 caused grievous hurt
18 Cri.Appeal.147-08
to the deceased Nausabai, answered point nos.3 and
4 for determination in the affirmative holding that
the appellants caused grievous hurt and committed
the offence under Section 325 read with Section 34
of the I.P.C. As per the seventh Clause under
Section 320 of the I.P.C., fracture of bone has to
be designated as "grievous". Respondent nos.1 and
2 are stated to have used iron bar and tommy
respectively for causing injuries to Nausabai. The
deceased Nausabai in her dying declaration
(Exh.47), which was recorded when she was in a fit
state of mind to give statement, specifically
states that accused no.1 gave blows of iron bar on
her left shoulder and forehead, while respondent
no.2 gave blows of tommy on her head, back, waist
and both of the knees. Her statement is
corroborated by Shobha (PW 1). Considering the
nature of these weapons and the nature of injuries
caused to the deceased Nausabai, it is clear that
respondent nos.1 and 2, in furtherance of their
19 Cri.Appeal.147-08
common intention, committed the offence of
voluntarily causing grievous hurt to the deceased
Nausabai made punishable under Section 325 of the
I.P.C. The learned trial Judge wrongly held them
guilty of the offence punishable under Section 324
of the I.P.C. only, ignoring his own observations
and findings on point nos.3 and 4 that grievous
hurt was caused to the deceased Nausabai and the
offence under Section 325 read with Section 34 of
the I.P.C. was committed by the respondents.
18. We, therefore, hold that respondent nos.1
and 2 committed the offence punishable under
Section 325 read with Section 34 of the I.P.C. as
against the deceased Nausabai. So far as the
conviction of the respondents for the offence
punshable under Section 323 of the I.P.C. as
against the injured Shobhabai and Kalabai is
concerned, it has attained finality since the
respondents did not challenge it.
20 Cri.Appeal.147-08
19. As stated above, the impugned judgment and
order holding respondent nos.1 and 2 guilty for the
offences punishable under Sections 324 and 323 read
with Section 34 of the I.P.C. will have to be
modified and they will have to be held guilty of
the offences punishable under Sections 325 and 323
read with Section 34 of the I.P.C.
20. In the facts and circumstances of the
case, the benefit of probation cannot be extended
to the respondents. However, considering the nature
of offences established against the respondents,
and the fact that a period of about 12 years has
been elapsed after the date of the incident, we are
of the view that lenient view will have to be taken
in fixing the quantum of punishment. In our view,
the respondents should be convicted for the
offences punishable under Sections 325 and 323 read
with Section 34 of the I.P.C. and should be
sentenced to suffer rigorous imprisonment for three
years each and to pay a fine of Rs.6,000/- each, in
21 Cri.Appeal.147-08
default, to suffer rigorous imprisonment for one
month each in respect of the offence punishable
under Section 325 of the I.P.C. and to suffer
rigorous imprisonment for six months each in
respect of the offence punishable under Section 323
of the I.P.C.
21. In the result, we pass the following
order:-
(1) The appeal is partly allowed;
(2) The impugned judgment and order are
modified and respondent nos.1 and 2 are
convicted for the offences punishable
under Sections 325 and 323 read with
Section 34 of the I.P.C. instead of the
offence punishable under Section 324 read
with Section 34 of the I.P.C.;
(3) The order extending benefit of probation
to respondent nos.1 and 2 is quashed and
22 Cri.Appeal.147-08
set aside and instead, each of them are
sentenced to suffer rigorous imprisonment
for three years and to pay a fine of
Rs.6,000/- (Rupees Six Thousand) each, in
default, to suffer rigorous imprisonment
for six months in respect of the offence
punishable under Section 325 read with
Section 34 of the I.P.C. and further each
of them are sentenced to suffer rigorous
imprisonment for six months for the
offence punishable under Section 323 of
the I.P.C.
(4) The substantive sentences shall run
concurrently;
(5) If the fine amount is recovered, an
amount of Rs.4,000/- each be given to
Shobhabai Bhaskar Shinde, Kalabai Gawali
Shinde and Fulabai Tarachand Shinde,
residents of Saraswati Colony, Ward No.7,
23 Cri.Appeal.147-08
Shrirampur, Dist. Ahmednagar, as
compensation;
(6) Respondent nos.1 and 2 shall be given set
off in respect of the period of detention
suffered in respect of this case vide
Section 428 of the Code of Criminal
Procedure;
(7) Respondent nos.1 and 2 shall surrender to
their bail bonds by appearing before the
trial Court within a period of two weeks
from today for suffering the sentence of
imprisonment passed against them by this
order;
(8) In case respondent nos.1 and 2 fail to
appear before the trial Court within two
weeks from today, the trial Court shall
issue coercive process against them for
securing their presence;
24 Cri.Appeal.147-08
(9) Criminal Appeal is accordingly disposed
of.
[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]
kbp
