Bombay High Court
Dattu Rama Theurkar And Others vs The State Of Maharashtra on 15 December, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 33 OF 2000
1) Dattu Rama Theurkar ]
age about 50 years, ]
Occupation - Agriculturist, ]
2) Deepak Dattu Theurkar ]
age about 27 years, ]
Occupation Agriculturist ]
both r/o Khopodi, ]
Taluka Daund, District Pune ]
(at present detained at Yerwada
Central Prison). ..Appellants.
(Orig.Accused No.1 & 2)
Versus
The State of Maharashtra ] ..Respondent.
] (Orig.Complainant).
Appearance:
Mr. Swapnil Ovalekar, appointed
Advocate (through : Legal Aid Panel)
for the Appellants.
Mrs.M.H.Mhatre,APPfor Respondent
/State.
......
CORAM : S.C. DHARMADHIKARI AND
SMT. BHARATI H. DANGRE, JJ.
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RESERVED FOR JUDGMENT ON: NOVEMBER 16, 2017.
JUDGMENT PRONOUNCED ON : 15th December, 2017
JUDGMENT (Per SMT.BHARATI H. DANGRE, J.):
1 Being aggrieved by the judgment and order
passed by the learned Additional Sessions Judge of
Baramati in Sessions Case No.23 of 1993 (State of
Maharashtra vs. Dattu Rama Theurkar & Ors.), dated 30 th
December, 1999, the two Appellants i.e. original accused
No. 1 and 2, have preferred the present Appeal
challenging their conviction under section 302, read with
section 34 of the Indian Penal Code ("I.P.C". for short). The
learned Additional Sessions Judge, Baramati, District Pune,
convicted the present Appellants for the offences
punishable under Sections 302 read with Section 34 of the
IPC and sentenced them to suffer imprisonment for life and
to pay fine of Rs.500/-, each, in default, to suffer rigorous
imprisonment (R.I.) for two months. The learned Additional
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Sessions Judge has also convicted the above Appellants
for the offences punishable under section 323 read with
Section 34 of the IPC and sentenced them to suffer R.I. for
two months and to pay fine of Rs.200/-, each in default, to
suffer R.I. for one month. The substantive sentences of
accused / appellants were directed to be run concurrently.
By the said judgment, the accused no.3- Kamal Dattu
Theurkar came to be acquitted since no clinching evidence
to rope the said accused was brought on record by the
prosecution.
2 The prosecution case needs a narration in nut-
shell:
3 For the sake of convenience, the appellants
hereinafter, would be referred to as accused No.1 and
accused No.2.
Deceased Bhimrao Dnyandeo Shitole was the
husband of Savita Shitole (PW 2) who were residing with
their children by the side of house of the accused persons.
The accused persons were cultivating the field of Shri
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Punekar which is situated behind the house of Savita
Shitole (PW 2), on crop share basis. Prior to the incident
there was some quarrel among the accused persons,
Bhimrao and PW 2 Savita on account of canal water. PW
No.2 Savita had erected thorny fencing behind her house
so as to prevent the entry of hens in the land of Shri
Punekar. Accused No.1 Dattu removed the fencing when
PW 2 Savita enquired as to why he removed the fencing.
On this accused No.1 was annoyed. It was on 8 th December,
1992. At that time deceased was not present at home. He
had gone to the field for plucking flowers. Accused No.1
Dattu was sowing in the field of Shri Punekar. He went
near the house of PW 2 Savita and started beating her.
Accused No.2 and 3 also joined accused No.1. All of them
started beating PW 2 Savita by fist and kick blows. In the
meantime, Bhimrao came there. Accused No. 1 and 2
started assaulting Bhimrao by means of sticks and axe on
his head. PW 1 Ramchandra witnessed the quarrel
between accused and Bhimrao. He went to rescue
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Bhimrao. At that time, accused no.1 Dattu gave blow of
stick on the head of Ramchandra and accused No.2 gave
blow of axe on the head of PW 1 Ramchandra. Ramchandra
sustained bleeding injuries. He fell down. PW 3 Vimal
Mali, PW 4 Balasaheb Shitole and PW 6 Vilas Shitole came
to help of deceased Bhimrao. PW 4 Balasaheb and PW 1
Ramchandra took Bhimrao to Yavat.
4 From Police Station Yavat, Pune (Rural) injured
Bhimrao was referred for medical examination and
treatment at Yavat. Thereafter, he was shifted to Rubi
Hospital, Pune. PW No.1 Ramchandra Ganpat Shitole
lodged his complaint at Kedgaon Police Outpost which was
registered under Sections 143, 148, 302 read with 149,
324 read with sec. 149 of I.P.C. by PW 8 Balkrishna Pawar,
Police Head Constable, which is at Exh.33. The
investigation was conducted by PW 7 P.S.I. Shri. Suresh
Bhosale. In the meantime on 8th December, 1992 at about
6:00 p.m. Bhimrao Shitole died in Rubi Hospital, Pune.
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Police drawn the inquest panchnama Exh.26. Dead body of
Bhimrao was sent for postmortem examination and report.
Medical Officer of Sassoon Hospital, Pune carried
postmortem examination and report is at Exh.56. The
Medical Officer opined that death of Bhimrao was due to
head injury. During his investigation, PSI PW No. 7 Suresh
Bhosale drew spot panchnama (Exh.40). He seized the
blood stained articles i.e. axe, stone, stick and pieces of
bangles from the spot of incident. He also collected blood
stained earth and sample earth from the spot. He arrested
the accused persons and seized the blood stained clothes
on their person under a seizure panchnama Exhs. 44 and
41. He also seized the blood stained clothes from the
person of Ramchandra (PW No.1) vide Exh.42. The blood
samples of the accused and seized articles were sent to
Chemical Analyzer for analysis and reports. He recorded
statements of witnesses and after completion of
investigation charge-sheet was filed against the accused
persons in the Court of Judicial Magistrate, First Class,
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Daund.
5 The offence under Section 302 of the I.P.C. being
exclusively triable by the Court of Session, the learned
J.M.F.C. Daund committed the case to the Court of Session
at Baramati. The learned Trial Judge framed charge
against the accused persons vide Exh. 16. The charge was
read over and explained to the accused persons in
vernacular language. The accused persons pleaded not
guilty and claimed to be tried. The prosecution examined
eight witnesses to prove the guilt of the accused persons.
The accused persons have not examined any witness in
defence. The learned trial Judge scrutinized the said
evidence and came to the conclusion that the prosecution
has established guilt of accused No.1 and 2. He therefore
convicted and sentenced accused No.1 and 2 as mentioned
earlier. However, learned trial Judge acquitted accused
No.3 Kamal Dattu Theurkar as the prosecution failed to
prove any offence against the said accused.
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6 The learned Additional Sessions Judge on careful
scrutiny of the evidence and the material brought on behalf
of the prosecution arrived at a conclusion that on the basis
of evidence of prosecution witnesses No. 1,2 and 6, it is
established that accused no.1 Dattu and accused No.2
Deepak had assaulted the deceased Bhimrao on his head
by means of stick and axe and caused his death. As
regards accused No.3, the learned Addl. Sessions Judge
concluded that no reliable evidence has been brought on
record by the prosecution to link her participation in the
crime. Similarly, the Court below concluded that there is no
reliable evidence that the other two juvenile offenders have
attacked Bhimrao and on the basis of such conclusion the
learned Additional Sessions Judge concluded that the
charge of unlawful assembly fails but arrived at a
conclusion that the prosecution has also established that
accused No. 1 and 2 have caused hurt to PW 1
Ramchandra Shitole by means of stick and axe and they
are guilty of an offence punishable under Section 324 of
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IPC. Resultantly, the learned Additional Sessions Judge
convicted accused No. 1 and 2 for the offence under
Section 302 read with Section 34 and 323 read with
Section 34 of the IPC and sentenced them to suffer
imprisonment for life and to pay a fine of Rs.500/-, each, in
default, to suffer RI for two months. It is this judgment of
the learned Additional Sessions Judge which is assailed by
the appellants in the present appeal.
7 As far as appellant No.1 is concerned who
alleged to have assaulted the deceased and PW No.1 by
means of stick has been released on bail by the order of
this Court on 24th April, 2000. By the same order, this
Court has refused to release appellant No.2 on bail.
However, he was released on parole in the year 2001, while
he was undergoing jail sentence.
8 We have heard Shri Swapnil Ovalekar, learned
Counsel, appointed through Legal Aid Panel, to represent
the appellants and Mrs. M.H.Mhatre, learned A.P.P. for the
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State. Shri Swapnil Ovalekar would argue that the learned
Additional Sessions Judge has erred in convicting the
appellants and according to him the prosecution has failed
to establish the guilt of the appellants. He would argue
that the charge levelled against the accused persons
should be of a specific nature so as to enable him to know
as to what allegations he is supposed to meet. He would
argue that the charge framed against both the appellants
in the present case fell short of the same and he invited our
attention to the charge framed against the appellants by
the learned Additional Sessions Judge on 26 th March, 1997
and would argue that perusal of the said document would
reveal that the charge framed against the appellants is
vague and it did not attribute specific act and merely
charges the appellants collectively of the offence
punishable under Section 143 and 148 of IPC. He would
also argue that as regards charge under Section 302 IPC,
the appellants are charged of forming an unlawful
assembly in prosecution of the common object and thereby
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attacking and giving blows to Bhimrao with axe, stones and
sticks and thereby murdering him intentionally or
knowingly and thereby committing an offence under
Section 302 of IPC. The learned counsel would argue that
the charge did not specifically mention as to what specific
act was attributed to the individual appellant. The learned
Counsel Shri Ovalekar would further extensively argue that
the postmortem on the body of deceased was carried out
by one Dr. Khan who has opined that death of deceased
was due to head injury. The learned Counsel for the
appellants would argue that the said witness has not been
examined on behalf of the prosecution and therefore an
adverse inference has to be drawn and he would also argue
that in the absence of he being examined as witness that
the document in the form of postmortem report at Exh.56
could not have been exhibited. He would further argue that
the learned Additional Sessions Judge has failed to take
into consideration the contradictions in the statement of
witnesses and specifically as to which weapon was used by
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which accused No. 1 and 2 for causing death of deceased
and for assaulting the prosecution witness no.1 who
suffered a grievous hurt. He would also argue that the
witnesses relied upon by the prosecution are interested
witnesses as they belong to the family of the deceased and
their evidence coupled with the discrepancies brought on
record do not inspire any confidence and needs to be
disregarded.
9 As against this argument, Mrs. Mhatre, learned
APP would argue that the prosecution has established its
case beyond reasonable doubt and has proved guilt of the
accused persons by leading cogent and reliable evidence,
specifically, in the form of six eye-witnesses. Mrs. Mhatre
would argue that only because the witnesses are related
witnesses, their evidence cannot be doubted when they
happened to be the natural witnesses who were present in
the house when the incident had occurred. She would also
submit that non-examination of the doctor who conducted
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the postmortem examination, in no way creates any doubt
about the prosecution case. She invited our attention to
Exh.24 which is an application filed by the prosecution for
production of documents during the trial and calling upon
the defence to admit the genuineness of the same as per
Section 294 of the Code of Criminal Procedure. She would
contend on the said document being exhibited, the accused
has admitted the document at Serial Nos. 1, 4, 5, 6,8 and
15 and had given no objection to exhibit the said document
and to read the same in evidence. Further, she also invited
our attention to that part of the document where the
accused had admitted the postmortem notes which
document is at Serial No.7 and have endorsed that they
have no objection to read the document in evidence and
the said noting is signed by the Advocate for the accused
on 29th September, 1999. Thus, according to the learned
APP when the genuineness of any document is not
disputed, there is no legal impediment in reading the
document in evidence during the trial without proof of the
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signature of the person to whom it purports to be signed.
According to the learned APP, object of Section 294 of the
Code of Criminal Procedure ("Cr.P.C" for short), is to avoid
inordinate delay and to enable the accused to waive the
said right and save the time by admitting the documents.
As regards framing of charge, the learned APP would
argue that there is no discrepancy in the charge framed
against the appellant and he was distinctly made aware
about the charge levelled against him and since Section
149 of the I.P.C. has been invoked and applied, there is no
burden on the prosecution to attribute an overt act to a
particular appellant when the prosecution has sufficiently
proved the presence of the accused on the spot of the
incident. Conclusively the learned APP would urge to
uphold the judgment of the learned Additional Sessions
Judge and dismiss the present appeal.
10 We have considered the oral and documentary
evidence tendered by the prosecution. The incident
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referred to in the prosecution case is dated 8 th December,
1992 and the place of incidence is an open space near the
house of the deceased. The case of the prosecution is that
on the day of the incident when the deceased had gone to
his field for plucking the flowers, accused no.1 Dattu
removed the thorny fencing between the house of the
deceased and the field of one Shri Punekar who was
ploughing the field of Shri Punekar. The wife of the
deceased Savita raised a grievance about removal of
fencing with accused no.1 Dattu at around 10:00 a.m. on
the date of the incident, at that time accused No.1 Dattu
started assaulting her and even his wife accused No.3 and
juvenile accused came there and assaulted Savita by slaps,
fists and kicks causing injury to her hand. When this act
was on going, deceased Bhimrao arrived at the spot and he
was assaulted by accused No.1 by means of stick on his
head and by an axe by accused No.2 Deepak. At the same
time, PW No.1 Ramchandra arrived at the spot for rescuing
Bhimrao but he was also assaulted. The other witnesses
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namely, Balasaheb Shitole, PW No.4, the brother of the
deceased, PW No. 6 Vilas Shitole, PW No.3 Vimlabai
Shitole arrived at the spot. These witnesses have entered
the witness box narrating the incident and the chronology
of the events in which it occurred. PW No.2 Smt. Savita
wife of the deceased entered the witness box and deposed
that accused no.1 gave a blow of stick on the head of her
husband whereas accused No.2 Deepak gave blows of an
axe on the head of her husband. She has also deposed that
accused no.1 gave a blow of an axe on the head of PW No.1
Ramchandra and accused No.2 gave blow of stick on the
head and shoulder of PW No.1 Ramchandra. Said witness
has been cross-examined and confronted with statement
given to the police where she had disclosed that accused
No.1 had inflicted a blow of an axe on the head of
Ramchandra and accused No.2 was having stick in his
hand by which he assaulted Ramchandra on his head and
shoulder. Perusal of the statement before the police
reveals that there are omissions in regard to the weapon
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and part of the body. However, there is no contradiction in
the testimony of this witness as regards the act of assault
on her husband at the hands of accused No. 1 and 2.
11 PW No.1 who is also the complainant and injured
victim had deposed before the trial Court that prior to the
incident there was trifle quarrel between the accused
persons and the deceased on account of canal water and
hens. He has deposed that on the day of the incident when
he was going towards his house, he saw fight between the
accused persons and Bhimrao and he stated that there was
an axe in the hand of accused No.2 Deepak and stick in the
hand of Dattu and they assaulted the deceased by means of
weapons in their hands and he intervened and attempted
to separate the accused persons and the deceased when he
was also beaten by them. PW No.1 has deposed that
accused No.1 Dattu gave blow of stick on his shoulder and
accused No.2 Deepak gave blow of an axe on his head and
he was thereafter brought to the police station and
thereafter taken to Yavat Government Medical College. In
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cross-examination when he was confronted with his
statement given to the police wherein he had stated that
there was stick in the hands of accused No.1 Dattu. He,
however, admits that at that time he was in confused state
of mind being injured and therefore he was not able to
understand. PW No.3 Smt. Vimlabai who was staying at
the distance of around 40 feet from the house of accused
persons, witnessed the quarrel going on near the house of
the deceased person and she has deposed that accused
No.1 Dattu was having a stick in his hand and Deepak
accused No.2 was having axe in his hand and that accused
No.2 Deepak gave a blow of axe on the head of Bhimrao
and Dattu gave a blow of stick on the neck of Bhimrao.
12 PW 4 Balasaheb Shitole who is the cousin
brother of deceased has deposed that he was standing at
the bus stand which is 200 to 250 feet from the house of
deceased Bhimrao when he heard noise and he could see
that accused No.1 Dattu and accused No.2, his son and his
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wife were assaulting Bhimrao. He deposed that accused
No.1 Dattu was having stick in his hand and Deepak was
having axe in his hand and they inflicted blows by the said
weapons to the deceased who fell down and PW No.1
Ramchandra tried to rescue the deceased who was also
assaulted by Dattu and Deepak. This witness has been
extensively cross-examined and in cross-examination he
was confronted with the statement given to the police
where he had disclosed that accused No.2 Deepak gave axe
blow on the head of Bhimrao but this was not mentioned in
the statement before the police. However, his testimony
unequivocally supports the case of the prosecution to the
extent that accused Nos. 1 and 2 gave blows on the head of
Bhimrao and resultantly he fell down. The prosecution case
that accused No.1 Dattu and accused No.2 Deepak have
caused death of Bhimrao and that they were armed with
weapons as stick and axe and they used the weapons to
cause death of the deceased is not shattered any where.
Evidence of this witness is corroborated by the postmortem
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report which opines the cause of death due to head injury.
The postmortem report in column No. 19 refers to the
following injuries :-
"1 Hematoma left parietal and occipital region measuring
5x3½ " corresponding to external injury No.1.
2 Hematoma left occipital region 2x1" corresponding to
external injury No.2.
Crack fracture left parietal bone starting from coronal
suture and 3" lateral to mid-line extending vertically
backwards upwards for 4". This is corresponding to
external injury No.1.
1) Extradural haemorrhagic left parietal region 4 x 3".
2) Subdural and sub arachnoid haemorrhage left parietal
region 2½ x 1½ ".
3) Brain stern haemorrhage present.
Contusion left parietal lobe 1½ x 1" Brain 125 grams
congestion and oedema present. These injuries correspond
to external injury No.1."
----
The opinion expressed by the doctor who carried
the postmortem report reads as below :-
"External injury no.1 and corresponding
internal injuries are sufficient to cause
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death in ordinary course of nature. In my
opinion, death was due to head injury. In my
opinion, death was due to head injury".
13 After framing of the said charge, the accused
were specifically made aware of the charges to the
accused. Undisputedly, the purpose of framing of charges
is that the accused should be informed with certainty and
accuracy of the charge brought against him and the
accused is entitled to know the scope and particulars in
detail. The charge has to be precise and as to contain such
particulars as to the time and place of alleged offence and
the person against whom it was committed as are
reasonably sufficient to give the accused notice of the
matter with which he is charged. One of the requirements
of law is that when the nature of the case is such that the
particulars mentioned in the charge do not give the
accused sufficient notice of the matter with which he is
charged, the charge should contain such particulars of the
manner in which alleged offence was committed as would
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be sufficient for that purpose. For example, if "A" is
accused of the murder of "B" at a given time and place, the
charge need not state the manner in which "A" murdered
"B". If, therefore, the necessary information is conveyed to
him in other ways and there is no prejudice, the framing of
the charge is not invalidated. The essential part of this part
of law is not any technical formula of words but the reality,
whether the matter was explained to the accused and
whether he understood what he was being tried for. The
appellant never raised any objection about the charge
being improperly framed or any prejudice to them before
the Trial Court and it is only for the first time the said point
is being argued. The Hon'ble Apex Court in the case of
Chandra Prakash Vs. State of Rajasthan reported in
(2014) 8 SCC 340 has summarized the law in relation to
the non framing of a specific charge. The Hon'ble Apex
Court in paragraphs 68,69 and 70 observed thus :-
"68. The next aspect which needs to be
adverted to is non-framing of specific
charge. On a perusal of the record, we find
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that the learned trial Judge has framed the
charges specifically by putting the charges
to the accused. The purpose of framing of
charges is that the accused should be
informed with certainty and accuracy of
the charge brought against him. There
should not be vagueness. The accused must
know the scope and particulars in detail. In
this context, we may refer to decision in
Santosh Kumari v. State of Jammu and
Kashmir and Ors. : (2011) 9 SCC 234,
wherein it has been held as follows:
17. Like all procedural laws, the Code of
Criminal Procedure is devised to subserve
the ends of justice and not to frustrate
them by mere technicalities. It regards
some of its provisions as vital but others
not, and a breach of the latter is a curable
irregularity unless the accused is
prejudiced thereby. It places errors in the
charge, or even a total absence of a charge
in the curable class. That is why we have
provisions like Sections 215 and 464 in the
Code of Criminal Procedure, 1973.
18. The object of the charge is to give the
accused notice of the matter he is charged
with and does not touch jurisdiction. If,
therefore, the necessary information is
conveyed to him in other ways and there is
no prejudice, the framing of the charge is
not invalidated. The essential part of this
part of law is not any technical formula of
words but the reality, whether the matter
was explained to the accused and whether
he understood what he was being tried for.
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Sections 34, 114 and 149 Indian Penal
Code provide for criminal liability viewed
from different angles as regards actual
participants, accessories and men
actuated by a common object or a common
intention; and as explained by a five-Judge
Constitution Bench of this Court in Willie
(William) Slaney v. State of M.P. SCR at
p. 1189, the charge is a rolled-up one
involving the direct liability and the
constructive liability without specifying
who are directly liable and who are sought
to be made constructively liable."
69. In K. Prema S. Rao v. Yadla
Srinivasa Rao (2003) 1 SCC 217, this
Court opined that though the charge
specifically Under Section 306 Indian
Penal Code was not framed, yet all the
ingredients constituting the offence were
mentioned in the statement of charges. In
that context, a three-Judge Bench of this
Court ruled that mere omission or defect
in framing of charge does not disable the
criminal court from convicting the
accused for the offence which is found to
have been proved on the evidence on
record. The said principle has been
reiterated in Dalbir Singh v. State of
U.P. : (2004) 5 SCC 334, State of U.P. v.
Paras Nath Singh (2009) 6 SCC 372 and
Annareddy Sambasiva Reddy v. State
of A.P. (2009) 12 SCC 546.
70. In the case at hand, as has been
stated earlier, the charges have been
framed and we do not find any vagueness.
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That apart, neither any prejudice has
been caused nor has there been any
failure of justice. Thus, the submission of
Mr. Jain in this regard leaves us
unimpressed."
14 In the light of the aforesaid decision and settled
position of law, we do not find that the charge that has
been framed against the present appellants are vague nor
any prejudice has been caused to the accused nor the
counsel has been able to invite our attention for any failure
of justice. Thus, we find that the objection raised by the
appellants-accused is not tenable.
In the case at hand, as has been stated earlier,
the charges have been framed and we do not find any
vagueness. That apart, neither any prejudice has been
caused nor has there been any failure of justice. Thus, the
submission of Mr. Swapnil Ovalekar, learned counsel for
the appellants, in this regard leaves us unimpressed.
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15 The prosecution has thus established the
occurrence of the incident which had taken place in the
open space between house of the accused persons and
deceased Bhimrao. A spot panchnama exhibited as
"Exh.40" mentions about existence of blood stains on the
stones near the Ota of house of accused No.1 Dattu. The
case of the prosecution is that there was a verbal
altercations initially on account of thorny fencing being
removed by the accused persons which gradually
converted itself into an assault on the deceased person and
PW No.1 by the accused No.1 and 2 and deceased Bhimrao
sustained injuries on his head and the blood was also found
on the stone near the ota. There is slight variance in the
version of PW No.2 as regards the use of weapon by
accused No.1 and accused No.2 while assaulting PW No.1
Ramchandra and the version of PW No.1 Ramchandra as
well as PW No.6 Vilas Shitole. According to PW No.2,
accused No.2 Deepak gave a stick blow to Ramchandra and
accused No.1 Dattu gave axe blow to him whereas as per
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version of PW No.1 Ramchandra and PW No.6 Vilas,
accused No.1 Dattu used stick and accused No.2 Deepak
used axe while assaulting injured Ramchandra. However,
this discrepancy cannot be said to be detrimental to the
case of the prosecution as her version is consistent that PW
No.1 was assaulted by Accused No. 1 and 2 and the
discrepancies only in regard to the weapons which these
two accused were carrying. Mere discrepancy about the
use of weapon in her statement before the police is not
sufficient to disbelieve this witness as regards the assault
by accused No. 1 and 2 on PW No.1 Ramchandra. As
regards the death of the deceased the testimony of the
witnesses corroborate each other and nothing has been
brought on record to discredit the version of the eye-
witnesses. All the said witnesses are natural witnesses to
the incident as PW No.2 is the wife of the deceased and the
other witnesses who were present on the spot of the
incident in the course of their normal routine, either going
to the field or returning from the field. It is this case of the
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prosecution which is believed by the learned Additional
Sessions Judge in convicting the appellants, testimony of
the said witnesses have been heavily relied upon. The
learned Counsel for the appellants is not successful in
disreputing the said version of the prosecution case and
the incident.
16 The learned Counsel for the appellants had
vehemently argued that the conviction is unsustainable in
view of the fact the postmortem report itself is not proved
since the doctor who carried the postmortem did not enter
the witness box. We have an anxious consideration to the
said arguments advanced on behalf of the appellants, it
would be helpful to refer to Section 294 of the Cr.P.C.
which reads as follows :-
Section 294 of Cr.P.C.:
(1) Where any document is filed before any
Court by the prosecution or the accused, the
particulars of every such document shall be
included in a list and the prosecution or the
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accused, as the case may be, or the pleader
for the prosecution or the accused, if any,
shall be called upon to admit or deny the
genuineness of each such document. (2) The
list of documents shall be in such form as
may be prescribed by the State
Government. (8) Where the genuineness of
any document is not disputed, such
document may be read in evidence in any
inquiry, trial or other proceeding under this
Code without proof of the signature of the
person to whom it purports to he signed;
The objection of Section 294 is to dispense with
avoidable waste of time and facilitate removal of such
obstruction in the speedy trial. It requires prosecution of
the accused to admit or deny the genuineness of
documents sought to be relied against him in the writing.
On his admitting or not disputing its genuineness or on not
the Court is authorized to dispense with formal proof
thereof and in fact after indication of no dispute as to
genuineness of this document proof of document is
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reduced to a sheer into formality. Perusal of Section 294
of Cr.P.C. would also reveal that the said Section is also
dispensed with number of certain documents and it
enumerates category of documents proof of which is not
necessary unless the Court thinks it necessary. Section 294
makes a dispensation of formal proof dependent on the
accused or the prosecution, not disputing genuineness
sought to be used against them. Such dispensation is not
restricted in class or category of documents as under
Section 293 in which ordinarily an authenticity is
dependent more on the mechanical process involved than
on the knowledge, observation or skill of the other
rendering oral evidence etc.
17 The question involved is whether the
postmortem report would also to be covered within the
purview of Section 294 of the Code like any other
document. The learned Counsel for the appellants do not
dispute Exh.24 and the endorsement made on the said
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document which is an application on behalf of the
prosecution to admit genuineness of the documents as per
Section 294 of the Cr.P.C. and the fact that the advocate
for the accused has admitted the postmortem notes dated
9th December, 1992 i.e. serial No.7 and has given his no
objection to read said document in evidence. In these
circumstances, we may advert to the main question raised
by the appellants while arguing the appeal as to whether a
document in the form of postmortem notes which have
been tendered by the prosecution have been admitted by
the accused on an application to admit documents, in the
absence of the author of the document entered into
witness box at the time of trial and exhibiting the said
postmortem note. A full Bench of our Court had an
occasion to deal with the situation interpretation of
Section 294 of the Code and a similar situation where the
appellant was convicted for offence of murder under
Section 302 of the IPC and the Trial Court had relied upon
amongst other the postmortem notes but the doctor who
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held the postmortem and prepared notes was not
examined at the trial and the defence lawyer had
communicated that he was not disputing the genuineness
thereof in response to a query under sub-section (2) of
Section 294 of the Code. In the facts and circumstances
that the trial Court dispensed with its factual proof and
read the report in evidence. During the course of hearing
of the matter in an appeal before the Division Bench the
counsel for the defence contended that report cannot be
relied upon without evidence of the doctor and Section
294 is not intended to dispensed with proof of such
documents. Reliance was placed on the judgment of this
Court in the case of Ganpat Raoji v. State of
Maharashtra (1980) Mh.L.J. 60 and two other
judgments of Gujarat High Court and Delhi High Court
relied in the case of Ganpat Raoji's case since the learned
Judge of the Division Bench could not agree with the ratio
of Ganpat Raoji's case, the matter was referred to the Full
Bench. Before the Full Bench three important points were
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raised in support of the contention of the defence namely;
(1) Indicating no dispute with the genuineness of the
documents means at the most admission of the signature
of the author and not the truthfulness of the contents. (2)
Authority to "read in evidence" contemplated under Sub-
section (5) of Section 294 does not amount to authority to
use the same in evidence at the trial and (3) that without
the doctor's substantive evidence the postmortem
prepared by the doctor cannot be used in evidence, it
having no evidentiary value.
The Full Bench through the Hon'ble Chief Justice
V.S. Deshpande observed thus :
"9. Now the post-mortem report is
also a document as any other document.
Primary evidence of such a document is the
report itself. It is a contemporaneous record
prepared in the prescribed form, of what the
doctor has noticed in the course of post-
mortem of the dead body, while investigating
the cause of death. It being relevant, it can
be proved by producing the same. But
production is only a step towards proof of it.
It can be received in evidence only on the
establishment of its authenticity by the mode
of its proof as provided under s. 67 to 71 of
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the Evidence Act. Section 294(7) of the Code
enables the accused also, to waive this mode
of proof by admitting it or raising no dispute
as to its genuineness when called upon to do
under Sub-section (7). Sub-section (5)
enables the Court to read it in evidence
without requiring the same to be proved in
accordance with the Evidence Act. There is
nothing in Section 294to justify exclusion of
It, from the purview of "documents" covered
thereby. The mode of proof of it also is liable
to be waived as of any other document.
10. The contention of Mr. Phadkar that the
word "genuineness" in Sub-section (3) of
Section 294 of the Code contemplates only
genuineness of the signature and not that of
the document or contents thereof is devoid of
any substance. Such a contention ignores the
implications of the proof by the mode
presented under Section 67 to 71 of the
Evidence Act. Section 67 of the Evidence Act
is aimed at ensuring the authenticity of the
document. The words "without proof of the
signature ..." in Sub-section (5) of Section
294 of the Code are obviously intended to
dispense with such proof without the
compliance of which ordinarily the
documents cannot be relied on as authentic
and genuine.
12. Mr. Phadkar then contends that
without the substantive evidence of the
doctor a corroborative piece of evidence such
as that of the post-mortem report prepared
by him earlier, cannot be read in evidence.
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Broadly speaking, this statement of law by
itself is unexceptional. This is precisely what
appears to have mainly weighed with the
learned Judges deciding Ganpat Raoji's case,
and the cases of two other High Courts relied
on in Ganpat Raoji's case holding Section
294 of the Code to be inapplicable to post-
mortem, reports, but restricting its scope to
the documents admitting only of formal
proof.
13. This statement of law, however,
combines two different rules of evidence
having different implications. It is one thing
to speak of any piece of evidence as
substantive or corroborative in terms of its
probative value and quite different thing to
speak of its being no evidence for want of
proof of its authenticity. These are two
different rules of evidence having different
incidences. The evidence of post-mortem
notes according to one rule can have merely
corroborative value in relation to the
substantive evidence of its author, the doctor,
at the trial. The doctor's evidence gets
strength from it because it is
contemporaneously made by him at the time
of performing the post-mortem. It contains
the details of injuries noticed by him and his
opinion as to the cause of death. Postmortem
motes thus are in the nature of previous
statement within its conception under
Section 157 of the Evidence Act. The fact
however, that it lacks more details or is
merely corroborative does not make it any
the less relevant piece of evidence. These
factors may have a bearing on its probative
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value. The adjectives "corroborative" and
"substantive" are relative depending on the
context and set of facts in which these words
are used. Ordinarily, the entire medical
evidence i.e. the doctor's oral evidence and
his reports, happens to be corroborative as
against the substantive eye-witness account
of any assault. Thus, even the doctor's oral
evidence itself is corroborative in nature.
Authenticity of a document which is
determinative of its reception in evidence is
altogether a different factor unconnected
with its probative value, and its being
corroborative or substantive.
14. The probative value of any
documentary evidence also has no direct
relevance to reception thereof in evidence.
As seen earlier, no document with alt its
probative value can be received in evidence
unless its authenticity is first established by
the mode of proof prescribed under Sections
67 to 71 of the Evidence Act. The mode of
proof, however, is liable to be waived in! civil
cases. Now, Section 294 is purposefully
introduced in the present Code to facilitate
such waiver even in criminal cases. It has the
virtual effect of making Sections 67 to 71 of
the Evidence Act inapplicable. The author's
evidence thus is now dispensable thereunder.
Report becomes both relevant and authentic
evidence of its contents without the proof of
its authenticity by the author or anybody
else, by force of Section 294 on its conditions
being complied with. Section 510 of the
repealed Code (corresponding to Section 293
of the present Code) already contemplates
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dispensation of the proof of some other
documents authenticity of which depends not
so much on oral evidence of the author as on
the efficacy of the mechanical process
through which the concerned data is
collected. Section 294 of the Code makes the
same rule applicable when the authenticity of
the document is not disputed. The documents
covered by both these sections stand on par
and are receivable in evidence without
anything more. The post-mortem report also
is receivable in evidence without the doctor's
evidence and can still furnish corroborative
evidence to support other evidence in the
case. With respect to the learned Judges,
disregarding the different identity of these
two different rules and mixing them together
has led to their wrong conclusion.
15. Ganpat Raoji's case as also the Gujarat
High Court case were cases in which failure
to examine the doctor was found to have
resulted in a miscarriage of justice. In some
such cases location of injuries, extent of the
depth and width and the details as to the
nature thereof and possibility of their being
caused differently from the one sought to be
established, are all very important factors
and the doctor's answers to some pertinent
questions in evidence can make a difference
to the result of the case. But this cannot be
true of each and every case. Whether the
doctor's evidence is necessary or not
depends on facts and facts of each case, the
prosecutor, the accused and his lawyer being
the best judges to decide it as also the points
on which each one of them should
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concentrate their attack. Their reaction to
the query under Sub-section (7) ordinarily
should be decisive. Raising no dispute to the
genuineness of any document implies their
considered decision of further details being
irrelevant. The Court has ordinarily to accept
this decision and refrain from entering into
the arena itself unless miscarriage of justice
is apprehended on demonstrable grounds.
The section also invests the Court with a
discretion to examine the doctor or any such
witness in that case. The section itself thus
furnishes in-built protections to the defence
or the prosecutor against possible lapses. It
was open to the Court in its such discretion
to examine the doctor or any other witness
when it apprehended miscarriage of justice.
Mere such apprehension cannot justify
interpreting the section differently and hold
it inapplicable to post-mortem reports in, the
face of its plain language indicating to the
contrary.
18. We accordingly hold that Sub-section
(5) of Section 294 of the Code covers post-
mortem notes and every other document of
which genuineness is not disputed. Thus
such documents, can be read in evidence as
genuine without the formal proof. In our
view, Ganpat Raoji's case is not correctly
decided."
The Full Bench of this Court thus held that
Section 294 of the Code dispensed with proof of every
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document when it become formal on its genuineness and it
does not contemplate existence of any class of document
as such requiring formal proof.
18 Admittedly, the Counsel for the appellant did
not dispute the existence of the postmortem notes.
However, he is not right in his contention specifically
when the postmortem notes clearly mention that all the
injuries mentioned in Column No.17 are antemortem in
nature. We are therefore unable to accept the argument
advanced on behalf of the appellant that the postmortem
report cannot be used to the detriment of the appellants
specifically that the doctor making the postmortem has
not been examined before the Trial Court. A careful
perusal of the postmortem report would reveal that injury
no.1 on the forehead of the deceased Bhimrao had
resulted in fracture of skull. Such an injury is not possible
by any fault and even the prosecution has proved the
existence of blood stains of stones and Ota near the house
of accused No.1 Dattu. There is no evidence brought on
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record to suggest that Bhimrao or deceased or PW 1
Ramchandra who was injured was having any weapon
such stick or axe with them. On the contrary, the evidence
brought on record by the prosecution establish that
accused No.2 Deepak was armed with an axe and accused
No.1 was possessing stick in his hand and that they were
armed with weapons and prepared to assault the deceased
and even assaulted PW No.1 who intervened and tried to
prevent the assault. The prosecution also relies on the
spot panchnama Exh.40 which is proved by PW No.7
where the blood stains "X" and the stick were lying and
which were seized on 9/12/1992. The articles namely "X"
and the weapon stick which was sent for chemical analysis
shows that they were stained with blood which was found
to be human.
19 The next aspect which needs to be adverted and
which is extensively argued by the learned counsel for the
appellants is the non framing of the specific charge and his
contention that the charge framed against the
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appellants/accused did not give the details as to the use of
particular weapon by a particular accused. In detail, we
have perused the charge framed against the appellants-
accused and on perusal of the record it is found that the
trial Judge has framed the charge which reads as below :-
That you accused Nos.1 to 3 along with
Juvenile delinquents by name Ravindra Dattu
Theurkar and Mahendra Dattu Theurkar, on or
about 8th December, 1992 at about 10.00 A.M.
near the house of Bhimrao Dnyandeo Shitole
at Khopodi,Taluka, Daund, District Pune were
the members of an unlawful assembly the
common object of which was to commit
murder of Bhimrao Dnyandeo Shitole and
thereby committed an offence punishable
under section 143 of the Indian Penal Code
and within my cognizance.
AND
That you accused Nos.1 to 3 along with
Juvenile delinquents by name Ravindra Dattu
Theurkar and Mahendra Dattu Theurkar on
the aforesaid date, time and place and during
the course of same transaction were the
members of an unlawful assembly and did, in
prosecution of the common object of such
assembly, attacked and assaulted the
complainant Ramchandra Ganpat Shitole,
Bhimrao Shitole, Savita Shitole with stones,
axe and sticks and committed murder and
caused grievous injuries thus committed the
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offence of rioting and at time were armed
with deadly weapons to commit the offence
of serious nature and thereby committed an
offence punishable under section 148 of the
Indian Penal Code and within my cognizance.
AND
That you accused Nos.1 to 3 along with
Juvenile delinquents by name Ravindra Dattu
Rama Theurkar and Mahendra Dattu
Theurkar, on the aforesaid date, time and
place and during the course of same
transaction were the members of an unlawful
assembly, in prosecution of the common
object did attack and gave blows to Bhimrao
Dnyandeo Shitole with axe, stones and sticks
to Bhimrao Shitole and thereby did commit
murder by intentionally or knowingly
causing the death of Bhimrao Shitole and
thereby committed an offence punishable
under section 302 of the Indian Penal Code
read with section 149 of the Indian Penal
Code and within my cognizance.
AND
That you accused Nos.1 to 3 along with
Juvenile delinquents by name Ravindra Dattu
Rama Theurkar and Mahendra Dattu Theurkar
voluntarily caused hurts to complainant
Ramchandra Ganpat Shitole with stones, axe
and sticks on the aforesaid time, place and
during the course of same transaction and
thereby committed an offence punishable
under section 324 of the Indian Penal Code
read with section 149 of the Indian Penal
Code and within my cognizance.
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20 Taking overall view of the case of the
prosecution and the manner in which the prosecution has
unfolded its case before the Trial Court, we have noted
that the prosecution witnesses have spoken about the
occurrence of the incident from its inception and their
version have been found to be consistent, truthful and
reliable despite minor discrepancies or variations on
certain insignificant matters and not relevant on vital
aspects and the said version of the prosecution witnesses
inspires complete confidence. The prosecution with the
aid of these witnesses has been able to prove its case
beyond reasonable doubt and we do not find sufficient
justification in assailing the said judgment and there is no
legal and substantive ground raised by the learned
counsel for the appellants which would prompt us to set
aside conviction recorded by the trial Court. Neither
analysis or sifting of evidence by the court below or its
assessment would permit us to arrive at a conclusion to
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conclude that inference of guilt recorded by the trial Court
is erroneous. We do not find any infirmity or any error of
law in the judgment of the trial Court when it is based on
cogent and reliable evidence adduced by the prosecution.
21 In such circumstances, we affirm the
judgment and order passed by the learned Additional
Sessions Judge of Baramati in Sessions Case No. 23 of
1993 dated 30th December, 1999 which is based on the
footing that the prosecution has proved its case by
adducing sufficient evidence to the effect that it was
accused No.1 and 2 who had caused death of deceased
Bhimrao. Learned Additional Sessions Judge has rightly
appreciated the evidence adduced on behalf of the
prosecution and has rightly convicted accused No. 1 and 2
of the offence punishable under Section 302, 323 read
with section 34 of the IPC. We do not find any infirmity or
error in the judgment delivered by the learned Additional
Sessions Judge. In the result, the appeal is dismissed.
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22 In view of the confirmation of the judgment and
order of the learned Additional Sessions Judge, Baramati
the bail bonds of the accused/appellant no.1 stand
cancelled. Appellant No.1 is directed to surrender before
the Court of Session at Baramati, District Pune within a
period of 15 days from today.
23 We appreciate the efforts of Mr. Swapnil
Ovalekar,learned Counsel appointed by the Maharashtra
State Legal Services Authority for the appellants in the
appeal. He has rendered valuable assistance to us.
23 The appeal is disposed of in the above terms.
(SMT. BHARATI H. DANGRE, J) (S.C. DHARMADHIKARI, J.)
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