Bombay High Court
The State Of Maharashtra vs Vijay Pandurang Jadhav And Ors on 13 October, 2017
Bench: T.V. Nalawade
1 APEAL89.2002 & 2
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 89 OF 2002
1. Vijay S/o Pandurang Jadhav,
Age : 31 years, Occu. Service,
R/o. Kautha, Tq. Hadgaon,
Dist. Nanded.
2. Balaji S/o Bhimrao Jadhav,
Age : 35 years, Occu. Agril.
R/o. As above.
3. Sanjay S/o Pandurang Jadhav,
Age : 27 years, Occu. Agril.,
R/o. As above.
4. Dilip S/o Digambar Jadhav,
Age : 29 years, Occu. Agril.,
R/o. As above. ... Appellants
VERSUS
The State of Maharashtra,
Through Police Station, Hadgaon,
Tq. Hadgaon, Dist. Nanded. ... Respondent
(Orig. Complainant)
..........
Mr S. B. Bhapkar, Advocate for the appellants
Mr S. D. Ghayal, APP for respondent/State
.............
WITH
CRIMINAL APPEAL NO. 267 OF 2002
The State of Maharashtra,
Through Police Station, Hadgaon,
Dist. Nanded. ... Appellant
(Orig. Complainant)
Versus
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2 APEAL89.2002 & 2
1. Vijay Pandurang Jadhav,
Age : 31 years,
2. Alaji Bhimrao Jadhav,
Age : 27 years,
3. Sanjay Pandurang Jadhav,
Age : 27 years,
4. Dilip S/o Digambar Jadhav,
Age : 29 years,
All R/o Kautha, Tq. Hadgaon,
Dist. Nanded. ... Respondents
(Orig. Accused)
..........
Mr S. B. Bhapkar, Advocate for the appellants
Mr S. D. Ghayal, APP for respondent/State
.............
WITH
CRIMINAL APPEAL NO. 270 OF 2002
The State of Maharashtra,
Through Police Station, Hadgaon,
Dist. Nanded. ... Appellant
(Orig. Complainant)
Versus
1. Vijay Pandurang Jadhav,
Age : 31 years,
2. Alaji Bhimrao Jadhav,
Age : 27 years,
3. Sanjay Pandurang Jadhav,
Age : 27 years,
4. Dilip S/o Digambar Jadhav,
Age : 29 years,
All R/o Kautha, Tq. Hadgaon,
Dist. Nanded. ... Respondents
(Orig. Accused)
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3 APEAL89.2002 & 2
..........
Mr S. B. Bhapkar, Advocate for the appellants
Mr S. D. Ghayal, APP for respondent/State
Mr V. S. Kadam, Advocate for respondent No. 2 in Cr. Appeal No.
270/2002.
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
Reserved on : 05.10.2017.
Pronounced on : 13.10.2017.
JUDGMENT (PER A. M. DHAVALE, J.) :-
1. All these appeals arise out of the common judgment dt.
04.02.2002 passed by Addl. Sessions Judge, Nanded in Sessions Case
No. 47/98, wherein four accused were prosecuted for offences u/s
448, 302 r/w 34 of IPC and they were convicted u/s 325 of IPC and
sentenced to suffer RI for three years and to pay fine of Rs. 10,000/-
each, in default, to suffer further RI for two months each, with
direction to pay fine amount if recovered as compensation to the
parents of the deceased.
2. Cri. Appeal No. 89/2002 is filed by the accused persons
against the conviction. Cri. Apeal No. 267/2002 is filed by the State
against acquittal u/s 302, 448 r/w 34 of IPC whereas; Cri. Appeal
4 APEAL89.2002 & 2
No.270/2002 is for enhancement of sentence for offence punishable
u/s 325 r/w 34 of the IPC. Since common question of law and facts
are involved, all these appeals are heard commonly and disposed of
by this common Judgment.
3. The facts relevant for deciding these appeals may be stated
as under : -
On 31.05.1997 at 12:40 AM, Jagdeo Ingle, aged 25 years,
r/o Kautha, Tq. Hadgaon, Dist. Nanded lodged a report Exh. 34 at
Hadgaon Police Station to the effect that, on the same night at about
2:00 am, while he was sleeping in front of his house at Kautha, all
four accused, who are his neighbours, came there and accosted him
as to why he was making too many complaints against them and
thereafter assaulted him with fist blows, slaps and kicks on his chest,
back and right rib. His mother had witnessed the incident. He had
suffered minor injuries and he wanted to have medical treatment.
PW6 Head Constable - Datta Jarande recorded the said complaint as
N.C. case in N.C. register u/s 323/34 of IPC and informed him that
he should approach the Court. He also issued a reference letter
Exh.35 requesting the Medical Officer, Rural Hospital, to examine
and treat the injured and submit certificate. This report of N.C. later
on turned out to be dying declaration of the deceased Jagdeo. He
5 APEAL89.2002 & 2
had gone to Rural Hospital at 2:40 am (?) where Dr. Sangvikar PW5
examined him and found two contusions one on his back and other
on his shoulder. Jagdeo had pains hence as per prosecution version
he was taken to Dr. Chakrawar at Hadgaon and to some doctor at
Umarkhed. Dr. Chakrawar did not examine him. The dispensary of
Doctor at Umarkhed was closed and he was brought back but he was
again brought to Rural Hospital at 10:20 am and on re-examination,
one contusion on right infra-axillary area of size 1'x½' with suspected
fracture of rib was noticed. Then efforts were made to take the
injured to Civil Hospital at Nanded but on the way at about 1:30 pm
he died. Then inquest and autopsy was conducted on dead body. As
per PM notes proved by PW4 Dr. Lomte, the deceased had sustained
fractures of 8-9 ribs with perforation of pleura and profusedly
bleeding injury to lung. Thereafter, FIR of father of the deceased by
name Anandrao-PW9 was recorded. The investigation revealed that
accused no. 1-Vijay and accused no. 2-Balaji had given blows of iron
rod to the deceased while accused nos. 3 and 4 had given fist blows
and kick blows. There was old enmity between the deceased and the
accused persons. The incident was witnessed by mother PW12-
Anjanabai and sister PW10-Annapurna whereas; two friend PW3-
Bhagwan and his brother-PW4 Ashok residing in house situated two
houses beyond the house of the deceased came there on hearing
6 APEAL89.2002 & 2
shouts at 2:00 am. They had seen all the four accused leaving the
spot. The accused were arrested and accused no. 1 discovered all
weapons of offence and his blood stained clothes. Those were
forwarded to CA office and CA reports were collected. After
completion of investigation, the chargesheet was submitted in the
court. In due course, the case was committed to the court of
Sessions.
4. The ld. Addl. Sessions Judge framed charge at Exh. 5. The
accused pleaded not guilty. The prosecution examined 13 witnesses.
The defence of the accused is of total denial. It is their case that, the
deceased had consumed alcohol and was addicted and fell down
from a bike while returning from a movie or subsequent to his
examination by Dr. Sangvikar PW5.
5. The ld. trial Judge discarded evidence of assault by iron rod
and also found some discrepancies in the evidence of eye-witnesses.
It seems that, he mainly relied on the dying declaration and taking
into consideration the nature of the acts of the accused, he held that
charge u/s 325/34 was only proved. Accordingly, he passed
conviction and sentences as referred above. Hence, this appeal.
7 APEAL89.2002 & 2
6. Heard Shri. S. D. Ghayal, ld. APP for the State, Shri. S. B.
Bhapkar, ld. Advocate for the respondents and Shri. V. S. Kadam, ld.
Advocate for respondents No. 1 & 2 in Cr. Appeal No. 270/2002.
Learned advocates have taken us through the evidence on record.
7. Learned APP Shri Ghayal arued that, there is a dying
declaration showing the involvement of all the accused. The deceased
himself had reported the matter to the police within short time.
Unfortunately the deceased could not get proper medical treatment.
The incident of assault was witnessed by his mother and sister and
also by two neighbours. Admittedly there is a strong enmity between
the accused and the deceased and his relatives. The Medical Officer
was not careful when the deceased was examined at 2:40 am and he
did not notice the major injury which caused rib fractures and
internal injury to lungs and pleural which caused his death. He
argued that, the evidence of material witnesses is consistent with
each other as well as with the medical evidence. The FIR filed by
father of the deceased is also filed within short time after the death of
deceased-Jagdeo. Hence all the accused should have been convicted
u/s 302, 448 r/w 34 of IPC and should have been accordingly
sentenced. In the alternative, he submitted that, if this Court accepts
8 APEAL89.2002 & 2
the finding of ld. trial Judge that only offence u/s 325/34 was made
out, the sentence imposed by the ld. trial judge is too inadequate.
One young person had lost his life due to assault and therefore
sentence u/s 325/34 should be substantially increased.
8. Per contra, Shri. Bhapkar, ld. Advocate for the accused has
argued that the evidence of eye-witnesses is totally concocted. Their
presence on the spot is not probable. The improvement in the story
by introducing assault by rod makes them incredible and
untrustworthy. Admittedly, there was a strong enmity between the
accused and the prosecution witnesses since many years. About one
month earlier accused nos. 1 and 3 had lodged report against the
deceased Jagdeo regarding theft of electric motor and he was
arrested and was later on released on bail. PW3 Bhagwan was surety
for him and PW10 Ashok is his brother. They are residing at long
distance and they could not have been present on the spot
immediately after the incident. There are admissions to show that
the deceased and Santosh had gone to last movie show from 9.00 to
12.00. According to the accused, while returning on the bike, the
deceased, who had consumed liquor, fell down and sustained
injuries. The post-mortem report revealed that alcohol was found in
his stomach whereas; Doctor has opined that, such injury was
possible by fall. He pointed out the major discrepancies in the
9 APEAL89.2002 & 2
evidence of PW5 Dr.Sangvikar. PW4 Dr. Lomte and witnesses stated
that Dr. Ghuge and Dr. Sangvikar had examined deceased Jagdeo at
10:20 am. There is evidence to show that the deceased was not
properly examined at 2:40 am.
9. The PM notes disclose that deceased died about 2 to 6 hrs
after his last meal and admittedly he had taken last meal on the
earlier day at 7:00 pm. This medical opinion makes the entire
prosecution case incredible and untrustworthy. The so-called oral
dying declarations are inconsistent with the medical evidence as well
as with the alleged written dying declaration. The deceased had not
given any dying declaration at all and exh. 34 does not bear his
signature. The entire prosecution story smacks of concoction at every
stage. In view of the strong enmity, the accused have been falsely
implicated. Accused no. 1-Vijay is serving in a bank at outstation,
who is also implicated. Therefore, the conviction and the sentence of
the accused u/s 325 r/w 34 is also not sustainable, which may be set
aside and the accused should be set free. The appeals against
acquittal and for enhancement deserve to be dismissed.
10. Learned advocate for respondent no. 1 & 2 in Cr. Appeal
No. 270/2002 supported the judgment and the arguments of Adv.
Bhapkar.
10 APEAL89.2002 & 2
11. After carefully going through the record and the arguments
advanced by ld. advocates for the parties, the points for our
consideration with our findings thereon are as follows :
Sr. Points Findings
No.
1 Whether the deceased Jagdeo met Not proved.
with homicidal death?
2 Whether the accused nos. 1 to 4 in Not proved.
furtherance of their common intention
voluntarily caused hurt to the
deceased by fist blows, kick blows
and/or by rod and thereby committed
his murder or any minor offence?
3 Whether the accused nos. 1 to 4 had in Not proved.
furtherance of their common intention
committed house trespass for
committing murder?
4 What order? The appeal no. 89/2002
is allowed. Appeals No.
267 & 270 of 2002 are
dismissed. All the
accused are acquitted of
all the charges.
12. The prosecution has examined 13 witnesses which can be
conveniently grouped as follows :
[I] Eye-Witnesses & witness on spot immediately after
the incident.
(i) PW10 - Annapurna, sister of the deceased.
11 APEAL89.2002 & 2
(ii) PW12 - Anjanabai, mother of the deceased.
(iii) PW3 - Bhagwan & PW11 - Ashok.
[II] Dying Declaration:
(i) Written dying declaration [PW5 & PW6-Datta
Jarande]
(ii) Oral dying declaration [PWs 3, 10, 11 & 12].
[III] Medical evidence [PW4 - Dr. Sahebrao Lomte].
(i) PM report [Exh. 29].
(ii) Provisional PM report [Exh. 30].
(iii) PW5 - Dr. Ramesh Sangvikar.
(iv) Medico Legal Certificate [Exh. 32].
(v) CA report of viscera [Exh. 54].
[IV] Other witnesses :
PW13 - API Shrirang Nimanwad, who has proved
following documents.
(i) Letter from Medical Officer dt. 31.05.1997, 3:30
pm about death of Jagdeo (Exh. 51).
(ii) Report for PM (Exh. 52).
(iii) Spot panchanama in the courtyard of house of
Anandrao (Exh. 23).
(iv) PM Report (Exh. 29).
(v) Covering Letter for sending viscera to CA office
(Exh.53).
(vi) CA report of viscera showing no poison (Exh.54).
12 APEAL89.2002 & 2
(vii) The contradictions of hostile witnesses.
(viii) The contradictions of Shaikh Shah (Exh. 56)
(ix) The contradictions of Anandrao (Exh. 57 & 58).
(x) The contradictions of PW10 Annapurna
(Exh.59).
(xi) The contradictions of PW12 Anjana (Exh. 60).
(xii) PW1 - Inquest panchanama Bapurao.
(xiii) Panchanama (Exh.22).
[V] Spot Panch :
(i) Panchanama Exh. 23 (PW1) Bapurao (hostile).
(ii) PW2-Sheshrao, who on 31.05.1997 at 12:00
noon taken the deceased towards Nanded in the
Jeep of PW3 Bhagwan. Deceased died on the
way.
(iii) PW7 Panch and PW8 Datta panch to discovery by
accused nos. 1 & 2 (Exh. 38 to 41) turned hostile.
(v) PW9 Anandrao, the informant and father of the
deceased at the relevant time he was in the field.
He was informed by his wife PW12 Anjanabai in
the morning and he had accompanied his son
while he was being taken towards to Civil
Hospital, Nanded .
13. The evidence on record shows admissions and suggestions
disclosing strong enmity between two parties. PW9-Anandrao has
deposed that, about 10 years earlier there was a tenancy dispute of
one Sheshrao with Iqbal who was adjacent field owner of PW9-
13 APEAL89.2002 & 2
Anandrao. Pandurang, father of accused nos. 1 & 3 was supporting
Sheshrao and was expecting that PW9 should depose about
cultivation by Sheshrao. PW9 Anandrao did not agree and therefore
their relations were strained.
14. About five years thereafter, Pandurang father of accused
nos. 1 and 3 raised suspicion against deceased Jagdeo over theft of
bells tied around the neck of bullock. On that count, Jagdeo was
beaten by Pandurang and his three sons including accused nos. 1 & 3.
15. The third dispute had taken place about four years earlier
and PW9 was cultivating field of Shankarrao More whose field was
adjacent to filed of Pandurang with a common dhura in between.
Accused no. 3 Sanjay had beaten Jagdeo which Anandrao had
reported to the police station. Thereafter, there was dispute between
Anandrao & Pandurang regarding flowing of waste water by
Pandurang in front of house of Anandrao. Anandrao stated that
Pandurang had beaten him. Again one year earlier there was
boundary dispute between Anandrao and his neighbour Digambar
and Digambar had beaten him. Digambar is father of accused no. 4 -
Dilip. About one month before the incident, Pandurang and accused
nos. 1 and 3 had made allegations that, deceased Jagdeo had
14 APEAL89.2002 & 2
damaged their electric motor. Jagdeo was arrested and PW3 stood
surety for him. According to PW9, on 30.04.2017, Pandurang and
his two sons accused nos. 1 & 3 and 3 others had been to his house
with sticks and threatened to remove Jagdeo from his house for
which PW9 had lodged report. The incident took place on
03.05.1997.
16. Though the nature of events which give rise to enmity are
not admitted as deposed by the witnesses, the enmity is not in
dispute.
17. As per evidence of PW10 - Annapurna and PW12 -
Anjanabai (sister and mother of deceased), on 30.05.1997, at about
07:00 pm, they including deceased Jagdeo had meals. Thereafter,
Jagdeo went along with Santosh, son of PW3 Bhagwan to watch a
movie and PW9 had gone to his field. PW10 & 12 deposed that, at
about 11 to 11:30 pm, Jagdeo came back and knocked the door and
thereafter they all were sleeping in the courtyard. As per their
evidence, at 2:00 am they woke up on hearing shouts of Jagdeo as
'vkbZ esyks] vkbZ esyks'. There was one bulb illuminating in the courtyard.
They saw that accused no. 1 Vijay gave a blow of rod on the right
side of Jagdeo while accused no. 2-Balaji also gave a blow of rod on
15 APEAL89.2002 & 2
his right shoulder. Accused no. 4-Dilip then gave kick and fist blows
to Jagdeo. Jagdeo then raised shouts 'iGk] okpok'. There is evidence
that, PW3 & PW11 came to the spot along with two others. At the
same time, the accused had left the spot. PW3 & PW11 stated that
they had seen the accused leaving the spot. Surprisingly, PW10
stated that, accused had left the spot by opening the door of drawing
room. PW12 Anjanabai, mother of the deceased has deposed the
same fact. She stated that, at 2:00 am, on hearing the shouts of
Jagdeo he woke up and saw in the light of bulb that accused no. 1-
Vijay gave blow of iron rod on right side rib of Jagdeo. Accused no.
2-Balaji gave iron rod blow on shoulder while accused nos. 3 and 4
gave blows of fist and kicks to Jagdeo. She stated that, she also
shouted and asked them why Jagdeo was beaten. She also stated
that, four accused left the spot through the drawing room door.
18. PW3 Bhagwan has deposed about the previous enmity.
Accused nos. 1 to 4 are his cousins but they were residing separately.
On the fateful day at 3:00 am, while he was asleep, he heard some
voice as 'don't beat me' (eyk ek# udk) and cries of sisters of Jagdeo
from the side of house of Anandrao. Then he along with Vinayak and
PW11 Ashok went to the house of Anandrao. That time, they saw all
the accused coming out of the drawing room of Anandrao and
16 APEAL89.2002 & 2
standing near the platform of Maruti temple. He deposed that, he
identified them in the lamp burning in the drawing room and accused
nos. 1 and 2 were having iron rods. He deposed that, they made
inquiry with Jagdeo. He deposed about the assault by all accused.
PW11 has led similar evidence.
19. Further evidence shows that, PW3 & PW11 took Jagdeo to
Hadgaon Police Station. Then police issued a letter for medical
examination when Jagdeo was taken to the hospital. PW3 stated
that, the nurse present called the doctor and doctor administered
some medicine and Jagdeo had vomited the same. However, the
doctor did not admit Jagdeo. Hence, Jagdeo was brought to the
Police Station and then to his house. Thereafter, PW12 Anjanabai
went to the field and called her husband Anandrao and narrated the
incident to him. The evidence of PW3 & PW11 disclose that, again at
the request of Jagdeo, he had taken him to the Rural Hospital at
Hadgaon. Thereafter, he took him to Dr. Chakrawar who declined to
examine him. Dr. Chakrawar adviced them to go to doctor at
Umarkhed for orthopedic treatment. They went to the hospital at
Umarkhed but it was closed as it was a holiday. Then they came to
Rural Hospital, Hadgaon where Dr Dhage examined Jagdeo and
informed them that Jagdeo had a fracture of ribs and there was
17 APEAL89.2002 & 2
danger to his life. Then while they were proceeding to Nanded at
about 1:30 am, near Ardhapur, Jagdeo breathed his last. The iron
rods are identified.
20. This material evidence of eye-witnesses PW10, PW12, PW3
& PW11 needs to be subjected to close scrutiny in view of previous
enmity between the parties.
21. PW6 Dr Sangvikar deposed that, Jagdeo was brought to
him on 31.05.1997 at 2:40 am. On examination, he found following
injuries.
(i) Contusion on right side back 2'x1/2'
(ii) Contusion on upper part of right shoulder
1'x1/2'.
. The injuries were caused by hard and blunt object and
within six hours. He deposed that, he again examined Jagdeo at
10:20 am and found one contusion on right infra-axillary area 1'x½'
caused by hard and blunt object within six hours. His certificate is at
Exh. 32 which clearly shows two different timings one for
examination at 2:40 am and another at 10:20 am. PW3 Bhagwan
has however stated that, in the second visit to Rural Hospital at
Hadgaon, Dr. Dhage had examined Jagdeo and not Dr. Sangvikar.
18 APEAL89.2002 & 2
22. After the death, autopsy was conducted on dead body by
PW4-Dr. Sahebrao Lomte on 01.06.1997 between 6:00 to 7:30 pm.
His evidence and PM notes disclose only one injury i.e. contused
abrasion on right infra axillary area horizontally placed 2 x 1 cm.
Column no. 9 shows that, the injury earlier shown as on the back was
actually an old scar. The evidence shows that, it was related to
surgical operation undergone by Jagdeo about 15 days to 1 month
earlier to the incident. The Medical Officer did not find the other
contusion shown on shoulder.
23. The defence of the accused is that, deceased-Jagdeo had
consumed liquor. The PM note shows that, smell of alcohol was
found in the stomach of the deceased-Jagdeo. There is however
admission that such smell can be found even in case of administering
medicines containing alcohol.
24. On careful consideration of this evidence, it does not stand
to scrutiny much less a close scrutiny. The post-mortem notes disclose
that the deceased died about 2 to 6 hours after his last meal. The
evidence shows that, the deceased took his meal on 30.05.1997 at
7:00 pm. There is no evidence to show that thereafter the deceased
19 APEAL89.2002 & 2
was provided food before his death. The medical opinion suggests
the time of death as between 12:00 midnight to 3:00 am on
31.05.1997. There is consistent evidence which is not controverted
that deceased Jagdeo was alive till about 1 to 1:30 pm on 31.05.1997
i.e. for around 11.5 hours after the assault. Considering the facts it
must be assumed that deceased might have taken food again on
31.05.1997 morning and this is the only plausible explanation to
reconcile the medical opinion and the evidence of eye- witensess. On
the ground of this medical opinion the consistent evidence of all
witnesses that deceased died at about 1:30 pm cannot be discarded.
25. The medical evidence in the form of certificate (Exh.32) is
highly suspicious. The incident took place at about 2:00 am at
Kautha. Thereafter, Jagdeo was brought from Kautha to Police
Station and his dying declaration Exh. 34 was recorded by PW6-Head
Constable Datta Jarande at 2:40 am. At the very same time, he was
examined by Dr. Sangvikar in Rural Hospital at Hadgaon, which is
quite improbable. Besides, Dr. Sangvikar had described two
contusions one on back and other on right side. Dr Lomte did not
notice these two contusions. According to him, there was one old
scar of surgical operation on the back of Jagdeo. He found no
contusion on right shoulder of deceased-Jagdeo. The evidence of
Dr.Sangvikar is contrary to the evidence of Dr. Lomte.
20 APEAL89.2002 & 2
26. According to certificate Exh. 32, Jagdeo himself came
along with his relatives. The certificate and evidence of Dr.
Sangvikar does not disclose that he was referred by police but
according to PW6 Head Constable Datta Jarande, he had issued a
reference letter Exh. 35. This reference letter shows only one
abrasion on the ribs and some weal marks on chest and back.
Pertinently, both these letters as well as injury certificates are silent
about assault by rod. The dying declaration Exh. 34 allegedly
recorded by PW6 Datta does not refer to any assault by rod.
Evidence of PW9-Annapurna, PW12-Anjanabai, PW3-Bhagwan &
PW11-Ashok regarding assault by rod is not supported by medical
evidence.
27. The evidence shows that, there was long standing enmity
and the accused are neighbours of deceased-Jagdeo. We agree with
the arguments of learned advocate for the accused that the accused
would not have visited the house of deceased at odd hours of 2:00
am only for causing some minor injuries by means of fist blows &
kick blows. The dying declaration Exh. 34 discloses that no accused
was armed with any weapon, which is suspicious. The certificate
Exh.32 initially shows only two injuries and one injury is shown later
21 APEAL89.2002 & 2
on. It is suspicious that this major injury causing fracture of ribs and
perforation of pleura and bleeding and damage to the lung was not
noticed by Dr. Sangvikar in spite of reference letter showing that the
deceased had sustained injuries to the ribs. The subsequent entry in
the certificate Exh. 32 was made at 10:20 am. Dr. Sangvikar stated
that, he has made it. PW3 Bhagwan stated that Dr. Dhage has made
it. There is no signature of Dr. Dhage on the certificate. It was a case
of suspected fracture but no x-ray has been produced. This injury
was noted at 10:20 but the time 11:45 is shown below the remark
column. In view of the contradictions in the PM notes and in the
certificate Exh. 32, we have a strong doubts whether the deceased
Jagdeo had sustained injuries as shown at sr. nos. 1 and 2 in
certificate at Exh. 32 and whether he was actually examined by
Dr.Sangvikar or not. It is also doubtful whether the patient was
referred or not to the Rural Hospital by PW6-Head Constable Datta
Jarande. It is a matter of guesswork that if deceased Jagdeo had
gone to the Police Station and his FIR was not recorded and his
medical was not carried out, the subsequent events of his death due
to the injuries sustained earlier would put a strong blame on the
police officer as well as the medical officer and in order to cover up
the things, it might have been shown that the statement of Jagdeo
was recorded at 2:40 am and at the same time he was referred to
22 APEAL89.2002 & 2
medical examination and Dr. Sangvikar at Rural Hospital had
examined and treated him.
28. Even if it is assumed that, the certificate Exh. 32 discloses
correct picture of injuries sustained, it is highly improbable that when
four accused persons came for assault and give slaps, fist blows and
kicks with shoes to Jagdeo, he would have received only three
injuries. The introduction of story regarding assault by rod raises a
serious question mark on the credibility on the witnesses. Besides,
Jagdeo has sustained all injuries on the right side. When four
persons were assaulting him, they would have assaulted him from all
the sides. He has not sustained a single injury on left side. As earlier
discussed, the injuries on the back was old scar of operation. Assault
by four persons even for a minute would cause much more number of
injuries than two injuries described in certificate Exh. 32.
29. The dying declaration Exh, 34 recorded by PW6 Datta is
also suspicious. Accused told Jagdeo that he had made so many
complaints against them. The complaints were given by the accused
against Jagdeo and not by Jagdeo against the accused. There was no
immediate occasion for the accused to come for assault at odd hours
of 2:00 am. Even in case of assault by rod, one would expect
23 APEAL89.2002 & 2
elongated contusions having more length than the existing one and
no such elongated contusions were found corresponding to the shape
of weapon. The dying declaration shows assault on chest and back
but no injuries were found on chest and back. The dying declaration
shows that, deceased Jagdeo had sustained some minor injuries.
there is no specific evidence whether fracture of two ribs causing
perforation in the pleura and damage to the lung will not create any
pains and anybody including the patient would not be aware about
its seriousness. It is pertinent to note that, Jagdeo was allegedly
assaulted at 2:00 am but he did not receive treatment at all upto 1:30
pm. It is claimed that, he was taken to various doctors. PW3 stated
that, doctor in the Rural Hospital did not properly examine him at
2:40 am and some medicines were given by nurse. Then there was
attempt to provide him medical help from Dr. Chakrawar who was
not orthopedic physician. He referred them to hospital at Umarkhed.
Even at Umarkhed there was no doctor. It is difficult to accept that, a
person sustaining such a grievous injury which ultimately resulted
into his death, did not get any medical help for almost 12 hrs.
30. The admissions of the witnesses that the accused left the
spot from the drawing room is highly doubtful how the accused
entered the drawing room. If deceased Jagdeo wanted to sleep in
24 APEAL89.2002 & 2
the courtyard why he knocked the door to disturb the sleep of his
relatives. If the relatives were sleeping inside the drawing room, till
the arrival of Jagdeo why they slept in the courtyard after arrival of
Jagdeo that too in the month of winter on 30.12.1997. The spot
panchanama does not disclose any incriminating signs as Jagdeo had
not sustained any bleeding injuries. There is passing reference that
he had sustained minor bleeding but if there would have been minor
bleeding it would have been certainly reflected in the certificate Exh.
32 at the time of examination at 2:40 am. Taking into consideration
all these facts, we find that the oral evidence of PW3, 10, 11 & 12 is
not trustworthy. The might not have seen any assault at all. In fact
the attack might not have taken place in the courtyard. Later on
Jagdeo might have been found lying somewhere in injured condition.
The injury might have been caused by fall as the doctor had opined
that such injury is possible by fall. Causing of only one injury in a
assault by four accused persons is highly improbable.
31. We find that, the witnesses are suppressing the material
facts and are concocting stories. In the light of strong enmity
between the parties, it is not possible for us to rely on the oral
evidence of PW3, 10, 11 & 12 or on the dying declaration recorded
by Head constable - Datta.
25 APEAL89.2002 & 2
32. As far as dying declaration is concerned, if the time permits
it is always desirable to get it recorded from Executive Magistrate and
it should be recorded after obtaining the medical certificate that the
person was in physically and mentally conscious state to make a
dying declaration. It is not known at what point of time the
prosecution witnesses realize the serious of the condition of Jagdeo
and likelihood of his death but at no point of time any efforts were
made to report the matter to the Executive Magistrate and request
him to record the dying declaration. there was no opinion obtained
from Medical Officer about sound, physical and mental condition of
deceased Jagdeo for making statement and recording the statement
of the patient as to cause of death.
33. The so called recoveries in noway support the prosecution
case. When the use of rod itself is not proved, its discovery is not
incriminating. The alleged blood stained clothes of the accused were
not sent to CA.
34. In the light of the facts discussed herein above, we are of
the opinion that the deceased might have died due to injuries
sustained in accident and the prosecution has failed to prove the
26 APEAL89.2002 & 2
complicity of the accused. Hence, the judgment of the trial court is
not sustainable. Hence the appeal of the accused deserves to be
allowed. The appeals against acquittal and for enhancement of the
sentence deserve to be dismissed. The points for our determination
are answered accordingly. Hence we pass the following order.
ORDER
(i) The Criminal Appeal No. 89/2002 filed by the
accused is allowed.
(ii) The judgment of conviction and sentence u/s 325 r/w
34 of IPC passed against all the accused in Sessions
Case No. 47/98 dt. 04.02.2002 is hereby quashed and
set aside.
(iii) The accused are acquitted of all the offences for which
they were charged. Their bail bonds stand cancelled.
Fine amount, if deposited by them, shall be refunded
to them. The accused shall furnish PR bond of
Rs.5000/- each with like solvent sureties u/s 437A of
the Cr.P.C. before the ld. trial Judge.
(iv) Criminal Appeals No. 267/2002 and 270/2002 filed
by the State are dismissed.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
