Nandkumar @ Chhotu Vasudev Samant vs State Of Maharashtra
2022 Latest Caselaw 925 Bom

                                            1                               cr-apeal-280-97jb.odt



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 280 OF 1997


 Nandakumar @ Chhotu Vasudev Samant,
 Residing at Flat No. 24, Suraj Apartment,
 4th Floor, Kastur Park,
 Borivli (West), Mumbai-400092.
 (At present at Arthur Road
 Central Prison, Mumbai)                                                   . . . APPELLANT

                                        ...V E R S U S..

 State of Maharashtra
 (at the instance of Borivli Police Station,
 Mumbai)                                                                . . . RESPONDENT
 ------------------------------------------------------------------------------------------------
 Mr. R. S. Desai i/b Ms. Prabha Badadare, Advocate for appellant.
 Mr. S. S. Hulke, A.P.P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- S. S. SHINDE AND
                           SURENDRA P. TAVADE, JJ.

 RESERVED ON                   :- 25.11.2021

 PRONOUNCED ON :- 27.01.2022

 JUDGMENT (PER : SURENDRA P. TAVADE, J.) :-

 1.               Heard.

2. The appellant/original accused has filed this appeal

against the judgment and order dated 05.05.1997 passed by the

Additional Sessions Judge, Mumbai thereby convicting the appellant

for the offence punishable under Section 302 of the Indian Penal Code

2 cr-apeal-280-97jb.odt

(IPC) and the appellant was sentenced to suffer imprisonment for life

and to pay fine of ₹ 500/-, in default he was directed to suffer rigorous 500/-, in default he was directed to suffer rigorous

imprisonment for two months.

3. The case of the prosecution can be summarized as under :-

The informant- Anant Naik had two sons and one

daughter namely Nitin, Nilesh and Suchitra (deceased) respectively.

The appellant as well as deceased- Suchitra were serving in State Bank

of India. The appellant had love affair with Suchitra. They decided to

get married. The mother of Suchitra opposed the said marriage but,

subsequently the parents of Suchitra gave consent to the said marriage.

Accordingly, the appellant and Suchitra got married in the year, 1982.

After marriage, there used to be frequent quarrel between the

appellant and the deceased. The deceased used to disclose the dispute

between herself and the appellant to her mother but, the mother of the

deceased could not reconcile the situation and continued to dislike the

appellant.

Suchitra gave birth to a baby boy namely Pranjal on

26.11.1983. As the deceased and the appellant were working, Puja

Chachad, who was residing nearby the house of the appellant, was

appointed to take care of Pranjal. There was understanding between

the appellant and the deceased that deceased to supposed to leave

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Pranjal to creche and the appellant was supposed to bring his son back

from the creche.

4. On 06.12.1988, the appellant returned home and did not

bring Pranjal alongwith him and on that count there was altercation

between the appellant and the deceased. During the said altercation,

the appellant assaulted the deceased by fist and kick blows. She

sustained injuries and her Bangals and Mangalsutra were broken.

After the assault, the appellant left the house and Suchitra managed to

call neighbor Shri N. A. Prabhu (PW1), who was General Secretary of

the Bank Employee and residing in adjacent building namely Abhiman

Building at Kastur Park. After arrival of Prabhu, Suchitra disclosed him

that the appellant assaulted her. She also asked Prabhu to intimate the

incident to her parents but, the neighbours had already intimated the

incident to the parents of the deceased.

5. The neighbours and Prabhu brought Suchitra at ground

floor. At that time, Police patrolling van was passing from nearby

building and same was stopped by the neighbours. The incident was

reported to the Police, present in the van. The Police Officer instructed

the neighbours to take Suchitra to Bhagwati Hospital. Similarly, the

message was also sent to Borivali Police Station. The witness Prabhu

and the neighbours brought Suchitra to Bhagwati Hospital by Auto

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rickshaw at about 01:35 a.m. on 07.12.1988. Suchitra was examined

by Casualty Medical Officer, who noted the history as well as injuries

found on the person of Suchitra. As the condition of Suchitra was

serious therefore, she was referred to Dr. Karekar, who examined her.

Suchitra also gave history of assault by her husband to Dr. Karekar,

who noted it in medical papers. Dr. Karekar found six external injuries

on the person of Suchitra. He performed test of Abdominal Tab and

same came to be positive. Dr. Karekar diagnosed that patient had

traumatic abdomen and decided to perform emergency operation.

Suchitra was therefore sent to operation theatre at first floor.

Meantime, PSI Dhawale and Constable Puri reached the hospital and

both of them went to the operation theatre and saw that Suchitra was

lying on stretcher outside operation theatre and was suffering from

pain. PSI Dhawale (PW9) sought permission of Dr. Karekar to record

the statement of Suchitra but, the Medical Officer refused the

permission as the condition of Suchitra was critical. Hence, her

statement was not recorded by PSI Dhawale. Meantime, Anant Naik-

father of Suchitra reached the hospital. He saw Suchitra and found

injuries on her face and other parts of the body. He made enquiry with

Suchitra as to how she sustained injuries. In response, Suchitra

disclosed him that the appellant returned home at about 11 p.m. but

he did not bring home Pranjal alongwith him. When she asked the

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appellant about Pranjal, he started quarreling with her and assaulted

her by fist and kick blows and thrown her on floor. Thereafter,

Suchitra was operated. Anant Naik lodged First Information Report

(FIR) with Police.

6. On the basis of the FIR, Crime No. 485/1988 was

registered against the appellant for the offence punishable under

Section 325 of the IPC. The Investigating Officer reached the flat of

Suchitra namely Flat No. 24, 4th Floor, Suraj Apartment, Borivali. He

prepared scene of offence punchnama and also seized pieces of

Bangles and Mangalsutra. He also obtained samples of blood stains

found on the floor and household articles. He also noted blood stains

in the bedroom and the articles were scattered in the bedroom. After

panchnama, the Police returned to the Police Station. The

Investigating Officer received information from the hospital that

Suchitra passed away and therefore, offence under Section 302 of the

IPC had been added in the FIR.

7. The Investigating Officer went to the hospital where the

statement of Anant Naik was recorded. Clothes of deceased were

attached at the hospital and dead-body of Suchitra was sent for post-

mortem examination. The Investigating Officer also recorded the

statement of witnesses namely Prabhu, Varsha etc.

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8. The Investigating Officer also took intensive search to

arrest the appellant but, he could not trace him hence 'A-Summery' was

recommended. Finally, information was received by PSI Sapkal that

the appellant was available at Saibaba Nagar. A trap was laid on

17.11.1994 and the appellant came to be arrested under panchnama.

He was identified by the mother of the deceased namely Arundhati

Naik. Her statement was recorded and the additional documents were

submitted to the Court and interrogation was carried out. After

completion of investigation, charge-sheet came to be filed against the

appellant in the Court of Metropolitan Magistrate at Borivali.

9. As the offence under Section 302 of the IPC was triable

exclusively by Court of Sessions, hence the case was committed to

Court of Session at Mumbai. During the trial, the appellant was

released on bail and on his appearance charge came to be framed

against him under Section 302 of the IPC for which he pleaded not

guilty and claimed to be tried. The defence of the appellant was of

total denial. According to the appellant, on the fateful day, he had gone

for a Bhajan programme at Shri Gajanan Maharaj Temple at Kalyan.

He had already been given intimation of the said programme to

deceased- Suchitra. The programme was finished at about 12:30 mid-

night and after, he came to Dadar railway Station (local), but no train

service was available therefore, he waited at Dadar Station and then

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came to Borivali at about 5:15 a.m. and then he reached at Suraj

Apartment. He found that there was group of people gathered at the

entrance gate of the apartment. He was informed that Suchitra was

taken to Bhagwati Hospital. Hence, he went to Bhagwati Hospital by

Auto rickshaw. When he reached hospital, two persons came running

towards him and pushed him back in rickshaw and he was taken to

Malad. On the way, he was informed that his wife expired and offence

has been registered against him; hearing that offence is registered

against him, and his wife died he had shock. Then he went to Shirdi

and stayed there for long time. As per advice of his friend Vimal

Dhavan, he came to Borivali and surrendered himself before the in-

charge police officer of concerned Police Station.

10. To prove the charge against the appellant, the prosecution

has examined as many as eleven witnesses. The appellant examined

two defense witness namely Shridharan Sundaram (DW1) and Smt.

Puja Chachad (DW2).

11. Upon considering the evidence of prosecution and

defence, the Trial Court held the appellant guilty for the offence

punishable under Section 302 of the IPC and he has been sentenced to

suffer rigorous imprisonment for life and to pay a fine of ₹ 500/-, in default he was directed to suffer rigorous 500/-, in

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default to suffer rigorous imprisonment for two months. The said

judgment and order is challenged in this appeal.

12. The learned counsel for the appellant submits that the

Trial Court wrongly held that the death of the deceased was homicidal.

It is submitted that the evidence of Dr. Karekar and Dr. Jalgaonkar was

not properly appreciated by the Trial Court. He contended that the

prosecution has not led cogent and reliable evidence to prove the

alleged dying declaration of Suchitra. It is submitted that the Police

Officer Dhawale and Constable Puri had received information about

alleged assault on Suchitra and therefore, their evidence on the point

of alleged dying declaration could not be believed. It is contended that

the statement of Arundhati Nail was recorded six years after the

incident and therefore it looses evidentiary value and the Trial Court

should have ignored the evidence of Arundhati Naik. It is contended

that evidence of son of deceased- Pranjal is not useful to the

prosecution to prove either the dying declaration or homicidal death of

the deceased. It is contented that the appellant has given the possible

explanation of his absence after the alleged incident and that could not

be used against him and his absence could not be used as additional

circumstance against him. It is further contended, the Trial Court has

not properly considered the provisions of law properly. He invites our

attention to the contents of the written notes of evidence placed on

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record and submitted that the appeal be allowed and the appellant be

acquitted.

13. On the other hand, the learned A.P.P. submitted that there

is sufficient evidence on record to establish that the appellant had

assaulted the deceased and run away from the house. The dying

declaration of Suchitra was proved by the prosecution through the

evidence of Medical Officers and Police Officers. The death of Suchitra

had caused due to rapture of liver which resulted into cardiac arrest.

Hence, the prosecution has rightly proved homicidal death of Suchitra.

It is submitted that the Trial Court has considered the evidence on

record properly and there is no need to interfere with the findings of

the Trial Court. It is submitted that the appeal be dismissed.

14. The prosecution has examined in all eleven witnesses. The

prosecution mainly relied on the evidence of Dr. Karekar (PW6) and

Dr. Jalgaonkar (PW7) to prove the dying declaration as well as

homicidal death of Suchitra. According to Dr. Karekar (PW6), in the

year 1988 he was attached to Bhagwati Hospital and he was on duty

from 8 a.m. on 06.12.1988 for 24 hours till 8 a.m. on 07.12.1988 as a

Registrar of A.R. Nerkar Unit. Patient Suchitra was admitted in the

hospital at about 01:35 a.m. on 07.12.1988 as indoor patient and he

was the first Doctor who examined her after she was admitted in the

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hospital. He further deposed that patient gave history of assault by fist

and kick blows by her husband. She also disclosed that she was

thrown on the ground by her husband. She also gave history of nasal

bleeding and the said history was recorded by him in the medical

papers.

15. Dr. Karekar further deposed that on examination, he found

general condition of Suchitra was poor but, she was fully conscious

and pulse were feeble femoral felt, blood pressure was irrecordable.

Respiration was 20 per minute. He found following six external

injuries on the person of Suchitra :-

               "i)       CLW (Lt.) eyebrow 2 x 1 cm skin deep.
               ii)       Contusion over chin and (Lt) zygoma.
               iii)      CLW 1½ x ½ x ½ cm. left zygoma.
               iv)       Lt. Black eye.
               v)        Multiple contusions on either side of anterior part of neck and
                         anterior part of left shoulder.
               vi)       Rt. Fronto Parietal Haematoma."

16. He further deposed that he has done Abdominal Tab test

which was positive namely on aspiration by needle which was put into

the peritonial cavity shows blood (Non clotting blood) which suggested

free peritonial blood. He drew a diagram showing the injuries. He

noted result of examination while he was examining and after

completing the examination, he came to the conclusion that the patient

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had traumatic Abdomen. He signed the case papers, which marked as

Exh.18 collectively. He obtained consent of Anant Naik, father of the

patient. Since, the traumatic abdomen requires urgent surgical

management, the patient was directly shifted to operation theatre. He

performed urgent surgery. The type of surgery was exploratory

Laparotomy with right Thoracotomy extension done under general

anesthesia by him with the help of Dr. Tripathi. He gave findings of the

operation namely Massive (about 3.5 liters) hemoperotiam, massive

liver tear left to the gall bladder fossa tearing the liver up to the

inferior vena cava with tear of Rt. Hepatic vein with extension into

inferior vena cava. Retroperitoneal haematoma in upper part of

abdomen was present. It has came in the evidence of Dr. Karekar that

during the surgery, patient went into cardiac arrest and was

resuscitated by the Anesthetist. Intracardiac adrenaline was given.

Internal cardiac massage was also given however, patient could not be

resuscitated and was declared dead at 3.15 a.m. on 07.12.1988. He

further deposed that after the death, the dead-body was sent for post-

mortem examination.

17. In cross-examination, Dr. Karekar admitted that he did not

inform that his findings recorded during the surgery were sufficient in

the ordinary course of nature to cause death but, he volunteered that

information is required to be given to Police by the Casualty Medical

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Officer and not by Surgeon. He further admitted that in the case

papers, he did not mentioned all findings recorded during the surgery

so as to show that the injuries sustained to Suchitra were sufficient in

the ordinary course of nature to cause death. He further admitted that

in the papers, he gave cause of death as unnatural and unknown. He

further volunteers that he referred the dead-body for post-mortem to

find out the cause of death. He also admitted that during the

operation, he could not determine exact cause of death and therefore,

he opined that cause of death is unknown.

18. Dr. Karekar also admitted that cardiac arrest can also on

account of Anesthesia. He did not carried out elaborate pre-operative

anesthesia test of deceased because the case was emergency surgery

and every minute was important. He further admitted that injecting

penicillin also result into cardiac arrest. He admitted that he had

injected Ampicillin to deceased Suchitra and Ampicillin is a derivative

of penicillin. It was suggested that the patient could be found

unconscious if his blood pressure is irrecordable but, the said

suggestion was refuted by the Doctor and he gave explanation that

when they use term blood pressure is irrecordable, they mean that it is

irrecordable at the upper portion of the arm. It was suggested to

Doctor that rapture of liver could be cause of cardiac arrest but, the

said suggestion was refuted. It is admitted that intra-operative

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bleeding is the bleeding which occurs during the operation. In the

present case, there is reference in the note of anesthetists that there

was intra-operative bleeding. On the basis of said admission, learned

counsel for the appellant submits that there was no bleeding prior to

the admission of the deceased in the hospital. The bleeding started

during the operation and therefore, the cause of death is written as

unnatural which includes post operative complications but, there is

evidence on record namely scene of panchnama wherein it is

mentioned that there were blood stains on the floor. The clothes of the

deceased Suchitra were having bleeding injuries right from the

beginning.

19. The prosecution has also relied upon on the evidence of

Dr. Jalgaonkar (PW7), who performed post-mortem on the dead-body

of the deceased. According to him, he performed the post-mortem

between 5.30 p.m. to 6.30 p.m. on 07.12.1988. He noted external

injuries at para no. 17 of the post-moretem (Exh.21). He also deposed

that there were eleven injuries on the body of the deceased and the

injury no. 11 is suturing during the surgery and all these injuries were

ante-mortem injuries. There was hemorrhage, haemotoma and

congestion of the brain. The liver was rapture through and through

and after examination he completed post-mortem taking sample of

blood for grouping and alcohol test. He waited for report of C.A. and

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all reports of C.A. were received on 12.01.1989. However, after

consulting his colleague and senior, he finally gave cause of death as

shock and hemorrhage due to rapture of liver (unnatural) on

31.12.1988 without waiting for C.A. reports. The C.A. report is marked

as Exh.22. The viscera was not sent for C.A. He opined that the

rupture of live is sufficient in the ordinary course of nature to cause

death.

20. It is suggested to Dr. Jalgaonkar that intro-cerebral

haemotoma is possible by fall provided in all the cases there is contact

with blunt object. It is pertinent to note that there is no material on

record to substantiate the theory of fall specially such type of fall which

can cause extensive damage to liver. He stated that he did not find

fracture of ribs during examinations. He admitted that there is

distinction between tear and rupture and the liver was through and

through ruptured but did not have a massive tear. He admitted that he

was not told that cause of death was cardiac arrest therefore, he could

not investigate in that direction during the post-mortem but he

admitted that he did not detect cardiac arrest. He also admitted that

injuries to the deceased was caused by hard and blunt object and some

of the injuries can be possible by fall on hard ground. On the basis of

the said evidence, learned counsel for the appellant submitted that

there is possibility of fall of the deceased from staircase and she could

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have sustained injuries. The Medical Officer has admitted that there

can be damage to liver by fall however, in such case the trauma would

be forceful and it is inevitable that there can be some external injury

corresponding to rupture of liver because of hard and blunt object. In

the present case, there was no external injury on the abdomen.

Similarly, the scene of offence panchnama show that there were blood

stains on the floor of the flat of the deceased. Her inner garments

were stained with blood so the theory put forth by the defence that the

deceased sustained injuries due to fall from staircase appears to be

improbable.

21. The evidence of the Medical Officer equivocally

established that the death of the deceased Suchitra was homicidal and

not accidental. Once it is established that the death of Suchitra was

homicidal, then it is to be seen whether the appellant is responsible for

the same. There is no direct evidence in this case and the entire case

rests on circumstantial evidence. Learned counsel for the appellant

strenuously submitted that in such type of case, chain of circumstance

leading to the conclusion of guilt of the accused has to be established.

He also relied on the ratio laid down in the case of Sangili @

Sanganathan Vs. State of Tamil Nadu [AIR 2014 SC 3756]. In the said

judgment, Hon'ble Apex Court has relied on the ratio laid down in the

case of Sharad Birdhichand Sarda Vs. State of Maharashtra [1984 (4)

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SCC 116]. The Hon'ble Apex Court has in the said case observed that

following cardinal principle of appreciation of circumstantial evidence

are required to be complied with:-

"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis except the one to be proved; and

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

22. There is no duel opinion on the above ratio. The

prosecution has relied on the following circumstance:-

 i)       motive;

 ii)      dying declaration; and

 iii)     absence of the appellant from the spot immediately after the

 incident.

23. To prove the motive, the prosecution heavily relied upon

the evidence of Arundhati Naik (PW5). The evidence of Arundhati is

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strongly objected by the appellant on the ground that her statement

was recorded after 6 years of the incident. It is also contended that

Arundhati was not present in the hospital when Suchitra was admitted

in the hospital. To appreciate the submissions, we have to scrutinize

the evidence on record. It has come in the evidence of Nalkur Prabhu

(PW1) that in the night of 06.12.1988, at about 11 p.m. he was

sleeping in the house and about 4/5 persons came to his house. They

informed him that there was quarrel between Chotu (the appellant)

and his wife. Chotu has beaten his wife Suchitra and she had called

him. He immediately went to the flat of the deceased. She was sitting

on the staircase and was bleeding and wailing. She told him to call her

father but, the neighbors gathered there disclosed that intimation of

the incident was given to the father of the deceased on phone. He

further deposed that at that time one Police patrolling van came at the

site of building. The neighbors intercepted the Police van and they

gave information of the incident to Police and Police asked the

neighbors to take the injured to Bhagwati Hospital. Thereafter, the

witness further deposed that he alongwith one neighbor took Suchitra

to Bhagwati hospital by Auto rickshaw. This evidence is not denied

and it is established that information of the incident was

communicated to Nalkur Prabhu (PW1), who in turns visited the house

of the deceased and thereafter he took the deceased to Bhagwati

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Hospital in Auto rickshaw. The information of the incident was given to

the parents of the deceased.

24. In view of the above evidence, the evidence of Arundhati

(PW5) is to be appreciated. She deposed that in the night of

06.11.1988, her husband received phone call whereby he was

informed that her daughter was assaulted by her husband and it was

also informed that she had sustained injuries and was bleeding from

mouth and nose. Thereafter, one more call was received by her,

wherein she was informed that Suchitra was taken to Bhagwati

Hospital, Borivali. Accordingly, she alongwith her husband visited

Bhagwati Hospital in Taxi. She further deposed that she met the

deceased, who disclosed the incident to them.

25. Arundhati deposed that decdased- Suchitra married the

appellant in the year 1982 and it was a love marriage. The appellant

and the deceased were residing at Flat No. 24, Suraj Apartment,

Kastur Park, Simpoli, Borivli (West). Pranjal (PW4) was born on

26.11.1983. She further deposed that she used to visit the house of

Suchitra. Suchitra used to tell her that there use to be quarrel between

herself and her husband. She advised her to be patient and these

quarrels are routine in nature. The said evidence is substantiated by

Pranjal (PW4). At the time of incident, Pranjal (PW4) was about 5

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years old and at the time of deposing in the Court, he was aged about

13 years. It has came in his evidence that the appellant used to

frequently take him to places like Kosobo Nagar, Jogeshwari, Thane,

Pune and Saibaba Nagar etc. He used to meet relatives and friends of

his father. He further deposed that there used to be quarrel between

his parent in the house in the evening and night. The appellant used

to demand money from his mother and the appellant used to beat his

mother on her refusal to give money. The appellant used to beat her

mother by stick on some occasions. He used to obstruct the appellant

but, the the appellant also used to beat him. The said sentence is

brought on record as an omission hence, required to be ignored. But, it

is established from the evidence of Pranjal that there used to be

frequent quarrel between the appellant and the deceased Suchitra and

he tried to intervene in the same.

26. On this count, learned counsel for the appellant submitted

that the appellant was gainful employed and he had no reason to

demand money from the deceased and therefore, evidence of Pranjal is

not inspiring confidence. It is true that the appellant and the deceased

were bank employees and therefore, apparently there was no need of

the appellant to demand money from the deceased. But, it has came in

the evidence of Arundhati that the appellant was convicted by High

Court and he has spent money on the litigation and similarly the

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appellant used to do the union work and used to go frequently out of

Mumbai. So there is possibility that sometime he may be in need of

money. As far as conviction of the appellant is concerned, no details

about conviction are brought on record. It is also not challenged by

the appellant that he was convicted by the High Court. There is no

cross-examination to bring on record that such is not a fact and infact

due to conviction it is possible that the quarrel used to be on account

of money. So, on going through the evidence of Arundhati and Pranjal,

it can be said that the relation between the deceased and the appellant

were strained. It also appears that sometime there used to be oral

altercation and even physical assault also.

27. It is the case of prosecution that on the day of incident,

quarrel took place between the appellant and the deceased because the

appellant did not bring Pranjal home. On this point, evidence of Smt.

Chachad (D1) is important. She deposed that on the day of incident

Suchitra had come to her house but, she did not take Pranjal alongwith

her. Smt. Chachad deposed that she had instructions from the

appellant not to send Pranjal alongwith Suchitra. She further deposed

that Suchitra came to her house at about 5.30 p.m and she thought

that she had came to take away Pranjal but, she did not take back

Pranjal alongwith her. Therefore, she thought that the appellant may

come to receive Pranjal. Smt. Chachad further deposed that in the said

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night, the appellant did not come to receive Pranjal therefore, he

stayed in her house. So it can to be said that in the fateful night,

Pranjal was not brought to house and that may be the ground for

quarrel also and that was not explained by the defence.

28. The defence has denied the evidence of Arundhati (PW5)

on the ground that her statement was recorded at belated stage. It is

true that Arundhati's statement was recorded in the year 1994 and no

explanation of delay in giving such statement given by her as well as

by the Investigating Officer. It is also contended that there is no

corroboration to her testimony that she visited to Suraj Apartment as

well as Bhagwati Hospital. In the cross-examination, Arundhati gave

names of Police Officers namely PSI Dhawale and name of Constable as

Churi/Puri. The name of Constable was infact Puri. So, admittedly

Dhawale and Puri were present in the hospital when Suchitra was

admitted there. Arundhati also deposed that her husband asked PSI

Dhawale to record the statement of Suchitra but, the said fact is not

confirmed by PSI Dhawale. But, it is a fact that husband of Arundhati

lodged report immediately after Suchitra was taken for operation. In

the FIR, there are allegations that the appellant had assaulted Suchitra.

There is no reference in the FIR that Arundhati had accompanied the

informant. Similarly, her statement was also not recorded immediately.

So it can be said that there is doubt regarding her presence in the

22 cr-apeal-280-97jb.odt

hospital on the fateful night. For the sack of argument, it is presumed

that the presence of Arundhati at hospital was not established by other

corroborative evidence or documentary evidence, still it cannot be said

that she is a got up witness. We have to consider the normal course of

human conduct. In normal course of human conduct, Arundhati

received a massage that her daughter was serious and she was

hospitalized and at that time she and her husband was in the house.

It is normal reaction of a mother to rush to meet her child, who is

seriously injured and hospitalized. The husband of Arundhati was a

retired person and therefore, it can be said that Arundhati must have

accompanied her husband to the hospital in a Taxi at wee hours in the

night. Therefore, we do not accept the statement of defence that

Arundhati was not accompanied her husband to the hospital in the

fateful night. She also speaks about marital relationship between the

appellant and the deceased. The said evidence is substantiated by

Pranjal (PW4) that there used to be frequent quarrels between the

appellant and the deceased on account of money and therefore, the

prosecution has proved the motive for crime.

29. According to the prosecution, deceased Suchitra had

called neighbors and accordingly, Prabhu (PW1) reached the house of

Suchitra. It is disclosed by Suchitra to the Prabhu that she was

assaulted by the appellant. Similarly, witness Vathasala Shriniwas

23 cr-apeal-280-97jb.odt

(PW3) was also examined to prove the dying declaration. But, both of

them have not whisper anything regarding disclosure statement made

by Suchitra regarding the incident to them. So the evidence of Prabhu

and Vathasala is not sufficient and useful for the prosecution to prove

the dying declaration.

30. It has came in the evidence of PSI Dhawale (PW9) that on

06.12.1988 from 6.00 p.m. to 8.00 p.m. of 07.12.1988, he was on

Station House Officer duty. In the said night, at about 01.10 a.m., he

received a massage from Bhagwati Hospital that Suchitra was admitted

in the hospital because she was assaulted by her husband. He asked

the Writer on duty to enter the massage in Station Diary and

accordingly the said massage is recorded in the Station Diary (Exh.26).

He further deposed that he immediately rushed to the hospital. He

made enquiries with the duty constable and he came to know that

Suchitra was taken to operation theatre on the first floor. He

alongwith Constable Puri went to first floor and found that Suchitra

was on stretcher in front of operation theatre. She had injuries on

face, left eye, cheek and neck. Suchitra had kept her hands on chest

and stomach and she was wailing/weeping in pain. He asked Suchitra

as to what had happened. She told him that her husband beat her with

fist and kick blows. He made efforts to record the statement of

Suchitra but, Doctor came there and told him that he has to perform

24 cr-apeal-280-97jb.odt

operation on Suchitra and she was taken to operation theatre.

Therefore, he could not record the statement of Suchitra. Similar

evidence is given by Constable Puri (PW8). According to him, in the

night of 06.12.1988, he joined duty at 5.00 p.m. and was on duty up to

9.00 a.m. on the next day. At about 1.10 a.m. on 07.12.1988, a

massage is received from Bhagwati Hosptial that one lady was

assaulted by her husband and she was brought for treatment.

Thereafter, he alongwith PSI Dhawale went to the hospital and on

reaching the hospital they made enquiries with the Constable on

casualty duty. He told that patient was shifted to first floor near

operation theatre. Accordingly, he and PSI Dhawale went to the first

floor and they saw one lady on stretcher. PSI Dhawale asked the lady

what had happened and she told that she was beaten by her husband

by fist and kick blows. Then, she was taken to operation theatre. The

said evidence is denied by the defence but, there is entry in the

Station Diary regarding the incident. At about 1.10 a.m. he

immediately rushed to the hospital. Diary entry is produced on

record, which show that information of admission of Suchitra was

recorded in the Police Station. Thus, PSI Dhawale and Constable Puri

to rush to the hospital. Therefore, their presence cannot be denied.

31. In second set of evidence, on the point of dying

declaration there is evidence of the Medical Officers. Admittedly,

25 cr-apeal-280-97jb.odt

Suchitra was taken to casualty ward of Bhagwati Hospital where

Suchitra narrated history of assault. The Doctor, who recorded the

history is not examined but, the medical papers are produced on

record and those are at Exh.18, wherein Suchitra had given history of

assault at the time of her admission in the hospital. Dr. Karekar (PW6)

had examined Suchitra and he also recorded the history of injuries

sustained to Suchitra. Dr. Karekar deposed that the general condition

of Suchitra was poor. He enquired with Suchitra and she disclosed

that she was assaulted by fist and kick blows by her husband and

accordingly, he recorded the said history in the case papers. The said

case papers are also produced on record. It appears that when

Suchitra was admitted in the hospital, her parents were not present.

So, there is no question of tutoring Suchitra to give false history to the

Medical Officer or Police Officers. Also, Dr. Karekar had no reason to

record false history in the case papers. Similarly, he was not in inimical

terms with the appellant. So, history written in the medical papers of

Suchitra can be treated as dying declaration recorded by the Medical

Officer.

32. The Medical Officer categorically stated that though the

general condition of Suchitra was poor but, she was fully conscious

and able to speak and therefore, in our opinion the prosecution has

proved the dying declaration of Suchitra recorded in the medical

26 cr-apeal-280-97jb.odt

papers. Similarly, the prosecution has also proved oral dying

declaration made by Suchitra before the Police Officers namely PSI

Dhawale and Constable Puri. The said dying declaration speaks that

she was assaulted by her husband by fist and kick blows.

33. We have already observed that there is no direct evidence

regarding the incident and participation of the appellant. The

evidence on this point is found in the form of dying declaration made

by the deceased Suchitra to the witnesses. The first disclosure was to

Prabhu (PW1), who did not support the case of the prosecution.

Second disclosure was before Medical Officer working at casualty

ward. Name of Doctor is not on record but, OPD papers (Exh. 18)

show that at the time of admission, the Doctor had recorded history as

"patient gave history of assault by fist and blows by husband". It was

also noted that patient was conscious and immediately referred to the

operation theatre. The third person, who heard the dying declaration

was Dr. Karekar (PW6), who recorded the history given by Suchitra.

He also noted that at the time of recording the history of assault, the

patient was fully conscious. The oral dying declaration was given

before PSI Dhawale (PW9) and Constable Puri (PW8) and both of

them have deposed that Suchitra disclosed that she was assaulted by

fist and kick blows by her husband.

27 cr-apeal-280-97jb.odt

34. It is pertinent to note that after examination, the Trial

court put question to Dr. Karekar, wherein Dr. Karekar informed that

injury to neck can be caused by nails and hand blows and the

contusion on shoulder can be caused by blow with hands. However,

the answers given by Dr. Karekar were incorrect, as contusion cannot

be caused by nails but, only abrasion can be caused by nails. The

opinion of Dr. Karekar was not supported by medical science and

deserves to be rejected. Dr. Karekar had drawn the diagram by the

side of injury no. 5. The location is such that contusion cannot be

caused by fall or even by dragging on rough ground. The only

probable way in which these multiple contusion can be caused is by

strangulating the victim by using one hand and forcing her against

hard ground or wall. Existence of injury no. 6, which is hametoma on

right fronto parietal region also show that trauma was given by hard

and blunt substance or the victim hit her head or the victim was hit to

hard substance. The medical evidence speaks volumes and

corroborates to the oral testimony in relation to dying declaration

made by Suchitra. Dying declaration of Suchitra made to the witnesses

is therefore can be believed as truthful.

35. The learned counsel for the appellant submitted that

examination of the appellant under Section 313 of the Code of

Criminal Procedure (Cr.P.C.) is not satisfactory and not done as per the

28 cr-apeal-280-97jb.odt

established procedure and in accordance with law on the subject. The

learned counsel for the appellant relying upon written submission

submitted, that medical papers including the notes prepared by the

Surgeon and Anesthetist are not put to the appellant. It is also

submitted that the evidence of Dr. Karekar was put to the appellant in

three questions. The said questions do not cover his entire evidence

and therefore, the appellant could not explain the circumstance

brought against him in the evidence. To appreciate the submission of

the learned counsel for the appellant, one must see the question put to

the appellant in the statement under Section 313 of the Cr.P.C. The

question nos. 21 to 23 are in respect of opinion expressed by Dr.

Karekar. Question No. 21 is in respect of examination of Suchitra by Dr.

Karekar and the history given by Suchitra. The said question was very

crucial because, there were specific allegations against the appellant

that he assaulted Suchitra by fist and kick blows. Question No. 22 is in

respect of the injuries noted by Dr. Karekar in case papers. It is

mentioned by Dr. Karekar that he prepared notes of operative

procedure. The said notes of operative procedure were produced on

record but not exhibited and thus were not used against the appellant

as material substance against him. Question No. 23 is very specific

wherein it is put to the appellant that injury nos. 1, 2 and 3 of the

notes of operation were sufficient in ordinary course of nature to cause

29 cr-apeal-280-97jb.odt

death. The said questions cover cause of death of Suchitra but, the

appellant has simply answered that he does not know anything about

the injuries. Question No. 36 is in respect of post-mortem report

prepared by Dr. Jalgaonkar The explanation of the appellant was

sought as regards the post-mortem report (Exh.21) but, he has shown

ignorance about the same. The post-mortem report consist of 22

columns and it is not required that to put question on the observation

of the Medical Officer given in each column of the post-mortem report.

The post-mortem report is a technical report and the cause of death

mentioned therein was put to the appellant and he showed ignorance

about the same. The circumstance used against the appellant were put

to him and there is no grievance made by the appellant that by not

putting the material substance he has been prejudiced. Therefore, in

our opinion, the examination of the accused under Section 313 of the

Cr.P.C. was properly done. On going through the examination of the

accused under Section 313 of the Cr.P.C., we are of the opinion that

there is no shortcoming therein. The questions, which were important

and relevant for explanation of the appellant, were put to him.

36. Admittedly, the appellant was not present after the

occurrence and he was hiding for 6 years till he surrendered himself at

Police Station on 17.11.1994. The learned counsel for the appellant

submitted that abscondence of the appellant cannot be used against

30 cr-apeal-280-97jb.odt

him as an additional link. It is true that abscondence is one of the

circumstance, which is taken into consideration while assessing the

evidence placed on record by the prosecution. Abscondence of the

accused further substantiate truthfulness of the dying declaration.

According to the appellant, in the fateful night, he was giving religious

discourse at Gajanan Maharaj Temple at Kalyan till late night. He

missed the last local train and finally reached the house at about 5.15

a.m. He was informed by the person gathered near the gate of the

building that there was quarrel between his wife and someone, during

which his wife fell down from stairs and sustained injuries. Thus, he

went to the hospital and at the hospital, two persons prevented him

going inside and put him back in rickshaw. They were not members of

Bank union but were well wisher from State Bank of India. The said

persons informed him that relatives of his wife are accusing him of

murder of Suchitra. When he made enquiries regarding Pranjal, the

strangers informed him that Pranjal was safe. He finally went to Shirdi

where he stayed in shock and forget himself and he was brought back

to worldly affairs by his friend Vinod Dhawan. He listen to the advice

given by Vimal Dhawan and decided to surrender before Police and

accordingly he surrendered before the Police. The prosecution has

tried to established that the appellant was arrested in presence of two

witnesses namely Prabhakar Salvi and Popatlal Shaha but, the said

31 cr-apeal-280-97jb.odt

evidence is discarded by the Trial Court. Therefore, there is substance

in the defence of the appellant that he surrendered himself before the

Police in November-1994. But, he has not examined any person whom

he meet in the fateful night, who gave him information about the

incident occurred with Suchitra. The story put forth by the appellant

appears to be imaginary and cannot be believed. The evidence led by

the prosecution show that the appellant had assaulted his wife on the

fateful night and then ran away from the spot. The explanation given

by the appellant is not worthy of credence.

37. On going through the above discussion, we hold that the

prosecution has established the cardinal principles laid down by the

Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda

(supra). The prosecution has established that there was quarrel

between the appellant and the deceased. The appellant assaulted the

deceased by fist and kick blows whereby she sustained bleeding

injuries. Similarly, she had injuries on his face, neck and the fatal

injury on abdomen whereby her liver was raptured. She sustained

bleeding injury and the said fact was established from the scene of

offence panchnama. There were blood stains on the floor of bed room

and drawing room. Similarly, her clothes including inner wear were

also stained with blood. No doubt, it is proved on record that there

was collection of blood admeasruing 3. 5 liters in the cavity and said

32 cr-apeal-280-97jb.odt

bleeding was during the course of operation but, the prosecution has

established that the deceased was conscious when she was brought to

the hospital and she made statement before the Medical Officer and

Police Officer and even before the neighbors but, unfortunately the

neighbors did not support the case of the prosecution and therefore,

the prosecution has established that due to assault by the appellant,

the deceased Suchitra sustained external as well as internal injuries.

The internal injuries proved to be fatal. Therefore, the prosecution

proved that chain of circumstance so complete that has not left any

reasonable ground for the conclusion consistent with innocence of

accused and it has proved that in all human probability the act must

have been done by the appellant.

38. Now the question arises whether the charge under Section

302 of the IPC is proved against the appellant. According to the

learned counsel for the appellant, the prosecution has failed to prove

the intention of the appellant to kill his wife. Therefore, charge under

Section 302 of the IPC is not proved. To substantiate the submission of

the appellant, he has relied on the ratio laid down in the case of K.

Ravi Kumar Vs. State of Karnataka [(2015) 2 SCC 638] . It was held

that to invoke Exception-4 to Section 300 of the IPC the following

requirement must be specified:-

                                     33                          cr-apeal-280-97jb.odt



 i)       it is a sudden fight;

 ii)      there was premeditation;

 iii)     the act was done in heat of passion;

 iv)      the appellant had not taken any undue advantage or acted in a

 cruel manner.

39. The cause of quarrel is not relevant nor is it relevant who

offer the provocation or started the assault. The number of wounds

caused is not the decisive factor but, what is important is that

occurrence must have been sudden and unpremeditated and the

offender must have acted in a fit of anger. Off course, the offender

must not have taken any undue advantage or acted in cruel manner.

Where, all of a sudden quarrel, a person in a heat of movement picks

up a weapon which is handy and cause injuries, one of which prove

fatal, then he would be entitled to the benefit of this Exception

provided he has not acted cruelly.

40. Keeping in view the law laid down by the Supreme Court

in the case of K. Ravikumar (supra), we are inclined to extend the

benefit of Exception-4 to Section 300 of the IPC to the appellant for

more than one reasons:-

i) Firstly, according to the prosecution there was no pre-meditation

in the commission of the crime;

                                    34                         cr-apeal-280-97jb.odt



 ii)      There is not even suggestion that the appellant had motive to

commit offence against the deceased, leave alone the serious offence

like murder.

iii) The incident that occurred was due to sudden quarrel, which

ensued between the appellant and the deceased on the purported issue

that the appellant had not brought his son alongwith him from creche.

iv) No conclusive evidence is adduced by the prosecution that on

any count, serious quarrel ever ensued in 6 years of marriage between

the couple and that have a cause which can lead to killing of the

deceased or whether any unsuccessful attempt was ever made by the

appellant to kill the deceased.

v) Lastly, we are not able to see from the post-mortem that there

was any external grievous injuries caused to the deceased.

41. On the contrary, it has came in the medical evidence that

death of Suchitra was caused due to massive blood loss. It is certain

that the blood loss, which occurred due to injury to vena cava,

ruptured liver and tear of hepatic vein and there is enough medical

evidence that such injuries result in blood loss and bleeding on

operation table. The medical record indicate that Anesthetist tried to

resuscitate the patient and gave introuptic massage to her after the

cardiac arrest was noticed. It appears that there are two versions of

cause of death. Dr. Jalgaonkar, who performed the post-mortem

35 cr-apeal-280-97jb.odt

deposed that he was not told of cardiac arrest and therefore, he has

not investigated the said aspect. Anesthetist's submission show that

Suchitra died due to cardiac arrest. So there was possibility that the

excessive bleeding occurred to Suchitra during the operation. There is

note of the Anesthetist that blood was collected in peritoneal cavity

due to intra-operative bleeding. But, on said statement, Dr. Karekar

did not offer any comment.

42. Therefore, in our opinion, the case falls under Section

304, Part-II of the IPC instead of Section 302 of the IPC.

43. In the light of the above mentioned discussion and as

emerged from the evidence on record, we are of the considered view

that there are reasons sufficient to give benefit of Exception-4 to

Section 300 of the IPC to the appellant and we hold that the offence in

question was not murder but, it was an offence of culpable homicide

not amounting to murder as specified in Exception-4 to Section 300 of

the IPC punishable under Section 304, Part-II of the IPC. In the result,

we allowed the appeal but only to the extent that instead of Section

302 of the IPC, the appellant stands convicted for the offence of

culpable homicide not amounting to murder which is punishbale under

Section 304, Part-II of the IPC and sentence to undergo imprisonment

for a period of 07 years.

36 cr-apeal-280-97jb.odt

44. The appellant is directed to surrender before the Trial

Court within a period of two weeks to undergo sentence imposed upon

him.

45. The appellant is entitled for set off under Section 428 of

the Code of Criminal Procedure for the period undergone by him

during the investigation and pendency of the appeal.

46. The appeal is accordingly disposed of in the above terms.

                      (SURENDRA P. TAVADE, J.)                    (S. S. SHINDE, J.)




RR Jaiswal