Sandeep @ Jounty Mahadeo Jadhav ... vs The State Of Maharashtra
2022 Latest Caselaw 2462 Bom

                                                   1 of 24                       apeal-279-16


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO. 279 OF 2016

                     Sandeep @ Jounty Mahadeo Jadhav & Anr.       ..Appellants
                           Versus
                     State of Maharashtra                         ..Respondent
                                             __________

                     Ms. Payoshi Roy i/b. Dr. Yug Mohit Chaudhry for Appellant.
                     Ms. Veera Shinde, APP for State/Respondent.
                                                 __________

                                             CORAM : SMT. SADHANA S. JADHAV &
                                                     SARANG V. KOTWAL, JJ.

                                       RESERVED ON           : 07th MARCH 2022.
                                       PRONOUNCED ON         : 11th MARCH 2022.

                     JUDGMENT: (Per Sarang V. Kotwal, J. )

1. The Appellants have challenged the Judgment and order

dated 14/12/2015 passed by the learned Additional Sessions

Judge, Kolhapur in Sessions Case No. 114 of 2014, whereby both

the Appellants were convicted for commission of the offence

punishable under section 302 r/w. 34 of the Indian Penal Code (for

short 'IPC'). They were sentenced to suffer Imprisonment for life

and to pay a fine of Rs.5000/- each. The Appellant No.1 was Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

convicted for the offence punishable U/s.504 of IPC and was 2022.03.11 13:23:06 +0530

Gokhale 2 of 24 apeal-279-16

sentenced to suffer R.I. for one year and to pay a fine of Rs.1000/-.

The sentences awarded to the Appellant No.1 were directed to run

concurrently. The Appellant No.2 was acquitted for the offence

punishable under sections 504 and 506 r/w. 34 of IPC. The

Appellant No.1 was acquitted for commission of offence punishable

U/s.504 of IPC.

2. The prosecution case, in brief, is as follows:

The deceased in this case Dhananjay Rajput was serving

in a Country Liquor shop at Gangavesh, Kolhapur. The Appellant

No.1 came to that shop for consuming liquor on 23/03/2014 in the

afternoon. The deceased was sweeping the floor. He requested the

Appellant No.1 to move aside. The Appellant No.1 got angry. He

went out of the shop. He called the Appellant No.2. At about

3.30p.m. when the deceased was outside the shop, the Appellant

No.1 held him from behind. The Appellant No.2 removed a knife

and gave two blows on the abdomen and one stab on the chest.

Thereafter both the appellants went away on their motorcycle.

Dhananjay caught a rickshaw. One Sanjay Patil admitted him to 3 of 24 apeal-279-16

hospital. Dhananjay's brother Sanjay Rajput and others were

informed. They reached the hospital. It is the prosecution case that,

Dhananjay narrated the incident to his brother, sister, rickshaw

driver and others.

3. In the evening, exploratory and other surgical procedure

was performed on Dhananjay. He survived for a few more days and

on 29/03/2014 he died. He had developed septicemia. The

appellants were arrested. The F.I.R. in this case, was lodged by the

brother of the deceased. The investigation was conducted and the

charge-sheet was filed. The case was committed to the court of

sessions. During trial, the prosecution examined as many as 22

witnesses. Most of the pancha witnesses turned hostile. The

prosecution case rests on the circumstantial evidence and mainly

on the oral dying declarations.

4. The important prosecution witnesses to whom the oral

dying declaration was made by the deceased are PW-11 Sanjay

Rajput, who was brother of the deceased, PW-12 Pradeep Powar

who was the rickshaw driver who had taken the deceased to CPR

hospital and P.W.13 Rekha Rajput, who was sister of the deceased.

4 of 24 apeal-279-16

5. PW-15 Sangram More was friend of the deceased. He had

gone to the CPR hospital and had met the deceased; that time the

deceased had narrated the incident to him. PW-17 Sanjay Patil is

another witness to whom allegedly the deceased had given oral

dying declaration. However, he was declared hostile because his

version was materially different in respect of the roles played by

both the appellants.

6. Besides these important witnesses, the prosecution

examined PW-1 Sagar Sutar and PW-2 Shivkumar Pol, panchas for

spot panchanama. They were declared hostile. PW-3 Suresh Khade

and PW-4 Mohsin Shaikh were panchas for seizure of clothes of the

deceased. PW-3 was declared hostile. PW-5 Ravi Nikam and PW-6

Jaysing Sidhganesh were panchas for seizure of clothes of accused.

They were also declared hostile. They did not support the

prosecution case. PW-7 Deepak Jagtap and PW-8 Chandrakant

Gaikwad were panchas for seizure of motorcycle and knife. They

did not support the prosecution case and were declared hostile.

PW-9 Ratnakar Pol was the liquor shop owner. He was not present

at the time of incident. He has stated in his deposition that, when 5 of 24 apeal-279-16

he saw the deceased in the hospital, he was not in a position to

talk.

7. PW-10 Vilas Chowgule had seen the first part of the

incident which had taken place inside the shop when the deceased

was sweeping the floor and had asked the appellant No.1 to move

aside. After that, this witness had removed the Appellant No.1 from

the shop. The deceased went out of the shop after sweeping. PW-10

was looking after the customers. After some time, he saw a mob in

front of the shop. He went there. He saw that the deceased was

running away holding his stomach and that the Appellant No.1 was

going away on his motorcycle. He did not fully support the

prosecution case. He did not speak about the presence of the

Appellant No.2 and hence, he was declared hostile.

8. PW-14 Srinivas Raybage was a co-worker in the shop. He

deposed about the quarrel between the deceased and the Appellant

No.1. He had seen the Appellant No.1 dragging the deceased

outside the shop and assaulting him. According to him, he had not

seen the Appellant No.1 holding the deceased and Appellant No.2 6 of 24 apeal-279-16

assaulting him on his chest and stomach. He, thus, did not fully

support the prosecution case and was declared hostile.

9. PW-16 Babaji Patade was another co-worker. He deposed

about the quarrel between the appellant and the deceased, but he

has not deposed about the main incident of assault. He was

declared hostile.

10. PW-18 Babaso Mane Patil was carrier who had carried

the muddemal property for chemical analysis.

11. PW-19 Dr. Gurunath Dalvi was the doctor who had

conducted postmortem examination.

12. PW-20 Dr. Kaustubh Mench was the Surgeon who had

examined the deceased when he was admitted to CPR hospital. The

evidence of these two doctors is important in this case.

13. PW-21 PHC Umnale had recorded the F.I.R. PW-22 PSI

Digambar Gaikwad had conducted the investigation. He had

recorded the statements of the witnesses. The contradictions and

omissions from the statements of witnesses are proved through 7 of 24 apeal-279-16

him. The panchanamas which were not supported by various

panchas were proved through this witness. This witness had

requested the Medical Officer to give opinion as to whether the

deceased who at that time was admitted to hospital was in a

position to give statement or not. He had sought such opinion on

25/03/2014, 28/03/2014 and on 29/03/2014. On all these

occasions, the Medical Officer had opined that Dhananjay was not

in a position to give any statement. As per the prosecution case,

motorcycle and the knife used in the offence were recovered at the

instance of the Appellant No.2. The panchas to this recovery had

turned hostile. The panchanama was brought on record through

the evidence of this witness.

14. Besides this oral evidence, the prosecution produced C.A.

reports on record which show that blood found on the shirt of

Appellant Nos.1 and 2 was having human blood of 'AB' group. The

clothes of the deceased showed the same 'AB' blood group. The

knife recovered showed 'AB' blood group. The blood group of the

deceased was also 'AB' group. The blood group of both the

Appellants was 'O'.

8 of 24 apeal-279-16

15. Two main questions arise in this Appeal: 1) Whether the

Appellants had assaulted the deceased? 2) Whether the offence

would be of murder or of a lesser degree?

16. We have heard Ms. Payoshi Roy, learned counsel for the

Appellants and Ms. Veera Shinde, learned APP for the State.

17. Ms. Roy submitted that the witnesses to whom the oral

dying declaration was made by the deceased are all interested

witnesses. They are either relatives or the friends of the deceased.

There is no eye witness to the actual incident of assault. In any

case, participation of the Appellant No.2 is extremely doubtful. It

was quite surprising that the police did not feel it necessary to

record the dying declaration in writing, which could have led more

credibility to the prosecution story. There are indications that, when

the deceased was talking with his brother Sanjay, at that time, the

police were taking down something in writing. That writing is not

produced on record. Hence, it is a suspicious circumstance. Most of

the panchas to important panchanamas have not supported the

prosecution case and, therefore, recovery of motorcycle, knife and

clothes of the appellants is not free from doubt.

9 of 24 apeal-279-16

18. On the other hand, learned APP submitted that the dying

declaration was not recorded in writing because after the first day,

the deceased was not in a position to speak. The oral dying

declaration made to the witnesses is sufficiently proved beyond

reasonable doubt and conviction can be based on such evidence.

The recovery of motorcycle, knife and clothes of the appellants is

important because blood of 'AB' group was found on the knife and

the clothes of the appellants. The appellants' blood group was

different, therefore, it is a strong incriminating circumstance.

19. As far as, the question as to whether the appellants have

caused assault is concerned; this can be answered after examining

the evidence of the witnesses to whom the deceased had given his

oral dying declaration.

20. PW-11 Sanjay Rajput was the brother of the deceased

Dhananjay. He has stated that, on 23/03/2014, at about 3.45p.m.

he received a message on mobile phone from Dhananjay that two

persons had assaulted him. He immediately rushed to the liquor

shop. He was told that Dhananjay was admitted in CPR hospital.

10 of 24 apeal-279-16

He went there. He made inquiries with Dhananjay. At that time,

Dhananjay told him the entire story. He told this witness that the

appellant No.1 was sitting on a bench under the influence of

alcohol at about 3.15 p.m. Dhananjay was sweeping the floor. He

requested the appellant No.1 to lift his feet. The appellant No.1 got

annoyed. He abused Dhananjay and threatened him. He went out

of the shop. The appellant No.1 called his brother, Appellant No.2

at about 3.30p.m. Both the appellants then called Dhananjay

outside the shop. They assaulted him by fists and kick blows. The

Appellant No.1 caught hold of Dhananjay from behind and

Appellant No.2 assaulted Dhananjay by knife on left side of his

chest and on abdomen. The co-workers from the shop rushed to

save him, but the Appellants threatened them. Other people

gathered there and hence, both the appellants went away on their

motorcycle. After that, Dhananjay himself went to CPR hospital. On

hearing the story, this witness had gone to the police station and

had lodged his F.I.R. which is produced on record at Exh.27.

In the cross-examination, he could not tell the phone

number from which his brother Dhananjay had called him. He has 11 of 24 apeal-279-16

stated that, he had received the call from a shop. In the cross-

examination he has further stated that, he went to CPR hospital

where Dhananjay was admitted. The police came there. The talk

between this witness and Dhananjay took place in front of the

police. He has stated that, at that time, police were recording it for

15 to 20 minutes. The police did not take his signature in the

hospital on that writing.

We find the evidence of this witness to be reliable. He

was a natural witness. He had immediately rushed to the hospital.

According to PW-20 Dr. Mench, when Dhananjay was admitted to

hospital, he was conscious and was able to speak. Thus, there is no

reason to disbelieve the version of PW-11 that the deceased had

narrated him about the entire incident. Though, he says that police

were writing something, but it is not elaborated further. None of

the police witnesses are cross-examined on this aspect. After

hearing the story from Dhananjay, this witness had gone to the

police station and had lodged his F.I.R. The F.I.R. was lodged vide

C.R.No.73 of 2014 under sections 307, 323, 504 and 506 r/w. 34 of

IPC at Juna Rajwada police station, Kolhapur.

12 of 24 apeal-279-16

21. PW-13 Rekha Rajput was the sister of the deceased. She

had also rushed to the hospital and had made inquiries with the

deceased. He had narrated the same incident to her as was

narrated to PW-11. Her statement was recorded on the next day of

the incident. Besides this, nothing much is elicited in her cross-

examination.

22. PW-12 Pradeep Powar is another important witness. He

was the rickshaw driver who had taken the deceased to the

hospital. The deceased had immediately told him that the accused

had assaulted him. The deceased did not elaborate further. This

witness had taken the deceased to CPR hospital. The cross-

examination of this witness does not really show any significant

impact on the prosecution story. His evidence thus shows that the

deceased himself had engaged the rickshaw. He was in a position to

speak and he himself had requested this witness to take him to the

hospital.

In our opinion, evidence of these three witnesses i.e.

PW-11, 12 and 13 is sufficiently trustworthy to prove beyond 13 of 24 apeal-279-16

reasonable doubt that the appellants had caused assault on the

deceased and that the deceased had narrated the incident to these

witnesses. This fact is also corroborated by PW-15 Sangram More

and PW-16 Babaji Patade who have deposed about the first part of

the incident regarding quarrel in the shop. Besides this, finding of

blood of blood group 'AB' on the knife and clothes of the appellants

is also a strong incriminating circumstance. Thus, the prosecution

has proved beyond reasonable doubt that the appellants have

caused assault on the deceased.

23. The next question to be decided is, as to whether the

offence of murder as defined U/s.300 of IPC is made out or it is a

lesser offence. In this context, Ms. Roy made strong submissions.

She relied on many Judgments in support of her contention. She

submitted that, Dhananjay had survived from 23/03/2014 to

29/03/2014. He had undergone surgery on 23/03/2014 itself.

After that, septicemia developed and he died on 29/03/2014.

According to Ms. Roy it was incumbent on the prosecution to have

ruled out the possibility that septicemia could have developed

because of surgical wounds. The prosecution had to establish that 14 of 24 apeal-279-16

the septicemia was a direct result of the stab injuries caused by the

appellants and not because of surgical wounds. The prosecution has

failed to prove this fact. The prosecution had to prove that the

death was caused because of the direct act attributed to the

appellants. The prosecution has failed in this regard and hence,

offence U/s.300 of IPC is not made out. Ms.Roy referred to the

definition of 'murder' U/s.300 of IPC. The relevant portion reads

thus:

"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or ;

If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

xxxxx

xxxxx

24. Ms. Roy emphasized the words "if the act by which the

death is caused is done". According to her, the act of the accused

should have direct nexus with death. Therefore, if the death was

not the direct result of the injury caused by the accused, but it is 15 of 24 apeal-279-16

caused by some other extraneous reason; then the offence U/s.300

of IPC is not made out. The prosecution had to prove that

septicemia was caused only by the stab wounds and not by surgical

wounds. In support of her contention, she has relied on many

Judgments. It is not necessary to discuss every Judgment cited

before us by her. But a few judgments which are relied on by her in

this context are as follows:

i) Nga Ba Min Versus Emperor1. In that case the deceased was

injured on the head during dacoity. She was treated in the hospital

for two days and was discharged on her own request. Subsequently,

wounds which were treated became septic and she died due to

abscess on the brain on account of septicemia. The accused was

acquitted with the following observations:

"In order that a person should be guilty of culpable homicide it is indispensable that the death of deceased should be connected with the act of violence or other primary cause, not merely by a chain of causes and effect, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances."

1    AIR 1935 Rang 418
                                               16 of 24          apeal-279-16


ii)               Ganga Dass alias Godha Versus State of Haryana 2.

In that case the deceased had died after 18 days of the

occurrence due to septicemia and other complications. Doctor

had found only one injury on the head which was due to single

blow inflicted with an iron pipe and not with any sharp edged

weapon. The medical evidence showed that the injured

deceased was operated but some complications set in and he

died because of cardiac failure. Under these circumstances,

conviction of the accused U/s.302 of IPC was set aside.

iii) B. N. Kavatakar and another Versus State of

Karnataka 3. In that case the Medical Officer who conducted

autopsy on the dead body had opined that the death was a

result of septicemia secondary to injuries and peritonitis. The

deceased had died after five days of the occurrence. On

overall scrutiny of the facts and circumstances of the case

coupled with opinion of the Medical Officer, the Hon'ble

Supreme Court converted the conviction from section 302 of

IPC to Section 326 of IPC.

2     1994 Supp (1) Supreme Court Cases 534
3     1994 Supp (1) Supreme Court Cases 304
                                17 of 24                    apeal-279-16


iii)           State of Maharashtra Vs. Kallappa Devu Girmal

and another4. In this case, it was observed that, once it was

held that the deceased had died as a result of operation or

post operative complications, his death cannot be laid at the

doors of the accused and therefore, the offence of section 302

of IPC was altered to one under section 326 of IPC.

Significantly, in this case in para 8, there were observations

that the Medical officer Mr. Patil who had conducted the

postmortem examination, in clear terms had stated that the

deceased had not died because of his injuries. Both the

external and internal injuries, whether taken singly or

collectively, were not sufficient in the ordinary course of

nature to cause death. The injuries became septic and it was

the deepening and spreading of that condition which led to

the death of the victim. The septicemia could have been

caused because of the injuries or because of the cuts made by

the Surgeon. Dr. Patil was not in a position to say what could

have caused septicemia that killed the deceased. The benefit

of uncertainty was given to the accused in that case.

4   1988 MH.L.J. 147
                                       18 of 24              apeal-279-16

25. On the other hand, learned APP submitted that the

evidence of both Medical Officers taken together shows that the

offence of murder as defined U/s.300 of IPC is made out and there

is no scope to infer that any lesser offence was committed by the

appellants. She relied on the Judgment of the Hon'ble Supreme

Court in the case of Virsa Singh Vs. The State of Punjab 5. The

Hon'ble Supreme Court had observed that, important consideration

in such cases must be given, that is to say, whether the injury is on

the leg, or the arm or the stomach, how deep it penetrated,

whether any vital organs were cut and so forth. The Hon'ble

Supreme Court had further observed in this Judgment that, no one

has license to run around inflicting injuries that are sufficient to

cause death in the ordinary course of nature and claim that they

are not guilty of murder.

26. Learned APP also relied on another Judgment of the

Hon'ble Supreme Court in the case of State of Haryana Versus Pala

and others6. In this case, there were 7 injuries out of which two

were on the head. The cause of death was due to septicemia which

5 1958 AIR 465 6 (1996) 8 Supreme Court Cases 51 19 of 24 apeal-279-16

resulted as a result of head injury and was sufficient to cause death

in ordinary course of nature. The Doctor had stated that septicemia

is a direct result of head injury. It was observed that, when the

accused beat the deceased with deadly weapon on the head and

other parts of the body and death occurred as a result of the

injuries, it must be inferred that the attack on vital parts of the

body was done with an intention to cause death. Intention is locked

up in the heart of the assailant and the inference is to be drawn

from acts and attending circumstances.

27. We have carefully considered the ratio of all these

Judgments. In this background, now the evidence of two medical

officers needs to be discussed.

28. PW-20 Dr. Kaustubh Mench was the General Surgeon. He

had examined Dhananjay at about 5.00p.m. on the same day. He

had found following injuries:

"1. Stab wounds on abdomen and chest. 2 stab wounds on abdomen and one stab wound on chest.

2. Inter coastal drain and then he was taken for sonography at CPR, thereafter he was shifted in the operation theater.

20 of 24 apeal-279-16

3. He has undergone exploratory lapartomy proceed RS of Jejunal perforation, and repair of right diaphragmatic tear with lovage.

4. At the time of operation hemoperitonium secondary to ometal tear 3 x 3 cms 7 grade one liver over superior surface.

5. 4 cm right linear diaphragmatic tear, presence of full length jejunal perforation 2 ft from D-J flexure.

6. Rest normal."

He was conscious and oriented up to 11.35p.m. on

25/03/2014. Thereafter his condition started deteriorating

and he died on 29/03/2014.

29. PW-19 Dr. Gurunath Dalvi had conducted postmortem

examination. He found following external injuries:

1. A long middle surgical wound over center of abdomen 19 cm long with 16 sutures in insitu.

2. A sutured wound of 2 cm long or on left side abdomen located 8 cm away from mid line and 20 cm below left nipple with 1 suture in situe.

3. A sutured wound of 2 cms long located below umbilicus with 2 suture in situ.

4. A sutured wound of 3 on long located 3 cm away from mid line in 8th iner coastal space.

5. Right side abdominal drain incision (2 cm.) 21 of 24 apeal-279-16

On Internal examination following injuries are found:

1. Meaninges congested, Brain Parenchyma Oedematous, pale, and soft.

2. Right lung: right lung injured of lower lobe with hemo-thorax.

3. Left Lung: Pale, with lower lobe bluish discoloured, hard in consistency on 3rd section white frothy fluid oozes.

4. Pericardium: Free fluid approximately 30 ml. Turbid, suggestive of pericaditis.

5. Abdomen: Walls: Suturd wounds over abdominal walls as mentioned in column 17.

6. Peritoneum : Peritoneal cavity contain yellowish fluid approximately 100 ml. Suggestive of peritonitis.

7. Small and large intestines: partly loaded with fecal matters and gases.

According to him, the probable cause of death was "due

to septicemia in case of stab wounds over chest and abdomen".

In the cross-examination, he was asked the general

question to which he had answered that, for surgical wounds

septicemia might be possible, but no further questions were asked

as to whether in this case the surgical wounds had caused

septicemia. There is one stray and ambiguous statement in his

cross-examination which reads thus:

22 of 24 apeal-279-16

"It is not true to say that due to stab in abdominal

injury the patient died."

Though, learned counsel for the Appellants tried to take

advantage of this particular sentence, in our opinion, this sentence

does not really explain anything. It cannot be treated as an

admission of Doctor that the death was not caused due to stab

injuries.

30. The Judgments cited by both the sides have to be referred

to on the basis of facts in this particular case. The questions would

be whether the prosecution has proved that septicemia was a result

of stab wounds or was of a result of surgical wounds and whether

stab wounds would bring the offence within ambit of Section 300

of IPC. In this regard, opinion of PW-19 is extremely important. As

mentioned earlier, he has clearly stated that, in his opinion, the

cause of death was due to septicemia in case of stab wounds over

chest and abdomen. This opinion leaves no doubt that, according to

this doctor septicemia was directly relatable to the stab wounds.

The prosecution has discharged its burden to prove septicemia was 23 of 24 apeal-279-16

a direct result of stab wounds. There is no scope left for the defence

to contend that Doctor has not opined that the septicemia was not

developed because of surgical wounds.

31. The postmortem notes show that, right lung was injured

with hemo-thorax. This certainly was a direct result of stab injury.

32. The force by which the blow was given can be seen from

this medical evidence. P.W-20's deposition shows that, there was

Jejunal perforation, meaning small intestine was perforated. There

was repair of right diaphragmatic tear; meaning diaphragm was

torn. There was ometal tear. There was injury to liver and there was

injury to right lung. Thus, vital organs like liver, intestine, lung,

diaphragm were perforated and torn because of stab injuries. Most

importantly, PW-19 Dr. Gurunath Dalvi has in clear terms stated

that in ordinary course of nature injuries were sufficient to cause

death. The Appellant No.1 had held the deceased from behind and

Appellant No.2 had given three blows with knife one after other;

two were on the abdomen and one was on the chest. The act was

committed after making preparation as Appellant No.1 had called 24 of 24 apeal-279-16

the Appellant No.2 at the spot, who had come with a knife. The

Appellant No.1 had threatened the deceased. The Appellant No.1

held him from behind and then appellant No.2 gave blows. Thus,

the offence was committed with premeditation, preparation,

intention and knowledge. The injuries were sufficient in the

ordinary course of nature to cause death and they in fact caused

death. All the ingredients of Section 300 of IPC are made out.

Hence, in this case, it is not possible to bring down the offence to a

lesser degree.

33. In this view of the matter, we are not inclined to interfere

with the impugned Judgment and order.

34. Hence, the Appeal is dismissed.

35. However, it is clarified that the Appellants are entitled for

set off U/s.428 of Cr.p.c. which is not mentioned in the operative

part of the impugned Judgment and order.

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)