Bombay High Court
Bharat Bhagwan Choudhari And Ors vs State Of Maha on 9 August, 2024
2024:BHC-AUG:17477
CriAppeal-117-2004
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 117 OF 2004
1. Bharat Bhagwan Choudhari
Age 22 years, Occ. Labourer,
R/o. Tuljapur, Tq. Tuljapur,
District Osmanabad.
2. Sachin Krushnath Kadam,
Age 22 years, Occ. Labourer,
R/o Tuljapur, Tq. Tuljapur,
District Osmanabad. ... Appellants
[Ori. Accused Nos. 1 & 2]
Versus
The State of Maharashtra ... Respondent
.....
Mr. S. G. Ladda, Advocate for the Appellant (through video
conference)
Mr. N. D. Batule, APP for the Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 29.07.2024
Pronounced on : 09.08.2024
JUDGMENT :
1. In this appeal, there is challenge to judgment and order of
conviction recorded by Additional Sessions Judge, Osmanabad in
Sessions Case No. 95 of 1999 recording guilt of appellant for offence
under Section 304 Part II of the Indian Penal Code [IPC] on
10.02.2004.
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FACTS IN BRIEF, LEADING TO TRIAL
2. Occurrence was noted on the statement of deceased Bhavani
Shamrao Kadam, who, while in hospital, reported that on 21.03.1999,
around 6.00 p.m., his daughter Nilam was sitting in the courtyard on
a cot. A boy named Sachin Krishnath Kadam came and abused his
daughter and therefore he was questioned by deceased, upon which,
Bharat Bhagwan Choudhari and Sachin Krishnath Kadam counter-
questioned him for questioning them and both gave kicks and fist
blows on leg, neck, chest and abdomen causing blunt trauma. When
his wife came to his rescue, she too was beaten by both. When he fell
down, wife of deceased, Shashikant Gorse and Fulchand Shirsat
(PW2) initially took him to police station and from there to hospital.
There was loss of control over his limbs.
3. On above report, Tuljapur police registered crime bearing no.
42 of 1999 for offences under Sections 325, 323, 504 r/w 34 of IPC.
During investigation, injured Bhavani died on 05.04.1999 and hence,
investigation was handed to superior officer i.e. PSI Wagh (PW6) and
Section 302 IPC was made applied. After conclusion of investigation,
accused were chargesheeted, charge was framed for offence under
Section 302 r/w 34 of IPC and they were tried by learned Additional
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Sessions Judge, Osmanabad vide Sessions Case No. 95 of 1999. In
trial court, prosecution adduced evidence of in all 7 witnesses and
took recourse to documentary evidence, medical papers, postmortem
report and various panchanamas. On appreciating and analyzing the
evidence, learned trial Judge acquitted both appellants from charge
under Section 302 of IPC, however, held offence under Section 304
Part II to be proved and on recording guilt for the said offence,
sentenced both appellants to suffer 7 years imprisonment.
It is the above judgment dated 10.02.2004, which is assailed
herein by filing instant appeal.
BRIEF ACCOUNT OF PROSECUTION EVIDENCE IN TRIAL COURT
4. The role and status and the sum and substance of the evidence
of 7 witnesses examined by prosecution in support of its case is as
under :
PW1 Kusum, wife of deceased, deposed about occurrence taking
place at 6 p.m.. On hearing abuses, her husband went out of the
house and questioned accused for abusing their daughter.
According to her, both accused lifted her husband and dashed
him on ground. They gave fist blows and kicks on back, neck
and abdomen. When she tried to rescue, after catching hold of
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her hair, she too was beaten. She, Shashikant and Fulchand
brought her husband in auto rickshaw to police station and
from there to Rural Hospital, Tuljapur, where her husband's
statement was recorded and he was further referred to Civil
Hospital Solapur. Her husband died after 14 days.
PW2 Fulchand deposed that his hut is 150 feet away from the hut of
deceased Bhavani. Incident took place at 6.00 p.m. On hearing
quarrel, he went there and saw accused giving fist blows and
kicks on the face, neck, abdomen, chest and back of Bhavani.
He gave call to Shashikant and they both separated the quarrel.
Bhavani was lying in front of his hut and he was taken to police
station and thereafter referred to Rural Hospital, Tuljapur.
PW3 Dr. Meena Godbole, Medical Officer at V.M. Medical College
and General Hospital, Solapur, who conducted postmortem on
dead body of Bhavani on 05.04.1999, gave opinion that
probable cause of death of Bhavani was due to injury to spinal
cord. She identified postmortem report and death certificate
Exhibits 23 and 24 respectively.
PW4 Uttam, pancha to spot panchanama, did not support
prosecution.
PW5 Police Head Constable Waghmode, who recorded statement of
deceased at Rural Hospital, Tuljapur and on the strength of it,
registered crime bearing no. 42 of 1999.
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PW6 PSI Wagh, who conducted investigation and chargesheeted
accused.
PW7 Dr. Sujata Patil, who examined Bhavani at Rural Hospital
Tuljapur, deposed that police constable recorded statement in
her presence. She thereafter referred the patient to Civil
Hospital, Solapur for further treatment.
SUBMISSIONS
On behalf of the appellants :
5. Questioning the conviction, learned counsel for the appellants
appraised this Court about prosecution version and also took this
Court through the evidence of PW1 wife of deceased and PW2
neighbour. According to him, there are simplicitor allegations of
giving kicks and fist blows. He pointed out that autopsy doctor has
candidly, in examination-in-chief itself, deposed about not coming
across any external injury and even there are no major findings on
conducting internal examination. He took this court through the
evidence of autopsy doctor and cross faced by her and also invited
attention of the Court to the findings recorded by her in column no.
20 and specifically submitted that deceased was suffering from
pneumonitis and would submit that death having taken place after 14
days of occurrence, by no stretch of imagination, case can be brought
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even under culpable homicide not amounting to murder. That, it was
a sudden incidence and there was no ill intention or motive.
6. He further submitted that probable cause of death is mere
opinion evidence. That, here, in the instant case, there are other
possibilities for deceased dying. Therefore, at the first count, when
death had taken place after 14 days of the occurrence, according to
him, framing charge under Section 302 IPC was itself unwarranted.
According to him, it has not been further demonstrated that death
was outcome of fist and kick blows allegedly given on the day of
occurrence.
7. He further pointed out that prosecution has not bothered to
collect and gather very hospital treatment papers. That, except
evidence of two medical experts, there is nothing to show that death
was due to alleged assault by appellants only and not otherwise. He
emphasized that even otherwise, there are allegations of giving kicks
and fist blows which, according to him, at the most would cause blunt
trauma but surely not death. He submitted that, death is also possible
because of pneumonitis of which deceased was diagnosed of as
suffering from. That, there is also possibilities of death due to
improper medical treatment and therefore, he criticized the findings
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reached at by trial court regarding charge under Section 304 part II of
IPC to be established.
8. It is his further submission that in alternative, the case at the
most would attract charge of Section 323 IPC and it would not travel
beyond it under any circumstances. Resultantly, he prays to interfere
and seeks reliance on ruling of State by Vidyaranyapuram Police
Station, Mysore City v. Raju and others reported in 2006 SCC OnLine
Kar 541 ; Rajesh Anantram Thakur v. State of Maharashtra 1992 SCC
OnLine Bom 300 ; Ramnath s/o Mahadu Manal 1999 SCC OnLine
Bom 920 and K. Ramachandra Reddy and another v. Public
Prosecutor (1976) 3 SCC 618.
On behalf of the State :
9. In answer to above, learned APP submitted that, there is direct
eye witness account of PW1 Kusum and PW2 Fulchand. That, PW2
Fulchand is an independent witness. They both are lending support to
each other. Learned APP pointed out that there is injury to the spinal
cord and there are notings to that extent in the PM report itself. He
also relied on the testimony of autopsy doctor. He further submitted
that PW7 Dr. Sujata Patil, another doctor who examined deceased
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Bhavani, had noted the history of assault on neck and complaint of
inability to move limbs. Therefore, there was immediate medical
examination. Impact of heavy beating was obvious. According to him,
considering the medical evidence and autopsy doctor's opinion,
learned trial court committed no error in recording guilt for
commission of offence under Section 304 part II and so he prays to
dismiss the appeal for want of merits.
ANALYSIS OF EVIDENCE
10. Evidence of PW1 Kusum and PW2 Fulchand, according to
prosecution, is crucial, it being direct eye witness account. On the
point of occurrence, it would be appropriate to reproduce relevant
substantive evidence of these two witnesses.
11. PW1 Kusum in para 2 of her examination-in-chief at Exhibit 20
has deposed as under :
"2. The incident took place four years back at about 6
p.m. I was cooking the food in the hut. Nilam was
sweeping the hut. Both the accused were standing near
the doors of my hut. They began to give abuses to Nilam.
At that time my husband returned from work and he was
removing the clothes which were hung on the rope. On
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hearing the abuses of accused my husband came out of the
hut. My husband asked both of them as to why they were
giving abuses. At that time both the accused lifted my
husband and threw him on the ground. They also gave fist
blows and kicks to my husband, on his back, neck and
abdomen. I tried to rescue my husband. At that time both
the accused caught hold of my hairs and also began to
beat me. Shashikant and Fulchand came at that time, and
asked the accused to quit. Thereafter, the accused left the
spot. My husband was lying on the ground without
making any movements ......."
12. PW2 neighbour Fulchand in para 2 of his examination-in-chief,
deposed regarding the occurrence as under:
"2. The incident took place about four years back at
about 6 pm in front of the house of Bhavani. I was in my
house at that time. I heard the loud voice of quarrel near
the house of Bhavani Kadam and therefore went there. I
saw both the accused giving fist blows and kicks to
Bhavani on his face, neck, abdomen and chest. I also saw
both of them giving fist blows and kicks on his back. The
house of Shashikant Borse is at a distance of about 200
foot from the hut of Bhavani. ........"
13. In cross of PW1 Kusum, it is brought that there is gutter near
the hut and she volunteered that there is bridge over it. She denied
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that there were centring implements lying there along with stones,
sand and soil for construction of road and bridge. She admitted that
while Nilam was sweeping, as the dust went on accused no.2 Sachin,
some exchange of words took place between Nilam and him. In para
5 omissions are brought about accused Bharat also giving abuses to
Nilam and husband of this witness; that her husband returned from
work and was removing clothes; that, both accused lifted her husband
and threw him on the ground; about she being kept out when
statement of her husband was recorded at Rural Hospital, Tuljapur.
Rest is all denial.
14. In cross of PW2, only admission is brought that when they
reached the spot, Bhavani was lying on the bridge and that,
Shashikant, he himself and wife of Bhavani lifted him and took him to
rickshaw, they first went to police station and thereafter to Rural
Hospital. Admission is brought about availability of gutter near the
hut of Bhavani and he volunteered that there is slab over it. He
admitted about sand and stones lying on the southern side of hut of
Bhavani meant for construction of gutter. Rest is all denial.
15. Therefore, testimonies of PW1 and PW2 have virtually
remained undisturbed and unchallenged as regards initial abuse by
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accused Sachin to daughter of deceased and then second accused
joining him when questioned by deceased. There is practically and
virtually no denial about the incident taking place that evening in
which both accused gave kicks and fist blows to deceased Bhavani
and he fell down. Though, wife in substantive evidence stated that
accused persons lifted her husband and flung him on the ground, it is
shown to be an omission and is consequently an improvisation. But as
stated above, act of giving kicks and fist blows on chest, neck
abdomen of deceased have not been shaken.
16. It further appears that PW5 PHC Waghmode reached Rural
Hospital Tuljapur and in presence of PW7 Dr. Sujata Patil, a Medical
Officer, recorded statement of deceased Bhavani himself i.e. in the
same evening of 21.03.1999. PW7 Dr. Sujata Patil has also deposed
that patient himself narrated history of assault on neck and he was
complaining of inability to move his upper and lower limbs.
Consequently there is material suggesting that immediately after
occurrence of beating, Bhavani was examined by medical expert and
even his statement was recorded which is at Exhibit 28. Therefore
there is prompt reporting of assault.
CriAppeal-117-2004
17. Here, deceased Bhavani expired on 05.04.1999 as is evident
from inquest and postmortem Exhibits 24 and 23 respectively.
Therefore, death has taken place almost two weeks after the
occurrence i.e. while he was being treated at the Hospital at Solapur.
18. Now it is to be seen on re-appreciation as to whether beating at
the hands of appellants was the cause of death of Bhavani. For this,
evidence of autopsy doctor, findings and notings in postmortem,
which assume importance, are required to be carefully analyzed.
19. Autopsy doctor has, in her substantive evidence at Exhibit 22
itself, deposed that there were no external injuries. Similarly, on
internal examination she found there to be no fracture to skull and
brain. Brain to be oedematous and congested. Thorax and lungs were
oedematous. All visceral organs to be congested. She further testified
in para 3 as under :
"3. In examination of the spinal cord there is no
evidence of extra vasation in neck alongwith vertebral
column anteriorly and posteriorly at the level of C5-C6
there is extra vasation in soft tissue. There was evidence of
fracture with thrombosis of left vertebral artery."
CriAppeal-117-2004
In the opinion of doctor, probable cause of death of Bhavani
was "injury to spinal cord". She further deposed that she and doctor
Keoliya both signed autopsy report. That, the injury to spinal cord is
sufficient in the ordinary course of nature to cause death of a person.
That, the injury to spinal cord narrated by her is possible due to fist
blows and kicks. That, injury to spinal cord may result into loss of
power in upper and lower limbs. That, a person having injury to
spinal cord at the level of C5 and C6 can remain conscious and give
verbal statement.
In trial court, while under cross, autopsy doctor answered as
follows :
"6. It is true that patchy fibrosis to upper lobe is
possible due to old lung diseases like tuberculosis. It is
true that there was evidence of basal pneumonitis. I can
not say whether treatment was taken over pneumonitis or
tuberculosis by the deceased. The dead tissues were found
in the kidney and I have mentioned about it in para 21 of
my report. I can not say the reason as to why necrotic
areas are formed. It is not true to say that heart and
kidney of deceased Bhavani were totally affected. It is true
that both lungs were affected. It is not true to say that
heart of deceased Bhavani was not functioning properly. It
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is not true to say that there was evidence showing that the
deceased must have died due to natural death due to old
diseases. It is not true to say that the injury to the spinal
cord mentioned by me is possible due to fall in the gutter
from the height of 3 to 4 feet. It is not true to say that
injuries to spinal cord narrated by me is not possible due
to kick blow. It is not true to say that the opinion given by
me as to the cause of death of Bhavani is incorrect."
20. Above discussed doctor's evidence shows that there was injury
to spinal cord with thrombosis and even deceased was suffering from
pneumonitis.
21. Here, both the appellants are convicted for offence under
Section 304 of IPC which reads as under :
"304. Punishment for culpable homicide not amounting to
murder.- Whoever commits culpable homicide not
amounting to murder, shall be punished with
imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death or of
causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a
term which may extend to ten years, or with fine, or with
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both, if the act is done with the knowledge that it is likely
to cause death, but without any intention to cause death,
or to cause such bodily injury as is likely to cause death."
22. What is deuced here from the testimony of PW1 and PW2 is
that there was initial abuse by accused no.2 Sachin to daughter of
deceased. Evidence of PW1 wife of deceased shows that at such point
of time, deceased was inside the house and on hearing abuses, he
went out of the house. Thereafter, he questioned accused Sachin for
abuses. Accused Sachin allegedly counter-questioned him and
thereafter accused no.1 Bharat, who was standing nearby, and
accused no.2 Sachin, they both allegedly rushed on the person of
deceased and started giving him kicks and fist blows.
23. Deceased in his statement in the hospital stated that he was
given kicks and fist blows on chest, neck and abdomen. He further
reported that accused also assaulted his wife PW1 who came to his
rescue. Thereafter, he has stated that he fell down and was taken by
his wife, PW2 and one Shashikant, initially to police station and from
there to hospital. In the report also, he has stated that he had lost
movement/senses of the limbs i.e. hands and legs. Even such
complaint is demonstrated to be made to PW7 Dr. Sujata Patil when
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she examined him at Rural Hospital, Tuljapur. Therefore, there was
complaint of loss of senses and movement to the upper extremities
and lower extremities.
24. Here, firstly, it is not getting clear whether only because of
kicks and fist blows, deceased fell down, and from what height, and
landed on which surface. Defence has attempted to bring on evidence
that there were stones, sand and construction material lying there.
But neither PW1 nor PW2 spoke about deceased falling on stones or
such construction material. However, one thing is clear that deceased
fell down after beating.
25. What can be culled out from above discussion is that, incident
had taken place all of a sudden on petty count of dust falling on
accused no.2 Sachin. After abuse by this accused to daughter of
deceased, deceased came at the scene of occurrence and on he
questioning accused, both accused showered kicks and fist blows.
Therefore there is use of bare hands, however, medical experts
confirm fracture to vertebra with thrombosis. Though there are no
medical treatment papers, it is to be noted that immediately after the
occurrence, deceased had complained of sensory loss to upper and
lower extremities and he thereby complained of loss of movement. As
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there is fracture, it is a grievous injury. Therefore, in the considered
opinion of this Court, taking into consideration the mode and manner
of beating i.e. by fist blows and kicks, and further fall of deceased in
the occurrence, offence of causing grievous injury definitely gets
attracted. Mere opinion of doctor that injury was sufficient in the
ordinary course of nature to cause death, cannot be considered in
isolation, more particularly when deceased was alive and being
treated for almost a fortnight. Taking such circumstances into
consideration, offence of Section 325 of IPC gets established.
26. Perused the impugned judgment. Learned trial Judge has failed
to consider and appreciate that there are mere allegations of kicks
and fist blows and death has taken place after 14 days in hospital
while undergoing treatment. Therefore, in the considered opinion of
this Court, the findings recorded regarding offence of Section 304
Part II are not appropriate, rather it is a case of grievous injury.
Hence, I proceed to pass the following order:
ORDER
I. The appeal is hereby partly allowed.
II. The conviction awarded to the appellants i.e. appellant no.1
Bharat Bhagwan Choudhari and appellant no. 2 Sachin Krushnath
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Kadam, by learned Additional Sessions Judge, Osmanabad in Sessions
Case No.95 of 1999 under Section 304 Part II of IPC stands quashed
and set aside.
III. Instead, both the accused i.e. appellant no.1 Bharat Bhagwan
Choudhari and appellant no. 2 Sachin Krushnath Kadam are
convicted for offence punishable under Section 325 of IPC and are
hereby sentenced to suffer rigorous imprisonment for three (03) years
and to pay fine of Rs.15,000/- (Rupees Fifteen Thousand only) each,
in default to suffer rigorous imprisonment for six (06) months.
IV. Appeal is accordingly disposed of.
[ABHAY S. WAGHWASE, J.]
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