Bombay High Court
Arvind Sangitrao Deshmukh And Another vs State Of Mah., Thr. Pso Ps Ner, Yavatmal on 3 February, 2025
Author: M. S. Jawalkar
Bench: M. S. Jawalkar
2025:BHC-NAG:1045-DB
1 apeal-712-19j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 712 OF 2019
1. Arvind Sangitrao Deshmukh,
Aged about 56 years,
2. Pranit Arvind Deshmukh,
Aged about 28 years,
Both R/o. Gandhi Nagar, Amravati,
Tah. & Dist. Amravati. . . . APPELLANTS
// V E R S U S //
The State of Maharashtra through
Police Station Officer, Police Station, Ner. . . . RESPONDENT
---------------------------------------------------------------------------------------------------
Shri Nalin Majithia, Advocate (appointed) for appellant.
Shri Mayuri Deshmukh, APP for respondent/State.
---------------------------------------------------------------------------------------------------
CORAM :- SMT. M. S. JAWALKAR &
M. W. CHANDWANI, JJ.
RESERVED ON :- 10.12.2024
PRONOUNCED ON :- 03.02.2025
JUDGMENT (PER: M. W. CHANDWANI, J.):
-
Heard.
2. The appeal is an exception to the judgment and order of
conviction dated 28.08.2019 passed in Sessions Trial No. 84/2016 by
the learned Sessions Judge, Yavatmal, thereby convicting the appellants
for the offence punishable under Sections 302 r/w. 34 of the Indian
2 apeal-712-19j.odt
Penal Code (for short, "IPC") and sentenced the appellants to suffer
rigorous imprisonment for life and to pay a fine of Rs.10,000/- and
sentenced to suffer rigorous imprisonment for 7 years each and to pay
a fine of Rs.10,000/- under Section 307 r/w. 34 of the IPC.
3. The facts of the case can be put in a narrow compass as
under:-
i) Appellant- Arvind Deshmukh (accused no. 1) is the
brother-in-law, Pranit Deshmukh (accused no. 2) is the nephew
whereas, acquitted accused no. 3- Pushpa @ Bebitai Deshmukh is the
real sister of Vilasrao Deshmukh. There was a dispute between
Vilasrao Deshmukh and Bebitai over the agricultural land bearing Gat
No. 204. On 22.06.2016, in the morning at about 10:45 am, first
informant- Bandu Borkar, Ashok Bhimte, Vilasrao Deshmukh, Praful
Bhaise who is the son-in-law of Vilasrao Deshmukh along with
Shamrao Chaudhari, who is a Surveyor working at the office of Taluka
Inspector Land Record (TILR), Ner went to the said field. Both the
appellants and acquitted accused- Bebitai were present there. The
Surveyor was intending to inspect the agricultural land of Gat No. 204
for measurement but acquitted accused- Bebitai did not allow the
Surveyor to inspect the said land. On this issue, a quarrel took place
between Vilasrao Deshmukh accompanied by Praful Bhaise on one side
3 apeal-712-19j.odt
and both the appellants accompanied by Bebitai on the other.
Appellants- Arvind and Pranit took out spears from a row of Brinjal
plants. Appellant- Arvind attacked the left side of the person of
Vilasrao Deshmukh above the stomach and to the right side of his waist
by means of the spear. Whereas, appellant- Pranit attacked the right-
side of the abdomen of Praful and the left side of his back by means of
the spear. Both the appellants fled away from the spot on a motor-
cycle. First informant- Bandu Borkar, Sandip Chaudhari and Ashok
Bhimte boarded injured- Vilasrao Deshmukh and Praful Bhaise in the
Omni car and took them to Rural Hospital, Ner. Thereafter, they were
shifted to Criti Care Hospital, Yavatmal. The matter was reported by
first informant- Bandu Borkar, whereupon Crime No. 219/2016 for the
offence punishable under Section 307 r/w. 34 of IPC came to be
registered.
ii) The Police visited the spot and prepared spot panchnama.
Two wooden sticks were seized from the spot. The statement of Praful
Bhaise came to be recorded. The appellants and Bebitai were arrested.
On 26.06.2016, injured Praful Bhaise died and an offence under
Section 302 r/w. 34 of the IPC came to be added. After the
investigation, charge-sheet came to be filed and the accused persons
were put on trial. The prosecution, in all, examined 12 witnesses. The
learned Judge, by the impugned judgment, recorded conviction and
4 apeal-712-19j.odt
awarded the aforesaid sentence to the appellants, whereas Bebitai
came to be acquitted. Feeling aggrieved with the judgment of
conviction and the sentence, the present appeal came to be filed.
4. The prosecution has relied upon the version of Shamrao
Chaudhari (PW2), who is an employee of TILR, Ner, Vilasrao
Deshmukh (PW3), an injured, Bandu Borkar (PW7), an eye-witness
and ASI- Kishore Watkar (PW9), who recorded the dying-declaration of
deceased- Praful. The Trial Court relying on the version of these eye-
witnesses and the dying-declaration, convicted the appellants. Let us
re-appreciate the evidence of these witnesses at the hands of the Court.
5. According to Shamrao Chaudhari (PW2) who was serving
as a measurer in the office of the TILR, Ner, on 22.06.2016 at about
9:00 am, when he was inspecting the boundaries of the field of Gat No.
204, Bebitai obstructed him. Appellants- Arvind and Pranit also came
there. Appellant- Arvind took out two spears from a row of Brinjal
plants and gave one spear to appellant- Pranit. Appellant- Arvind
assaulted Vilasrao Deshmukh on his chest by means of the spear. When
deceased- Praful went to rescue Vilasrao Deshmukh, at that time
appellant- Pranit gave a blow of the spear on the person of deceased-
Praful and appellant- Arvind also gave a blow of the spear on the
person of deceased- Praful. Deceased- Praful fell down. This witness
5 apeal-712-19j.odt
and his companion got afraid and therefore, they ran away carrying
their articles. Appellants- Arvind and Pranit also fled on a motor-cycle.
Thereafter, with the help of the villagers, injured Praful and Vilasrao
Deshmukh were brought to the Rural Hospital, Ner.
6. Vilasrao Deshmukh (PW3), an injured, has testified that he
along with Bandu Borkar (PW7), Sandip Chaudhari, Ashok Bhimte,
Shamrao Chaudhari and deceased- Praful went to village Chikhali-
Kanhoba for measurement of the field of Gat No. 204. Bebitai said that
the field should not be measured and in case if it is measured, someone
will be killed. Both the appellants took out spears from a row of Bringal
plants. Appellant- Arvind gave a blow of the spear on his stomach after
which he put his hand on his chest and sat down. Appellant- Pranit
also gave a blow of the spear on the right side of his waist. When
deceased- Praful tried to make him stand by holding his left hand,
appellant- Arvind unleashed a spear blow on the left side of the
stomach of deceased- Praful. Appellant- Pranit also gave a blow of the
spear on the right side of the stomach of deceased- Praful. Bandu
Borkar and Sham Chaudhari carried them to the vehicle and from there
they were taken to Rural Hospital, Ner and thereafter, they were shifted
to Criti Care Hospital, Yavatmal. He was admitted for 17 days in the
ICU of the said hospital.
6 apeal-712-19j.odt
7. Bandu Borkar (PW7), informant, who lodged the First
Information Report has also testified that on the day of the incident, he
along with Ashok Bhimte, Sandip Chaudhari, Sham Chaudhari and
deceased- Praful went to the field of Gat No. 204 at Chikhili Kanhoba.
Both the appellants along with Bebitai were present in the field.
Bebitai asked them to go away from the field else she will kill them one
by one. Appellant- Arvind went near a row of Brinjal plants and from
there he brought spears. Appellant- Arvind asked them to go away or
else he will kill them one by one. They took turns and at that time,
appellant- Arvind gave a blow of the spare below the chest and above
the stomach of Vilasrao Deshmukh. Deceased- Praful came to pick
Vilasrao Deshmukh up. Appellant- Arvind gave a blow of the spear on
the left side of the stomach of deceased- Praful. This witness got
frightened and ran away. He called the villagers and the villagers came
on the road of the field where Vilasrao Deshmukh was lying on the
side. Appellants- Arvind and Pranit came there, sat on a motor-cycle
and fled the scene. With the help of the villagers, he boarded Vilasrao
Deshmukh and deceased- Praful in the vehicle and took them to Rural
Hospital, Ner. Thereafter, he went to the Police Station and lodged
complaint (Exh.128) and printed FIR (Exh.129) came to be prepared.
8. Kishor Watkar (PW9), an ASI, who recorded the dying-
declaration of deceased- Praful has deposed that on 22.06.2016, he
7 apeal-712-19j.odt
was present in Awdhutwadi Police Station. He received information
from Criti Care Hospital, Yavatmal regarding admission of injured
Praful therefore, he went to the hospital. Dr. Gowardhan Pendor
(PW10) was present in the Ward. This witness asked the Doctor about
the condition of the injured. The Doctor examined the injured, had a
conversation with him and replied that the injured is in a position to
give statement. Accordingly, he recorded the statement of injured-
Praful in the presence of the Medical Officer. Deceased- Praful has
informed this witness that on 22.06.2016, he along with his father-in-
law- Vilasrao Deshmukh and other relatives went to the field for
measurement. Both the appellants and Bebitai came in the field and
demanded that measurement should not be done. They charged on
their person and hurled abuses at them. Both the appellants gave
blows by means of iron spears, which were present in the field. Both
the appellants assaulted him on his back and below the rib. The dying-
declaration (Exh.160) came to be brought on record through this
witness.
9. Likewise, Dr. Govardhan Pendor (PW10) has also been
examined to prove his endorsement on the dying-declaration (Exh.160)
of deceased- Praful. This witness has deposed that on 22.06.2016, he
was in Criti Care Hospital, Yavatmal. Deceased- Praful was admitted in
the hospital. Kishor Watekar (PW9), a Police Head Constable from
8 apeal-712-19j.odt
Wadgaon Road Police Station, came in the hospital and met him and
told that he wants to record the statement of patient- Praful. He
examined patient- Praful. PHC- Watekar recorded the statement of
patient- Praful and at that time, he was standing at a distance. He
made an endorsement on Exh.160 that patient- Praful is fit to give a
statement.
10. This takes me to the version of Dr. Sahebrao Ingale (PW8),
who had examined injured Vilasrao Deshmukh (PW3) and deceased-
Praful at the first instance on their arrival at Rural Hospital, Ner and
noticed the following injuries on the person of Vilasrao Deshmukh
(PW3):-
"[1] Stab wound on left side of chest on the middle part size of injury : length 4
cm., depth 3 cm.
[2] Stab wound on the left side of sternum on the middle part, length 3 cm,
depth 3 cm.
[3] Stab wound on right iliac fossa right side of abdomen size of the injury :
length 4 cm, depth 3 cm."
Also, the following two injuries were present on the person
of deceased- Praful :-
"[1] Stab wound over right back side upper part size of injury : length 5 cm,
depth 3 cm.
[2] Stab wound right side of abdomen upper part, size of injury : length 4 cm,
depth 3 cm."
9 apeal-712-19j.odt
Further his version goes to show that he examined the
weapon seized in the crime i.e. spears Articles 'C' and 'D'. One spear
has a length of 25 cm and maximum breadth at middle part of the
spear is 3.5 cm, whereas size of the handle of that spear is 7.5 cm. The
second spear had a length of 29 cm including handle having breadth of
3.5 cm at the middle of the spear with handle of 7 cm. He informed
that the injuries on Vilasrao Deshmukh and deceased- Praful can be
caused by the spears Articles- 'C' & 'D'.
11. The prosecution has also examined Dr. Amol Yelne (PW5),
who conducted the post-mortem of deceased- Praful and found the
following internal and external injuries as under:-
External Injuries :-
"1] Incised wound loosely stitched over right side size 2 x 1 x 1 cm. and drain
was present.
2] Stitches given on abdomen vertically from zipistrnum to pubic symphysis
and staple with pin of size 30 x 15 cm.
3] Left side abdomen 8 cm below the coastal margin ovel in shape of size 5 x 3
cm.
4] Left illiac region incised wound stitched loosely of size 2 x 1 x 4.5 cm. i.e.
mainly for drain pipe.
5] Incised wound, just over left hypochondriam of seize 4 cm below to left
costal margin. This wound open in a left spleenic flexure. Margins are thickened.
6] Over back flank region, left side 4 cm. From spine transverse injury
pearsing to rib and lacerated injury to kidney left posterior. Size 4 x 1 x 11 cm."
10 apeal-712-19j.odt
Internal injuries :-
"1] In Pleura- plerual cavity contain reddish coloured fluid around 60 to 80 ml.
2] Peritoneum - Reddish coloured fluid persent 100 ml. Due to post operative
clump.
3] Small intestine - posterior lateral aspect of left side contusion was present.
Size 10 x 15 cm.
4] In large intestine - Stoma was made near the sleepnic flexture. Transverse
colostomy was done. Distal end of colon and proximal end of colon with both ends
makes a stoma and stitched over left side abdomen.
5] Liver - liver is enlarged petechial hemorrhagic spot present. Gall bladder
extemded.
6] Spleen- hard to firm in consistency and congested.
7] Kidney - left kidney bluish in colour, enlarged, lacerated through mid pole
laterally, margin blackish in colour, size was 2 x 1 cm. Right kidney pinkish in
colour"
12. Going ahead, we shall now consider the version of Arvind
Nandagawai (PW6), a panch to the memorandum panchnama
regarding recovery of motor-cycle and two iron spears, Articles- 'C' &
'D' at the instance of appellant no. 2- Pranit. He has deposed that
appellant no. 2 - Pranit was ready to show the weapon used in the
crime. Accordingly, a memorandum was prepared and appellant no. 2-
Pranit took them to Amba Nala area and took out two blades of the
spear from the said Nala with the help of a magnet which was seized
under panchnama (Exh.145).
13. Lastly, the prosecution examined Ajay Bhusari (PW12),
who conducted major part of the investigation along with Ganesh
11 apeal-712-19j.odt
Bhavsar (PW11), who registered the FIR and prepared the spot
panchnama as well seized spears Articles- 'C' & 'D' and wooden sticks.
14. Ajay Bhusari (PW12) has also testified about the
memorandum made by appellant- Pranit which was recorded as
Exh.144 and also recovery as well as seizure of the spears under
panchnama Exh. 145. The C.A. report (Exh.135) reveals that the full
pant of appellant- Arvind and the full pant of appellant- Pranit are
stained with blood.
15. Having discussed the depositions of material witnesses, let
us turn to the submissions made by of the learned counsel for the
appellants. It is contended on behalf of appellant no. 2- Pranit that, in
the evidence of Shamrao Chaudhari (PW2) and Vilasrao Deshmukh
(PW3) attribution of the assault by means of the spear to appellant no.
2- Pranit is nothing but an exaggeration. Even the FIR which has been
lodged by Bandu Borkar (PW7), does not attribute any assault by
appellant no. 2- Pranit. Rather, in his evidence also he did not whisper
about any blow of spear allegedly given by appellant no. 2- Pranit.
Therefore, according to him, evidence of Shamrao Chaudhari (PW2),
Vilasrao Deshmukh (PW3) is nothing but exaggerated fact and should
not be believed. After scrutinizing the evidence of Shamrao Chaudhari
(PW2) and Vilasrao Deshmukh (PW3), we are satisfied with the
12 apeal-712-19j.odt
submission of the learned counsel for the appellants that the versions
with regard to assault by means of the spear inflicted by appellant no.
2- Pranit is nothing but an omission which has been proved by the
defence through the evidence of Investigating Officer- Ajay Bhusari
(PW12). Even, the FIR which has been lodged at the first instance,
does not whisper about any blow of spear inflicted by appellant no. 2-
Pranit. Even the version of Bandu Borkar (PW7), an eye-witness, is
also silent with regard to assault by appellant no. 2- Pranit either on
Vilasrao Deshmukh (PW3) or deceased- Praful.
16. The learned APP for the State has drawn our attention to
the dying declaration (Exh.160), which has been allegedly made by
deceased- Praful to Kishor Watkar (PW9), a Police Officer. There is no
dispute that deceased- Praful received two injuries on his person. The
prosecution has also examined Dr. Govardhan Pendor (PW10), who
made endorsement on the dying declaration (Exh.160) regarding the
fitness of deceased- Praful to make a statement. Even perusal of the
dying-declaration goes to show that he stated to Kishor Watkar (PW9)
that the appellants charged on their person when they went on the spot
for measurement and by means of iron spears, assaulted deceased-
Praful on the middle part of his back and right side of the abdomen
and inflicted injury upon him while threatening to kill them. Thus,
deceased- Praful did not assign any specific role to any of the
13 apeal-712-19j.odt
appellants. What is deduced is that both of them were holding spears
in their hand and they were assaulting them. Thus, there are no
specific averments in the dying-declaration that appellant no. 2- Pranit
gave any blow on the person of deceased- Praful. Had appellant no. 2-
Pranit participated in the alleged incident by giving a blow either to
Vilasrao Deshmukh (PW3) or deceased- Praful, certainly the witnesses
including Vilasrao Deshmukh (PW3) would have stated to the Police
which is not the case here.
17. Considering the versions of the witnesses i.e Shamrao
Chaudhari (PW2), Vilasrao Deshmukh (PW3) and Bandu Borkar
(PW7), who were very well present on the spot, it can be observed that
Vilasrao Deshmukh (PW3) has never ever stated before the Police
about the assault by appellant no. 2- Pranit and they improved their
version during the trial. No specific role has been assigned by
deceased- Praful in his dying-declaration to appellant no. 2- Pranit
therefore, it cannot be said with conviction that appellant no. 2- Pranit
has also assaulted either deceased- Praful or Vilasrao Deshmukh
(PW3). This aspect has not been considered by the Trial Court. Thus,
there is a doubt about the alleged role played by appellant no. 2-
Pranit. The benefit of doubt goes in his favour.
14 apeal-712-19j.odt
18. Sofar as appellant- Arvind is concerned, the versions of
Shamrao Chaudhari (PW2), Vilasrao Deshmukh (PW3) and Bandu
Borkar (PW7) are consistent with regard to the spear blow given by
appellant no. 1- Arvind not only to Vilasrao Deshmukh (PW3) but also
to deceased- Praful. Their evidence is also corroborated by Dr.
Sahebrao Ingale (PW8), who immediately examined Vilasrao
Deshmukh (PW3) and deceased- Praful and even stitched the wounds
mentioned herein above. Considering the recovery of blood stains
clothes of appellant no. 1- Arvind, we have no doubt in our mind that it
is appellant no. 1- Arvind, who is the author of the injuries on the
person of Vilasrao Deshmukh (PW3) and deceased- Praful.
19. This takes me to the alternate submission of the learned
counsel for the appellants. According to him, even if appellant no. 1-
Arvind is the author of the injuries on the person of Vilasrao Deshmukh
(PW3) and deceased- Praful but the act of the appellants does not fall
within the preview of murder. According to him, intention of appellant
no. 1- Arvind was not to kill deceased- Praful and Vilasrao Deshmukh
(PW3). The assault which is attributed to appellant no. 1- Arvind is just
inflicted by him for the purpose of preventing measurement of the
disputed land. He further submitted that considering the nature of the
injuries and the fact that the spears which were sealed are readily
available in every field to protect the crop from wild animals itself goes
15 apeal-712-19j.odt
to show that there was no preparation by the appellants and there was
no premeditation by appellant no. 1- Arvind. He further submits that
the cause of death of deceased- Praful is not the injuries and he died
due to septicemia. According to him, four incise wounds were found on
the person of deceased- Praful by the Doctor while treating him out of
which two injuries were not on the vital part of the body. Deceased-
Praful suffered from septicemia and died as a result of negligence of
the Doctors, who did not take proper care of the deceased- Praful.
According to him, the death of Praful is a result of medical negligence
and therefore, the appellants cannot be convicted for the offence
punishable under Section 302 of the IPC.
20. It is a matter of record that deceased- Praful and Vilasrao
Deshmukh (PW3) have been examined by Dr. Sahebrao Ingale (PW8),
who has found two stab injuries on the person of deceased- Praful. One
stab wound on the right side of the back and second stab wound on
right side of the abdomen having length of 5 cm and 4 cm respectively
and depth of 3 cm. Whereas, the post-mortem report which has been
brought on record through Dr. Amol Yelne (PW5), states six injuries on
the person of deceased- Praful. It appears that four injuries that have
been stitched, were caused during medical treatment either due to
insertion of drain pipe or for creation of stoma. As per post-mortem
report, cause of death of deceased- Praful Bhise is septicemia. Dr. Amol
16 apeal-712-19j.odt
Yelne (PW5) in his evidence opined that septicemia is a critical and
severe type of infection. It is further revealed from his cross-
examination that this may be possible due to long standing and
continuous use of steroids. If any bacteria or infection enters the body
through any source and is not treated properly, it may lead to
septicemia. He has also admitted that since no injury report, medical
papers and death summery was provided to him, he could not give any
opinion whether the patient was properly treated or not. He further
submitted that if these papers were supplied to him, it would have
been helpful to give an opinion regarding the exact cause of death of
deceased- Praful.
21. This takes me to the injury report of deceased- Praful.
Perusal of the injuries goes to show that the depth of the injury is 3 cm,
whereas seizure report of the iron spear shows that it has a length of
29 cm and has a blade of 22 cm with a pointed tip. It is a matter of
common parlance that if somebody wants to kill a person by means of
an iron spear then obviously, he would apply force in such a way that
at least a deep injury of more than 9-10 cms can easily be caused by
piecering the spear into the body of the victim. Here, in this case the
injuries not only on the person of deceased- Praful but also on the
person of Vilasrao Deshmukh (PW3) have a depth of 3 cm which
measured about 1 inch. Moreover, the injury on the person of
17 apeal-712-19j.odt
deceased- Praful was not even inflicted on the vital part of the body.
Considering the number, nature and depth of the injuries, coupled with
the fact that it has not been inflicted on the vital part of the body, we
find substance in the argument of the learned counsel for the
appellants that the appellants had no intention to cause death of
deceased- Praful and Vilasrao Deshmukh (PW3). This also fortified by
the version of Shamrao Chaudhari (PW2), Vilasrao Deshmukh (PW3)
that after giving two injuries on the person of deceased- Praful, the
appellants ran away from the spot.
22. Considering these aspects coupled with the fact that when
foreign surgical articles were pierced in his body during the treatment,
the possibility of septicemia due to medical negligence cannot be ruled
out. Therefore, in these set of facts, we hold that appellant no. 1-
Arvind is guilty for the offence under Section 304, Part-II and Section
326 of the IPC. Hence, we proceed to pass the following order:-
i) The appeal is partly allowed.
ii) The appeal of appellant no. 2- Pranit Arvind Deshmukh is
allowed and his conviction for the offence punishable under Sections
302 and 307 r/w. 34 of the IPC is set aside. He is acquitted of the
offence punishable under Sections 302 and 307 r/w. 34 of the IPC.
18 apeal-712-19j.odt
iii) The appeal of appellant no. 1- Arvind Sangitrao Deshmukh
is partly allowed and his conviction is altered from the offence
punishable under Section 302 of the IPC to Section 304, Part-I and
Section 326 of the IPC.
iv) Appellant- Arvind Sangitrao Deshmukh shall suffer
rigorous imprisonment for 10 years for the offence punishable under
Section 304, Part-I of the IPC and rigorous imprisonment for 7 years for
the offence punishable under Section 326 of the IPC and to pay fine as
imposed by the Trial Court.
v) Both the sentences shall run concurrently.
(M. W. CHANDWANI, J.) (SMT. M. S. JAWALKAR, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 03/02/2025 18:01:48
