Bombay High Court
Ankush Namdeo Thore vs The State Of Maharashtra on 10 April, 2013
Author: Naresh H. Patil
Bench: Naresh H. Patil, A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.9 OF 2000
1) Ankush Namdeo Thore,
Aged 33 years, Occu:Nil,
2) Jagannath Namdeo Thore,
Aged 29 years, Occu:Nil,
3) Rameshwar Bhimrao Thore,
Aged 29 years, Occu:Nil,
4) Mokinda Gyandeo Thore,
Aged 43 years, Occu:Nil,
5) Limba Bhimrao Thore,
Aged 41 years, Occu:Nil,
All R/o- Deonandra, Tq-Pathri,
Dist-Parbhani.
...APPELLANTS
VERSUS
1) The State of Maharashtra,
2) Smt. Saraswatibai w/o Mahadeo
Thore, Age about 40 years,
Occu:Agriculture, R/o-Deonandra,
Tq-Pathri, Dist-Parbhani.
...RESPONDENTS
...
Shri.H.F. Pawar Advocate holding for Shri.A.H.
Kapadia Advocate for Appellants.
Shri.V.H. Dighe, A.P.P. for Respondent No.1.
...
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CORAM: NARESH H. PATIL AND
A.V. NIRGUDE, JJ.
JUDGMENT RESERVED ON : 2ND APRIL, 2013 JUDGMENT PRONOUNCED ON : 10TH APRIL, 2013 JUDGMENT [PER NARESH H. PATIL, J.] :
1. The Appellants are life convicts. The charge was framed against six accused persons.
During the pendency of the Appeal, original Appellant No.1/accused No.1 - Namdeo Kerba Thore died, therefore the Appeal abated against him.
2. The prosecution case in brief is that deceased Mahadeo Sitaram Thore and the Appellants who are related inter-se, were residing in the village Deo-Nandra, Tq-Pathri, Dist-Parbhani. They own agricultural lands adjacent to each others.
There was boundary dispute between deceased Mahadeo and the accused persons due to that they use to quarrel. Prior to the incident in question, a complaint was lodged by the deceased Mahadeo ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 3 against the accused persons in Pathri Police Station for an offence punishable under Section 324 of the Indian Penal Code. The Police had filed charge-sheet against the Appellants/accused, under Section 324 of the Indian Penal Code.
3. On 10th October 1993, deceased Mahadeo Sitaram Thore accompanied by his mother
-Dhrupatabai and daughter -Anuradha, PW-2 and PW-5, was proceeding to his agricultural land at about 11.00 a.m. When they were about to reach their agricultural field, the accused assaulted Mahadeo. The Appellants/accused were armed with weapons like axe, sticks. Due to assault by axe, left leg below knee of deceased Mahadeo got amputated. The deceased suffered other serious incised injuries. PW-5 Anuradha, daughter of deceased was aged about 11 to 12 years at that time. She rushed to police station, which was at distance of 2 to 3 k.m. She informed the police about the assault. The A.S.I. Rupchand Saldewar ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 4 along-with two constables and PW-5 Anuradha, reached the spot by engaging private vehicle. The A.S.I. found that Mahadeo was lying in agricultural field, having part of his left leg almost amputated. The bullock cart was arranged and deceased Mahadeo was shifted in the said cart.
Thereafter Mahadeo was taken in a hired vehicle to Pathri and was admitted in the hospital at Pathri.
Dr. Shekoji Pandit, PW-8 was the medical officer attached to Primary Health Center, Pathri. He examined Mahadeo, and Dhrupatabai, PW-5, had received three injuries on her person. Dr. Pandit opined that condition of deceased Mahadeo was serious. For better medical care, Mahadeo was shifted to Parbhani. Injury certificates were issued in respect of Mahadeo and Dhrupatabai, which are at Exhibit 30 and 31.
4. Deceased Mahadeo was admitted in Civil Hospital, Parbhani. Dr. Purushottam Patodkar, PW-11 examined the patient. Considering heavy loss ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 5 of blood, Doctor advised for transfusion of blood.
Awal-Karkun working in Tahsil office, Parbhani, namely, Parpalli Kankaiya, PW-9 reached the hospital and requested Dr. Patodkar to examine the patient for certifying as to whether the patient was conscious to make a statement. In presence of Dr. Patodkar, Awal-Karkun recorded statement of Mahadeo. Doctor made endorsement on the said statement that the patient was conscious. The endorsement of Dr. Patodkar is at Exhibit 33/A. On the report made by Dhrupatabai, mother of the deceased, crime was registered at Crime No.153 of 1993, under Section 147, 148, 149 and 307 of the Indian Penal Code. Mahadeo succumbed to the injuries at about 10.30 p.m. on the same day i.e. on 10th October, 1993. According to the post-
mortem report, Mahadeo died due to "cardio-
reoperetive failure due to Hemorrhagic shock, due to amputation of the left leg with multiple injuries."
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5. The police started investigation, memorandum statement was recorded. In pursuant to the statement made by the accused, weapons were recovered and panchnamas were drawn in respect of discovery of weapons. The police recorded statements of witnesses, including statements of PW-2 and PW-5, mother and daughter of the deceased, who were eye witnesses to the incident.
Seized articles like weapons and clothes were sent for getting report of chemical analyzer. After collecting the entire evidence, medical papers, Chemical Analyzer's report, Post-mortem report, charge-sheet came to be filed.
6. The prosecution case is mainly based on dying declaration as Dhrupatabai, PW-2, mother of the deceased and Anuradha, PW-5, daughter of the deceased did not support the prosecution and were declared hostile.
7. According to PW-2 Dhrupatabai Sitaram ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 7 Thore, there was dispute with the accused on account of agricultural land. They were adjoining land owners. She admits that on the day of incident, her son had been to the agricultural field for carrying out usual agricultural work.
Deceased Mahadeo was the only son of Dhrupatabai.
Her husband died when Mahadeo was three years old.
8. The other witness PW-5 Anuradha Mahadeo Thore, was about 11 to 12 years old when the incident took place. She deposed before the Court that she lost her father six years ago. She was not aware as to how her father died.
. In cross-examination of this witness made on behalf of the accused, the witness stated that she had been to meet her father in the hospital.
She noticed that her father was not in a position to speak, he was unconscious. She further added to the benefit of the defence that till the last breath her father was unconscious.
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9. PW-6 Dnyanoba Jyotiba Rasal and PW-7 Rohidas Raosaheb Dukre, who were panchas of memorandum statement, were declared hostile.
10. PW-1 Dr. Arvind Khodve was working as medical officer in the civil hospital, Parbhani.
He carried out post-mortem on the body of the deceased. He noticed 8 injuries on the dead body of the deceased when the same was brought on 11th October, 1993. He noted the injuries, as under:
"1. On the left side upper 2/3rd leg is present. Lower 1/3rd part of the leg is not present. Wound of amputation consists of exposed muscles, bones arteries and veins. The colour of the amputation wound is red.
2. Incised wound - left lower leg upper 1/3rd - 3" X 3" X 1" vertical.::: Downloaded on - 09/06/2013 19:49:41 :::
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3. Incised wound - left lower leg upper 1/4th - 1" X 1" X 1/4"
vertical.
4. Incised wound 1 1/2 of the injury no.3 above i.e. upper 1/4" X 1.5" X 1/2" X 1/2" vertical.
5. Incised wound - 1/2" above injury no.4 i.e. upper 1/2 portion - 2" X 1/2" X 1/2" oblique.
6. Right lower leg - contused lacerated wound - 5" X 4" X 2" on the right lower leg.
7. Incised wound - 2" X 1/4" X 1/4"
. 1/2" below the right ankle joint, medially oblique.
8. Incised wound - 2" X 1/2" bone deep oblique on the skull i.e. left parietal region of the skull.
. According to the medical officer, injury No.1 was singularly sufficient to cause death in ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 10 the ordinary circumstances. He opined that in the present case, the death was caused on account of cumulative effect of all the incised wounds.
According to the medical officer if the brain is not functioning then the dying declaration cannot be recorded.
11. PW-8 Dr. Shekoji Pandit was working as medical officer at Primary Health Center, Pathri.
He has noticed the injuries on the person of deceased and PW-2 Dhrupatabai. The injuries on the person of Dhrupatabai were recorded by the medical officer, as under:
"1. Contusion over left forearm size 6 X 2 c.m. caused by hard and blunt object and the nature of injury was simple. Age of the injury was within 2 to 3 days.
2. Contusion over the left infra scapular region - size - 3 X 3 c.m. It was caused by hard and blunt ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 11 object and age of injury was within 2 to 3 days. Injury was simple in nature.
3. Contusion over right thigh - size 3 X 3 c.m. caused by hard and blunt object. The age of the injury was within 2 to 3 days and injury was simple in nature."
12. According to the medical officer, the patient i.e. deceased Mahadeo was conscious when he was brought to the hospital. He had not recorded dying declaration of the deceased. The witness admitted that because of excessive blood loss, the patient went in shock. Injury No.4 was caused to head of the patient, which could have caused the shock.
13. PW-11 is Dr. Purushottam Patodkar, who was working at the relevant time in Civil Hospital, Parbhani. He had examined the patient, Mahadeo. He found profused bleeding and therefore ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 12 blood transfusion was arranged in the casualty ward. According to the medical officer, the patient was fully conscious. The history was recorded by the doctor after having conversation with the patient. Thereafter an expert surgeon, Dr. Rathod was called. During examination by Dr. Rathod, the patient was conscious. The patient was brought to Parbhani Hospital on 10th October, 1993 itself. The blood transfusion started at 6.20 p.m. on the same day. Dr. Rathod examined the patient between 4.15 p.m. to 4.30 p.m. Even Dr. Rathod recorded in the case papers that during the said span, patient was conscious. Dr. Rathod recorded in the history of the patient that it was case of assault by known persons. At 6.40 p.m. PW-9, Kankaiya, from Tahsil Office contacted Dr. Patodkar and requested to examine the patient, Mahadeo. The patient was examined by the Doctor and accordingly certified that the patient was conscious to depose. This endorsement was made by the Doctor at 7.00 p.m. on the statement recorded ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 13 by PW-9 Kankaiya. The witness, Dr. Patodkar categorically deposed before the Court that during the course of recording the statement, he was sitting by the side of the patient all along. The deceased was answering the questions asked by Mr. Kankaiya. The statement recorded was shown to the medical officer. He had identified the handwriting, signature and the contents of the said statement (Exhibit 33). The encircled portion in red ink of the endorsement of Dr. Patodkar and his signature is at Exhibit 33/A. The witness stated that on the same day i.e. 10th October, 1993 at about 10.30 p.m. the patient died. The patient died due to profused bleeding. 2300 ml.
blood was transfused in the body of the deceased.
. During cross-examination of this witness, he deposed that it was not necessary that due to profused bleeding a patient would go in shock, but one may go in shock if loss of blood is faster in speed. The doctor had tried to record blood ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 14 pressure of the patient at the time of admitting the deceased, but the blood pressure was so low that it was not recorded. At the time of recording dying declaration, the blood pressure was not recorded. The witness deposed that even when the dying declaration was being recorded, the blood transfusion was going on.
14. PW-9 Parpalli Kankaiya, was working as Awal-Karkun in Tahsil Office, Parbhani at the relevant time. On the instructions of Tahsildar, the witness went to the hospital on 10th October, 1993 and reached the hospital at about 6.30 p.m. with a view to record dying declaration of Mahadeo. The witness requested the medical officer to examine the deceased as to whether he was conscious to depose or not. The doctor opined that the patient was conscious, therefore, the witness recorded the statement. The witness has narrated the gist of the statement. He recorded the statement in verbatim and then it was read over to ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 15 Mahadeo. The contents of the statement were admitted to be correct by the witness. The dying declaration is at Exhibit 33.
. In the cross-examination the witness deposed before the Court that after Tahsildar received letter, within ten minutes the witness was called and given instructions. The witness proceeded to the hospital by bicycle and reached there within five minutes. He admitted that in the communication made to Tahsildar, it was mentioned that patient was not in a position to talk. He further admitted that patient was at the distance of 15 ft. from the general ward. There were 3 to 4 other patients present besides the deceased. By the side of the deceased, many of his relatives were sitting, according to the witness. The witness obtained thumb impression of the deceased on the original and carbon copy of the statement and handed over the same to the police. The witness admitted that Tahsildar had not given him ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 16 directions in writing to record dying declaration.
15. PW-3 is Rupchand Saldewar, who was investigating officer. He proved the panchnama of scene of offence which is at Exhibit 22. The witness deposed that certain articles like ribbon, broken bangle pieces and some stones were seized and the said seizure was shown in the scene of offence panchnama (Exhibit 22). Two shoes were also seized from the spot. Thereafter he handed over further investigation to A.S.I. Kalal. In the cross-examination the witness deposed that Mahadeo was not in a position to talk as he was unconscious. Besides mother of deceased Mahadeo, nobody was present in the field when he reached there. The investigating officer had seized the articles and sent it for chemical analysis.
16. PW-10 is Uttam Kalal who took investigation after PW-3 Rupchand Saldewar. PW-10 Kalal, investigating officer arrested the accused ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 17 Namdeo and Ankush during the course of investigation on 11th October, 1993. They had expressed desire to give memorandum statement.
This witness seized blood stained clothes of mother of the deceased on 12th October, 1993, under panchnama Exhibit 39. The police constable produced clothes on the person of the deceased, which were seized under panchnama. The witness has proved the contents of panchnama Exhibit 40. The accused were arrested on 12th October, 1993 and were produced before the Magistrate. Memorandum of statements are proved by this witness (Exhibit 41). The witness had identified the signatures of panchas including hostile witnesses.
The witness had identified the signature of accused Jagannath also. The accused had produced the weapons which were used during the commission of crime and at their behest the same were seized under panchnama. This witness had proved six seizure panchnamas. He has identified signatures of all the six accused (Exhibit 41/A, 42/A, 43/A, ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 18 44/A, 45-A and 46/A).
17. PW-12 is Sopan More, P.S.I., who was handed over the investigation of the subject crime on 20th October, 1993. The witness had recorded the statement of A.S.I. Kalal on 3rd March, 1994 so as to know the previous relationship between the accused and the deceased. He deposed that the deceased Mahadeo had filed a complaint against the accused persons and charge-sheet was filed under Section 324 of the Indian Penal Code (Exhibit 55).
18. Shri. Pawar, learned counsel appearing for the Appellants submitted that the entire case is based on appreciation of evidence, as to whether the dying declaration of the deceased recorded by PW-9 Parpalli Kankaiya, Awal-Karkun in Tahsil office in presence of PW-11 Patodkar, medical officer, is worth reliable. The learned counsel submitted that evidence of PW-11 Dr. Patodkar fails to establish that the deceased was ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 19 conscious throughout, to make a statement before PW-9 Kankaiya, Awal-Karkun in Tahsil Office. The endorsement of the doctor shows that patient was conscious at the time of recording of statement but the same is not sufficient, as the endorsement ought to have been to the effect that the patient was fit to make a statement. The endorsement occurring on the dying declaration does not satisfy the basic requirement in law in respect of the satisfaction of the medical officer and the person recording the dying declaration, that the patient is conscious and well oriented to make a statement. It was further submitted that the relatives were sitting besides the deceased when the dying declaration was recorded. It was but natural that deceased could have been impressed by the presence of the relatives and even the possibility of tutoring cannot be ruled out. In such cases, it is very likely that false accusations are made and innocent persons are involved by the prosecution side. On the aspect of ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 20 the physical condition of the deceased, it was submitted that 2300 ml. blood was transfused in the body of the deceased. Even while recording dying declaration of deceased, the transfusion of blood was going on. The patient must have gone in shock, therefore, it cannot be said with certainty that deceased was conscious enough to understand as to what was going on around and whether the deceased had really made a statement to PW-9 Kankaiya. The learned counsel criticized the prosecution evidence and the manner in which the dying declaration was recorded by the Awal-Karkun.
Considering the nature of injuries suffered by the deceased, the counsel submitted that the assault on the deceased was not murderous assault. The counsel submits that according to the prosecution the Appellants had aimed at the legs of the deceased and there was no injury caused to the vital portion of the body, indicating that the Appellants had intended to cause injury, which would be endangering life of the deceased Mahadeo.
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19. Per contra, Shri. Dighe, learned A.P.P. submitted that unfortunately PW-2 and PW-5, mother and daughter of the deceased turned hostile. But though the eye witnesses turned hostile, the case of the prosecution is not weakened as the prosecution is relying upon the dying declaration of the deceased. According to the learned A.P.P., there was strong motive for the Appellants to commit crime. Prior to the incident in question, complaint was lodged by the deceased against the accused persons. Charge-sheet was filed against them for assaulting the deceased. The lands of the Appellants and the deceased were adjacent to each other. They were related inter-se. There was admittedly land dispute. This rules out any false implication of the Appellants on imagination of the prosecution witnesses. The learned A.P.P. further submits that the dying declaration is reliable piece of evidence. The medical officer was sitting there when the dying declaration was ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 22 being recorded. The medical officer has made an endorsement that the patient was conscious. There is nothing on record to show that inspite of left leg below knee being amputated and blood being transfused, the person could not have made any statement. Version of defence ruling out dying declaration has no legal and medical basis according to the learned A.P.P. It is a case of homicidal death wherein Appellants assaulted the deceased with dangerous weapons with such a force and brutality that the left leg below knee was seen amputated.
20. We have perused the entire record, original dying declaration in the record, medical evidence. We have considered the submissions advanced by the learned counsel appearing for the parties. The case mainly rests on the reliability of the dying declaration, Exhibit 33. The medical officer Shri. Patodkar has made endorsement on the dying declaration that the patient was conscious.
::: Downloaded on - 09/06/2013 19:49:41 :::cria9.00 23 He was sitting along with PW-9 Kankaiya, when the dying declaration was being recorded. Blood transfusion was going on during that time. The medical officers, Dr. Rathod, Dr. Patodkar, have made endorsements in the history-sheet of the patient that the patient was fully conscious. From the narration of the history of the patient's physical condition in the record, it can be ascertained that the medical officers were of the view that the patient must be in a conscious state to make a statement. There is nothing on record to disbelieve the version of the medical officer PW-11 Dr. Purushottam Patodkar, who is an independent witness. Merely because blood transfusion was going on and 2300 ml. blood was transfused, it would not be possible to arrive at a conclusion that the patient was unconscious throughout and was not able to understand as to what was going on around. It is not even possible to reach a conclusion that patient was not oriented and was not in a position to make a ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 24 statement or utter few sentences.
21. The defence raised an objection that relatives of the patient were near him. But in the facts scenario of the case, the situation of the ward wherein 3 to 4 other patients were also there, the presence of the relatives was normal.
Immediate medical aid was provided to the deceased, no sooner he was brought to the hospital. The evidence on record discloses that condition of the patient was serious enough and therefore necessary steps were taken by the medical officers, Tahsildar to record the dying declaration and accordingly the same was recorded.
The deceased Mahadeo made clear statement before the PW-9 Kankaiya that the Appellants had assaulted him with the aid of axe, stone, sticks, on his left leg. The deceased specifically stated that Appellant No.2 Jagannath assaulted the deceased with axe and due to which his left leg got severed. He further stated that assault was ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 25 made on his right leg with an intention to commit his murder. He further stated in dying declaration that his wife and his mother were there in the hospital. His statement was read over to him.
Thumb impression of his right thumb was obtained.
The recorder, PW-9 Kankaiya has put his signature below the statement. The date was also mentioned as 10/10/1993. Time was mentioned on the top of the statement on the right side as "6.40 p.m.". We do not notice in the statement of the deceased any exaggeration, involving innocent persons out of past enmity, grudge or frustration.
22. Though the prosecution witness PW-2 Dhrupatabai, mother of the deceased was declared as hostile, but even from her deposition it is clear that the Appellants and deceased were having lands adjacent to each other and there was dispute between them. The motive is very well established by the prosecution.
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23. The evidence of PW-9 Parpalli Kankaiya is worth reliable. He had taken all the precaution before recording the dying declaration. He had handed over carbon copy of the statement to the police, on which thumb impression of the deceased was obtained. Whatever deficiencies the defence is pointing out in respect of the recording of the dying declaration or the authority of Awal Karkun to record dying declaration, the same shall not cast shadow on the truthfulness and reliability of the dying declaration of the deceased. The dying declaration was made voluntarily and is worth reliable.
24. The investigating officers have proved the memorandum panchnamas, recovery panchnamas and discovery panchnamas. Blood was seen on the weapon like axe, which was used in the commission of crime. On perusal of Chemical Analyzer's Report it is crystal clear that on axe, the Chemical Analyzer noticed blood, which was human blood.
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25. The medical officer, PW-1 Dr. Arvind Khodve had opined that injury No.1 caused to the deceased, was singularly sufficient to cause death in ordinary circumstances. The deceased also suffered incised wound on the left parietal region of the skull. The manner of assault shows that it was murderous assault. Just because it was aimed on the legs of the deceased, the cruelty of the assault does not get diminished. The assault was made cruelly. In the facts of the case and considering the nature of evidence brought on record, the version of the defence cannot be accepted that the Appellants had no intention to commit murder and at the most in case the prosecution case is to be believed, then the Appellants could be convicted for causing grievous hurt to the deceased. It is a case where the motive is apparent. The circumstances indicate that deceased was present in the field.
Agricultural lands of the parties are adjacent to ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 28 each other. All this indicates that incident has taken place wherein the deceased was assaulted by the Appellants.
26. The learned counsel for the Appellants had placed reliance on the reported Judgment in the case of Manik Vanaji Gawali vs. State of Maharashtra, 2013 CRI. L.J. Page 972, in respect of the parameters for appreciation of dying declaration. We have perused the said Judgment.
27. The learned counsel for the Appellants further submitted that the Appellants were released on bail and since last so many years the Appellants are on bail. Even that circumstance does not give the Appellants any benefit and the same could not be a circumstance to show any leniency to the Appellants. A life is lost and lost due to a cruel act of the Appellants.
28. We have perused the reasoning of the ::: Downloaded on - 09/06/2013 19:49:41 ::: cria9.00 29 trial Court. We find that the reasoning adopted by the trial Court for convicting and sentencing the Appellants is sound and does not call for any interference by this Court.
29. There is no merit in the Appeal. The Appeal stands dismissed. The bail bonds of the Appellants shall stand cancelled. The Appellants shall surrender to the police.
[A.V. NIRGUDE, J.] [NARESH H. PATIL, J.] . After pronouncement of the Judgment, learned counsel Shri. Pawar prayed for eight weeks time for surrendering to the Police by the Appellants.
The learned A.P.P. opposed the prayer.
. The Appellants to surrender to the Police within FOUR WEEKS from today.
[A.V. NIRGUDE, J.] [NARESH H. PATIL, J.] asb/APR13 ::: Downloaded on - 09/06/2013 19:49:41 :::