Arvind Sangitrao Deshmukh And Another vs State Of Mah., Thr. Pso Ps Ner, Yavatmal on 3 February, 2025

[Cites 5, Cited by 0]

Bombay High Court

Arvind Sangitrao Deshmukh And Another vs State Of Mah., Thr. Pso Ps Ner, Yavatmal on 3 February, 2025

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

Unlock Advanced Research with PRISMAI

Bombay High Court