Bombay High Court
Nana Shriram Wankhade vs State Of ... on 25 April, 2017
Bench: B. P. Dharmadhikari, V. M. Deshpande
1 apeal180.212.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 180/2001
Nana s/o Shriram Wankhade,
aged about 37 years, Occ. Labourer,
r/o Mudholkarpeth, Amravati,
Tq. Dist. Amravati. .....APPELLANT
...V E R S U S...
State of Maharashtra, through
PSO Rajapeth, Amravati, Tq. Dist.
Amravati. ...RESPONDENT
AND
CRIMINAL APPEAL NO.212/2001
1. Raju s/o Uttamrao Gawai,
aged about 32 years,
2. Uttamrao s/o Jangaluji Gawai,
aged about 56 years,
Both r/o Vilas Nagar, Amravati,
Tq. Dist. Amravati. .....APPELLANTS
...V E R S U S...
State of Maharashtra, through
PSO P. S. Rajapeth, Amravati, Tq. Dist.
Amravati. ...RESPONDENT
-------------------------------------------------------------------------------------------
Mr. A. V. Gupta Senior Advocate with Mr. A. A. Gupta, Advocate for
appellants.
Mr. S. A. Ashirgade, A.P.P. for respondent-State.
-------------------------------------------------------------------------------------------
CORAM:- B. P. DHARMADHIKARI AND
V. M. DESHPANDE, JJ.
DATE OF RESERVING THE JUDGMENT: APRIL 10, 2017
DATE OF PRONOUNCING THE JUDGMENT: APRIL 25, 2017
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2 apeal180.212.01.odt
J U D G M E N T (Per : V. M. Deshpande, J.)
1. These two criminal appeals take exception to the judgment and order of conviction passed by the learned Additional Sessions Judge, Amravati dated 09.05.2001 in Sessions Trial No.73/1990 by which the appellants in these two appeals were convicted for the offence punishable under Section 302 of the Indian Penal Code read with Section 34 of the IPC and directed to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- by each of them and in default to suffer further rigorous imprisonment for a period of six months.
2. Criminal Appeal No.180/2001 is filed by Nana Shriram Wankhade, original accused no.4. Criminal Appeal No. 212/2001 is filed by Raju Uttamrao Gavai and Uttam Jangluji Gavai original accused nos.1 and 3 respectively. These appellants were released on bail by this Court on two different dates i.e. 03.04.2002 and 05.04.2002.
Since these two appeals arise out of the same judgment and order of conviction, they were taken and heard together and they are being disposed of by this common judgment. ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 :::
3 apeal180.212.01.odt Facts:
3. The prosecution case as it is unfolded during the course of trial is succinctly narrated hereinunder:
(a) Pralhad Waidhure, in May-1989 was attached to Police Station, Rajapeth at Amravati as Head Constable. On 20.05.1989 he was on duty from 8.00 am to 8.00 pm. On the said day Shivcharan Yashvantrao Harne came to the Police Station. That time, Pralhad Waidhure was Station Diary Incharge. Shivcharan lodged his oral report which was reduced into writing by Pralhad (PW15). After narration of the report was complete, signature of Shivcharan was obtained. The scribe Pralhad also read over the contents of the report to Shivcharan. The said report was also signed by Pralhad (PW15) as a station diary incharge. Consequently, Crime No.411/1989 for the offence punishable under Section 326 read with Section 34 of the IPC was registered against the appellants. The FIR is at Exh.-113.
(b) As per the FIR lodged by Shivcharan, on 20.05.1989 there was marriage of daughter of Pandurang Harne, brother of Shivcharan at Yog Bhavan near Mal Tekadi.
The marriage ceremony was performed peacefully. At about ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 4 apeal180.212.01.odt 12.00 O'clock, first round of meals was finished and the accused took meals, came outside to wash their hands. That time, Raju Gavai (Original accused No.1) was throwing left out water in the drinking water vessel. Shivcharan accosted him as to why he had thrown the left out water in the drum containing drinking water. On that, Raju asked whether he is not knowing him and further asked him to come outside and gave abuses and left the place. The report further states that at about 3.30 p.m., father of Raju, Uttam Gavai (Original accused no.3) came and asked as to who has accosted his son and further quipped he would not spare him alive. In the meanwhile, Pandurang Harne (deceased) came there and requested the father of Raju that he should allow the marriage to complete peacefully. Thereafter, Uttam Gavai, father of Raju left the place.
At about 5.00 O'clock, father of Raju brought some persons in an auto and those came in the pandal. Raju was asking where is Pandurang Harne. This was heard by Shivcharan from a long distance. Thereafter Raju took him in the hall. That time Raju was accompanied by Nana Wankhade (Original accused no.4). It is further stated in the FIR that Nana and Uttam caught hold of Pandurang Harne and ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 5 apeal180.212.01.odt thereafter suddenly Raju delivered the blow of knife. They also threw bowls and drinking water vessels here and there and ran away by the auto rickshaw and motorcycles. Pandurang Harne was thereafter taken to the hospital.
(c) Chakrapal Tiwari (PW13) was Police Sub Inspector at Rajapeth Police Station. As per the direction of Police Station Officer, Rajapeth, he proceeded to the place of incident immediately and prepared the spot panchanama of the place of incident (Exh.-106). He also recorded statements of one or two witnesses namely; Gangadhar Warthe (PW1).
(d) In the meanwhile, Pandurang Harne, the injured who was admitted in the hospital, expired on 21.05.1989. From 21.05.1989, the investigation of crime No.411/1989 was took over by Vinod Sharma (PW11). On getting information about the death of Pandurang, Crime No. 411/1989 was altered for the offence punishable under Section 302 read with Section 34 of the IPC from Section 326 read with Section 34 of the IPC.
On the said day, at about 10 O'clock, Shriram, brother of the deceased came to Police Station and produced ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 6 apeal180.212.01.odt clothes of the deceased. PI Sharma deputed other police officers on mortuary to conduct the inquest panchanama. He also recorded statements of Shivcahran Harne, Ramesh Athaole, Charandas Raut, Rahul Ogale, Shriram Harne, Digambar Harne, Jaikumar Harne and Punjabrao Bihade. Inquest over the dead body was performed. It is available on record at Exh.-81.
(e) On 21.05.1989 at about 5.00 p.m. PI Sharma arrested Raju. While he was in the police custody, he volunteered to make a statement. Therefore, PI Sharma summoned panch witnesses and in their presence, his disclosure statement was recorded. The admissible portion of his disclosure statement is available at Exh.-92. After recording his statement, accused Raju led the police in a police jeep to his house from where he took out one knife from behind the photographs which were mounted on the wall. The knife was seized under the seizure panchanama in presence of panchas under recovery Panchanama Exh.-93. Under the seizure memo Exh.-94, the clothes of Raju were also seized.
The other accused Balu Wankhade was arrested on 31.05.1989. Uttam was arrested on 11.06.1989, whereas ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 7 apeal180.212.01.odt Nana Wankhade (accused No.4) was arrested on 26.06.1989. PI Sharma also recorded statements of various witnesses. In the meanwhile, he was transferred to Mumbai therefore he handed over the charge to PI Arvind Giri (PW12). PI Giri (PW12) gave a request letter to the Executive Magistrate for holding test identification parade (Exh.-104). After completion of the other usual investigation, he filed final report in the court of 6th J.M.F.C. Amravati on 16.08.1989.
The learned Magistrate found that the offence is exclusively triable by the Court of Sessions, he passed the committal order. The learned Additional Sessions Judge, Amravati, in whose court the sessions trial was alloted, framed the charge against the present appellants and others for the offence punishable under Section 147, 148 and 302 read with section 149 of the Indian Penal Code. All the accused denied the charge and claimed for their trial.
(f) After full dress trial, the learned Judge of the Court below, acquitted the original accused no.2-Balu Wankhade of the offence punishable under Section 147, 148, 302 read with Section 149 of the IPC.
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8 apeal180.212.01.odt Accused no.1-Raju, accused no.3-Uttam and accused no.4-Nana (all appellants before this Court) were also acquitted of the offence punishable under Section 147, 148 and 149 of the IPC. However, the learned Judge convicted the accused Raju for the offence punishable under Section 302 of the IPC, whereas he convicted accused no.3-Uttam and accused no.4-Nana for the offence punishable under Section 302 read with Section 34 of the IPC. Hence, this appeal Submissions:
4. We have heard Mr. A. V. Gupta, learned Senior Counsel with Mr. A.A. Gupta, for the appellants and Mr. S. A. Ashirgade, the learned A.P.P. in extenso, in both these appeals. With the able assistance of the learned Senior Counsel and the learned A.P.P. we have gone through the entire record and proceedings minutely.
Gist of the submissions of the learned Senior Counsel is as under:
(i) In any case, accused no.3-Uttam and accused no.4-
Nana cannot be convicted for the offence punishable under Section 302 of the IPC, taking aid of Section 34 of the IPC. His submission is that there is no evidence on record to show that there was any intention on the part of these two persons to ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 9 apeal180.212.01.odt commit murder of Pandurang. He submitted that even assuming that these two have caught hold of Pandurang, there is no evidence to show that they share common intention with Raju to commit murder of deceased Pandurang.
(ii) It is his further submission that the eye witnesses in this prosecution case are at variance on material aspects.
(iii) He further submitted that the conviction of Raju for the offence punishable under Section 302 of the IPC is bad in law inasmuch as the injury attributed to him by giving knife blow is not found to be the cause of death. He, therefore, submitted that the appellants are entitled for acquittal.
(iv) In the alternative, he submitted that in any case, looking to the medical evidence and from the quality of the evidence as brought on record by the prosecution, the appellant Raju is entitled for the punishment for lesser offence.
5. Per contra, the learned A.P.P. would submit that homicidal death of Pandurang is duly proved by the prosecution. He submitted that the evidence of the witnesses for the prosecution shows that it is the appellant-Raju who gave stab blow on the vital part of the body of the deceased and at the said time, he was caught hold by the appellants-Nana and Uttam. Therefore, it could be ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 10 apeal180.212.01.odt inferred that there was common intention with Raju. Consequently, he submits that the appeal be dismissed.
Critical Analysis of Prosecution Case:
In this case, first informant Shivcharan could not be examined since he died during pendency of trial.
6. On 20.05.1989, Dr. Raj Balkishan Agrawal (PW2), was serving as Chief Medical Officer in Irwin Hospital, Amravati.
Pandurang was brought to the hospital at about 5.45 pm by his relatives. He examined him and admitted in the ward. After preliminary examination, he shifted him to the surgery ward. That time, he could notice knife wound at hypocondrial region on the lower side. It was around 4" x 1" x 3" and it was peritoneal deep. It was a fresh injury. According to the doctor, it must have caused by sharp object. He proved the injury certificate, Exh.-31.
7. Dr. Dhirendra Wagh (PW14) examined Pandurang in surgery ward at 7.00 pm. He found that his condition was serious. He noticed stab wound on the left hypochondrial region. The patient was taken to surgery after due investigation. Dr. Wagh opened his abdomen. It was found to be full of blood. According to the Doctor, he noticed that his left kidney is torn and severe bleeding was continued. He packed the wound from where ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 11 apeal180.212.01.odt bleeding was occurring and surgery was terminated. The patient died ultimately on 21.05.1989 at 4.50 am.
8. The post mortem over the dead body was conducted by Dr. Ashok Lande (PW3). On external examination of the dead body, he found following wounds:
1. Stitched wound, 9" in length from lower end of stern to 2" below umblical region;
2. Stitched wound 7" from lower end of sternum to left renal angle; 2 ½" above iliac crest, ribber drainage present at left renal angle.
3. Stitched wound ¾" at the later aspect of right elbow joint;
4. Stitched wound at 1" at the middle aspect of right elbow joint.
5. Stitched wound, ½" over anterio medial aspect of right ankle joint.
On opening the abdomen and peritoneal cavity, gauze pieces soaked with blood dropped. He noticed that left supra reneal angle was cut at lower end 1/4" approximately. Right kidney was of normal size. Left kidney shows incised wound touching upper pole obliquely 2 ½" x 1 ½". According to the Doctor, internal injury noticed to the left Kidney was corresponding to the external injury no.2. As per the Doctor who performed the ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 12 apeal180.212.01.odt post mortem, the cause of death was due to injury to left Kidney. He proved the post mortem report Exh.-73.
9. From the aforesaid evidence of Doctor, there cannot be any doubt in the mind that Pandurang met with an unnatural death. The question is whether the prosecution has successfully brought its case against the appellants beyond reasonable doubt to record a finding of guilt against them.
About the incident:
10. In order to prove the assault, the prosecution has examined following witnesses:
(i) Gangadhar Warthe (PW1) (ii) Charandas Raut (PW4) (iii) Rahul Ogle (PW5) (iv) Shriram Harne (PW6) (v) Suresh Dhavne (PW8) (vi) Jaikumar Harne (PW10)
If the evidence of these witnesses are scrutinized minutely then it comes on record that on the date of incident, preceding the actual assault on Pandurang at about 5.00 pm, two incidents had occurred. The first incident is in respect of spoiling of drinking water by the accused no.1-Raju after the first round of ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 13 apeal180.212.01.odt meals were served to the guests was over. The second incident is about visiting the accused no.3-Uttam at 2.30 pm in the marriage hall along with his younger son and then giving abuses and extended threats that he will finish the entire progeny of Pandurang and thereafter leaving away the marriage hall.
11. Out of these eye witnesses, Gangadhar (PW1) who is son in law of the deceased and Rahul (PW5), turned hostile. They did not support the prosecution case.
Charandas (PW4) speaks only about the first incident of spoiling water and the incident of stabbing. Shriram (PW6) speaks about all three incidents. Whereas Ajay (PW8) speaks about only the stabbing incident. Likewise Jaikumar (PW10) also speaks only in respect of the stabbing incident.
12. Though Charandas (PW4) speaks about spoiling water, he is totally silent that the water was spoiled by the accused no.1- Raju. This witness is known to the deceased and he was serving meals to the invitees. It would be useful to refer to the portion appearing in his examination in chief itself, which reads thus:
"Marriage was performed at about 12.00 noon. The meals were being served to the invitees of the marriage in the hall. I was ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 14 apeal180.212.01.odt serving the food to them. Some boys poured tested water from their mouth in the drum in which drinking water was stored. Dispute arose on that ground. That dispute has cropped a little before taking place of marriage, but it was settled at that time."
13. Shriram (PW6) is the elder brother of the deceased Pandurang. Therefore, his presence at the marriage is the most natural. According to this witness, after one or two rounds of meals were over, the appellants-Raju and Nana created problem, threw water tested by their mouths in the drum in which the drinking water was stored and defied the drinking water. Naturally, according to this witness, his other younger brother Shivcharan who lodged the FIR accosted both of them. It has resulted into altercations between them which was intervened by Shriram and thereafter both the appellants left the place.
The version that the accused-Nana created problem by spoiling the water is a proved omission. Similarly, the altercation between Shivcharan and Nana is also a proved omission.
Thus, it could be said with conviction that it is the accused no.1-Raju alone who has spoiled the water.
14. Another incident that as per prosecution has occurred at 2.30 pm on the day of marriage i.e. in respect of barging of the ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 15 apeal180.212.01.odt accused-Uttam in the marriage hall and giving abuses and extending threats.
Insofar as this incident is concerned, the evidence of Shriram (PW6) shows that at about 2.30 pm, accused no.3-Uttam and his younger son came into the marriage hall where the marriage was performed. As per the version of this witness, Uttam started abusing after his arrival in the hall. If this witness is to be believed, he went forward and told Uttam that everything that has happened earlier should be forgotten and there should not be any further quarrel. Upon that, according to this witness, Uttam told that he has no intention to talk to him that he wishes to have a talk with Pandurang alone. Therefore, Pandurang was called who was near the gate of hall. He requested the accused Uttam to forget whatever has happened. On that, Uttam extended threats that he is capable of finishing his entire progeny. By saying that, as per the version of this prosecution witness, Uttam left the hall. Thus, so far as the incident of 2.30 pm is concerned, there is only one witness i.e. Shriram (PW6). It is quite possible that all witnesses may not have an opportunity for various reasons to witness the incident of 2.30 pm. However, in our view, Suresh (PW8) appears to be an exception. Suresh (PW8) is a close relative of Pandurang. He has attended the marriage function. He has admitted in his cross- ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 :::
16 apeal180.212.01.odt examination as under:
"The marriage ceremony was performed at 11.00 am or 12.00 noon. I remained in the hall after the marriage till the arrangement for sending the bride with the bridegroom were being made."
The last incident of stabbing has occurred at the time when preparation of sending the bride with the bridegroom was in process. Once, this prosecution witness Suresh (PW8) admits that after the marriage till the programme of sending the bride with the bridegroom was in progress, he was available in the hall. It is really unbelievable that either he will not witness the incident at 2.30 pm or failed to hear anything about the same. As per the evidence of Shriram (PW6), accused Uttam barged in the marriage hall and started abusing and extending the threats. That shows that he must be using the said language in a loud voice. If a person like Suresh (PW8) who is the close relative of the deceased was present in the hall, the said incident cannot escape from his notice.
15. In respect of the actual assault, Charandas (PW4) states from the witness box that two motorcycles came there and some people got down from the motorcycle and entered the hall. Two of them who had come from motorcycle entered the hall, caught hold of Pandurang and at that time, accused Raju stabbed the knife on ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 17 apeal180.212.01.odt the chest of Pandurang. He identified Raju from the witness box. However, he states that as two persons who caught hold of Pandurang were unknown to him and since he is has not seen their faces, he cannot say whether those two persons are amongst the accused persons or not.
He states from the witness box that he knows the accused Uttam and Nana, who are present in the court hall by pointing out fingers to the them. Test identification parade was held during the course of investigation. This prosecution witness was called to identify the two persons who had caught hold of Pandurang. He has identified in the identification parade Uttam (accused no.3) and Nana (accused no.4) who caught hold of the deceased. Interestingly, from the witness box, he stated in his examination in chief as under:
"Because I had seen Raju Gavai (accused no.1) striking knife to the deceased and hence I identified him at the time of identification parade. I had also identified the two persons in the parade who had caught hold of Pandurang (deceased), though I had not seen the faces of those two persons in the hall, they were my relatives and hence I identified them."
Thus, it is clear that he has identified accused no.3 and accused no.4 in the identification parade only because they are his relatives. In his cross-examination, he has admitted that he could ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 18 apeal180.212.01.odt not identify who had caught hold of Pandurang. In that view of the matter, in our view, the evidence of this prosecution witness does not establish that the accused nos. 3 and 4, Uttam and Nana respectively caught hold of the deceased Pandurang.
16. Shriram (PW6) states that at about 5.00 pm when arrangements were going on to send the bride with the bridegroom, at that time, 4-5 persons including the present appellants rushed in the hall from outside. Accused No.3-Uttam and accused No.4-Nana and other two persons caught hold of Pandurang and thereafter accused Raju, all of a sudden, gave a stab blow to Pandurang. As per the claim of this witness, four persons namely; Uttam, Nana (appellants), Bandu Gavai and Bandu Wankhade caught hold of Pandurang.
Suresh (PW8) supports Shriram (PW6) that Uttam and Nana caught hold of Pandurang and then Raju dealt with a stab blow. Similarly, Jaikumar (PW10), son of the deceased Pandurang, speaks about the presence of Uttam and Nana and also speaks about holding by these two accused persons.
17. From the evidence of these witnesses, it is clear that the role attributed to those accused persons is that they caught hold of ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 19 apeal180.212.01.odt Pandurang and thereafter he was stabbed by Raju. Even the learned Judge of the Court below has also convicted them for the offence punishable under Section 302 only with the aid of Section 34 of the IPC. Therefore, it is to be seen as to whether these two persons were sharing common intention with the accused Raju in respect of the assault by knife.
18. It is clear form the evidence brought on record that the accused Raju has spoiled the drinking water. It is not the case of the prosecution that at that time accused Uttam was present in the hall. Through the evidence of Shriram (PW6), the prosecution tried to bring on record involvement of accused Nana in spoiling of the water. However, his said version is found to be an improvement and therefore the evidence of Shriram in respect of the accused Nana that he also spoiled the water could conveniently be discarded.
19. Insofar as the incident giving abuses and the incident of threats at 2.30 pm is concerned, the said incident is being told only by Shriram (PW6). It is to be noted that the marriage ceremony was attended by various persons. The first two rounds of meals were over at about 12.00 to 12.30 pm. It is not the case of the ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 20 apeal180.212.01.odt prosecution that by 2.30 the programme of meals was over and the marriage hall was either empty or the attendance was thin. It is really hard to believe that no other person except Shriram (PW6) noticed the incident that had occurred at 2.30 pm giving abuses and extending threats especially in the light of admission given by Suresh (PW8) that for all the time, he was present in the marriage hall. Therefore, in our view, the evidence as brought on record to show the occurrence of the incident at 2.30, comes under the shadow of doubt.
If the incident of giving abuses or threats at 2.30 pm comes under the shadow, there was no occasion for the accused Uttam to nurse grudge against Pandurang, the deceased.
20. Section 34 of the Indian Penal Code, lays down a principle of joint liability in doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 21 apeal180.212.01.odt presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of mind may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premediated concert, is the law laid down by the Hon'ble Apex Court, time and again and it could be noticed in a reported judgment in the case of Ramashish Yadav And Ors vs State Of Bihar, reported in 1999 (8) SCC 555 .
By applying the aforesaid principles in the said case, the Hon'ble Apex Court ruled in that case that, "from the mere fact that two accused persons came and caught hold of the deceased, whereafter the other two accused came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused who had held the deceased, shared the common intention with other two accused, who had inflicted the blows, which resulted in the death of the deceased."
21. In view of the aforesaid evaluation of the evidence and in the absence of any other positive evidence available on record, we are not able to reach to the conclusion that the accused no.3- Uttam and accused no.4-Nana shared any common intention with ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 22 apeal180.212.01.odt accused no.1-Raju. In the present case, the prosecution has not filed any Chemcial Analyzer's report to show that the clothes of these two accused persons were stained with blood. Thus, there is no corroboration by scientific evidence to prove the charge of holding by them.
Whether accused Raju could be convicted for the offence punishable under Section 302 of the IPC?
22. In the present case, no witness was shown the knife by which, according to the prosecution, the accused Raju gave the stab blow. Though, the said knife was recovered, according to the prosecution at the behest of the accused Raju on his memorandum of statement, the said knife was not sent to Chemical Analyzer nor the said weapon was sent to any of the doctors seeking their opinion as to whether the weapon which is recovered at the behest of Raju can cause the injury.
23. According to Dr. Raj Agrawal (PW2), when Pandurang was brought to Irwin Hospital at about 5.45 pm, he noticed only one wound on his left hypocondrial region on lower side. He has proved the injury certificate Exh.-71. According to the said ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 23 apeal180.212.01.odt certificate, nature of injury was an incised wound and size of injury was 4" x 1" x 3", peritoneal deep. By the said certificate, it is clear that the said injury cannot reach to the kidney.
24. Dr. Dhirendra Wagh (PW14), the surgeon found that the condition of Pandurang was serious when he was admitted in the surgery ward at 7.00 pm. He also noticed only one stab wound on left hypocondrial region. When he opened abdomen, he noticed that his left Kidney was found torn and severe bleeding was continued. Therefore, he packed that wound and surgery was terminated. According to this doctor, "Stab wound was located at the hypocondrial region, which was 4" x 1" x 1" in size. But deep down this injury has resulted into tear to left Kidney, and it had resulted into extensive bleeding."
In the cross-examination, this doctor has admitted as under:
"The left kidney was about 6 to 7 inches on the inner side inside the body from external skin of the body. External injury i.e. stab would was 4" x 1" x 1" in size. It was 4 inches in length, 1" in width and 1" in depth. Stomach, spleen, large as well as small intestines are found intact."
Thus, in his cross-examination, he has given depth of the injury as only 1" and there was no damage to the stomach, spleen ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 24 apeal180.212.01.odt and both the intestines. This is also corroborated by the post mortem report Exh.-73. Thus, Dr. Wagh then changed his version to a great extent to a Court's queation and he states that, "Approximately, the depth of stab was about 7-8 inches. If counted from the outer edge of the hypochondrial skin."
However, when he was further cross-examined by the learned cross-examiner, he admitted thus:
"In the bed-head ticket, there is no mention that depth of injury was 7 to 8 inches. I am saying the depth to be 7 to 8 inches approximately, because kidney is about 6 to 7 inches inside the body."
As per the post mortem report, cause of death is due to cut to the left Kidney. Dr. Raj Agrawal (PW2) is silent that the injury has given cut to peritoneal. He only says that it was an injury at peritoneal deep. Nothing more can be expected from this doctor since he has examined the patient externally. However, such is not the case in respect of Dr. Dhirendra Wagh (PW14). This Doctor has opened the abdomen and then terminated the surgery. Even after opening the abdomen, the doctor is totally silent that he notice any cut to peritonis. From the Atlas of Human Anatomy, authored by Fank H. Netter and the various diagrams, it is clear that kidney is situated on the backside. It is not the version of any prosecution witness that accused Raju gave more than one stab blows. All the ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 25 apeal180.212.01.odt eye witnesses only state that Raju gave one stab blow on his left hypocondrial region. That means that stab was given from the left front side. It completely rules out the possibility that stab was given from the backside. Therefore, in order to reach to the kidney, the injury has to travel through more than one organ. However, Dr. Dhirendra Wagh (PW14), the surgeon who aborted the surgery, noticed that there was no injury to any of the organs and that is confirmed by the autopsy surgeon. In that view of the matter, suggestion given by the learned cross-examiner, through it is denied by Dr. Wagh, it assumes importance that during the operation, injury to the kidney was caused. Be that as it may. The prosecution has completely failed to establish firmly on record by giving concrete medical evidence that the fatal injury was caused by the knife blow given by Raju has resulted into death.
25. However, the prosecution has been able to prove that Raju has assaulted Pandurang by means of weapon. The evidence of the eye witnesses to the extent that it is the accused Raju who gave a knife blow on hypocondrial region of the deceased Pandurang is not shattered at all in their respective evidence. The learned Senior Counsel submits that the prosecution has not filed on record the Chemical Analyzer's report to show that the clothes of ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 26 apeal180.212.01.odt Raju were stained with blood. He further submitted that the weapon was also not sent to the Chemical Analyzer to show that it was stained with blood. The scientific evidence in the nature of Chemical Analyzer's report are always a piece of corroborative evidence. It is always used to support the version of the prosecution witnesses. However, merely because this type of evidence is not available, that by itself is not sufficient to throw the case of the prosecution in dustbin by discarding the consistent ocular account given by the eye witnesses. As seen in the preceding paragraphs, there is no improvement on the part of any of the eye witnesses in respect of the assault made by accused Raju on the deceased Pandurang. Their evidence is consistent. They have not changed their earlier versions. Therefore, we have no hesitation in our minds that it is the accused-Raju who has given the stab blow.
26. Dr. Raj Agrawal (PW2) is the first Doctor who examined Pandurang on 20.05.1989 on his admission to Irwin Hospital, Amravati. He has proved the injury certificate, Exh.-71. His evidence shows that the wound would have caused death. Thus, it is crystal clear that the accused-Raju is responsible for causing grievous injury to Pandurang. Hence, though he may not have been held guilty for the offence punishable under Section 302 of the IPC, ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 ::: 27 apeal180.212.01.odt in our view, his act comes within the ambit of Section 326 of the IPC. That leads us to pass the following order.
O R D E R Criminal Appeal No.180/2001
(i) Criminal Appeal No.180/2001 is allowed.
(ii) The judgment and order dated 09.05.2001 in Sessions Trial No.73/1990 passed by Additional Sessions Judge, Amravati thereby convicting the appellant-Nana Wankhade for an offence punishable under Section 302 read with Section 34 of the IPC is hereby quashed and set aside.
(iii) The bail bonds executed by appellant stand cancelled. Criminal Appeal No.212/2001
(i) Criminal Appeal No.212/2001 is partly allowed.
(ii) Appellant No.1-Raju Uttamrao Gawai is acquitted of the offence punishable under Section 302 read with Section 34 of the IPC. However, he is convicted for an offence punishable under Section 326 of the IPC. He is directed to suffer rigorous imprisonment for a period of 10 years.
(iii) Appellant no.1 shall surrender to his bail bonds within three weeks. The Court below is directed to take steps against appellant no.1 for serving him out his remaining jail sentence. ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 :::
28 apeal180.212.01.odt
(iv) Appellant no.1 is entitled to set off under Section 428 of the Criminal Procedure Code.
(iv) Appellant no.2-Uttamrao Jangluji Gawai is acquitted of the offence punishable under Section 302 read with Section 34 of the IPC.
(v) The bail bonds executed by appellant no.2 stand cancelled.
(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.) kahale ::: Uploaded on - 25/04/2017 ::: Downloaded on - 26/04/2017 00:49:35 :::