Dhanaji @ Dhanraj Bagwan Jagdhane vs The State of Maharashtra

Vishnu Sahai, J.—The appellant aggrieved by the judgment and order dated 24.2.1995 passed by the Additional Sessions Judge, Pune, in Sessions Case No. 285/93 convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default to undergo simple imprisonment for 6 months, for the offence u/s 302 of the IPC has come up in appeal before us.

In short the prosecution case runs as under:

There was enmity between the Appellant and the deceased Gunwant Kambale. About two years prior to the incident a quarrel had taken place between the Appellant and Gunwant Kambale and in that there was an exchange of abuses between them. On this score the Appellant nursed ill-will against Gunwant Kambale.

On 19.9.1992 at about 8.45 p.m. to 9 p.m. Bhau Magar P.W. 3, the nephew of Gunwant Kambale was proceeding to the betel leaf shop situate near the old Railway gate, Bhandari Chowk, Anand Nagar Zopadpatti, Police Station Chinchwad, Dist. Pune. The deceased Gunwant Kambale was ahead of Bhau Magar. When both of them had reached Bhandari Chowk the Appellant emerged with a iron-pipe and started abusing Gunwant Kambale. The latter got frightened and moved back. The Appellant inflicted a blow with the pipe on his head resulting in his sustaining a bleeding injury and falling down. Thereafter he inflicted blows with iron pipe on the legs of Gunwant Kambale, resulting in his receiving bleeding injuries. After assaulting Gunwant Kambale the Appellant ran away.

Immediately after the incident Bhau Magar proceeded to the house of Gunwant Kambale and informed his wife Vimal Kambale P.W. 8, where upon she, Kasturbai Patil P.W. 5, and Kusum Wairat P.W. 7, (the sisters of the deceased) proceeded to Bhandari Chowk where they found Gunwant Kambale lying in a pool of blood.

The evidence of P.H.C. Maruti Kharade P.W. 13 shows that on 19.9.92 at about 10.15 p.m. the wife of Gunwant Kambale (Vimal Kambale) came to Police Chowki Nigdi, on receiving information about her husband being injured. P.H.C. Maruti Kharade along with other police personnel proceeded to Bhandari Chowk where Gunwant Kambale was lying in an injured condition. P.H.C. Maruti Kharade took him in an ambulance to Sassoon Hospital, Pune and had him admitted in Ward No. 3.

The evidence of P.H.C. Maruti Kharade shows that at Sassoon Hospital, Pune, he recorded the FIR of Gunwant Kambale on the basis of information given by him.

The evidence of Kasturbai P.W. 5 and Kusum Wairat P.W. 7 shows that in Sassoon Hospital they enquired from Gunwant Kambale about the incident and he told them that the appellant had assaulted him with iron pipe.

The injuries of Gunwant Kambale were medically examined on 20.9.1992 at 2 a.m. in Sassoon Hospital by Dr. Sunil Sonar P.W. 9, who found the following injuries on his person:

(i) Scalp wound 4x1 cm. left tempera region and

(ii) Compound Bilateral upper 3rd fracture of tibia fibula, middle 3rd junction cent DNVC.

The evidence of Dr. Sonar shows that on 26.9.1992, on the insistence of Gunwant Kambale he discharged him from Sassoon Hospital.

On 26.9.1992 at about 1.30 p.m. Gunwant Kambale was admitted in Yeshwantrao Chavan Memorial Hospital, Pimpri. On examining him Dr. Rajiv Patankar P.W. 2 found the following injuries on his person :

1) Compound comminuted fracture tibia and fibula right side upper 1/3rd region with multiple blisters.

2) Compound comminuted fracture left tibia upper 1/3rd and

3) Sutured wound over back of skull.

Dr. Patankar''s evidence shows that against the medical advice Gunwant Kambale took discharge the next day.

On 28.9.1992 at about 1.30 p.m. Gunwant Kambale was admitted in Sancheti Hospital and remained an indoor patient there till 1.10.1992. This emerges from the evidence of Dr. Rajiv Joshi P.W. 6. His evidence further shows that he had sustained fractures on both of his legs and died on 1.10.92 at 8 a.m.

The autopsy on the corpse of Gunwant Kambale was conducted on 1.10.1992 by Dr. Laxman Ferwani P.W. 1 who found on it the following ante mortem injuries :

1) An area of contused abrasion on the front of right leg below knee 2" x 1". Ante - mortem clot present.

2) An area of contused abrasion right leg front below knee, just near injury No. 1 2" x 1".

3) An area of contused abrasion right leg front and laterally 2 1 /2" x 1 1/2" below injury No. 2. Ante - mortem clots present.

4) A contused lacerated wound present on the right leg below knee 2" x 1/4" in healing stage.

5) An area of contused abrasion present on left leg below knee in front 2" x 1". Ante - mortem clots present.

6) An area of contused abrasion on left leg below knee in front below injury No. 5 2"x 1".

7) An area of contused abrasion on left leg below knee in front below injury No. 6, 1/2" x 3/4".

8) An area of contused lacerated wound present on left leg below knee 2" x 1/4" in healing stage.

9) Multiple fracture tibia and fibula right leg in upper third area.

10) Multiple fracture tibia and fibula left leg in upper third area.

11) A stitched lacerated wound right parietal area of head 3 1/2" x 1/4".

The investigation was conducted in the usual manner. During the course of it, on the pointing out of the appellant two iron pipes were recovered under a panchanama in the presence of public panchas.

We are not adverting into greater details with respect to this recovery for the learned Counsel for appellant has not challenged the involvement of the appellant in the incident and has only argued on the question of offence made out.

On completion of the investigation the appellant was charge-sheeted.

The case was committed to the Court of Sessions in the usual manner where the appellant was charged for an offence u/s 302 of the IPC to which he pleaded not guilty and claimed to be tried. During trial in all the prosecution examined 13 witnesses. Two of them, viz. Bhau Magar P.W. 3 and Maruti Palle P.W. 4 were examined as eyewitnesses. During trial the latter turned hostile.

The defence of the appellant was of denial but no defence witness was examined. The learned trial Judge believed the ocular account given by Bhau Magar P.W. 3 ; oral dying declaration deposed to by Kasturbai Patil P.W. 5 and Kusum Wairat P.W. 7, the sisters of the deceased; the F.I.R. lodged by the deceased; the evidence of recovery of the iron pipes on the pointing out of the appellant, and the medical evidence. He convicted and sentenced the appellant in the manner stated above.

We have heard learned Counsel for the parties and perused the entire evidence on record. Mr. B.D. Joshi learned Counsel for the appellant fairly conceded that he could not assail the conviction of the appellant on merits but strongly contended that the learned trial Judge erred in convicting him for an offence punishable u/s 302 of the IPC.

Since this appeal has been admitted by this Court, we thought it our duty to also examine the correctness of the appellant''s involvement in the incident. After going through the relevant evidence we make no bones in observing that the involvement of the appellant in the instant case is established beyond any shadow of doubt. It is proved by :

i) the ocular account rendered by Bhau Magar P.W. 3,

ii) the F.I.R. lodged by Gunwant Kambale which is admissible u/s 32 of the Evidence Act, as a dying declaration,

iii) the oral dying declaration made by the deceased to Kasturbai Patil P.W. 5 and Kusum Wairat P.W. 7,

iv) recovery of two pipes on the pointing out of the appellant, and

v) the medical evidence.

We find no infirmities in these items of evidence.

Bhau Magar who has given ocular account of the incident has stated that at the time of the incident he was going to have a pan and the deceased was a little ahead of him. When they reached Bhandari Chowk the appellant emerged with an iron pipe; first inflicted a blow with it on the head of the deceased, as a result of which he fell down and thereafter blows with it on his legs. We find his evidence to be corroborated by medical evidence because as many as four doctors who gave the medical evidence, candidly stated that the injuries of the deceased could be caused by an iron pipe.

Although Bhau Magar was subjected to a substantial cross-examination but nothing extracted which could discredit his presence on the place of the incident.

It is true that the deceased was his maternal uncle but on that score his evidence should only be examined with caution and not mechanically rejected. We have examined his evidence with caution. In our view, his evidence by itself is sufficient to prove that the appellant had assaulted the deceased with an iron pipe on the date, time and place alleged by the prosecution.

11A. We now come to the three dying declarations.

We first take up the FIR lodged by the deceased at Sasson Hospital. The evidence of P.H.C. Maruti Kharade P.W. 13 shows that on the night of the incident, on the information given by the deceased, he recorded his FIR at Sassoon Hospital. The injuries of the deceased clearly show that he was in a position to make a statement before him. P.H.C. Maruti Kharade prior to the recording of the FIR took endorsement from the doctor on duty (vide Exhibit 46). In this F.I.R. the deceased has described the pattern of assault on the same lines given by Bhau Magar. In our view, this F.I.R. which is admissible evidence u/s 32 of the Indian Evidence Act, also inspires confidence.

The two oral dying declarations given by the deceased to his sisters Kasturbai Patil P.W. 5, and Kusum Wairat P.W. 7 also inspire confidence. Their evidence is that when they asked him about the incident in Sassoon Hospital, he told them that the appellant had assaulted him with an iron bar. We see no reason to disbelieve this evidence of oral dying declarations. Although both Kasturbai Patil and Kusum Wairat were subjected to substantial cross-examination but nothing could be elicited therefrom which would render the evidence of oral dying declarations doubtful. In our view this evidence also inspires confidence.

11B. The evidence of recovery of iron pipes on the pointing out of the appellant also Inspires confidence. The said recovery has been proved through the evidence of public panch Abaji Bhagat P.W. 10 and P.S.I. Gomaji Pagare P.W. 11. Their evidence shows that from his hut the appellant produced two iron pipes which were seized under a panchanama. Both these witnesses were cross-examined but their evidence in respect of recovery could not be impeached in any manner.

11C. Finally the medical evidence which is given by the four doctors is also clear and categorical that the injuries of the deceased were attributable to iron pipe.

In view of the reasons mentioned above, in our view, the involvement of the appellant in the Incident has been established beyond any shadow of doubt.

We now take up Mr. Joshi''s submission that no offence u/s 302 of the IPC is made out. We find merit in it.

In the instant case four doctors have been examined by the prosecution, viz., Dr. Sunil Sonar P.W. 9, Dr. Rajiv Patankar P.W. 2, Dr. Rajiv Joshi P.W. 6 and Dr. Laxman Ferwani P.W. 1.

It is pertinent to mention that the evidence of these doctors shows that the solitary head injury sustained by the deceased was simple in nature. Their evidence further shows that the fractures were sustained by the deceased only on the left and right legs.

Dr. Sunil Sonar P.W. 9, in his examination-in-chief (para 7) stated that the Injuries sustained by the victim Gunwant Kambale on his legs were not sufficient in the ordinary course of nature to cause death but later on in para 8 stated that if there was substantial loss of blood the injuries could be sufficient to cause death in the ordinary course of nature. Dr. Sunil Sonar also stated that the victim was discharged on his insistence.

Dr. Rajiv Patankar P.W. 2, stated that when the victim was admitted in the hospital his injuries were infected and he obtained his discharge against radical advice.

Dr. Rajiv Joshi in his examination-in-chief, when asked by the prosecution whether the injuries sustained by Gunwant Kambale were sufficient in the ordinary course of nature to cause death, replied that they were not ordinarily sufficient but could cause death if there were complications. He was also asked in examination-in-chief whether on account of loss of blood the death could have resulted from these injuries and he replied that usually such injuries would not bleed profusely and hence the possibility of death on account of loss of blood was rare.

The Autopsy Surgeon Dr. Laxman Ferwani P.W. 1. in his examination in-chief stated that the injuries of the deceased were sufficient in the ordinary course to cause death but in cross-examination admitted that had the deceased been treated properly he might have survived.

13A. After examining the medical evidence and the entire evidence we have no reservations in observing that it would not be safe to accept the evidence of Dr. Ferwani that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. Apart from the fact that common sense says that multiple fractures of tibia and fibula are not sufficient to cause death in the ordinary course of nature we find that Dr. Rajiv Joshi P.W. 6 in his examination-in-chief has categorically stated that in the ordinary circumstances the injuries of the deceased were not sufficient to cause death and death could have taken place only if some complications arose.

We also find that Dr. Sunil Sonar first stated in his examination-in-chief that the injuries sustained by the deceased were not sufficient in the ordinary course of nature to cause death. The circumstance that the deceased succumbed to his injuries 11 days later also shows that it would not be safe to accept the opinion of Dr. Ferwani that the injuries were sufficient in the ordinary course of nature to cause death.

It should be always borne in mind that when there is conflicting evidence of expert witnesses and both the opinions appear to be equally probable it is always proper for the Court to accept that opinion which is in the favour of the accused.

It should be remembered that the accused is not only entitled to benefit of doubt in the matter of his involvement in the incident but also on the question of the offence made out against him.

We have already given our reasons as to why the act of the appellant would not fall within the ambit of clause thirdly of Section 300 of the IPC which provides that if a person intentionally causes injuries which are sufficient in the ordinary course of nature to cause death the offence would be murder.

In our view the act of the appellant would also not fall within the four corners of clauses firstly, secondly and fourthly of Section 300 of the IPC.

In such a situation we feel that the learned trial judge erred in convicting the appellant for the offence u/s 302 of the I.P.C.

The question which arises is what would be the offence which would be made out against the appellant. In our view, the act of the appellant would be clearly covered by thirdly of Section 299 of the I.P.C. the breach of which is punishable u/s 304(II) of the I.P.C. When the appellant inflicted as many as 11 blows with iron pipe on the body of the deceased, some of which caused multiple fractures of tibia and fibula of the left and right legs, he had the knowledge of the death of the deceased.

The only question which survives is the quantum of sentence to be awarded to the appellant for the offence u/s 304(11) of the IPC.

We have given our anxious consideration to this question and we feel that the ends of justice would be satisfied if the appellant is directed to suffer 7 years R.I. for the said offence.

In the result this appeal is partly allowed. Although we acquit the appellant for the offence u/s 302 of the IPC and set aside his conviction and sentence of life imprisonment and fine of Rs. 1000/- and the sentence in default of payment of fine thereunder but we find him guilty for the offence u/s 304(11) of the IPC. and sentence him to undergo 7 years R.I. for the same. The appellant is in jail and shall serve out his sentence.

Office is directed to forthwith communicate the operative part of our judgment to the concerned authorities.