Bombay High Court Vijay Bhagvan Jadhav-vs-State Of Maharashtra on 9 August, 2005
Equivalent citations:2005 CriLJ 4210
Author: N H Patil
Bench: P Hardas, N H Patil
Naresh H. Patil, J.
1. Feeling aggrieved by the judgment and order of conviction for offence punishable under Section 302 of I.P.C. and sentence of life imprisonment with fine of Rs. 500/- delivered by the Sessions Judge, Aurangabad on 20-7-1999 in Sessions Case No. 232/98, the appellant has preferred this appeal.
2. The conspectus of the prosecution case, in brief, is as under :
The appellant was married to Anusaya, cousin sister of deceased Bhagwan Navagire. The deceased was married to sister of the appellant named, Sangita. Sangita died due to burn injuries. Prosecution was launched against the deceased Bhagwan and others in a Court in Buldhana District for offence punishable under Sections 304B, 498A r.w. 34 of I.P.C. Anusaya, wife of the appellant, who was cousin of the deceased Bhagwan, thereafter started staying with her parents.
3. It is alleged that deceased Bhagwan was to remarry on 21st April, 1998. The appellant Vijay Jadhav had threatened Bhagwan that if he remarries, he would kill him. It is alleged that on 9-4-1998, Bhagwan had gone to his relations in nearby villages for inviting them to attend his marriage scheduled on 21st April, 1998. He was returning home on 10th April, 1998. He was proceeding to his village from Fardapur on foot through the field of one Moin Abbas at about 6 p.m. The appellant, who was already waiting for Bhagwan, pounced on him. The deceased tried to run away but, the appellant overpowered him and stabbed him on his abdominal region with a knife. The prosecution witnesses Moin Abbas and Majid Khan rushed to the spot. They tried to catch the appellant but, could not be successful. P.W. 2 Moin Abbas brought the deceased to police outpost Fardapur. Police thereafter took the deceased to Civil Hospital, Jalgaon where he was provided with necessary medical treatment. Bhagwan succumbed to the injuries on 12-4-1998. The Investigating Officer performed inquest panchanama and sent the dead body for post mortem examination. Spot panchanama was conducted from where the police seized two knives. At the instance of the appellant, the police recovered his clothes, which he had kept at the house of his aunt at village Kasbe Sukane, To Niphad, District Nashik. The articles seized by police during investigation, which were of incriminating nature, were sent for chemical analysis. Sample of blood of appellant was also taken. The post mortem report is at Exh.
41. Memorandum panchanama is at Exh. 36. Seizure panchanama is at Exh. 37 and the clothes of the appellant are Articles No. 1 to 4. After completion of the investigation, the police filed charge sheet in the Court of J.M.F.C., Sillod. The case was committed for sessions trial.
4. The prosecution examined 13 witnesses. The charge (Exh. 3) was framed against the appellant. The appellant pleaded not guilty and claimed to be tried.
5. P.W. 1 Majid Kha s/o Abdulkha Pathan stated in his evidence that he had gone to answer nature’s call in the evening at about 6 p.m. in the field of Moiuddin. At that time, he heard cries of Moiuddin that somebody was being assaulted. So he ran towards that direction. After reaching the spot, he saw that deceased Bhagwan was lying on the ground with bleeding injury on his abdomen and the present appellant was running away from the spot. On enquiry, the deceased told him that his brother-in-law had assaulted him. He identified the appellant who was present in the Court as the same person who had assaulted the deceased. Nothing much is elicited in the cross-examination by the defence.
6. P.W. 2 is Moinabbas whose land is situated between villages Thana and Fardapur. He was knowing deceased Bhagwan. He also heard cries and proceeded to the spot. He saw Bhagwan being beaten. He further say that scuffle was going on between Bhagwan and the present appellant. It seems, Bhagwan was trying to save himself from the appellant. Thereafter, he saw that the appellant made Bhagwan fell down, took out knife from his pocket and stabbed Bhagwan on his stomach. Moinabbas raised shouts hearing which, P.W. 1 Majid came to the spot. Moinabbas had asked the appellant not to assault the deceased but, he did not yield to his request and after assault, ran away. The intestine of Bhagwan had come out due to assault. The appellant had left the knife at the place while fleeing away from the spot. Bhagwan was lifted by this witness and moved towards Fardapur. In the cross-examination, the witness stated that he used to be in the field throughout the day. An omission is brought on record by the defence to the effect that he did not state before police that the appellant took out knife from his pocket.
7. P.W. 3 is Ramesh Ohal, P.S.I. who was on duty at Thanenagar Police Station on 12-4-1998 and was in-charge of Station Diary. He recorded the information received by him that deceased Bhagwan was murdered by his brother-in-law. He deputed a Senior Police Inspector and two constables and, thereafter, he arrested the appellant. He searched the appellant and seized a plastic bag which was containing invitation card of 10th February, 1996 of his sister’s marriage, seized the xerox copy of F.I.R. which was registered against the deceased Bhagwan and others at Police Station Sindhkhed Raja, Dist. Buldhana at CR No. 59/96 for offences punishable under Section 304B, 498A r.w. 34 of I.P.C. The documents found in the plastic bag are at Exh. 13. The F.I.R. is at Exh. 14. Subsequently, the appellant was handed over to Police Station, Soygaon.
8. P.W. 4 is Manik Narote who was examined as spot panch who stated before the Court that he found a plastic bag containing a sari. There were two knives found on the spot, one knife was without handle. Both the knives had some blood stains. A pair of Chappal was found, which is Article No. 2. The plastic bag, which was found on the spot is Article 7 before the Court. Article 3 is knife without handle. A knife with yello handle, which was bend, was also found, which is Article 4. Police seized these articles under a panchanama, which is at Exh. 18.
9. P.W. 5 is Kisan Borse who was working as A.S.I, at the relevant time. He had received a detail report filed by Lahanu Navgire. The said report is at Exh. 20.
10. P.W. 6 is Manik Napate who was serving in Ajanta Caves, probably as a watchman. He stated that he heard a talk that Bhagwan was assaulted in the field but, while proceeding on foot to Fardapur, he had seen a boy standing in the corn field and the appellant sitting in the Court was the same boy who was standing and sitting in the corn field.
11. P.W. 7 is Sayed All Syed Umar who was working as Head Constable. He deposed before the Court that on 10th April, 1998, he was on duty at outpost Fardapur. At about 7 p.m., deceased Bhagwan came in injured condition with others at the police outpost and told the witness that while he was proceeding on foot at about 6.30 or 6.40 p.m. to his village, his brother-in-law i.e., the appellant, assaulted him and stabbed him on his abdomen with a knife. A cloth was tied around his injury which was removed and the Head Constable could notice part of intestine, protruding outside the abdomen. Necessary medical treatment was to be given to the deceased. After making entries in the register, the deceased was shifted in a jeep to Civil Hospital, Jalgaon. While being carried in the jeep, the deceased stated to this witness that his brother-in-law had stabbed him. According to the witness, the appellant was absconding.
12. P.W. 8 is Lahanu Navgire, father of deceased Bhagwan, Bhagwan was the only son of Lahanu. He stated before the Court while giving his evidence that one person came to him and told that his son was stabbed in abdomen and was carried to Jalgaon. He found his son unconscious who had suffered a bleeding injury. A written report of Lahanu is at Exh.
20. In his cross-examination, he stated that the appellant was married to his niece near about six years before the incident and four years thereafter, Sangita, sister of the appellant was married to Bhagwan. He admitted that due to criminal case filed against him and his son, he was suspended from service. He further admitted that he could not talk with the deceased Bhagwan till he died.
13. P.W. 9 is Anusaya Jadhav, who is ‘wife of the appellant and happens to be cousin sister of deceased Bhagwan. She stated that her sister-in-law Sangita had died due to accident and her husband used to harass her and threaten her to kill. Therefore, she was staying with her parents.
14. P.W. 10 is Dr. Surendra Surwade, who had examined deceased Bhagwan Navgire on 10th April, 1998 while he was working as Casualty Medical Officer at Civil Hospital, Jalgaon noted following injury :
“Stab injury over the abdomen left lumber region 2″ x 1/4″ abdominal cavity. Omen-turn coming out of the stab injury. Bleeding was present.”
According to the Medical Officer, the age of the injury was within six hours of his examination. It was grievous in nature and it could have been caused by sharp, cutting and pointed object. The injury was on vital part of the body. He further stated that the injury could have been caused by Article No. 3 or No. 4 before the Court. He stated that it was possible by the knives which were seized by the police. The injury was likely to cause death, according to the Medical Officer.
15. P.W. 11 is Usmankhan s/o Abdul Majid who is a panch witness of seizure of clothes of appellant. At the instance of the appellant, the clothes were seized. The contents of panchanama were admitted by the witness and panchanama was exhibited at Exh. 37. P.W. 12 is Dr. Vijaya Wani who had conducted post mortem of deceased on 12-4-1998 in the afternoon. The Medical Officer noticed following surface wounds :
1) Abrasion with scab over right elbow posterior aspect two in number each measuring 1×1 cm.
2) Abrasion over scab suprasternal region right, 1/2 x 1/2 cm.
3) Linear abrasion with scab below right eye, transverse, 2 cm in length.
4) Abrasion with scab lateral to lateral canbus of left eye.
5) Abrasion with scab over neck anteriorly left supra clavicular region l/2 x 1/2 cm.
6) Multiple small abrasion with scab over back right side.
7) Abrasion with scab over left knee four in number, 1×1 cm each.
8) Operated stitched wound over abdomen, from niphisternum to just above public 16 stitches, 8 inches in length.
9) Operated stitched wound left to umbilicus, 3 stitches, l/2 inches in length.”
The Medical Officer opined before the Court that all the injuries were ante mortem. On internal examination the doctor found that pancreas had through and through cut wound at the head of the pancreas. Duodenum was found sutured. Kidney congested and bladder was empty. According to the Medical Officer, injuries to internal organs were sufficient in the ordinary course of nature to cause death. In his cross-examination, the Medical Officer did not agree to the suggestion of the defence that duodenum or pancreas were not injured. The witness did not agree to the suggestion that the victim could have survived had he not suffered infection in course of operation. He further agreed that with proper treatment infection could have been controlled. According to the Medical Officer, the patient might have died due to septicaemia developed either before or after the operation.
16. P.W. 13 is Rajendra Murkute, A.P.i: who after completion of the investigation, filed charge-sheet.
17. Mr. Deshpande, learned Counsel appearing for the appellant submitted that he was falsely involved in the case as there were some family disputes going on between the appellant’s family and the family of the deceased. The eye-witnesses could not have witnessed the incident and they are merely chance witnesses. There was no motive for the appellant to commit the crime. In the alternative, the learned Counsel submitted that according to the prosecution evidence, there was a scuffle and fight between the appellant and the deceased. The deceased must be having a knife, as two knives were found at the spot, which were blood stained and in the sudden fight, to save himself, the appellant must have assaulted the deceased without intention to cause death of deceased Bhagwan. He submitted that this case falls under Exception 4 of Section 300 of I.P.C. and for causing a single blow, the appellant need not be convicted for life for offence punishable under Section 302 of I.P.C. which was not premeditated act and was a result of a sudden fight. On the aspect of medical evidence, the learned Counsel submitted that the deceased, according to the Medical Officer, died due to septicaemia and if proper medical care was provided to the deceased, he would have survived. Looking to the age of the appellant, the learned counsel prayed for leniency.
18. We have considered the evidence on record and perused the relevant original record and proceedings. It has come on record that sister of appellant was married to deceased Bhagwan. Sangita, wife of deceased Bahgwan succumbed to burn injuries. A criminal case was pending, at the relevant time, against the deceased and his relations in Buldhana district. The deceased was to remarry and he was engaged in inviting his relations for attending his marriage. While the deceased was proceeding to his village, the appellant armed with a knife, intercepted the deceased, overpowered him and assaulted him with a knife on his abdominal region. The blow was severe. The intestine and abdominal material had protruded. P.W. 1 Majidkhan and P.W. 2 Moinabbas had seen the appellant running from the spot soon after the assault. Before both the witnesses the deceased made a statement that his brother-in-law, the appellant had assaulted him with a knife. The presence of the witnesses on the scene of offence cannot be doubted and there is nothing in the cross-examination of these witnesses to discard their testimonies.
19. The deceased was taken to the police station and thereafter, he was taken to Jalgaon for medical treatment. Before P.W. 7 Syed All, Police Head Constable, the deceased made further statement reiterating his earlier stand that appellant had assaulted him with a knife. Unfortunately, the father of the deceased, P.W. 8 Lahanu Navgire could not have a talk with the deceased, probably because he was not conscious thereafter. A complaint was also lodged promptly by Lahanu against the appellant who was absconding for some time but, later on arrested by police. P.W.9 Anusaya Jadhav, wife of the appellant also supported the prosecution case.
20. The learned Counsel for the defence submitted that there was a scuffle and a sudden fight between the appellant and the deceased. This theory of defence did not emerge during the cross-examination of the witnesses. The appellant had made statement under Section 313 of Cr.P.C. in which he stated that on 10th April, 1998, while the appellant was proceeding to bring his wife Anusaya, he met deceased Bhagwan who suddenly assaulted him. There was a scuffle between both of them. The appellant tried to rescue himself but he was not aware as to what happened thereafter. The statement made under Section 313 of Cr.P.C. by the accused further lends credibility to the prosecution case that the appellant was present on the spot and there was no falsity in the disclosure made by the deceased to the prosecution witnesses about assault. We may usefully quote the questions asked to the appellant by the Court under Section 313 of Cr.P.C. and the answers given by the appellant :
“Q. 10 : P.W. 2 Moinabbas states that at about 6 p.m. on the incidental evening when he was in his field, he heard Bahgwan’s cries that he was being beaten and ran in the direction of the sound and found a scuffle between you and Bhagwan going on. What have you to say about it?
Ans. : There was a scuffle.
Q. 11 : He further states that Bhagwan was trying to run away from you and that you made Bhagwan fall down, took out a knife from your pocket and stabbed Bhagwan in stomach. What have you to say about it ?
Ans : When I was walking Bhagwan assaulted me. I ran to save myself.”
21. It could be gathered that to a question, the appellant replied that while he was walking Bhagwan assaulted him and he ran away to save himself. We do not notice any injury to the person of the appellant except a trauma due to loss of half nail of index finger. Instead, the deceased suffered multiple injuries, which are indicative of the factor that the appellant had pounced upon the deceased with a knife and gave a severe blow on his abdominal region. The medical evidence is sufficient to indicate the seriousness of the injury. The learned Counsel for the defence has further argued that the P.W. 12 Dr. Vijay Want has stated that the patient might have died due to septicaemia, developed either before or after operation. The learned Counsel could not satisfy us that septicaemia was caused due to negligence in treatment. Considering the nature of the injuries and the medical evidence, we find that even if septicaemia had developed, the same was due to the nature of injury caused by the appellant to the deceased and not otherwise. Prompt medical care was also provided to the deceased in this case. But, the severity of blow and its gravity was such that the deceased could not survive for a long time. It has occurred in the medical evidence that the duodenum was found sutured and pancreas had through and through cut wound at head of the pancreas. We are not inclined to accept the version of the defence that as panchanama refers to two knives found on the spot, one must belong to the deceased.
22. The Chemical Analyser’s report shows that one of the knives seized by the police on the spot of the incident, was having blood stains with disintegrated elements. It was unsuitable for grouping. On the shirt which was .seized from the spot, blood of group “B” was found. No blood was found on the articles 4 and 5 i.e. Jean full pant and “T” Shirt respectively. P.W. 4 Manik Narote, spot panch stated that he noticed blood on both the knives.
23. Even, if it was found that both the knives had bloodstains, the defence does not get benefit of the same. The appellant had not suffered any injury by knife. Finding of two knives at the spot is of no relevance as we do not find anything in the cross-examination of the witnesses which would help the defence.
24. The learned A. P. P. appearing for the State submitted that the motive in this case is obvious one. The sister of the appellant, married to the deceased had expired. The deceased was to remarry again. The appellant was having a grudge in his mind and with the same, he proceeded to the village of the deceased, armed with a knife and seeing the deceased, he assaulted him with the knife on vital part and thereafter, ran away from the spot. The presence of the eye witnesses is natural and there is nothing, according to the learned A.P.P., to discard the oral dying declaration made by the deceased before the prosecution witnesses. The declarations are corroborated by other piece of evidence which is brought on record by the prosecution, which is reliable one.
25. Considering the quality of evidence brought on record, the declarations made by the deceased before the prosecution witnesses, we are of the view that no suspicion could be raised as regards the truthfulness of the dying declaration made by the deceased before the prosecution witnesses, which involve the appellant as an assailant of the deceased. The other circumstances like recovery of knives and clothes of the deceased lend further corroboration to the prosecution case.
26. The Medical Officer P.W. 12 Dr. Vijay Wani deposed before the Court thus :
“Toxemia or septicaemia occur due to release of toxic product in circulation due to the injuries to abdominal organ. This release of toxic product is a natural process. The release of toxic product was principally due to injury to pancreas. The injuries to internal organs observed by me were sufficient in ordinary course of nature to cause death.”
The learned Counsel for the appellant submitted that the deceased must have died due to septicaemia and alleged blow with knife on the stomach of the deceased was not the direct result of his death. Considering the thrust of blow which was given by the appellant on the stomach region of the deceased, it is noticed that the internal organs were cut. There was loss of blood and, therefore, the doctor opined that the injuries suffered by the deceased to internal organs were sufficient in the ordinary course of nature to cause death of the deceased. Considering the nature of injuries suffered by the deceased and the medical evidence which is brought on record, we are of the view that the blow given by the appellant to deceased Bhagwan with the help of knife was the direct result of cause of death of the deceased. Assuming that the deceased had developed septicaemia but, the same could not be termed a cause which developed due to want of proper medical aid provided to the deceased or due to negligence. We may usefully refer to paragraphs 25 and 26 from the reported judgment of this Court in the case of Nandkumar Natha v. State of Maharashtra, 1988 Cri LJ 1313, which read thus :
“25. Similar is the view taken by a Division Bench of the Madhya Pradesh High Court in Manajar Allabux v. State . It has been pointed out in that case that broadly speaking the Courts have to distinguish between two types of cases; namely those cases where the intervening cause of death, like peritonitis, is only a remote and a rather improbable consequence of the injury and those cases where the so-called complication which is the intervening cause of death is itself a practically inevitable sequence to the injury. In the first place, it may be that the complication was not the cause of death, but in the latter case when the probability is very high amounting to practical certainty, then death must be held to be the result in due course of natural events. In the case before the Madhya Pradesh High Court, a deep abdominal thrust with a knife followed by injury to the internal organs had been given. It was found to be practically certain that the said injury would result in acute peritonitis which caused the death.
26. The Madhya Pradesh High Court in fact relied upon a judgment of the Nagpur High Court namely Salebhai v. Emperor . In this case it was held that the offence amounted to murder even though death was ultimately due to supervention of gangrene and paralysis of intestines. The Nagpur High Court, while so holding expressed their agreement with a similar view taken earlier in Lal Singh v. Emperor, AIR 1938 Lah 31 : 39 Cri LJ 265.”
27. Considering the aforementioned reasons, we have no doubt in our mind that the appellant was the assailant of the deceased who committed a serious crime and, therefore, deserves punishment, accordingly. We do not find any error in the reasoning adopted by the trial Judge in convicting and sentencing the appellant. We, therefore, affirm the reasoning adopted by the trial Court and confirm the impugned judgment and order dated 20-7-1999 passed by the Sessions Judge, Aurangabad in Sessions Case No. 232 of 1998.
28. Criminal Appeal No. 304/1999 stands dismissed. The appellant is on bail. The appellant shall surrender to his bail within six weeks from today. His bail bonds stand cancelled.