Sanjay Khanderao Wadane vs The State Of Maharashtra

Sanjay Khanderao Wadane .... Appellant(s)

Versus

State of Maharashtra .... Respondent(s) WITH CRIMINAL APPEAL NO. 604 OF 2012

JUDGMENT

R.K. Agrawal, J.

1) The above appeals have been filed against the common

judgment and order dated 11.01.2011 passed by the High

Court of Judicature of Bombay, Bench at Aurangabad, in

Criminal Appeal Nos. 246 and 250 of 2009 whereby the

Division Bench of the High Court confirmed the order of

conviction and sentence dated 09.04.2009 passed by the

Court of Sessions, Ahmednagar in Sessions Case No. 88 of

2008 for the offences punishable under Sections 143, 147, Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2017.08.03 16:25:17 IST Reason: 1 148, 302 read with Section 149 and Section 326 read with

Section 149 of the Indian Penal Code, 1860 (in short ‘the IPC’).

2) Brief facts:

(a) It is the case of the prosecution that on the fateful

evening of 31.01.2008, Ravindra Kale (since deceased) was

beaten to death by the appellants herein and others, who were

12 (twelve) in numbers and were armed with swords and iron

pipes, owing to a long standing dispute between the deceased

and the accused persons.

(b) Shaila Kale (PW-12) – wife of the deceased, filed a

complaint with regard to the alleged crime which got registered

as Crime No. 14 of 2008 against the accused persons. After

investigation, the charges were framed and the case was

committed to the Court of Sessions and numbered as Sessions

Case No. 88 of 2008.

(c) Vide judgment and order dated 09.04.2009, the Court of

Sessions, Ahmednagar, convicted the appellants herein, viz.,

Pandurang Shridhar Wadane and Sanjay Khanderao Wadane

along with others under Sections 143, 147, 148, 302 read with

Section 149, Section 326 read with Section 149 of the IPC and

2 sentenced to rigorous imprisonment (RI) for life along with

fine.

(d) Aggrieved by the judgment and order dated 09.04.2009,

the appellants herein, along with others, preferred Criminal

Appeal Nos. 246 and 250 of 2009 before the High Court. A

Division Bench of the High Court, vide common judgment and

order dated 11.01.2011, confirmed the order of conviction and

sentence passed by the Court of Sessions against the

appellants herein.

(e) Being aggrieved by the order dated 11.01.2011, the

appellants have preferred these appeals by way of special leave

before this Court.

3) Heard learned counsel for both the sides and perused the

records.

4) The alleged incident is said to have occurred on

31.01.2008 at about 5:00 p.m. There was some dispute

between the deceased and the accused persons and earlier

also there were incidents of scuffle between the parties. On

the date of the incident, the deceased was standing in front of

a tea stall in his village. Anil Kale (PW-5), brother of the

3 deceased was also present there. Suddenly, the appellants

herein, along with other accused persons, came to the spot in

a car and 2 motorcycles. The car gave a hit to the deceased

due to which he fell down. Immediately thereafter, the

accused persons, along with others, started beating him with

swords and iron pipes. Anil Kale (PW-5), who was present at

the spot and is an eye-witness to the incident, immediately

rushed to call the wife of the deceased who was working

nearby. When the wife of the deceased reached the spot, she

also witnessed that the accused persons, along with others,

were beating her husband. Sunil Raosaheb Kale (PW-8),

Devdas Magar and Shridhar Salve were also present at the

spot and also sustained injuries while rescuing the deceased.

The information of the said incident was given by Anil Kale to

the police over phone and the deceased was shifted to the

Hospital where he was declared brought dead. The charges

were framed against the accused persons under various

Sections of the IPC including Section 302 read with Section

149 and were later on confirmed by the Sessions Court and

the High Court against them. Since a common question of law

4 has arisen in these appeals, the same will be disposed of by

way of this common judgment.

5) For a better appreciation of the matter, it is pertinent to

throw light upon the versions of the prosecution witnesses.

Since in the present set of appeals only the appellants herein

are before us, we are confining our discussion to them only.

There is no doubt that the death was homicidal. Anil Kale-real

brother of the deceased, who was examined as PW-5, very

categorically narrated the whole incident as to how the

accused persons reached the spot in a Van and motorcycles.

Further, the appellants herein got down from the car and were

armed with swords and others were armed with iron pipes.

One Sambhaji Aher gave two blows on the head of the

deceased using sword. On seeing this, he rushed to call

Shaila Kale (PW-12) – wife of the deceased, who was working

near to the place of the incident. On his return, he witnessed

that the accused persons were beating his brother using

swords and iron pipes. He also witnessed that Sunil Kale,

Devdas Magar and Shridhar Salve also got injuries while

rescuing the brother of the deceased. Anil Kale made a phone

5 to the police station informing about the incident. This

witness further deposed that there was long standing rivalry

between the parties. Anil Kale had seen the accused persons

while causing injury on the head of his brother by means of

swords and iron pipes. His evidence clearly shows that he had

seen Sambhaji Aher giving two blows on the head of the

deceased and had also seen the appellants herein causing

injury on the person of the deceased. He also witnessed the

injuries caused to Sunil Kale (PW-8) and Shridhar Salve

during the said incident. Though the High Court has

discarded the testimony of this prosecution witness, on a

perusal of the examination and cross examination of this

witness, we are of the opinion that he has narrated the

incident exceptionally well and contradictions, if any, are so

minor in nature that it does not go to the root of the matter.

6) Sunil Raosaheb Kale – cousin brother of the deceased

was examined as PW-8. He deposed before the Court that the

accused persons reached the spot in a Van and on two

motorcycles. The appellants herein got down from the Car and

were armed with swords. First blow was given by Sambhaji

6 Aher using sword on the head and second on the face of the

deceased. The appellants herein were also causing injuries to

the deceased using iron pipes and swords. When he tried to

rescue the deceased, Sambhaji Aher gave a sword blow to his

left leg. He further deposed that Anil Kale brought the wife of

the deceased at the spot. The police brought him to the

hospital at Shevgaon from where he was shifted to Civil

Hospital, Ahmednagar for further treatment. During his

cross-examination, he deposed that he ate ‘Bhel’ with the

deceased before the incident. Learned counsel for the

appellants pointed out that the fact of eating ‘Bhel’ by the

deceased had not come up in the post mortem examination of

the deceased which creates a doubt that the narration of the

whole incident by the witness is a result of an afterthought.

7) Learned counsel for the appellants contended that the

story of PW-8 that he and the deceased had ‘Bhel’ is falsified

by the evidence of Dr. Neeta (PW-10), who conducted the post

mortem of the body of the deceased wherein she stated that

she did not find any food particles in the intestine of the

7 deceased. In this backdrop, it is pertinent to mention here the

post mortem examination of the deceased which is as under:-

“A very extensive lacerated wound over face including both eyes, nose, mouth, tongue, right cheek along with multiple bone fractures including right orbital bones, right maxilla, nestle bone, right mandible along with this both eye balls are collapsed.

Incise wound over infra mandible area of about 5 x 0 x 2 x 2 cm.

Incise wound over frontal area with frature frontal bone of 5 x 0.5 x 3 cm.

Incise wound over left wrist dorsal aspect of about 4 x 0.5 x . 5 cm.

Incise wound over right partial area of 5 x 5 x 0.5 x 0.5 cm. Contusion over left side lower abdomen of 8 x 2 cm.

According to my opinion the probable cause of the death of deceased is due to cardio respiratory arrest due to hemorrhage as well as nurogenic shock due to very extensive lacerated wound over fact including brain along with multiple bone fracture of face. Accordingly, I have prepared PM Notes which is in my hand writing. I am shown the same. It bears my signature, contents are correct. It is at Exh. 67. The injuries mentioned in Cl. 17 and 19 were ante-mortem injuries. The said patient may die instantly on account of causing injuries to him as mentioned in post mortem notes. Incised wound caused to the deceased could be possible by means of sharp edged weapon. Incised could caused to the deceased as mentioned in Col. 17 could be possible by means of sword i.e., Art. No. 16 and 17 which are now shown to me before the Court. The injury No. 16 as mentioned in PM Notes could be possible by article No. 18 and 19 which are now shown to me. Injury No. 1 mentioned in CL. 17 of PM Notes could not be possible by various blows of the weapon. The dead body of the deceased Ravindra was lying in dead house of Shevgaon and I have carried out post mortem examination over the dead body of the deceased there.”

8 Further, during cross-examination, PW-10 deposed as

under:-

“Time of death of person can be ascertained by looking into the stomach contains, if someone eats food then it remains in stomach for half an hour and then it goes to the intestine. One can identify the food particles eaten by said patient within the period of two hours from that time. I did not find any food particles in the intestine of the deceased.”

A medical witness who performs a post-mortem examination is

a witness of fact though he also gives an opinion on certain

aspects of the case. The value of a medical witness is not

merely a check upon the testimony of eyewitnesses; it is also

independent testimony because it may establish certain facts

quite apart from the other oral evidence. From the evidence

on record, inferences are drawn as to the truth or otherwise of

the prosecution case in criminal matters and truth or

otherwise of a claim in civil matters. In this process, the

medical evidence plays a very crucial role. If there is

inconsistency or discrepancy between the medical evidence

and the direct evidence or between medical evidence of two

doctors, one of whom examined the injured person and the

9 other conducted post mortem on the injured person after his

death or as to the injuries, then in criminal cases, the accused

is given the benefit of doubt, and let off. Where the direct

testimony is found untrustworthy, conviction on the basis of

medical evidence supported by other circumstantial evidence

can be done, if that is trustworthy. On a careful perusal of the

post mortem conducted by PW-10, it is very much clear that

the death is caused by means of a sharp edged weapon and

that too possibly by means of sword. The evidence given by

PW-10 fully corroborates with the version given by PW-5 and

PW-8 that the appellants herein caused the death of the

deceased using swords and iron pipes. It has been specifically

mentioned in the report that injuries could be possible by

various blows of the weapons. Further, the death was caused

due to cardio respiratory arrest due to hemorrhage as well as

neurogenic shock due to very extensive lacerated wound over

face including brain along with multiple bone fractures on

face. The evidence of a medical person is merely an opinion

which lends corroboration to the direct evidence in the case. It

has been observed in various cases of this Court that where

10 the eye witnesses’ account is found credible and trustworthy,

medical opinion pointing to alternative possibilities is not

accepted as conclusive.

8) Now, we shall deal with the other aspect of the argument

advanced on behalf of the appellants i.e. in relation to

uncertainty in the time of occurrence as well as death of the

deceased, with reference to expert evidence. The contention is

that as per the statement of PW-8, they had ‘Bhel’ just before

the incident. However, according to the medical evidence,

there were no food particles in the stomach of the deceased.

Therefore, the version of PW-8 is falsified by the evidence of

PW-10, more particularly, wherein she has stated that she did

not find any food particles in the intestine of the deceased.

According to the learned counsel for the appellants, this

causes a serious doubt on the very basis of the prosecution

story. This argument appears to be of some significance at the

first brush, but when examined in depth in light of the entire

evidence, it clearly lacks merit.

9) The presence or absence of food at the time of

post-mortem in relation to the time of death is based on various

11 factors and circumstances such as the type and nature of the

food consumed, the time of taking the meal, the age of the

person concerned and power and capacity of the person to

digest the food. In the present case, though PW-8 has stated

that he had ‘Bhel’ with the deceased just before the incident,

there is no evidence about the exact time when the meals were

taken or the quantity of ‘Bhel’ consumed by the deceased.

Judging the time of death from the contents of the stomach,

may not always be the determinative test. It will require due

corroboration from other evidence. If the prosecution is able to

prove its case beyond reasonable doubt and cumulatively, the

evidence of the prosecution, including the time of death, is

proved beyond reasonable doubt and the same points towards

the guilt of the accused, then it may not be appropriate for the

court to wholly reject the case of the prosecution and to

determine the time of death with reference to the stomach

contents of the deceased. Even in Modi’s Jurisprudence, it has

been recorded as under:

“… The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would

12 be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of.”

Where there is positive direct evidence about the time of

occurrence, it is not open to the court to speculate about the

time of occurrence by the presence of faecal matter in the

intestine. The question of time of death of the victim should

not be decided only by taking into consideration the state of

food in the stomach. That may be a factor which should be

considered along with other evidence, but that fact alone

cannot be decisive.

10) This Court in a catena of cases has stated the dictum

that medical opinion is admissible in evidence like all other

types of evidence and there is no hard-and-fast rule with

regard to appreciation of medical evidence. It is not to be

treated as sacrosanct in its absolute terms. Agreeing with the

view expressed in Modi’s book on Medical Jurisprudence and

Toxicology, this Court recorded that so far as the food contents

are concerned, they remain for long hours in the stomach and

the duration thereof depends upon various other factors.

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11) Further, in Malay Kumar Ganguly vs. Sukumar

Mukherjee AIR 2010 SC 1162, it has been held by this Court

that the opinion could be admitted or denied. Whether such

evidence could be admitted or how much weight should be

given thereto, lies within the domain of the court.

12) It is clear from the depositions of the prosecution

witnesses, viz., PW-5 and PW-8 which corroborates with the

deposition of PW-10 that the injuries were sustained by a

sharp cutting object and not by hard and blunt object.

Further, the plea raised by learned counsel for the appellants

with regard to non-founding of food particles in the intestine of

the deceased is of no basis as the digestion varies with

different person even with same material, and sometimes even

with the same person at different times. With incomplete

digestion, no reliable opinion can be given on a medical basis.

In fact, there is no positive evidence that the deceased had

‘Bhel’ along with others. If the period of digestion is six hours,

the food will be in semi-digested stage upto 2 to 2½ hours and

if someone takes food then it remains in stomach for half an

hour and then it goes to the intestine. Even if it be taken that

14 the deceased had ‘Bhel’ along with others and five minutes

thereafter the incident started in which he succumbed to his

injuries, the food will not be converted into semi-digested state

and the doctor will not find any food particles in the intestine.

The digestion of food is one of the important data which guide

the medical officer in arriving at an opinion as to the time of

death. This is possible on internal examination.

13) Shaila Kale-wife of the deceased was examined as PW-12.

She also deposed that when she was asked by Anil to come,

she immediately rushed to the spot and noticed that the

appellants herein were armed with swords and were beating

her husband who succumbed to his injuries then and there.

She lodged a report with the Police about the incident which

was reduced into writing by mentioning the names of all the

accused persons therein.

14) In this view of the matter, the evidence of PWs 5, 8 and

12 are found to be trustworthy and fully corroborated with

each other on the point of alleged incident with regard to the

involvement of the appellants herein. Further, there evidence

fully corroborates with the medical evidence given by the

15 Doctor who conducted the post mortem of the deceased. Even

the injuries sustained by PW-8 while rescuing the deceased

from the clutches of the accused persons have been examined

and proved by Dr. Kundalick (PW-11) who found them to be of

grievous nature. We are of the view that the evidence of the

witnesses cannot be brushed aside merely because of some

minor contradictions, if any, particularly for the reason that

the evidence and testimonies of the witnesses are trustworthy.

However, the prosecution failed to examine Devidas Magar and

Shridhar Salve who said to have rescued the deceased.

Conclusion:

15) The prosecution has examined material witnesses, viz.,

PW-5, PW-8 and PW-12 who are the eye-witnesses to the

alleged incident. In our opinion, the High Court was not right

in discarding the testimony of PW-5 and PW-12 taking into

consideration the role played by the appellants herein. The

presence of the above witnesses at the place of occurrence is

clearly established and is not at all doubtful. Though there are

certain discrepancies but those are so minor in nature that it

cannot harm the case of the prosecution. Their evidence

16 inspires confidence and is natural one which clearly shows

that the accused persons formed an unlawful assembly along

with others with a common object to murder the deceased

which was done by causing injuries to his person using fatal

weapons which fully corroborates with the oral evidence as

well as the post mortem report of the Doctor (PW-10) who

conducted the post mortem. We do not find any conflict

between the oral evidence of the above witnesses and medical

evidence of PW-10 as alleged by learned counsel for the

appellants, particularly, on the point of injuries caused to the

deceased on face and head using swords and iron pipes.

16) In view of the foregoing discussion, we do not find any

infirmity in the orders passed by the High Court with regard to

the conviction and sentence of the appellants-accused. The

appeals are accordingly dismissed.

………….………………………J. (A.K. SIKRI)

.…....……..………………………………J. (R.K. AGRAWAL) NEW DELHI;

AUGUST 3, 2017.

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