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2005 DIGILAW 1581 (BOM)

DEVIDAS LALSAY GAVANDE v. STATE OF MAHARASHTRA

2005-11-22

D.S.ZOTING, K.J.ROHEE

body2005
Judgment D. S. ZOTING, J. ( 1 ) THE original accused has preferred this appeal against the judgment and order of conviction dated 30th March, 2002 passed by the 2nd Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Case No. 71 of 2001 whereby the accused has been convicted and sentenced for an offence punishable under section 302 of the Indian Penal Code to suffer rigorous imprisonment for life and to pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for two months. ( 2 ) THE appellant was prosecuted for the offences punishable under sections 302 and 317 of the Indian Penal Code. The prosecution case in brief is that the appellant was residing at village Pendhari. Deceased Akash, aged about 4 years, was the son of appellant. Witness Chanda (PW 5) is the wife of appellant. Appellant along with his wife and son started residing at Vivekanand Nagar, gadchiroli. Six months prior to the incident, his wife deserted him and left his house by keeping her son Akash with the appellant and she started residing with one Ganesh Bhoyar as his keep. The appellant used to do labour work and therefore, he was facing problem of his son Akash. It is alleged that on 30-6- 2001, the appellant with intent to get rid of the child brought him in the forest behind Semana Temple which is 5 kms away from Gadchiroli and he pressed his throat and threw him in the bush in the said forest and he went back to his house. Some boys were grazing cattle in the said forest. One of them heard the cry of the child from the bush. The boys went towards the bush. They brought child to semana Temple. PW 2 Namdeorao was working as President of Semana Temple. The boys handed over the child to Namdeorao and informed him that child was found in the bush. Namdeorao (PW 2) made enquiry with the child who disclosed his identity. Near the temple there is one Nursery. Some ladies were working in the Nursery. They offered water to said Akash. One lady, viz. Sindhubai (PW 4) made enquiries with Akash about his name, name of this father, mother and place of his residence. The child gave full information. Namdeorao (PW 2) made enquiry with the child who disclosed his identity. Near the temple there is one Nursery. Some ladies were working in the Nursery. They offered water to said Akash. One lady, viz. Sindhubai (PW 4) made enquiries with Akash about his name, name of this father, mother and place of his residence. The child gave full information. As blood was oozing from the nose of the child, she had cleaned the same and on further enquiry the child told her that his father brought him towards Semana Temple saying that he is going to purchase new clothes for him and he beat him. She fed him with cooked rice. Though the child was giving answers to the questions put to him, but his physical condition was not proper and he was just as paralytic Namdeorao took the child to the Police Station and informed the police that the said child was found in the forest behind Semana Temple. The child was referred to the General Hospital, gadchiroli and he was admitted in the hospital on the very day of the incident. The accused was brought to the Police Station on 4-7-2001. His statement was recorded ASI Nepalchandra (PW 5) made enquiry and his enquiry revealed that the appellant abandoned the child and attempted to kill him. Therefore, he himself lodged report on behalf of the State on the basis of which crime No. 135/01 under sections 317 and 307 of the Indian Penal Code came to be registered against the appellant and the further investigation was entrusted with PW 9 mangalsingh Daberao. On 5-7-2001 the child was referred to the Government medical College, Nagpur for further treatment. The child died on 6-7-2001 in the hospital. Police held inquest on the dead body of the deceased and drew inquest panchanama in presence of panchas. Dead body was referred to Dr. Dikshit (PW 8) for post-mortem examination. Dr. Dikshit conducted autopsy on the dead body of the deceased and opined that death of Akash was caused due to cerebral and pulmonary oedema. After completion of investigation, charge-sheet was submitted against the accused for the offences punishable under sections 317 and 302 of the indian Penal Code in the Court of Chief Judicial Magistrate, Gadchiroli. ( 3 ) OFFENCE under section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions. After completion of investigation, charge-sheet was submitted against the accused for the offences punishable under sections 317 and 302 of the indian Penal Code in the Court of Chief Judicial Magistrate, Gadchiroli. ( 3 ) OFFENCE under section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions. Therefore, the learned Chief Judicial Magistrate committed the case to the Court of Sessions for trial according to law. Charge under sections 317 and 302 of the Indian Penal Code was framed against the accused. It was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. His defence is that of denial. He admitted that his wife deserted him and child and the child was living with him and he was moving in search of the child. He received information that the child was taken to the Police Station. Therefore, he went to the Police Station, informed the police, but his report was not taken down and he stayed with the child in the hospital for two days and thereafter police arrested him and made a false case against him. He has not adduced any evidence in his defence. ( 4 ) DURING trial, as many as nine witnesses have been examined. On appreciation of the evidence on record, the trial Court found that deceased Akash met with homicidal death and the appellant is responsible for the said homicidal death. For recording the above finding, the trial Court has relied upon the dying declaration made by the deceased child and the fact that the accused who was custodian of the child, failed to explain how the child was found in the forest in the bush. In view of the finding recorded by the trial Court the trial Court convicted and sentenced the accused for the offence punishable under section 302 of the Indian Penal Code in the manner stated in paragraph 1 of this judgment. However, the trial Court acquitted the accused of the offence charged under section 317 of the Indian Penal Code. ( 5 ) AGGRIEVED by the said judgment and order of conviction passed by the trial Court against the accused for an offence punishable under section 302 of the indian Penal Code, he has preferred this appeal and challenged the said order of conviction and sentence before this Court. ( 5 ) AGGRIEVED by the said judgment and order of conviction passed by the trial Court against the accused for an offence punishable under section 302 of the indian Penal Code, he has preferred this appeal and challenged the said order of conviction and sentence before this Court. ( 6 ) WE have heard the arguments advanced by Mr. M. R. Daga, the learned counsel for the appellant and Mr. J. B. Jaiswal, the learned Additional Public prosecutor appearing on behalf of the respondent State of Maharashtra. Mr. Daga, the learned counsel for appellant submits that the trial Court was in error to have come to its finding that deceased Akash Met with homicidal death and the accused is responsible for the said homicidal death. He further submits that there are no external or internal signs of throttling because, according to him, in the case of throttling death would have been instantaneous. He further submits that the Trial Court erred in accepting the evidence of Sindhubai (PW 4) for basing the conviction. He submits that other witnesses do not speak about the dying declaration and they do not refer to the presence of Sindhubai (PW 4 ). He further submits that her police statement came to be recorded after receipt of postmortem report and as such, she is a got-up witness. He further submits that the subsequent conduct of the accused points towards his innocence, because he was moving in search of the child and on receipt of information that the child has been admitted in hospital, he stayed in the hospital with the child for two days. As against this, the learned APP has fully supported the judgment passed by the Trial Court. ( 7 ) WE have given anxious consideration to the submissions made before us by both the parties. In view of the submissions made by the parties, following points arise for our consideration :-1. Whether it is proved that deceased Akash met with homicidal death? 2. Whether it is proved that the accused is responsible for the said homicidal death?3. What offence is proved to have been committed by the accused ? our findings are as under :-1. . . Yes 2. . . Yes 3. . . Offence under section 304 Part-II Indian Penal Code. 2. Whether it is proved that the accused is responsible for the said homicidal death?3. What offence is proved to have been committed by the accused ? our findings are as under :-1. . . Yes 2. . . Yes 3. . . Offence under section 304 Part-II Indian Penal Code. ( 8 ) THE fact that deceased Akash was admitted in hospital with effect from 30-6-2001 and he died in the hospital on 6-7-2001 is not disputed by or on behalf of the appellant Dr. Wanjari (PW 6) who was on duty as Casualty Officer in the government Hospital at Gadchiroli gave evidence that on 30-6-2001 the child named Akash Devidas Gavande was brought to the hospital by police at 8. 40 pm and he was admitted in the said hospital. He examined him and on examination he noticed that the child was having pain and swelling on nose and he was having pain in left side of chest, abdomen and back. According to him, the injuries were fresh. He stated that the child was not in a position to walk and he was not in a condition to talk. He was only pointing towards chest, abdomen and nose. As there was no improvement in the condition of the child, he was shifted to the government Medical College, Nagpur for further treatment on 5-7-2001. The child died on 6-7-2001. Dr. Dikshit (PW 8) conducted autopsy on the dead body of deceased Akash, aged about 4 years. At the time of examination, he noticed blood tinged froth at nostril and on internal examination, he noticed that brain was severally congested and oedematous. He noticed small haemorrhagic spots over parietal region. He further found that pleura was congested. He noticed yellowish brown area of haemorrhage in strap muscles at level of thyroid on both sides and both lungs were found severally oedematous and congested. He opined that death of Akash was caused due to cerebral and pulmonary oedema. He was specifically mentioned in column No. 20 (c) of the post-mortem report about yellowish brown area of haemorrhage in strap muscle at level of thyroid on both sides and according to him these signs had occurred due to throttling. He further stated that cerebral and pulmonary odema was due to throttling and that was the late cause of death. He was specifically mentioned in column No. 20 (c) of the post-mortem report about yellowish brown area of haemorrhage in strap muscle at level of thyroid on both sides and according to him these signs had occurred due to throttling. He further stated that cerebral and pulmonary odema was due to throttling and that was the late cause of death. He was categorically stated that signs of throttling which have been mentioned by him column No. 20 (c) of the post-mortem report (Exhibit 30) cannot be found by external examination. In cross-examination he stated that due to throttling there might be internal injury on arteries, but it will depend on the pressure used for throttling. He has negatived the suggestion given to him in the cross-examination that there must be fracture of larynx, traches and bronchi in each and every case of throttling. In view of the said opinion, there appears no substance in the contention raised by the learned counsel for the appellant that death should be instantaneous in the case of throttling. It appears that the symptoms of fracture to larynx, trachea and bronchi will appear when there is heavy pressure used for throttling. It is to be noted that Dr. Dikshit was not confronted with Medical Jurisprudence of any author to give any opinion different from the opinion expressed by him. ( 9 ) LEARNED counsel for the appellant submits that Dr. Dikshit has admitted in cross-examination that cerebral and pulmonary odema can occur due to pneumonia. It is further submitted that the child might have suffered from pneumonia and died. There appears no substance in this contention, because the child was examined by Dr. Wanjari (PW 6) on 30-6-2001. At that time, he did not find that the child was suffering from pneumonia. Apart from this, there are symptoms other than cerebral and pulmonary odema noticed by Dr. Dikshit (PW 8) and it is not brought in his cross-examination that such other symptoms also appeared in the case of pneumonia. It is to be noted that the qualification of dr. Dikshit is MBBS, MS (Path), MD (FMT) and at the relevant time, he was working as Associate Professor in the Department of Forensic Medicines at government Medical College, Nagpur. Having regard to the opinion expressed by Dr. It is to be noted that the qualification of dr. Dikshit is MBBS, MS (Path), MD (FMT) and at the relevant time, he was working as Associate Professor in the Department of Forensic Medicines at government Medical College, Nagpur. Having regard to the opinion expressed by Dr. Dikshit in his deposition which remained unshattered in the cross- examination, we are of the opinion that the prosecution has succeeded in proving that deceased Akash died due to the injuries referred to by Dr. Dikshit in the post-mortem report which, according to him, are the symptoms of throttling. Thus, there cannot be any doubt in this case that deceased Akash met with homicidal death. ( 10 ) THE vital question that arises for consideration is, whether the prosecution has succeeded in proving that the accused is responsible for the said homicidal death. In support of its case, the prosecution has placed reliance on the dying declaration made by the child before witness Sindhubai (PW 4) and failure on the part of the accused to explain as to how the child who was in his custody was found in the bush in the forest at a distance of 5 kms from the residential house. ( 11 ) CHANDA (PW 5), the wife of appellant gave evidence that there were disputes between herself and appellant and, therefore, she left the house of accused and started living with one Ganesh Bhoyar as his keep. She stated that she deserted her husband and the child Akash. The accused has not disputed this piece of evidence in his examination under section 313 Criminal Procedure Code. Thus, it is evident that the child Akash was in the exclusive custody of the accused being his father. ( 12 ) VASANT (PW 1) who is a grazier, gave evidence that he along with other boys had gone to the forest to graze cattle and at about 4. 00 pm he heard the cry of a child from bush in the forest. Hence, he along with his companion boys went to the bush and found the child who was crying in that bush. He stated that the child was taken out from the bush and at that time he noticed that his condition was just as paralytic. 00 pm he heard the cry of a child from bush in the forest. Hence, he along with his companion boys went to the bush and found the child who was crying in that bush. He stated that the child was taken out from the bush and at that time he noticed that his condition was just as paralytic. He stated that the said forest is 1 km away from Semana temple and handed over the boy to Namdeorao (PW 2) who is President of the said Temple. This witness has made it clear that on enquiry the child stated his name, his fathers name, surname and the name of his village which clearly shows that the child was in a fit condition to make statement though physically he was not in a position to walk. His evidence finds full corroboration in the deposition given by Namdeorao (PW 2 ). Namdeorao (PW 2) gave evidence that the graziers brought the child from forest to the Temple and the condition of the boy was just as paralytic. He stated that he had also made enquiry about the name, fathers name and the name of village of the child and he gave information about the same. He stated that as the parents of the boy were not found in the premises of the temple, he brought the child in auto-rickshaw and produced him at Police Station, Gadchiroli and informed the police about the incident. His report is at exhibit 10. From his evidence also it is clear that the child was in a fit condition to make a statement. ( 13 ) SINDHUBAI (PW 4) who was working as a labourer at the Forest nursery situated near Semana Temple, gave evidence that the graziers brought child from forest situated behind Semana Temple and the condition of the child was just as paralytic. She stated that many persons gathered near the temple and in her presence the name of the child was asked. He stated his name as Akash. He stated the name of his father as Devidas and surname as Gavande. He stated the name of his mother as Chanda. From her evidence it is clearly established that the child was in a position to make a statement. He stated his name as Akash. He stated the name of his father as Devidas and surname as Gavande. He stated the name of his mother as Chanda. From her evidence it is clearly established that the child was in a position to make a statement. It is also to be noted that the above information given by the child on enquiry is proved to be correct, because the name of the child is Akash, his fathers name is Devidas, mothers name is chanda and his surname is Gavande. Witness Sindhubai (PW 4) further gave evidence that she offered water to the child and fed him cooked rice. She further stated that blood was oozing from his mouth and she had cleaned it and at that time, on enquiry the said boy had told that his father brought him towards semana Temple by saying that he was going to purchase new clothes for him and he further stated his father had beaten him. The dying declaration made by the deceased to this witness thus discloses that the father is author of injury on his person. The evidence given by PW 4 Sindhubai remained unshattered in her cross-examination. It is to be noted that the child was found in the forest behind semana Temple which clearly shows that he was brought towards the said temple. As he was found near the temple, the statement made by the child appears to be true. The statement made by the child about the beating by his father also finds support in the medical evidence given by Dr. Wanjari (PW 6) who examined him immediately on the same day and PW 8 Dr. Dikshit who conducted autopsy on the dead body of child Akash. It is to be noted that the child could speak till the time he was brought to the temple and available at the temple. Dr. Wanjari (PW 6) stated that when the child was produced on that day at about 6. 40 pm, the child was not in a condition to talk, but he was only pointing towards chest, abdomen and nose. Therefore, there appears no occasion for police to record his statement or get the dying declaration recorded through the Executive Magistrate. Thus, the oral dying declaration made before sindhubai (PW 4) is only available on record. 40 pm, the child was not in a condition to talk, but he was only pointing towards chest, abdomen and nose. Therefore, there appears no occasion for police to record his statement or get the dying declaration recorded through the Executive Magistrate. Thus, the oral dying declaration made before sindhubai (PW 4) is only available on record. ( 14 ) AS regards appreciation of a dying declaration as a piece of evidence, the Apex Court reiterated the well settled principle in the case of Smt. Laxmi vs. Om Prakash reported in AIR 2001 SC 2383 as under :-"the law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction, a court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. " ( 15 ) THUS, the ultimate test is, whether dying declaration can be held to be truuthful one and voluntarily given. If the court is satisfied that dying declaration is true and voluntary, it can base conviction on it without corroboration. Testing the case in hand, in the light of the principles laid down in the above-referred case, we find that the child has made voluntary and true disclosure before sindhubai (PW 4 ). If the court is satisfied that dying declaration is true and voluntary, it can base conviction on it without corroboration. Testing the case in hand, in the light of the principles laid down in the above-referred case, we find that the child has made voluntary and true disclosure before sindhubai (PW 4 ). It is to be noted that Sindhubai (PW 4) is not only the spectator who gathered near the temple to see the child, but she offered water and fed him with cooked rice and on seeing that blood was oozing from his nose, she had cleaned the same and at that time when she made enquiry, the child has made a disclosure. Thus, she got an opportunity to be with the child and get information from the child as to who had brought him to the temple side. It is to be noted that this witness has no acquaintance with the child or his parents. It is not the case of the appellant that he had animus with her. Under such circumstances, there appears no reason for this witness to give a false evidence against the appellant. Her evidence about the disclosure made by the child appears natural, cogent and reliable and has a ring of truth and there appears no reason to disbelieve in her testimony. Her evidence is assailed on the ground that her statement came to be recorded after the death of child Akash and the delay is not explained by the prosecution in recording her statement. It is to be noted that the appellant was residing at Gadchiroli which is a district place. Whereabouts of the appellant were not disclosed. Only preliminary enquiry was going on on the basis of the report (Exhibit 10) submitted by Namdeorao (PW 2) who produced the child in thePolice Station. There is no evidence that anybody has disclosed the name of this lady as a witness before death of the child. Under such circumstances, naturally as the investigation proceeded further, recording of her statement was carried out accordingly as per the information received by the police. Under such circumstances, it cannot be said that there is inordinate delay in recording the statement of this witness. Apart from this, the evidence of this witness does not appear to be tainted in any manner. We find that she inspires full confidence. Under such circumstances, it cannot be said that there is inordinate delay in recording the statement of this witness. Apart from this, the evidence of this witness does not appear to be tainted in any manner. We find that she inspires full confidence. Relying on her evidence, we find that the dying declaration made by deceased child is voluntary and true. ( 16 ) IN addition to the evidence of dying declaration, there appears one more factor in favour of the prosecution in support of its case. As already pointed out above, the child was in the exclusive custody of the appellant being his father for a period of about six months prior to the incident and the child was found in an injured condition in the bush in the forest which is about 5-6 kms away from the place of residence and no explanation is offered by the appellant as to how his son who was in his custody was found in the bush in the forest behind semana Temple. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The burden imposed by section 106 of the Evidence Act is not discharged by the appellant by offering explanation as to how custody of the said child was removed from the appellant and the child was found in the forest in an injured condition. This incriminating circumstance goes against the accused. Apart from this, the dying declaration made by the child is alone sufficient to hold that the appellant-accused is responsible for the homicidal death of the child. ( 17 ) TO bring home the guilt of accused for offence punishable under section 302 of the Indian Penal Code, the prosecution has to prove - (i) the intention of causing death or, (ii) the intention of causing such bodily injury as the offender knows to be likely to cause death of a person to whom the injury is caused; (iii) the intention of causing bodily injury and injury inflicted is sufficient in ordinary course of nature to cause death of a person and lastly; (iv) the knowledge of offender that the act is so imminently dangerous that it must in all probability cause the death of a person. These ingredients are essential to prove offence punishable under section 302 of the Indian Penal Code. But the evidence in this case reveals that all these ingredients are not proved by prosecution. Hence, accused cannot be held guilty of offence punishable under section 302 of the Indian Penal Code. ( 18 ) TAKING into consideration the evidence of the witnesses and the dying declaration, it appears that the accused brought the deceased child to the temple side and assaulted him, pressed his neck and left him in the forest. However, it has come in evidence of PW 4 Sindhubai that after two days the appellant came to the temple and made enquiry about the child and on receiving information that the child had been admitted in the hospital, he left that place. Investigating officer Mangalsingh Daberao (PW 9) stated that the appellant was in the hospital with the child for two days. This circumstance shows that the appellant assaulted his son and abandoned him in the forest. He was not so cruel to the child to infer an intention of killing the child or causing such injury as is sufficient in ordinary course of nature to cause death. There is no medical opinion as to whether injuries were sufficient in ordinary course of nature to cause death. It is to be noted that there was no fracture of any part of the body of child Akash though the parts of body of child are too delicate. However, considering the totality of circumstances, appellant could not be imputed with an intention to cause death or intention to cause such injury which is sufficient in ordinary course of nature to cause death. Similarly, he could not be imputed with the knowledge that the act done by him is so imminently dangerous that it must in all probability cause death. However, he could be imputed with knowledge of likely effect that due to the said act the child may die and as such, though the appellant cannot be held guilty for the offence of murder, but the crime committed by him amounts to culpable homicide not amounting to murder, punishable under section 304, Part-II of the Indian Penal Code. ( 19 ) IN the result, the appeal is partly allowed. ( 19 ) IN the result, the appeal is partly allowed. The order of conviction and sentence passed against the appellant-accused for offence punishable under section 302 of the Indian Penal Code is quashed and set aside. The appellant- accused is hereby convicted and sentenced for an offence punishable under section 304, Part-II or the Indian Penal Code to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 200/-, in default, to suffer simple imprisonment for two months. Theset-off under section 428 Criminal Procedure code is allowed since 4-7-2001. Appeal partly allowed.