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2014 DIGILAW 1787 (BOM)

Natthu s/o Bakshu Uike v. State of Maharashtra

2014-08-11

B.P.DHARMADHIKARI, C.V.BHADANG

body2014
Judgment C.V. BHADANG, J. 1. The appellant was prosecuted for the offence punishable under Section 302 of the Indian Penal Code (‘IPC’ for short) in Sessions Case No.127/1999 on the file of the learned Additional Sessions Judge, Achalpur. By a judgment dated 2.8.2000, the appellant came to be convicted for the offence as charged and has been sentenced to suffer imprisonment for life and to pay a fine of Rs.200/, in default to suffer further rigorous imprisonment for one month. Feeling aggrieved, the appellant has come up in appeal. 2. The prosecution case may be briefly stated thus : That, the appellant and now deceased Rajendra Shinde were residents of village Kandli. Fulabai is the wife of the appellant. It is said that the appellant and his wife were serving with deceased Rajendra. The appellant was suspecting that deceased Rajendra had illicit relations with his wife Fulabai. It is said to be the motive behind the offence. The incident in question had occurred at 19.5.1999 at about 7.00 pm near Kavita Talkies, in front of the house of PW5 Mohd. Khalilul Rahman @ Babbu Musalman. While the deceased was passing by the road, in front of Kavita Talkies, the appellant, armed with a knife, had assaulted the deceased on his buttock, back and neck, on account of which, Rajendra sustained bleeding injuries. The appellant, thereafter, ran away from the spot. PW4 Manohar Shinde, who is brother of the deceased, had incidently gone for purchasing cotton oilcakes in the market and had witnessed the incident of assault. There were several other persons, who had also gathered at the spot. PW4 Manohar took the deceased to the Police Station, Paratwada. Thereafter, he was taken to Cottage Hospital at Achalpur, where he was examined by PW8 Dr. Vinayak Nathe. After administering some initial treatment, the deceased was shifted to the Government Hospital at Amravati, where he was an indoor patient till June 1999 when he was advised to be shifted to Government Medical College (GMC) Nagpur. From 20.6.1999 to 25.6.1999, the deceased was admitted in the Government Medical College and Hospital at Nagpur and was eventually discharged on 25.6.1999 and had returned home. It appears that on account of certain complications, the deceased developed paraplegia and bed sores and was again admitted in the Cottage Hospital at Achalpur about six days prior to 13.7.1999. Rajendra Shinde died on 13.7.1999 on account of septicemia. It appears that on account of certain complications, the deceased developed paraplegia and bed sores and was again admitted in the Cottage Hospital at Achalpur about six days prior to 13.7.1999. Rajendra Shinde died on 13.7.1999 on account of septicemia. 3. On the basis of a report lodged by the deceased at Police Station, Paratwada, an offence came to be registered as per F.I.R. Exh. 42 initially u/s 307 of IPC, which was subsequently converted to one u/s 302 of IPC on death of Rajendra Shinde. During the course of investigation, a spot panchanama of the scene of occurrence was recorded. The investigating officer recorded the statements of the witnesses. It is said that the appellant took to his heels and was absconding and was eventually arrested on 12.8.1999. While in custody, the appellant gave a confessional statement offering to produce the knife. Accordingly, he led the police and panchas to the hut of one Shankar situated near Lalpul and produced a knife, which was accordingly sealed and seized. The clothes of the deceased as well as that of PW4 Manohar, the weapon used, as also the sample earth and earth smeared with blood was seized from the spot of occurrence. The seized articles were sent for the report of the Chemical Analyser. On completion of investigation, a chargesheet came to be filed in the Court of Judicial Magistrate, First Class at Achalpur, which was committed to the Court of Sessions. 4. The learned Sessions Judge framed the charge against the appellant for the offence punishable under Section 302 of IPC, to which the appellant pleaded not guilty and claimed to be tried. From the nature of the cross-examination and the statement u/s 313 of the Code of Criminal Procedure, it appears to be the defence of the appellant that there was a talk amongst the villagers that the deceased is having illicit relations with appellant’s wife and the appellant had gone to the house of the deceased and had “abused him” saying that he is a poor person and why he is being defamed and on that ground of suspicion, he has been falsely implicated. 5. The prosecution examined in all ten witnesses at the trial. The appellant neither entered into the witness box nor examined any defence witness. 5. The prosecution examined in all ten witnesses at the trial. The appellant neither entered into the witness box nor examined any defence witness. The learned Sessions Judge, on appreciation of evidence, came to the conclusion that Rajendra Shinde met with a homicidal death and it was the appellant who intentionally caused his death by assaulting him with knife. In the face of such finding, the appellant came to be convicted and sentenced as aforesaid. 6. We have heard the learned counsel for the appellant and learned Additional Public Prosecutor for the respondent-State. With the assistance of the learned counsels, we have perused the entire evidence and the impugned judgment. 7. At the outset, the learned counsel for the appellant has taken exception to the finding about Rajendra Shinde having met a homicidal death. It is submitted that the alleged incident had occurred on 19.5.1999 and Rajendra Shinde died on 13.7.1999 on account of septicemia. It is submitted that in the interregnum, he was discharged from the Government Medical College and Hospital on 25.6.1999. It is, therefore, submitted that there is no nexus between the injuries that may have been sustained in alleged incident and the death of Rajendra Shinde. The learned counsel submitted that the discharge certificate from Government Medical College and Hospital, Nagpur has not been produced to show, as to under what circumstance Rajendra Shinde, was discharged from the hospital. It is also submitted that there is no postmortem examination conducted in this case and in that view of the matter, the cause of death and the causal connection between the death and the injuries sustained, has not been established. It is, therefore, submitted that the findings recorded by the learned Sessions Judge about Rajendra Shinde, having met with homicidal death, cannot be sustained. 8. It is next submitted that the prosecution is mainly based on the solitary evidence of PW4 Manohar, who claims to be an eyewitness. It is submitted that from the evidence of PW4 Manohar, it would appear that he is a chance witness and also closely related to the deceased and, therefore, his evidence would require a close scrutiny and it does not inspire confidence. It is submitted that the alleged dying declaration of Rajendra Shinde recorded by PW3 Anil Mankar, a Special Judicial Magistrate, also cannot be acted upon. It is submitted that the alleged dying declaration of Rajendra Shinde recorded by PW3 Anil Mankar, a Special Judicial Magistrate, also cannot be acted upon. It is submitted that evidence of PW4 Manohar would show that Rajendra was unconscious and as such was not in a fit condition to give any statement. The learned counsel has taken us through the evidence of PW2 Dr. Sharad Khanorkar, who has certified the fitness of the deceased and evidence of PW3 Anil Mankar, in order to submit that the evidence as regards dying declaration does not inspire confidence. The learned counsel has, thereafter, submitted that the circumstances as to abscondance of the appellant, also could not have been acted upon, as abscondance by itself, cannot be said to be an incriminating circumstance. The learned counsel would submit that at times, even innocent persons may take to their heels fearing arrest or false implication and in the absence of any other acceptable evidence, abscondance cannot be taken into consideration. Even as regards the evidence about discovery is concerned, it is submitted that the evidence falls short of the required standard to prove the circumstances as to discovery under Section 27 of the Evidence Act, particularly when the alleged discovery is from the house of one Shankar and not from the house of the appellant. It is submitted that even a strong motive cannot be sufficient to return a finding of guilt and in that view of the matter, the learned Sessions Judge was not justified in finding the appellant guilty. The learned counsel for the appellant has placed reliance on the following decisions in support of his various submissions:- 1. Sunil Kundu and another .vs. State of Jharkhand, (2013) 4 SCC 422 . 2. Manik s/o Vanaji Gawali .vs. The State of Maharashtra, 2013 ALL MR (Cri) 1766. 3. Surinder Kumar .vs. State of Haryana, (2011) 10 SCC 173 , 4. State of Maharashtra .vs. Kallappa Devu Girmal and another, 1988 Mh.L.J. 147. He, therefore, submitted that the appeal be allowed and the appellant be acquitted. In the alternative, it is submitted that the nature of evidence led and the fact that the deceased had died after a prolonged period, close to two months of the incident, the case would not fall u/s 299 of IPC and for the matter of that, Section 300 of IPC. In the alternative, it is submitted that the nature of evidence led and the fact that the deceased had died after a prolonged period, close to two months of the incident, the case would not fall u/s 299 of IPC and for the matter of that, Section 300 of IPC. The learned counsel, as an alternate submission, canvassed that conviction needs to be modified to a lesser offence. 9. On the contrary, it is submitted by the learned APP that the various circumstances as noted by the learned Sessions Judge in para 21 of the judgment, have been rightly found to be sufficient, for finding the appellant guilty. The learned APP submitted that the evidence of PW4 Manohar is natural and one inspiring confidence. It is submitted that admittedly there has been a lurking suspicion in the mind of the appellant that the deceased was having illicit relations with his wife (appellant’s wife) and this is a strong motive for the commission of the offence. The learned APP submitted that the evidence as to dying declaration is also cogent and natural and does not suffer from any infirmity whatsoever. The learned APP then submitted that there are corroborative circumstances such as abscondance of appellant and discovery, both of which are established on record, which lend credence to the evidence in the form of eyewitness account and the dying declaration given by the deceased. It is, therefore, submitted that the appeal be dismissed. 10. Insofar as alternate submission on behalf of the appellant is concerned, it is submitted that this is a clear case wherein appellant had inflicted as many as six blows, one including on the neck, which has been deposed to by the Medical Officer to be sufficient to cause death. He, therefore, submitted that there is clear evidence to gather intention to cause death or such bodily injury as is likely to cause death, within the meaning of Section 299 of IPC. The learned APP, therefore, submitted that the alternate submission for modifying the conviction for the lesser offence is devoid of any merit. 11. Indisputably the prosecution is obliged to prove that the deceased met with a homicidal death, as a prerequisite for holding the appellant guilty of the offence u/s 302 of IPC. The learned APP, therefore, submitted that the alternate submission for modifying the conviction for the lesser offence is devoid of any merit. 11. Indisputably the prosecution is obliged to prove that the deceased met with a homicidal death, as a prerequisite for holding the appellant guilty of the offence u/s 302 of IPC. The said question has to be decided on the basis of eyewitness account of incident, the nature of injuries sustained, the weapon used, the part of the body targeted and the specific medical opinion, as to the nature of the injuries and the prognosis based thereon. 12. In the present case, it appears to be undisputed that appellant had a lurking suspicion that the deceased was having illicit relations with his wife Fulabai alias Fulanbai. PW4 Manohar has also deposed about this aspect and, in fact, this has come as a part of cross-examination, when a suggestion was given to PW4 Manohar that while the appellant was admitted in the T.B. Hospital, illicit relations developed between Fulabai and the deceased. The answers given by the appellant-accused in the statement u/s 313 of the Code of Criminal Procedure can always be considered along with the prosecution evidence on a particular point. If answer given by appellant in response to question no.63 is seen, he has stated that there was a talk amongst the villagers that the deceased was having illicit relations with his (appellant’s) wife. Not only that he has also stated that he had gone to the house of the deceased and abused him and accosted him, as to why, a poor person like him is being defamed. Be that as it may, we find that there is material on record to show that there was a motive established, inasmuch as there was a suspicion in the mind of the appellant that his wife Fulabai was having illicit relations with the deceased. 13. We then have the evidence of PW4 Manohar, who is the brother of the deceased. He has stated that the deceased was staying separate and the deceased and Fulabai alias Fulan used to go to attend the work. He has then stated that on the day of incident at about 2.00 pm, the appellant Natthu had come in the courtyard of the deceased and had damaged the door of the room of the deceased by pelting big stones. He has then stated that on the day of incident at about 2.00 pm, the appellant Natthu had come in the courtyard of the deceased and had damaged the door of the room of the deceased by pelting big stones. At that time, the deceased Rajendra Shinde and Fulanbai were present in the room occupied by deceased Rajendra. He has further stated that the appellant at that time threatened Rajendra with life and after about 10 to 15 minutes, thereafter, the appellant and his wife went to their home. He has then deposed about the incident which had occurred at about 7.00 pm, on the same day, when the deceased had gone for a walk and when the deceased came near Kavita Talkies, the appellant called him, caught hold of collar of his shirt by one hand and with a knife in the other hand assaulted Rajendra on the buttock, near left eye, on abdomen, to right leg and to left thigh, on account of which, Rajendra fell down. The appellant then ran away. This witness has stated that he saw the incident from a distance of about 10 to 15 feet. Many persons had gathered there but nobody intervened. The house of PW5 Babbu Musalman is situated near the spot of incident. PW5 Babbu Musalman made a phone call to Police Station, Paratwada, when police arrived at the spot of incident and Rajendra was initially taken to Police Station, Paratwada and, thereafter, taken to the Cottage Hospital at Achalpur. This witness was crossexamined on certain omissions about the incident which had occurred in the afternoon in the courtyard of Rajendra which does not find place in his police statement. He was then confronted with the statement about he having narrated that the appellant had caught hold of the collar of shirt of Rajendra by his one hand and stabbed with a knife with the other hand. The further omission elicited was regarding the presence of Fulanbai at the house of Rajendra at the time of incident, which occurred in the afternoon. We find that so far as incident which had occurred in the afternoon is concerned, the evidence of PW4 Manohar in this regard can be considered along with the statement of the appellant given in response to a question no.63 of he having gone to the house of the deceased and having accosted him. We find that so far as incident which had occurred in the afternoon is concerned, the evidence of PW4 Manohar in this regard can be considered along with the statement of the appellant given in response to a question no.63 of he having gone to the house of the deceased and having accosted him. Insofar as the main incident, which had occurred at 7.00 pm near Kavita Talkies, is concerned, we find that the improvements/omissions do not impinge upon the main incident and they do not derogate from the positive evidence regarding the assault by the appellant on the deceased. 14. It is trite that the evidence of a related witness cannot be discarded, merely on any such ground. The only requirement is that the court has to be circumspect and the evidence of such witness needs a close and cautious scrutiny. In an appropriate case, the court would make an attempt to find corroboration, circumstantial or otherwise, to lend credence to such evidence. 15. The evidence of PW7 HC Dilip Khapre would show that, at the relevant time, he was attached to Police Station, Paratwada and had visited the Cottage hospital and had recorded the statement of the deceased which is treated as F.I.R. in this case. It has come in the evidence of PW7 Dilip that the deceased stated to him that the appellant assaulted deceased near Kavita Talkies with a knife. In the cross-examination, this witness has stated that he did not take any steps for recording any dying declaration of Rajendra Shinde and that doctors were present in the hospital. We find that there is nothing in the cross-examination to discredit the evidence of this witness. 16. We then have the evidence of PW3 Anil Mankar, who is a Special Judicial Magistrate. He has stated that on 20.5.1999, he had received a requisition from General Hospital, Amravati, for recording dying declaration of Rajendra Shinde. That requisition is at Exh.31. He accordingly visited Ward No.16 in the hospital and requested the Medical Officer to examine the patient and give his opinion about fitness to give the statement. He has stated that on 20.5.1999, he had received a requisition from General Hospital, Amravati, for recording dying declaration of Rajendra Shinde. That requisition is at Exh.31. He accordingly visited Ward No.16 in the hospital and requested the Medical Officer to examine the patient and give his opinion about fitness to give the statement. The Medical Officer, after examining the patient, gave his opinion and, thereafter, he recorded the dying declaration in question and answer form, in which, the deceased had stated that on the previous day at 8.00 pm (the statement is recorded on 20.5.1999) when the deceased had gone to Kavita Talkies, Paratwada the appellant came there and quarreled with him. The appellant, with a knife which was in his possession, assaulted him on his back, on waist, on shoulder, neck, left hand and then ran away. He then went to the Police Station and lodged the report. The deceased is also alleged to have disclosed, the reason behind the assault, namely the suspicion of the appellant, of there being illicit relations between the deceased and the wife of the appellant. It is the further evidence that after recording of the dying declaration, the same was read over to the deceased and the deceased admitted it to have been correctly recorded and the deceased put his signature. This witness also signed the same. The said dying declaration is at Exh.29A. It has come in the cross-examination of this witness that on the day of the recording of the dying declaration, this witness had gone to the hospital for recording dying declaration of another patient at about 5.00 pm and the said statement (of the other patient) was recorded between 5.00 pm to 6.00 pm. The present dying declaration (Exh.29A) is shown to be recorded between 6.20 pm to 6.30 pm. Except this, nothing significant has come in the cross-examination of this witness, so as to derogate from the substratum of the evidence about recording of the dying declaration. 17. PW2 Dr. Sharad Khanorkar, at the relevant time, was attached to General Hospital, Amravati and was on emergency duty. This witness has stated that on that day at 6.20 pm, he had received requisition letter from PW3 Anil Mankar and after examining the patient, he had found him conscious and fit for making dying declaration. He, accordingly, gave his report. PW2 Dr. Sharad Khanorkar, at the relevant time, was attached to General Hospital, Amravati and was on emergency duty. This witness has stated that on that day at 6.20 pm, he had received requisition letter from PW3 Anil Mankar and after examining the patient, he had found him conscious and fit for making dying declaration. He, accordingly, gave his report. PW3 Anil Mankar then recorded the dying declaration of Rajendra in his presence and after completion of the recording, he again examined the patient and issued a certificate that the patient was conscious while recording the dying declaration. The certificate is at Exh.29. This witness was cross-examined, in which he has stated that he had seen the bed head ticket of the patient and has also taken notes of medical examination before issuing certificate. He has stated that in order to ascertain the mental fitness, he had put some questions to the patient and those are not mentioned in his certificate. Except this, nothing has been elicited in the cross-examination. We find that the evidence in the form of the dying declaration recorded by PW3 Anil Mankar after PW2 Dr. Sharad having certified the fitness of Rajendra for giving a statement, corroborates the evidence of PW7 HC Dilip Khapre along with the report Exh.41 and the same is also in consonance with the evidence of PW4 Manohar Shinde. 18. The law relating to appreciation of evidence in the form of dying declaration is now too well settled to be restated. The Hon’ble Apex Court in the case of Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165 has summarized the legal position as under : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See : Munnu Raja v. State of M.P. (1976) 3 SCC 104 ). (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See : State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 ). (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. (See : State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 ). (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See : K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 ). (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See : Rasheed Beg v. State of M.P. (1974) 4 SCC 264 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See : Kake Singh v. State of M.P., 1981 Supp. SCC 25). (vi) A dying declaration which suffers from infirmity cannot from the basis of conviction. (See : Ram Manorath v. State of U.P. (1981) 2 SCC 654 ). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See : State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp. SCC 455). (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See : Surajdeo Ojha v. State of Bihar, 1980 Supp. SCC 769). (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See : Nanhau Ram v. State of M.P. 1988 Supp. SCC 152) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See : State of U.P. v. Madan Mohan, (1989) 3 SCC 390 ). (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See : State of U.P. v. Madan Mohan, (1989) 3 SCC 390 ). (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See : Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 ). Thus, it would be evident that the law does not require or prescribe any particular form in which the dying declaration is to be recorded. There is also no requirement of the fitness of the witness being certified, as a rule, by Medical Officer. It is essentially a rule of prudence and caution. The material consideration is that the court has to be satisfied about the dying declaration being natural and one inspiring confidence. The evidence of the officer, who records the dying declaration, should show his satisfaction and the Court, on appreciation of his evidence, should come to the conclusion that indeed the deceased was in a fit state of mind to give the statement and that he had sufficient opportunity to observe the assailant and the assault and that the statement is not the outcome of either prompting or tutoring or a figment of imagination. In an appropriate case, the Court would look for corroboration in order to lend credence to the evidence in the form of dying declaration. In the present case, as noticed earlier, the evidence finds material corroboration from the evidence of PW7 HC Dilip and F.I.R. Exh.42 and the evidence of PW4 Manohar. 19. The case of Surinder Kumar (supra) turned on its own facts. That was a case where the finding of acquittal by the learned Sessions Judge was converted into one of conviction by the High Court which was subject matter of challenge before the Hon’ble Apex Court. In that case, it was found that the deceased, who had sustained 97 burns, had died on account of septicemia. The dying declaration was found to be totally in conflict with the prosecution version as to the time of burning and the relation of appellant with deceased. It was also found that the deceased was under the influence of sedatives/ painkillers at the time of dying declaration and thus was not supposed to be having normal alertness. The dying declaration was found to be totally in conflict with the prosecution version as to the time of burning and the relation of appellant with deceased. It was also found that the deceased was under the influence of sedatives/ painkillers at the time of dying declaration and thus was not supposed to be having normal alertness. The doctor was not present at the time of recording of the statement and subsequently on the request of police officer, doctor had offered his opinion on fitness. The procedure adopted by the Magistrate was also not found to be acceptable. It was, in these circumstance, held that dying declaration does not inspire confidence. It was, therefore, held that the finding of acquittal could not have been reversed. 20. Even in the case of Manik Gawali .vs. State of Maharashtra (supra), this Court had enumerated various circumstances in para 54 which prompted the Court not to act upon the dying declaration. The dying declaration which was the only evidence worthy to be considered for basing conviction was held to be not proved. 21. The learned counsel for the appellant has relied upon an admission by PW4 Manohar Shinde that the deceased was unconscious till he was taken to General Hospital at Amravati. We find that such a stray admission in the cross-examination, cannot militate against the consistent evidence of PW2 Dr. Sharad and PW3 Anil Mankar and for the matter of that PW7 HC Dilip. Once the patient is taken to the hospital and the treatment is started, the relatives cannot have an opportunity to closely watch the mental condition of the patient. We are unable to persuade ourselves to act upon the stray admission of PW4 Manohar, in the face of a clear and convincing evidence of Medical Officer PW2 Dr. Sharad in this regard. 22. The learned Sessions Judge, apart from the evidence of PW4 Manohar and the dying declaration, has also considered the evidence regarding motive, abscondance and evidence regarding the discovery made by the appellant. Insofar as the motive is concerned, we have already held that the prosecution has been able to establish the same. Sharad in this regard. 22. The learned Sessions Judge, apart from the evidence of PW4 Manohar and the dying declaration, has also considered the evidence regarding motive, abscondance and evidence regarding the discovery made by the appellant. Insofar as the motive is concerned, we have already held that the prosecution has been able to establish the same. Insofar as the circumstance as to abscondance is concerned, indeed the Investigating Officer PW 10 ASI Ramesh Sonune has deposed that the appellant was absconding and the record would show that after the incident had occurred on 19.5.1999, he was arrested on 12.8.1999 at Morshi. It was tried to be submitted that the appellant had himself surrendered to the police. However, that is not borne out of the record. 23. In the case of Sunil Kundu and another (supra), the Hon’ble Apex Court was concerned with a similar situation about adverse inference being drawn on account of appellant-accused being absconding. The following observations in para 28 are to the point. “It was argued that the accused were absconding and, therefore, adverse inference needs to be drawn against them. It is well settled that absconding by itself does not prove the guilt of a person. A person may run away due to fear of false implication or arrest. It is also true that the plea of alibi taken by the accused has failed. The defence witnesses examined by them have been disbelieved. It was urged that adverse inference should be drawn from this. We reject this submission. When the prosecution is not able to prove its case beyond reasonable doubt, it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.” It can thus be seen that the abscondance by itself alone cannot be taken as an incriminating circumstance to base conviction but can always be considered along with other prosecution evidence available on record. 24. Even so far as the evidence regarding the discovery is concerned, we have the evidence of PW9 Prakashkumar Danani, a panch and the investigating officer. 24. Even so far as the evidence regarding the discovery is concerned, we have the evidence of PW9 Prakashkumar Danani, a panch and the investigating officer. PW9 Prakashkumar has deposed about the appellant having given a statement offering to produce the knife from the house of Shankar near Lalpul and accordingly a memorandum Exh.48 was recorded. The appellant then led police and panchas to the hut of one Shankar and took out the knife which was kept above the window and he produced the same before Mr. Sonune, the Police Officer and he has sealed the knife and it was seized as per panchanama Exh.48A. He had identified that knife (Article 4) before the Court. This witness was cross-examined on the boundaries of the house of Shankar, which this witness was unable to give. Nothing significant has turned in the cross-examination and we find that the discovery by the appellant of the knife (Article 4) has been established on record. Even assuming for a moment that the discovery is not established and is excluded from consideration, in our considered view, the prosecution has established the assault by the appellant on the deceased on the basis of the evidence of PW4 Manohar, PW7 HC Dilip and the evidence of PW3 Anil Mankar and for the matter of that PW2 Dr. Sharad Khanorkar and the dying declaration Exh.29A. The inference arising out of this evidence would be strengthened by the circumstance as to abscondance of the appellant. 25. The moot question is, what would be the offence with which the appellant can be held guilty in this case. The prosecution has examined three Medical Officers in this case namely, PW1 Dr. Anand Zade, a Medical Officer at Cottage Hospital, Achalpur, PW2 Dr. Sharad Khanorkar, a Medical Officer at General Hospital at Amravati and PW8 Dr. Vinayak Nathe, a Medical Officer, Cottage Hospital at Achalpur. A reference to evidence of PW2 Dr. Sharad, which is limited on the issue of certification of the fitness of Rajendra, has already been made. PW1 Dr. Anand Zade had issued a Certificate Exh.27 which is styled as a “Medical Certificate about the cause of death”, on 13.7.1999. He has stated that Rajendra was admitted in the Cottage Hospital six days prior to 13.7.1999 for the management of bed sores due to paraplegia. He then developed septicemia, which was the cause of death. PW1 Dr. Anand Zade had issued a Certificate Exh.27 which is styled as a “Medical Certificate about the cause of death”, on 13.7.1999. He has stated that Rajendra was admitted in the Cottage Hospital six days prior to 13.7.1999 for the management of bed sores due to paraplegia. He then developed septicemia, which was the cause of death. He has then deposed in para 3 as under:- “Because of incised and superficial wound over the left buttock below the iliac crest and incised and superficial wound over the back at the right iliac fosa lateral aspect, spinal nerves might have been affected and it might have been resulted in paraplegia. Also the spinal nerves may be affected due to incised and sharp injury over the post sides of the neck lower to occipital region”. This witness has stated that, at the time of issuing medical certificate Exh.27, he had seen the discharge certificate issued by the General Hospital, Amravati and Nagpur. However, these certificates are not forthcoming on record. Dr. Anand Zade has treated the patient in the Cottage Hospital at Achalpur six days prior to death of Rajendra and thus his evidence, except for the cause of death, would not be relevant to consider the nature of the injuries which the deceased had sustained and were found on his person immediately after the incident. In this case, admittedly the investigating officer had not sent the dead body for postmortem examination and as such there is no evidence on record to connect the injuries with the cause of death. Apparently, Rajendra was admitted in the Cottage Hospital at Achalpur for the management of bed sores and paraplegia and subsequently the bed sores led to the complication of septicemia. Although, Dr. Anand Zade has made an attempt to corelate septicemia with the injuries sustained, it would appear that the same is not a conclusive opinion and a mere ipse dixit as the medical officer has stated that the spinal nerves “might have been affected and it might have resulted in paraplegia”. The only relevant medical evidence is coming from PW8 Dr. Vinayak Nathe. He was, at the relevant time, Medical officer attached to Cottage Hospital at Achalpur and had examined Rajendra Shinde on 19.5.1999 at 9.00 pm and found the following injuries on his person. [1. The only relevant medical evidence is coming from PW8 Dr. Vinayak Nathe. He was, at the relevant time, Medical officer attached to Cottage Hospital at Achalpur and had examined Rajendra Shinde on 19.5.1999 at 9.00 pm and found the following injuries on his person. [1. Incised and sharp injury over the posterior side of neck lower to occipital region, size 1”x½”x1”. [2. Incised and sharp injury to the left eyebrow slight above ½” to the left eye size ½” x ¼” (skin deep). [3. Incised and sharp wound to the right forearm middle 1/3rd posteriorly placed 1” x ½” x (skin deep). [4. Incised and sharp wound over the back, left supra scapular region size, 1” x ½” x 3/4”. [5. Incised and sharp wound over the left buttock below the iliac crest size 1” x ½” x 1”. [6. Incised and sharp wound over the back at the right iliac fossa lateral aspect, size 1” x ½” x ½”. This witness has then stated that the injuries may heal within 30 days if complications do not arise. He has also stated that injury no.1 was on vital part and it was sufficient to cause death. He has stated that paraplegia was caused by injury no.1 described in Exh.45. This witness in cross-examination has stated that if a proper and careful treatment was given to patient, then injury no.1 would have been cured. He has also admitted that the medical jurisprudence knows of many causes which can result into paraplegia. 26. On over all consideration of the medical evidence, we find that Rajendra was lastly admitted for management of bed sores and paraplegia and died of septicemia which may be the complication arising out of the bed sores. In this case the discharge card of the deceased, both from the Government Medical College and Hospital at Nagpur and General Hospital at Amravati, are not forthcoming on record and as such, no evidence is brought forth as to what were the circumstances and the condition of the deceased, when he was discharged from the Government Medical College and Hospital at Nagpur. The prosecution has also failed to conduct the postmortem examination of the deceased so as to conclusively bring on record that the septicemia which is the ultimate cause of death was relateable to the injury sustained by the appellant. The prosecution has also failed to conduct the postmortem examination of the deceased so as to conclusively bring on record that the septicemia which is the ultimate cause of death was relateable to the injury sustained by the appellant. Thus, for want of an acceptable evidence in this regard, we find that the benefit of the ambiguity would go to the appellant-accused. 27. From the evidence of the eyewitness, the nature of injuries sustained and the part of the body targeted and particularly in absence of acceptable medical evidence to establish a causal connection between the injuries and septicemia, we find that no intention or knowledge of causing death or causing such bodily injury as is likely to cause death can be attributed to the appellant and in our considered view, the offence would fall under Section 326 of I.P.C. namely of having voluntarily caused grievous hurt by dangerous weapon or means. Admittedly, the appellant was an indoor patient for more than 21 days and the injuries would clearly be covered by clause ‘Eighthly’ of Section 320 of I.P.C. We, therefore, find that the conviction of the appellant needs to be modified to one u/s 326 of I.P.C. This takes us to the question about awarding of appropriate punishment. 28. In the present case, the incident is more than 15 years old. The appellant, who is shown to be 34 years of age on the date of incident, would be now aged about 50 years. The incident had occurred on account of suspicion harbored by the appellant, of the deceased having illicit relations with his wife. The appellant was arrested on 12.8.1999 and the impugned judgment would show that he was in custody during the trial. His sentence was suspended and he was directed to be released on bail by this Court by an order dated 1.12.2000, but actual date of release is not on record, which must be sometime after 1.12.2000. Thus, the appellant had suffered incarceration for about one year and four months, before his release. 29. His sentence was suspended and he was directed to be released on bail by this Court by an order dated 1.12.2000, but actual date of release is not on record, which must be sometime after 1.12.2000. Thus, the appellant had suffered incarceration for about one year and four months, before his release. 29. In Bankat and another .vs. State of Maharashtra, 2005 Cri.L.J. 646, the Hon’ble Apex Court, in view of the fact that 10 years had elapsed from the date of incident and taking a note of the parties having settled their dispute outside the court, had found that the sentence for the period already undergone for the offence punishable under Section 326 of the Indian Penal Code which was less than a year was sufficient. In G. Satyanarayana Reddy and others .vs. State of Andhra Pradesh, V1994 (2) Crimes, 318, the occurrence was of the year 1980 and the sentence of three years for the offence punishable under Section 326 of the Indian Penal Code was reduced to period already undergone, which was for a year. 30. We find that in the given circumstances, the appellant can be sentenced to imprisonment already undergone. In that view of the matter, the following order is passed : ORDER 1. The appeal is partly allowed. 2. The conviction of the appellant under Section 302 of the Indian Penal Code is modified to one under Section 326 of the Indian Penal Code and the appellant is sentenced to imprisonment for the period already undergone. 3. The rest of the impugned order stands confirmed. 4. The appeal is disposed of in aforesaid terms.