Vs. State of Maharashtra  Insc 1123 (12 November 2007)
Arijit Pasayat & P. Sathasivam
APPEAL NO. 1529 OF 2007 (Arising out of SLP (Crl.) No. 376 of 2007) Dr. ARIJIT
Challenge in this appeal is to the judgment of a Division Bench of the Bombay
High Court, Aurangabad Bench dismissing the appeal filed by the appellant
upholding his conviction for offence punishable under Section 302 of the Indian
Penal Code, 1860 (in short the 'IPC')and the sentence of imprisonment for life
and fine of Rs.200/- with default stipulation. The judgment impugned before the
High Court was delivered by learned Second Additional Sessions Judge, Latur in
Sessions case No. 24 of 2004.
Prosecution version in a nutshell is as follows:
28.11.2003 at about 9:30
a.m., appellant Antram
caused death of his wife Shobha by brutally assaulting her with an axe. Shobha
was married to the accused long back.
sons and the daughter were the children born from said wedlock. About 3 years
prior to alleged incident, Shobha had started residing at village Kamkheda with
the children, which is place of her parents. Accused belongs to village Zari Khurd.
used to intermittently visit Shobha and children at village Kamkheda. The
relations between husband and wife had not remained cordial because accused
used to object to Shobha undertaking any job. This was because he used to
suspect her character.
had been to village Kamkheda about 8 days prior to alleged incident. There is
no eye witness to the incident. Prosecution case rests on circumstantial
and deceased were in the house at the time of incident. A quarrel took place
between the couple during which accused brutally assaulted Shobha with an axe
and thereafter ran away. Sangeeta (PW-5), daughter of deceased and accused, was
about to proceed to school when the quarrel had started. It was Friday and
there was Saraswati Puja in the school. At the suggestion of teacher, Sangeeta
returned home for bringing some flowers. Since she noticed that house was
locked from outside she enquired from the neighbour about her mother.
Ultimately, she returned home, opened the door to find mother Shobha lying on
the floor in injured condition with bleeding injuries on her head, face etc. A
blood stained axe was also lying there. She enquired from her mother as to what
had happened. She disclosed that she was assaulted by Sangeeta's father i.e.,
accused. Sangeeta reported the matter to her maternal uncle Tukaram (PW-2), who
arrived at the spot and enquired from Shobha when she repeated that she was
assaulted by accused. Tukaram (P.W.2) and his uncle Ganpat took Shobha to
Hospital at Renapur in an auto rickshaw. At the advice of Medical Officer, Renapur,
she was shifted to Civil Hospital, Latur. The Medical Officer at Civil Hospital, Latur, advised them to take her to S.R.T. Medical College, Ambajogal.
relatives, however, took her to Dr. Sham Agroya (P.W.6) a private medical
practitioner and neuro surgeon at Latur.
went to Police Station, Renapur and reported the matter to Police. His report
was reduced to writing and the same was treated as FIR (Exh.24), which set law
Although prosecution does not have any direct evidence about the incident on
record, it relies upon dying declaration of deceased Shobha on more than one occasions.
Apart from oral narration to daughter Sangeeta and cousin brother Tukaram, the
dying declaration has also come on record in the form of history of incident as
recorded by Medical
Officer Dr. Warad
(P.W.4), who was then attached to Primary Health Centre, Renapur, where injured
Shobha was taken immediately after incident. As it was a medico legal case, Dr.
Agroya, while admitting Shobha, gave intimation of the same to Police Station
by a written letter, whereupon Police Inspector visited the hospital on
29.11.2003 and in presence of Dr. Agroya, he recorded statement of injured Shobha.
was subjected to surgical treatment by Dr Agroya on 29.11.2003 and subsequently
she was discharged from the hospital on 09.12.2003 as cured patient. However, Shobha
expired on 10.12.2003.
Consequently, the offence, which was initially registered under Section 307 of IPC
was converted to one under Section 302 of IPC. On completion of the investigation,
charge sheet was filed in the Court of competent Magistrate and upon committal,
Sessions Judge recorded conviction and sentence as described hereinabove at the
conclusion of Sessions trial.
accused in his statement, recorded under Section 313 of the Code of Criminal
Procedure, 1973 (in short the 'Code'), pleaded innocence. Before the trial
court ten witnesses were examined to further prosecution version.
Before the High Court the stand of the appellant essentially was that the dying
declarations are not reliable. As a matter of fact there were four dying
declarations recorded; two were oral and two were recorded. Apart from oral
narration to Sangeeta (PW-5) daughter of the deceased , Tukaram (PW2) cousin
brother's statement was recorded as dying declarations by PW.4 Dr. Vilas Warad,
Medical Officer, Primary Health Centre, Renapur who initially examined the
injured and recorded her statement. Dr. Agroya (PW-6) while admitting the
deceased gave intimation to the Police station .
also submitted that the offences were not covered under Section 302 IPC, 304
Part I and 304 Part II IPC. The trial court did not accept this stand and
recorded conviction and sentence as noted above. The accused and the State
reiterated the respective stand before the High Court. High Court found that
the dying declarations were reliable and there was not much variation in the
version. However, the dying declaration as contained in Exh. 36 was kept out of
consideration, and the dying declarations before the doctor and the cousin
brother were accepted. Coming to the plea that the case was not covered under
Section 302 IPC, the High Court referred to the factual aspects, the injuries
sustained and came to the conclusion that case was clearly covered under Section
stand taken by the appellant before the High Court was reiterated.
Learned counsel for the State supported the judgment of the courts below.
far as the dying declarations are concerned as rightly observed by the High
Court even if Exhibit 36 is kept out of consideration, the dying declarations
both oral and written were sufficient to fasten the guilt of the accused. The
High Court has elaborately dealt with the authenticity of the dying
declarations and had rightly come to the conclusion that they did not suffer
from any infirmity.
Coming to the question as to applicability of Section 302 IPC, great emphasis
was laid on the evidence of Dr. S.K. Shinde (PW-7). It was contended that the
death was due to medical negligence and therefore accused could not have been
convicted under Section 302 IPC. It was submitted that had the patient been
given proper care, there was a possibility of removing thick mucus and food
particles from trachea and bronchi by using certain instruments and with proper
medicines, she could have survived. The High Court noted that the throwing out
the vomit by the deceased was not a natural course but it was a result of two
injuries i.e. injuries Nos. 3 & 4. The High Court found that the presence
of mucus and food particles in the trachea and bronchi cannot be totally delinked
from the injuries inflicted by the accused. It was the stand of the accused
that the death was due to Septicaemia and therefore, it is not referable to
cause of death in the ordinary course of nature due to ante mortem injuries.
State of Haryana v. Pala and Ors. (AIR 1996 SC 2962)
it was noted as follows.
answering the question whether a wound is dangerous to life, the danger must be
assessed on the probable primary effects of the injury. Such possibilities as
the occurrence of tetanus or septicaemia, later on, are not to be taken into
Sudershan Kumar v. State of Delhi (AIR 1974 SC 2328) it was noted as follows:
fact that the deceased lingered for about 12 days would not show that the death
was not the direct result of the act of the accused in throwing acid on her. So
also the fact that the deceased developed symptoms of malaena and respiratory
failure and they also contributed to her death could not in any way affect the
conclusion that the injuries caused by the acid burns were the direct cause of
noted above it was emphasized by learned counsel for the appellant that with
proper medical care the deceased could have survived and therefore Section 302
IPC has no application. The plea clearly overlooks Exception 2 to Section 299
IPC, which reads as follows:
2.--Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been
When the background facts are examined on the touchstone of the principles of
law highlighted, the inevitable result is that the appeal is without merit,
deserves dismissal, which we direct.