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CASE NO.: Appeal (crl.)  1529 of 2007

PETITIONER: Antram

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 12/11/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.  1529          OF 2007 (Arising out of SLP (Crl.) No. 376 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.           2.      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.                                                          3.      Prosecution version in a nutshell is as follows:

On 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.  Two 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.   He 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. Accused 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 evidence.  Accused 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

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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.  The relatives, however, took her to Dr. Sham Agroya (P.W.6) a  private medical practitioner and neuro surgeon at Latur.  Tukaram 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 into motion.

4.      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.  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.

5.      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.

6.      The 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. 7.      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 .   It was 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

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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 302  IPC.

8.      The stand taken by the appellant before the High Court  was reiterated.  

9.      Learned counsel for the State supported the judgment of  the courts below.

10.     So 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.   

11.     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.   

12.     In State of Haryana v. Pala and Ors. (AIR 1996 SC 2962)  it was noted as follows.  "In 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 consideration."

13.     In Sudershan Kumar v. State of Delhi (AIR 1974 SC  2328) it was noted as follows:

"The 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 her  death."

14.     As noted above it was emphasized by learned counsel for

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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: "Explanation 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 prevented."

15.     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.