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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 470 OF 2016
1. Nishant Nandu Kamble
Age :22 years, Occu-Labour.
2. Nandu Ishwara Kamble
Age: 48 years, Occu-Labour
3. Rahul Nandu Kamble
Age: 24 years, Occu-Labour
}
Appellants
(orig. accused nos. 1 to 3)
(orig. complainant)
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Ms. Rebecca Gonsalvez I.by Dr. Yug Mohit Chaudhry for the appellant nos 1 to 3.
Ms. Veera Shinde -APP for the State.
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DATED : FEBRUARY 23, 2022.
JUDGMENT
1. The Appellant nos. 1 to 3 herein are convicted for the offence punishable under section 302 read with 34 of the Indian Penal Code and are sentenced to suffer for life and fine of Rs.2000/each, in default, rigorous imprisonment for six months and Appellant no.2 is further convicted for the offence punishable under section 341 of Indian Penal Code and simple imprisonment for one month by the Additional Sessions Judge, Kolhapur vide judgment and order dated 16th June 2016 in Sessions Case No. 46 of 2013. Hence, this appeal.
2. Such of the facts necessary for the decision of this appeal are as follows:a) On 25th October 2012 Tanaji Mahipati Kamble (PW.1) lodged a report with Radhanagari Police Station alleging therein that on 24th October 2012, his nephew Vishwas Kamble was assaulted by Nishant Nandu Kamble, Nandu Ishwarao Kamble and Rahul Nandu Kamble. He was also subsequently assaulted by them. That, Vishwas was seriously injured and therefore, he was admitted in the hospital. According to him, the assailants were residing his neighborhood and they were not on cordial terms. On the basis his report, Crime NO. 131 of 2012 was registered at Radhanagari Police Station for offences punishable under section 326, 323 read with 34 of the Indian Penal Code. b) The injured was taken to C.P.R. hospital at 11.55p.m. and was admitted at 12.05a.m. on 25th October 2012. He was discharged against medical advise at 1.00a.m. on 25th October 2012. The medical case record is at “Exhibit-70-C” and is proved by PW.12-Dr. Bhoi. As per the medical case record at the time of admission the patient was unconscious. On examination he was found with a contused lacerated wound on occipital region with suspected fracture. There was only one injury on occipital region. He was advised C.T. Scan / M.R.I. At 1.40 a.m. of 25th October 2012 he was admitted in C.T. Hospital. The patient was in deep coma. It appears that the contused lacerated wound was sutured. C.T. Scan showed multiple contusions on both sides with air pockets in brain. Fracture of Parietal bone (comminuted) and right frontal bone. Grievous injury. He was discharged against medical advise on 25th October 2012 at 4.00p.m. c) The injured was again readmitted in C.P.R. hospital, Kolhapur and discharged on 26th October 2012 at 6.30p.m. The patient was then shifted to Siddhagiri Hospital on 26th October 2012. The injured continued to be unconscious. He had undergone C.T. Scan at Apple Hospital. The C.T. Scan showed multiple brain contusions, haemorrhages and fractures with Oedema. He remained as an indoor patient for about 6 and ½ days. While he was admitted in Siddhagiri Hospital on 1st November 2012, he had undergone tracheostomy. He was readmitted in C.P.R. hospital. He had developed lobar pneumonia. On 2nd November 2012, he succumbed to the complications due to head injury. d) The accused were arrested on 26th December 2012. The charge-sheet was filed on 21st January 2013. At the trial, the prosecution examined as many as 14 witnesses to bring home the guilt of the accused.
3. The scene of offence is undisputed. The prosecution has placed reliance upon the evidence of PW.1-Tanaji Kamble who happens to be the maternal uncle of the deceased, PW.2-Sadashiv Hari Kamble the neighbour of the deceased, PW-8-Pradnya happens to be the daughter of the deceased. All three are eyewitnesses to the actual incident of assault by the accused upon Vishwas.
4. (PW.6)- Dr. Dattatray Ghodke happens to be the medical officer at C.P.R. hospital. He had conducted the autopsy on the dead body of Vishwas on 2nd November 2012. The Postmortem notes are at “Exhibit-60-C”.
5. (PW.7)-Dr. Virendra Pawar had examined the injured at City Hospital, Kolhapur on 25th October 2012.
6. (PW.9)-Dr. Sandip Inchanalkar who examined the deceased at Siddhagiri Hospital on 26th
7. (PW.12)- Dr. Pramod Bhoi who had examined the injured at C.P.R. hospital in the intervening night of 24th October 2012 and 25th
8. (PW.14).-Dattatraya Ghogare who conducted the investigation after addition of section 307 of Indian Penal Code and ultimately filed charge-sheet on 21st January 2013 for offences punishable under section 302, 341 and 323 read with 34 of the Indian Penal Code.
9. (PW.1) – Tanaji Kamble has narrated the background of the case before the Court. According to him, at the time of Ganapati Festival a quarrel had taken place between the family of the accused and the deceased. That, on one occasion Nishant Kamble i.e. the accused no.1 had attempted to misbehave with Pradnya the daughter of the deceased Vishwas. Accused no.2 Nandu was given a warning by Pradnya and her father. Accused no.2 had threatened them a dire consequence. That, on 24th October 2012 the mother of PW.1, the deceased Vishwas and others were watching T.V. at the house of Sadashiv Kamble therefore, he had been to the house of Sadashiv to call his mother for dinner at about 9.00 p.m. On their way, they were obstructed by Nandu who was armed with knife and stick. Upon seeing this Nishant rushed out of the house with a stick in his hand and inflicted a blow with the stick on the head of Vishwas, due to which he felled down Nandu and Rahul followed Nishant and once again assaulted Vishwas with the stick with which they were armed. Tanaji, their neighbour tried to rescue them. He was also assaulted. PW.[1] was then assaulted with fists and kick blows. The accused then fled from the spot.
10. The injured was taken to C.P.R. hospital. The relatives were advised to take the injured to City Hospital as there was profuse bleeding. PW.[1] rushed to the police station and lodged a report against the accused. He has proved his statement / F.IR. and the same is marked at “Exhibit-39”. He has stated about the injured being then admitted in Siddhagiri Hospital and finally again to C.P.R. Hospital. In the cross-examination certain omissions are put to him. However, he has given an explanation that he had hurriedly filed the F.I.R. and there was no time to narrate the background of the case. In view of this the explanation needs to be taken into consideration however he had established that the incident had taken place in which his nephew Vishwas was injured at the hands of the accused no.1-Nishant.
11. (PW.5) - Sadashiv happens to be the neighbour of the accused and the deceased. According to him, one and half month prior to the incident Nishant had attempted to outrage the modesty of one of the daughters of deceased Vishwas. Vishwas had objected to the same and questioned accused no.2 Nandu Kamble, who is the father of accused no. 1 and 3. Nandu and his two sons had threatened him of dire consequences. On the occasion of Ganpati Festival also, there was a quarrel between Nandu and Vishwas on account of exploding of crackers. Hence, the relations between both the families were not cordial for quite sometime. He had further deposed that on 24th October 2012 at about 9.00p.m. Vishwas, Sushila and Uttam were watching T.V. in his house along with him, at that time son of Sushila had called her for dinner. The moment Sushila left his house he heard a loud verbal altercation and therefore he also stepped out of the house. There he saw Nandu armed with stick and knife Tanaji raised his voice upon seeing that Nandu had obstructed him. Nandu was also annoyed when the accused saw Vishwas proceeding towards his house. Nishant and Rahul marched out of their house armed with sticks. Nishant inflicted stick blow on the head of Vishwas from behind due to which he fell down. Tanaji attempted to rescue. All the three accused chased Tanaji and assaulted him with kicks and blows. That, all three accused had assaulted Vishwas with sticks. Thereafter, Vishwas was taken to C.P.R. hospital. He succumbed to the injuries on 2nd November 2012. The statement of PW.[2] was recorded on 28th November 2012 under section 164 of Code of Criminal Procedure and the same is marked at “Exhibit-56”. PW.[2] identified the three sticks which are marked at “Article- 7 to 9” and a knife at “Article– 10”.
12. It is admitted in the cross examination that he cannot specify as to how many blows of sticks were inflicted on the head of the Vishwas by each of the accused. His statement was recorded by the police for the first time on 27th October 2012. As far as the incident of assault at the hands of Nishant is concerned is not shattered in the cross-examination.
13. The prosecution has examined (PW.8)- Pradnya Kamble, the daughter of the deceased who is also an eyewitness to the incident. According to her, there were quarrel between both the families on several occasions due to which both the families were not on talking terms. That, one and a half months prior to the incident accused no.1 Nishant had uttered obscene words to her. Her father had questioned Nishant about the same, at that time itself Nishant had threatened him of dire consequences. According to her, the accused were involved into unlawful activities, and they were terrorising in the Harijan Wada of village Thikpurli. On 24th October 2012, she and her sister had heard a loud verbal altercation and therefore stepped outside the house and saw Nishant inflicting stick on head of the father from behind due to which he fell down. Thereafter the other two accused also assaulted her father and assaulted Tanaji with fists and kick blows. Her father was taken to the hospital. As far as the incident of assault on her father, by accused no.1, with a stick is concerned the witness has not been shattered.
14. (PW.12)- Promod Bhoi had examined the injured Vishwas at about 11.55p.m. on 24th October 2012 at C.P.R. Hospital. He noticed a contused lacerated wound admeasuring 5x1x[1] cm on occipital region with suspected fracture. Bleeding present. The general condition of the patient was poor. There was history of one episode of projectile vomiting. The injured was referred to the surgery department. PW.12 had produced the M.L.C book of the hospital along with case papers which is marked at “Exhibit-78”. Since it was a medico legal case an information was given to the C.P.R. hospital police chowky and the same is at “Exhibit-79”. He had also informed the police station about the injured Tanaji Kamble which is marked at “Exhibit-80”. The injured Vishwas was discharged on 25th October 2012 against medical advise. He had admitted in the cross examination that there is only one injury on occipital region. That, he had not taken C.T. Scan or M.R.I. of the patient.
15. A reference to “Exhibit-78” would show that the relatives were informed at 12.05 midnight about the non-availability of neurosurgeon and C.T. Scan of brain. Pitamber Kamble had signed on the case papers while taking discharge against medical advise and had agreed in his own handwriting to shift his brother to a private hospital. The case papers further show that the injured was brought by neighbour with history of alleged assault by neighbour. Poor prognosis was diagnosed on examination. As far as, Tanaji is concerned PW.12 has been unable to even remotely state as to whether he had injuries.
16. The prosecution has then examined Dr. Virendra Pawar who had examined the injured- Vishwas on 25th October 2012 at
1.40 a.m. at City Hospital. PW.[7] had examined him personally and found that there was a sutured wound 7c.m in length on occipital region. The C.T. Scan was showing multiple brain contusions on both sides with air pockets in brain. There was fracture of parietal and frontal bone. The nature of injury was grievous. The patient was discharged against medical advise at 4.00p.m. It is admitted that there was no referral letter from C.P.R. Hospital. The case papers are marked at “Exhibit-64”. On 26th October 2012 at 6.30p.m. Vishwas was admitted in Siddhagiri Hospital in an unconscious state from C.P.R. hospital after undergoing a C.T. Scan at Apple hospital. He was diagnosed with as follows:a) Multiple haemorrhagic contusions in bilateral superior and posterior parietal regions and parietal occipital region. b) Subarachnoid haemorrhage along bilateral fentorial leaflets, bilateral parietal suleal changes of diffuse cerebral oedema pneumocephalus. c) Fracture communicated displaced fracture of bilateral parietal bones, extending upto sagittal suture and right coronal suture. Right frontal bone including inner and outer table of frontal sinus. d) The fracture has depressed component causing compression of the underlying neuroparenchyma. The fracture line is seen extending upto superior saggital sinus.
17. The patient was administered with IV fluids, antibiotics, antacid, anticdematus, antiepileptic and low molecular heparin. Blood transfusion gicen Rt. Subclavian Central line insertion 27.10.2012
18. He was then referred to Apple hospital for M.R.I. of brain and venogram was performed on 29th October 2012, which shows the following:- Displaced fracture of medican posterior parietal calvarium with hemorrhagic contusions in bilateral parasagittal parietal lobes with diffuse edema. Thrombosis at posterior superior sagittal sinus right terminal trans nerse sinus and partial thrombosis of straight sinus with acute ischemic changes in bilateral parasagittal front Operietal lobes. Traces of subarachnoid hemorrhage noted in bilateral parietal convexities. Thin subdural hematoma (Maximum thickness 2mm) noted in left temporo partial region.
19. Tracheostomy was done on 1st November 2012. Patient had sudden cardiac arrest and died at 6.15a.m. on 2nd November
2012.
20. The autopsy was conducted on the dead body by PW.6- Dr. Dattatraya Ghodke who opined that the cause of death was due to ‘bilateral lobar pneumonia as complication of head injury’. According to him, it takes place due to infection of lungs. This infection is caused if a person remains bedridden and air does not enter the lungs. In any case, it is a case of single injury.
21. Learned counsel for the appellant has vehemently submitted that it is true that there were no cordial relations between the families. It was only accused no.1 who had inflicted a single injury on the occipital bone. In any case the cause of death is not head injury by itself but there is a medical intervention. Since there was an infection to the lungs which cannot be attributed to the accused. It is argued that the evidence on record would show that the patient was discharged from three hospitals against medical advise although he had sustained a grievous injury. The patient was unconscious from the very moment that he had sustained an injury. There is no material to show that the deceased was assaulted by accused no.2 or 3 and that they have been falsely implicated as they happen to be the members of the same family. That there are omnibus allegations as against accused no 2 and 3. The accused had inflicted a single blow on the head of the deceased it cannot be said that accused has any knowledge that a single blow on the head would necessarily cause death much less any intention to cause death can be attributed to the accused. It can only be said that he had voluntarily caused grievous hurt to the deceased.
22. Per contra Learned APP has submitted that, there was long standing enmity between both the families. On two occasions the accused had threatened the deceased of dire consequences and finally on 24th October 2012 they had vented their grievance by mounting assault upon Vishwas. It is further stated that all the three accused shared the common intention to assault Vishwas. The assault upon Vishwas was after deliberation and pre-meditation. Hence, the judgment of the trial court calls for no interference.
23. We have gone through the records meticulously and the following inference is drawn. a) There were no cordial relations between both the families rather they were on inimical terms and hence there were intermittent quarrels between them. b) That, on the day of incident Vishwas was assaulted by Nishant – accused no.1 with a stick on his head. c) There is no material to show that the accused nos.[2] and 3 had participated in the said assault. d) That PW.1, PW.[5] and PW.[8] happen to be natural eyewitnesses. All of them categorically stated that the accused no.1 had assaulted Vishwas. There was no facilitation or aid from the accused nos. 2 and 3 neither they had exhorted the accused no.1 to assault Vishwas and therefore, it can be safely held that accused no.1 is the author of the injury sustained by Vishwas. e) At C.P.R. hospital the relatives were informed about the non-availability of neurosurgeon and C.T. Scan of brain however the injuries were bandaged without examining the internal damage to the head. The patient was transferred from one hospital to another i.e. City hospital, Siddhagiri Hospital and back to C.P.R. hospital. He was in C.P.R. hospital initially for one hour on 24.10.2012. From there he was taking treatment in City Hospital for 14.00 hours and 20 minutes. He was then shifted to C.P.R. hospital and remained an indoor patient for about 26 and a half hour between 25.10.2012 and 26.10.2012. From there he was again transferred to Siddhagiri hospital and remained an indoor patient for 6 and half days. He had undergone tracheostomy at Siddhagiri hospital. Therefore, the final cause of death is bilateral lobar pneumonia.
24. In view of the above evidence, it can be seen that the accused no.1 had no intention to cause death of the deceased, nor he had the knowledge that a single blow on the head would necessarily cause death. It can be seen that the only intention of the accused was to cause a grievous hurt to the deceased. The medical complications had developed after he was admitted in the hospital and therefore it cannot be said that the death of Vishwas was the direct result of the injury caused to him by the accused no.1.
25. At this stage, it would be trite to refer to the judgment of the Apex Court in the case of Virsa Singh vs The State of Punjab’1 has held as follows:- “…...If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the "thirdly " would be unnecessary because the act would fall under the first part of the section, namely- " If the act by which the death is caused is done with the intention of causing death." 1 (1958) AIR 465 In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: "If it is done with the intention of causing bodily injury to any person." It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. Once that is found, the enquiry shifts to the next clause- " and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death….."
26. There is no averment by the medical officer that the injury caused to the victim was sufficient in the ordinary course of nature to cause death. The onus is on the prosecution to establish the intention of the accused in inflicting a particular injury. Hence, it can be said that the prosecution had failed to prove the offence punishable under section 302 read with 34 of Indian Penal Code. The prosecution has failed to prove any offence against accused nos. 2 and 3. The accused no.1 therefore deserves to be convicted for an offence punishable under section 326 of Indian penal code and sentenced to the period already undergone.
I. The Criminal Appeal is partly allowed.
II. The conviction and sentence imposed upon the appellants for the offence punishable under section 302 read with section 34 of the Indian Penal Code vide Judgment and Order dated 16/06/2016 passed by Additional Sessions Judge, Kolhapur in Sessions Case No. 46 of 2016 is hereby quashed and set aside.
III. The Accused/Appellant No.1 Nishan Nandu Kamble is hereby convicted for the offence punishable under section 326 of the Indian Penal Code and sentenced to the period already undergone. The sentence of fine in maintained.
IV. The accused/Appellant Nos. 2 and 3 are acquitted of all the charges levelled against them. Fine if any paid, be refunded.
V. The accused/appellants be released forthwith, if not required in any other offence.
VI. The appeal stands disposed of on the above terms.
SADHANA S. JADHAV, J)