Back
IN THE HIGH COURT OF BOMBAY
S.M. Daud Ashok Agarwal, JJ.
State of Maharashtra.... Appellants.
Versus
Kallappa Devu Girmal another .... Respondents.
Criminal Appeal No. 593 of 1980 , decided on 7-9-1987.
Advocates appeared :
Y.V. Patil, P.P., for appellant-State.
A.P. Mundargi, for respondents.
Section 32 (1)-Dying declaration-Admissibility-Statement of deceased related to circumstance £and injuries resulting in death and is admissible in evidence.
Exhibit 35 is the statement of the deceased. The injuries may not have caused the death of Parisha. But what eventually led to his death, was something that flowed from the injuries. Let us go backwards and try to comprehend the position. Parisha died as a result of the septicaemia. Septicaemia set in because of an operation or post-operative complications. These complications would not have arisen, had he not sustained the injuries. Therefore the starting point was the receiving of the injuries by Parisha, and, the culmination, was his death. Exhibit 35 explains the circumstances of the transaction beginning with the infliction of injuries on the person of Parisha. The other end takes the scene to his being passed from Doctor to Doctor and after breathing his last, being subjected to a post-mortem examination. All the events constitute circumstances of the transaction-transaction being one, concluding with the death of the deceased.
In the light of this analysis, Court held that the trial Court was in error in excluding Exhibit 35 from the admissible evidence which should have been taken into consideration to ascertain the culpability of the accused.
Section 300-Homicidal death-Injuries inflicted upon victim because septic-Death occurred due to septic-After accused inflicted injuries, victim was operated by surgeon-Doctor not certain of septic was formed due to injuries by accused or doe to cuts made by surgeon in operation-Held, benefit of uncertainty would go to accused and so it could not that the deceased died a homicidal death.
The injuries became septic and it was the deepening and spreading of that condition which led to the death of the victim. Now the septicaemia may have been because of the injuries or because of the incisions made by the operating Surgeon when performing the operation. Dr. Patil is not in a position to say what could have caused the septicaemia that killed Parisha. Septic may have set in the main injury inflicted upon Parisha or the cuts made by the Surgeon while performing the operation. The benefit of any uncertainty must go to the accused and it will have to be held that the prosecution has not established a vital feature in prosecution for murder, viz. that the deceased died a homicidal death.
Sections 300, 326 read with Section 34-Murder-Accused caused serious injuries by dangerous weapons- Victim died after operation and post operative complications-Held, offence committed in furtherance of common intention and accused liable to be convicted under Section 326 read with Section 34.
Parisha died as a result of the operation or post-operative complications, his death cannot be laid at the doors of the accused. However, the accused would be guilty of having committed grievous hurt by dangerous weapons. They had endangered the life of Parisha, and, in so doing they had used lethal weapons like an axe or a sickle or scythe. The post-mortem note shows eight injuries sustained by the deceased had been caused by sharp and cutting substances and were also the result of his having been struck by a hard and blunt substance. The offence having been committed in furtherance of a common intention, both the accused would be liable under Section 326 read with Section 34 of the Indian Penal Code, 1860.
Per S.M. DAUD, J.:---This is an appeal of the State taking exception to the acquittal of a man and wife who were charged for the alleged commission of an offence punishable under section 302 read with section 34 of the I.P.C.
2. The prosecution case is that deceased Parisha Babu Girmal and accused No. 1 Kallapa Devu Girmal are first cousins being agriculturists and residents of village Abdul-Lat, Taluka Shirol, District: Kolhapur. Relations between the cousins were seriously strained, there having taken place a number of incidents and differences which led to the institution of case and counter-cases in civil as also Criminal Courts. To make matter worse, the lands they owned or at least some of them are so situated as to occasion further disputes. Accused Nos. 1 and 2 have a son by the name of Kumar.
3. On 15th April, 1979 Parisha on the one hand and the accused along with their son Kumar on the other, were working in their respective lands. At about 11.00 a.m. Parisha's work being over, he started on the way back to his house in the Gauthan, upon a cycle to the back carrier of which was strung a bundle of grass. Just then came the accused together with their son Kumar. All of them were armed, accused No. 1 carrying an axe, accused No. 2 a sickle or scythe and Kumar a stick. The deceased was given a severe beating and he sustained many injuries. This incident was witnessed by P.W. 7 Appu and P.W. 8 Annappa and Bhupal Chougule-the last named person having expired very soon after 15-4-1979. The two witnesses Appu and Annappa implored the accused and Kumar to be merciful unto the deceased, but to no avail. Eventually, the beating came to an end when Parisha fell down. A taxi was fetched and Parisha was taken to the Zilla Parishad dispensary at Kurundwad. The Doctor there gave first aid and passed on Parisha to the Civil Hospital at Sangli. As soon as he arrived Parisha was examined by Dr. Kamble (Exhibit 27) and sent to the operation theatre. The operation was performed by the honorary Surgeon Dr. Chopade. In view of the pus collection in the chest wall and the congestion of the lung, the patient was given high doses of anti-biotics. The patient did not survive and on 22-4-1979 passed away. To go back a little, Parisha was examined by the police and his statement was recorded at Exhibit 35.
4. To resume the narration where it had been last left, Parisha's corpse was sent to the mortuary and on 23rd April, 1979 a post-mortem examination performed there over by Dr. V.S. Patil (Exhibit 32). Dr. Patil found a number of ante-mortem injurirs on the corpse and these are set out at Column-17 of the postmortem notes which are at Exhibit 33. Dr. Patil's opinion in relation to the cause of death was, ''shock due to severe pyogenic poritonitis.'' To put it in plain language, the deceased had expired because of the injuries turning septic.
5. On 16th April, 1979, the accused and Kumar, a juvenile at that date, were arrested. The investigation went apace and after completion thereof, a charge-sheet was filed. The J.M.F.C., Kurundwad, after having committed the usual enquiry, committed the accused to stand trial in the Sessions Court at Kurundwad Kolhapur. The prosecution against the accused was separated from that against Kumar, and the last named person was sent to the Juvenile Court. To the charge of having committed murder in furtherance of a common intention punishable under section 302 read with 34 I.P.C. the accused pleaded not guilty. Their defence was that relations between them and the material prosecution witnesses were seriously strained. This animosity was the reason for falsely implicating them for the murder of Parisha.
6. To establish its case against the accused, the prosecution examined a large number of witnesses who includes Appu, Annappa, Doctors Chopade, Kamble and Patil and the Investigat
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
