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        REPORTABLE

IN THE SUPREME COURT OF INDIA

               CRIMINAL APPELLATE JURISDICTION                  CRIMINAL APPEAL NO. 1962 OF 2011

Sanjay Khanderao Wadane .... Appellant(s)

Versus

State of Maharashtra           .... Respondent(s)   WITH

CRIMINAL APPEAL NO. 604 OF 2012

                  J U D G M E N T

R.K. Agrawal, J.

1) The above appeals have been filed against the common

judgment  and  order  dated  11.01.2011  passed  by  the  High

Court  of  Judicature  of  Bombay,  Bench  at  Aurangabad,  in

Criminal  Appeal  Nos.  246  and  250  of  2009  whereby  the

Division  Bench  of  the  High  Court  confirmed  the  order  of

conviction  and  sentence  dated  09.04.2009  passed  by  the

Court  of  Sessions,  Ahmednagar in Sessions Case No.  88 of

2008 for  the  offences  punishable  under  Sections  143,  147,

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148, 302 read with Section 149 and Section 326 read with

Section 149 of the Indian Penal Code, 1860 (in short ‘the IPC’).

2) Brief facts:

(a) It  is  the  case  of  the  prosecution  that  on  the  fateful

evening  of  31.01.2008,  Ravindra  Kale  (since  deceased)  was

beaten to death by the appellants herein and others, who were

12 (twelve) in numbers and were armed with swords and iron

pipes, owing to a long standing dispute between the deceased

and the accused persons.   

(b) Shaila  Kale  (PW-12)  –  wife  of  the  deceased,  filed  a

complaint with regard to the alleged crime which got registered

as Crime No. 14 of 2008 against the accused persons.  After

investigation,  the  charges  were  framed  and  the  case  was

committed to the Court of Sessions and numbered as Sessions

Case No. 88 of 2008.

(c) Vide judgment and order dated 09.04.2009, the Court of

Sessions, Ahmednagar, convicted the appellants herein, viz.,

Pandurang Shridhar Wadane and Sanjay Khanderao Wadane

along with others under Sections 143, 147, 148, 302 read with

Section 149, Section 326 read with Section 149 of the IPC and

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sentenced  to  rigorous  imprisonment  (RI)  for  life  along  with

fine.

(d) Aggrieved by the judgment and order dated 09.04.2009,

the  appellants herein,  along with others,  preferred Criminal

Appeal Nos. 246 and 250 of 2009 before the High Court.  A

Division Bench of the High Court, vide common judgment and

order dated 11.01.2011, confirmed the order of conviction and

sentence  passed  by  the  Court  of  Sessions  against  the

appellants herein.

(e) Being  aggrieved  by  the  order  dated  11.01.2011,  the

appellants have preferred these appeals by way of special leave

before this Court.

3) Heard learned counsel for both the sides and perused the

records.

4) The  alleged  incident  is  said  to  have  occurred  on

31.01.2008  at  about  5:00  p.m.   There  was  some  dispute

between the  deceased and the  accused  persons  and earlier

also there were incidents of scuffle between the parties.  On

the date of the incident, the deceased was standing in front of

a  tea  stall  in  his  village.   Anil  Kale  (PW-5),  brother  of  the

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deceased was also  present there.   Suddenly,  the  appellants

herein, along with other accused persons, came to the spot in

a car and 2 motorcycles.  The car gave a hit to the deceased

due  to  which  he  fell  down.   Immediately  thereafter,  the

accused persons, along with others, started beating him with

swords and iron pipes.  Anil Kale (PW-5), who was present at

the spot and is an eye-witness to the incident,  immediately

rushed  to  call  the  wife  of  the  deceased  who  was  working

nearby.  When the wife of the deceased reached the spot, she

also witnessed that the accused persons, along with others,

were  beating  her  husband.   Sunil  Raosaheb  Kale  (PW-8),

Devdas Magar and Shridhar Salve  were also present at  the

spot and also sustained injuries while rescuing the deceased.

The information of the said incident was given by Anil Kale to

the  police  over  phone  and the  deceased was  shifted  to  the

Hospital where he was declared brought dead.  The charges

were  framed  against  the  accused  persons  under  various

Sections of the IPC including Section 302 read with Section

149 and were later on confirmed by the Sessions Court and

the High Court against them.  Since a common question of law

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has arisen in these appeals, the same will be disposed of by

way of this common judgment.

5) For a better appreciation of the matter, it is pertinent to

throw light  upon the  versions of  the  prosecution witnesses.

Since in the present set of appeals only the appellants herein

are before us, we are confining our discussion to them only.

There is no doubt that the death was homicidal.  Anil Kale-real

brother  of  the  deceased,  who  was  examined  as  PW-5,  very

categorically  narrated  the  whole  incident  as  to  how  the

accused persons reached the spot in a Van and motorcycles.

Further, the appellants herein got down from the car and were

armed with swords and others were armed with iron pipes.

One  Sambhaji  Aher  gave  two  blows  on  the  head  of  the

deceased  using  sword.   On  seeing  this,  he  rushed  to  call

Shaila Kale (PW-12) – wife of the deceased, who was working

near to the place of the incident.  On his return, he witnessed

that  the  accused  persons  were  beating  his  brother  using

swords and iron pipes.   He also witnessed that  Sunil  Kale,

Devdas  Magar  and  Shridhar  Salve  also  got  injuries  while

rescuing the brother of the deceased.  Anil Kale made a phone

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to  the  police  station  informing  about  the  incident.   This

witness further deposed that there was long standing rivalry

between the parties.  Anil Kale had seen the accused persons

while causing injury on the head of his brother by means of

swords and iron pipes.  His evidence clearly shows that he had

seen  Sambhaji  Aher  giving  two  blows  on  the  head  of  the

deceased  and  had  also  seen  the  appellants  herein  causing

injury on the person of the deceased.  He also witnessed the

injuries  caused  to  Sunil  Kale  (PW-8)  and  Shridhar  Salve

during  the  said  incident.   Though  the  High  Court  has

discarded  the  testimony  of  this  prosecution  witness,  on  a

perusal  of  the  examination  and  cross  examination  of  this

witness,  we  are  of  the  opinion  that  he  has  narrated  the

incident exceptionally well and contradictions, if  any, are so

minor in nature that it does not go to the root of the matter.

6) Sunil  Raosaheb Kale  –  cousin brother  of  the  deceased

was examined as PW-8.  He deposed before the Court that the

accused  persons  reached  the  spot  in  a  Van  and  on  two

motorcycles.  The appellants herein got down from the Car and

were armed with swords.  First blow was given by Sambhaji

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Aher using sword on the head and second on the face of the

deceased.  The appellants herein were also causing injuries to

the deceased using iron pipes and swords.  When he tried to

rescue the deceased, Sambhaji Aher gave a sword blow to his

left leg.  He further deposed that Anil Kale brought the wife of

the  deceased  at  the  spot.   The  police  brought  him  to  the

hospital  at  Shevgaon  from  where  he  was  shifted  to  Civil

Hospital,  Ahmednagar  for  further  treatment.   During  his

cross-examination,  he  deposed  that  he  ate  ‘Bhel’  with  the

deceased  before  the  incident.   Learned  counsel  for  the

appellants  pointed  out  that  the  fact  of  eating  ‘Bhel’  by  the

deceased had not come up in the post mortem examination of

the deceased which creates a doubt that the narration of the

whole incident by the witness is a result of an afterthought.      

7) Learned counsel  for  the  appellants  contended that  the

story of PW-8 that he and the deceased had ‘Bhel’ is falsified

by the evidence of Dr. Neeta (PW-10), who conducted the post

mortem of the body of the deceased wherein she stated that

she  did  not  find  any  food  particles  in  the  intestine  of  the

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deceased.  In this backdrop, it is pertinent to mention here the

post mortem examination of the deceased which is as under:-

“A very extensive lacerated wound over face including both eyes, nose, mouth, tongue, right cheek along with multiple bone fractures including right orbital  bones,  right maxilla, nestle bone, right mandible along with this both eye balls are collapsed.

Incise wound over infra mandible area of about 5 x 0 x 2 x 2 cm.

Incise wound over frontal area with frature frontal bone of 5 x 0.5 x 3 cm.  

Incise wound over left wrist dorsal aspect of about 4 x 0.5 x . 5 cm.

Incise wound over right partial area of 5 x 5 x 0.5 x 0.5 cm.  Contusion over left side lower abdomen of 8 x 2 cm.  

According to my opinion the probable cause of the death of deceased  is  due  to  cardio  respiratory  arrest  due  to hemorrhage as well as nurogenic shock due to very extensive lacerated  wound  over  fact  including  brain  along  with multiple bone fracture of face.  Accordingly, I have prepared PM Notes which is in my hand writing.   I  am shown the same.  It bears my signature, contents are correct.  It is at Exh.  67.  The  injuries  mentioned  in  Cl.  17  and  19  were ante-mortem injuries.  The said patient may die instantly on account  of  causing  injuries  to  him as  mentioned  in  post mortem notes.  Incised wound caused to the deceased could be possible by means of sharp edged weapon.  Incised could caused to the deceased as mentioned in Col.  17 could be possible by means of sword i.e., Art. No. 16 and 17 which are now shown to me before the Court.  The injury No. 16 as mentioned in PM Notes could be possible by article No. 18 and 19 which are now shown to me.  Injury No. 1 mentioned in CL. 17 of PM Notes could not be possible by various blows of the weapon.  The dead body of the deceased Ravindra was lying in dead house of Shevgaon and I have carried out post mortem examination  over  the  dead  body  of  the  deceased there.”

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Further,  during  cross-examination,  PW-10  deposed  as

under:-

“Time of death of person can be ascertained by looking into the stomach contains, if someone eats food then it remains in stomach for half an hour and then it goes to the intestine. One  can  identify  the  food  particles  eaten  by  said  patient within the period of two hours from that time.  I did not find any food particles in the intestine of the deceased.”

A medical witness who performs a post-mortem examination is

a witness of fact though he also gives an opinion on certain

aspects of  the case.  The value of  a medical witness is not

merely a check upon the testimony of eyewitnesses; it is also

independent testimony because it may establish certain facts

quite apart from the other oral evidence.  From the evidence

on record, inferences are drawn as to the truth or otherwise of

the  prosecution  case  in  criminal  matters  and  truth  or

otherwise  of  a  claim in  civil  matters.   In  this  process,  the

medical  evidence  plays  a  very  crucial  role.   If  there  is

inconsistency  or  discrepancy  between  the  medical  evidence

and the direct evidence or between medical  evidence of  two

doctors, one of  whom examined the injured person and the

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other conducted  post mortem on the injured person after his

death or as to the injuries, then in criminal cases, the accused

is given the benefit  of  doubt,  and let off.   Where the direct

testimony is found untrustworthy, conviction on the basis of

medical evidence supported by other circumstantial evidence

can be done, if that is trustworthy.  On a careful perusal of the

post mortem conducted by PW-10, it is very much clear that

the death is caused by means of a sharp edged weapon and

that too possibly by means of sword. The evidence given by

PW-10 fully corroborates with the version given by PW-5 and

PW-8  that  the  appellants  herein  caused  the  death  of  the

deceased using swords and iron pipes.  It has been specifically

mentioned  in  the  report  that  injuries  could  be  possible  by

various blows of the weapons.  Further, the death was caused

due to cardio respiratory arrest due to hemorrhage as well as

neurogenic shock due to very extensive lacerated wound over

face  including  brain  along  with  multiple  bone  fractures  on

face.  The evidence of a medical person is merely an opinion

which lends corroboration to the direct evidence in the case.  It

has been observed in various cases of this Court that where

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the eye witnesses’ account is found credible and trustworthy,

medical  opinion  pointing  to  alternative  possibilities  is  not

accepted as conclusive.   

8)  Now, we shall deal with the other aspect of the argument

advanced  on  behalf  of  the  appellants  i.e.  in  relation  to

uncertainty in the time of occurrence as well as death of the

deceased, with reference to expert evidence. The contention is

that as per the statement of PW-8, they had ‘Bhel’ just before

the  incident.  However,  according  to  the  medical  evidence,

there were no food particles in the stomach of the deceased.

Therefore, the version of PW-8 is falsified by the evidence of

PW-10, more particularly, wherein she has stated that she did

not find any food particles in the intestine of  the deceased.

According  to  the  learned  counsel  for  the  appellants,  this

causes a serious doubt on the very basis of the prosecution

story. This argument appears to be of some significance at the

first brush, but when examined in depth in light of the entire

evidence, it clearly lacks merit.

9) The  presence  or  absence  of  food  at  the  time  of

post-mortem in relation to the time of death is based on various

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factors and circumstances such as the type and nature of the

food consumed, the time of  taking the meal,  the age of  the

person concerned and power and capacity  of  the  person to

digest the food.  In the present case, though PW-8 has stated

that he had ‘Bhel’ with the deceased just before the incident,

there is no evidence about the exact time when the meals were

taken or  the  quantity  of  ‘Bhel’  consumed by  the  deceased.

Judging the time of death from the contents of the stomach,

may not always be the determinative test. It will require due

corroboration from other evidence. If the prosecution is able to

prove its case beyond reasonable doubt and cumulatively, the

evidence  of  the  prosecution,  including the  time of  death,  is

proved beyond reasonable doubt and the same points towards

the guilt of the accused, then it may not be appropriate for the

court  to  wholly  reject  the  case  of  the  prosecution  and  to

determine  the  time  of  death  with  reference  to  the  stomach

contents of the deceased.  Even in Modi’s Jurisprudence, it has

been recorded as under:

“…  The state of the contents of the stomach found at the time  of  medical  examination  is  not  a  safe  guide  for determining the time of the occurrence because that would

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be  a  matter  of  speculation,  in  the  absence  of  reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of.”

Where  there  is  positive  direct  evidence  about  the  time  of

occurrence, it is not open to the court to speculate about the

time  of  occurrence  by  the  presence  of  faecal  matter  in  the

intestine. The question of time of death of the victim should

not be decided only by taking into consideration the state of

food in the stomach. That may be a factor which should be

considered  along  with  other  evidence,  but  that  fact  alone

cannot be decisive.

10) This Court in  a catena of cases has stated the dictum

that medical opinion is admissible in evidence like all  other

types  of  evidence  and  there  is  no  hard-and-fast  rule  with

regard  to  appreciation  of  medical  evidence.  It  is  not  to  be

treated as sacrosanct in its absolute terms. Agreeing with the

view expressed in Modi’s book on  Medical Jurisprudence and

Toxicology, this Court recorded that so far as the food contents

are concerned, they remain for long hours in the stomach and

the duration thereof depends upon various other factors.  

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11) Further,  in  Malay  Kumar  Ganguly vs.  Sukumar

Mukherjee AIR 2010 SC 1162, it has been held by this Court

that the opinion could be admitted or denied.  Whether such

evidence could be admitted or  how much weight  should be

given thereto, lies within the domain of the court.   

12) It  is  clear  from  the  depositions  of  the  prosecution

witnesses, viz., PW-5 and PW-8 which corroborates with the

deposition  of  PW-10  that  the  injuries  were  sustained  by  a

sharp  cutting  object  and  not  by  hard  and  blunt  object.

Further, the plea raised by learned counsel for the appellants

with regard to non-founding of food particles in the intestine of

the  deceased  is  of  no  basis  as  the  digestion  varies  with

different person even with same material, and sometimes even

with  the  same  person  at  different  times.   With  incomplete

digestion, no reliable opinion can be given on a medical basis.

In fact,  there is no positive  evidence that the deceased had

‘Bhel’ along with others.  If the period of digestion is six hours,

the food will be in semi-digested stage upto 2 to 2½ hours and

if someone takes food then it remains in stomach for half an

hour and then it goes to the intestine.  Even if it be taken that

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the deceased had ‘Bhel’  along with others and five  minutes

thereafter the incident started in which he succumbed to his

injuries, the food will not be converted into semi-digested state

and the doctor will not find any food particles in the intestine.

The digestion of food is one of the important data which guide

the medical officer in arriving at an opinion as to the time of

death.  This is possible on internal examination.   

13) Shaila Kale-wife of the deceased was examined as PW-12.

She also deposed that when she was asked by Anil to come,

she  immediately  rushed  to  the  spot  and  noticed  that  the

appellants herein were armed with swords and were beating

her husband who succumbed to his injuries then and there.

She lodged a report with the Police about the incident which

was reduced into writing by mentioning the names of all the

accused persons therein.   

14) In this view of the matter, the evidence of PWs 5, 8 and

12 are found to be trustworthy and fully  corroborated with

each other on the point of alleged incident with regard to the

involvement of the appellants herein.  Further, there evidence

fully  corroborates  with  the  medical  evidence  given  by  the

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Doctor who conducted the post mortem of the deceased.  Even

the injuries sustained by PW-8 while rescuing the deceased

from the clutches of the accused persons have been examined

and proved by Dr. Kundalick (PW-11) who found them to be of

grievous nature.  We are of the view that the evidence of the

witnesses cannot be brushed aside merely because of  some

minor contradictions, if any, particularly for the reason that

the evidence and testimonies of the witnesses are trustworthy.

However, the prosecution failed to examine Devidas Magar and

Shridhar Salve who said to have rescued the deceased.   

Conclusion:

15) The prosecution has examined material  witnesses, viz.,

PW-5,  PW-8  and  PW-12  who  are  the  eye-witnesses  to  the

alleged incident.  In our opinion, the High Court was not right

in discarding the testimony of  PW-5 and PW-12 taking into

consideration the role played by the appellants herein.  The

presence of the above witnesses at the place of occurrence is

clearly established and is not at all doubtful. Though there are

certain discrepancies but those are so minor in nature that it

cannot  harm  the  case  of  the  prosecution.   Their  evidence

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inspires confidence  and is  natural  one which clearly  shows

that the accused persons formed an unlawful assembly along

with  others  with  a  common object  to  murder  the  deceased

which was done by causing injuries to his person using fatal

weapons which fully  corroborates  with the  oral  evidence  as

well  as  the  post  mortem report  of  the  Doctor  (PW-10)  who

conducted  the  post  mortem.   We  do  not  find  any  conflict

between the oral evidence of the above witnesses and medical

evidence  of  PW-10  as  alleged  by  learned  counsel  for  the

appellants, particularly, on the point of injuries caused to the

deceased on face and head using swords and iron pipes.

16) In view of the foregoing discussion, we do not find any

infirmity in the orders passed by the High Court with regard to

the conviction and sentence of the appellants-accused.  The

appeals are accordingly dismissed.     

………….………………………J.               (A.K. SIKRI)                                  

.…....……..………………………………J.          (R.K. AGRAWAL)                           

NEW DELHI; AUGUST 3, 2017.