Bombay High Court
Cri. No. 83/2010: vs Unknown on 22 November, 2010
Bench: A. H. Joshi, A. R. Joshi
apeal83.10.odt 1/20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 83 OF 2010
WITH
CRIMINAL APPEAL NO. 68 OF 2010
CRI. NO. 83/2010:
APPELLANTS : (1) Ravi @ Rahul Dinesh Dangore
aged about 24 yrs., Occp. Labour,
r/o Near Raju Kirana Stores,
Pandit Dindayal Ward, Ballarshah.
ig (2) Akash @ Bhurya Raju Potraje
aged about 25 yrs., Occp. Labour,
r/o Pandit Dindayal Ward, Ballarshah.
.. Versus ..
RESPONDENT The State of Maharashtra,
through Police Station Officer,
Ballarshah, Distt. Chandrapur.
.............................................................................................................................
Shri R. P. Joshi, Advocate for the appellants.
Shri D. B. Patel, Additional Public Prosecutor for the respondent-State.
.............................................................................................................................
CRI. NO. 68/2010:
APPELLANT: Ashwini @ Munna Vishwasbandhu Prasad
aged about 28 yrs., Occp. Labour,
r/o Ballarshah, Distt. Chandrapur.
.. Versus ..
RESPONDENT The State of Maharashtra,
through its Police Station Officer,
Police Station Ballarshah,
Distt. Chandrapur.
.............................................................................................................................
Shri A. S. Mardikar, Advocate for the appellant.
Shri D. B. Patel, Additional Public Prosecutor for the respondent-State
.............................................................................................................................
CORAM : A. H. JOSHI & A. R. JOSHI, JJ.
DATED : 22ND NOVEMBER, 2010
::: Downloaded on - 09/06/2013 16:38:04 :::
apeal83.10.odt 2/20
JUDGMENT (Per A. R. Joshi, J.)
1. These appeals are arising out of and
challenging the same judgment and order passed by
Additional Sessions Judge-2, Chandrapur dated
04/01/2010 passed in Sessions Case No. 91 of 2008 in
which total four accused faced the trial for the
offence of murder of one Suresh Jakku.
ig These appeals
are disposed of by this common judgment.
2. The appellants in criminal Appeal No. 83/10
were accused Nos. 1 and 2 and those in criminal
Appeal No. 68/10 was accused No. 3. Accused No. 4
Kailash was acquitted. The State of Maharashtra did
not prefer appeal against his acquittal.
3. By the impugned judgment and order, original
accused Nos. 1 to 3 were convicted for the offence
punishable under Section 302 read with Section 34 of
the Indian Penal Code and were sentenced to life
imprisonment each and to pay fine of Rs. 1,000/-
each, in default, rigorous imprisonment for three
months each.
apeal83.10.odt 3/20
4. Case of the prosecution can be narrated in
nutshell as under:
(a) On 08/4/2008 in the night time the
incident of deadly assault on victim Suresh
Jakku occurred in front of house of one Deva
Yadao (P.W.-2). At that time victim Suresh
Jakku and his other friends had assembled near
one liquor shop in the vicinity of the house
of P.W. No.2 after consuming the liquor. One
Niraj Dhotekar, a friend of victim Suresh,
started searching for his motorcycle and came
near the house of P.W. No.2. The quarrel
ensued when accused nos. 1 to 3 were accosted
by him on the allegation that they had
concealed his motorcycle. That time scuffle
took place and accused Nos. 1 to 3 assaulted
victim Suresh.
(b) Accused Nos. 1 and 3 allegedly used
knife to assault Suresh on his abdomen, chest
Akash caught hold of victim Suresh. At that
time P.W. No. 2 Deva Yadao, P. W. No. 3 Balu
Gedam, who were present there, tried to rescue
apeal83.10.odt 4/20
the victim, but in vain. All the three
accused, then ran away.
(c) Due to severe bleeding injuries on the
abdomen, chest and back, victim Suresh fell on
the ground in a pool of blood. Due to such
severe assault intestine of the victim had
protruded from the abdomen and apparently
there was severe blood loss.
Yadav called Auto rickshaw.
P.W. No.2 Deva
(d) Injured Suresh was taken to the
Government Hospital at Ballarasha. Relatives
and brother of Suresh reached the hospital
after getting intimation. Initially,
treatment was given at Ballarasha Hospital and
then injured was referred to the Hospital at
Chandrapur.
5. On the intimation to Police Station,
Chandrapur, P.W. No.7 Naim Khan, Police Constable
arrived at the Hospital. He gave requisition to the
doctor and obtained certificate from him regarding
condition of the injured being fit for giving
statement. Statement of the victim was recorded by
apeal83.10.odt 5/20
P.W. No.7 at Exh. 59, endorsement of Dr. Nagrale
(P.W.-9) was obtained on the same.
6. According to the prosecution, in the said
statement, dying declaration of the victim, he
disclosed names of accused Nos. 1 to 3 and their 7 to
8 other associates.
7.
After recording of dying declaration, sensing
the condition of the injured very serious, he was
referred to the hospital at Nagpur and accordingly
was taken from Chandrapur Hospital. While on the way
to Nagpur the victim succumbed to the injuries. It
is also the case of the prosecution that while the
victim was at Ballarasha hospital, one Raju Jakku-
brother of the victim narrated the incident to one
Mogli Kondawar (P. W. No.4). Said Mogli visited the
hospital and observed condition of the victim and
immediately lodged the report to police around 2345
hours against three named accused as their names were
revealed through Raju Jakku. On the strength of said
complaint offence was registered against accused Nos.
1 to 3 and their other associate for the offence
apeal83.10.odt 6/20
punishable under Section 307 read with Section 34 of
the Indian Penal Code. After the death of the
victim, offence punishable under Section 302 of the
Indian Penal Code was applied.
8. During investigation, spot panchanama was
prepared, blood stained mud, mud sample, one plastic
chappal,
receiving
pair
the
of slippers,
intimation of
etc.
the
were
death
seized.
of victim,
On
inquest panchanama was drawn and postmortem was
conducted. After finding whereabouts of accused Nos.
1 to 3, they were arrested on 09/4/2008. Their
clothes were seized under the panchanamas and
statement of witnesses were recorded.
9. According to the case of prosecution, there
was recovery of knives at the instance of accused
Nos. 1 & 3. These recoveries were done respectively
on 11/4/2008 and 16/4/2008. According to the
prosecution, at the time of arrest, accused No. 1
Rahul was found having sustained some injuries and
hence he was referred to the hospital and after the
treatment, medico legal certificate was obtained.
apeal83.10.odt 7/20
10. During investigation, name of accused No. 4
Kailash was revealed. He was arrested on 17/4/2008
and his clothes were seized. Seized articles were
sent for chemical analysis and C. A. Reports were
obtained. After completion of investigation, charge-
sheet was filed before the Court of Chief Judicial
Magistrate at Chandrapur. The case was, then
committed to the Court of Sessions being Sessions
Case No. 91/08.
11. During the trial total 15 witnesses were
examined by the prosecution. Two defence witnesses
were examined on behalf of the accused persons.
12. In order to bring down the scope of the
present appeals, so far as the rival arguments are
concerned, certain admitted position is narrated as
under :-
(i) Death of victim Suresh is homicidal.
(ii) Victim Suresh was of bad character
and having criminal cases against
him.
(iii) Alleged eye witnesses P.W. Nos. 2,
apeal83.10.odt 8/20
3 and 10 did not support the case
of prosecution and turned hostile,
as such; there is no eye witness in
the matter to support the case of
prosecution.
(iv) First information report/complaint
is lodged by P.W. No. 4 Mogli who
(v)
is not an eye witness.
P. W. No. 4 Mogli revealed names
of accused Nos. 1 to 3 from the
brother of the victim i.e. one
Raju.
(vi) Said Raju, brother of the victim
is not examined during the trial.
13. With the above admitted position the rival
arguments are scrutinized. We have gone through the
substantive evidence of the prosecution witnesses
namely :-
(a) The evidence of P.W. Nos. 7 and 9 on the
aspect of written dying declaration (Exh.59).
(b) The substantive evidence of P.W. Nos.5,
6 and 8 who are alleged witnesses on the oral
apeal83.10.odt 9/20
dying declaration of the victim.
Dr. Shailendra Dhawane, who along with his
colleague Dr. Mohd. Khalil conducted the
postmortem on the dead body of the victim.
Dr. Kumbhare;
(e)
and;
D. W. No. 2 Dr. Potddar on the aspect of
injuries sustained by the victim, his
deteriorating condition while under treatment at
Ballarasha and also at Chandrapur Hospital and
as to said patient being referred to Nagpur
Hospital at early hours of 09/4/2008.
14. The main gravamen of the arguments advanced
on behalf of the appellants in both the appeals is
that P.W. Nos. 5, 6 and 8 are untrustworthy for
various reasons. P.W. No. 7 Police Constable is also
untrustworthy in as much as there was no possibility
of victim being conscious to give oral dying
declaration (Exh.59) and evidence of P.W.No.9-
Dr. Nagrale also cannot be accepted on the aspect of
apeal83.10.odt 10/20
consciousness of the victim and his fit condition to
give statement, more so, when the evidence of the
attending doctor P.W. No.11 Dr. Kumbhare and D.W. No.
2 Dr. Potddar is overwhelming pointing towards the
sinking condition of the victim.
15. In order to appreciate the above arguments,
I)
certain facts are produced hereunder :-
P.W. No.5 Ramesh Jakku, who is brother
of the deceased, is not eye witness and
his statement was recorded by the police
on 15/4/2008, much belatedly after the
incident of 08/4/2008. Said P.W. No.5 was
all along available to the police till his
recording of statement. According to him,
victim Suresh disclosed the names of
accused Nos. 1 to 3 as assailants and
allegedly told that they repeatedly
assaulted the deceased. An omission is
brought on record on behalf of defence
regarding the fact of repeated assault.
II) P.W. No. 6 Santosh has alleged that
victim Suresh made dying declaration
apeal83.10.odt 11/20
before him taking the names of accused
Nos. 1 to 3 as assailants, he gave
statement to the police on 25/4/2008 i.e.
much belatedly after about 16 days after
the incident, though he was all along
available to the police.
III) P.W. No. 8 Munna Khedkar gave his
statement immediately on the next day of
the incident i.e. on 09/4/2008 as to the
to 3 as assailants. However, it is
brought on record on behalf of the defence
as to the names of the assailants not
mentioned in the statement recorded by the
police though the same was recorded on the
next day of the incident.
IV) The injuries sustained by the victim
are of much significance which are
detailed in column No. 17 of the
postmortem report i.e. injuries No. 1 to
11 as below :-
(i) Incise wound present over left side
of chest on left 4th rib and
intercostal space 4 cm. Left of
midline vertically oblique failing
apeal83.10.odt 12/20
towards left of size 3 cm. X 0.5 cm.
Muscle deep. Blood oozing present.
(ii) Incise wound present over left side
of chest at left 6th intercostal space
in anterior axillary line, vertically
oblique tailing towards left, of size
1 cm. X 0.5 cm. Muscle deep. Blood
oozing present.
(iii)Incise wound present over right side
of chest at right 6th intercostal
space 3 cm. Right of midline,
vertically oblique, failing towards
right of size 1 cm. X 0.5 cm. Muscle
deep. Blood oozing present.
(iv) Incise wound present over right side
of chest 9 cm. Right of midline at 6th
rib at intercostal space, vertically
oblique, failing towards right of
size 3 cm. X 0.5 cm. Muscle, blood
oozing present.
(v) Incise wound present over right side
of chest at right 8th rib and
intercostal space in mid-axillary
line of size 3 cm. X 0.5 cm. Muscle
deep, blood oozing present.
(vi) Stab wound present over right side of
chest in right 8th intercostal space
in mid clavicular line, vertically
oblique going towards right of size
of 3 cm. X 2 cm. Cavity deep,
elliptical in shape. One edge is
bevelled and another edge is sharp.
Both angles are pointed.
(vii)Stab wound present over right side of
chest in right 7th intercostal space 3
cm. Right of midline of size 3 cm. X
1 cm. Cavity deep, vertically place,
elliptical in shape, both angles are
pointed.
apeal83.10.odt 13/20
(viii)Stab wound present in right lumber
region of abdomen 5 cm. Right of
midline of size 3 cm. X 2 cm. Cavity
deep with exposing the coils of
intestine. Transversely oblique
wedge shape one angle in sharp
another is blunt.
(ix) Stab wound present in right lumber
region of abdomen 2 cm. Right of
injury no. 8 of size 3 cm. X 3 cm.
Cavity deep, coils of intestine
oozing out transversely oblique wedge
shape one edge is bevelled other is
slightly rounded. One angle is sharp
other is blunt.
(x) Incise wound present over right side
of back at the level of T 12 vertebra
of size 8 cm. X 2 cm. Muscle deep
transversely placed. With tailing
towards left blood oozing present.
(xi) Incise wound present over right thigh
in middle 1/3rd region on outer aspect
of size 3 cm. X 1cm. X muscle deep,
transversely placed tailing towards
right blood oozing present.
Internal injuries as mentioned in
column No. 21 of the postmortem report are as
under:
(a) Stab wound present on right lobe of
liver of size 4 cm. X 5 cm. Going
through and through the liver,
corresponding to the injury no. 6 in
column no. 17; and
(b) Stab wound present on left lobe of
liver of size3 cm. X 0.5 cm.
apeal83.10.odt 14/20
V) Blood group of the victim was ascertained
as 'A' whereas blood groups of the accused
persons could not be ascertained. The knives
recovered at the instance of accused Nos. 1 &
3 were having human blood, however, results
were inconclusive so far as the blood group
is concerned.
VI)
Panch witness (P.W. No. 12) did not
support the case of the prosecution. Said
pancha was used by the prosecution for the
recovery of knives at the instance of accused
Nos. 1 and 3 on respective dates 11/4/2008
and 16/4/2008. Moreover, admittedly, said
panch witness (P.W. No. 12) had worked for
police for many years and was stock panch.
16. In view of the above circumstances which are
gathered from the substantive evidence of P. W. Nos.
5, 6 and 8 and also the evidence of P.W. No. 12, in
our opinion, the theory of oral dying declaration
given by the victim cannot be accepted mainly on the
ground of delayed recording of statements of P.W.
apeal83.10.odt 15/20
Nos. 5 and 6 and material omission regarding the
names of the assailants from the statement of P.W.
No.8.
17. Moreover, the recovery of respective knives
cannot be held to be trustworthy mainly due to the
conduct of the panch witness P.W. No. 12.
18. Even
otherwise also for want of clinching
material in view of findings in the chemical
analyzer's report as to determination of blood
grouping, such alleged recovery of knives cannot be
treated as incriminating circumstance so as to link
the accused persons with the offence of murder.
19. On the aspect of acceptance of evidence of
the Investigating Officer and accepting the
recoveries at the instance of accused Nos. 1 and 3,
following authorities are cited before us on behalf
of the State.:
(1)AIR 1978 SC 1511
(Mohan Singh Vs. State of Rajasthan)
(2)AIR 1978 SC 1571
(State of Kerala Vs. M.M. Mathew &
another)
apeal83.10.odt 16/20
20. After going through the ratios, as laid down
in above authorities, it is clear that on the aspect
of appreciation of evidence under Section 3 of the
Indian Evidence Act, merit of each case is to be
determined on the facts available in the particular
case. Considering the circumstances regarding
recovery of knives and blood stained clothes from
accused Nos. 1 and 3, it can hardly be said that the
evidence of the Investigating Officer can be accepted
in spite of hostility of P.W. No.12 and in spite of
no clinching evidence by way of C. A. Reports.
21. In view of the above discussion, now only
point to be considered is regarding authenticity or
otherwise of the written dying declaration (Exh. 59).
On this aspect following authorities are cited before
us on behalf of the appellants.
(1)AIR 1983 SC 554
(Darshan Singh & others Vs. State of
Punjab)
(2)2007 ALL M R (Cri) 847 (S.C.)
(Mohan Lal & others Vs. State of
Haryana)
(3)2000(2) Mh. L.J. 3
(Manohar Dadarao Landge Vs. State of
Maharashtra)
apeal83.10.odt 17/20
22. By pointing the ratios as laid down in the
above authorities and mainly the principles given in
the authority Mohan Lal Vs. State of Haryana
(supra)it is strongly submitted that the authenticity
of Exh. 59 in the present matter is very much
doubtful.
23.
declaration
To
support
being
the
doubtful,
said arguments
following
about
points
dying
were
raised :-
(1) P. W. 7 Police Constable Naim Khan
Pathan allegedly wrote down written dying
declaration (Exh.59). It has not been recorded
by the Investigating Officer.
(2) Below the thumb impression appearing on
Exh. 59, purported to be that of the victim,
there is no certificate of P.W.No.9 Dr. Nagrale.
(3) Relatives and friends of the victim were
present at the time of recording of said dying
declaration.
(4) As per the exhibited documents i.e.
medical case papers and evidence of D.W. No.2
Dr. A. S. Potddar, the victim was referred to
apeal83.10.odt 18/20
the Nagpur Hospital at 2.00 a.m. On 09/4/2008
whereas alleged dying declaration (Exh.59) is
recorded from 2.15 a.m. to 2.45 a.m. as there
appears to be an endorsement of P.W.No.9 Dr.
Nagrale at the conclusion of the writing.
(5) There is no record brought by the
prosecution by way of production of any Station
Naim Khan
Diary Entry as to deputation of P. W. No.7 P.C.
Pathan for recording such dying
declaration and attendance at the hospital.
(6) Investigating Officers P.W.-13 and
P.w.-14 did not specifically mention as to from
whom the alleged dying declaration (Exh.59) was
received.
(7) The condition of the victim was very
serious and there was loss of blood and in fact
blood was transfused to him and by midnight of
09/4/2008 the victim was unconscious and not
able to give any statement.
(8) Admittedly, P.W. No.9 Dr. Nagrale had
not attended the victim and had not treated him
and he was called upon only for giving the
endorsement on Exh. 58 and requisition prepared
apeal83.10.odt 19/20
by P.W.-7 P. C. Naim Khan Pathan.
24. While analyzing the above points raised on
behalf of the defence, it must be mentioned that
definitely the condition of the victim was very
serious. This is more so in view of the injuries
sustained by him and detailed in the postmortem
report as
reproduced earlier.
blood was voluminous and there was blood transfusion.
Definitely loss of
At no point of time the P.W.-9 Dr. Nagrale does not
state that he had seen the case papers where state of
health of patient was recorded namely Pulse not
palpable, Respiratory Rate was 18, etc. yet he
states that the patient was fit to give dying
declaration. Bearing in mind this factual position,
in our view, the learned Additional Sessions Judge
had erred in placing reliance on the said written
dying declaration (Exh. 59). In other words, it must
be said that there are suspicious circumstances
shrouded around Exh. 59 and as such it is not prudent
to act on the same without corroboration. Such
corroboration is lacking in the present matter as
discussed earlier.
apeal83.10.odt 20/20
25. In view of the above discussion sole
foundation of conviction i.e. the dying declaration
Exh.59 collapses and there is every ground to
interfere with the judgment and order of conviction
of accused Nos. 1 to 3. Consequently both the
criminal appeals are disposed of as per following
order.:
ig ORDER
1. Criminal appeal No. 83 of 2010 and
Criminal appeal No. 68 of 2010 are
allowed.
2. Concerned appellants/accused persons
shall be released from the jail
custody, if not required in any other
matter.
3. The fine amount, if any, paid by
them shall be returned back to them.
JUDGE JUDGE
wwl
