Santosh Kailash Wagh vs The State Of Maharashtra
2016 Latest Caselaw 3478 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                       
                             CRIMINAL APPEAL NO. 147 OF 2013


     Santosh Kailash Wagh
     Age 22 years, Occ. Labour,




                                                      
     R/o. Indiranagar, Garkheda,
     Aurangabad.                                                ...Appellant

              versus




                                          
     The State of Maharashtra
     Through Police Station Officer,
                             
     Police Station, Osmanpura,
     Aurangabad.                                                ...Respondent

                                             .....
                            
                       Mr. S.B. Narwade, Advocate for the appellant
                     Mrs. P.V. Diggikar, A.P.P. for the respondent State
                                             .....
      

                                              CORAM : A. V. NIRGUDE AND
                                                      V. K. JADHAV, JJ.

DATED : 29th JUNE, 2016

ORAL JUDGMENT (PER A.V. NIRGUDE, J.)

1. This appeal challenges the judgment and order dated

28.02.2013 in Sessions Case No. 170 of 2010 delivered by the

learned Additional Sessions Judge, Aurangabad thereby convicting

the appellant for the offence punishable under Section 302 of IPC

and sentencing him to suffer R.I. for life and to pay fine of Rs.1500/-

i/d R.I. for three months.

2. The prosecution allege that the appellant-accused committed

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murder of his friend Jyoti on 26.2.2010 some time at about 8.00 p.m.

The prosecution in all examined 10 witnesses and through their

depositions, the following facts emerged.

3. P.W.1 Laxman Kharat is the complainant. He was maternal

uncle of deceased Jyoti. He said that on that day at about 8.00 p.m.

he came home from work. While he was taking wash, he heard

commotion in neighbourhood. He went there and found the

appellant-accused sitting in the chowk with injuries on his person.

He heard him saying that Jyoti was lying across the railway line and

she should be saved. Number of people gathered near him. No one

knew where Jyoti would be found. P.W.2 Sheelabai, mother of Jyoti

then went to police station and informed about the incident to the

police. Four police constables came with her to the spot and

thereafter all of them started Jyoti's search. At about 9.30 p.m., they

found Jyoti lying in a ditch near railway line, which is about 2

kilometers away. It appears from the record that the spot, where

Jyoti was found, was more than one kilometer away from the chowk,

where the appellant found in injured condition by the witnesses. Jyoti

disclosed to the P.W. 1, 4 and 6, who found her there, that the

appellant/accused had attacked her. Jyoti was taken to GHATI

hospital, where she died at about 11.00 p.m.

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4. On the other hand, the prosecution also brought on record

through the depositions of P.W. 10 Dr. Satish Deshpande that the

accused-appellant's father took him to Kamalnayan Bajaj Hospital in

injured condition. P.W.10 Dr. Deshpande wrote down the history as

was narrated by the father of appellant-accused. This witness found

two stab injuries on abdomen of the appellant-accused. The

appellant-accused was admitted to the hospital and treated

successfully.

5. The defence of the appellant-accused since beginning was that

while he and Jyoti were sitting at isolated place, an unknown person

came with knife and attacked both of them. The first question that is

required to be decided in this appeal is whether the oral dying

declaration of Jyoti to P.Ws. 1, 4 and 6 is worthy of reliance. All

three witnesses went in search of Jyoti during that evening and found

her lying in a ditch. According to them, they were accompanied by

four police constables. They asserted that Jyoti informed to them

that it was the appellant-accused, who was her assailant. As said

above, Jyoti succumbed to the injuries at about 11.00 p.m. Her body

was subjected to post mortem examination. P.W.8 Dr. Sachin Gadge

disclosed that Jyoti had sustained 15 stab wounds, out of which,

except two of the stabs were found on chest and abdomen of the

victim. Dr. Sachin Gadge opined in his cross examination that the

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patient who suffered such injuries might die immediately or at least

might become unconscious. The Medical Officer also described

corresponding internal injuries. He mentioned that victim sustained

stabs to both lungs and at least at two places on intestine. In view of

serious nature of the injuries sustained by the victim, it is rather

difficult to believe version of P.Ws. 1, 4 and 6 that the victim was

taking the appellant's name as her assailant.

6.

A doctor usually confronted with such questions regarding

different possibilities or probabilities may require to express his views

one way or the other, depending upon the manner the question was

asked. But the answers given by medical witness to such questions

need not become the last word on such possibilities. After all, he

gives only his opinion regarding such questions. But to discard the

testimony of witness on the point simply on the strength of such

opinion expressed by medical witness is not conducive to the

administration of criminal justice.

7. In the case in hand, the conduct of the prosecution witnesses

is highly suspicious. On 26.2.2010 accused Santosh was found in

the Punjabai Chowk having sustained injuries on his person in the

form of wound by knife. He was loudly telling to the gathering that to

go and save Jyoti, who was lying towards opposite side of railway

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track. P.W.1 Laxman, who is the complainant in this case, P.W. 2

Sheelabai, who is mother of deceased Jyoti, and in fact, none of the

prosecution witnesses bothered to ask accused Santosh as to how

he had sustained the injuries and what happened to Jyoti. P.W.1

Laxman, in para 4 of his cross examination, stated that he did not

find it necessary to go and ask the accused about the specific spot

where Jyoti was lying and also about the assailant, who has

assaulted Jyoti. On the contrary, he returned to his house and

stayed there till arrival of police. He has further admitted in his cross

examination that neither him nor other persons bothered to enquire

with the accused. It is surprising that even P.W.2 Sheelabai, who is

the mother of deceased Jyoti, has not made any query with the

accused about the exact spot of incident where Jyoti was lying in

injured condition as also all the details of the incident as well as

assailant. Furthermore, it is very unlikely on the part of assailant to

request the near relatives of victim to go and save the victim, who is

lying in an injured condition. On the other hand, in normal course, the

assailant would try his level best to escape unnoticed from the spot.

8. According to P.W.1 Laxman, he himself, one Sulochana

Pundlik Barde, Subhash Wahul, Walmik Kharat, Kacharu Magre and

four police men started taking search of deceased Jyoti. They found

deceased Jyoti lying in a ditch beyond railway track near

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Shahnoormiya Dargah. She was demanding water. According to

P.W.1 Laxman, deceased Jyoti had disclosed to them that accused

Santosh assaulted her by knife by calling why she was not marrying

with him. She further told them that accused assaulted her on her

abdomen and also caused injuries to himself by the knife and

thereafter he left her at the said place and went away.

9. P.W.4 Kacharu has deposed that deceased Jyoti was found

near a heap of soil and she was saying water water. At that time,

Jyoti stated to them that accused assaulted her by means of knife

and accused dealt a knife blow on himself. It is needless to add here

that if dying declaration is oral, exact words stated by deceased to

the witnesses are of utmost importance. The witnesses if improve

upon their statements by varying their versions, their evidence

become unreliable. P.W.4 Kacharu has not stated anything about

the fact that deceased Jyoti disclosed to them that accused Santosh

assaulted her by knife by calling why she was not marrying with him.

However, P.W.1 Laxman has deposed about the same. P.W.5

Sulochana Barde, who was also a member of searching team,

deposed that when they went beyond railway track, Jyoti was found

lying there and blood was on her person. She has further deposed

that they lifted her and took her in one rickshaw to GHATI hospital,

Aurangabad. She was admitted in the hospital and after examination,

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doctor declared her dead. As per the prosecution story, P.W.1

Laxman was accompanied by P.W. 4 Kacharu, P.W. 5 Sulochana,

P.W. 6 Subhash and the police persons. P.W. 5 Sulochana had not

stated anything about oral dying declaration made by deceased Jyoti

in her presence. Neither P.W. 5 Sulochana was declared hostile by

the prosecution nor subjected to cross examination. P.W.6 Subhash

Wahul has deposed that deceased Jyoti was lying in a ditch and he

picked up Jyoti. He further deposed that at that time, Jyoti told them

that Santya assaulted her by means of knife. At that time, he asked

Jyoti, who is Santya? She told them that Santya means Santosh

Wagh. P.W.6 Subhash further deposed that, except that Jyoti did not

tell anything to him. The prosecution has not examined any police

man, who would be rather independent person to depose about oral

dying declaration of Jyoti in his presence. P.W.1 Laxman and P.W. 4

Kacharu are close relatives of deceased Jyoti. It thus appears that

the prosecution witnesses 1, 4, 5 and 6 have improved upon their

statements by varying their versions. They have deposed about

altogether different oral dying declaration of deceased Jyoti. Their

evidence therefore, does not inspire any confidence.

10. The second important question in this appeal is whether the

prosecution could prove that the appellant inflicted two stab wounds

on himself. In other words, whether the injuries found on the person

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of the appellant-accused were self inflicted. These injuries were

described by P.W.10 who stated that the injuries were deep enough

and intestine was protruding from them. The medical papers also

indicate that the appellant/accused was treated in the hospital.

Surgery took place and after few days, he was discharged. P.W.10

clearly mentioned that he did not mention in his injury certificate that

the injuries could be self inflicted. In his cross examination also, he

admitted that normally self inflicted injuries would be superficial. On

the other hand, he admitted that the injuries found on the person of

the appellant-accused were grievous in nature. The injuries found on

the person of the appellant were not at one place but they were

found at two different places on the abdomen. We have therefore,

serious doubt as to whether such injuries were possible by self

infliction. The nature of the injuries caused to the appellant, if are not

self inflicted, then the appellant succeeds in convincing the Court at

least on probability that he too was the victim of the assault, as third

person assaulted on both, him and Jyoti. This theory gains further

credibility because the prosecution witness unequivocally stated that

when they found appellant-accused sitting in the chowk in injured

condition, he was telling everyone that Jyoti would be found beyond

railway line and he was telling them that they should go and save

her. Unfortunately, the prosecution witness did not ask the details to

the appellant/accused while he was in injured condition as to what

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had happened and how he sustained the injuries. No one came

forward to state that the appellant/accused disclosed to him or them

that injuries he suffered were self inflicted. There is nothing on record

to indicate as to whether the prosecution witnesses, after hearing

from the appellant that Jyoti should be saved, really took him

seriously. Had they learnt from him about the spot where Jyoti would

be found, they could have rushed to the spot earlier. It seems no

one asked the appellant-accused as to what caused the injuries to

him and what had happened to Jyoti and as to why he was

requesting them to save Jyoti.

11. We are therefore, inclined to give benefit of doubt to the

appellant. As said above, the injuries sustained by him probably

were not caused by self infliction and that the prosecution witness

Nos.1, 4 and 6 could not have heard Jyoti's oral dying declaration.

The appeal therefore, succeeds. Hence, we proceed to pass the

following order:-

ORDER

I. Criminal appeal No. 147 of 2013 is hereby allowed. The

judgment and order dated 28.02.2013, passed by the

learned Additional Sessions Judge-4, Aurangabad, in

Sessions Case No.170 of 2010 is quashed and set aside.

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II. The appellant Santosh s/o Kailash Wagh is acquitted of

the offence punishable under Section 302 of I.P.C. The

appellant Santosh s/o Kailash Wagh be released

forthwith if not required in any other case. Fine amount,

if paid, be refunded to him.

            ( V. K. JADHAV, J.)                          ( A. V. NIRGUDE, J. )

     rlj/