Gautam Laxman Wankhede vs State Of Maharashtra Thr. P.S. ...
2016 Latest Caselaw 6467 Bom

    J-Cri.Appeal-49-06                                                                           1/12


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                           
                             NAGPUR BENCH, NAGPUR.




                                                                   
                              CRIMINAL APPEAL NO.49 OF 2006


    Gautam Laxman Wankhede
    aged 21 years, 




                                                                  
    R/o Lawana, Tq. Mehkar, 
    Dist. Buldana.                                                    ... Appellant

    -vs- 




                                                    
    State of Maharashtra,              
    Through P.S. Janefal 
    Dist. Buldana.                                                    ... Respondent
                                      
    Shri N. A. Badar, Advocate for appellant. 
    Shri J. Y. Ghurde, Additional Public Prosecutor for respondent/State. 
              


    CORAM  : B.P.DHARMADHIKARI &
           



             A.S.CHANDURKAR, JJ. 

DATE ON WHICH SUBMISSIONS WERE HEARD : OCTOBER 27, 2016. DATE ON WHICH JUDGMENT IS PRONOUNCED : NOVEMBER 16, 2016.

Oral Judgment : (Per A. S. Chandurkar, J.)

By this appeal filed under Section 374(2) of the Criminal

Procedure Code, 1973, the appellant takes exception to his conviction in

Sessions Case No.27/2000 vide judgment dated 29/10/2005. By said

judgment, the appellant has been convicted for the offence punishable under

Section 302 of the Indian Penal Code and has been sentenced to suffer

imprisonment for life. He has also been directed to pay fine of Rs.500/-.

J-Cri.Appeal-49-06 2/12

2. It is the case of prosecution that the appellant is a cousin brother

of one Samadhan Wankhede and he resides adjacent to his house. There

was a history of disputes between the complainant Samadhan and Kundlik

on one side and the family of the appellant on the other side. The appellant

had earlier broken an earthen pot belonging to the complainant and a report

in that regard had been lodged by the complainant. On 10/12/1999 both

the parties had gone to Mehkar for attending said proceedings. On

12/12/1999 the complainant was informed by Nanda Jadhav and Vishnu

Ambhore that somebody has assaulted his son Kundlik and that he was lying

in an injured condition. The complainant along with his wife and brother

went to the site and carried Kundlik in a bullock-cart towards the village.

Kundlik informed the complainant that the appellant and his sister had

assaulted him with an axe. After said assault when Kundlik had shouted he

was rescued by three other persons. Kundlik was thereafter taken to the

Government Hospital, Mehkar and thereafter was shifted to the General

Hospital, Buldhana. His statement was recorded by the Executive

Magistrate in which Kundlik named the appellant as having assaulted him.

On the next day, the complainant lodged report. Initially offence punishable

under Sections 307, 506 read with Section 34 of the Penal Code was

registered. During the course of treatment Kundlik expired on 24/12/1999.

After due investigation of the crime, a charge-sheet was presented against the

appellant and his sister. Both of them did not plead guilty. After the case

J-Cri.Appeal-49-06 3/12

was committed to the Sessions Court, the accused were tried and at the

conclusion of the trial, the appellant alone was convicted for the offence

punishable under Section 302 of the Penal Code. Accused No.2 his sister

was acquitted. Being aggrieved, the aforesaid conviction has been

challenged in this appeal.

3. Shri N. A. Badar, the learned counsel for the appellant submitted

that the prosecution had failed to prove its case beyond reasonable doubt.

The dying declaration at Exhibit-42 did not mention the time when its

recording commenced and had come to an end. The scoring made in the

dying declaration as regards the state of health of Kundlik was not explained.

He submitted that there was considerable delay in recording the First

Information Report by the complainant. Though according to prosecution

oral dying declarations were made by Kundlik and narrated to PW-2 Nanda

Jadhav as well as PW-3 Samadhan, the statements made therein were not

corroborated. PW-2 Nanda Jadhav had previous enmity with the appellant.

The statement of PW-7 Pravin who was stated to be an eye witness was

recorded after twenty three days of the incident which rendered the same

doubtful. As regards seizure of the incriminating weapon, it was submitted

that though the Investigating Officer had been visiting the house of the

appellant from the date of incident, the seizure was effected belatedly.

There was a doubt with regard to presence of blood stains on the axe. In

J-Cri.Appeal-49-06 4/12

support of his submissions, the learned counsel placed reliance upon the

judgments of Division Bench in 2012 Cri.L.J. 3277 Abdul Riyaz Abdul

Bashir vs. State of Maharashtra, 2012 All MR (Cri) 2754 Tukaram

Dashrath Padhen and ors. vs. State of Maharashtra and 2015 ALL MR

(Cri) 2377 Milind Ramchandra Gharat vs. The State of Maharashtra and

anr. It was thus submitted that the appellant was entitled for acquittal.

4.

Shri J. Y. Ghurde, the learned Additional Public Prosecutor for the

State supported the conviction of the appellant. He submitted that in the

dying declaration at Exhibit-42 the appellant had been named and this fact

was corroborated by the deposition of PW-2 Nanda Jadhav and PW-3

Samadhan. He submitted that the Medical Officer who had examined

Kundlik with regard to his state of health while recording the dying

declaration had put the time as 3 pm on 12/12/1999 while first examining

him and had thereafter put the time as 3.15 pm while completing the dying

declaration. It was submitted that the discrepancies if any in the deposition

were of a minor nature and considering the fact that the witnesses were

rustic, same would not be fatal to the case of the prosecution. It was urged

that the weapon used in the incident had been seized at the instance of the

appellant and hence his conviction by the trial Court was fully justified. It

was also urged that merely because there was some previous enmity between

the parties, same by itself would not render the case of the prosecution

J-Cri.Appeal-49-06 5/12

doubtful. It was therefore submitted that there was no merit in the appeal

and the same was liable to be dismissed.

5. We have heard respective counsel for the parties at length and

with their assistance we have also gone through the records of the case.

According to the prosecution Kundlik was assaulted by the appellant on

12/12/1999 between 9 am and 10 am. PW-2 Nanda Jadhav had informed

PW-3 Samadhan Wankhede, the father of Kundlik that while going to the

field of her maternal uncle she saw Kundlik lying besides a bridge in an

injured condition. PW-3 Samadhan thereafter took him to the Rural Hospital

after which he was shifted to the General Hospital, Buldhana. A requisition

at Exhibit-62 for recording the dying declaration was issued to the Police

Station Officer, Mehkar at 12.15 pm on the same day. PW-1 Arvind Gavai

(Exhibit-41) who was working as Naib Tahsildar recorded the dying

declaration. According to this witness the doctor on duty certified that

Kundlik was fit for giving his statement. After recording his statement, his

medical condition was again verified by the Medical Officer.

6. The dying declaration at Exhibit-42, 73 and 74 indicate that the

Medical Officer PW-10 Dr Surekha Chincholikar examined Kundlik at 3 pm

before recording the dying declaration. At the end of the dying declaration it

is again endorsed and signed by her at 3.15 pm. Before commencing

J-Cri.Appeal-49-06 6/12

recording of the dying declaration, the statement written is " Pt was fit for

giving DD". The word 'was' is scored off and is replaced by the word 'is'.

According to PW-1 Naib Tahsildar, he had not made the scoring in that

regard and also that the same had not been made in his presence. He stated

that there were no initials regarding said scoring. However, PW-10 Dr

Surekha Chincholikar in her cross-examination specifically stated that said

scoring was made in the presence of the Naib Tahasildar PW-1. She

however admitted that there were no initials below the said scoring. PW-9

the Investigating Officer in his cross-examination admitted that he had not

attempted to seek any explanation as to when such scoring was made or as to

the person who had made the same. Thus, there is no evidence on record to

indicate as to who had scored off the word 'was' and had replaced the same

by the word 'is'.

7. Similarly, the time when the recording of the dying declaration

had commenced and the time when such recording was completed has not

been mentioned in the dying declaration. In this regard PW-1 Naib

Tahasildar admitted that though it was necessary on the part of the officer

recording the dying declaration to mention the time when the recording of

the dying declaration was started and when it was completed, he had not

mentioned the same though there was a column in that regard in the dying

declaration. PW-9 the Investigating Officer has admitted this fact and has

J-Cri.Appeal-49-06 7/12

further stated that he had not asked for any explanation from the concerned

officer who had recorded the dying declaration as regards non-mention of its

time. This is another infirmity in the said dying declaration.

Another aspect that requires mention is that PW-3 Samadhan, the

father of Kundlik admitted in his cross-examination that when the statement

of Kundlik was being recorded in the hospital, he along with his relatives

were present there.

8. In Tukaram Dashrath Padhen (supra) it had been held that

while appreciating evidence with regard to a written dying declaration, the

Court has to be extremely cautious and should examine the evidence in that

regard with meticulous care. If suspicious circumstances are found in the

evidence, the Court should be extremely slow in placing implicit reliance on

such dying declaration. Similarly, in Abdul Riyaz Abdul Bashir (supra)

absence of an endorsement that the declaration was read over to the

deponent and admitted to be correct was absent. On that basis, the Court

refused to rely upon said dying declaration.

In the present case, it has been found that the scoring on the

dying declaration has not been properly explained. The word "was" has been

replaced by the word "is" and the same makes considerable difference. The

time when the recording of the dying declaration started and the same was

completed has also not been mentioned coupled with the fact that the father

J-Cri.Appeal-49-06 8/12

of the deponent admitted that he and his relatives were present when the

statement was recorded. These factors give rise to a doubt with regard to its

authenticity. It would therefore not be safe to rely upon the same.

9. The prosecution has also sought to bring on record oral dying

declaration alleged to have been made by Kundlik while narrating the

incident to PW-2 Nanda Jadhav. According to this witness, she was told by

Kundlik that the appellant had assaulted him by an axe and she should go

and inform his parents. However, in the report at Exhibit-45 lodged by PW-3

Samadhan, it has been stated that Nanda Jadhav and Vishnu Ambhore had

come to his place and had told him that Kundlik had been assaulted by

somebody. The report at Exhibit-45 does not disclose name of the appellant.

Moreover, PW-2 Nanda Jadhav in her cross-examination admitted that

Vishnu was her maternal uncle and at the time of incident he was not at

home. He had gone out of station and had returned back on the next day.

PW-9 the Investigating Officer admitted that the statement of Vishnu whose

name was mentioned in the report at Exhibit-45 was not questioned.

Further PW-3 Samadhan has stated that initially PW-2 Nanda Jadhav had

informed him about the incident and half an hour thereafter Vishnu had also

informed him about the incident. Only thereafter Samadhan had gone to

look for his son.

While Nanda does not refer to the presence of Vishnu in her

J-Cri.Appeal-49-06 9/12

examination-in-chief, Samadhan specifically states that Vishnu had also

informed him about the incident half an hour after he got such information

from Nanda. It is beyond comprehension that a father who is informed

about assault of his son has chosen to wait for half an hour despite getting

such information and only thereafter on being informed again that he had

been to the site. Moreover, the incident is dated 12/12/1999 while the

report has been lodged by Samadhan on 13/12/1999. This renders the

version of Nanda of having been narrated the oral dying declaration

doubtful. As held by the Division Bench in Milind Ramchandra Gharat

(supra), an oral dying declaration is primarily a weak piece of evidence and

unless such evidence is of an impeccable nature, no conviction can be based

on the same.

10. PW-7 Pravin is stated to be another eye-witness. He was

examined below Exhibit-57. It is to be noted that in the dying declaration

Kundlik had mentioned his name along with one Kailash Wankhede who

were present when he was assaulted. Despite that, his statement came to

be recorded on 04/01/2000 which is about 23 days after the incident. This

witness admitted in his cross-examination that from the date of occurrence

of the incident till 04/01/2000 he had not informed anybody about the

incident. This aspect therefore renders his version doubtful.

J-Cri.Appeal-49-06 10/12

11. As regards the seizure of the weapon that was used in the offence,

the same was seized on memorandum under Section 27 of the Indian

Evidence Act. In this regard it is to be noted that the Investigating Officer

after getting a copy of dying declaration arrested the appellant on

15/12/1999. He further stated that from 12/12/1999 till recording the

memorandum statement on 19/12/1999 he had visited the house of the

appellant but he did not make any attempt to collect any evidence in that

regard. He further admitted that when he visited the house of the appellant

before recording the memorandum statement he had not noticed the axe.

The panchanama at Exhibit-54 indicates that on 19/12/1999, the appellant

had led the Investigating Officer to his house. The door of his house was

open and on entering the same in a corner thereof the axe was seen. When

the axe was seized it had blood stains. In this regard PW-6 Suresh Pawar

was examined as panch witness. He deposed that there were blood stains

on the axe when it was seized. The Investigating Officer in his cross-

examination however admitted that the seized axe was not sent to the

Chemical Analyser and that he could not tell whether the blood which was

found on the said axe was human blood. Thus the seizure of the axe also

does not support the case of the prosecution.

Moreover, a blood stained wooden ubharni was also seized below

Exhibit-51 but the same was also not sent to the Chemical Analyser.

J-Cri.Appeal-49-06 11/12

Further, the Investigating Officer PW-9 admitted that the spot panchanama

was prepared in anticipation that Samadhan would be the complainant in the

offence.

12. Thus, considering the the overall evidence on record, it cannot be

said that the prosecution has proved the guilt of the appellant beyond

reasonable doubt. The dying declaration at Exhibit-42 contains unexplained

scoring and absence of the time when it was recorded. The conduct of PW-

3 Samadhan of lodging a report one day after the incident and also not

immediately proceeding towards the site of the incident after getting

information casts further doubt on the case of the prosecution. The sister of

the appellant who was also arrayed as an accused in the crime stands

acquitted by the Sessions Court for want of any evidence against her. The

Investigating Officer has also failed to record statements of material

witnesses while the statement of PW-7 who was stated to be an eye-witness

was recorded after twenty three days. In that view of the matter, the

conviction of the appellant cannot be sustained. The appellant would

therefore be entitled for acquittal. In view of aforesaid discussion, the

following order is passed :

(i ) The appeal is allowed. The conviction of the appellant Gautam

Laxman Wankhede in Sessions Case No.27/2000 dated

29/10/2005 is quashed and set aside. The appellant is acquitted

J-Cri.Appeal-49-06 12/12

of the offence punishable under Section 302 of the Penal Code.

(ii) The appellant be set at liberty if his custody is not required in any

other case.

(iii) The seized articles to dealt with in the manner as stated in the

judgment of the trial Court after expiry of the period of appeal.

                                               JUDGE                     JUDGE
                                      
               
            





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