Bombay High Court
Dnyandev Gopinath Pawar ... vs The State Of Maharashtra on 27 October, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 192 OF 2013
Dnyandeo s/o Gopinath Pawar,
Age : 65 years, Occu. Labour
and Agriculture,
R/o Nandurga Tanda, Tq. Ausa, APPELLANT
District Latur (Accused No.2)
VERSUS
The State of Maharashtra,
Police Station, Killari, RESPONDENT
Tq. Ausa, District Latur (Prosecution)
----
Mr. N.R. Shaikh, Advocate (appointed) for the Appellant
Mr. S.W. Munde, A.P.P. for the respondent/State
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 26th AUGUST, 2016
JUDGMENT PRONOUNCED ON : 27th OCTOBER, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
By this appeal, the original accused No. 2 in
Sessions Case No. 95 of 2008 has challenged his
conviction and sentence for the offence punishable under
section 302 of the Indian Penal Code ("the I.P.C.", for
short), recorded by the Adhoc Additional Sessions Judge-
2, Latur on 17th April, 2010.
2 criapl192-2013
2. Briefly stated, the case of the respondent
(hereinafter referred to as "the prosecution") is that
the deceased Bhaskar Dhansing Pawar was residing at
Nandurga Tanda, Taluka Ausa, District Latur. On 2nd
June, 2008, there had been quarrel between one Raju Ganu
Pawar, who was the nephew of the deceased Bhaskar, on
one hand and the appellant and one Manoj Budha Chavan
(hereinafter referred to as "accused No. 1") on the
other. The deceased Bhaskar intervened and questioned
the appellant and accused No. 2 as to why they were
quarrelling on account of a trifle ground. Therefore,
both of them had got annoyed. It is further the case of
the prosecution that on 3rd June, 2008 at about6.30 p.m.,
the deceased Bhaskar came back to his house from his
field. At that time, accused No. 1 went to the house of
the deceased Bhaskar and asked to accompany him to go to
the house of the appellant on the say that he had some
work with the deceased Bhaskar. Accordingly, the
deceased Bhaskar went to the house of the appellant with
accused No. 1. The appellant was present there. After
reaching the open space in front of the house of the
appellant, accused No. 1 questioned the deceased Bhaskar
as to why he had intervened in the quarrel that had
3 criapl192-2013
taken place on 2nd June, 2008 with Raju Pawar and further
caught hold of the deceased Bhaskar. At that time, the
appellant took out a dagger (i.e. Sura) and pierced it
in the abdomen of the deceased Bhaskar. The deceased
Bhaskar tried to resist the appellant and in that
attempt, he sustained injuries to his left middle finger
and wrist due to the dagger. The intestine of the
deceased Bhaskar protruded from his abdomen. He placed
his hand on his abdomen and tried to run away. At that
time, the appellant gave one more blow of dagger on the
left knee of the deceased Bhaskar and caused him a
bleeding injury. The deceased Bhaskar fell down and
become unconscious. He was initially taken to the Rural
Hospital at Khillari from where he was referred to the
Civil Hospital at Latur. He was operated there.
However, ultimately, he succumbed to the abdominal
injury during the treatment in the hospital on 8th July,
2008 at 4:40 a.m.
3. The statement of the deceased Bhaskar was
recorded by A.S.I. Bansode (PW13) (Exh-71) on 4 th April,
2008, wherein he stated the above-referred incident
implicating the appellant and accused No. 1. The said
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statement was treated as the First Information Report
(for short, "the FIR"). On the basis of that FIR, Crime
No. 77 of 2008 came to be registered in Police Station,
Killari, for the offence punishable under section 307
read with section 34 of the I.P.C.
4. The investigation followed. The appellant and
accused No. 1 came to be arrested on 4th June, 2008.
Their clothes came to be seized. The blood stained
clothes of the deceased Bhaskar also came to be seized.
The statements of the witnesses were recorded. One more
statement of the deceased Bhaskar came to be recorded by
the Special Executive Officer namely Vikrant Gaikwad on
6th June, 2008. The deceased Bhaskar is stated to have
disclosed the cause of injuries sustained by him on the
day of the incident to some of the witnesses as well.
Their statements also came to be recorded. The blood
stained dagger came to be seized at the instance of the
appellant on 4th June, 2008. The blood samples of the
deceased Bhaskar as well as that of the appellant and
accused No. 1 came to be collected. The seized articles
and blood samples were sent to the Chemical Analyst for
analysis and report. After the demise of Bhaskar on 8 th
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July, 2008, inquest panchanama of his dead-body was
prepared. The dead-body was referred to the Civil
Hospital, Latur for postmortem. The Autopsy Surgeon
found external as well as the internal injuries on and
inside the body of the deceased Bhaskar. They opined
that the clinical and postmortem findings are
consistent with the death due to stab injuries.
5. After the demise of Bhaskar, the offence
punishable under section 307 of the I.P.C. came to be
converted under section 302 of the I.P.C. After
completion of the investigation the appellant and
accused No. 1 came to be prosecuted for the offence
punishable under section 302 of the I.P.C. read with
section 34 of the I.P.C.
6. The prosecution examined sixteen witnesses in
support of its case. Accused No. 1 and the appellant
examined Dr. Rajni Halgarkar in their defence. After
evaluation of the evidence produced on record, the
learned trial Judge found accused No. 1 and the
appellant guilty of the offence punishable under section
302 read with section 34 of the I.P.C. and sentenced
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each of them to suffer imprisonment for life and to pay
a fine of Rs. 1000/-, in default to suffer rigorous
imprisonment for two months.
7. Accused No. 1 filed Criminal Appeal No. 252 of
2010, challenging his conviction and sentence for the
offence punishable under section 302 read with section
34 of the I.P.C. before this Court. The said appeal came
to be decided on merits on 10th January, 2012 and he came
to be acquitted. It was specifically observed in
paragraph No. 34 of the judgment dated 10 th January, 2012
that there are no factors which would indicate, by the
requisite standard and beyond reasonable doubt, that the
appellant had shared any common intention with the said
Dnyandeo (the present appellant) to kill Bhaskar. In
paragraph No. 37 of the said judgment, it is mentioned
as under :-
"We may only say that we have not expressed any
opinion with respect to the merits of the case
in respect of the case of the co-accused
Dnyandeo (the present appellant), though some
discussion regarding reliability of the dying
declarations became inevitable from the point
7 criapl192-2013
of view of the involvement of the appellant in
the alleged offence. We have also not
considered whether the conviction of the co-
accused Dnyandeo is proper and legal. We have
proceeded on the basis that `even assuming
Dnyandeo had indeed assaulted Bhaskar, whether
the appellant could be said to have shared the
common intention with him on the basis of the
evidence adduced before the trial court'. We
have examined the dying declarations only in
the limited context of judging the role
attributed to the appellant and from the point
of view as to whether the role which may be
safely attributed to him on the basis of the
evidence, was sufficient for recording the
finding that he shared the common intention
with the co-accused."
8. The appellant preferred the above numbered
appeal against his conviction and sentence on 10th April,
2013 i.e. after about one year and three months of the
disposal of Criminal Appeal No. 252 of 2010, filed by
accused No. 1. We are considering the merits of the
impugned judgment and order passed by the learned trial
Judge to the extent of the role attributed to the
present appellant alone.
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9. The case of the prosecution is depending on the
following evidence:-
(i) The first dying declaration (Exh-73) of the
deceased Bhaskar, recorded on 4th April, 2008 by
API Bansode (PW13).
(ii) The second dying declaration (Exh-57) of the
deceased Bhaskar, recorded by the Special
Executive Officer Gaikwad (PW11) on 6th June,
2008.
(iii) The oral dying declarations of the deceased
Bhaskar made before Ganpati (PW1) (Exh-22),
Rajendra (PW5) (Exh-36), Ushabai (PW6) (Exh-
37) and Shalubai (PW8) (Exh-44).
(iv) The evidence of Ganpati (PW1) and Madhukar
(PW4) (Exh-35), who claim themselves to be the
eye witnesses to the part of the incident.
(v) The discovery of a blood stained dagger at the
instance of the appellant.
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(vi) The seizure of the blood stained clothes of the
appellant.
10. It has come in the evidence of Ganpati (PW1)
(the brother of the deceased Bhaskar), Madhukar (PW4),
Ushabai (PW6) (the widow of the deceased Bhaskar) and
Shalubai (PW8) (the sister of the deceased Bhaskar) that
due to protruding of intestine from the abdomen of the
deceased Bhaskar, he became unconscious on the spot
itself and in that condition, he was taken initially to
the Rural Hospital at Killari and then to the Civil
Hospital at Latur, for treatment. Ushabai (PW6) and
Shalubai (PW8), who were with the deceased Bhaskar in
the Civil Hospital at Latur, state that the deceased
Bhaskar regained consciousness on the next day morning
of the incident i.e. on4th April, 2008. This evidence
has not been challenged in the cross-examination of
these witnesses. It is, thus, clear that the deceased
Bhaskar was not in a position to talk till the morning
of 4th April, 2008.
11. Ushabai (PW6) deposes that after regaining
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consciousness, the deceased Bhaskar started speaking.
She enquired with him about the incident, whereon he
stated that accused No. 1 came to his house and on his
call, he went with accused No. 1 to the house of the
appellant. Accused No. 1 caught hold of him while
Dnyanoba (present appellant) thrusted a dagger (suri).
Due to that, there bad been injuries to the left middle
finger, left knee joint and abdomen of the deceased
Bhaskar.
12. Shalubai (PW8) states that after the deceased
Bhaskar regained consciousness on the next day morning
of the incident, she enquired with him, whereon he told
that he went with accused No. 1 to the house of the
appellant, where accused No. 1 caught hold of him and
the appellant gave the blows of dagger (suri) in his
abdomen. He further told that he was trying to rescue
himself from the clutches of accused No. 1, when the
appellant gave a blow of dagger on his left knee joint.
She states that the deceased Bhaskar was conscious and
was speaking correctly when the said statement was given
by him.
11 criapl192-2013
13. The presence of Ushabai (PW6) and Shalubai
(PW8) in the Civil Hospital at Latur for taking care of
the deceased Bhaskar was quite natural. It has come in
the cross-examination of Ushabai (PW6) that the deceased
Bhaskar regained consciousness on the next day of the
incident at about 6:00 a.m. to 7:00 a.m. As seen from
the evidence of Dr. Rathod (PW16) (Exh-100), the
deceased Bhaskar was operated by him on 3rd June, 2008.
It has come in the evidence of Dr. B.G. Patil (PW14)
(Exh-97) and Dr. Rathod (PW16) that the deceased Bhaskar
was admitted in the Civil Hospital at Latur on 3 rd June,
2008 at about 8:45 p.m. There was stab injury to his
left lower abdomen and the intestine had protruded out
of the abdomen. Immediately after his admission, he was
shifted for operation and accordingly operated at 9:15
p.m. Dr. Patil (PW14) states that the general condition
of the deceased Bhaskar, as seen from the case papers,
was poor upto 6th June, 2008. However, he specifically
states that on 4th June, 2008, at 9:00 a.m. the deceased
Bhaskar responded to verbal commands. Dr. Rathod (PW16)
states that on 4th June, 2008, the deceased Bhaskar was
irritable with abnormal talks. The physician's reference
was taken and the deceased was stabilised. From the
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evidence of these medical witnesses, it is clear that on
4th June, 2008, the condition of the deceased Bhaskar was
stabilised and he was responding to verbal commands. In
the circumstances, the evidence of Ushabai (PW6) and
Shalubai (PW8) that on being asked by them, the deceased
informed them about the circumstances under which he
sustained injuries, as referred above, cannot be
doubted.
14.
Ganpati (PW1) states that he met the deceased
Bhaskar in the Civil Hospital at Latur. The deceased
Bhaskar was in a fit mental condition to speak. When he
enquired with the deceased Bhaskar as to how the
incident took place, the deceased Bhaskar disclosed that
accused no.1 Manoj caught hold of him and the appellant
gave blows. The facts that this witness met the deceased
Bhaskar in the Civil Hospital at Latur and at that time,
the deceased Bhaskar informed him about the cause of his
injuries to this witness, have not been challenged in
his cross-examination. We do not find any reason to
disbelieve the version of this witness on the point of
oral dying declaration given by the deceased Bhaskar.
13 criapl192-2013
15. Rajendra (PW5) (Exh-36) is the nephew of the
deceased Bhaskar. He states that prior to the day of the
incident, there had been a quarrel between accused no.1
Manoj and the appellant on one hand and himself on the
other at about 7:00 p.m. The deceased Bhaskar pacified
that quarrel and on the next day, he came to know about
stabbing of the deceased Bhaskar by accused no.1 and the
appellant. He met the deceased Bhaskar on the next day
of the incident in Civil Hospital at Latur. He found the
deceased Bhaskar as conscious. On being enquired by him,
the deceased Bhaskar told him that accused no.1 Manoj
had caught hold of him and the appellant stabbed him by
means of a dagger (Sura). He further states that the
deceased Bhaskar informed him that the incident of
stabbing was the outcome of his intervention in the
quarrel that had taken place on the previous day. This
witness being the nephew of the deceased Bhaskar, it was
quite natural for him to go to the Civil Hospital at
Latur to see the deceased Bhaskar. After seeing Rajendra
(PW5), it was further quite natural for the deceased
Bhaskar to tell Rajendra (PW5) about the cause of the
injuries sustained by him. The version of this witness
about the oral dying declaration given by the deceased
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Bhaskar, thus, cannot be doubted.
16. From the evidence of Ganpati (PW1), Rajendra
(PW5), Ushabai (PW6) and Shalubai (PW8), it is clear
that the deceased Bhaskar had regained consciousness on
the next day of the incident. From the evidence of Dr.
Patil (PW14), it is clear that the deceased Bhaskar was
responding to the verbal commands. It was quite natural
on the part of the deceased Bhaskar to disclose the
cause of injuries sustained by him when the above
witnesses met him in the hospital. The role attributed
by the deceased Bhaskar against the appellant in his
oral dying declaration is quite consistent.
17. Ganpati (PW1) deposes that at the time of the
incident, at about 6.40 p.m., he was inside his house.
After hearing the commotion from the backside of his
house (where there was the house of the appellant), he
rushed to the house of the appellant. He saw the
deceased Bhaskar running with his hands covering his
abdomen. Thereafter, the deceased Bhaskar fell down on
the ground. He saw the appellant holding a knife. The
blood was sprinkled on the clothes of the appellant.
15 criapl192-2013
18. Madhukar (PW4) deposes that on the day of
incident, at about 6.40 p.m., he was standing in front
of his house. He heard commotion from the side of the
house of the appellant. He rushed towards that side and
reached near the house of the appellant. He saw the
deceased Bhaskar running by holding both of his hands on
his abdomen and then falling down on the ground. He
states that the appellant was following the deceased
Bhaskar. He further states that the appellant gave a
blow of dagger (Suri) on the knee joint of the deceased
Bhaskar. He then went to the house of the deceased
Bhaskar and informed his wife and sister about the
injuries sustained by the deceased Bhaskar. He
immediately went back to the house of the appellant.
19. It has come in the cross-examination of
Madhukar (PW4) that the distance between his house and
that of the appellant is 150 feet. Likewise, in the
cross-examination of Ganpati (PW1), it has come that
there is hardly any distance between his house and that
of the appellant. They are just behind each other.
Considering the nearness between the houses of Ganpati
16 criapl192-2013
(PW1) and Madhukar (PW4) on one hand and that of the
appellant on the other, it was quite natural and
probable on their part to hear the commotion from the
side of the house of the appellant and to go to the spot
of the incident immediately. Thus, their presence near
or at the spot of the incident, as claimed by them,
cannot be doubted.
20. An attempt has been made to suggest that the
appellant sold out his land to a third person which
Madhukar (PW4) wanted to purchase and therefore,
Madhukar (PW4) had grudge against the appellant. This
fact has been denied by Madhukar (PW4). We do not find
any substance in this contention raised on behalf of the
appellant. Madhukar (PW4) is not the only witness to
state about the incident. There is other evidence which
supports the evidence of Madhukar (PW4).
21. Considering the evidence of Ganpati (PW1) and
Madhukar (PW4), it would be clear that they have stated
before the Court in respect of the incident to the
extent that they had witnessed it. Had they been of the
tendency to state false, they could have stated the
17 criapl192-2013
incident right from the beginning. Their versions that
they saw the deceased Bhaskar running with holding his
hands over his abdomen and running of the appellant
behind the deceased Bhaskar armed with a dagger, shows
that they did not add anything at their own with a view
to falsely implicate the appellant. We do not find any
reason to disbelieve the evidence of these witnesses on
this point. Thus, from their evidence, it will be clear
that the appellant was running behind the deceased
Bhaskar armed with a dagger (Sura) at the time of the
incident.
22. Madhukar (PW4) specifically states that the
appellant gave a blow of dagger on the knee joint of the
deceased Bhaskar. Dr. Bargale (PW7) (Exh-40), who
conducted postmortem of the bodyof the deceased Bhaskar,
states that he noticed one healed contused abrasion
below popliteal fossa of left leg of the deceased
Bhaskar. There is nothing in the cross-examination of
Madhukar (PW4) to show that he deposed before the Court
about causing of injury by the appellant over the knee
joint of the deceased Bhaskar by means of a dagger, as
an improvement, addition or exaggeration. His statement
18 criapl192-2013
has been supported by the medical evidence.
23. The evidence of Ganpati(PW1) and Madhukar (PW4)
sufficiently proves presence of the appellant at the
spot of the incident running with a dagger behind the
deceased Bhaskar. The evidence of Madhukar (PW4) further
sufficiently shows that the appellant gave a blow of
dagger on the left knee joint of the deceased Bhaskar.
24.
API Bansode (PW13) states that on receiving the
letter (Exh-72), on 4th June, 2008 from the Medical
Officer from Rural Hospital, Killari, informing that the
deceased Bhaskar resident of Nandurga Tanda had been
referred to the Civil Hospital at Latur, he went there
to record the statement of the deceased Bhaskar. The
letter (Exh-72) contains that the deceased Bhaskar, who
had sustained serious injury on his abdomen that was
caused by means of a knife, had been referred to the
Civil Hospital at Latur for treatment. API Bansode
(PW13) states that he approached the Medical Officer in
the Civil Hospital at Latur and after getting an
opinion from the said Medical Officer that the deceased
Bhaskar was in a condition to give statement, recorded
19 criapl192-2013
the statement (Exh-73) of the deceased Bhaskar as per
his say. He further states that he read over the
contents thereof to the deceased Bhaskar whereon the
deceased Bhaskar admitted that they were as per his say.
Then he obtained the thumb impression of the deceased
Bhaskar on the statement (Exh-73).
25. Dr. Jaishri (PW10) (Exh-53), who was attached
as a Medical Officer to the Civil Hospital at Latur,
states that a Police Inspector from Police Station,
Killari, called her to state whether the deceased
Bhaskar, who was admitted in that hospital, was
conscious and oriented to give a statement. She went to
the ward where deceased Bhaskar was admitted. She
enquired about the name and address of the deceased
Bhaskar, which he disclosed correctly. Then she informed
the Police Inspector that the deceased Bhaskar was
conscious and oriented to give statement. Accordingly,
she made an endorsement (Exh-54) that after examining
the patient clinically he was found to be conscious and
in a condition to give a statement. She further states
that thereafter the Police Inspector started recording
the statement of the deceased Bhaskar in her presence
20 criapl192-2013
through a police constable. The Police Inspector was
enquiring with the patient and was dictating the version
of the patient to the police constable who was scribing
it. She states that the recording of the statement was
over in her presence. Thereafter, the thumb impression
of the patient was obtained in the presence of the
Police Inspector. She again examined the patient and
found him to be conscious. According to her, 45 minutes
were required to complete the recording of the statement
of the said patient i.e. the deceased Bhaskar. It has
come in her cross-examination that none of the relatives
of the deceased Bhaskar was present at the time of
recording of his statement. As such, the possibility of
tutoring of the deceased Bhaskar is ruled out. She
denies that the deceased Bhaskar was not in a condition
to give a statement and that she mechanically endorsed
that he was in a condition to give a statement. From the
evidence of Dr.Jaishri (PW10), it is clear that the
deceased Bhaskar was in a condition to give a statement
during the period the statement (Exh-73) came to be
recorded.
26. In the statement (Exh-73) of the deceased
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Bhaskar, which has been treated as the FIR, he narrated
that on 3rd June, 2008, at about 6:30 p.m., he brought
his bullocks at his home from his agricultural land.
When he was at his house, accused no.1 Manoj came there
and asked him to accompany him to go to the house of the
appellant. According, he went to the house of the
appellant. The appellant was present in the open space
in front of his house. Accused no.1 Manoj asked him as
to why he had intervened in the quarrel that had taken
place with Rajendra (PW5) on 2nd June, 2008 and caught
hold of him. At that time, the appellant pierced the
dagger in the abdomen of the deceased Bhaskar. When the
deceased Bhaskar tried to resist him, the dagger struck
to his left little finger due to which it got cut. He
sustained injury on his wrist also. As the intestine had
protruded from his abdomen, he started running by
holding one of his hand with his abdomen. At that time,
the appellant again gave a blow of dagger on his left
knee due to which he sustained injury. He stated that
the incident took place at about 6:45 p.m., in front of
the house of the appellant. He further stated that he
became unconscious and fell down. He then found himself
in the hospital when he regained consciousness and he
22 criapl192-2013
was informed that he was operated.
27. The learned counsel of the appellant submits
that from the evidence of Dr. Jaishri (PW10), who was
treating the deceased Bhaskar, it is clear that she had
advised tramadall injection and accordingly, it was
administered to the deceased Bhaskar at about 12:00 noon
on 4th June, 2008. Dr. Rajni (DW1) (Exh-93), who has
been examined by the appellant in his defence, states
that the injection Tramadol is sedative and causes
nausea, vomiting, dry mouth, ventilator depression,
hallucinations, dizziness, drowsiness, anxiety,
insomnia. She then states that the serious side effects
of Tramadol drug are break down of nerves system,
hallucinations which means false thinking of mind,
confusion in the mind, etc. However, she herself states
that the adverse effects of Tramadol depend on the
patient's sensitivity. She admits that the Medical
Officers certify whether a patient is conscious and
oriented to give a statement only after examination and
getting satisfied about his condition.
28. If the evidence of this witness Dr. Rajni (DW1)
23 criapl192-2013
is considered, it can be said that whatever the adverse
effects are attached to injection Tramadol, cannot ipso
facto be attributed the patient. Depending on the
sensitivity of the patient concerned, the said adverse
effects would exhibit their presence. Therefore,
ultimately, the side effects would differ from patient
to patient and it would be for the Medical Officer
concerned only, who actually examines the patient, to
depose about his mental condition and to certify whether
he is conscious, oriented and fit to give statement.
29. As stated above, Dr. Rathod (PW16) states that
on 4th June, 2008, the deceased Bhaskar was irritable
with abnormal talks, but was stabilised after
Physician's reference was taken. If this evidence is
considered, the evidence of Dr. Jaishri (PW10), who
actually examined the deceased Bhaskar and opined about
his fitness to give statement, cannot be doubted.
30. From the evidence of Dr. Jaishri (PW10), and
that of API Bansode (PW13), it is clear that the
deceased Bhaskar was in a fit state of mind to give
statement when the dying declaration / FIR (Exh-73) came
24 criapl192-2013
to be recorded. API Bansode (PW13) specifically states
that after recording the said statement, it was read
over to the deceased Bhaskar who had admitted that it
was recorded as per his say. There is specific mention
at the bottom of the said statement that it was read
over to the deceased Bhaskar and that he admitted it to
be true and correct. It is, thus, clear that the dying
declaration and FIR (Exh-73) was given by the deceased
Bhaskar voluntarily when he was in a fit condition to
give statement.
31. There is one more dying declaration of the
deceased Bhaskar recorded by Special Executive Officer
Gaikwad (PW11) (Exh-55) on 6th June, 2008, he states that
after receiving the letter (Exh-56) dated 5 th June, 2008
from Police Station, Gandhi Chowk, Latur, he visited the
Civil Hospital at Latur to record the statement of the
deceased Bhaskar. He contacted Dr. Manisha (PW9)
(Exh-50), Resident Doctor attached to that hospital and
requested her to opine whether the deceased Bhaskar was
in a fit condition to give statement. Dr. Manisha (PW9)
states that on the request of Gaikwad (PW11), she went
to the deceased Bhaskar where he was admitted and asked
25 criapl192-2013
him his full name, address and the time. From the
answers given by the deceased Bhaskar, she found him in
a condition to speak. Accordingly, she certified that
the the deceased Bhaskar was conscious and oriented, by
making an endorsement to that effect in writing under
her signature on the top of the form of the dying
declaration. Gaikwad (PW10) then states that he recorded
dying declaration (Exh-57) as per the say of the
deceased Bhaskar. Thereafter, he obtained thumb
impression of the deceased Bhaskar on that dying
declaration. He states that after recording the dying
declaration (Exh-57) he again requested Dr. Manisha
(PW9) to certify whether the deceased Bhaskar was in a
condition to give statement. Dr. Manisha (PW9) states
that the dying declaration (Exh-57) was recorded by
Gaikwad (10) in her presence and after it was recorded,
she again certified that the deceased Bhaskar was
conscious and oriented to give statement. Accordingly,
she endorsed in writing (Exh-52) at the bottom of the
dying declaration (Exh-57).
32. Nothing has been elicited in the cross-
examination of Dr. Manisha (PW9), so that her version
26 criapl192-2013
can be seen with suspicion. There is a specific
statement of the deceased Bhaskar that the contents of
the dying declaration (Exh-57) were read over to him and
they were true and correct as per his say. The evidence
of Gaikwad (PW11) about recording of dying declaration
(Exh-57) as per the version of deceased Bhaskar, also
has not been shattered in his cross-examination.
33. In the dying declaration (Exh-57), there is
variance on two counts i.e. the place from where the
deceased Bhaskar went with accused No. 1 Manoj to the
house of the appellant and the time of his coming from
his field. In the said dying declaration, it is
mentioned that on 3rd June, 2008 at about 5:00 p.m. to
5:30 p.m., on his way to the village from his field,
when he was sitting under a Umri tree, accused no.1
Manoj came there and asked to accompany him for going to
the house of the appellant. However, so far as the role
attributed by the deceased Bhaskar against the present
appellant in the said dying declaration is concerned,
there cannot be said to be any inconsistency with the
dying declaration (Exh-73) as well as the oral dying
declarations. In the dying declaration (Exh-73), the
27 criapl192-2013
deceased Bhaskar stated that accused no.1 Manoj had come
to his house for calling him to the house of the
appellant at about 6:30 p.m. Accordingly, he went to the
house of the appellant and then the incident took place.
Thus, prima facie there is inconsistency in respect of
these points in the dying declarations (Exh-57) and
(Exh-73). Therefore, it would be necessary to seek
independent corroboration to the version of the
deceased Bhaskar in order to see which of the dying
declarations would be reliable. We, now propose to
discuss the evidence of the prosecution, which has been
produced to lend corroboration to the dying declaration
of the deceased Bhaskar.
34. Ushabai (PW6) specifically states that on the
day of the incident, the deceased Bhaskar and herself
returned to their house from the field in the evening.
The deceased Bhaskar served fodder to the bullocks and
at that time, accused no.1 Manoj came there. She further
states that on being asked by accused no.1 Manoj, the
deceased Bhaskar left the house and went with accused
no.1 Manoj. This evidence has not been challenged in the
cross-examination of Ushabai (PW6). Therefore, it will
28 criapl192-2013
have to be treated as accepted by the defence side. From
this evidence, it is clear that the deceased Bhaskar
went to the spot of incident from his house only and not
from any other place on his way to his house from his
field. This evidence corroborates the version of the
deceased Bhaskar that has been recorded in dying
declaration (Exh-73).
35. The appellant has filed his written statement
under Section 313 of the Code of Criminal Procedure. In
paragraph no. 5 thereof, he states that he was arrested
by the police on 4th June, 2008 at about 8:30 p.m. At
that time, there were blood stains on his clothes.
However, he explained that on that day, he had fallen
down from a bund due to which he had sustained injuries
on his head and knee and his own blood had fallen on his
clothes. He states that the said clothes were seized by
the police.
36. Dilip (PW2) (Exh-26) is a panch to seizure
panchanama (Exh-29), under which a cream coloured full
shirt and a Dhoti with red border, stained with blood,
were seized from the house of the appellant in his
29 criapl192-2013
presence on 6th June, 2008 by API Bansode (PW13). It has
come in paragraph no.9 of the cross-examination of Dilip
(PW2) that the said clothes of the appellant had been
seized at his house. API Bansode (PW13) also states so.
In the circumstances, it is clearly established by the
prosecution that a blood stained full shirt and blood
stained Dhoti belonging to the appellant came to be
seized from his house vide panchanama (Exh-29). As
stated above, the appellant has admitted the seizure of
his blood stained clothes, in his written statement. In
paragraph no. 7 of his deposition, API Bansode (PW13)
states that the blood samples of accused Manoj and the
appellant were collected with the assistance of the
Medical Officer and were sent to the Chemical Analyst.
This fact has not been denied in his cross-examination.
37. It has come in the evidence of Dilip (PW2) and
and API Bansode (PW13) that a T-Shirt and a pant of the
deceased Bhaskar were seized under panchanama (Exh-28).
The said clothes were blood stained. API Bansode (PW13)
states that the blood sample of the deceased Bhaskar was
also sent for chemical analysis. The Chemical Analyst's
Report (Exh-82) is in respect of the blood sample of the
30 criapl192-2013
appellant wherein it is shown to be of group "B". The
Chemical Analyst's Report (Exh-84) shows that the blood
of the deceased Bhaskar also was of group "B". API
Bansode (PW13) states that he sent the seized clothes of
the appellant as well as that of the deceased Bhaskar
for chemical analysis vide a letter (Exh-77) on 16th
June, 2008. The report thereof is at Exh-81. The full
shirt and Dhoti of the appellant are Exh-2 and
Exh-3, respectively, while the T-shirt and full pant of
the deceased Bhaskar are Exh-4 and Exh-5 respectively.
Dhoti (Exh-2) and full shirt (Exh-3) were having
moderate number of blood stains ranging from 0.5 c.m. to
5.0 c.m. in diameter spread at places while T-short
(Exh-4) and full pant (Exh-5) were having considerable
number of blood stain ranging from about 0.1 c.m. in
diameter to big size spread at places. It was found that
the blood on those exhibits was of human having group
"B".
38. It seems that in order to take disadvantage of
the fact that the blood group of the appellant was the
same as that of the deceased Bhaskar, the appellant, in
his written statement put forth a theory that on 4 th
31 criapl192-2013
June, 2008, he fell down from a bund and sustained
injuries to his head and knee which had fallen on his
clothes, which were seized by the police. However, there
is absolutely no evidence to support this theory.
39. API Bansode (PW13) states that he arrested the
appellant on 4th June, 2008 vide panachanama (Exh-74).
The fact that the appellant was arrested on 4th June,
2008, has not been challenged in the cross-examination
of API Bansode (PW13). None of the witnesses states that
the appellant had sustained bleeding injuries on the day
of the incident. It is not even suggested to the
witness including API Bansode (PW13) that there were any
bleeding injuries on the head and knee of the appellant
at the time of his arrest. The appellant has not
produced any medical evidence to show that he had
sustained the bleeding injuries on 4th June, 2008. Had
the appellant sustained bleeding injuries, he certainly
would have visited the Doctor for medical treatment. He
could have examined the said Doctor to show that he had
sustained bleeding injuries on 4th June, 2008 itself.
There is nothing on record to show that the appellant
had sustained any injuries on 4th June, 2008 and they
32 criapl192-2013
were bleeding. In the circumstances, the defence set up
by the appellant that there was his own blood on his
clothes when the same were seized, cannot be accepted.
Finding of the blood stains on the clothes of the
appellant of group "B", which is that of the deceased
Bhaskar, shows presence of the appellant at the time
when the deceased Bhaskar was inflicted blows with
dagger.
40.
It has come in the evidence of Wahed (PW3)
(Exh-31) and API Bansode (PW13) that on 5th June, 2008,
when the appellant was in the police custody, he made a
statement (Exh-32) and offered to produce the dagger
concealed under a Babool tree. Accordingly, the
appellant took Wahed (PW3), another panch and API
Bansode (PW13) to his house and took out the dagger
(Art.3) from under a Babool tree by removing the soil.
There were blood stains on that dagger. It came to be
seized vide panchanama (Exh-33). Wahed (PW3) has been
cross-examined on behalf of the appellant. It was
suggested to him that he being acquainted with Madhukar
(PW4), Ganpati (PW1) and Dhansing as well as the police,
deposed false against the appellant. It was further
33 criapl192-2013
suggested to him that the seized dagger was brought from
the shop of his own brother that was being used for
cutting animals. He denied both of these suggestions.
There is nothing in his cross-examination to show that
he had any animus against the appellant. We do not find
any reason to disbelieve his version. It is, thus, clear
that the blood stained dagger came to be seized at the
instance of the appellant from under a Babool tree which
was near the house of the appellant. The said dagger was
sent by API Bansode (PW13) for chemical analysis with
letter (Exh-77) on 16th June, 2008. The Chemical
Analyst's Report (Exh-81) shows that the dagger was
stained with the blood of group "B", which was that of
the deceased Bhaskar. The discovery of the dagger
(Art.3), stained with the blood of the group of the
deceased Bhaskar, at the instance of the appellant,
would be a strong evidence to connect him with the
incident in question vide Section 27 of the Indian
Evidence Act.
41. As stated above, there are two written dying
declarations and four oral dying declarations of the
deceased Bhaskar. There is some variance with dying
34 criapl192-2013
declarations (Exh-57 and Exh-73) in respect of the place
from where the deceased Bhaskar went to the spot of the
incident as well as the time of his going there.
However, there is direct evidence of Ganpati (PW1) and
Madhukar (PW4) showing that the appellant was running
behind the deceased Bhaskar with a blood stained dagger
and the said incident took place at about 6.30 to 6.40
p.m. Madhukar (PW4) further states that the appellant
actually gave a blow of dagger on the left knee of the
deceased Bhaskar. Besides, this oral evidence, there is
circumstantial evidence in the form of recovery of blood
stained clothes of the appellant from his house as well
as recovery of the dagger at the instance of the
appellant whereon there was blood of blood group of the
deceased Bhaskar. Ushabai (PW6) states that accused
Manoj had come to call the deceased Bhaskar when the
deceased Bhaskar was at his house. Considering this
positive and dependable evidence on record, we are not
inclined to attach any importance to the variance in
respect of the time and the place where the deceased
Bhaskar was sitting prior to going to the spot of the
incident as mentioned in the dying declaration (Exh-55).
The dying declaration (Exh-71) is corroborated in all
35 criapl192-2013
material particulars by the above referred direct as
well as circumstantial evidence. Moreover, there is no
inconsistency in the dying declarations (Exh-57) and
(Exh-73) in respect of role attributed by the deceased
Bhaskar against the appellant. Consequently, the dying
declaration (Exh-71), which has been recorded first in
point of time and which has been corroborated by the
above mentioned direct and circumstantial evidence,
being most natural and probable, inspires great
confidence. It will have to be relied on and accordingly
relied on.
42. The learned counsel for the appellant cited the
judgments in the cases of Kashi Vishwanath Vs. State of
Karnataka AIR 2013 SC (Supp.) 415, Munnabee w/o. Shoukat
Tadavi Vs. State of Maharashtra 2015 (11) LJSOFT 123 and
Milind Ramchandra Gharat Vs. State of Maharashtra and
another 2015 (5) LJSOFT 112 (BOM.), wherein it is held
that the dying declaration should be read over and
explained to the deceased in the language in which he
understands. As stated above, the dying declaration
(Exh-73) was read over by API Bansode (PW13) and the
deceased Bhaskar had admitted that it was recorded as
36 criapl192-2013
per his say. In the circumstances, the aforementioned
rulings would not be helpful to the appellant to seek
any benefit.
43. The learned counsel for the appellant further
relied on the judgment in the case of Laxman Vs. State
of Maharashtra AIR 2002 SC 2973, wherein it is mentioned
as under:
"It is indeed a hyper technical view that the
certificate of the doctor was to the effect
that the patient was in a fit state of mind
specially when the magistrate categorically
stated in his evidence indicating the
questions he had to put to the patient and
from the answers elicited was satisfied that
the patient was in a fit state of mind whether
he responded the dying declaration. What is
essentially required is that the person who
records dying declaration must be satisfied
that the deceased was in a fit state of mind."
44. As stated above, Dr. Jaishri (PW10)
specifically states that after asking certain questions
to the deceased Bhaskar, she was satisfied that he was
conscious and oriented to give a statement. She had got
herself satisfied about the fitness of the deceased
37 criapl192-2013
Bhaskar to give a statement. Accordingly, she endorsed
on the dying declaration (Exh-73). Therefore, this
ruling would be of no help to the appellant.
45. The learned counsel for the appellant then
cited the judgment in the case of Gajnan s/o. Hanmantu
Jiddewar Vs. State of Maharashtra 2016(7) LJSOFT 73
(BOM). In that case, there were many infirmities in the
written dying declarations. The accused was convicted
merely on the basis of oral dying declarations. It was
held that the oral dying declaration is a weak piece of
evidence and it would be unsafe to convict the accused
on the basis of oral dying declaration. In the case at
hand, there is a written dying declaration (Exh-73),
which is corroborated by the above referred direct as
well as circumstantial evidence. Consequently, this
ruling would not be helpful to the appellant.
46. In the case of Ganpat @ Bajirao Gulab Jadhav
Vs. State of Maharashtra 2007 (4), LJSOFT 66 (BOM.),
the Medical Officer's endorsement about the fitness of
the deceased was held to be suspicious. This is not the
position in the present case. Hence, the ratio in the
38 criapl192-2013
said case would not be applicable in the fact of the
present case.
47. The learned counsel for the appellant further
relied on the judgment in the case of Shahid Khan Vs.
State of Rajasthan AIR 2016 SC 1178, wherein it is held
that the delay in recording the statements of the
witnesses casts a serious doubt about their being eye
witnesses of the occurrence. In the present case, the
statements of the witnesses have been recorded after
registration of the crime on the basis of the dying
declaration (Exh-73) given by the deceased Bhaskar.
There is no objectionable delay in recording the
statements of the witnesses. Moreover, none of the
witnesses can be said to have improved or exaggerated
the facts. Whatever they have actually seen, has been
deposed to by them. As such, the possibility of false
implication is ruled out considering the nature of the
evidence of these witnesses. Hence, their evidence
cannot be seen with suspicion.
48. Dr. Bargale (PW7) conducted the postmortem of
the body of the deceased Bhaskar in the Civil Hospital
39 criapl192-2013
at Latur on 8th July, 2008 between 1:00 p.m. and 2:00
p.m. On external examination, he noticed the following
injuries:
(i) Healed contused abrasion below popliteal fossa
of left leg.
(ii) Healed star mark below umblicus over linea alba
of size 18 c.m. long and 5 c.m. wide.
(iii) a stitched hole having size of 2 c.m. X 2 c.m.
over left lumber region middle aspect.
49. On internal examination, Dr.Bargale (PW7) found
healed scar mark on abdominal wall. He further noticed
adhesion and necrosis over peritoneum. He states that
the injuries were ante-mortem. He opined that the
clinical and postmortem findings were consistent with
the death due to stab injury. Accordingly, he prepared
memorandum of the postmortem (Exh-41). His attention was
brought to clause 6 of the memorandum Exh-41 of post
mortem, wherein he mentioned that the cause of death was
septicemia due to fecal fistula in an operated case of
stabbing injury with small bowel and mesenteric injury.
It has come in his cross-examination that septicemia is
an infection which arises because of surgical
complications. He states that if stitches are not
40 criapl192-2013
properly given, it may happen. He expressed inability to
state about any surgical complications. According to
him, the injuries mentioned in column 17 i.e. external
injuries found on the body of the deceased Bhaskar were
not possible by fall on the cutter of animal fodder. He
states that he cannot tell firmly the cause of death was
because of surgical complications but expressed the
possibility that it may be a cause of death.
50.
In view of the statement of Dr. Bargale (PW7)
and the judgment in the case of Laxman Hashya Gondhali
and others Vs. State of Maharashtra 2015(6) LJSOFT 223
(BOM.), the learned counsel for the appellant submits
that the deceased Bhaskar cannot be said to have died
because of the injury sustained by him in the incident.
He submits that the since the deceased Bhaskar has died
of septicemia on account of surgical compilations, he
cannot be said to have met with homicidal death and
cannot be connected with the offence of murder of the
deceased Bhaskar.
51. Here, a reference may be made to the evidence
of Dr.Rathod (PW16), who operated the deceased Bhaskar.
41 criapl192-2013
He states that the septicemia can occur with
contaminated weapon and hemorrhage. He specifically
states that the injuries sustained by the deceased
Bhaskar were sufficient in the ordinary course to cause
death. He denies that because of improper stitches and
improper follow-up treatment, there was septicemia
because of which the deceased Bhaskar died. Dr. Patil
(PW14), who also was with Dr.Rathod (PW16) while
operating the deceased Bhaskar, denies that the deceased
Bhaskar died because of surgical complications.
52. Dr. Bargale (PW7) states that the injuries on
the body of the deceased Bhaskar were possible by dagger
(Sura) (Art.3) shown to him. Considering the evidence of
Dr. Bargale (PW7), Dr. Rathod (PW16) and that of Dr.
Patil (PW14), the contention of the learned counsel for
the appellant that the death of Bhaskar was not
homicidal, cannot be accepted. From the evidence of
these medical witnesses, it is clear that the death of
Bhaskar was the direct result of the injuries sustained
by him at the time of the incident referred to above,
which led to septicemia. In the circumstances, the
judgment in the case of Laxman Hashya Gondhali and
42 criapl192-2013
others (supra) would not be applicable to the facts of
the case.
53. Considering the above facts and circumstances
of the case, we are of the view that the prosecution has
established beyond reasonable doubt that the appellant
inflicted blows of dagger on the person of the deceased
Bhaskar, causing him serious abdominal injuries which
resulted into his death. The said incident occurred
because on the earlier day, the deceased Bhaskar had
intervened in the quarrel between his nephew Rajendra
(PW5) on one hand and the appellant on the other. The
appellant had got called the deceased Bhaskar to his
house. The appellant was having dagger with him. This
shows that he had prepared himself to commit deadly
assault on the deceased Bhaskar. The attack on the
deceased Bhaskar was predetermined so far as the
appellant is concerned. Using a dangerous weapon like
dagger (Art. 3) causing injuries on the vital part of
the body of the deceased Bhaskar are the facts which
clearly indicates the intention of the appellant to kill
the deceased Bhaskar. The offence proved against the
appellant fully comes under definition of murder as
43 criapl192-2013
given in Section 300 of the IPC, which is made
punishable under Section 302 of the IPC.
54. The roles played by accused no.1 Manoj and the
present appellant differ to a great extent. The evidence
against the appellant is sufficiently strong to connect
him with the murder of the deceased Bhaskar. The
circumstantial evidence, which has been produced against
the appellant was not available against accused no. 1
Manoj. In the circumstances, the acquittal of accused
no.1 Manoj by this Court vide judgment dated 10 th
January, 2012, passed in Criminal Appeal No.252 of 2010,
would have no adverse effect on case of the prosecution
as against the present appellant.
55. The learned Trial Judge has rightly considered
the facts of the case and rightly appreciated the
evidence on record. He has rightly held the appellant
guilty of the offence punishable under Section 302 of
the IPC. We do not find any reason to interfere in the
judgment and order passed by the Trial Judge. The appeal
is devoid of any substance. It deserves to be dismissed.
44 criapl192-2013
56. As regards the grant of benefit of set off, in
view of the judgment in the case of Bhagirath Vs. Delhi
Administration and Rakesh Kaushik Vs. Delhi
Administration, AIR 1985 SC 1050, even if the accused is
convicted and sentenced with imprisonment for life set
off is required to be given vide Section 428 of the Code
of Criminal Procedure, subject to the provision
contained in Section 433-A and provided that orders have
been passed by the appropriate authority under Section
432 or Section 433 of the Code of Criminal Procedure.
The learned Trial Judge, in the present case, should
have extended the benefit of set off to the appellant.
Since the appellant is entitled to the said benefit,
while dismissing the appeal, direction to extend set off
to the appellant vide Section 428 of the Code of
Criminal Procedure from 4th June, 2008 (i.e. the date of
arrest), deserves to be given. In the result, we pass
the following order:-
O R D E R
(i) The appeal is dismissed.
(ii) The appellant be given set off from 4 th June,
45 criapl192-2013
2008, vide Section 428 of the Code of Criminal
Procedure subject to the provision contained in
Section 433-A and provided that orders have
been passed by the Appropriate Authority under
Section 432 or 433 of the Code of Criminal
Procedure.
(iii) Since the learned counsel Mr. N.R. Shaikh was
appointed to represent the appellant, we
quantify his fees at Rs. 7500/-, which shall be
paid by the High Court Legal Services Sub
Committee at Aurangabad.
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/criapl192-2013
