The State Of Maharashtra vs Madan Manik Dalwale And Ors
2017 Latest Caselaw 9629 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.274 OF 2002 


 The State of Maharashtra                         ..APPELLANT

          VERSUS

 1.       Madan Manik Dalwale,
          Age: 21 years,

 2.       Raju Mani Dalwale,
          Age: 33 years, 

 3.       Baban Mahadu Pawar,
          Age: 57 years,

          (Appeal abated against
           R.No. 2 & 3 as per Hon'ble
           Court order dt. 24/11/17)

 4.       Manik Motiram Dalwale,
          Age: 65 years,

 5.       Kantilal Manik Dalwale,
          Age: 18 years,

 6.       Rajendra Baburao Ogale,
          Age: 24 years,

 7.       Bhagwat Baburao Ogale,
          Age: 28 years,

 8.       Rajendra Namdeo Marathe,
          Age: 40 years, 

 9.       Motilal Bhaidas Pawar,
          Age: 40 years,

          Accused Nos. 1 to 5
          R/o. Vadjai Road, Shivaji


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          Nager, Dhule & Accused 
          Nos. 6 to 9 R/o. Shivaji
          Nagar Lane No.1, Dhule.                    ..RESPONDENTS


 Mr V.S. Badakh, A.P.P for appellant;
 Mr. M.R. Wagh, Advocate h/f Mr P.S. Paranjape, 
 Advocate for respondents

                                
                          CORAM : T.V. NALAWADE &
                                  S.M. GAVHANE, JJ.

DATE: 14th DECEMBER, 2017

JUDGMENT : [ PER T.V. NALAWADE, J.]

The appeal is filed by the State to

challenge the judgment and order of learned 3 rd

Additional Sessions Judge, Dhule in Sessions Case

No. 2 of 1999. The trial Court has acquitted the

respondents of the offences punishable under

Sections 302, 323 read with Section 149, 147, 148

of the Indian Penal Code and Section 135(1) of the

Bombay Police Act.

2. Both sides are heard.

3. In short, the facts leading to the

institution of present proceedings can be stated as

follows :

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Deceased Navnath was resident of

Shivajinagar, Dhule. He was earning livelihood by

plying auto-rickshaw. All the respondents are

resident of Shivajinagar, Dhule.

4. The incident in question took place on

01/08/1998 at about 7-00 p.m. The deceased Navnath

was present with his auto-rickshaw at rickshaw stop

situated in Shivajinagar locality near cross road

having width of 80 feet. At that time, accused

No.1 Madan, accused No.2 Raju, accused No.3 Baban,

accused No. 4 Manik, sons of Manik and accused No.7

Bhagwat Ogle and Baban Pawar, who are related as

son-in-law to Manik came towards deceased and they

were 15 to 20 persons. These 15 to 20 persons

virtually dragged deceased towards house of Madan,

accused No.1 and there they started assaulting

deceased with sword, axe, stick, iron bar etc. He

was assaulted on his legs and on his head. When

the assault on Navnath was going on, his wife

Vandanabai learnt about assault and she rushed

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towards house of Madan, son of Manik. She heard

that beating was being given to the deceased inside

of the house. One more witness, nephew of deceased

also rushed to the spot and he also heard that

beating was being given to Navnath in the house of

Manik. In their presence, Navnath was virtually

thrown out of the house. Then by using hands,

assault was made on Vandanabai also and threat of

life was given to her.

5. On the spot, the deceased disclosed to his

wife that he was assaulted by using aforesaid

weapons. Vandanabai and deceased were shifted to

Civil Hospital, Dhule in rickshaw by the persons

like Hari Jagtap and Latabai Suryawanshi, residents

of Shivajinagar. The statement of Navnath came to

be recorded by police in Civil Hospital. On the

basis of that statement, crime at C.R. No. 133 of

1998 came to be registered for offence punishable

under Section 307 read with Section 149 of the

Indian Penal Code and for other offences. Then

supplementary statement of Navnath was recorded on

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01/08/1998. Navnath died in Civil Hospital on

03/08/1998.

6. During the course of investigation,

panchnama of house of accused Nos. 1,2 and 4, where

the incident had allegedly taken place, was

prepared and panchnama of spot, where Navnath was

lying in injured condition, was also prepared.

Nothing was found inside the house like blood

stains and blood was not found on the road where

Navnath was thrown. It was rainy season.

7. When Navnath was admitted in Civil

Hospital, injury certificate was prepared and after

his death, post mortem came to be conducted on the

dead body. Navnath died mainly due to head injury

though he had sustained fracture injuries like

fracture of tibia fibula right side middle third.

Head injury had caused haematoma on parital region

of scalp and there was also subdural haematoma on

left temporoparital region with subarachnoid

haemorrhage.

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8. During the course of investigation,

accused No.1 gave statement to the police in

presence of panch witness about axe used as weapon.

Memorandum statement was prepared and then as per

information, accused No.1 produced axe before the

police. Blood was found on the axe. In similar

manner, iron bar was recovered from accused No.9

and sword was recovered from accused No.3. There

was blood on iron bar and also on sword. These

articles came to be seized under panchnama. The

articles were sent to chemical analyzer's office.

The blood was detected on axe and sword. After

completion of investigation, police filed charge

sheet against the respondents, 9 persons.

9. The charge was framed for aforesaid

offences and plea was recorded. All the accused

pleaded not guilty. The prosecution has examined

in all 19 witnesses. When the statements under

Section 313 of the Code of Criminal Procedure were

recorded, all the accused took defence of total

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denial. The trial Court has not believed the

witnesses examined and also evidence given on

recorded dying declaration and oral dying

declaration.

10. The prosecution was relying mainly on

recorded dying declaration, which is proved in the

evidence of Bhimrao (PW-12), who was attached to

Azadnagar Police Station, Dhule. He has given

evidence that on 01/08/1998 he was informed about

the incident at 6-30 p.m. and he was asked to go to

Civil Hospital, where Navnath was admitted. He has

given evidence that he visited Civil Hospital and

he obtained certificate regarding fitness of

Navnath from Medical Officer, Civil Hospital and

then he recorded statement of Navnath. The

statement of Navnath, dying declaration is proved

at Exhibit-93. He had obtained thumb impression of

Vandanabai on the said statement in token of the

receipt of the copy the said statement. He has

given evidence that when he recorded statement,

Doctor, who had given opinion, was present by the

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side of patient and endorsement of Doctor,

regarding fitness of patient was obtained on the

dying declaration. There is endorsement as

follows :

"Conscious to give statement"

Time of recording is mentioned as 7-30

p.m. to 8-00 p.m. In the dying declaration,

deceased disclosed against 15 to 20 persons

including Madan, Raju, sons of Madan, two sons-in-

law of Madan and Baban Pawar. He disclosed that

all of them were holding sword, stick, iron bars

and axe. He disclosed that he was assaulted by

using aforesaid weapons and assault was made,

particularly on head and legs and then he was

thrown out of house of Madan by those persons. He

disclosed that after he was thrown out, his wife

Vandanabai came there but she was also assaulted by

using hands by these 15 to 20 persons. The

supplementary statement is, however, not proved by

prosecution.

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11. The main witness of prosecution is

Vandanabai (PW-8), widow of deceased. She has

given evidence that at about 7-00 p.m. when she was

present in the house, she learnt about the incident

and she ran towards the house of Manik Dalwale,

accused No.4. She has deposed that her sister in

law Latabai and mother in law Sunderabai had also

gone there with her. She has given evidence that

when they questioned accused No.2 Raju, as to why

they had assaulted deceased, accused Nos. 1 and 2

assaulted her by using hands. She has deposed that

she then made inquiry with her husband and husband

told that accused No.1 Madan had assaulted him on

his head by using axe, accused No.9 Motilal had

assaulted him by using iron bar, accused No.2 Raju

and accused No.4 Manik were holding sticks and

sword, accused No.3 Baban, accused No.5 Kantilal,

accused No.6 Rajendra, accused No.7 Bhagwat,

accused No.8 Rajendra Marathe were in company of

Manik and they had also assaulted him.

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12. The widow of deceased (PW-8) has given

evidence that Hari Marathe shifted them to Civil

Hospital by auto-rickshaw. She has given evidence

that she was examined in Civil Hospital, as she had

also sustained injuries.

13. Yogesh (PW-9), who is nephew of deceased

has given evidence that at the relevant time, he

was present on the spot by chance and he saw that

accused Nos. 1 to 9 had gathered there, they

assaulted him and then took him to the house of

accused No.4 by dragging him. He has given

evidence that he rushed to the house of Latabai,

sister of deceased and narrated the incident and

then he went to the house of accused No.4. He has

deposed that while standing outside, he had

requested assailants not to assault Navnath and

then Navnath was virtually thrown out of the house

after giving him beating. He has deposed that

Navnath had sustained bleeding injuries and from

that place, they shifted him to Civil Hospital. He

has given evidence that when at the place of

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incident, widow of Navnath made inquiry with

accused No.1 Madan as to why they had assaulted

Navnath, they gave beating to Vandanabai also by

hands.

14. The aforesaid evidence of PW-8 and PW-9 if

compared together, it can be said that even when

Yogesh (PW-9) has deposed that he rushed to the

spot first and he was there when Vandanabai (PW-8)

was questioning the accused as to why they had

assaulted deceased, Yogesh has not given evidence

that in his presence, deceased disclosed incident

to Vandanabai. In ordinary course, the male

persons take lead in shifting injured to the Civil

Hospital. The other witness Hari, who had driven

auto-rickshaw to Civil Hospital had turned hostile

and there is only evidence of Vandanabai of

aforesaid nature. These circumstances are

important as there is serious doubt about the

fitness or consciousness of the deceased, when he

allegedly made disclosure. Further, there is

apparent inconsistency in the evidence given on

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oral dying declaration and evidence of written

dying declaration. When in Civil Hospital, the

deceased could not disclose particulars of incident

to the police, as per Vandanabai (PW-8),

particulars of the part played by the accused

persons was disclosed to her by Navnath.

15. The spot panchnama, which is at Exhibit-

67, is proved in the evidence of panch witness

Hemraj (PW-1). PW-1 has given evidence that the

panchnama bears his signature. There was no reason

for accused persons to seriously dispute the

contents of spot panchnama. The document shows that

the panchnama was prepared on 01/08/1998 itself

between 9-00 p.m. and 9-30 p.m. The spot was shown

by Vandanabai (PW-8). The police and panchas had

inspected the house, where allegedly assault was

made. Inside the house, some articles were found

in scattered condition, which were kitchen

articles. One mirror was also found in broken

condition but there was not a single blood stain

inside the house. The police and panchas had

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carefully inspected the entire portion. Then they

inspected open space situated in front of house of

Manik but there also no blood was detected. In the

panchnama, it is mentioned that due to rain, road

had become wet. In view of the circumstance that

panchnama was prepared immediately, in ordinary

course, police would have noticed some blood. Many

bleeding injuries were found on the dead body and

that can be seen in the evidence of Doctor, who

conducted post mortem examination and prepared post

mortem report. Thus, the document of spot panchnama

is not corroborating the aforesaid evidence given

by the so called eye witnesses and also contents of

dying declaration.

16. The prosecution has proved injury

certificate, which was prepared after admission of

Navnath in Civil Hospital in the evidence of Dr.

Arjun (PW-10). He found following injuries on the

person of injured:-

1. C.L.W. 1/2" x 1/4" x muscle deep Rt. Knee.

2. C.L.W. 1/2" x 1/4" x muscle deep vertical - one inch below knee.

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3. C.L.W. 3/4" x 1/4" x muscle deep 2" inch below injury no.2 over right leg.

4. C.L.W. 1/2" x 1/4" x muscle deep - one inch below the injury no.3 over right leg.

5. C.L.W. - 3/4" x 1/4" x by muscle deep - 1" below injury no.4 over right leg.

6. C.L.W. 3/4" x 1/4" x skin deep left mid shin left leg.

7. C.L.W. 1/2" x 1/4" x skin deep -1" below injury no.6 left leg.

8. C.L.W. - 3/4" x 1/4" skin deep -1" below injury no.7 left leg.

9. C.L.W. - 4" x linear x skin deep over left parietal occipital region of the head.

10. C.L.W. 1/2" x 1/4" x skin deep over left wrist bleeding present.

11. Abrasion - 3/4" x 1/4" over right face.

17. Dr. Arjun (PW-10) is the same Medical

Officer, who had endorsed regarding fitness of Navnath

for giving statement and he has given the evidence on

that endorsement also by saying that the patient was

conscious at the relevant time. The injury certificate

prepared by Doctor is proved as Exhibit-86 and this

document is consistent with oral evidence of Doctor.

18. Dr. Patil (PW-11) conducted examination of

dead body of Navnath on 03/08/1998 between 16.45 hours

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and 18.15 hours. Doctor found following injuries on

the dead body.

1. Sutured wound on left parieto-occipital region 9.8 cm. in length (on removing sutures 9.8 cm. X 0.4 cm x scalp deep. Hair shaved around the injury.

2. Contusion over right side of back, i.e. right scapular region 7.8 cm x 1.8 cm., reddish black in colour.

3. Abrasion below injury No.2, 4.8 cm. X 2 cm. reddish in colour

4. Minute abrasions over face (forehead and right cheek), left wrist, left palm.

5. Stitched wound on right knee 1.6 cm. (on removing stitches, muscle deep)

6. Stitched wound below right knee, vertical 1.8 cm, in length (on removing stitches, muscle deep)

7. Stitched wound on right leg, below injury no.6, 2.1 cm in length (on removing stitches, muscle deep)

8. Stitched wound on right leg below injury no. 7, 1.5 cm in length (on removing stitches, muscle deep).

9. Stitched wound on right leg below injury no. 8, 2.1 cm in length (on removing stitches, muscle deep).

10. Stitched wound on left shin of the junction of upper 1/3 and lower 2/3, 2.1 cm in length.

11. Stitched wound on left shin below injury no.10, 1.6 cm in length.

12. Stitched wound on left shin below injury no.11, 2.1 cm in length.

13. Stitched wound on left shin below injury no.12, 1.9 cm in length (on removing stitches of injury no. 10,11,12,13 skin deep).

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19. Dr. Patil (PW-11) has given evidence that all

aforesaid injuries were ante mortem in nature. His

evidence shows that injuries caused fracture of tibia

fibula right side middle 1/3. On internal examination,

he found haematoma at parital region of scalp, subdural

haematoma on left temporroparietal region and subdural

haematoma. Both cerebral hemispheres were oedematous.

Lungs were congested, stomach was empty, stomach

muscosa healthy. Doctor gave opinion that death took

place due to head injury and fracture injury to right

leg also contributed in the cause of death. Post mortem

report at Exhibit-91 prepared by him is consistent with

his oral evidence. He gave evidence that the aforesaid

injuries can be caused by blunt side of weapon like axe

and sword and such injuries can be caused by iron rod,

thus, by hard and blunt object.

20. The medical evidence given in the present

matter needs to be kept in mind before appreciation of

evidence given on dying declaration. There was serious

head injury. The Medical Officer, who gave opinion on

the fitness of Navnath, when Police Officer recorded

statement did not know about haemorrhage in brain. The

case paper in respect of deceased, which must have been

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prepared by Civil Hospital is not produced. When

deceased was admitted on 01/08/1998 and he died on

03/08/1998, if he was really fit, in ordinary course,

police would have made attempt to get recorded

statement of deceased through Executive Magistrate.

Though it is not trite law that dying declaration

recorded by Executive Magistrate only can be relied

upon, when there are circumstances like found in the

present case, the Court needs to consider circumstances

and it was necessary for the prosecution to explain the

things. The case paper is not produced and there is no

explanation as to why the statement was not got

recorded through Executive Magistrate. Further, Doctor

gave opinion only to effect that the patient was

conscious. Though satisfaction of person who recorded

the statement should have been considered by this

Court, the Police Officer, who recorded the statement

could not given evidence that he himself got satisfied

that the patient was fit and that was done by him after

putting some questions. Due to all these

circumstances, this Court holds that so called recorded

dying declaration is surrounded by suspicious

circumstance. Similarly, the evidence given by widow of

the deceased (PW-8) on oral dying declaration cannot be

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believed for the same reason and also for the reason

that it is not consistent with the recorded dying

declaration. The eye witnesses also cannot be believed

as they have not given evidence that they had seen 15

to 20 persons involved in the incident of assault.

There is no corroborative evidence of spot panchnama to

show that the incident really took place in the house

of accused No.4 or in front of house of accused No.4.

Further, there is medical opinion that only hard and

blunt object could have caused injuries and that

opinion is not consistent with the evidence given by

this witness and contents of the dying declaration.

There is no mention in dying declaration that weapons

were used from blunt side.

21. The aforesaid discussion shows that probably,

the widow of deceased and other eye witnesses had no

opportunity to see the incident. Due to some reason,

they gave names of present respondents. However, the

evidence on record does not show that there was

previous enmity between the deceased and any of the

accused persons. It can be said that probably, some

incident took place in the house of accused No.4 Manik,

but in that incident, damage was caused to house hold

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articles of Manik. No inference is possible that in

the house of Manik, the deceased was assaulted by using

such weapons and bleeding injuries as mentioned above

were inflicted to the deceased.

22. The trial Court has considered all aforesaid

circumstances and benefit of doubt is given to the

accused persons.

23. During argument, learned Counsel for

respondent Nos. 2 and 3 submitted that they are dead,

as per his information. It appears that abatement

order is already passed in respect of these

respondents. It is not possible to interfere in the

decision given in favour of remaining respondents.

24. In the result, the appeal stands dismissed.

Bail bonds of all respondents stand cancelled.

(S.M. GAVHANE, J.) (T.V. NALAWADE, J.)

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