Vishnu Marotrao Zure vs State Of Maharashtra
2017 Latest Caselaw 3058 Bom

                  Judgment

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                                                         1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                             NAGPUR BENCH, NAGPUR

                                 CRIMINAL APPEAL NO.374 OF 2001

                  1. Vishnu s/o Marotrao Zure,
                  Aged about 28 years,
                  Occupation Labourer,
                  R/o Near Primary School,
                  Ganeshpeth, Nagpur.
 Abated as per 
 Court's order 
dtd.14.11.2014
                  2. Dilip s/o Marotrao Zure,
                  Aged about 25 years, 
                  Occupation Labourer,
                  R/o Near Primary School,
                  Ganeshpeth, Nagpur.

                  (Both Applicants are presently in
                  Central Jail, Nagpur).                                ..... Appellants.

                                                  ::   VERSUS   ::

                  State of Maharashtra,
                  Through Police Station Officer,
                  Police Station Ganeshpeth, 
                  Nagpur.                                              ..... Respondent.

                  ==============================================================
                            Shri Anoop J. Gilda, Counsel appointed for the Appellants.
                            Shri N.B. Jawade, Addl.P.P. for the respondent/State.
                  ==============================================================




                                                                                             .....2/-




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 Judgment

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                                   2

                              CORAM : V.M. DESHPANDE, J.

                              DATE     : JUNE 12, 2017.



ORAL JUDGMENT

1. This appeal was preferred before this Court

by appellants Vishnu s/o Marotrao Zure and his brother

Dilip s/o Marotrao Zure against their conviction at the

hands of learned Additional Sessions Judge, Nagpur

dated 21.9.2001 in Sessions Trial No.313 of 1995. By the

said judgment and order of conviction, both these

appellants were convicted for the offence punishable

under Section 304 Part-II read with Section 34 of the

Indian Penal Code and they were directed to suffer

rigorous imprisonment for seven years and to pay a fine

of Rs.3,000/- and, in default, to suffer further rigorous

imprisonment for six months. During the pendency of

the present appeal, appellant No.2 Dilip s/o Marotrao

.....3/-

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Zure expired and as per order passed by this Court on

14.11.2014, the appeal filed by him was declared to be

abated.

2. Record shows that this Court, at the time of

admission of this appeal, on 6.2.2002 released the

appellants on bail. Record further shows that learned

counsel, who used to represent the appellants, was not

appearing on their behalf and, therefore, on 26.8.2014

this Court issued bailable warrants. Thereafter, learned

counsel appeared on 29.9.2014 and assured this Court

that he will argue the matter finally. But subsequently,

when the matter was posted for final hearing, on

1.4.2015 again learned counsel for the appellants was

absent and, therefore, again bailable warrant was

issued by this Court. Thereafter, on 8.5.2015 the

bailable warrant was cancelled on the assurance by

.....4/-

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learned counsel for the appellants that he will appear in

the matter. Again, when the matter was called out for

final hearing on 13.6.2016, learned counsel for the

appellants remained absent. Therefore, the matter was

kept after three weeks with a caution that on the next

date if learned counsel for the appellants is not

appearing, the Court will proceed with the matter by

appointing an Advocate from the Legal Aid Panel.

Again, on 2.12.2016 learned counsel, who used to

represent the appellants, chose not to remain present

and, therefore, this Court requested learned counsel

Shri Anoop J. Gilda to represent the appellants and the

Registry of this Court was directed to hand over the

copy of the paper-book to him. Accordingly, learned

counsel Shri Anoop J. Gilda is appearing in this matter.

3. The prosecution case is as under:

.....5/-

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Deceased is one Balkrishna Zure. The

accused persons are his nephews. There is a long

standing property dispute in these two families. The

criminal law was set into motion by PW3 Devendra

Balkrishna Zure, son of deceased Balkrishna. His oral

report is at Exhibit 21. It is dated 31.3.1995. First

information report states that on 30.3.1995, at about 7

O'clock, his father, deceased Balkrishna, returned to his

home and prior to taking his dinner, he had a drinking

session. Thereafter in the night, he proceeded towards

his steel furniture workshop. The first informant was in

the house itself.

The first information report further states

that on 31.3.1995, at 12:30 in the night, his younger

brother PW4 Jitendra Balkrishna Zure was returning to

his house after watching a night-show from the cinema

.....6/-

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hall. That time, he noticed deceased Balkrishna lying

near the workshop. Therefore, he came to house and

informed the said fact to PW3 Devendra. Thereafter,

first informant PW3 Devendra and PW4 Jitendra went

to the spot. That time, they noticed blood was oozing

from the head of deceased Balkrishna and one lady

having surname Kadatkar, who was examined by the

prosecution as PW5 as Smt. Subhadra wd/o Laxmanrao

Khadatkar, informed first informant PW3 Devendra and

PW4 Jitendra that accused Vishnu Zure and Dilip Zure

assaulted on deceased Balkrishna and that time they

were having iron rod in their hands and they assaulted

on account of an old rivalry in respect of the house. The

aforesaid report Exhibit 21 was given in Ganeshpeth

Police Station and that time PW11 Dattatray Ganpat

Nale was Incharge Police Station Officer. On getting

.....7/-

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the report from PW3 Devendra and since the said was

disclosing a commission of cognizable offence, PW11

Incharge Police Station Officer Dattatray Nale

registered an offence against the accused persons for

the offence punishable under Section 326 read with

Section 34 of the Indian Penal Code vide C.R. No.96 of

1995 and the printed F.I.R. is available on record at

Exhibit 50.

4. In the meantime, PW11 Investigating Officer

Dattatray Nale along with staff and PW3 Devendra

reached to the spot. That time, he noticed that injured

Balkrishna was lying on the ground. He, therefore, put

deceased Balkrishna in a cycle-rickshaw, firstly brought

him to the police station, and from the police station he

was sent to the Medical College and Hospital at Nagpur

for treatment.

.....8/-

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5. PW1 Dr. Narayan Gulabrao Khobragade was a

Casualty Medical Officer at the Government Medical

College, Nagpur on 31.3.1995. When injured Balkrishna

was brought to him by the police constable along with

requisition, he examined Balkrishna and gave a

certificate in respect of the injuries which he noticed

during the medical examination of injured Balkrishna.

Injury certificate is at Exhibit 70.

6. PW11 Investigating Officer Dattatray Nale

also recorded statement of witnesses including PW3

Devendra, PW4 Jitendra, and PW5 Smt. Subhadra

Khadatkar. After returning of Balkrishna from the

medical hospital, Investigating Officer Dattatray Nale

recorded his statement Exhibit 51.

Investigating Officer Dattatray Nale also

searched the house of the accused persons in the

.....9/-

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presence of panchas and seized blood stained clothes of

the accused persons. Prior to house search, PW7

another Police Officer Jagannath Barkuji Ingole visited

the spot and he drew spot panchanama Exhibit 12. From

the spot itself, weapon was seized which is an iron scale

(patti). After recording the first information report,

Investigating Officer conducted search at the spot of

incident and drew a panchanama of the spot in the

presence of panchas.

7. Prior to completion of investigation, injured

Balkrishna died and, therefore, the offence was

converted into the offence punishable under Section 302

of the Indian Penal Code. After completion of other

usual investigation, the final report was presented in

the Court of law. The Court of learned Magistrate, after

receipt of the final report, noticed that the case is

.....10/-

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exclusively triable by Court of Sessions and, therefore,

the same was committed to the Court of Sessions.

8. Learned Additional Sessions Judge, Nagpur,

in whose Court the case was allotted, framed the charge

against both the accused persons for the offence

punishable under Section 302 read with Section 34 of

the Indian Penal Code.

After a full dressed Trial, learned Judge of

the Court below acquitted the accused persons from the

charge under Section 302 read with Section 34 of the

Indian Penal Code. However, learned Judge of the

Court below convicted the appellants for the offence

punishable under Section 304 Part-II read with Section

34 of the Indian Penal Code.

Hence, this criminal appeal.

.....11/-

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9. Admittedly, both sons of deceased Balkrishna

viz. PW3 Devendra and PW4 Jitendra are not the

eyewitnesses to the incident in question. PW3 Devendra

got knowledge from his brother PW4 Jitendra who

informed him that when he was returning from cinema

hall, his mother informed him that though his father

had gone to the factory, has failed to return and,

therefore, he was asked by her to bring his father back.

Therefore, he again stepped out of his house. That time,

PW2 Ashok @ Bandu Rambhau Jadhao met and

informed PW4 Jitendra that both the accused persons

were assaulting his father and, therefore, he went to the

spot. That time, the accused persons ran away from the

spot. It is the version of PW4 Jitendra that, thereafter,

he returned to his house and informed the said fact to

his brother PW3 Devendra and, thereafter, they both

.....12/-

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proceeded to the police station and lodged the report.

PW3 first informant Devendra contradicts his

brother PW4 Jitendra in respect of narrating of the

incident by PW2 Ashok Jadhao.

PW3 Devendra from the witness box states

that the fact of assault was informed to him by his

brother PW4 Jitendra and one Ramesh Jadhao.

Further, the first information report is also silent about

the presence of PW2 Ashok Jadhao or narrating the

incident to PW4 Jitendra by him.

10. PW2 Ashok Jadhao is examined by the

prosecution as an eyewitness. According to his

evidence, in the midnight he stepped outside his house

to answer the nature's call and that time he noticed that

injured deceased Balkrishna was assaulted by the

.....13/-

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accused persons. Appellant Vishnu was holding an iron

rod in his hand at that time. It is his further version

before the Court that, he proceeded towards toilet and

when he returned, that time also the assault was going

on. It is his further version that thereafter, he

proceeded towards the house of deceased Balkrishna

and informed the same to PW4 Jitendra.

11. As observed above, neither in first

information report nor in evidence of PW3 first

informant Devendra there is a reference of name of this

PW2 Ashok Jadhao. It is established on record that PW2

Ashok Jadhao was having good relation with deceased

Balkrishna and his sons. Thus, this witness is not only

known to deceased Balkrishna but having close

acquaintances with him. In this backdrop, it appears

very improbable that when in his presence a murderous

.....14/-

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assault is made, he is leaving spot and not intervening

in the assault, not raising any shouts for help, and

proceeded towards the latrine block.

Further, as per his evidence, when he

returned from latrine block, he noticed the assault was

still going on. It must have consumed at least minimum

five minutes for this particular process of returning to

the spot. Injury certificate Exhibit 17 clearly belies PW2

Ashok Jadhao since examining PW1 Dr. Narayan

Khobragade noticed only three injuries. Looking to the

unnatural conduct on the part of PW2 Ashok Jadhao of

not intervening in the assault or not even making any

attempt to raise shouts to save deceased Balkrishna and

non-observance of his presence by PW3 first informant

Devendra in the first information report or even in his

evidence cast a doubt as to whether this man was

.....15/-

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present on the spot as claimed by him. In my view, it

would be rather risky in the aforesaid circumstance to

place reliance on his testimony.

12. The other witnesses, in order to prove the

assault, are PW5 Smt. Subhadra wd/o Laxmanrao

Khadatkar and PW6 Smt. Durgabai wd/o Kanayyalal

Donarkar.

PW6 Smt. Durgabai has turned hostile. She

has not supported the prosecution.

PW5 Smt. Subhadra claims that in the

midnight deceased Balkrishna had been to her house

and demanded tobacco and lime and, thereafter, he

proceeded towards the factory. It is the claim of this

prosecution witness that, that time both accused

persons assaulted him with some iron articles. Thus,

.....16/-

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according to this witness, even accused Dilip used

weapon for assaulting deceased Balkrishna. That

particular claim is even contradicted by PW2 Ashok

Jadhao who claims that deceased Balkrishna was

assaulted by means of an iron scale (patti) by accused

Vishnu and Dilip gave kick blows. Further, even in

statement Exhibit 51, which was recorded by PW11

Investigating Officer Dattatray Nale of deceased

Balkrishna, he also does not ascribe the role of

assaulting deceased Balkrishna by accused Dilip by

means of an iron scale (patti).

Thus, it is crystal clear that PW5 Smt.

Subhadra is not only exaggerating the incident but

trying to implicate accused Dilip also in the crime.

Though this witness claimed that she has seen the

incident, her statement is recorded after a lapse of five

.....17/-

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days. No plausible explanation is coming on record for

belated recording of police statement of this lady.

13. It is important to note in this prosecution

case that from the evidence of all witnesses who are

examined by the prosecution or even in statement

Exhibit 51, that there is long standing property dispute

which is going on in between family of deceased

Balkrishna and the accused persons.

14. The prosecution also heavily relies on the

statement recorded by PW11 Investigating Officer

Dattatray Nale of deceased Balkrishna. The said

statement is proved by him. It is available on record at

Exhibit 51. It shows that statement was recorded on

31.3.1995. In the said statement, deceased Balkrishna

has implicated accused Vishnu as a person who has

assaulted by means of an iron scale (patti) on his head

.....18/-

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and accused Dilip gave kick and fist blows.

Learned Additional Public Prosecutor Shri

N.B. Jawade for the respondent/State submits that since

this was a last statement made by him, it is a dying

declaration and is admissible in view of Section 32 of

the Evidence Act.

No doubt statement dated 31.3.1995, which

was recorded by PW11 Investigating Officer Dattatray

Nale, is of deceased Balkrishna. The question is,

whether it could be treated as a dying declaration and if

it is treated as a dying declaration, whether it passes

test as a statement, free from all doubts and could be

made basis for conviction.

Sub section (1) of Section 32 of the Evidence

Act postulates that a statement of a makes should be in

.....19/-

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the expectations of his death. In the present case,

statement of deceased Balkrishna was recorded on

31.3.1995 and he died on 6.4.1995. Apart from that, PW1

Dr. Narayan Khobragade states that injuries noticed by

him, which are mentioned in injury certificate Exhibit

30, were simple injuries.

Further, Exhibit 49, which is a requisition to

the doctor by the investigating officer for examination

of deceased Balkrishna, shows that when he was

referred to the medical officer, smell of alcohol was

emitting from his mouth. Even, in the first information

report it has been mentioned by PW3 first informant

Devendra that his father deceased Balkrishna had a

drinking session prior to his dinner though this fact he

stated from the witness box that it was never

communicated to the investigating officer. However,

.....20/-

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PW5 an eyewitness Smt. Subhadra is also evasive while

giving reply in respect of this aspect under her cross-

examination to the extent, as under:

"Perhaps, he might have consumed liquor, but he has not come to my house after consuming liquor."

PW6 another eyewitness Smt. Durgabai

though has turned hostile, before declaring her hostile,

candidly accepted that when deceased Balkrishna had

been to her house, he was under the influence of liquor.

Further, even PW2 Ashok Jadhao also

admitted that deceased Balkrishna used to consume

liquor.

In the context of Exhibit 49, it was expected

from the prosecution to place on record an opinion of

the doctor as to whether at the time of examination,

.....21/-

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deceased Balkrishna was under the influence of liquor

or not.

Further, from the witness box PW11

Investigating Officer Dattatray Nale is completely silent

about the mental state of deceased Balkrishna to give

his statement.

In that view of the matter, in my opinion, it

will be unsafe to rely on the said statement of deceased

Balkrishna.

15. As per the prosecution case, when deceased

Balkrishna was referred to the hospital on 31.3.1995 and

when PW1 Dr. Narayan Khobragade examined him and

issued injury certificate Exhibit 17, said doctor noticed

following three injuries:

"i) Lacerated wound on occipital region size 3 x 1/2 x 1/2 cm.

.....22/-

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ii) Lacerated wound on right pinna of the ear.

iii) Lacerated wound on the same part 2 x 1/2 cm."

16. It is not the prosecution case that after

examination of deceased Balkrishna, he was admitted to

the hospital as an indoor patient. On the contrary,

there is a consistent evidence through all the

prosecution witnesses that after medical examination,

deceased Balkrishna came to his house. According to

PW3 Devendra and PW4 Jitendra, after 3-4 days,

condition of deceased Balkrishna deteriorated and,

therefore, initially, he was taken to the Mure Memorial

Hospital, Nagpur. However, hospital Authorities

refused to admit him and, therefore, he was taken to the

Government Medical College and Hospital, Nagpur

where deceased Balkrishna died on 6.4.1995. After

.....23/-

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deceased Balkrishna died, his body was referred for

postmortem and PW8 Dr. Vinod Raghunathdas Agrawal

performed postmortem over the dead body with the

help of PW12 Dr. Ajit Dalsingh Sirsath. Postmortem

report is available on record at Exhibit 40. The

following injuries were noticed by the Autopsy

Surgeons at the time of conducting the postmortem:

"1) stiched wound posterior aspects of vertex, transverse oblique - 14 cm above right mastoid central part of wound approx. 2 cm. Long.

2) Stitched wound right pinna - vertical oblique 3 cm. long involving the front part.

3) Stitched wound on the back of right pinna in its middle third transverse oblique - 1.5 c.m. in length.

4) Contusion - midthird of right arm front and lateral aspect 7 x 4 c.m. brownish.

.....24/-

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5) Abrasion on front of right knee 1 x 1 c.m. scab present, partly healed.

6) Abrasion - medical aspect of right ankle 1/2 x 1/2 c.m. scab present, partly healed.

7) Abrasion front of left knee 1.5 x 0.5 c.m. scab present partly healed.

8) Abrasion - outer aspect of left ankle 1/2 x 1/2 c.m. scab presently partly healed.

9) Abrasion - back of wrist left outer aspect 1 x 1/2 c.m. scab present, partly healed."

On internal examination, they noticed

fracture right temporal bone and right anterior cranial

fossa continued to roof of left orbit transverse oblique

16 c.m. long.

17. Injury Nos.4 to 9, as mentioned in the

.....25/-

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postmortem report, are in the nature of contusions and

abrasions. According to PW8 Dr. Vinod Agrawal, these

injuries are antemortem injuries.

Initially, when deceased Balkrishna was

brought to the Government Medical College and

Hospital, Nagpur and when he was examined by PW1

Dr. Narayan Khobragade, the said doctor noticed only

three injuries, which are mentioned in Exhibit 17.

Before giving injury certificate Exhibit 17, PW1 Dr.

Narayan Khobragade must have minutely examined

deceased Balkrishna and, thereafter, must have issued

Exhibit 17. Though deceased Balkrishna was examined

medically by PW1 Dr. Narayan Khobragade, he could

not notice four other antemortem injuries as mentioned

in the postmortem report as injury Nos.4 to 9. Thus, one

can safely reach to the conclusion that on 31.3.1995,

.....26/-

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those injuries must not have been on the person of

deceased Balkrishna. In that context, it was expected

from the prosecution to explain as to how injury Nos.4

to 9, as mentioned in the postmortem report, exist on

the dead body of deceased Balkrishna. The prosecution

has completely failed to give any explanation for the

same. It is an admitted position that from 31.3.1995 to

6.4.1995 deceased Balkrishna was available at his house.

Further, the last blow on the prosecution is, an

admission given by PW8 Dr. Vinod Agrawal in his cross-

examination and which is reproduced herein below:

"It is true that if a person of 45 years age, falls on a blunt stony surface with great force, there can be fracture of skull."

It is quite possible, therefore, the fracture of

skull can happen due to fall on the hard surface.

.....27/-

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PW8 Dr. Vinod Agrawal has also further

admitted, as under:

"If the patient would have sustained injuries mentioned in Co.No.17 i.e. Injury No.1 to 3, death can be immediate."

In the present case, such has not happened in

the present prosecution case.

18. Looking to the quality of the evidences, it is

clear that false implication at the behest of the

prosecution witnesses in respect of the accused persons,

is not completely ruled out. Further, it is really

doubtful, in view of the medical evidences which are

available on record, that appellant No.1 can be held as

an author of the injuries. Hence, benefit of doubt is

required to be extended to him. Consequently, I pass

the following order:

.....28/-

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ORDER

The criminal appeal is allowed.

2) Judgment and order of conviction, passed

by learned Additional Sessions Judge,

Nagpur, in Sessions Trial No.313 of 1995 on

21.9.2001, convicting appellant Vishnu s/o

Marotrao Zure for the offence punishable

under Section 304 Part-II read with Section

34 of the Indian Penal Code, is hereby set

aside.

3) Appellant Vishnu s/o Marotrao Zure is

acquitted.

4) Bail bonds of appellant stand cancelled.

Learned counsel Shri Anoop J. Gilda

appointed for the appellants, who has very ably argued

.....29/-

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the brief and assisted the Court, is entitled to receive

his professional charges from The High Court Legal

Services Sub Committee at Nagpur to the extent of

Rs.5,000/- (rupees five thousand only).

JUDGE

!! BRW !!

...../-