Vitthal S/O Marotrao Dhone (In ... vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 990 Bom

                                       1               APEAL118-16.odt          



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

                       CRIMINAL APPEAL NO.118/2016
                                    ...

Vitthal s/o Marotrao Dhone, Aged about 34 years, R/o Yavatmal, Tahsil and District Yavatmal, (In Jail). .. APPELLANT

.. Versus ..

The State of Maharashtra,
through Police Station Officer,
P.S. Wadgaon Road,
District Yavatmal                             ..            RESPONDENT



Mr. R.M. Daga, Advocate for Appellant.

Mr. T.A. Mirza, Additional Public Prosecutor for Respondent.

....

CORAM : B.R. Gavai & Kum. Indira Jain JJ.

DATED : March 23, 2017.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. Being aggrieved by the judgment and order passed by

the learned Sessions Judge, Yavatmal in Sessions Case No.84 of

2014 dated 23.03.2016 thereby convicting the appellant for the

offence punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay fine of

Rs.1000/- and in default of payment of fine to suffer simple

2 APEAL118-16.odt

imprisonment for one month, the appellant has approached this

Court.

2. The prosecution story as could be gathered from the

material placed on record is thus:-

On 23.05.2014 PW13 API Anand Piddurkar was attached

to Wadgaon Road Police Station, Yavatmal. He received an

information that one person had been killed near Tin Photo Chowk,

Umarsara. He took an entry in the station diary and along with PSI

Nimkar and other police personnel came to the spot of the incident.

By that time injured was already taken to the hospital. He saw

blood lying on the spot and two chappals, one motorcycle and one

mobile of Spice company lying on the spot. He prepared spot

panchanama and seized the mobile. PSI Wakade had gone to

District Hospital, Yavatmal. He prepared inquest panchanama of

deceased Ramnarayan

At around 10.30 p.m. first informant Savita Mishra lodged

an oral report to the Police Station stating therein that her husband

Ramnarayan @ Dadu Mishra was a contractor and social worker

and that he was Deputy Taluka Chief of Shiv Sena. She stated in

the oral report that present appellant used to generally give abuses

to her husband on cell phone and was also threatening him to kill

him. She stated that on 23.05.2014 at around 6.30 p.m. one

person known to her had come to her and told her that the present

appellant, Jagdish Dandge, Nana Rode and other 5-6 persons had

assaulted her husband. On 28.05.2014 the present appellant came

3 APEAL118-16.odt

to be arrested. Along with the appellant, four other accused

namely Jagdish Dandge, Sanjay Shinde, Maroti Awsare and Nana

Rode were also arrested. After conclusion of the investigation, a

charge-sheet came to be filed in the Court of the learned Chief

Judicial Magistrate, Yavatmal. Since the case was exclusively

triable by the learned Sessions Judge, it came to be committed to

the Sessions Court, Yavatmal.

3. The learned trial Judge framed the charge below Exh.16.

The accused pleaded not guilty and claimed to be tried. At the

conclusion of the trial, the learned trial Judge acquitted all other

accused, however, passed the order of conviction in so far as the

present appellant is concerned. Being aggrieved thereby, the

present appeal.

4. Mr. Daga, the learned counsel appearing for the

appellant submits that the learned trial Judge has grossly erred in

convicting the appellant. He submits that the learned trial Judge

has passed the order of conviction on the oral dying declarations of

PW2 Shrikrishna and PW6 Rajendra. He , however, submits that the

statements of these two witnesses is recorded much belatedly and

as such the conviction on the basis of the oral dying declarations of

these two witnesses is totally unsustainable.

5. The learned Additional Public Prosecutor on the contrary

4 APEAL118-16.odt

submits that the learned trial Judge has given cogent reasons for

the order of conviction and sentence and as such no interference is

warranted.

6. With the assistance of the learned counsel for the

appellant and the learned Additional Public Prosecutor, we have

scrutinised the entire evidence on the record.

7. PW1 Savita is the first informant. She is wife of the

deceased Ramnarayan. She deposes about the previous enmity of

the appellant with the deceased. In so far as actual incident is

concerned, she states that she was informed about the assault on

her husband by the present appellant and others by one person. As

such her evidence is hear say evidence.

8. PW3 Purushottam is the panch witness on the spot

panchanama. As such his evidence would not be of much

relevance in so far as the role of the present appellant is

concerned.

9. PW4 Ashwini Mishra is the daughter of the deceased.

Again her evidence is with regard to the rivalry between the

present appellant and the deceased. Her evidence regarding the

assault by the present appellant upon the deceased is again hear

say evidence.

5 APEAL118-16.odt

10. PW5 Devendraprasad Tiwari is a panch on the inquest

panchanama. The evidence of PW7 Manish is with regard to the

event of some press note and as such it has no relevance with the

prosecution case. PW8 Girish Vyas is a panch on seizure of the

blood samples of the accused who are acquitted and as such his

evidence would also be not of relevance in the present appeal.

11. PW9 Dr. Vinod Bhalerao has performed post mortem.

Since the death of deceased being homicidal is not disputed, it will

not be necessary to discuss his evidence.

12. That leaves us with the evidence of PW2 and PW6 who

are the witnesses on the oral dying declarations which implicate

the present appellant, PW10 Vikram who is said to be a panch on

memorandum under Section 27 of the Indian Evidence Act of the

present appellant, PW13 Anand Piddurkar - the Investigating

Officer and PW12 Dr. Vijay Kannake the Medical officer, who has

given the immediate treatment to the deceased.

13. PW2 Shrikrishna states that he was knowing deceased

Dadu Mishra. He states that on the day of the incident at around

6.15 to 6.30 p.m. , he was going to site at Godani Kotha. He had

seen crowd of people near Tin Photo Square. He had seen Dadu

Mishra lying on the ground in pool of blood. He had asked persons

6 APEAL118-16.odt

present there to bring autorickshaw to take Dadu Mishra to

Hospital. Accordingly they had brought one autorickshaw and put

Dadu Mishra in autorickshaw. He sat by the side of driver and one

another person sat along with Dadu Mishra on back side of

autorickshaw. They brought Dadu Mishra to District Hospital,

Yavatmal and admitted him in the hospital. He states that Dadu

Mishra told him that Vitthal Dhone had assaulted him. In the cross-

examination, he has admitted that his statement is recorded on

2.6.2014. It could thus be seen that the statement of this witness is

recorded after 10 days of the incident. He has further admitted

that when Dadu Mishra was taken in autorickshaw, at that time

injury of his head was bleeding. In the same breathe he states that

although he had caught hold of Dadu Mishra, his clothes were not

stained with his blood. If the version of this witness is to be

believed that he was very much available in the hospital after the

deceased was brought to the hospital, then the question arises as

to why he did not inform the Police immediately and the question

also arises as to why his clothes were not smeared with blood when

he had caught hold the deceased.

14. In so far as PW6 Rajendra is concerned, in his deposition

he has stated that the deceased told him that he was assaulted by

the present appellant as well as Nana Rode and his associates. The

learned trial Judge has believed his deposition only in so far as the

present appellant is concerned and disbelieved his deposition in so

7 APEAL118-16.odt

far as the other accused are concerned. It is to be noted that the

statement of this witness is recorded after a period of almost one

month and seven days. No explanation for such belated recording

of the statement is given.

15. There is another circumstance on which it is difficult to

disbelieve the oral dying declarations. The evidence of PW12 Dr.

Vijay Kannake would reveal that when the deceased was brought to

the hospital at 7 p.m., he had history of assault by sword with head

injury with fracture of skull bone with extravasation of brain matter

with gasping. In his cross-examination, PW12 has admitted that if

the patient is having history of sub arachnoid haemorrhage present

over cerebral hemisphere, it may result into patient going into

Coma. He has further admitted that the patient receiving such

injuries cannot be coherent. He has further admitted that when

Ramnarayan was brought to the hospital, he was unconscious. We,

therefore, find that it is difficult to believe that the oral dying

declarations could be said to be reliable.

16. The other circumstances on which the prosecution rely

are the memorandum under Section 27 of the Indian Evidence Act

on the basis of which the weapon alleged to have been used in the

crime and the clothes alleged to have been worn by the present

appellant at the time of commission of the crime are recovered.

The panch on the same i.e. PW10 Vikram Bhagat has turned

8 APEAL118-16.odt

hostile. However, the perusal of the same would reveal that the

said incriminating material has been recovered from the place

below the bridge which is open and accessible to one and all. As

such no relevance could be attached to the said memorandum and

recovery.

17. In the totality of the circumstances, we find that the

prosecution has failed to prove the case beyond reasonable doubt.

The order of conviction and sentence is not sustainable and is liable

to be quashed and set aside.

18. The criminal appeal is allowed. The judgment and order

of conviction dated 23.03.2016 passed by the learned Sessions

Judge, Yavatmal, is hereby quashed and set aside. The appellant is

acquitted of the offences charged with. The appellant shall be set

at liberty forthwith, if not required in any other case. The amount

of fine, if any paid, be refunded to the appellant.

      (Kum. Indira Jain, J. )              (B.R. Gavai, J.)
                                     ...


halwai/p.s.