Tukaram S/O. Dhondiba Wankhede vs The State Of Maharashtra
2021 Latest Caselaw 8450 Bom

                                                                                          939Bail
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD
                   939 CRIMINAL APPLICATION NO.1300 OF 2020
                        IN CRIMINAL APPEAL NO. 423 OF 2020

Tukaram s/o Dhondiba Wankhede                    :    Applicant

VERSUS

The State of Maharashtra & another               :    Respondents

Mr P. P.More, Advocate for the applicant/appellant
Mr. S. D. Ghayal, APP for the Respondents State


                                        CORAM    : V. K. JADHAV &
                                                   SHRIKANT D. KULKARNI, JJ.
                                        DATE     : 25th June, 2021.
ORDER:

1. In pending Criminal Appeal, preferred against the judgment and

order of conviction dated 28.05.2020 passed by the learned Additional

Sessions Judge, Latur in Sessions Case No. 34 of 2018 convicting thereby

the applicant accused for the offence punishable under section 302 of

Indian Penal Code and sentenced him to suffer rigorous imprisonment for

life and to pay fine of Rs.5000/- and in default, simple imprisonment of

one month, the applicant/original accused has preferred this application for

release on bail and for suspension of substantive part of the sentence.

2. The learned counsel for the applicant/original accused Mr. More

submits that the prosecution case entirely rests upon the oral dying

declaration allegedly made by the deceased to his son and there is no

direct evidence in the case. The learned counsel for the applicant submits

that PW-3 was the first person to see deceased Namdeo in injured

condition. Thereafter, PW-3 Balu had called son of deceased namely

939Bail Abhijit. PW-3 Balu has deposed that deceased Namdeo was found in

injured condition and he was not even in a position to speak. He was

unconscious. Thereafter, PW-3 Balu went towards his house. The said

Abhijit again came to the house of PW-3 Balu whose house is situated

adjacent to the house of deceased and informed that his father deceased

Namdeo did not wake up. Consequently, at the instance of Abhijit, PW3

Balu had called the informant PW-4 Dnyaneshwar, son of the deceased. The

learned counsel submits that even the wife of the deceased i.e. PW8

Rukminibai has also admitted in her cross examination that when PW4

Dnyaneshwar/ informant came, that time her husband was in unconscious

condition. The learned counsel submits that thus, the circumstance of oral

dying declaration by the deceased before his son informant Dnyaneshwar

appears to be doubtful. There is no further connecting evidence against

the applicant.

3. The learned APP has strongly resisted the application on the

ground that there is reliable and trustworthy evidence indicating that

deceased has made a oral dying declaration before his son Dnyaneshwar.

Learned APP submits that deceased Namdeo has told PW4 Dnyaneshwar

that the applicant Tukaram has assaulted him with the knife for the reason

that deceased Namdeo used to talk with his wife. Even deceased Namdeo

informed to his son PW4 Dnyaneshwar that he has been feeling giddiness

and he be taken to the Hospital.

4. The learned APP submits that there is a motive for committing the

murder. The learned APP submits that there are in all 16 external injuries

939Bail on the person of the deceased and out of that, 8 injuries are either incise

wounds or the stab injuries. The learned APP submits that blood stained

clothes of the applicant came to be seized and the human blood was

found on his clothes. The learned APP submits that even the weapon

knife came to be recovered at the instance of the applicant and human

blood was also found on it. The learned APP submits that the applicant

was under trial prisoner during the course of the trial. The applicant may

not be released on bail.

5. We have carefully gone through the notes of the evidence. It

appears that the prosecution case entirely rests upon the oral dying

declaration. We have also gone through the deposition of PW-3 Balu

(neighbour) and PW-8 Rukminibai (wife of the deceased). The prosecution

has not examined another son of the deceased namely Abhijit.

6. The wife of the deceased PW-8 Rukminibai has admitted in her cross

examination that when PW8 Dnyaneshwar (informant) came, that time her

husband was in unconscious condition. It further appears from the

postmortem examination notes and evidence of PW-6 Dr. Dharmraj Dudde

that the external injuries in the form of stab wounds, incise wounds are

mainly on the vital organs. Moreover, considering the nature of the

injuries, there must have been profuse bleeding internally and externally.

Thus, considering the entire aspects of the case, particularly the fact that

the prosecution case entirely rests upon the oral dying declaration, which is

under cloud, we are inclined to release the applicant on bail. Hence the

following order:

939Bail ORDER

(1) The Criminal application is hereby allowed.

(2) The substantive part of sentence vide judgment and order of

conviction dated 28.05.2020 passed by the learned Additional

Sessions Judge, Latur in Sessions Case No. 34 of 2018, is hereby

suspended till disposal of the appeal and till then, the applicant

Tukaram s/o Dhondiba Wankhede be released on bail on his

furnishing personal bond of Rs.25,000/- (Rupees Twenty Five

Thousand) with one solvent surety of the like amount.

(3) The application is accordingly disposed of.

        (SHRIKANT D. KULKARNI, J.)                             ( V. K. JADHAV, J.)


JPC