Bombay High Court
Mr. Dhanraj S/O Dagadu Chauhan (In ... vs State Of Mah., Thr. P.S.O. Ps ... on 28 June, 2021
Bench: V.M. Deshpande, Amit B. Borkar
1 2-appeal-142-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 176 OF 2020
IN
CRIMINAL APPEAL NO. 142 OF 2020
Dhanraj S/o. Dagadu Chauhan (In prison)
Vs.
State of Maharashtra through PSO, PS Pusad, Dist. Yavatmal
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri R. R. Vyas, Advocate for applicant.
Shri T. A. Mirza, A.P. P. for non-applicant/State.
CORAM :- V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATED :- 28.06.2021
Hearing was conducted through Video
Conferencing and learned counsel agreed that the audio
and visual quality were proper.
2. This is an application under Section 389 of
the Code of Criminal Procedure for suspension of
substantive sentence and for grant of bail. The
applicant was charged for the offence punishable under
Section 302 of the Indian Penal Code for committing
homicidal death of Archana.
3. In order to prove its charge, the
prosecution has examined in all 14 witnesses and also
relied upon various documents duly proved during the
course of trial. The learned Additional Sessions Judge,
Pusad in his judgment dated 06.02.2020 found that the
prosecution has succeeded in bringing home the guilt of
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the applicant and thereafter, convicted the applicant for
the offence punishable under Section 302 of the Indian
Penal Code and reluctantly imposed punishment to
undergo rigorous imprisonment for life and to a pay
fine of Rs. 3000/-.
4. This appeal was admitted on 12.03.2020
and at that time it was observed that the present
application for suspension of substantive jail sentence
will be considered after receipt of R.&P. Accordingly,
the R.&P. of Sessions Case No. 44/2016 were
requisitioned and today it was place before us for our
perusal.
5. We have heard Shri R. R. Vyas, learned
Advocate for the applicant and Shri T. A. Mirza, learned
A.P.P. for the State in extenso. We ourselves also
perused the R.&P. and reply filed on behalf of the
learned Public Prosecutor to oppose the present
application.
6. Deceased-Archana, according to the
prosecution case was having illicit relation with the
applicant. It appears that there is no such dispute about
the fact that Archana was a married women having one
son by name Sumit and due to matrimonial discord
between her and her husband since last couple of years
she used to stay at Village- Hiwalni, Tah. Pusand at her
parental house.
7. The incident in question occurred on
25.06.2016 at 10'O Clock in the morning. The First
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Information Report is lodged by Janardhan Maske
(PW1), father of the deceased. From his oral report
(Exh.20) and from his evidence, it is clear that this
prosecution witness is not a witness to the occurrence
and he lodged the report after getting information of
the incident from one Pappu @ Praful Gore(PW3).
Exh.20 would revels that on 25.06.2016 at about 8.30
to 9.00 am. he and his son Madhukar was proceeding
by bullock-cart to his agricultural field for sowing. As
per the prosecution case his wife -Indubai (PW2) and
deceased -Archana followed them on foot. The report
revels that when the informant and his son reached
near School at that time Pappu(PW3) came on
motorcycle and intimated about assault made on his
daughter- Archana.
8. Though 14 witnesses were examined to the
actual incident (eye-witness) they are (i) Indubai (PW2)
(ii) Sandip Gare (PW4). Sandip Gare (PW4) did not
support the prosecution and he was declared hostile by
the learned A.P.P., who is incharge of the brief with
permission of the Trial Court. Indubai(PW2) sustained
rigorous cross-examination at the hands of defence
counsel.
9. According to the learned Advocate for the
applicant, Indubai(PW2)- mother of deceased Archana
is not a witness to the actual incident. He submitted
that the said witness is introduced by the prosecution in
its case. He submitted that if the evidence of
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Indubai(PW2) is discarded then there is no evidence
showing finger of guilt against the accused.
10. We have bestowed our thoughtful
consideration to this submission. Presently, we are
considering the application for suspension of
substantive sentence and for grant of bail pending
criminal appeal.
PW2-Indubai's evidence would show that
she accompanied deceased-Archana when she was
assaulted by the applicant. Her evidence also show that
after the assault, Pappu @ Praful Gore(PW3) reached to
the spot and at that time Indubai(PW2) asked him to
intimate her husband- Janardhan Maske (PW1) about
the incident. This particular aspect found corroboration
in the evidence of Pappu @ Praful Gore (PW3). Further
at least, prima-facie, there is nothing to discard the
evidence of Indubai(PW2), an eye-witness, who was
cross-examined in detail by the learned defence counsel.
Therefore, at this stage, we are of the view that the
submission about truthfulness or otherwise of the
evidence of Indubai(PW2) cannot be accepted. It shall
be open for the learned Advocate for the appellant to
make further submission in that behalf at the time of
final hearing.
11. The post-mortem report is duly proved by
Dr. Minal Bhelonde(PW10), who conducted the post-
mortem. She found 22 stab injuries on various parts of
the body of deceased-Archana including her vital parts.
Exh.63 is the post-mortem report and the cause of death
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was death due to haemorrhage shock because of
injuries on the vital organs.
12. Dr. Minal Bhelonde's evidence would
further revels that the Investigating Officer forwarded
to her the knife, which was recover at the behest of the
applicant from the place, which was shown by the
applicant himself. The recovery panchnama under
which the weapon was seized/recovered is at Exh.48.
From perusal of evidence of Dr. Minal Bhelonde it is
clear that weapon was forwarded to her in sealed
condition and after examining the weapon, she gave her
opinion (Exh.67) that the weapon can cause injury
found by her during conducting autopsy. Her evidence
would also revels that she sent back the weapon to the
Investigating Officer in sealed condition.
13. Cloths of the applicant were recovered at
his behest under Exh.48 at the time of recovery of the
weapon. The C.A. report would show that the weapon
and cloths specifically full pant of the applicant was
stained with human blood. One of the circumstances
would also decide the fate of the application for bail is
subsequent conduct of the applicant. Dr. Minal
Bhelonde's evidence would revel that when the
applicant was arrested he was sent for his medical
examination under requisition Exh.64. Perusal of
Exh.64 would show that the applicant tried to commit
suicide. Dr. Minal Bhelonde in her report (Exh.65)
clearly opined that on examination of the applicant she
found contusion in front of neck at thyroid cartilage 8 X
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2 cm. and there was smell of Alcohol emitting from his
mouth. The medical examination is in proximity to the
incident. However, in view of Section 8 of the Evidence
Act, it is important fact relevant at least for deciding the
fate of bail application.
14. Further, the applicant after his arrest was
not released on bail either by the Trial Court or by this
Court during the pendency of trial.
15. In view of the limited scrutiny of the
various documents placed on record for the purpose of
consideration of this bail application, we are of the view
that this is not a case for this Court to exercise its
discretion in favour of the applicant.
16. Therefore, this application is rejected and
disposed of.
CRIMINAL APPEAL NO. 142 OF 2020
Since, the applicant is in jail, the Registry is
directed to take immediate steps for preparation of
paper-book and after preparation of paper-book the
Registry is further directed to place this appeal for final
hearing as per seniority of this appeal.
JUDGE JUDGE
RR Jaiswal
