Bombay High Court
Babu Dashrath Kalwane vs The State Of Maharashtra on 11 August, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:17168-DB
CRI APPEAL 736 OF 2016 & ORS..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 736 OF 2016
. Babu S/o Dashrath Kalwane
Age: 29 years, Occ: Agri.,
R/o Hanuman Nagar, M.I.D.C. Area,
Beed, Tq. and Dist. Beed.
(Appellant is in jail) ... Appellant
(Orig. Accused)
Versus
. The State of Maharashtra ... Respondent
...
WITH
CRIMINAL APPEAL NO. 749 OF 2016
1. Vitthal alias Sonu S/o Prakash Kalwane,
Age: 26 years, Occupation Agriculture,
R/o: Thigale Galli, Beed,
Taluka and District Beed.
2. Bandu S/o Dashrath Kalwane,
Age: 35 years, Occu. Agriculture,
R/o: Hanuman Nagar, M.I.D.C. Area,
Beed, Taluka and District Beed.
(Separate appeal is filed by Appellant
No.2 as per order dated 05-12-2022
in Criminal Application No.4102/2022) ... Appellants
(Orig Accused Nos.1 & 2)
Versus
. The State of Maharashtra
Through The Police Station Officer,
Police Station Beed (City),
District Beed. ... Respondent
...
WITH
CRIMINAL APPEAL NO. 939 OF 2022
Bandu S/o Dashrath Kalwane,
Age: 42 years, Occu. Agriculture,
R/o: Hanuman Nagar, M.I.D.C. Area,
Beed, Taluka and District Beed. ... Appellant
(Orig. Accused No. 2)
1/40
::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 10:16:00 :::
CRI APPEAL 736 OF 2016 & ORS..odt
Versus
The State of Maharashtra
Through The Police Station Officer,
Police Station Beed (City),
District Beed. Respondent
.....
Mr. R. N. Dhorde, Senior Counsel i/by Mr. V. R. Dhorde, Advocate for the
Appellant in Criminal Appeal No. 736 of 2016.
Mr. Z. H. Farooqui, Advocate h/f. Mr. T. A. Ghumare and Mr. M. P. Shinde,
Advocate for the Appellants in Criminal Appeal No. 749 of 2016.
Mr. R. G. Hange, Advocate for the Appellant in Criminal Appeal No. 939 of
2022.
Mr. S. D. Ghayal, APP for the Respondent State in all three Appeals.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 25 JULY, 2023
PRONOUNCED ON : 11 AUGUST, 2023
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Appellants - original life convicts for offence under Sections 302, 307
read with 34 of the Indian Penal Code (IPC) are hereby assailing judgment
and order passed by learned Sessions Judge, Beed in Sessions Case No.53 of
2015 dated 11-11-2016.
FACTUAL MATRIX
2. The occurrence has a history and background. Alleged assault in
question is made when deceased and PW4 Dashrath were hospitalized on
CRI APPEAL 736 OF 2016 & ORS..odt
account of consumption of insecticide. Therefore, for the sake of clarity,
brevity and properly comprehending the occurrence, we propose to segregate
the incidents into two episodes i.e. first which took place before
hospitalization and subsequently the second episode after hospitalization
around 06:00 p.m. on 23-12-2014.
FIRST EPISODE
3. Parents of PW4 Dashrath had taken land from parents of deceased for
cultivation on yearly basis. During such period, deceased Sushma and PW4
Dashrath got acquainted with each other and love relations developed
between them. Their such relations were objected by family members of
Sushma. Therefore, the contract and agreement of cultivation was called off
and prior to the incident in question, PW4 Dashrath, his brother and parents
were beaten by appellants, of which complaint was lodged. However,
subsequently, the matter was amicably settled. Inspite of objection, PW4
Dashrath and deceased continued their love relations. As relatives of deceased
were searching for suitable match for her, it is alleged by prosecution that
deceased and PW4 Dashrath met in a field on 23-12-2014 and they consumed
insecticide and they were thereby required to be admitted in Deep Hospital,
Beed by PW5 Dhananjay, a friend and relative of PW4 Dashrath. PW3 Mayuri,
on receipt of above information, visited the hospital to accompany and take
care of her brother PW4 Dashrath and as such she was in his company.
CRI APPEAL 736 OF 2016 & ORS..odt
SECOND EPISODE
4. Around 06:00 p.m. or so, while PW4 Dashrath was being treated in ICU
Bed no.3 and deceased Sushma being admitted and treated at Bed no.4,
appellants herein forced their entry in the hospital getting armed with
weapons like Sword and Koytas. First they entered compartment where
injured PW4 Dashrath was undergoing treatment and they mounted assault
on him and thereafter, they entered compartment of bed no.4 and deceased
Sushma was done to death.
On the statement of PW3 Mayuri, sister of PW4 Dashrath, Police
registered crime against appellants. After investigation, all three accused were
chargesheeted, tried and the trial culminated into conviction which gives rise
to instant appeals.
RIVAL CONTENTIONS
Submissions of Mr.R.N.Dhorde, learned Senior Counsel for appellant in
Criminal Appeal No.736 of 2016 :
5. Learned Senior Counsel appearing for appellant in Criminal Appeal
No.736 of 2016, while criticizing the judgment would submit that, there is no
evidence about participation of this appellant and even no specific overt act is
attributed to him. He submitted that, evidence adduced by prosecution is
ambiguous on crucial aspects like identity and as to who was holding what.
The fundamental question raised by him is on what basis accused are
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identified as actual assailants. Learned Senior Counsel first took us through
the evidence of PW1 Somnath and after pointing to the answers given in
cross-examination, he would submit that, this witness has categorically
admitted and answered that persons seen in alleged CCTV footage are
unidentifiable for want of clarity. He would emphasize that the very CCTV
footage allegedly seized by investigating machinery and allegedly viewed by
this witness cannot be looked into, as it has been admitted that the date, time
of occurrence appearing in the CCTV footage, at the outset does not match
with the narration given by informant.
6. It is further pointed out that, the sole piece of evidence which
prosecution was relying is the electronic evidence, however, according to him,
the witness, who extracted the CCTV footage, was not competent to issue
certificate and it is apparent from the answers given by PW2 Vijay. Therefore,
according to him, such electronic evidence was not worthy of credence and
ought not to have been relied by the learned Sessions Judge.
7. It is his next submission that, it is doubtful whether informant had any
occasion to see the actual incident, as according to him, alleged incident had
taken place in two compartments and she herself stated about she being
shoved off and made to fall by the so called assailants. He also invited our
attention to the answers given by this witness in her cross-examination, more
CRI APPEAL 736 OF 2016 & ORS..odt
particularly, the so called material omissions and contradictions which have
been solicited by defence in the trial Court.
He would further submit that material witnesses i.e. sister and uncle of
deceased Sushma, inspite of shown to be present, are not examined by
prosecution for the best reasons known to it. Learned Senior Counsel submits
that it amounts to withholding material witness.
8. Learned Senior Counsel was also vociferous on the aspect of genesis of
the occurrence as according to him, there was no motive and so called
previous instance leading to a complaint had already been resolved and
therefore, he submits that the very genesis of the occurrence has been
suppressed by the prosecution.
9. He would strenuously submit that apart from uncorroborated testimony
of informant from independent corner, the very version and statement at the
instance of PW4 Dashrath cannot be looked into as according to learned
Senior Counsel, it has come on record from prosecution evidence and cross-
examination of PW4 Dashrath that he was already undergoing treatment on
account of consumption of insecticide and was on medication including
injection Atropine and as such it is submitted that it is doubtful whether PW4
Dashrath in such state of health could at all understand who assaulted him.
Thus according to him, it was not open for prosecution to rely on his evidence
CRI APPEAL 736 OF 2016 & ORS..odt
and even learned trial Judge ought to have kept his testimony out of purview
for above reasons.
Lastly, he submitted that infact here prosecution had not discharged its
primary burden of establishing the guilt beyond reasonable doubt. That
evidence of prosecution was full of discrepancies, material omissions and
contradictions and as such ought not to have been accepted for returning the
guilt as is done by learned trial Judge. Consequently, for the above reasons, he
prays to allow Criminal Appeal No.736 of 2016.
Submissions of Mr.Z.H.Farooqui, learned Counsel on behalf of appellants in
Criminal Appeal No.749 of 2016 :
10. Adopting the above submissions advanced by learned Senior Counsel for
appellant in Criminal Appeal No.736 of 2017, learned Counsel appearing for
appellants in Criminal Appeal No.749 of 2016 would add that here occurrence
has not been established by leading cogent evidence. That it is false
implication in the background of previous dispute. According to learned
Counsel, evidence of PW3 Mayuri and PW4 Dashrath being inconsistent, full of
material omissions and contradictions, ought not to have been accepted by the
learned trial Judge. He also attacked the findings and reasons reached at by
the learned trial Judge by submitting that evidence on record was not free
from doubt, more particularly the so called evidence of PW5 Dhananjay.
According to him, prosecution is laying hands on some CCTV footage, but
CRI APPEAL 736 OF 2016 & ORS..odt
persons appearing therein are admittedly not identifiable. Apart from above
weak evidence, prosecution has not adduced evidence of material witnesses.
He submits that the answers given by prosecution witnesses has damaged the
very foundation and case of prosecution about involvement of present
appellants. Appreciation by learned trial Judge is contrary to the evidence on
record and so he submits that said judgment cannot be allowed to be
sustained.
Submissions of Mr. R. G. Hange, learned Counsel for the Appellant in Criminal
Appeal No. 939 of 2022 :
11. Mr.Hange, learned Counsel at the outset took us through the evidence of
PW1 Somnath and PW2 Vijay on the point of electronic evidence in the form
of CCTV footage. He would point out that these witnesses have candidly
admitted that persons appearing in the footage are not identifiable clearly and
even the date and time mismatches with the prosecution case and according to
him, by no means, such evidence was liable to be adduced and further relied.
On the point of actual occurrence, he took us through the answers given by
PW3 Mayuri and PW4 Dashrath and would submit that their evidence is false,
unreliable and these witnesses being interested witnesses, their evidence
ought not to have been readily accepted, more particularly, according to him,
when it was not inspiring confidence. He submitted that alleged incident had
taken place in a hospital and inspite of it being brought on record that there
CRI APPEAL 736 OF 2016 & ORS..odt
were other patients and hospital staff available, no such independent person is
examined. He also questioned about the fitness of PW4 Dashrath to
comprehend the incident, being under medication. He submitted that his
statement is recorded after four days and testimony of PW3 Mayuri alone as
such cannot be taken recourse to, there being no corroboration. Pointing out
to the evidence of investigating machinery, he also questions the credibility of
prosecution story about appellants submitting and surrendering themselves to
Police with weapons. He would submit that there is clear bar for consideration
of so called information passed by appellants at Police Station.
12. He next pointed out that, it has come in the evidence that PW4 Dashrath
was admitted and getting treated and was said to be lying on bed and I.V.
being given to him. However, according to him, if this was the situation and
position of PW4 Dashrath, then he posed a question as to how there could be
injuries on the back portion of this witness, who was shown to be tied to the
bed, thereby preventing his mobility. For the said reason, he also raised doubt
about version of PW4 Dashrath. Likewise, he also questioned cause of death
of deceased Sushma, as according to him, there was only a single injury that
too on the cheek and hence it is his submission that death of Sushma cannot
be said to be homicidal one. Lastly, questioning the evidence adduced by
prosecution and judgment passed by the trial Court, he submits that the
findings are not supported by cogent and sound reasons and the same being
CRI APPEAL 736 OF 2016 & ORS..odt
not in consonance with the evidence on record, he prays to quash and set
aside the judgment of conviction by allowing the appeal.
Submissions on behalf of State :
13. Countering the above submissions, learned APP would submit that here
there is not only trustworthy, direct eye evidence in the form of testimony of
PW3 Mayuri, but there is also an injured eye witness account. That PW3
Mayuri was present very near to injured victim PW4 Dashrath. Testimony of
injured witness always stands on higher footing. They both are lending
support to each other on the point of arrival of accused with arms and carrying
out assault. Their testimonies are inspiring confidence and the core of their
substantive evidence about assault having remained intact and unshaken,
inspite of facing extensive cross by various defence counsel, there is no reason
to doubt or discard their testimonies. Learned APP submitted that here is a
case wherein direct evidence gets full support from medical evidence in the
form of treating Doctor, who had treated victim and deceased. Thus,
prosecution had put up full-proof case. Motive is abundantly clear from the
testimonies of PW3 Mayuri, PW4 Dashrath and PW5 Dhananjay. That
identification of all assailants is not only established but overt acts indulged
into by them are also consistently coming from prosecution witnesses.
Resultantly, just and proper appreciation resulted into conviction. Learned
trial Court has not committed any illegality or error while accepting the case of
CRI APPEAL 736 OF 2016 & ORS..odt
prosecution and holding accused persons responsible for the charge and so he
submits that there is absolutely no need to interfere in such sound judgment.
STATUS, ROLE AND SUM AND SUBSTANCE OF THE
PROSECUTION EVIDENCE
14. Before re-appreciating, re-analyzing and re-examining evidence adduced
by the prosecution, we deem it fit to first introduce and spell-out the status of
each of the witnesses examined by prosecution which is as followed :
PW1 Somnath Laxman Gadiwan is Panch to spot panchanama Exh.34. He
has also acted as Panch to the identification of accused by use of compact
disc played on a DVR and its seizure Exh.35. His evidence is at Exh.33.
PW2 Vijay Anandrao Bhivsene is a Technician of Swastik Sales Services, an
agency which had installed CCTV cameras at Deep Hospital, Beed. On
request of Police, he retrieved data from DVR. His evidence is at Exh.36.
PW3 Mayuri Chandrakant Shinde is sister of injured PW4 Dashrath and she
is the first informant. Her evidence is at Exh.38.
PW4 Dashrath Subhash Kudake is injured witness. His evidence is at
Exh.41.
PW5 Dhananjay Santram Chavan is a relative and friend of PW4 Dashrath,
who shifted and admitted PW4 Dashrath and deceased Sushma in Deep
Hospital. His evidence is at Exh.43.
CRI APPEAL 736 OF 2016 & ORS..odt
PW6 Dr.Anant Vaijinathrao Mule, who owns and runs Deep Hospital. His
evidence is at Exh.44.
PW7 Dr.Mahadev Kundalik Shingane is a surgeon and treating Doctor. His
evidence is at Exh.51.
PW8 Gangubai Subhash Kudake is mother of injured PW4 Dashrath. Her
evidence is at Exh.54.
PW9 Dr.Poonam Rameshwarsing Lodh is Autopsy Doctor, who conducted
post mortem on dead body of Sushma, prepared post mortem report and
gave opinion about cause of death due to hemorrhagic shock due to injury.
Her evidence is at Exh.55.
PW10 Shahaji Uddhavrao Game is uncle of deceased Sushma. His evidence
is at Exh.58.
PW11 Ganesh Sahebrao Ghadge is Pancha to recovery, discovery of
weapons. He did not support prosecution. His evidence is at Exh.59.
PW12 Satish Shivajirao Jadhav (API) is Police Official, who caused seizure
of Sword, Motorcycle and clothes of accused Sonu Kalwane at Exh.69. He
also seized Koyta and clothes of accused Bandu Kalwane at Exh.70. He
registered crime and handed over investigation of PW16 Shelke (API). His
evidence is at Exh.67.
PW13 Bhaskar Vitthal Jaybhaye is Pancha to seizure of Motorcycle. His
evidence is at Exh.73.
CRI APPEAL 736 OF 2016 & ORS..odt
PW14 Vaibhay Vinayakrao Vaidya is owner of Motorcycle. His evidence is at
Exh.76.
PW15 Dr.Eknath Devsing Pawar, who treated PW4 Dashrath. His evidence
is at Exh.78.
PW16 Maruti Nivrutti Shelke (API) is Investigating Officer. His evidence is
at Exh.85.
Apart from above oral evidence, prosecution has adduced documentary
evidence like FIR, various panchanamas, post mortem report, medical papers
etc.
Here dedfence has also after answering 313 Cr.P.C. jhas adduced DW-1,
who is a X-ray Technician at Edxh.115-C. This witnees claims that he was
present in the hospital. According to him, only one person came with weapon
from ground floor to ICU. Witness claims that he tried to obstruct him. Then
he stated that three more persons came in ICU with weapons and so this
witness went to one side. Those persons assaulted patient on the bed of 3 and
4 and after those persons went this witness claims that he intimated Doctor.
SUM AND SUBSTANCE OF THE ACCUSATIONS
15. Going by the story of the prosecution, it is unfolded that instant case
seems to be a case of honour crime. There is a blend of honour killing as the
girl who died is said to be assaulted by her own relatives. From the record, it
emerges that there was love affair between PW4 Dashrath and deceased
CRI APPEAL 736 OF 2016 & ORS..odt
regarding which appellants, relatives of deceased were objecting to and as
they had started the process of finding suitable match for her, initially
deceased consumed insecticide followed by consumption of insecticide by PW4
Dashrath and in such backdrop, they were brought to Deep Hospital for
treatment by PW5 Dhananjay. According to prosecution, murderous assault
was carried out by appellants in the hospital.
16. Taking into account the nature of objections and questions raised by
appellants regarding credibility of prosecution evidence, we are here now
called-upon to address and deal the following crucial questions :
Firstly, whether prosecution has fixed identity of actual assailants.
Secondly, whether there is trustworthy, credible direct eye witness account.
Thirdly, fitness of injured witness PW4 Dashrath to comprehend the
occurrence and whether he lend support and corroborate testimony of PW3
Mayuri.
17. Before proceeding to deal with the above controversies, let us first see
whether in view of charge, death of Sushma is established as homicidal one,
more particularly, in the backdrop of objection raised by learned Counsel
Mr.Hange. To find answer to this issue, medico legal expert's evidence
assumes importance and is thereby taken up for scrutiny.
CRI APPEAL 736 OF 2016 & ORS..odt
PW9 Dr.Poonam - Autopsy Doctor stated that she came across following
external and internal injuries :
External Injuries as noted in post mortem report :
1. Left temporo occipital region just 3 c.m. behind the left ear, 17 X l c.m.
(17 stitches)
2. Stitched wound left cheek extending up to back of neck ( 13 X 1 c.m.)
13 stitches
3. At the angle of mandible (2 stitches)
4. Back of neck on left side (9 X 1 c.m.) 9 steples
5. Left scapular region (a) 22 X 1 c.m., 2 steple, and (b) 12 X 0.5 c.m., 7
steple.
6. Clinical abrasion left shoulder, 10 X 0.5 c.m.,
7. Back side of left shoulder, 5 c.m., 14 c.m.. steples,
8. Left side of neck, 1 X 1 c.m., ( 1 stitch)
9. Abrasion over back 22 X 0.5 c.m.,
10. Stitched wound on dorsal aspect of right wrist, (1 X 1 c.m., - 1 stitch)
11. Stitched wound on medial aspect of elbow joint (8 X 1 c.m.,) 8 stitches.
12. Stitched wound on left palm extending to base of thumb, 9 X 1 c.m, (9
stitches)
13. Fracture of base of 1st metacarple (left)
14. Fracture of left ramus of mandible
Internal Injuries as noted in post mortem report :
Hematoma under left fronto temporal region at size 4 X 5 c.m., Fracture
left temporal bone 6 x 0.5 c.m.. Injuries Nos. 1 to 12 mentioned in column
No. 17 are external injuries and injury No. 13 and 14 are internal injuries.
CRI APPEAL 736 OF 2016 & ORS..odt
In her opinion, death was due to "hemorrhagic shock due to multiple
injuries with unknown poisoning".
In the light of above material on record, we too are convinced that
Sushma met homicidal death and as such this issue is required to be answered
in affirmative.
18. Precise case of appellant is that identity of the assailant is not
established. Consequently, we proceed to deal with this aspect first.
EVIDENCE ON IDENTITY OF ASSAILANTS
On one hand, prosecution case is that the hospital where the assault
took place has CCTV cameras and DVR and the footage of the same shows
involvement of appellants. On the other hand, appellants have come with the
case that CCTV footages are not clear to identify the actual assailants.
PW6 Dr.Mule testified that he alongwith his three partners run Deep
Hospital. He has named his partners. In para 8 of examination-in-chief he
deposed that, there are CCTV cameras installed in the hospital. DVR was
installed in his cabin and such system was installed four years prior to the
incident through a agency owned by one Shailesh Kumar Wakekar. Its
maintenance was with said agency. On day of incident, DVR was functional
but he added that it was showing incorrect date and time. According to him,
that said fault has developed 3-4 weeks prior to incident. Police seized DVR
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on the date of incident in his presence and Police drew panchanama which he
claims to be signed. He also identified the DVR.
While under cross-examination on this point, he answered that he does
not have receipt of DVR and that similar DVRs are available in the market and
that there was no hospital identification mark over the DVR. He stated that he
called agency to cure the defects about date and time. He stated that Police
seized DVR between 10:00 p.m. to 10:30 p.m. Learned Counsel for accused
no.3 also questioned about warranty of DVR. Witness answered that on call
agency was sending Shailesh or his assistant to cure the defects in DVR.
Thus, from the evidence of owner of hospital, prosecution has
demonstrated that CCTV cameras and DVR are installed in the hospital, which
is the spot of incident.
19. According to PW1 Somnath, who also acted as a Pancha to spot, he was
called by Police at City Police Station, Beed and he accordingly visited. One
Bhivsene from Aurangabad was present there. Police Officer Mr.Shelke
brought machine over which there was a paper label with seal and the same
was removed and machine was connected with the computer and Compact
Disc (CD) was prepared by Bhivsene and thereafter, the CD was played and he
was asked whether he knew Sonu Kalwane, Bandu Kalwane and Babu
Kalwane and witness claims that he answered in affirmative and he assigned
the reason by stating that, he was knowing them as they were adjacent land
CRI APPEAL 736 OF 2016 & ORS..odt
cultivators. He also resides in the field and they also resided in their field.
He claims that he was asked to identify them.
From his testimony, it is surfacing that he was made to view footages
and on viewing the same, he has narrated about accused Sonu @ Vitthal,
Babu, Bandu seen entering the hospital armed with weapons. He has also
identified them climbing the stairs and going towards ICU. He has stated the
weapons held by them respectively. He has narrated about seeing appellant
Sonu, Sonu's sister, maternal uncle and maternal brother to be present in the
ICU and they obstructing him. He has narrated who was leading and who was
following him. He categorically stated about they first entering the
compartment of bed no.3 and thereafter, after some time, they proceeding
towards compartment of bed no.4. He narrated about PW3 Mayuri being
pushed and they all leaving. In paragraph 7, he spoke about DVR being
removed from sealed condition and it being played by use of DVR, which was
connected by Technician Bhivsene and footages appearing on the screen in the
Court hall. In paragraph 9, he has watched the footages and narrated about
which appellant was wearing which clothes, appellant running upstairs,
entering ICU and leaving the hospital. All these narrations are after watching
footages in camera nos.1, 6, 8. He has also quoted the timing in minutes and
seconds.
Witness has identified banyan (article 8), jeans pant (article 9), bed-
sheet (article 10) wherein it was embossed "Deep Hospital", cotton blood stain
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swab (article 11), blood stained top belonging to Sushma (article 12) and
Odhani cut at three places also to be blood stained (article 13). According to
him, seizure was stapled and sealed.
20. Then witness pointed to the accused present in the Court by raising
finger and stating that he identifies Sonu, who according to this witness is also
known as Vitthal. Accused confirmed his name as Vitthal. Thereafter, witness
pointed to accused Babu and Bandu. He stated that accused Sonu is nephew
of accused Babu and Bandu and Sushma was daughter of Prakash. Vitthal and
Sushma are brother and sister. Gangubai is mother of Dashrath. Subhash is
father of Dashrath and Dashrath is son of sister of this witness.
On further re-examination as regards to footage of camera no.8, this
witness has answered that the lady present in front of compartment no.3 is
Mayuri and she seen going back in the compartment and accused following
her and thereafter, all three accused again coming out of compartment no.3
and entering compartment no.4.
21. We have thereafter scrutinized the cross-examination faced by this
witness.
The material cross-examination is that, this witness answered that he
was present in the hospital on 23-12-2014 at about 08:45 p.m. He answered
that he has reached there around 07:00 p.m. alongwith clothes of Dashrath.
CRI APPEAL 736 OF 2016 & ORS..odt
He confirmed that in footage displayed on screen on last date, near
compartment of bed nos.3 and 4, maternal uncle of Sonu was present. He
further stated that he was present near those compartments, when three
assailants entered those compartments. He is thereafter questioned about one
Swapnil Galdhar a Vice President of BJP (Youth), about Gangubai to be his
sister and she to be an active member of BJP. Then he was again questioned
about the Geographical location and direction of hospital, its entrance, what
was located at which place and how many patients were admitted in ICU.
In cross-examination on the point of DVR, he answered that he did not
observe date of the recording stored and displayed in the DVR. He stated that
it was played for two and half to three hours. He is also questioned at which
of the places there was blood.
When cross-examined by learned Counsel for accused no.3, he denied
having seen DVR previously and that he was unaware of its functioning and its
processing.
22. Another witness on the CCTV footage, who is examined by prosecution,
is PW2 Vijay Anandrao Bhivsene. On carefully going through his evidence, it
is revealed that he is a Technician employed by the Sales and Services, who
supplied and installed CCTV cameras and DVR in Deep Hospital. On being
called by Police, he connected the system with Monitor and the same was
viewed and shown to PW1 Somnath.
CRI APPEAL 736 OF 2016 & ORS..odt
23. Even above witness is subjected to exhaustive cross-examination. As
regards to his part is concerned i.e. on the point of CCTV footage and DVR is
concerned, cross-examination is found in paragraph 7, wherein he, after
watching the footage of camera no.1, has answered that face of the persons
near the scene near the sliding gate is not identifiable due to pixel results.
Camera installed at main gate was night vision camera and because of that,
there was excess shadow and as such there was no clarity. He also stated that
the faces of the persons coming inside the gate are not identifiable i.e. in
camera nos.2, 5, 6, 8. In paragraphs 16 and 17 there are questions about
DVR, possibility of tampering. He admitted that he did not read Section 65-B
of the Indian Evidence Act and that he is not aware about the certification and
so he did not carry it. However, he denied that date and time displayed on
DVR to be not changed and recording to be as it is and that warranty of the
unit installed at Deep Hospital had expired.
SUMMATION ON ELECTRONIC EVIDENCE
24. From the testimony of PW6 Dr.Mule, prosecution has established
installation of CCTV cameras and DVR in Deep Hospital. From the evidence of
PW1 Somnath and PW2 Vijay, prosecution has further proved that footage
were retrieved by extracting services of PW2 Bhivsene and the same were
confronted to PW1 Somnath, who claimed to be very well acquainted with all
three accused, who were his immediate neighbours. PW1 Somnath has
CRI APPEAL 736 OF 2016 & ORS..odt
identified each of the accused by name, he is found to be giving description of
clothes on their person and alleged weapons with which they are armed with.
After watching display of footage, he has brought on record who first entered
and who followed the first person since the point of entrance of the hospital,
landing the stairs to ICU on the first floor, their entry with weapons initially in
compartment having bed no.4 and thereafter entering compartment having
bed no.3 where both PW4 Dashrath and deceased were treated in their
respective compartments. Witness has narrated even their return and exit
from the hospital. We have noticed from the manner of cross-examination and
suggestions that there is no serious dispute about the occurrence of assault.
Identification on the footage is also not rendered doubtful. It is true that the
date, time is not reconciling with the day of occurrence, but except such
default in the system, the system to be in order and rest of the count has
remained intact. It is obvious that for a Technician from Aurangabad, faces
may not be clear but as stated above, PW1 Somnath has pinpointed who is
who and who was wearing what and further who was armed with what.
25. Consequently, in the light of above discussion, we find no substance and
merit in the arguments raised before us by each of the learned Counsel that
prosecution had failed to identify the assailants and thereby we discard their
said submission. Resultantly, we answer the above issue noting that identity of
assailants is cogently proved by prosecution.
CRI APPEAL 736 OF 2016 & ORS..odt
(II) Second and Third issues/objections raised before us are that there is no
cogent, credible and trustworthy eye witness to the occurrence and that there
is no further corroboration from independent witness.
OCULAR EVIDENCE
Before sifting ocular account, we propose to deal with the settled
principles, which are to be borne in mind while appreciating ocular evidence
in a criminal case and the same are dealt by the Hon'ble Supreme Court in the
ruling of Balu Sudam Khalde and Another v. The State of Maharashtra
(Criminal Appeal No.1910 of 2010) reported in 2023 SCC OnLine SC 355.
These principles are culled out by the Hon'ble Apex Court from its own
previous rulings viz. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983
Cri LJ 1096 : (AIR 1983 SC 753); Leela Ram v. State of Haryana, AIR 1995 SC
3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012) and the
principles could be summarized as under :
"I. While appreciating the evidence of a witness, the approach must
be whether the evidence of the witness read as a whole appears to
have a ring of truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize he evidence more
particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and evaluate
them to find out whether it is against the general tenor of the
evidence given by the witness and whether the earlier evaluation of
the evidence is shaken as to render it unworthy of belief.
CRI APPEAL 736 OF 2016 & ORS..odt
II. If the Court before whom the witness gives evidence had the
opportunity to form the opinion about the general tenor of
evidence given by the witness, the appellate court which had not
this benefit will have to attach due weight to the appreciation of
evidence by the trial court and unless there are reasons weighty
and formidable it would not be proper to reject the evidence
on the ground of minor variations or infirmities in the matter of
trivial details.
III. When eye-witness is examined at length it is quite possible for
him to make some discrepancies. But courts should bear in
mind that it is only when discrepancies in the evidence of a
witness are so incompatible with the credibility of his version
that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of
the case, hyper technical approach by taking sentences torn out
of context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter would not
ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling
in the narration of an incident (either as between the evidence of
two witnesses or as between two statements of the same witness) is
an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen.
CRI APPEAL 736 OF 2016 & ORS..odt
VII. Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so
often has an element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person's mind whereas
it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them. They
can only recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their estimates by
guess work on the spur of the moment at the time of interrogation.
And one cannot expect people to make very precise or reliable
estimates in such matters. Again, it depends on the time-sense of
individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by
the court atmosphere and the piercing cross examination by
CRI APPEAL 736 OF 2016 & ORS..odt
counsel and out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details from imagination on
the spur of the moment. The sub-conscious mind of the witness
sometimes so operates on account of the fear of looking foolish or
being disbelieved though the witness is giving a truthful and
honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the
evidence need not necessarily be sufficient to amount to
contradiction. Unless the former statement has the potency to
discredit the later statement, even if the later statement is at
variance with the former to some extent it would not be helpful to
contradict that witness."
26. Now let us get satisfied about availability of direct eye witness account.
According to prosecution, PW3 Mayuri and PW4 Dashrath are star witnesses.
PW3 Mayuri is real sister of PW4 Dashrath injured. We propose to analyze
their testimonies and also reproduce it for better appreciation.
According PW3 Mayuri, her brother PW4 Dashrath was studying in
College. She deposed about love affair between her brother and deceased.
She deposed that relatives of deceased learnt about it and there was an
incident in which her parents and brothers were assaulted and Police
complaint was lodged, but it was further withdrawn as matter was amicably
settled. She stated that on 23-12-2014, while she was in the house around
04:00 p.m., she received call from PW5 Dhananjay and he informed that PW4
CRI APPEAL 736 OF 2016 & ORS..odt
Dashrath and deceased Sushma consumed insecticide and were brought to
Deep Hospital and therefore, she went there. She stated that PW4 Dashrath
was admitted in Intensive Care Unit (ICU). Deceased was in Bed No.4 and
PW4 Dashrath was in Bed No.3, whereas sister of deceased, her maternal
uncle and his son were also present in the hospital. She testified that while
she was talking to PW4 Dashrath, at that time Sonu Kalwane, Bandu Kalwane
and Babu Kalwane i.e. appellants came there armed with weapons. According
to her, Sonu was armed with Sword and Bandu and Babu were armed with
Koytas. Babu hurled abuses and pushed her. Babu addressed to PW4
Dashrath that he had given understanding to him thousand times and that he
did not listen and that now last stage has reached. According to this witness,
all three of them started assaulting to PW4 Dashrath and after assaulting PW4
Dashrath, all three of them went towards Bed No.4. There they assaulted
deceased and thereafter, they went away. According to her, PW4 Dashrath
suffered injuries on head, neck, both hands and waist, whereas deceased
Sushma has sustained injuries over her cheek. According to her, incident in
the hospital took place between 06:00 p.m. to 06:30 p.m. Police visited, made
enquiry with her. She had informed Mr.Shelke, Police Officer, who had
recorded statement. She has stated that she gave details of incident i.e.
whatever she has witnessed and thereafter she claims that she signed it. She
identified report Exh.39. She identified all three accused saying that she knew
CRI APPEAL 736 OF 2016 & ORS..odt
them and they are present before the Court. She further stated that her
statement was recorded under Section 164 of the Code of Criminal Procedure.
27. Learned Counsel for accused nos.1 and 2 cross-examined above witness.
On the point of occurrence, cross-examination is found in paragraph 10
wherein she has answered that she was pushed outside the compartment of
PW4 Dashrath after giving abuses. She denied that she fell. She further
answered that due to fear, as assailants were armed with weapons, she did not
attempt to obstruct. She denied that because of push being given to her, she
came out of ICU passage. It seems that she is asked where she was and she
answered that she was in front of ICU after push. She has answered that
hospital Nurse was present at her sitting place at counter and in standing
position. She answered that she went to her and requested her to come to
rescue. She is asked how many other patients were in the ICU and she
answered that she did not remember whether there were two ladies and three
male persons. To a question, she answered that when assailants came, she
was sitting on stool in the compartment. She answered that at that time, PW4
Dashrath was resting on bed on his back and his both toes were tied with rope
to the cot but his hands were free. She was asked when assault was made,
whether Dashrath tried to defend himself and she has answered that he did
not bring forwards his hands to defend himself. He did not try to assault the
assailants. She has admitted that after the commencement of incident till its
CRI APPEAL 736 OF 2016 & ORS..odt
end, PW4 Dashrath was on the cot. She confirmed and admitted that
Dashrath was not assaulted on face, chest, abdomen and he did not remain in
same position after arrival of assailants till they went away. She denied that
four persons came near the bed of PW4 Dashrath.
28. Omissions and contradictions are brought on record regarding four
persons coming near the bed, about her brother had not slept but was on
saline. She stated that immediately after the assault, she did not go near him
to see injuries. She is asked as to how many blows were inflicted and she
answered that in her estimation about 10 to 12 blows were inflicted on PW4
Dashrath. She is asked where her statement was recorded and she answered
that at Aurangabad Hospital. She is unable to state that why portion marked
"A" is appearing in her statement. She answered that after the incident, she
alone remained in ICU and when the appellants went away, Doctor has not
come. According to her, Police reached to Hospital at 07:00 p.m. to 07:30
p.m. She denied that she told Doctor that some unknown persons assaulted
PW4 Dashrath. She admitted that at the time of incident, Sarika, maternal
uncle, maternal aunt and their sons were present in the hospital.
Omission is brought in her statement recorded under Section 164 of the
Cr.P.C. as regards to "Talking of witness with PW4 Dashrat at that point of
time". Omission is also brought as regards to Bandu to be armed with Koyta.
Omission is also brought in the statement to Police about Babu addressing
CRI APPEAL 736 OF 2016 & ORS..odt
PW4 Dashrath that thousand times understanding has been given but he did
not listen and now that it is last stage. Then she is questioned about incident
with deceased in paragraph no.13, wherein she has answered that Sushma
was lying on the cot facing the roof. She is unable to state whether Sushma
was awake or sleeping. She answered that she saw while she was assaulted on
cheek and hand and she stated that at that time nobody was present there.
She denied that she was not present in the hospital. She has answered that
she was present at the time of preparation of panchanama. Suggestion about
love marriage of appellant Sonu is admitted by her. She was asked where her
statement was recorded, to which she answered that Police recorded her
complaint near ICU Unit near other compartment bed.
When cross-examined by learned Counsel by accused no.3, she stated
that she was sitting near the compartment of PW4 Dashrath. She stated that
she was sitting near head side of PW4 Dashrath and his head was towards
south side. She admitted that she did not give information about episode of
poisoning to Police. She answered that PW4 Dashrath was on saline and in
her presence, he has omitted.
Again learned Advocate for accused nos.1 and 2 brought omission in the
statement recorded under Section 164 of the Cr.P.C. about "while she was
talking with PW4 Dashrath, at that time, Sonu, Bandu and Babu came with
weapons."
CRI APPEAL 736 OF 2016 & ORS..odt
29. Now let us visit the evidence of another star witness i.e. PW4 Dashrath.
He is an injured eye witness. At this juncture, we also wish to briefly
summarize the legal principles to be borne in mind while appreciating
evidence of an injured eye witness. These principles are also culled out by the
Hon'ble Apex Court in the above ruling of Balu Sudam Khalde and Another
(supra) and these could be summarized as under :
(a) The presence of an injured eye-witness at the time and place of
the occurrence cannot be doubted unless there are material
contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be
believed that an injured witness would not allow the real culprits to
escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value
and unless compelling reasons exist, their statements are not to be
discarded lightly.
(d) The evidence of injured witness cannot be doubted on account
of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the
evidence of an injured witness, then such contradiction,
exaggeration or embellishment should be discarded from the
evidence of injured, but not the whole evidence.
CRI APPEAL 736 OF 2016 & ORS..odt
(f) The broad substratum of the prosecution version must be taken
into consideration and discrepancies which normally creep due to
loss of memory with passage of time should be discarded."
In his evidence PW4 Dashrath at Exh.41, he has narrated about his affair with
deceased and on 23-12-2014 they both consuming insecticide and he
informing PW5 Dhananjay, who according to him, brought him and deceased
and admitted them in the Deep Hospital and they were treated in ICU. He
stated that fingers of both hands were tied to the bed and both his toes were
also tied. He stated that his sister PW3 Mayuri visited hospital during the
treatment and deceased Sushma was in the adjoining compartment. He stated
that Bandu and Babu, who were uncles of deceased came to Hospital, but they
went away. Then he stated that when he was resting on the bed, he heard
loud shouting and Sonu, Bandu and Babu came and they started assaulting
him. According to him, Sonu was armed with Sword whereas Bandu and
Babu were armed with Koytas and they assaulted him on head, both arms,
neck and back by these weapons. He started shouting. His sister was pushed
while she was shouting. He stated that while leaving the compartment,
accused Sonu inflicted blow of Sword on his head and thereafter they entered
compartment of Sushma. He stated that thereafter, he was only hearing loud
shouts of deceased Sushma and his sister. He stated that he was on a baniyan
and a Pant and he gave its description. According to him, clothes got blood
CRI APPEAL 736 OF 2016 & ORS..odt
stained. He stated that he new Vitthal, Bandu, Babu since childhood and he
identified them in the Court. He also identified Koytas and Sword. He stated
that he was shifted to Aurangabad, where he took treatment for 10-15 days
and thereafter taken to Krishna Hospital, Satara and then to Mumbai as his
left hand was paralyzed.
30. While under cross-examination at the hands of learned Counsel for
accused nos.1 and 2, in paragraph no.12 of cross-examination, questions are
put about incident in question. He is asked about the location of bed nos.3
and 4 and whether there was transparent glass and whether there was view of
the surroundings while in sleeping condition and to which side of the partition
was his bed. He is asked whether the assailants stood on his bed and he
answered it in negative. He denied that there was assault on him from behind
his back on head side. Omissions are brought about his fingers tied to the bed.
He is asked whether he was conscious or sleeping by closing his eyes. He has
answered that after treatment the feeling of discomfort had stopped. He
denied that Doctor has administered him sedatives for relieving pain. Again
omission is brought in his statement before Magistrate regarding appellants
visiting to the hospital and going, about PW3 Mayuri being pushed by the
appellants, about stating name of Sonu, hearing loud shouts of Sushma and
his sister and clothes on his person and description of the clothes. He
admitted that he did not give description of weapons in his statements before
CRI APPEAL 736 OF 2016 & ORS..odt
Police and Magistrate. He denied that assault was made from his north
direction. He admitted that he has not seen actual assault. He is asked about
when he gain consciousness. He answered that Police did not record his
statement in hospital, rather after four days, his statement was recorded by
Police in the hospital. He admitted that after incident till his statement being
recorded by Police, he has not shared the incident with anybody. He flatly
denied about giving false deposition.
When cross-examined by learned Counsel for accused no.3, virtually
there is no cross on actual incident in the hospital.
SUMMATION OF OCULAR EVIDENCE
31. On carefully re-appreciating, reanalyzing testimonies of PW3 Mayuri,
PW4 Dashrath and PW5 Dhananjay, it has clearly come on record that PW3
Mayuri (informant) and PW4 Dashrath (injured) were in Deep Hospital in the
evening of 23-12-2014. Occurrence has taken place between 06:00 p.m. to
6:30 p.m.. PW3 Mayuri is care taker of her injured brother PW4 Dashrath and
her evidence clearly shows about appellants coming armed, assaulting PW4
Dashrath while he was on his bed and pushing and removing PW3 Mayuri
from their way and thereafter, going towards deceased and assaulting her with
Sword and Koytas respectively. PW3 Mayuri has categorically stated who was
holding what. The manner of cross-examination and suggestions of above
three witness i.e. PW3 Mayuri, PW4 Dashrath and PW5 Dhananjay itself shows
CRI APPEAL 736 OF 2016 & ORS..odt
that there is no serious dispute about the occurrence. PW3 Mayuri and PW4
Dashrath were both knowing appellants since beginning. Therefore, ocular
account of PW3 Mayuri and PW4 Dashrath on the point of occurrence deserves
to be accepted without hesitation. Reason for admission of PW4 Dashrath and
deceased is substantiated by PW5 Dhananjay. PW3 Mayuri, being sister of
PW4 and having come to take care, is a natural witness. Therefore, their
testimonies do inspire confidence. Hence, for above reasons, there is no
hesitation to hold availability of trustworthy, direct and credible eye witness
account, which is inspiring confidence.
32. Reliance is also placed by prosecution on the testimony of PW5
Dhananjay. On going through his evidence, it is emerging that on receipt of
information from PW4 Dashrath about deceased and he consuming poison, he
went and brought them and admitted them in Deep Hospital. He has also
informed PW3 Mayuri and thereafter, she had come to Deep Hospital. His
evidence suggests that when he had been to bring clothes for PW4 Dashrath,
he learnt about some incident in the hospital from his friend and therefore, he
called up PW3 Mayuri and he claims that while talking with her, he realized
that she was shouting and weeping. Therefore, he and his companion rushed
to the hospital and they saw deceased and PW4 Dashrath being assaulted and
blood near their beds.
CRI APPEAL 736 OF 2016 & ORS..odt
Though he has also faced extensive cross-examination, in our opinion,
his testimony has not been rendered doubtful. Resultantly, his evidence lends
support to case of prosecution about PW4 Dashrath and deceased being
admitted and PW3 Mayuri to be present in the hospital for taking care of PW4
Dashrath.
Other witness like mother, being apparently hearsay information, is not
of much use, except she throwing light on the aspect of annoyance of
appellants in the backdrop of love relation between PW4 Dashrath and
deceased.
OTHER GROUNDS AND OBJECTIONS RAISED BY APPELLANTS
33. Much emphasis is lead on the testimony of PW4 Dashrath, injured on
the ground that as he was under treatment for consumption of poison, he was
under heavy medication and therefore, it is impossible for him to comprehend
the assault. That medical witness had confirmed that he was administered
injection Atropine and therefore, his evidence ought not to have been relied.
In the light of above doubt and objection on the point of fitness of PW4
Dashrath to give statement regarding occurrence, we have gone through the
evidence of PW6 Dr.Mule, who had treated both PW4 Dashrath and deceased
since their admission on complaint of consumption of poison. This witness did
state that he had administered same treatment to deceased as well as PW4
Dashrath. According to this witness, Atropine and Pan medicines were
CRI APPEAL 736 OF 2016 & ORS..odt
administered for reducing the rigors of poison. According to him, it is anti-
dote.
In cross-examination this witness has answered that both patients were
shifted to ICU. He flatly denied about any pain-killer or sedative administered
to the PW4 Dashrath and deceased. In paragraph 14 of the cross-examination,
on being confronted about intimation forwarded to Police regarding
admission Exh.50, it was conveyed that patients were not in condition to give
statement. He has also admitted that due to side effect of Atropine injection,
patient's mental condition does not remain to give statement. He answered
that effect of Atropine and Pan injections remains for 24 hours.
34. From above material, it is worth taking note that suggestion about PW4
Dashrath to be administered with sedative or pain-killer has been categorically
refuted by medical expert. Though Atropine injection is administered, it is a
mere anti-dote given to patient on consumption of insecticide. It has not been
brought from the medical expert that because of Atropine injection, PW4
Dashrath was unable to understand or give any statement. Though there is
intimation to Police vide Exh.50, it is in the backdrop of position to give
statement regarding the occurrence. There is nothing on record to show that
PW4 Dashrath was incapacitated, drowsy or not in position to comprehend the
events taking place with him. Moreover, his statement regarding occurrence is
recorded after four days wherein he has narrated entire occurrence in detail.
CRI APPEAL 736 OF 2016 & ORS..odt
Consequently, even the above submission, though sounds attractive at first
blush, we do not find any merit in the same. For above reasons, there is no
need to question the fitness of PW4 Dashrath to comprehend and reproduce
the incident which took place with him.
35. Another objection raised by learned Senior Counsel and other both
learned Counsel representing each of the accused is that, in all medical papers,
history of the incident is noted as assault by unknown persons. That such
documentary evidence also renders case of prosecution doubtful.
We refuse to entertain such objection for the simple reason that
appellants are strangers to the hospital authorities. PW6 Dr.Mule and other
two medical experts have rushed to the hospital on being intimated about the
incident and they have undertaken treatment with priority. Therefore, they
are not expected to know name or identify of the assailants. Therefore,
obviously on medical papers drawn by hospital staff, name of assailants is least
likely to be appearing, unless hospital authorities had got the said information
from relatives of the patient. Therefore, there is no force in the above
objection and we discard it from consideration.
36. Here there is also no dispute that accused no.1 - Vitthal alias Sonu
Prakash Kalwane (appellant no.1 in Criminal Appeal No.749 of 2016) and
accused no.3 - Babu Dashrath Kalwane (appellant in Criminal Appeal No.736
CRI APPEAL 736 OF 2016 & ORS..odt
of 2016) produced themselves before Police alongwith the weapons. The
Police Official, who was on duty on that day, is examined by prosecution and
he has testified to that extent. Weapons are also seized by Police. Therefore,
by taking recourse to Section 8 of the Indian Evidence Act, such evidence can
safely be applied to tie the appellants for their involvement.
CONCLUSION
37. To sum up, from above discussion, animosity has been succinctly
brought from the testimony of none other than PW3 Mayuri and PW4
Dashrath, who are party and victim to assault respectively. PW5 Dhananjay
and PW8 Gangubai, mother of injured PW4 Dashrath, are lending support
about annoyance of appellants, who are relatives of deceased. From evidence
of PW1 Somnath, PW2 Vijay and PW6 Dr.Mule, electronic evidence is
substantiating visit of accused with deadly weapons and mounting assault.
Assault on injured PW4 Dashrath is also narrated by him and PW3 Mayuri -
informant, whose presence is not rendered doubtful and she has also stuck to
her testimony throughout. Their testimonies are found to be of impeccable
character and thereby inspiring confidence. Though DW1 Siddheshwar Dilip
Gayake has been examined and an attempt has been made to show that there
were more than three persons, in our opinion, by examining this witness
assault is itself got confirmed and assured. This witness claims that he heard
shouts at 05:30 p.m but infact other witnesses and other evidence, clearly
CRI APPEAL 736 OF 2016 & ORS..odt
show that alleged incident had taken place around 06:30 p.m. to 7:00 p.m.
Even otherwise apart from PW3 Mayuri, there was other hospital staff also in
the hospital. Therefore, even if it is accepted that DW1 Siddheshwar was
present, his evidence does not render case of prosecution doubtful.
Consequently, even we are of the considered opinion that case of prosecution
deserves to be accepted as proved.
38. After going through the impugned judgment, we have come across that
each and every legal aspects is tested in the light of legal requirements.
Evidence of PW3 Mayuri and PW4 Dashrath on the point of occurrence is
correctly appreciated and rightly held to be inspiring confidence. Even
testimonies of PW1 Somnath and PW2 Vijay are rightly relied to fix identity
and responsibility. No perversity or non-appreciation of evidence is brought to
our notice so as to interfere. Resultantly, finding no merits in the appeals, we
proceed to pass following order :
ORDER
Criminal Appeal Nos.736 of 2016, 749 of 2016 and 939 of
2022 are hereby dismissed.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
SPT
