Bombay High Court
Santosh Gunaji Dudhmal vs The State Of Maharashtra on 19 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26788-DB
-1- Cri.Appeal.152.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.152 OF 2019
Santosh Gunaji Dudhmal,
Age : 34 years, Occu. : Labour,
R/o. Dabhad, Tq. Ardhapur,
Dist. Jalgaon. ... Appellant.
Versus
The State of Maharashtra ... Respondent.
...
Mr. Satej S. Jadhav, Advocate for Appellant.
Mrs. Uma Bhosale, APP for Respondent - State.
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 07th DECEMBER, 2023
PRONOUNCED ON : 19th DECEMBER, 2023
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Vide instant appeal exception is taken to the Judgment
and order of conviction passed by learned Additional Sessions
Judge, Nanded dated 14.01.2019, convicting appellant Santosh for
offence punishable under section 302 of Indian Penal Code (IPC)
and sentencing him to suffer life imprisonment and to pay fine of
Rs.1,000/, in default to suffer rigorous imprisonment of one month.
2. In brief, prosecution was launched by Ardhapur Taluka
police Station, alleging civil dispute between accused Santosh and
-2- Cri.Appeal.152.2019
deceased Gunaji in the backdrop of some partition of land.
According to prosecution, incident took place on 29.04.2016, in
which present appellant allegedly assaulted deceased by means of
iron spade and wooden log. Informant reported the occurrence to
the police, who registered crime bearing no.77 of 2016, which was
investigated by PW9 PSI Avachar and PW10 API Dantulwar,
respectively and Ardhapur police challaned appellant with charge
of 302 of IPC. This was followed by trial by Learned Additional
Sessions Judge, Nanded, who, on appreciating the evidence on
record, vide judgment dated 14.01.2019 held charges proved and
passed the impugned Judgment of conviction, which is questioned
before us by way of instant appeal.
SUBMISSIONS
Appellant :
3. Learned counsel for appellant would submit that,
apparently there is no convincing evidence regarding alleged
occurrence. He pointed out that, motive attributed is some quarrel
on account of partition, but he would point out that there is no oral
and documentary evidence on this point. According to him, here,
informant himself has not supported prosecution and therefore, he
submits that, very case of prosecution was rendered weak. That,
even very wife of deceased PW5 Rukhminibai has not supported
prosecution. That, none of independent witnesses also have
-3- Cri.Appeal.152.2019
supported prosecution, i.e. PW3 Manoj. He pointed out that only
evidence of PW8 Shankar has been taken into account and relied
by learned trial Judge. However, answers given by this witness in
cross are not taken into account. Thus, it is his submission that,
there was little or weak evidence, however, learned trial Judge has
still accepted the prosecution evidence and believed the
prosecution story and in absence of cogent and reliable evidence,
guilt has been recorded. Therefore, he prays for re-appreciation
and re-analysis of evidence and to allow the appeal.
Prosecution :-
4. In answer to above, learned APP pointed out that, it is
true that, informant has resiled and was apparently won over, still
there was evidence of PW8 Shankar and which was inspiring
confidence. Evidence of informant PW1 Suresh, PW3 Manoj and
PW5 Rukhaminibai though hostile, as per settled law, it need not be
discarded in its entirety and so much part of it, which is
corroborating prosecution story can be relied and same has been
rightly applied by the learned trial Judge. Death is shown to be
homicidal one. There being direct evidence, story of prosecution is
rightly accepted by learned trial Judge and so she would submit
that, no fault can be found in the appreciation and conclusion
drawn by learned trial Court and so she prays to dismiss the
appeal.
-4- Cri.Appeal.152.2019
PROSECUTION EVIDENCE
5. In the light of above submissions, we wish to define the
status and role of prosecution witnesses :-
PW1 Suresh is the informant. His testimony is at Exh.12.
He has not supported prosecution.
PW2 Dnyaneshwar is pancha to spot panchanama, at
Exh.17.
PW3 Manoj is immediate neighbour, also did not support the
prosecution.
PW4 Gajanan is the carrier, who carried seized Muddemal
to the Analyzer.
PW5 Rukhaminibai is a wife of deceased Gunaji, but she has
not supported prosecution.
PW6 Dr. Ranjana Deshmukh is the autopsy doctor, who
conducted postmortem and issued report (Exh.30).
PW7 Satish Gaikwad is Police Inspector, who registered
crime bearing no.77 of 2016.
PW8 Shankar is an independent witness. His statement is
at Exh.45.
PW9 PSI Avachar and PW10 API Dantulwar, respectively
are the Investigating Officers.
6. There being charge of homicide, we wish ourselves also
to get assured that death of Gunaji is proved to be homicidal one.
The best witness and evidence on such issue can undoubtedly be
autopsy surgeon (PW6 Dr. Ranjana Deshmukh) and she is
-5- Cri.Appeal.152.2019
examined at Exh.29. Dr. Ranjana claims to have conducted PM on
dead body of deceased on 30.04.2016 and she has reproduced
following external injuries noticed by her.
1. CLW on forehead 8 x 2 cm.
2. Fracture frontal bone with parietal region.
3. Fracture both orbit.
4. Fracture nasal bone.
5. Fracture maxilla on right side.
6. Fracture mandible.
7. CLW right angle of mouth 3 x 2 cm.
All these injuries as above were ante-mortem.
According to her, on internal examination, she noticed
following injuries :-
"Fracture frontal bone and parital bone vault brain
tissue was crushed, Cerebrum frontal region also
crushed."
She further deposed that, injuries spelt out in column
no. 17 are possible by use of wooden log. According to her, injuries
noted therein are sufficient in the ordinary course of nature to
cause death and she also confirmed potential of wooden log to
inflict such nature of injuries.
7. In cross, she has answered that there were no injuries
to ribs and cartilages and further admitted that, crush injury is
-6- Cri.Appeal.152.2019
sufficient to cause of death. She is unable to state age of the
injuries. She is also unable to state exact time that after sustaining
these injuries the molecular death has been caused.
On analyzing of medical expert's evidence, taking into
account the nature of injuries, its size, its location and medical
opinion that, injuries are sufficient in the ordinary course of
nature, there is no hesitation to hold that Gunaji made homicidal
death. In fact, there is no effective cross on the mode and the
nature of death or to disbelieve the opinion issued by doctor.
Resultantly, death is shown to be homicidal one.
8. Now, let us ascertain whether as claimed by
prosecution, appellant herein is responsible for the homicidal
death.
As pointed out, here, out of 10 witnesses, PW1 Suresh
informant, PW5 Rukhaminibai wife, PW3 Manoj neighbour and an
acquaintance have retracted and resiled from their earlier version.
Therefore, case of prosecution merely hinges on testimony of PW8
Shankar and therefore, we propose to re-appreciate his evidence
which is at Exh.45.
9. This witness namely, Shankar (PW8) claims that on
-7- Cri.Appeal.152.2019
30.04.2016, while he was returning from answering call of nature
at 6:30 a.m., he heard shouts raised by one Suresh requesting this
witness to catch a person and accordingly he caught him near the
canal and that person told him that, his father has destroyed his
life and he deliberately killed his father and he also going to the
police station and therefore, this witness left him loose and went
for his work. He further stated that, the person to whom he caught
was Santosh i.e. appellant. He stated that, he can identify the
accused. [As the accused was not produced in the court that day, it
seems that, photo of the arrested accused was confronted to him
and he identified the person caught by him accordingly.]
10. We have visited his cross, wherein he has admitted
that, he is illiterate. That, the distance between field of Jadhav and
that of Dudhmal is one kilometer. He merely answered that, prior
to the incident, he had not previously seen Santosh (Appellant),
but he does not specifically state that, he is not knowing him. Then,
he is questioned where he used to go to answer call of nature i.e.
whether he used to go to the field of Jadhav and not towards the
canal. He admitted that, he does know anything about the alleged
incidence. He flatly denied that, Suresh did not give him a call,
asking him to catch a person. There is omission regrading the
word "Mama". He admitted that, the person, to whom he caught did
not tell anything. Rest is all denial.
-8- Cri.Appeal.152.2019
11. Now, let us visit evidence of another witness i.e. very
informant (PW1 Suresh), who has unfortunately retracted from
earlier version as he deposed that, his field is situated at Bamni.
There is field of Gunaji adjoining to his field. He denied that, Gunaji
used to come to sleep in his field. However, he deposed that, Gunaji
was having two sons namely, Santosh and Murli. He also deposed
that, incident took place prior to two years. Thereafter, he has
denied by stating that, it did not happen on 29.04.2016 at about
10:00 p.m., while he was in his Akhada for sleeping and deceased
had come and informed him regarding quarrel which took place
between Gunaji and his son and therefore, had requested this
witness whether he can sleep in his Akhada. He deposed that, he
does not know whether Gunaji slept in his Akhada and his son
killed him at about 5:45 a.m. Taking his such evidence into witness
box into consideration, learned APP after seeking permission of the
learned trial Judge cross examined his own witness, which
commenced from paragraph no.2.
12. While under cross he answered that, he is studied upto
9th standard. He identified his signature over the report, which was
marked at Exh.13. He also admitted that, on 30.04.2016, he had
been to Ardhapur police station. Thereafter, he has started resiling
-9- Cri.Appeal.152.2019
by denying that, he narrated the incident to police. He answered
that, he does not know whether Gunaij came to his field for
sleeping, saying that, there was quarrel in his own house with his
son and therefore, came to sleep and this witness allowed him to
sleep. He answered that, he does not know whether on 30.04.2016
around 5:30 a.m. deceased and he himself woke up and deceased
went to answer call of nature and he himself went to milk the
buffalo and around 5:45 a.m., when deceased came towards the
Akhada, at that time, appellant came, pelted stone on the back side
of his father, but the stone landed on the buffalo and appellant
picked up spade to beat Gunaji, so he intervened and appellant
pushed him questioning his indulgence and appellant again picking
up sharp wood of neem and assaulted Gunaij, who pleaded to save
and hearing such shouts, neighbours came. He also denied knowing
persons gathering there and he making called to brother Ligoji and
persons making phone call to police. However, he admitted that,
he went to police station, but denied giving anything in writing,
rather, only causing signature. Though there are denial in
paragraph nos. 3 and 4 of cross, he has admitted in paragraph no.
5 that, his statement was recorded under section 164 of Cr.P.C.
which he identified to be at Exh.14 and his signature over it. He
also admitted that, as per his narration, his statement was
recorded by learned JMFC. He admitted accompanying police to
-10- Cri.Appeal.152.2019
the spot and in his presence a spade, a neem wood, earth with and
without blood being collected and photos of the spot being drawn.
Again in cross, he has supported the defence that, there was
discussion in the village and therefore, Sarpanch and police patil
informed occurrence to the police, who came to spot and that police
asked him to come to police station and so accordingly, he went
there and caused signature on the request of police. He admitted
and answered that, some people were talking about implication of
accused and that before his statement to JMFC, he was called at
police station and due to pressure of police, he gave statement
before the court and that he is unaware about the contents of the
report.
13. Another witness PW5 Rukhaminibai, who has not
supported the prosecution is wife of deceased. According to her,
there was partition of agricultural land. That, after partition, there
was no protest by accused son. She denied knowing how her
husband died and that her appellant son killed her husband.
On being cross examined by learned APP, she admitted
regarding her statement recorded by police on 30.04.2016, but she
denied stating portion mark "A'' stated to police. Rest is all denial.
-11- Cri.Appeal.152.2019
14. Therefore, as pointed out by learned APP, though PW1
Suresh and PW5 Rukhaminibai have been declared hostile for not
supporting prosecution, their evidence thus carry information
about occurrence dated 30.04.2016 in the vicinity of field of PW1
Suresh informant. His cross clearly suggests that, he has informed
police regarding whatever he saw at 5:45 a.m, when deceased, who
spent night in his field and returned after answering call of nature.
Paragraph no.1 of his chief shows that, incident had taken place
two years back. He has admitted that, he approached Ardhapur
police station on 30.04.2016. He has also identified his signature
over report (Exh.13). Though, thereafter he has resiled in
paragraph no.5 of his cross and has admitted regarding giving
statement under section 164 of Cr.P.C. to the JMFC, which was
duly noted on his narration and his signature to be over it i.e.
Exh.14 and thereafter, also accompanying police to the spot and in
his presence Articles being seized.
15. Therefore, in our view, so much part of his evidence
which confirms occurrence, can definitely be taken into account.
Though, PW5 Rukhaminibai wife of deceased and mother of
accused has not supported prosecution, she admitted that, her
statement was recorded by police on 30.04.2016.
-12- Cri.Appeal.152.2019
16. Consequently, here, entire evidence of PW1 Suresh
informant need not be discarded. Law is loud and clear that even if
witness has resiled so much part of his evidence which supports
prosecution version can definitely be taken into account, i.e. such
part of his evidence supports prosecution. Law to that extent is
dealt in following landmark cases :-
1] Ravasaheb v. State of Karnataka, (2023) 5 SCC 391;
2] Gudu Ram v. State of H.P., (2013) 11 SCC 546;
3] Bhagwan Singh v. State of Haryana ; (1976) 1 SCC 389
17. Therefore, appellant has been spotted by PW8 Shankar
in the vicinity of scene of occurrence. He has apprehended accused
on the request of Suresh. Though appellant not being produced
before the court, PW8 Shankar has identified him in the witness
box on the basis of photograph. There is no illegality in such
identification and the said mode of identification has not been
objected to by accused.
18. Therefore, part evidence of informant and evidence of
PW8 Shankar, which clearly established involvement of appellant,
and definitely be put to use to reach the conclusion. PW9 PSI
Avachar and PW10 API Dantulwar, who are investigating officers,
they have deposed about all steps taken by them after receipt of
-13- Cri.Appeal.152.2019
report from PW1 Suresh. They have deposed about whatever was
narrated by PW1 Suesh, PW5 Rukhaminibai and PW3 Manoj and
their versions to that extent have been marked and exhibited.
19. Though before us attempt has been made that there is
no distinct evidence about motive of partition and very wife of
deceased, who is mother of appellant has not supported, above
discussed material can definitely be taken into account. Reason for
her subsequent hostility is obvious as she had lost husband, might
not be willing to loose son. PW8 Shankar is an independent witness.
His evidence has not been dislodged or rendered doubtful. Medical
evidence confirms death of Gunaji homicidal one. There is seizure
of one Neem wooden log with blood stains, simple and blood mixed
soil and one iron spade with blood stains and the blood stained
clothes of the deceased and the accused. Reports are placed on
record.
20. We have gone through the judgment under challenge.
In our opinion, learned trial Judge has correctly appreciated the
evidence, more particularly, that of PW1 Suresh and PW8 Shankar
and has rightly applied law in spite of resiling and turning hostile.
That much part of their testimony which was supporting
prosecution has been taken into account while arriving to the
-14- Cri.Appeal.152.2019
conclusions. There cannot be any perversity or illegality in
appreciation of evidence of witness, like informant. Consequently,
finding no merits in the appeal, we proceed to pass following
order :-
ORDER
The criminal appeal stands dismissed.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
Signed by: Manoj Tandale
Designation: PA To Honourable Judge
Date: 20/12/2023 10:46:50
