Shankar Kondiba Chavan vs The State Of Maharashtra And ...
2023 Latest Caselaw 6357 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                          CRIMINAL APPEAL NO.455 OF 2022


                        Shankar Kondiba Chavan,
                        Age 31 yrs., Occ. Agri.,
                        R/o Laxmipur, Tq. Wadwani,
                        Dist. Beed.

                                                                ... Appellant

                                      ... Versus ...

               1        The State of Maharashtra

               2        Sukhdeo @ Balu Prabhakar Thorat,
                        Age 30 yrs., Occ. Agri.,
                        R/o Kanhapur, Tq. Wadwani,
                        Dist. Beed.

                                                                ... Respondents

                                           ...
                         Mr. P.A. Bharat, Advocate for appellant
                       Mr. S.J. Salgare, APP for respondent No.1
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI
                                                 S.G. CHAPALGAONKAR, JJ.
                                    RESERVED ON :               27th JUNE, 2023
                                    PRONOUNCED ON :             05th JULY, 2023


ORDER :

1 Present appeal has been filed by the original informant under

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Section 372 of the Code of Criminal Procedure and under Section 378(4) of

the Code of Criminal Procedure to challenge the acquittal of respondent No.2

- original accused by learned Special Judge under the Atrocities

Act/Additional Sessions Judge, Majalgaon, Dist. Beed on 30.12.2021 in

Atrocity Special Case No.10/2018. Before we proceed, we would like to say

that the Sections appears to have been wrongly mentioned under which the

appeal has been preferred. There is a specific provision under the Atrocities

Act i.e. Section 14-A which provides for filing of appeal to challenge any

order, judgment passed under the said Act. Therefore, the present appeal

ought to have been filed under the said Section. Mentioning of wrong

Section does not affect the right of the appellant and, therefore, the appeal is

considered under the said provisions.

2 Heard learned Advocate Mr. P.A. Bharat for appellant and learned

APP Mr. S.J. Salgare for respondent No.1, at the stage of admission and

perused the evidence which was before the learned Trial Judge.

3 The prosecution story, in short, is that the informant Shankar

Kondiba Chavan is the brother of deceased Shahadeo. Informant lodged First

Information Report with Wadwani Police Station stating that around 9.00

a.m. of 20.07.2018 he had received phone call from one Rama Tangde of

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Kanhapur informing that somebody has assaulted Shahadeo and he is lying

near the bridge. Therefore, Shankar went to the said bridge and saw his

brother. He asked his brother as to what has happened, then, Shahadeo told

him that he was beaten by Balu Prabhakar Thorat i.e. original accused, who

hails from their village, around 9.30 p.m. on 19.07.2018 on the said bridge

as he had refused to give money to accused for drinking liquor. It was told

that the accused has assaulted him by means of stone on his chest and head.

Shahadeo was lying at the said spot whole night. Informant thereafter called

his brother-in-law and they took Shahadeo to Government Hospital,

Wadwani. After examining him Doctor told that he should be taken to

Government Hospital, Beed. Accordingly, they had taken at that hospital,

where Shahadeo was admitted in ICU. However, around 11.15 p.m. on

20.07.2018 Doctor declared him dead.

4 On the basis of said First Information Report offence vide Crime

No.138/2018 came to be registered under Section 302 of the Indian Penal

Code and under Section 3(2)(v) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act.

5 During the course of the investigation statements of witnesses

were recorded, panchnama of the spot was done, after drawing inquest

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panchnama the dead body was sent for postmortem, certain articles were

seized and were sent for chemical analysis, accused came to be arrested and

after the completion of the investigation charge sheet was filed before the

learned Special Judge.

6 Charge was framed and trial was conducted. Prosecution has

examined in all 11 witnesses to bring home the guilt of the accused and after

considering the evidence on record and hearing both sides the learned Trial

Judge has acquitted the accused. Hence, the present appeal by original

informant.

7 The tenor of the submissions on behalf of appellant is that the

learned Trial Judge has not appreciated the evidence properly. The oral

Dying Declaration was given by Shahadeo to PW 1 Shankar, PW 2 Shantabai

- mother of the deceased, PW 4 Sanjay Shankar Dongre - brother-in-law of

deceased, PW 5 Arjun Kale, in whose Indica car Shahadeo was taken to

hospital and PW 6 Murli Chavan. These oral Dying Declarations have been

discarded on the ground that those are the weak kind of evidence. Testimony

of PW 10 Dr. Abhinav Jadhav, who conducted the autopsy, would show that

deceased Shahadeo had sustained about 12 external injuries and the

probable cause of death is given as - "due to to hemorrhagic shock and due to

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injuries to vital organ". Re-appreciation of the evidence is required taking

into consideration the fact that many witnesses have supported the

prosecution story.

8 At the outset, from the impugned judgment it appears that the

learned Trial Judge has partly accepted that the death of Shahadeo is

homicidal in nature. Though there are certain admissions given by PW 10,

the autopsy Doctor; yet, contrary facts have not come on record that those

injuries are possible due to fall. The other factors have been taken into

consideration by the learned Trial Judge to cast shadow of doubt over the

evidence, but we are of the opinion that unless there is positive evidence to

confront the medical opinion, a contrary view should not be taken.

Therefore, even if we accept that death of Shahadeo is homicidal in nature, it

is required to be seen as to whether the accused is author of the crime.

9 Perusal of the evidence of PW 1 Shankar would show that he

came to know about the fact that his brother has sustained injuries in assault

and was lying near the bridge around 9.00 a.m. on 20.07.2018. He was so

told by one Rama Tangde. Interestingly, said Rama Tangde has not been

examined. However, PW 6 Murli Chavan has been examined, who says that

around 7.30 a.m. on 20.07.2018 when he was proceeding for answering

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nature's call, Rama Tangde was ahead of him, they found Shahadeo near the

well of one Jairam Chormale. At that time, Murli and Rama asked him, as to

what has happened, at that time, Shahadeo told them that they should give a

call to his brother. Shahadeo had not told as to who had assaulted him, but

Murli says that Rama gave phone call to Shahadeo's brother and then

Shahadeo came to the spot by Indica car and thereafter PW 6 Murli went

from the spot. If we consider the testimony of PW 6 Murli, then, around 7.30

a.m. even Rama had met Shahadeo and on his request Rama had given

phone call to Shankar, still PW 1 Shankar says that he received phone call of

Rama around 9.00 a.m. This witness has not been considered as a hostile

witness and, therefore, the huge time gap creates doubt over the testimony of

PW 1 Shankar. PW 4 Sanjay says that he received phone call from PW 1

Shankar at about 9.00 a.m. on 21.07.2018. It appears that there is

typographical mistake in taking date. That date should have been

20.07.2018 and not 21.07.2018. Therefore, he is also not corroborated by

PW 6 Murli.

10 PW 2 Shantabai says that around 9.30 a.m. when she was at

home, Shankar brought Shahadeo in car. That means, she is also not

supporting PW 6 Murli that Shankar had gone after 7.30 a.m. to the spot and

had brought Shahadeo.

                                        7                               Cri.Appeal_455_2022



11              PW 1 Shankar, PW 2 Shantabai and PW 4 Sanjay all have stated

that deceased disclosed them that incident had taken place at 9.30 p.m. on

19.07.2018. He was assaulted by accused on the count that he had not given

amount to him for drinking liquor. The assault was by stone on the chest and

head. The testimony of PW 1 Shankar and PW 4 Sanjay would show the

contrary fact that PW 1 had stated that Shahadeo was near the bridge

whereas PW 4 says that Shahadeo was adjacent to the well from the field of

one Jairam Chormale. What was the distance between the bridge and the

well has not been brought on record. The well cannot be on the bridge. The

testimony of these three witnesses depicts that at different place and time

Shahadeo alleged to have given to them the oral Dying Declaration. The

position of law is very clear that the oral Dying Declaration is a very weak

kind of evidence unless it inspires confidence. There cannot be a conviction

based on the oral Dying Declaration. The learned Trial Judge has discarded

these oral Dying Declarations on two main grounds; 1) there was ample

opportunity to the police to take the oral Dying Declaration of the deceased

but no such attempt was made, 2) the spot is surrounded by the houses and

the traffic and to and fro of people is experienced late night also and since

early morning; yet, no independent witness has been examined to show that

immediate help was given to Shahadeo. The said finding is definitely

supported by the testimony of PW 6 Murli as he had stated that he saw

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Shahadeo at 7.30 a.m. itself and on the request of Shahadeo, Rama had given

phone call to PW 1 Shankar immediately and then Shankar had come, but

then Shankar says that, that phone call was received by him at 9.00 a.m. The

oral Dying Declarations have been rightly discarded and, therefore, the other

evidence in the nature of spot panchnama, inquest panchnama assumes no

importance. There is absolutely no explanation by the prosecution as to why

no attempt was made to record the Dying Declaration of Shahadeo.

Interesting point to be noted is that as per the testimony of PW 4 Sanjay,

when Shahadeo was taken to his house, he had taken tea and biscuits. PW 1

Shankar and PW 4 Sanjay have stated that police had come to Government

Hospital, Wadwani but then question arises, as to why there was no attempt

to record his Dying Declaration at that moment. The Medical Officer from

Government Hospital, Wadwani has not been examined. What was the

history that was taken down with the said hospital was also important.

Therefore, taking into consideration the evidence, we do not find there is any

illegality or perversity when the respondent No.2 - accused stood acquitted.

No interference is required. Criminal Appeal stands rejected.

(S.G. CHAPALGAONKAR, J.) ( SMT. VIBHA KANKANWADI, J. )

agd