Bombay High Court
Bramha @ Bramhanand Kisan Shinde(In ... vs State Of Mah., Thr. The Officer In Charge ... on 12 March, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-NAG:2536-DB
apeal 684.19.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 684/2019
Bramha @ Bramhanand Kisan Shinde,
Aged about 25 years, Occ. Labourer,
R/o. Khorad, Tah. Kalamb, Dist. Yavatmal,
Presently in District Prison, Yavatmal.
...APPELLANT
VERSUS
The State of Maharashtra,
through the Officer in Charge,
Police Station, Kalamb,
Dist. Yavatmal.
RESPONDENT
-------------------------------------------------------------------------------------
Ms. Sonali B. Khobragade, Advocate for appellant.
Mrs. Mayuri Deshmukh, APP for respondent/State.
-------------------------------------------------------------------------------------
CORAM : NITIN B. SURYAWANSHI AND
M. W. CHANDWANI, JJ
JUDGMENT RESERVED ON : 22.01.2025
JUDGMENT PRONOUNCED ON : 12.03.2025
JUDGMENT :
(PER: NITIN B. SURYAWANSHI , J.)
Heard.
2. Appellant is convicted under Sections 302 and 201 of the
Indian Penal Code, 1860 ("IPC") and Sections 4/25 of the Indian
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Arms Act, 1959 by learned Additional Sessions Judge, Yavatmal in
Sessions Trial Case No. 48/2016 and is sentenced to suffer
imprisonment for life and to pay a fine of Rs. 5000/- By this appeal,
he challenges his conviction.
3. Prosecution story in short is that, Gopal was watchman in
the field of Uddhav Bakale, which is adjacent to the field of Gangadin
Gadai. On 05.03.2016 around 04.00 p.m., Gangadin Gadai heard
voice as 'Gangadin'. Initially, he ignored it, but later on, he again
heard the same voice, hence he went towards the voice and he saw
Gopal in injured condition, under an orange tree in his field. Blood
was oozing from his injuries, hence Gangadin got frightened and
rushed to his younger brother Vitthal who was present in the adjacent
field. Upon hearing shout of Gangadin, Vitthal came to him and
Gangadin disclosed him that somebody has injured Gopal by sharp
edged weapon and he is lying in the pool of blood under the orange
tree. Thereafter, labours in the field and Sachin son of Gangadin came
on the spot. Vitthal with Labour Fakru went to village to give
information to people. Sachin went to inform Dadarao Tekam, son-
in-law of Gopal, who was grazing cattle in the field of Bhaurao
Sonawane. On receiving information, Dadarao Tekam proceeded
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towards the spot, on the 'Dhura' of Gangadin's field, he saw Rangubai
in dead condition having bleeding injuries on her stomach and chest.
At some distance, under an orange tree, Gopal was lying in injured
condition having bleeding injuries over his stomach and near eye.
Dadarao Tekam asked Gopal as to who assaulted him. Gopal told him
that when he and Rangubai were coming to the field, suddenly, the
accused came there with a spear and assaulted him by the spear. When
Rangubai came to save him, accused also gave blows of spear on her
chest and stomach, she therefore died on the spot. When Gopal was
coming to give information to Gangadin, due to giddiness, he fell
under the orange tree. Thereafter, Gopal was taken to the
Government Hospital, Kalamb. Dadaro Tekam went to the Police
Station and lodged report against accused, which was registered at
Crime No. 94/2016 with Kalamb Police Station under Sections 302
and 307 of the IPC. During treatment, Gopal expired on 16.03.2016.
On completion of investigation, charge-sheet was filed and charge was
framed against the accused under Sections 302, 307, 201 of the IPC
and Sections 4/25 of the Arms Act. The accused pleaded not guilty.
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4. In support of its case, prosecution examined 17 witnesses.
Accused has taken defence of total denial and false implication. The
Trial Court convicted accused as above, hence the appeal.
5. Heard learned Advocate for the appellant, learned APP for
respondent/State. Perused the records.
6. Learned Advocate for the appellant assailed conviction by
submitting that the Trial Court has erred in relying on oral dying
declaration of deceased Gopal. Though Gopal was alive for 11 days
after incident, his dying declaration was not recorded in these 11 days.
There are inconsistencies in the evidence of prosecution witnesses in
respect of oral dying declaration. She submits that there is no
corroboration to the oral dying declaration, therefore the same is
unreliable. PW-1 Dadarao Tekam, PW-9 Gangadin Gadai and PW-13
Mangesh Pundlikrao Junghare are unworthy of credit and their
evidence is liable to be disbelieved. According to her, prosecution has
failed to prove its case beyond reasonable doubt and hence, the
appellant is entitled for acquittal.
7. On the other hand, learned APP submits that oral dying
declaration of Gopal is proved by PW-1 Dadarao Tekam, PW-9
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Gangadin Gadai, PW-13 Mangesh Junghare and their evidence is
corroborating each other. She submits that blood of Rangubai's blood
group 'A' was found on the weapon i.e. spear and bamboo stick which
supports case of prosecution. She supported the impugned judgment
and order of conviction by relying on decision of the Supreme Court
in case of Prakash and another Vs. State of Madhya Pradesh, (1992) 4
SCC 225.
8. Heard learned Advocate for the appellant and learned APP
for respondent/State at length. Perused the record.
9. Prosecution has proved postmortem report (Exh.84) of
Rangubai by examining PW-10 Medical Officer Dr. Narsing Rathod.
He has stated that he found following injuries on Rangubai's body:-
"(i) Incise wound of size 6 x 3 cm. over left breast,
oblique in nature.
(ii) Incise wound of size 6 x 2 cm. below left breast,
oblique in nature, 6 cm. below injury No.1.
(iii) Incise wound of size 6 x 3 cm. located over left eye
lateral upper part oblique in nature."
According to him, the cause of death is due to injury to heart and liver.
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10. PW-12 Medical Officer Dr. Vijay Kanake examined injured
Gopal on 05.03.2016 at 08.45 p.m., who was brought by his relative.
On examination, he found that central nervous system wise, he was
conscious and oriented. He found following injuries on his body:-
"(i) Incised wound over right lumber region of size 4 x
2 x 10 cm. laterally.
(ii) Incised wound over epigasteric region of size 8 x 6
cm.
(iii) Incised wound of size 2 x 1 x 3 cm. in right lumber
region just below second wound.
(iv) C.L.W. of size 1 x 1 x 1 cm. over right lumber
region just below incised wound injury no. 3.
(v) Incised wound of size 3 x 2 x 6 cm. in left flank
lateral.
(vi) Incised wound over right arm above elbow joint of
size 2.5 x 2 x 4 cm.
(vii) Left eyelid tear along-with exposer of eye ball with
mussel attached to it.
(viii) Incised wound over back in right flank of size 4 x
2 x 1 cm."
He operated Gopal for stab injury over abdomen on 06.03.2016 at
12.50 a.m. During operation, he found internal injuries i.e.
perforation of size 4 x 2 cm. over anterior wall of duodenum in its first
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part. There was complete trans section of common bile duct 2 cm.
below cystic duct. There was retro peritoneum heamatoma. There
was contusion over posterior wall of stomach. There was trans section
of right sided para spinal mussels. There was laceration of size 4 x 1
cm. with active bleeding present over right lobe of liver. There was
heamo peritoneum approximately 300 to 400 cc present. These
internal injuries were found during operation. He deposed that
patient died during treatment on 16.03.2016. Due to the injuries
sustained by patient Gopal, death might be caused. On a query being
made by Investigating Officer, he opined that the injuries caused to
Gopal were possible by weapon Ballam (head of spear).
In cross, he has admitted that he called Psychiatric opinion
during treatment, and opinion was given that patient was alcoholic
since last 12 months. He admitted that during his treatment, Police
did not come to record statement of injured ('Gopal'). He also
admitted that relatives of injured were with him.
11. PW-8 Medical Officer Dr. Sharad Vasantrao Kuchewar
performed autopsy of Gopal and issued postmortem report (Exh. 76).
The cause of death mentioned is, "septicaemic shock in operated case
of multiple stab injuries over abdomen."
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From the above evidence, it is clear that prosecution has
proved homicidal death of Rangubai and Gopal.
12. Prosecution case is based on oral dying declaration which is
proved by PW-1 Dadarao Tekam, PW-9 Gangadin Gadai, PW-13
Mangesh Junghare. While convicting the appellant, Trial Court has
relied on their evidence.
13. PW-1 Dadarao Tekam has deposed that Gopal Surpam and
Rangubai Surpam were his parent-in-laws. They were residing at
Khorad. Accused resides nearby the house of his parent-in-laws.
Gopal and Rangubai were guarding the orange orchard of the field of
Uddhao Bakale. The incident took place in the last year at the time of
'Mahashivratri' festival at about 04.00 to 04.30 p.m. That time, he
was grazing cattle in the field of Sonawane. Sachin Gadai (PW-11)
came and told him that your parent-in-laws are assaulted, therefore
you have to come. He then went to the field of Gangadin Gadai
(PW-9). On the way, he saw his mother-in-law lying dead. She was
having injuries on her stomach and chest. His father-in-law was sitting
under the orange tree in the field of Gadai, having injuries on his
stomach and eye. He asked his father-in-law who assaulted him. He
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told that son of Shinde namely Bramha assaulted him by Ballam. So,
he was going to tell Gadai, that time Gangadin Gadai, Vitthal Gadai,
Golu Junghare and Shachin Gadai were present there. Name of Golu
is Mangesh (PW-13), he made shooting of his father-in-law's talk in
mobile. Thereafter, his son-in-law Panjab Gadekar and others took his
father-in-law to the Hospital. He stayed near the dead-body of
mother-in-law. Then Police came there and he showed the spot of
incident to them. Thereafter, Police sent the dead body of Rangubai to
the Hospital at Kalamb. He also went along with them. Then he went
to lodge report (Exh.43) at Police Station.
In cross, he has stated that, "it is true that Police did not
record his statement". "It is true that villagers used to say that his
parent-in-laws were doing black magic". He admitted that on the day
of Mahashivratri, there was ritual of 'Bhagwat' in their village and
villagers attended the 'Bhagwat'. He denied the suggestion that the
appellant is not the author of crime.
14. PW-9 Gangadin Gadai is the first person who has seen
Gopal in injured condition. He deposed that the incident took place
on 05.03.2016. That day, laboures were working in his and his
brother's field and his brother Vittal, son Sachin and worker Fakru
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Nehare were also present. At about 03.00 to 04.00 p.m., when he
went to the water tank by taking his buffalo near the house in his filed,
he heard shout as 'Gangadin'. He did not pay attention to that shout.
After sometime again, he heard the shout as 'Gangadin'. He went
towards the direction of the sound. He saw someone lying under the
tree of orange in the pool of blood. He was Gopal Surpam. He got
frightened by seeing Gopal in injured and bleeding condition. So, he
ran towards his field and gave call to his brother. He told his brother
that Gopal is lying in injured condition, then they went towards
Gopal. Thereafter, his brother and Fakru Nehare went to village to
inform. He told his son Sachin to inform son-in-law of Gopal namely
Dadarao Tekam. Sachin brought Dadarao. Dadarao asked Gopal as
'Mamaji' who assaulted you. On that, Gopal told that when he and his
wife were going to the field to bring articles, his neighbour
Bramhanand came across the road. Bramhanand said to him that you
have played black magic on my father and then assaulted him by
means of Ballam. He also told that, he also gave blow of Ballam on his
stomach and eye. He further stated that when his wife Rangubai came
to rescue him, Bramhanand also gave blows on her chest and stomach,
due to which, she fell down and died. So, he called field owner
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Gangadin and while going towards him, he felt giddiness and fell
under the orange tree.
On receiving message from Vitthal, villagers came there.
They told him that Rangubai was lying in dead condition on the way.
Thereafter, Gopal was taken to the Hospital by calling a vehicle. His
statement was recorded by Police. His statement (Exh.80) in the
Court was also recorded.
In cross, omission to the effect that, "he told his son Sachin
to inform son-in-law of Gopal namely Dadarao Tekam" is brought on
record.
The fact that deceased made oral dying declaration is not
stated by this witness in his statement (Exh.80) recorded under
Section 164 of the Cr.P.C. In his evidence, he also does not say that
Mangesh Junghare (PW-13) recorded the statement of deceased on his
mobile.
15. PW-13 Mangesh Pundlikrao Junghare has recorded alleged
oral dying declaration of Gopal on cell phone. He has deposed that
incident took place on 05.03.2016. That day, at 04.00 p.m., he came
to know that someone assaulted Gopal and Rangubai and the said
incident took place on the Pandan road near the field of Gangadin
apeal 684.19.odt
Gadai. Because of that, Rangubai was dead and Gopal was injured.
When he was going towards field, Rangubai was lying in dead
condition on Pandan road. She was assaulted by sharp weapon and
blood was oozing from her injuries. Gopal was lying in injured
condition under the orange tree in Gangadin's field. He was having
injuries on eye and stomach. He took out his mobile, started video
shooting and asked Gopal who assaulted you. He told him that
Bramhanand Shinde assaulted him with sharp weapon Ballam. He
also told that Bramhanand also assaulted Rangubai with Ballam and
she is lying in dead condition on the Pandan road. Then to give call to
Gangadin, he went to the field of Gangadin and due to giddiness, fell
under the orange tree. Thereafter, they called vehicle of Sk. Mukhtar
and sent Gopal to Kalamb Hospital.
He gave memory card in his mobile to Police which was
seized under panchanama (Exh.60). He also identified memory card,
in which the video shooting was recorded. He has also identified the
video shooting of the said memory card which was played on the
computer in the Court. He deposed that the injured person in video
clip was Gopal Surpam. The voice in it was of Vittal Gadai and he
was making video shooting. His statement was recorded by Police. So
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also, his statement (Exh.107) was recorded before the Court at
Kalamb.
In cross-examination, he has stated that in the night time
wield animals come in the field so guarding persons have Ballam with
them. He admitted that old person in the video clip was saying that he
was assaulted by son of 'Chindhya'. He admitted that in the program
of Mahashivratri at noon time, accused was also present. He has given
following admissions in his cross:-
- "It is true to say that Vittal Gadai uttered that
"Shindhyachaya Porane Marle."......
- "It is true to say that in the video clip that old person
did not tell that Rangubai is lying on the road."......
- "It is true to say that in the video clip it is not stated
by him that he went to call Gangadin and fall under
the orange tree by giddiness. It is true to say that in
the said video clip the old person did not utter the
name of Bramha or Bramhanand."......
- "It is true to say that on the next day of incident
police obtained my signature on 2 to 3 blank
papers.".....
- "It is true to say that the said memory card did not
have my individual photos".....
- "It is true to say that there are many people in our
village by name Chindu or Chindhya. It is true to
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say that in the adjacent villages of our village there
are so many persons by surname Shinde.".......
- "It is true to say that Gopal and Rangubai were not
resident of our village. It is true to say that after
getting bail in one murder case they came to reside
in our village before 4 to 5 years." ......
- "It is true to say that oftenly quarrel used to take
place between Gopal and Dadarao Tekam." .......
- "It is true to say that in the programme of
Mahashivratri at noon time accused was also
present."......
- "It is true to say that before giving statement we all
made discussion at one place. It is true to say that
Gangadin Gadai and Sachin Gadai refused to give
statement as per the say of Panjab Gadekar. Witness
volunteers that they told that they will give
statement as per the incident. It is true to say that
Sachin Gadai did not give statement in the Court at
Kalamb."
16. He denied the suggestion that he gave statement in the
Court as per the say of Panjab Gadekar and Dadarao Tekam. Omission
to the effect that, "I took out my mobile, started video shooting and
asked Gopal Surpam who assaulted you," "Gopal told that, "Rangubai
is lying in dead condition on the Pandan road and I gave memory
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card to police," were brought on record in his cross. He admitted that
his voice is not there in the memory card and he did not enquire
anything to Gopal.
17. Prosecution has examined PSI Ranganath Murlidhar Jagtap
(PW-14) who was attached to Police Station Kalamb. He has stated
that on 05.03.2016 at about 06.30 p.m., one Vijay Padalkar R/o.
Khorad made phone call to their Police Station that a boy from their
village assaulted and injured Rangubai Surpam and Gopal Surpam by
means of knife, due to which, Rangubai died and they were bringing
Gopal to the Hospital. Said information was taken at Sana No.
22/2016 at Police Station. Then he along with his staff went to
Khorad. One Dadaro Tekam of Khorad took them towards the field
of Gangadin Gadai through Pandan road. On the Pandan road, near
boundary of field of Sunanda, they saw Rangubai Surpam lying in
dead condition, having bleeding injuries all over the body. One
bamboo stick having blood stains was lying at a distance of 10 ft. from
her. One pair of Chappal of Aqwalike Company having blood stains
was also lying there. He conducted spot panchanama and seized the
articles lying there and earth mixed with blood. He has also conducted
inquest panchanama (Exh.47) of Rangubai. Thereafter, they were
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taken to orange orchard of Gangadin Gadai and Dadarao showed
them the place where Gopal was lying. He also seized articles from the
said spot by panchanama Exh.65.
In cross, he admitted that Vijay Padalkar did not tell names
of Rangubai Surpam and Gopal Surpam.
18.
[ By examining PW-16 API Sangarakshak Bhagat, prosecution
has proved arrest panchanama of accused (Exh.122). He has also
proved memorandum statement of the accused (Exh.56) and recovery
of the Ballam and burnt piece of clothes of accused allegedly worn by
him at the time of incident by Panchanama (Exh.57). Investigation in
the present crime was handed over to him on 06.03.2016 by PSI
Jagtap (PW-14).
In cross, he has deposed that he does not know whether the
seized Muddemal was kept combinely or what. He denied that he had
not made attempt to record statement of Gopal Surpam.
19. PW-17 PI Baban Karale has recorded First Information
Report (Exh.44) on the basis of oral report lodged by Dadarao Tekam
(PW-1) on 05.03.2016. He registered crime No. 94/2016 and gave
investigation to API Sangarakshak Bhagat (PW-16). He took
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investigation with him on 10.03.2016 and recorded statements of
witnesses and made correspondence with Tahsildar, Hospital and
JMFC Court for recording statements of witnesses under Section 164
the Code of Criminal Procedure, 1973 ("Cr.P.C."). He has also proved
on record CA report Exhs. 135, 136, 137, 138, 139. After completion
of investigation, he has submitted charge-sheet.
In the cross, he has admitted that one unknown call about
the incident was received by Police Station. Clothes of Gopal were
not seized. He has also stated that, "it is not true to say that I have not
made attempt to record the statement of Gopal."
20. On careful scrutiny of the evidence of PW-1 Dadarao
Tekam, PW-9 Gangadin Gadai and PW-13 Mangesh Pundlikrao
Junghare, it is clear that there are material inconsistencies in their
evidence in respect of the oral dying declaration of Gopal. PW-1
Dadarao Tekam has deposed that on his asking, Gopal told that son of
Shinde namely Bramha assaulted him and Rangubai by Ballam. That
time, Gangadin Gadai, Vitthal Gadai, Golu Junghare and Sachin
Gadai were present.
21. PW-9 Gangadin Gadai has deposed that Dadarao asked
Gopal as Mamaji who assaulted you. On that Gopal told that, when
apeal 684.19.odt
he and his wife were going to the field to bring articles, his neighbour
Bramhanand came across the road. Bramhanand told him that, you
have played black magic on my father and then assaulted him by
means of Ballam. He also told that he gave blow of Ballam on his
stomach and eye. When his wife Rangubai came to rescue him,
Bramhanand also gave blow of Ballam on her chest, due to which she
fell down and died.
22. Admission given by PW-13 Mangesh Junghare in his cross-
examination that old person in the video was saying that he was
assaulted by son of 'Chindya', Vitthal Gadai uttered that
"Shindhyachaya Porane Marle", and most important admission that old
man did not utter name of 'Bramha' or 'Bramhanand' and Police
obtained his signature on 2 to 3 blank paper gives fatal blow to the
prosecution case.
He has also admitted that in the programme of
'Mahashivratri' at noon time, accused was also present. His further
admission that before giving statement in the Court, they all made
discussion at one place and Gangadin Gadai and Sachin Gadai refused
to give statement as per the say of Panjab Gadekar, further castes
doubt on the prosecution case and it appears that prosecution
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witnesses have conspired to implicate the accused in the present crime.
There is no certificate under Section 65B of the Indian Evidence Act,
1872 to the oral dying declaration recorded by Mangesh Junghare
(PW-13). Omissions in his evidence are proved on record. In view of
admission of PW-13 Mangesh Junghare that in the oral dying
declaration Gopal has not stated name of Bramhanand, and Vitthal
uttered the words "Shindhyachaya Porane Marle", it is not possible to
accept the testimony of PW-1 Dadarao Tekam and PW-9 Gangadin
Gadai that Gopal disclosed that son of Shinde namely Bramha
assaulted him and his wife by Ballam. In view of the above
discrepancies, evidence of these witnesses about oral dying declaration
cannot be relied upon.
It is clear from the evidence brought on record by the
prosecution that Gopal was admitted in Hospital on the day of
incident i.e. on 05.03.2016. He was operated 06.03.2016 at 12.50
a.m. and during treatment, he expired on 16.03.2016. So, Gopal was
alive for 11 days after the incident. It is pertinent to note that for the
reasons best known to the prosecution, his dying declaration was not
recorded during these 11 days Both the Investigating Officers (PW-14
and PW-16) have simply denied the suggestion given by defence by
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stating that, "it is not true to say that I have not made attempt to
record the statement of Gopal." This casts serious doubt on the
prosecution case.
23. It is settled legal position that oral dying declaration is a
weak type of evidence and corroboration is required to sustain
conviction on the basis of oral dying declaration.
24. Recovery of alleged weapon i.e. Ballam used in the crime is
admittedly from the open space. Therefore, merely because blood
stains of 'A' Group which is of Rangubai which were found on the
Ballam, that by itself is not sufficient to connect the appellant with the
alleged crime. Fact remains that no blood was detected on the pant of
the appellant.
25. In view of aforesaid reasons. We hold that the prosecution
has utterly failed to prove its case against the appellant, beyond
reasonable doubt. The appellant is therefore entitled for benefit of
doubt.
26. In the result, appeal is allowed. Impugned judgment and
order of conviction passed by learned Additional Sessions Judge,
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Yavatmal in Sessions Trial Case No. 48/2016, on 28.08.2018 is
hereby quashed and set aside.
27. Appellant - Bramha @ Bramhanand Kisan Shinde is
acquitted from all the charges. He be released forthwith, if not not
required in any other case.
28. The appellant to execute bail bond in terms of Section 437A
of the Cr.P.C.
( M. W. CHANDWANI, J.) (NITIN B. SURYAWANSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 13/03/2025 10:51:54
