In the cross-examination, this witness has stated that he
stated before the police that Ananda was in a sitting position and
accused Nos. 2 and 3 had caught him but it is not there in the
statement. Learned counsel Shri Ghanekar argued that it shows that
this evidence is in the nature of improvement and, therefore, cannot be considered. The analysis of the statement under Section 161 of Cr.P.C. of this witness reveals that this witness has stated that in the auto rickshaw accused Nos. 2 and 3 and two more persons were sitting and the deceased Ananda was sleeping in the auto rickshaw in injured condition. This clearly shows that this witness has stated about the presence of accused Nos. 2 and 3 and two more persons and about presence of the deceased in the injured condition in the auto rickshaw.
It is true that whatever PW 3 has stated in the evidence does not appear in verbatim in the statement before the police. Mere variation between the statement under Section 161 of Cr.P.C. and deposition before the Court in narration of the incident would not amount to contradiction.
It has been held in the case of Rammi alias Rameshwar vs. State of
Madhya Pradesh reported in 1999 Cri.L.J. 4561 thus :-
24. When eye-witness is examined at length it is
quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue
witness who is well tutored can successfully make
his testimony totally non-discrepant. 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.
But 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. {Para 41}
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 268 OF 2014
Shyamsundar Vithal Pawle Vs The State of Maharashtra
CORAM : S. V. Gangapurwala &
M.G. Sewlikar, JJ.
PRONOUNCED ON : 11th September, 2020.
JUDGMENT : ( PER M. G. SEWLIKAR, J.)
1. Criminal Appeal No. 268/2014 preferred by original
accused Nos. 1 and 3 and, Criminal Appeal No. 465/2014 preferred by
original accused No. 2, are being disposed of by common order as they
arise out of the judgment and order dated 05.04.2014, passed by the
learned Additional Sessions Judge, Kandhar, Dist. Nanded, whereby
accused Nos. 1 to 3 have been convicted of the offence punishable
under Section 364 read with Section 34 of the Indian Penal Code and
are sentenced to rigorous imprisonment for ten years and to pay fine of
Rs. 1,000/- each in default, to suffer rigorous imprisonment for six
months each and, they were also sentenced imprisonment for life and
to pay fine of Rs. 1,000/- each in default, to suffer rigorous
imprisonment for six months for offence punishable under Section 302
read with Section 34 of the Indian Penal Code. Both the sentences are
directed to run concurrently. By the said judgment, accused Nos. 1 to
3 are acquitted of the offence punishable under Section 506 read with
Section 34 of the Indian Penal Code. By the same judgment and order,
accused No. 4 has been acquitted of all the offences.
2. Facts giving rise to these appeals are that appellants 1 and
2 in Criminal Appeal No. 268/2014 original accused Nos. 1 and 2
(hereinafter referred to as accused Nos. 1 and 3) and appellant in
Criminal Appeal No. 465/2014 original accused No. 2(hereinafter
referred to as accused No. 2) and the deceased Ananda Ganpati Pawle
are the residents of village Gonar. It was the grievance of the deceased
Ananda Pawle that accused Nos. 1 to 3 used to let lose cattle of accused
No. 1 as a result of which, the cattle used to graze in the land of the
deceased. On 31.12.2010, there was an altercation between the wife of
the deceased and accused No. 1 Shyamsundar on the ground that cattle
of accused No. 1 Shyamsundar grazed in the land of the deceased. On
31.12.2010, devotional songs were being sung in the temple at Gonar.
Accused No. 1 Shyamsundar was present there. Deceased Ananda went
there and abused the accused No. 1 and kicked him on the ground of
grazing his cattle in the land of the deceased. Accused No. 1
Shyamsundar lodged First Information Report in Mukhed Police Station
on 01.01.2011 at around 1.00 pm.
3. It is further the case of the prosecution that on 01.01.2011
at about 12.30 pm, deceased Ananda was standing in Lokhande square,
Mukhed. Soon thereafter, accused No.1 Shyamsundar and accused no.
2 Madhav came there on motorcycle and started slapping him on the
ground of quarrel in the previous night on account of grazing of cattle
and made him sit on the motorcycle and took him by Kautha Road.
They took him to village Beli and at the pati (the board on which name
of the village is written) beat him. Accused No. 1 beat him by means of
katti on his both right and left elbows, right and left knees and on right
foot. Accused No. 2 delivered a blow of stick on both the knees of the
deceased Ananda and caused fracture to his legs. Accused No. 2 also
delivered a blow of stick on his left hand and caused fracture. He also
delivered a blow of stick on his head. Accused No. 3 Sharad dealt a
blow of stone on the head of the deceased Ananda and accused No. 4
beat him with kicks and fist blows.
4. It is further the case of the prosecution that one Bhimrao
Patil called up police station Mukhed at 3.30 pm and informed that the
deceased Ananda was lying near Beli pati in injured condition. Police
Inspector Kode received this call and directed PW 11 Police Naik
Pundlik Bondlewad to go to the spot of the incident and check the
authenticity of the information. When PW 11 Bondlewad went to the
spot, he did not find anyone and, therefore, he again called back Police
Inspector Kode who gave him contact number of Bhimrao Patil of
village Beli. When PW 11 Bondlewad called up Bhimrao Patil, he
(Bhimrao Patil) told him that the deceased was lying on the road to
Beli. When he went there, he found a person lying near the road in the
pool of blood. Deceased Ananda on enquiry, told him that accused Nos.
1 to 3 assaulted him by sickle, stone and stick. His both legs were
fractured. Thereafter, he took the deceased Ananda in an auto rickshaw
to Government Hospital, Mukhed, where his dying declaration was
recorded. This dying declaration was treated as First Information
Report (Exhibit 44) on the basis of which, offence under Sections 364,
307, 506 read with Section 34 of the Indian Penal Code was registered
against accused nos. 1 to 3.
5. Having regard to the critical condition of the deceased, the
Medical Officer at Mukhed advised the deceased to be taken to Nanded
for treatment. On reaching Nanded, the doctor declared him dead. The
offence was, therefore, converted into Section 302 of the Indian Penal
Code.
6. Investigation was taken up. Statements of witnesses were
recorded. After having recorded statement of witnesses, it was revealed
that the deceased had given oral dying declaration to the witnesses. PW
17 Investigation Officer Syed Saber Syed Ahmed visited the spot of the
incident and drew spot panchanama Exhibit 26. The dead body was
sent for Post Mortem. PW 9 Medical Officer Dr. Durge conducted post
mortem and prepared post mortem report Exhibit 54. Accused Nos. 1
to 3 were arrested on 05.01.2011. On 06.01.2011, accused no.1
Shyamsundar volunteered to produce katti and, accused No. 2 Madhav
volunteered to produce stick. On recovery of weapons, memorandum
and recovery panchanama Exhibits 73, 74 and 75 respectively were
prepared. Clothes of the accused were seized under seizure
panchanama Exhibit 77. It was sent to the Chemical Analyser with PW
6 Manohar Pawar for analysis. The Chemical Analyser reported that no
poison was detected and on the basis of his report the Medical Officer
(PW 9), who had reserved his opinion on the cause of death, gave the
opinion that the cause of death was head injury. After collection of
sufficient evidence, charge-sheet was laid before the learned Judicial
Magistrate First Class, Mukhed, who committed the same to the Court
of Sessions, Nanded and it was made over to the Additional Sessions Judge, Kandhar link Court Mukhed, for trial.
7. The learned Additional Sessions Judge, Kandhar, Link
Court Mukhed, framed charge against the accused vide Exhibit 13. It
was read over and explained to the accused. They pleaded not guilty to
it and claimed to be tried. Their defence is of total denial and false
implication. Accused No. 1 also took the plea of alibi. According to
accused No. 1 Shyamsundar, at the time of the incident, he was not
present at the scene of offence but was at Mukhed police station for
lodging the report against the deceased Ananda.
8. After recording evidence of 18 witnesses, the learned trial
Court recorded conviction against accused Nos. 1 to 3 - the appellants
herein and acquitted accused No. 4. This is how the appellants –
accused Nos. 1 to 3 are before this Court.
9. The State has not preferred appeal against the acquittal of
accused no. 4 Gajanan Pawle.
10. Heard Shri Govind Kulkarni, the learned counsel for the
appellants in Criminal Appeal No. 268/2014, Shri Nilesh Ghanekar, the
learned counsel for appellant in Criminal Appeal No. 465/2014 and,
Shri Nerlikar, learned APP for the State in both the appeals.
11. Learned counsel Shri Ghanekar argued that the evidence of
the prosecution is based on the dying declaration given by the deceased
and recorded by PW 11 Police Naik Bondlewad. He argued that the
dying declaration is not worth relying as the Medical Officer, who
certified the deceased to be in sound mental condition to give dying
declaration, was not examined. The prosecution has not disclosed his
name also. Therefore, the prosecution is conspicuously silent about the
mental condition of the deceased at the time of recording of dying
declaration. He argued that the dying declaration cannot be relied
upon as PW 11 Police Naik Bondlewad who recorded the dying
declaration has admitted in the cross examination that the size of the
words “'kjn ioys ;kus MksD;koj nxM ekjyk” is small as compared to the size of
other letters in the dying declaration. He argued that this clearly shows
that those words were subsequently added by PW 11 Police Naik
Bondlewad. He argued that for these reasons also, no reliance can be
placed on the dying declaration. He further argued that the
prosecution has not adduced evidence about examination of the
deceased by the Medical Officer, Mukhed, nor the Medical Officer,
Mukhed was examined by the prosecution for the reasons best known
to it. He argued that in the absence of this evidence, it is difficult to
gauge as to what was the mental and physical condition of the deceased
at the time of admission. In the absence of this evidence, it is difficult
to conclude that the deceased was in a sound mental state at the time
of giving dying declaration. He further argued that the Medical Officer
Shri Durge has stated that brain hemorrhage covered broca’s center.
Broca’s center is known as speech center. If broca’s center is hampered
sufficiently it causes aphasia and a person cannot speak. He further
stated that reference of Subarachonoid hemorrhage in clause 19(iii) of
the Post Mortem report covers both lobes of cerebral hemispheres
covering broca’s center. He submitted that in this backdrop it is difficult
to believe that the deceased was in a position to speak so as to give
dying declaration to PW 11 Police Naik Bondlewad and oral dying
declaration to the witnesses. He argued that, according to the
prosecution, the incident took place at three places. The first place of
the incident is Zanzan dhaba, the second place of the incident is
Lokhande chowk and the third place is Beli pati. The prosecution has not prepared the spot panchanama of Lokhande Chowk. He further argued that PW 14 Sambhaji Waghmare is an eye-witness. He argued that he is a chance witness as he happened to be there by chance and the evidence of chance witness has to be accepted with caution and needs to be scrutinized minutely. He submitted that the other eye
witnesses are the relatives of the deceased. Their statements are also
not consistent. PW 3 Manohar Dharasure did not mention the presence
of accused No. 1 whereas the other witnesses have mentioned his
presence. He argued that the absence of accused No. 1 from the spot of
the incident has been satisfactorily proved by the accused. He argued
that at the time of the incident, accused No. 1 was in Kandhar police
station for lodging the complaint. The incident, as per the dying
declaration, took place at 12.30 pm and the accused No. 1 was in
Kandhar police station at 1.00 pm. He argued that this clearly shows
that at the time of the incident, accused No. 1 Shyamsundar was in
Kandhar police station and, therefore, his absence at the spot of the
incident has been proved sufficiently. He further submitted that
recovery of weapons at the instance of accused No. 1 and accused No. 2
is doubtful because the accused were hand cuffed right from the time of
leaving the police station till they reported back. He argued that this
shows that at the time of recovery of the weapons, accused Nos. 1 and
2 were hand cuffed which clearly indicates that the statement was not
voluntary but was given under pressure and duress. Therefore,
recovery is not reliable. He further argued that the memorandum of
recovery of weapons from accused is not worth relying as joint
statement has been recorded by the Investigation Officer. He argued
that the law requires that two separate statements ought to have been
recorded. He argued that the recovery becomes doubtful for these
reasons also. He further argued that the dying declaration also
lacks corroboration in material particulars. According to learned
counsel Shri Ghanekar, the post mortem report shows incised wounds
on parietal region whereas the dying declaration shows that blows of
katti were given on both knees and both hands. No injury was there on
head by means of katti. Dying declaration shows that the deceased was
beaten by means to stone on head but post mortem report does not
indicate any such injury. He argued that, therefore, the dying
declaration lacks corroboration and for this reason also, no reliance can
be placed on the dying declaration. He argued that due to
subarachonoid hemorrhage the condition of the deceased was
deteriorating and, therefore, the deceased was not in a position to
speak which means, at the time of giving oral dying declaration the
deceased was not in a position to speak and, therefore, oral dying
declarations also need to be discarded. He argued that for all these
deficiencies, the prosecution has failed to prove guilt of accused beyond
reasonable doubt.
12. Learned counsel Shri Ghanekar placed reliance on the
following judgments :-
1. Arvind Vs. State of Uttar Pradesh
Reported in 2019 SCC Online All 4091
2. Nallapati Sivaih Vs. S.D.O. Guntur, A.P.
Reported in 2008 AIR(SC) 19
3. Milind Ramchandra Gharat Vs. State of Maharashtra
& another
Reported in 2015 ALL M.R. (Cri) 2377
4. Laxman Keraba Patil Vs. State of Maharashtra
Reported in 2000 ALL M.R. (Cri) 1530
5. Suresh s/o Mahadeo Deshmukh Vs. State of Maharashtra
Reported in 2018 ALL MR(Cri) 3837
6. Suresh s/o Arju Dodorkar (Sonar) Vs. State of Maharashtra
Reported in 2005 ALL M.R. (Cri) 1599
13. Shri Govind Kulkarni, learned counsel for appellants in
Criminal Appeal No. 268/2014 adopted the arguments of learned
counsel Shri Ghanekar. He further submitted that in Police Manual,
certain guidelines are issued for the police officers for recording dying
declarations. He argued that Clause (3) of Section 171 of the Manual
states that if the dying declaration is recorded by the police, it should
be, as far as possible, in question and answer form and in the very
words of the declarant. He argued that PW 11 Bondlewad did not
record the dying declaration in question and answer form and,
therefore, it is not worth accepting. Learned counsel Shri Kulkarni
further argued that the oral dying declaration is a weak type of
evidence and should not generally be accepted and conviction should
not be recorded on the basis of the oral dying declaration. He further
argued that the dying declaration also suffers from several infirmities.
The time of commencement of dying declaration and the time at which
it was completed is not recorded on the dying declaration. The Medical
Officer who endorsed on the dying declaration about the medical
fitness of the deceased has not been examined for the reasons best
known to the prosecution. Hence, the dying declaration is not
confidence inspiring and no reliance can be placed on it. He argued
that the evidence of PW 14 Sambhaji Waghmare shows that five
persons were riding on a motorcycle and it is impossible to believe that five persons can ride a motorcycle. Hence, the prosecution story is not free from doubt. He, therefore, prayed for acquittal of the appellants.
14. Shri Nerlikar, learned APP argued that the eye-witnesses
have no grudge against the accused. He argued that the accused had
motive to kill the deceased on account of the quarrel that took place in
the previous night. He submitted that the deceased had given oral
dying declaration to PW 11 Police Naik Bondlewad. The dying
declaration was recorded in the Government Hospital at Mukhed. He
argued that there is no requirement of law that before recording dying
declaration a certificate from Medical Officer is required to be obtained
about the mental condition of the deceased. He submitted that it is
sufficient if the person recording dying declaration satisfies himself
about the mental fitness of the declarant before recording the dying
declaration. In the case at hand, there is evidence to show that the
deceased was in a sound state of mind to give the dying declaration.
He was in a position to speak and the eye-witnesses have testified to
that effect. He argued that the eye-witnesses have deposed about the
deceased being in the company of all the three accused, the acquitted
accused and the deceased who was in injured condition. Their
evidence has remained unshattered. The deceased was seen last in
the company of the accused and in a span of one hour, the deceased
was found in injured condition near Beli Pati, which clearly shows that
the accused were the authors of the crime. He argued that the incident
took place at about 2.00 pm and accused No. 1 Shyamsundar was in
Mukhed police station at 1.00 pm. He argued that some of the
witnesses have stated the time of the incident to be between 2.30 pm to
3.00 pm. Therefore, it was possible for accused No. 1 to come to
Kautha, which is around 35 km from Mukhed. He argued that the
accused No. 1 had sufficient time at his disposal to come down to
Zanzan dhaba from Mukhed in a span of one hour. He argued that the
time stated by the witness cannot be calculated with mathematical
precision. He further argued that the witnesses are the rustic villagers
and they have no sense of time. Therefore, some leeway has to be
given so far as calculation of time is concerned. Learned APP argued
that the distance between Kandhar police station and Mukhed is 35 km.
Said distance can be covered by motorcycle in a span of an hour.
Therefore, the plea of alibi of accused No. 1 cannot be believed. He,
therefore, prayed for the dismissal of both the appeals.
15. Learned APP has placed reliance on following judgments :
1. State of Uttar Pradesh vs. M.K. Anthony reported in AIR 1985
Supreme Court 48
2. Mani @ Udattu Man and others vs. State reported in 2009 AIR
(SCW) 2190.
3. Jakki @ Selvaraj and another vs. State reported in 2007(2)
Crimes 151
4. Kishore Bhadke vs. State of Maharashtra reported in
2017(1) AIR Bom.R (Cri.) 501
5. Mahavir Singh vs. State of Haryana reported in
2014(4) Mh.LJ(Cri) 382.
16. Prosecution evidence is divided in three categories viz.,
1) Dying declaration recorded by PW 11 Police Naik Bondlewad.
2) Oral dying declaration given by the deceased to PW 2 Venkat
Pawle, PW 7 Nilawati Pawle - wife of the deceased and PW 13
Shantabai.
3) Witnesses who saw the deceased in injured condition with the
accused and they are also the witnesses who had last seen the deceased
in the company of the accused.
17. Shri Ghanekar placed reliance on the case of Suresh s/o
Mahadeo Deshmukh vs. State of Maharashtra reported in 2018 ALL MR
(Cri) 3837. In this case, the deceased along with his wife Maya was
residing in Murtizapur. The deceased had gone to the house of the
accused Suresh Deshmukh. Wife of the deceased learnt from her
daughter that the deceased was lying in a pool of blood. When she
went there, the accused gave her dying declaration that he was beaten
by accused. The dying declaration was held suspicious as when the
deceased was taken to the hospital he was found dead by the doctor. In
the case at hand, there is evidence of eye-witnesses and also evidence of
last seen theory. Therefore, this case is not applicable to the facts of the
instant case.
18. Dying declaration of the deceased was recorded by PW 11
Police Naik Bondlewad. So far as dying declaration is concerned, the
law is well settled that conviction can be recorded solely on dying
declaration provided it is truthful, voluntary and inspires confidence in
the mind of the Court. The dying declaration recorded under Section
32 of the Indian Evid ence Act, 1872, is an exception to the general rule
against the hearsay evidence. In the case of Sham Shankar Kankaria vs.
State of Maharashtra reported in (2006)13 SCC 165, the Honourable Supreme Court has held as under :-
“ At this juncture, it is relevant to take note of
Section 32 of the Indian Evidence Act, 1872 (in short
‘Evidence Act’) which deals with cases in which
statement of relevant fact by person who is dead or
cannot be found etc. is relevant. The general rule is
that all oral evidence must be direct viz. if it refers to
a fact which could be seen it must be the evidence of
the witness who says he saw it, if it refers to a fact
which could be heard, it must be the evidence of the
witness who say he heard it, if it refers to a fact
which could be perceived by any other sense, it must
be the evidence of the witness who says he perceived
it by that sense. similar is the case with opinion.
These aspects are elaborated in Section 60. The
eight clauses of Section 32 are exceptions to the
general rule against hearsay just stated. Clause (1)
of Section 32 makes relevant what is generally
described as dying declaration, though such an
expression has not been used in any Statute. It
essentially means statements made by person as to
the cause of his death or as to the circumstances of
the transaction resulting in his death. The grounds
of admission are: firstly, necessity for the victim being
generally the only principal eye witness to the crime,
the exclusion of the statement might deflect the ends
of justice; and secondly, the sense of impending
death, which creates a sanction equal to the
obligation of an oath. The general principle on
which this species of evidence is admitted is that they
are declarations made in extremity, when the party is
at the point of death and when every hope of his
world is gone, when every motive to falsehood is
silenced, and the mind is induced to the most
powerful considerations to speak the truth; a
situation so solemn and so lawful is considered by
the law as creating an obligation equal to that which
is imposed by a positive oath administered in a Court
of justice. ……...”
It is further held as under :
“11. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has
no power of cross-examination. Such a power is
essential for eliciting the truth as an obligation of oath
could be. This is the reason the Court also insists that
the dying declaration should be of such a nature as to
inspire full confidence of the Court in its correctness.
The Court has to be on guard that the statement of
deceased was not as a result of tutoring, or prompting
or a product of imagination. The Court must be
further satisfied that the deceased was in a fit state of
mind after a clear opportunity to observe and identify
the assailant. Once the Court is satisfied that the
declaration was true and voluntary, undoubtedly, it
can base its conviction without any further
corroboration. It cannot be laid down as an absolute
rule of law that the dying declaration cannot form the
sole basis of conviction unless it is corroborated. The
rule requiring corroboration is merely a rule of
purdence.
On these principles, it will have to be examined whether
the dying declaration recorded by PW 11 Police Naik Bondlewad meets all the requirements.
19. Before adverting to the issue whether the dying declaration
inspires confidence or not, it is worthwhile to ascertain whether the
death of the deceased was homicidal or not. The prosecution has
examined PW 9 Dr. Durge who conducted the post mortem. He found following injuries while conducting the post mortem and they are as under :-
1. subarchonoid hemorrhage all over brain surface, red in colour.
2. Intra-parenchyman brain hemorrhage over left parietal region.
3. right lung congested having contusion of 2 cm x 2 cm over
interior part of right lung, red in colour. Left lung congested.
4. Little blood in both sides of heart.
20. Medical Officer Dr. Durge has given the cause of death as
brain hemorrhage due to head injury. Looking to the nature of the
injuries, it is evident that the death of the deceased was homicidal. It is
also not the defence of the accused that death of the deceased was not
homicidal or that it was accidental.
21. Coming back to the recording of dying declaration, PW 11
Police Naik Bondlewad is the witness who first found the deceased lying
near Beli Pati. According to him, Police Inspector Kode of Mukhed
police station informed him at about 3.30 pm that the deceased was
lying at Beli Pati. When PW 11 Police Naik Bondlewad went there,
initially, he did not find the injured. Therefore, he called back Police Inspector Kode, who gave him the number of Bhimrao Patil who had
intimated the police that the deceased was lying at the spot of the
incident. Since the deceased was not found at the place where PW 11
was directed to go, he called Bhimrao Patil and, on his instructions, he
found the deceased lying at Beli Pati in a pool of blood. He asked the
deceased as to how the deceased sustained injuries. Deceased Ananda
told him that accused Nos. 1 to 3 assaulted him by a big sickle, stone
and stick. He then shifted the deceased to Government Medical
Hospital, Mukhed in auto rickshaw. He recorded statement of the
deceased in Mukhed hospital. He obtained endorsement of doctor
regarding condition of patient to give the statement. He thereafter
recorded statement of the deceased. He read over the dying
declaration to the deceased. The deceased stated it to be correct. The
deceased put his thumb impression on it. The dying declaration Exhibit
58 is is in Marathi and it is reproduced for facility of reference as
under :-
{ Vernaculars omitted}
22. This statement shows that on 01.01.2011, the deceased
was standing in Lokhande Chowk, Mukhed. At that time, accused Nos.
1 and 2 came there on motorcycle and they asked him as to why he had
picked up quarrel that night. They slapped him. Then they took him
on motorcycle and dropped him at Beli Pati. At that place, accused No.
1 beat him on both elbows and both knees and, accused No. 2 beat him
by means of stick, owing to which, he sustained bleeding injury on
head. Accused No. 3 beat him by means of a stone on his head.
23. Now, the question is whether this dying declaration inspires
confidence in the mind of the Court.
24. It was vehemently argued by learned counsel Shri
Ghanekar and Shri Kulkarni that the dying declaration does not inspire confidence as the Medical Officer, who made endorsement, has not been examined. The prosecution has not disclosed his name also. Therefore, the dying declaration cannot be relied upon.
25. Learned counsel Shri Ghanekar and Shri Kulkarni are right
in making the submission that the prosecution has not examined the
Medical Officer to prove the endorsement made by him to the effect
that the deceased was conscious at the time of giving statement. In the
cross-examination, the question put by accused to PW 11 Police Naik
Bondlewad indicates that the deceased was in a sound state of mind
and was in a position to speak. In the cross-examination, PW 11
Bondlewad has stated that he put some preliminary questions to
Ananda and he gave statement in the narrative form. This crossexamination
itself is indicative of the fact that the deceased was in a fit
state of mind to make a declaration and was also in a position to speak.
Therefore, the submission of both the learned counsel that the deceased
was not in a sound state of mind and was not in a position to speak has no force.
26. Though the deceased was in sound state of mind while
giving dying declaration, certain aspects of the matter make the dying
declaration suspicious. In the third paragraph of the dying declaration
the words “'kjn ikoys ;kus nxMkus MksD;kr ekjys” appear to have been added.
PW 11 Police Naik Bondlewad has also admitted in the crossexamination
that the size of these letters is small in comparison to the
size of the other letters in the dying declaration. Moreover, in the first
part of the dying declaration, there is no reference of accused No. 3
Sharad Pawle. In the initial part of the dying declaration, it is stated
that accused No. 1 and 2 came at Lokhande square where the deceased
was standing. However, at the end of the dying declaration, the words
“'kjn ikoys ;kus nxMkus MksD;kr ekjys” appear. It can be seen with naked eyes
that these words were added subsequently. Therefore, no implicit
reliance can be placed on the dying declaration. Therefore, the course
which needs to be adopted is to find out whether there exists
corroboration to the dying declaration.
27. As indicated above, the deceased was in a position to speak
as is evident from the cross-examination of PW 11 Police Naik
Bondlewad.
28. The oral dying declaration has been given to three
witnesses. One of them is PW 11 Police Naik Bondlewad himself. He is
the first person who saw the deceased Ananda lying near Beli Pati. So
far as oral dying declaration is concerned, the law is well settled that
conviction can be recorded solely on oral dying declaration, if it is
voluntary and inspires confidence. In the case of Milind Ramchandra
Gharat vs. State of Maharashtra and another reported in 2015 ALL M R
(Cri) 2377 it has been held that the oral dying declaration is primarily a
weak piece of evidence and, unless the Court finds that implicit reliance
can be placed on the evidence relating to oral dying declaration, no
conviction can be based on the oral dying declaration.
29. Evidence will have to be now scanned to ascertain whether
implicit reliance can be placed on the oral dying declarations. PW 11
Police Naik Bondlewad has stated that when he reached Beli Pati, he
found a person lying near the road in pool of blood. PW 11 Police Naik
Bondlewad shook that person and that person opened his eyes. He
asked that person about his place of residence and he stated it to be
Gonar and he stated his name as Ananda i.e. the deceased. The
deceased also stated to him that accused Nos. 1 to 3 assaulted him by a
sickle, stone and stick. His both legs were fractured. In the crossexamination,
the accused could not bring anything on record to
discredit the testimony of this witness. Therefore, implicit reliance can
be placed on the oral dying declaration.
30. Second witness is PW 2 Venkat Pawle. He has stated that
on learning about the quarrel between the accused and the deceased,
he went to Government Hosiptal, Mukhed along with Shivraj and Jagan
Pawle. The deceased was hospitalised and was being given treatment.
His both hands and legs were fractured and had injury on the head. He
has further stated that deceased Ananda told him that accused No. 1
Shyamsundar, accused No. 2 Madhav and accused No. 3 Sharad
assaulted him by big sickle, stick and a stone. This witness has also
been cross-examined at length but nothing could be extracted from him
so as to render his testimony untrustworthy.
31. Another witness is PW 7 Nilawati Pawle who is the wife of
the deceased. She has stated about the quarrel the deceased had with
the accused No. 1 in the temple on the ground of leaving the cattle in
her field for grazing. There was altercation between the accused No. 1 Shyamsundar and the deceased Ananda. She went to Government
hopsital, Mukhed and found her husband lying in injured condition.
She asked her husband about the injuries on the way to Nanded. He
told her that accused No. 1 assaulted him by big sickle on his hands and
legs and, accused No. 2 assaulted him by stick. He further told her that
accused No. 3 Sharad assaulted him on his head by a stone. Despite
cross examining this witness at length nothing could be extracted from
her. Testimony of this witness remained unscathed.
32. PW 13 Shantabai Bhosle is another witness to whom the
deceased had made oral dying declaration. She has stated that on the
day of the incident, accused No. 1 Shyamsundar had been to her and
she had offered tea to him but he refused saying that he would drink
tea at her home only after committing murder of the deceased Ananda.
Thereafter she learnt that the deceased was beaten by accused Nos. 1 to
3 and acquitted accused Gajanan by means of stone, stick and big
sickle. Thereafter, she, her husband and some villagers reached
Government Hospital, Mukhed and saw the deceased having suffered
multiple injuries. On enquiry, the deceased told her that accused Nos. 1
to 3 and acquitted accused Gajanan beat him by stick, stone and sickle on account of quarrel of grazing the cattle in the field of the deceased.
33. It is true that these witnesses are the related witnesses. PW
13 Shantabai is the cousin sister of deceased Ananda. PW 7 Nilawati is
the wife of the deceased. However, simply because they are related
witnesses or interested witnesses, their testimony cannot be discarded.
Their testimony needs to be scruitinised with caution and, if, their
testimony is found trustworthy and their creditworthyness is not
impeached, the same can be relied upon. In the case at hand, PW 7
Nilawati is at loggerheads with the accused as the incident occurred
because of letting lose the cattle in the field of the deceased for grazing,
which resulted in damaging the crop of the deceased and PW 7
Nilawati. Naturally, she is interested in securing the conviction of the
accused. However, as stated above, simply because she is an interested
witness, her testimony cannot be thrown overboard. On careful
scrutiny, it is seen that the credentials of this witness have not been
impeached in the cross-examination. In the cross-examination she has
stated that she talked with her husband while he was being taken to
Government Hospital, Nanded in an ambulance. Nothing has been
extracted in the cross-examination to discredit the testimony of this
witness. Therefore, her testimony is confidence inspiring.
34. Even if, the testimony of PW 7 Nilawati and PW 13
Shantabai is kept out of consideration for the sake of argument, there is
evidence of PW 2 Venkat who is related to both, the deceased and the
accused as well. Since he is related to both, he is neither interested in
the accused nor in the deceased. He has stated that accused Nos. 1 to 3
are his relatives and accused No. 4 is nephew of accused No. 1. The
deceased was his cousin brother. This fact has not been challenged in
the cross-examination, which means the accused admit that PW 2
Venkat is their relative. Thus, this clearly shows that this witness has no
axe to grind against the accused. Therefore, his testimony is confidence
inspiring and can be relied upon.
35. Thus, oral dying declaration made by the deceased to these
witnesses lends corroboration to the statement made in the dying
declaration Exhibit 58 that accused No. 3 Sharad was present at the
time of the incident and he also had assaulted the deceased. Therefore,
there is ample corroboration in the form of oral dying declaration to the
statement made in the dying declaration about involvement of all the
accused including accused No. 3 Sharad.
36. Learned counsel Shri Ghanekar has placed reliance on the
case of Arvind Bajpai vs. State of Uttar Pradesh reported in 2019 SCC
OnLine All 4091 wherein it has been held as under :-
31. As far as implication of 162(2) Cr.P.C. is
concerned, as a proposition of law, unlike the excepted
circumstances under which 161 statement could be
relied upon, as rightly contended by learned senior
counsel for the respondent, once the said statement
though recorded under Section 161 Cr.P.C. assumes the
character of dying declaration falling within the four
corners of Section 32(1) of Act, 1872, then whatever
credence would apply to a declaration governed by
Section 32(1), should automatically deemed to apply
with all force to such a statement though recorded
under Section 161 Cr.P.C. The above statement of law
would result in a position that a purported recorded
statement under Section 161 Cr.P.C. of a victim having
regard to the subsequent event of death of the person
making statement who was a victim would enable
prosecuting authority to rely upon the said statement
having regard to the nature and content of the said
statement as one of dying declaration as deeming it and
falling under Section 32(1) of Act, 1872 and thereby
commend all the credence that would be applicable to a
dying declaration recorded and claimed as such.
34. PW-6, Chandra Prakas Bhatt, deposed that on
26.05.2012, he undertook investigation, recorded
statement of Smt. Aneeta Bajpai (injured). He further
deposed in cross-examination that dying declaration
was not got recorded because she had come to her
house after getting cured from hospital. He did not
take container and Match box in his possession from
spot; she died after five days from the date of incident.
Thus, it is very clear, when Investigator recorded
statement of victim under Section 161 Cr.P.C., she was
not under the expectation of death and she remained
alive about two weeks. Evidently, dying declaration
was not recorded by Investigating Officer before two
reliable witnesses, therefore, statement under Section
161 Cr.P.C. does not fall under the category of ‘dying
declaration’ under Section 32 of Act, 1872.
This case also does not come to the aid of the appellants as
in the abovereferred case, the deceased was alive for two weeks.
However, this is the fact situation in the case at hand. The deceased
died on the way to Nanded after completion of recording of dying
declaration at Mukhed.
37. Shri Ghanekar argued that the prosecution has not
adduced any evidence to show as to when the deceased was taken to
the hospital at Mukhed. That evidence could have proved the condition
of the deceased when he was taken to the hospital at Mukhed. Since
this evidence has not been adduced by the prosecution, it cannot be
said that the deceased was in a position to speak. This submission has
no force. As stated above, cross-examination of PW 11 Police Naik
Bondlewad shows that the deceased was in a position to speak.
38. Learned counsel Shri Ghanekar argued that the medical
evidence does not support the statements made in the dying
declaration. He submitted that the deceased had stated in the dying
declaration that he had sustained injuries on both the elbows and knees
by means of katti because of blow given by accused Shyamsundar
whereas the injuries as noted by PW 9 Dr. Durge in post mortem report
indicate that the deceased had incised wound on parietal bone. He
argued that none of the injuries as stated in the dying declaration
match with the injuries noted by the Medical Officer in the post mortem
report Exhibit 54. This submission cannot be accepted. Evidence of PW
2 Venkat, PW 7 Nilawati and PW 13 Shantabai clearly indicate the
presence and involvement of all the three accused. Therefore, variance
between the injuries stated by the declarant in the dying declaration
and the injuries noted by the Medical Officer in post mortem report
does not rule out the involvement of the accused. Moreover, the
prosecution has adduced the evidence of eye witnesses also which
prove involvement of the accused beyond reasonable doubt.
39. Eye witnesses are PW 3 Manohar , PW 10 Raosaheb Kabir
and PW 14 Sambhaji Waghmare. PW 3 Manohar is a commission agent and has shop in Lokhande square at Mukhed. This witness knew the
deceased as he used to sell his crop through him(Manohar). According
to this witness, at about 2.00 pm he saw the crowd infront of his shop.
Auto rickshaw of Maroti Pawle was parked infront of his shop.
Deceased Ananda and two to three persons were sitting in the said
auto. Accused No. 2 Madhav and accused No. 3 Sharad were in the
auto rickshaw. They had caught Ananda. Clothes of Ananda were torn.
Ananda was alive but there were no movements. Ananda had injury on
his head, shoulder and his clothes were stained with blood. Accused
No. 2 Madhav and accused No. 3 Sharad wanted to hire auto of Maroti
Pawle but he refused. Both accused Nos. 2 and 3 made deceased
Ananda to sit on the motorcycle and then they went away.
40. This witness stood to all tests in cross-examination. He
stated in the cross-examination that neither he nor any other person
present there made any effort to take Ananda to dispensary.He did not
inform the incident to the family members of Ananda or to the police.
It is true that this witness did not inform the family members of the
deceased Ananda nor did he inform the police. Such conduct of this
witness is not unusual. Now a days, nobody wants to get involved in the rig marole of the legal procedure. People also do not want to get themselves entangled into the affairs of others. Therefore, simply because this witness did not inform the incident to the family members of the deceased or to the police, cannot lead to an inference that he was not present at the spot of the incident.
41. In the cross-examination, this witness has stated that he
stated before the police that Ananda was in a sitting position and
accused Nos. 2 and 3 had caught him but it is not there in the
statement. Learned counsel Shri Ghanekar argued that it shows that
this evidence is in the nature of improvement and, therefore, cannot be
considered. The analysis of the statement under Section 161 of Cr.P.C.
of this witness reveals that this witness has stated that in the auto
rickshaw accused Nos. 2 and 3 and two more persons were sitting and
the deceased Ananda was sleeping in the auto rickshaw in injured
condition. This clearly shows that this witness has stated about the
presence of accused Nos. 2 and 3 and two more persons and about
presence of the deceased in the injured condition in the auto rickshaw.
It is true that whatever PW 3 has stated in the evidence does not appear in verbatim in the statement before the police. Mere variation between the statement under Section 161 of Cr.P.C. and deposition before the Court in narration of the incident would not amount to contradiction.
It has been held in the case of Rammi alias Rameshwar vs. State of
Madhya Pradesh reported in 1999 Cri.L.J. 4561 thus :-
24. When eye-witness is examined at length it is
quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue
witness who is well tutored can successfully make
his testimony totally non-discrepant. 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.
But 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.
42. In the evidence before the Court, PW 3 Manohar has stated
that the deceased was in injured condition and was sitting in the auto
rickshaw and accused Nos. 2 and 3 had held him. Whereas, in the
statement before the police, PW 3 Manohar has stated that accused
Nos. 2 and 3 were there in the auto rickshaw and the deceased was
sleeping in the auto rickshaw in injured condition. These two
statements are not at all irreconcilable. On the contrary, they are
completely in tune with each other and, therefore, it does not amount
to contradiction at all. The submission of learned counsel, therefore,
cannot be sustained.
43. Learned counsel Shri Ghanekar argued that this witness
has proved the defence of alibi of accused No. 1 Shyamsundar. Shri
Ghanekar argued that PW 3 Manohar nowhere states that accused No. 1 Shyamsundar was there at the spot or not. Therefore, this clearly shows that accused No. 1 was not present at the scene of the offence.
We do not agree with the submission of learned counsel Shri Ghanekar.
PW 3 Manohar has nowhere stated that accused No. 1 Shyamsundar
was not present at the spot. What he has stated is that along with
deceased Ananda, there were two to three persons in the auto rickshaw.
In the cross-examination also, it was not brought on record that this
witness knew accused No. 1 Shyamsundar and despite that he did not mention his name. Therefore, his testimony nowhere suggests the absence of accused No. 1 at the spot of the incident.
44. PW 10 Raosaheb Kabir is another witness who had seen the
deceased in the company of the accused persons that too in the injured
condition. It has come in the evidence of PW 10 Raosaheb Kabir that
he had been to Mukhed for purchasing vegetables and other household
articles. He was accompanied by one Ganpati Kamble. They completed
shopping at about 2.00 pm and boarded the auto rickshaw and on their
way to Sawargaon, when the auto rickshaw came near Zanzan Dhaba,
he saw that quarrel was going on on the road. Therefore, the driver
stopped the auto rickshaw. He saw Shyamsundar (accused no. 1) and
his three colleagues assaulting Ananda. He knew the deceased as his
wife hails from Sawargaon i.e. native place of PW 10 Raosaheb Kabir.
He asked Shyamsundar as to why he was beating Ananda but accused
No. 1 did not reply. Nothing could be extracted from the testimony of
this witness. This witness shows the presence of accused No. 1
Shyamsundar and his three associates.
45. PW 14 Sambhaji Waghmare is the next eye witness. He
used to ply auto rickshaw between Gonar and Mukhed. It has come in
his evidence that on 01.01.2011, he had been to Lokhande square for
bringing passengers. His auto rickshaw had some mechanical defect
owing to which, he had parked it at Ladke garage at about 1.00 pm to
2.30 pm. The auto rickshaw of Maruti was parked in Lokhande square.
Shamsundar, Madhav and Sharad came to Lokhande square at that
time. They met Maruti and boarded his rickshaw and went away
towards village Jamb. They came back after about 30 minutes in
Lokhande square with Ananda Pawle who was in injured condition.
Maruti told them that he will not take the auto rickshaw ahead.
Shyamsundar, Madhav, Sharad and one unknown person made Ananda
sit on the motorcycle of red colour. Ananda was then taken away on
the motorcycle towards village Kawatha.
46. Learned counsel Shri Ghanekar branded this witness as a
chance witness. He argued that this witness could not account for his
presence at the spot of the incident. According to learned counsel Shri
Ghanekar, the evidence of chance witness is a weak type of evidence
and reliance cannot be placed on it. The Honourable Supreme Court, in the case of Sachchey Lal Tiwari vs. State of Uttar Pradesh reported in (2004) 11 Supreme Court Cases 410 has held as under:-
7. Coming to the plea of the accused that PW
2 was a “chance witness” who has not explained
how he happened to be at the alleged place of
occurrence it has to be noted that the said witness
was independent witness. There was not even a
suggestion to the witness that he had any
animosity towards any of the accused. In a
murder trial by describing an independent
witness as “chance witness” it cannot be implied
thereby that his evidence is suspicious and his
presence at the scene doubtful. Murders are not
committed with previous notice to witnesses –
soliciting their presence. If murder is committed
in a dwelling house, the inmates of the house are
natural witnesses. If murder is committed in a
street, only passers-by will be witnesses. Their
evidence cannot be brushed aside or viewed with
suspicion on the ground that they are mere
“chance witnesses”. The expression “chance
witness” is borrowed from countries where every
man’s home is considered his castle and everyone
must have an explanation for his presence
elsewhere or in another man’s castle. It is quite
unsuitable an expression in a country where
people are less formal and more casual, at any
rate in the matter of explaining their presence.
The courts below have scanned the evidence of
PW 2 in great detail and found it to be reliable.
We find no reason to differ.
Even if it is accepted for the sake of argument that this
witness is a chance witness, still the evidence of chance witness cannot be discarded simply he being a chance witness. If his testimony is otherwise trustworthy, the Court can place reliance on it. This witness has assigned reason for his presence at the spot of the incident. He was plying auto rickshaw and owing to a mechanical defect, he had brought his auto rickshaw to Ladke garage and had parked it infront of the said garage. Therefore, this witness has explained his presence at the spot of the incident. His testimony is trustworthy. Nothing adverse to the prosecution could be extracted from this witness.
47. Learned counsel Shri Ghanekar argued that the testimony
of this witness cannot be believed because he has stated that all the
four accused and the deceased went away from the spot of the incident
on the motorcycle. Learned counsel Shri Ghanekar argued that five
persons cannot ride a motorcycle. It is true that this witness has
admitted in the cross-examination that five persons cannot ride a
motorcycle. This submission cannot be accepted. This witness has
nowhere stated that all the five persons went away on motorcycle.
What he has stated is that accused Shyamsundar, Madhav, Sharad and one unknown person made Ananda sit on motorcycle. He has nowhere stated that all the three accused, one unknown person and deceased Ananda sat on the motorcycle and went away.
48. So far as the plea of alibi is concerned, learned counsel Shri
Ghanekar has placed reliance on evidence of PW 5 Syed Khalik Syed Ismail who is the Police Constable in police station, Kandhar. According to this witness, the accused No. 1 had come to the police station Kandhar at 12.30 pm to lodge the complaint. Learned counsel Shri Ghanekar has invited our attention to the First Information Report (Exhibit 44) to show that the time of registration of offence was 1.00 pm. Shri Ghanekar submitted that this shows that accused No. 1 was at Kandhar police station at 1.00 pm which negatives the theory of the prosecution that accused No. 1 was present at the scene of offence at 12.30 pm. He argued that, in terms of the dying declaration, the
incident took place at 12.30 pm and, at that time, accused No. 1 was in
the police station. This completely rules out the probability of accused
No. 1 being present at the scene of the offence. We do not agree with
this submission. The dying declaration shows the time of the incident
as 12.30 pm. it is pertinent to note that the deceased was injured and
might not have correctly stated the time of the incident. The witnesses
i.e. PW 2 Venkat, PW 10 Raosaheb Kabir and PW 14 Sambhaji
Waghmare, who had seen the deceased along with accused, have stated
time of the incident to be 2.00 pm to 2.30 pm. Therefore, eye-witness
account will have to be preferred as they had witnessed the incident.
Therefore, it was not impossible for the accused No. 1 to come back to
Mukhed from Kandhar as the distance between Kandhar and Mukhed
being 35 km as stated by this witness in the cross-examination.
Therefore, the plea of alibi of accused No. 1 cannot be believed.
49. Post mortem report shows that the deceased had
subarchonoid hemorrhage all over the brain. Learned counsel Shri
Kulkarni placed reliance on the case of Nallapatti Sivaih vs. S.D.O.
Guntur reported in AIR 2008 SC 19, wherein it is held as under :-
32. In the circumstances can it be said that the
victim was conscious and coherent and in a fit
condition to give the statement ? This aspect of the
matter is required to be considered in the
background of victim receiving as many as 63
injuries on his body including injuries 1 to 13 and 19
on the parietal and occipital region on account of
which the victim could have gone into coma. The
Professor of Forensic Medicine & Medical Officer
who conducted the post-mortem, examined as PW
11, is an important witness whose evidence has been
altogether ignored. He found diffused subarchanoid
haemmorrhage present all over the brain which
normally results in patient going into coma. He also
expressed his opinion that the deceased must have
died within one or two hours after receiving the
injuries. Can we ignore this vital piece of evidence ?
Do we have to accept that the victim having received
63 multiple injuries went on speaking coherently
from 6.00 p.m. onwards till 7.10 p.m., for about one
hour and ten minutes ? There is no evidence and
details of any treatment administered to the victim.
Dr. B.G. Sugunavathi, Casualty Doctor, first noticed
the victim dead at 9.30 p.m. on 05.01.1998 itself.
There is no positive evidence as to when the victim
died even though he was admitted into the hospital
with multiple injuries. These cumulative factors and
surrounding circumstances make it impossible to rely
upon the dying declarations that were recorded in
Ex.P-10 and Ex.P-8. These are the circumstances
which compel us not to ignore the evidence of P.W.
10 – Doctor and Professor of Forensic Medicine. It is
not a question of choosing between the eye-witness
account as regards the condition of the victim to
make a statement on the one hand and the evidence
of the Professor and Doctor of Forensic Medicine.
The conflict and inconsistency between the two
dying declarations and the evidence of the Forensic
Expert which remained unimpeached raises a very
great suspicion in the mind of the court.
This case has no application to the facts of the present case
as in the reported case the deceased had 63 injuries, two of them were
on parietal and occipital region on account of which, he could have
gone into coma. The Medical Officer had opined that the deceased
must have died within one or two hours after receiving the injuries.
The dying declaration was recorded by 6.00 pm onward till 7.10 pm i.e.
more than one hour. The Honourable Supreme Court, therefore, did
not place reliance on the dying declaration as the deceased could not
have been in a position to speak coherently for more than one hour in
the backdrop of so many injuries, two of them being serious.
50. This is not the fact situation in the instant case. PW 11
Police Naik Bondlewad has stated in the cross-examination that he
asked deceased preliminary questions and the deceased gave the
answers in narrative form. This clearly shows that the deceased was in a position to speak at the time of giving dying declaration. Therefore, it cannot be said that the deceased might have gone into coma because of the injuries on the parietal region. It is common knowledge that human body sometimes does not react in the manner stated in the textbook or in the manner the Medical Officer opines on the basis of his experience.
Therefore, despite having subarchonoid hemorrhage, it cannot be said
that the deceased must have gone into coma or his speech faculty in the
brain might have been damaged.
51. Now the question arises as to the theory of the prosecution
of the deceased being last seen with the accused. PW 3 Manohar, PW
10 Raosaheb Kabir and PW 14 Sambhaji Waghmare have stated that the
deceased was in the company of the accused. It is true that there is no
evidence to show as to, to which place the accused took the deceased
Ananda. PW 11 Police Naik Bondlewad found him at Beli Pati. PW 3
Manohar and PW 14 Sambhaji have stated that the accused took
deceased Ananda on motorcycle. According to this witness, the
incident took place between 2.00 pm to 2.30 pm and, after the incident
was over, the deceased was taken by these accused towards Kawatha on
motorcycle. At 3.30 pm, the deceased was found at Beli Pati. Thus,
time gap between the deceased last seen with the accused and the
deceased being found at Beli pati is small. Therefore, there was no
possibility of intervention of any third person for the commission of the
crime. Learned APP has placed reliance on the case of Mahavir Singh
vs. State of Haryana, reported in 2014(4) Mh.LJ (Cri.) 382, in which it
has been held that last seen theory comes into play only when the time
gap between the point of time when the accused and the deceased were
seen together and when the deceased was found dead is very small.
Since the gap is very small, there may not be any possibility that any
person other than the accused may be the author of the crime. In the
case at hand also, there is no possibility of any other person committing
the crime. It is also not suggested to the witness nor it is the defence of
the accused that some other person had caused the injuries to the
deceased. Therefore, the time gap between the deceased found alive
with the accused and the place where the deceased was found in
injured condition being very small, the only logical inference that can be drawn is that the accused are the authors of the crime.
52. Next question that falls for consideration is recovery of the
weapons. PW 15 Shivaji Kabir is the witness on memorandum of
recovery of weapon. Exhibit 70 is the memorandum of accused No. 2 Madhav. PW 15 Shivaji has testified that accused No. 2 Madhav gave the memorandum that he had concealed the stick in the crop of toor. Accordingly, his memorandum was recorded and as led by him, the stick was recovered from the crop of toor. Accused No. 3 Sharad gave memorandum Exhibit 71 in which, he stated that he was ready to produce the stone. He stated that he had thrown the stone in the grass near the spot. At his instance as led by him, the stone was recovered.
Exhibit 72 is the memorandum of accused No. 1 Shyamsundar. He
stated in the memorandum that he had concealed the katti and
motorcycle at his residence and as led by him, katti and motorcycle
were recovered. The time of memorandum of accused No. 1 is 12.30 pm, accused No. 2 is 12.40 pm and accused No. 3 is 12.50 pm. According to learned counsel Shri Ghanekar, joint memorandum was recorded which is impermissible. As stated above, joint memorandum was not recorded as contended by learned counsel Shri Ghanekar. Even if, it is accepted for the sake of argument that it was a joint disclosure, even then, it will not cause any dent to the case of the prosecution. In the case of Kishor vs State of Maharashtra, reported in AIR 2017 SC
279, it has been held that a joint disclosure or simultaneous disclosure
per se is not inadmissible under Section 27 of the Indian Evidence Act.
53. This witness has admitted in the cross-examination that all
the three accused were hand cuffed right from the time they were taken
out of the police station and brought back to the police station.
Learned counsel Shri Ghanekar placed reliance on the case of Suresh
s/o Mahadeo Deshmukh vs State of Maharashtra reported in 2018 ALL
MR (Cri) 3837 for the proposition that if the accused are hand cuffed at
the time of recovery of the weapon, the said recovery cannot be relied
upon as it is under duress and pressure. This witness has given a vague
admission that right from the time of leaving the police station till
returning to the police station, the accused were hand cuffed. He has
not stated that at the time of recovery, they were hand cuffed.
Therefore, a vague admission that right from leaving the police station
till coming back to the police station, the accused were hand cuffed,
does not go to show that the accused were hand cuffed at the time of
effecting recovery. Therefore, the case relied upon by the learned
counsel for the appellants is not applicable to the instant case.
54. Now the last question that needs consideration is the
motive behind commission of the crime. Motive is a state of mind and
sometimes it is difficult for the prosecution to prove the motive. It is
settled principle of law that simply because the prosecution has failed
to prove the motive will not result in throwing the case of the
prosecution overboard, if the case of the prosecution is otherwise
trustworthy. In the case at hand, PW 5 Shivaji Kabir has proved the
First Information Report lodged by the accused, PW 2 Venkat is the
witness on the quarrel which took place in the temple. He has stated
that on 31.12.2010 in the temple of Vitthal at Gonar, devotional songs
were being sung. The deceased came to the temple at 00.30 pm.
Accused No. 1 Shyamsundar was in the temple. The deceased Ananda
abused accused Shyamsundar on the ground of letting the cattle lose in
his field and altercation took place between them. First Information
Report Exhibit 44 bears testimony to this. The First Information Report
confirms that the incident happened in the temple in the night of
31.12.2020. It further shows that accused No. 1 had given a blow of
katti to deceased Ananda. Thus, the accused had the motive behind
commission of crime. Thus, prosecution has proved that accused No. 1 had the motive to eliminate the deceased.
55. Learned counsel Shri Ghanekar argued that the witnesses
have stated that Maruti was the auto driver in whose auto rickshaw
accused had taken the deceased. He was not examined by the
prosecution and, therefore, adverse inference will have to be drawn
against the prosecution. Maruti was the best witness to explain the
circumstance in which the incident took place. Since he has not been
examined, the prosecution story becomes unworthy of credit. It is true
that prosecution has not examined the witness Maruti. The record
shows that the prosecutor in the Sessions Court had filed a pursis
Exhibit 37 stating that he did not want to examine Maruti Pawle as he
was on the same point. The prosecutor ought not to have given up this
witness. It was sheer ignorance on the part of the prosecutor to give up
such an important witness. Ignorance of the prosecutor cannot enure
to the benefit of the accused. Therefore, non-examination of this
witness will have have no adverse effect on the case of the prosecution
as the prosecution has proved the incident through other witnesses.
56. Chemical Analyser’s report Exhibit 17 shows that the blood
group of the deceased was ‘B’ and blood stains of blood group ‘B’ were
found on the clothes of the accused. Learned counsel Shri Ghanker
argued that the clothes and the weapon were not sealed and, therefore,
the evidence in this regard cannot be relied upon. It is true that
panchanama does not show that the articles were sealed. However,
that will not have much effect on the case of the prosecution for the
reason that the prosecution has proved the guilt of the accused beyond
reasonable doubt through other evidence discussed above.
57. Thus, the prosecution has proved the following
circumstances :-
1. There was a quarrel in the night of 31.12.2010 in the temple of
Vitthal Rakhumai between the accused No. 1 Shyamsundar and the
deceased Ananda and, deceased Ananda had beaten accused No. 1.
2. On 01.01.2011 at 2.00 pm to 2.30 pm, PW 3 Manohar, PW 10
Raosaheb Kabir and PW 14 Sambhaji had seen the deceased in the
company of accused in injured condition.
3. The accused had taken the deceased on motorcycle towards
village Kawtha.
4. One Bhimrao Patil informed the police station Mukhed about the
deceased lying in injured condition at Beli Pati.
5. The deceased was found by PW 11 Police Naik Bondlewad at
village Beli Pati.
6. The deceased was taken to hospital.
7. The deceased made oral dying declaration to PW 11 Police Naik
Bondlewad.
8. The deceased made oral dying declaration to PW 2 Venkat, PW 7
Nilawati and PW 13 Shantabai implicating accused Nos. 1 to 3.
9. The deceased gave dying declaration Exhibit 58 to PW 11 Police
Naik Bondlewad.
58. Thus, the prosecution has successfully proved these
circumstances. Therefore, we hold that the learned trial Court did not commit any error in recording conviction against accused Nos. 1 to 3 under Section 302, 364 read with Section 34 of the Indian Penal Code. Both appeals are, therefore, devoid of any substance. Hence, they stand
dismissed.
( M. G. SEWLIKAR ) ( S. V. GANGAPURWALA )
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