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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 336 of 2004.
1. Shivaji Shrimant Mandale,
age 26 years, residing at
G.No.2 Malinagar Tal.Malshiras,
District Sholapur.
2. Ramchandra @ Dada Sukhadev Jadhav,
age 33 years, resident of Mhalung,
Tal. Malshiras.
3. Pandurang Sukhdev Jadhav,
age 22 years, Residing at Pirachi
Kuroli, Tal. Pandharpur.
All at present in Yeroda Central Prison,Pune.
.. APPELLANTS/ORI.
ACCUSED NOS. 1 TO 3.
Versus.
The State of Maharashtra .. RESPONDENT.
Mr P.R. Arjunwadkar, Advocate for the Appellants.
Mrs A. S. Pai, Additional Public Prosecutor for the State.
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CORAM : D.D. SINHA & A.R. JOSHI, JJ.
RESERVED FOR JUDGMENT ON :- 28 th June, 2011.
DATE OF PRONOUNCING JUDGMENT:- 3 rd August,2011.
JUDGMENT (Per A.R.Joshi,J)
1. Present appellants original accused Nos. 1 to 3
preferred the present appeal challenging the judgment and
order of conviction dated 28th October, 2003 passed by 4th
Additional Sessions Judge, Pandharpur, District Sholapur. By
the impugned judgment and order passed in Sessions case
No. 97 of 2002 the appellants – accused Nos. 1 to 3 were
convicted for the offence punishable under Sections 302, 307,
323, read with section 34 of I.P.C. In the serious offence of
302 of I.P.C. each appellant – accused was sentenced to suffer
life imprisonment and to pay fine of Rs.500/- each, in default
to suffer rigorous imprisonment (R.I.) for one month each. For
the offence under Section 307 of I.P.C. each appellant accused
was sentenced to suffer R.I.for seven years each and to pay
fine of Rs.1000/- each, in default further R.I. for two months
each, for the offence under Section 323 of I.P.C. each
appellant accused was sentenced to pay fine of Rs.500/- each,
in default to suffer S.I.for 15 days each. Substantive
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sentences were directed to run concurrently. Set off was
given to all the accused for the period they were in custody.
Admittedly, since arrest till today, the appellants accused are
in custody.
2. In order to appreciate the rival arguments, the case of
the prosecution can be narrated as under:-
3. One Smt. Manisha (PW 5) and one Uttam Jadhav (since
deceased victim) were residing together as husband and wife
along with minor girl by name Ashwini, daughter of Smt.
Manisha from her earlier marriage. They were staying
together at Pirachi Kuroli, Taluka Pandharpur, since about six
months prior to the fateful incident which occurred on 17th
July, 2002.
4. Smt Manisha and Uttam were staying as husband and
wife, she was earlier married to one Rama Fadtare and had
two sons and three daughters including the daughter
Ku.Ashwini. Said Rama was addicted to drinking liquor and
smoking Ganja and was habitually beating Smt Manisha and
as such she had left him and initially went to her parents
place at Patkal. Smt Manisha was staying with Rama along
with their children initially at village Marwade and thereafter
at village Pulunj, Taluka Pandharpur. At Pulunj, for the first
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time, Smt Manisha came in contact with deceased Uttam
Jadhav, and it developed into the relationship and they started
staying as husband and wife.
5. Said Uttam Jadhav was earlier married with one Mangal
and had three children out of said wedlock. However, due to
family dispute, said Mangal was not cohabiting with him and
she had left her matrimonial home and went to her brother
Shivaji Mandale at Akluj.
ig Said Shivaji Mandale is present
appellant – accused No.1. As such though Uttam Jadhav and
Smt. Manisha were earlier married with their respective
spouses, they came together and started staying as husband
and wife at Pirachi Kuroli along with daughter Ashwini, who
was then about 9-10 years of age.
6. On the fateful day i.e. 17th July, 2002, in the afternoon,
Ku.Ashwini had gone for grazing she-buffalo in the field. At
about 4:00 p.m. she came back with buffalo and told her
mother that accused Nos. 2 and 3 and one Khandu had
abused and threatened her on account of allowing she-buffalo
to graze in their agriculture field. On such complaint made by
Ashwini, Manisha and Uttam went to the residence of Khandu
Jadhav and the accused persons were accosted by Uttam
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regarding the abuse and threat given to Ashwini. That time
there was a sort of altercation and Uttam was threatened by
the accused Nos. 2, 3 and their associate one Khandu of dire
consequences, including the threat of amputing his hands
and legs. According to Smt. Manisha, one Sugriv Sonvale and
Vikas Sonvale intercepted and pacified the situation.
7. After the said incident, on the same night i.e. on 17th
July, 2002, deceased Uttam PW-5 Manisha and PW-6 Ashwini
were sitting inig the court yard of their house after taking
meals. That time, the appellants – all the three accused, came
to the spot and started abusing deceased Uttam. They
started the quarrel, alleging that why deceased Uttam had
contracted second marriage with Smt Manisha and why he
had abandoned his wife Mangal. Another cause for said
quarrel was the incident of buffalo grazing in the field of
accused Nos. 2 and 3. During the incident there was assault
on Uttam and also on PW-5, Manisha. An iron rod, sticks and
axe were used as weapons of assault by the appellants-
accused and also one co-accused Khandu. Said Khandu was
then minor, who was tried separately by the Juvenile Court.
Whereas, the present appellants were separately tried. Due to
the assault, Uttam and Smt.Manisha received severe bleeding
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injuries on their limbs and other parts of the body, including
head. Minor girl – Ashwini was also assaulted. After the
assault, the appellants – accused ran away from the spot.
According to PW-5 Sugriv Sonavale and Vikas Sonavale had
witnessed the incident and they tried to rescue Uttam and
Smt Manisha from the appellants. One Pandurang Jadhav
(cousin brother of Uttam) arrived on the spot along with the
police and injured were removed to Cottage Hospital,
Pandharpur for immediate medical help.
8. On the relevant night, there was a police Bandobast due
to the procession of Tukaram Maharaj Palkhi. As such, police
personnel for the said Bandobast arrived on the spot and after
receiving the intimation that the injured were lying at the
spot due to the assault, A.P.I. Galande informed P.S.I.Shinde
(PW 15) regarding the said injured persons and as such P.S.I.
Shinde along with police staff went to the spot. P.S.I. Shinde
also went to the spot along with A.P.I.Galande and one
Prabhakar Kale (PW-12), a local Talathi of village. On
reaching the spot, the police party noticed Uttam and
Smt.Manisha lying in severely injured condition in front of
their house. They were taken to Pandharpur Cottage
Hospital. Enquiry was made with injured Uttam. That time
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Pandurang Jadhav (PW-9) – cousin brother of Uttam, was also
present. Uttam disclosed the names of the appellants-
accused as his assailants to police persons and said
Pandurang Jadhav. Uttam also disclosed the reason for the
assault.
9. While under treatment at Cottage Hospital, Pandharpur
Smt. Manisha gave her statement at about 2:30 a.m. in which
she disclosed the incident as she happened to be the eye-
witness and also sustained severe injuries, causing fracture of
her limbs. In her statement, she also disclosed cause for
which the assault was committed and also disclosed the
names of the appellants-accused and the role played by each
of them as well as use of respective weapons by them.
Statement of Smt Manisha (PW-5) was treated as First
Information Report (F.I.R.) and offence was registered as C.R.
No.114/2002. Investigation was taken over by P.S.I.Shinde
(PW.-15). During investigation, statement of Uttam was
recorded which is at Exh.41. Said statement was recorded
after ascertaining the condition of Uttam as fit for giving
statement and endorsement to that effect was obtained from
the attending Dr. Padalkar (PW-14). While under treatment,
Uttam died at Cottage Hospital, Pandharpur at 8-15 a.m. on
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18th July, 2002. Same Dr. Padalkar conducted postmortem on
the dead body of deceased Uttam. On the death of Uttam,
an offence of 302 of I.P.C. was inserted in the charge-sheet
against the appellants-accused.
10. On 18th July, 2002 in the morning spot panchnama was
conducted. The spot was shown to the police and panchas by
Ku.Ashwini (PW-6). From the spot one stick, samples of soil
smeared with blood were taken charge of.
11. During investigation, on the basis of the complaint of
PW-5 Smt. Manisha and dying declaration of deceased Uttam,
names of the appellants-accused were revealed and initially
juvenile offender Khandu and accused No.3 Pandurang Jadhav
were accosted at their house and were put under arrest.
Thereafter, the present appellants accused Nos. 1 and 2
were arrested from Malinagar area. Clothes of the
appellants-accused were taken charge of under the
panchnama. Apparently, the clothes were having blood stains.
Statements of witnesses were recorded during investigation
as the injuries sustained by PW-5 Smt Manisha were grievous,
she was removed to Hospital at Sholapur for further medical
treatment. Clothes of deceased Uttam were taken under
panchnama.
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12. During investigation on 22nd July, 2002 appellant-
accused No.1 made voluntary statement to produce stick and
axe. As such memorandum panchnama (Exh.28) was drawn in
presence of panch witnesses PW-10 and PW-13. In
furtherance of the memorandum, accused No.1 led police
party and panchas to his hut and produced one stick and axe.
Said articles were taken charge of under the panchnama (Exh.
29). Apparently, said articles were having blood stains.
On
22nd July, 2002 all the appellants-accused were sent to the
Cottage Hospital, Pandharpur for taking their blood samples.
On 25th July, 2002 blood samples of Ku.Ashwini were taken.
On 2nd August, 2002 seized muddemal articles and blood
samples of the appellant-accused were sent for chemical
analysis through police constable Gaikwad (PW-16).
13. On receipt of the reports of Chemical Analyzer and on
completion of investigation, charge – sheet was filed
against the appellants-accused before the Judicial Magistrate,
F.C.Pandharpur. Matter was committed to the Court of
Sessions, being Sessions Case No.97 of 2002 and on
completion of the evidence of sixteen prosecution witnesses
and four defence witnesses, judgment and order was passed
which is impugned in the present appeal.
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14. Before appreciating the rival arguments, certain factual
position is required to be narrated :-
(i) The incident happened on the night of 17th
July, 2002 at the house situated at the agricultural
field where the deceased Uttam, Smt. Manisha and
Ku. Ashwini were staying. On that night, Uttam
and Manisha were found in injured condition lying
on the ground and they were removed to Cottage
Hospital, Pandharpur by the police party and one
Pandurang Jadhav – cousin brother of Uttam.
(ii) PW-5 Smt. Manisha gave F.I.R. (Exh.20)
giving the details as to the cause for the assault
and the names of all the appellants – accused and
respective roles attributed to them. Said F.I.R. of
PW-5 was recorded at early hours of 2-30 a.m. at
Cottage Hospital, Pandharpur by the police. It is
almost proximate in time, to the incident of assault
which took place at about 9-30 p.m. on the night of
17th July, 2002.
(iii) As per the medical evidence, admittedly, the
first informant Smt. Manisha had sustained the
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11 cr-appeal-336-04-.docfollowing injuries when she was examined at
Cottage Hospital, Pandharpur. Said injuries are as
follows :-
—-
(i) CLW 5x 5×5 cms on left hand in groove
between thumb and index finger.
(ii) Deg lowing injury 8x4x5 cms on left forearm
middle.
(iii) CLW 1 x .5 x bone deep with underlying
fracture middle left leg.
(iv)
1/3rd.
CLW .5 x .5 x bone deep right leg, middle
____
Same Dr Padalkar examined Ku.Ashwini and
found the following injuries :–
(i) Contusion 4 x 2 cms on left arm, lower 1/3rd,
simple in nature, caused by hard and bluntobject, within 24 hours.
(ii) Contusion 3×2 cms on right shoulder, simple
in nature, caused by hard and blunt object, within
24 hours.
Same Dr Padalkar examined then injured Uttam
and noticed the following injuries :-
(i) CLW 4x0.5xbone deep, left frontal.
(ii) CLW .3x.3 cms x bone deep, left arm middle
1/3rd with swelling and fracture of left humerus.
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(iii) CLW 2x .2x.4 cms, left forearm middle 1/3rd.
(iv) CLW 2x.5x.5 cms on palm, between left little
and ring finger.
(v) 3 CLWs each .5x.3xbone deep 2.5 cms or from
each other. Right leg lower 2/3 with underlying
fracture.
(vi) CLW 1x.5x.5 cms left leg.
(vii) Contusion with swelling 4×2 cms, left leg
lower 1/3rd with underlying fracture of fibula.
(viii) contusion with swelling 3×2 cms right leg.
(ix)
contusion 3×2 cms left inframammary region
in anterior axillary line.
____
(iv) During the trial, total sixteen prosecution witnesses
were examined. Out of them PW-2 and 3 are the panch
witnesses for the scene of offence, they did not support the
prosecution case and had turned hostile.
(v) PWs 7 and 8 alleged eye-witnesses, according to the
case of the prosecution, did not support the prosecution
case and turned hostile, they only saw injured Uttam and
Smt.Manisha in severely injured condition on that night,
however, did not notice any assault much less the presence
of the appellants-accused.
(vi) PW-12, a local Talathi, did not support the case of the
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prosecution and turned hostile, he denied having heard the
statement made by the injured Uttam, taking the names of his
assailants as the appellants-accused. He deposed only to the
effect that Uttam stating that he was assaulted by two to
three persons. Said witness further deposed that he was
sitting in the jeep when Uttam was disclosing the facts to
P.S.I.Shinde, PW-15 and that time he did not pay attention as
to whose names were disclosed by Uttam.
(vii)
PW-10 and PW-13 are both panch witnesses examined
on the alleged memorandum of disclosure statement of
accused No.1 and subsequent production of stick and axe.
(viii) As injuries caused to PW-5 Smt Manisha were
grievous, she was taken to Civil Hospital, Sholapur and was
attended by Dr Avinash Ghorpade (PW-1). He noticed certain
injuries and some x-rays were taken and found fracture of
shaft of right tibia and fracture of neck fibula and also
fracture of lateral condyle of left femur. He also deposed as
to fracture of superior ramus right side as he took x-rays of
pelvis and both the hips of Smt. Manisha. He also noticed
the fracture of second metacarpal of left hand. According to
said witness, total seven x-rays were taken and Smt.
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Manisha was admitted in orthopedic ward from 18th July,2002
to 8th August, 2002 and had undergone operations under the
supervision of Dr Yadav from Orthopedic Department.
(ix) Four defence witnesses were examined on behalf of
the appellants-accused. D.W.1 is a Police Head Constable
Chandrakant Wadkar who was attached to Civil Hospital,
Sholapur and was on duty on 18th July, 2002. His evidence is
to the effect that PW No.5 injured Smt. Manisha gave names
of different persons than the accused as the assailants and
also gave the history of assault by means of sword and that
she had given a statement to Executive Magistrate one
Afzalpurkar (DW 3). DW 2 is Shrikrishna Patki, a Police
Constable, an outward clerk. He deposed that dying
declaration of PW-5 Manisha was received on 27th July,2002
and made entry to that effect in the inward register and
handed over said statement to PSI Shinde PW-15. DW 3 is
Special Executive Magistrate, Shri Ashok Afzalpurkar who
deposed about the recording of dying declaration on 18th July,
2002 at about 3:45 p.m.to 4:00 p.m. after attending civil
hospital at Sholapur. He further deposed about the recording
the statement of PW-5 Manisha after ascertaining her
condition through the Medical Officer one Dr Abhimanyu
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Khare. He identified said statement cum dying declaration of
PW-5 as Exh.82 wherein she had given a different story than
that mentioned in the F.I.R. DW-4 is Dr Abhimanyu Khare who
deposed about giving his endorsement on the statement Exh.
82 recorded by the Special Executive Magistrate, after
examining the patient (PW-5) Smt Manisha.
15. During the arguments, learned Advocate for the
appellants – accused raised the following points :-
(i) Dying declaration of deceased Uttam which
is at Exh.41 does not mention axe as a
weapon of assault. However, in the substantive
evidence of PW-5 and in her F.I.R. axe is
mentioned as one of the weapons of assault.
(ii) There is variance in the statement of PW-5
vis-a-vis contents of F.I.R. (Exh.20) and her
another statement recorded by Special Executive
Magistrate (Exh.82). In the F.I.R. she takes the
name of the appellants-accused and gave the
story regarding the motive as deceased Uttam
was ill-treating his wife Mangal and secondly the
incident of grazing of she buffalo in the field of
the appellant on the afternoon of the day of the
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incident. As against this, in her statement (Exh.
82) recorded by the Special Executive Magistrate,
she mentioned the names of different persons i.e.
one Gunda Jadhav (her father-in-law), one Sattu
Jadhav and one more person. She further gave
different motive i.e. the quarrel on account of the
marking stones up-routed by Uttam and herself
from the agricultural field of their family. In the
statement (Exh.82) she allegedly mentioned that
weapon of assault was a sword.
(iii) The statement of Pandurang Jadhav, cousin
brother of deceased Uttam was recorded after
eight days and said PW-9 is interested witness
being close relative of the deceased and on both
these counts his evidence is not trustworthy.
(iv) Accused Nos. 2 and 3 had no relation with
accused No.1 and the story of the prosecution that
all the appellants-accused came together with
common intention to assault Uttam and Manisha, is
unacceptable and does not stand to reasons and
logic. Whether appellant-accused No.1 had such
an animosity with the deceased and his wife so as
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to kill the deceased Uttam and severely injure Smt
Manisha? As such on this count also the
involvement of appellant-accused No.1 is doubtful.
(v) The alleged incident of abuse was at about
4:00 p.m.on account of the quarrel of grazing of
the buffalo in the field of the accused. Whereas,
the assault occurred after 9-00 p.m.on the same
night and as such the evidence regarding motive is
doubtful to implicate the appellants-accused.
(vi) F.I.R.was allegedly lodged at 2:30 a.m. by
PW-5, whereas the assault was at 9:00 p.m. on the
earlier night. Hence, there is delay of about five
and half hours and thus raises a doubt as to
authenticity of the case of the prosecution.
(vii) There is mention of punctured wound in the
substantive evidence of PW-1 Dr Ghorpade who
was then working at Civil Hospital, Sholapur and
according to him, the history given by the patient
i.e.PW-5 Manisha was that assault with sword. As
against this, there was no evidence of any witness
regarding use of sharp and pointed weapon so as
to cause a punctured wound. These facts rendered
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the case of the prosecution doubtful.
16. All the above referred points raised by the
defence have been carefully gone through and the
substantive evidence of respective prosecution witnesses
has been examined. So far as first defence is concerned,
though there is no mention of axe in the dying declaration of
deceased Uttam (Exh.41),
this aspect in itself cannot be
considered as a mitigating circumstance to the case of the
prosecution when the substantive evidence of PW-5 mention
the weapon of assault as axe and when various injuries as
described above were found on the person of deceased
Uttam and injured PW-5 Smt.Manisha.
17. So far as second point is concerned, it must be
mentioned that PW-5 has categorically denied having given
any statement to the Special Executive Magistrate. Moreover,
there was no necessity for the investigating agency to again
record further statement of PW-5, at about 3:45 p.m. in the
Civil Hospital, Sholapur on 18th July, 2002, when in the
Cottage Hospital at Pandharpur at the early hours of the same
day at 2:30 a.m. her initial statement was recorded giving all
the details including the names of the appellants – accused
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and the role played by them in the assault. This aspect has
been dealt with by the trial Court and rightly so, in our view,
rejecting the defence of the accused persons. On this aspect,
we have gone through the substantive evidence of PW-5 Smt
Manisha, who was examined and cross-examined during the
trial on 12th March, 2003 and thereafter further cross-
examination was continued on 7th April,2003. However, it is
curious enough to note that subsequently an application was
preferred before the Sessions Court for recalling said witness
for her further cross-examination. This further cross-
examination taken on 22nd July, 2003 was only in aspect of
alleged recording of the statement at Civil Hospital, Sholapur
which is at Exh.82. Factum of said recording of the further
statement has been categorically denied by PW-5. This aspect
has been dealt with by the Sessions Court, doubting the
genuineness of said second dying declaration (Exh.82). In
fact, a doubt has been raised by the Sessions Court on the
conduct of the Investigating Officer regarding production of
such second statement before the Court much belatedly.
18. On the above aspects, on going through the record
and proceedings of the matter, it is revealed that initially
when the documents were produced before the Sessions
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Court by the prosecution at the threshold of the trial, there
was no mention as to availability or otherwise of the
statement Exh.82. Surprisingly, an application dated
14.7.2003 being Exh.75 was preferred before the Sessions
Court, however, by that time the evidence of PW-5 was
already over and concluded on 7th April, 2003. The application
dated 14th July,2003 was preferred on behalf of the appellant-
accused mentioning that there is some statement of PW-5
recorded by Special Executive Magistrate at Civil Hospital,
Sholapur and same has not been brought before the Court by
the prosecution. Said application was placed for the Say of
the prosecution and the learned A.P.P. on the same day gave
his one line say as “proper orders be passed”. Said
application was allowed on the same day by the learned
Sessions Court and directions were given to Investigating
Officer (PW-15) Mr Shinde to produce said statement
recorded at Civil Hospital, Sholapur. Consequently, said
statement was produced by the Investigating Officer and
thereafter on 16th July, 2003 another application was
preferred by the accused persons asking the consent of the
prosecution whether the said statement is to be read in
evidence. Said application was preferred on behalf of the
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accused vide Exh.76. Said prayer of the accused was
objected by the learned A.P.P. In fact, said alleged statement
was not admitted by the prosecution to be read in evidence.
Under these circumstances, an application was made before
the Sessions Court recalling PW-5 and asking her certain
questions on such alleged statement recorded at Civil
Hospital, Sholapur. Said application was allowed by the
Sessions Court and it is Exh.79. It was allowed on 18th July,
2003. As such, subsequently, on 22nd July, 2003 PW-5 was
recalled and her further cross-examination was taken only on
the aspect of recording of her statement at Civil Hospital,
Sholapur. Apparently, all these circumstances were
scrutinized by the Sessions Court in proper perspective and
no reliance was placed on said alleged statement Exh.82 and
even the defence evidence of DW Nos. 3 and 4 was also not
accepted by the trial Court and it was rightly so, considering
the above circumstances.
19. So far as third point raised on behalf of the appellants-
accused is concerned, only because of PW-9 Pandurang
Jadhav, being cousin brother of deceased Uttam, this fact in
itself cannot be construed to discard his testimony when
otherwise same is acceptable considering the circumstances
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in totality. So far as recording of the statement of PW-9 after
eight days, again this aspect may not affect the case of the
prosecution since whatever mentioned by dying declaration of
deceased Uttam which is at Exh.41. In other words, it must
be said that there is nothing to hold that it was the concocted
story of PW-9 so far as oral dying declaration made before
him by the deceased Uttam.
20. So far as fourth point raised on behalf of the
appellants – accused, it is the substantive evidence of PW-5
that she had seen appellant – accused No.1 Shivaji when he
used to visit the house of Khandu i.e. the co-accused.
Considering this evidence and the factual position, there is
strong substantive evidence of PW-5 supported by the
substantive evidence of PW-6 Ku. Ashwini. In that view of the
matter, the guilt of all the three appellants has been
established by the prosecution. Consequently, said fourth
argument also cannot be accepted in support of the
appellants-accused.
21. Fifth point raised on behalf of the appellants-accused
that there was no nexus between the quarrel which took
place at 4:00 p.m. on the day of incident and the actual
assault occurred at 9-00 p.m. on the same night. There is
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nothing to suspect the substantive evidence of PW-6
Ku.Ashwini, a minor girl, who was threatened by accused
Nos. 2 and 3 and one Khandu on that evening on account of
grazing she-buffalo in their field. It transpires from the
substantive evidence of PW Nos. 5 and 6 coupled with the
dying declaration (Exh.41) of deceased Uttam, that on the day
of incident in the evening when they had been to the house
of Khandu for enquiry as to threat given to Ku.Ashwini, there
was hot exchange of words and threat of dire consequences
given to the deceased and Smt. Manisha was just prior to the
incident of assault which occurred at 9:00 p.m. and as such
considering these circumstances defence raised on behalf of
the appellants-accused also cannot be accepted.
22. Sixth point raised on behalf of the appellant-
accused as to lodging of the F.I.R. by PW-5 injured Smt
Manisha at 2:30 a.m. on 18th July, 2002 for the assault
committed at 9:00 p.m. on the earlier night, is to be viewed in
juxtaposition of the circumstances and the factual position as
to severe injuries inflicted on deceased Uttam and also on
Manisha (PW-5). Needless to mention that the injuries
sustained by them were of much gravity and in fact Uttam
succumbed to the injuries while PW-5 was at the hospital for
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more than fortnight. On this accepted position, it cannot be
accepted by any stretch of imagination that the F.I.R. lodged
at 2:30 a.m. at early hours at Cottage Hospital, Pandharpur is
belated and smack of concoction. In other words, there is
nothing abnormal for PW-5 Smt Manisha giving her statement
at the early hours of 18.7.2003. In fact, it was impracticable
for recording her statement earlier. This is more so when the
Investigating machinery was to ascertain from the attending
doctor as to the physical and mental condition of the patient
for giving statement. Consequently, said 6th point of defence
has also no merit.
23. The last argument advanced on behalf of the appellants-
accused also has no merit considering number of injuries
inflicted on the deceased Uttam and PW-5 Manisha and the
circumstances under which they were found lying on the
ground near their residence. In our view, it is of no
significance whether the history of assault given by PW-5
Manisha mentioned that it was with sword. In any event, the
effect of the evidence of injured PW-5 is required to be
construed in totality and in that event there is no substance
even in the last argument advanced on behalf of the
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25 cr-appeal-336-04-.doc
appellants-accused.
24. Lastly, coming to the effect of substantive evidence
of defence witnesses, in our view, the learned Sessions Court
has rightly appreciated said evidence and has discarded it
rightly.
25. In the result, there is no case made out to interfere with
the impugned judgment and order of conviction of the
appellants-accused and hence said appeal is devoid of merits
and accordingly disposed of with following order :
ORDER.
Criminal Appeal No. 336 of 2004 stands dismissed.
Sd/- Sd/-
(A.R. JOSHI, J) (D.D.SINHA, J)
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