Shivaji Shrimant Mandale vs The State Of Maharashtra on 3 August, 2011

Bombay High Court
Shivaji Shrimant Mandale vs The State Of Maharashtra on 3 August, 2011
Bench: D.D. Sinha, A. R. Joshi
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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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following 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 blunt

object, 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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24 cr-appeal-336-04-.doc

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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