{"id":270809,"date":"2010-10-18T00:00:00","date_gmt":"2010-10-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manohar-sidram-ukarande-vs-the-state-of-maharashtra-on-18-october-2010-2"},"modified":"2019-04-10T06:06:59","modified_gmt":"2019-04-10T00:36:59","slug":"manohar-sidram-ukarande-vs-the-state-of-maharashtra-on-18-october-2010-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manohar-sidram-ukarande-vs-the-state-of-maharashtra-on-18-october-2010-2","title":{"rendered":"Manohar Sidram Ukarande vs The State Of Maharashtra on 18 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Manohar Sidram Ukarande vs The State Of Maharashtra on 18 October, 2010<\/div>\n
Bench: A.M. Khanwilkar, U. D. Salvi<\/div>\n
                                           1\n\n                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                            CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                           \n                             CRIMINAL APPEAL NO.450 OF 2002\n\n\n\n\n                                                  \n    Manohar Sidram Ukarande,\n    Age: 35 years, R\/o. Borale,\n\n\n\n\n                                                 \n    Taluka Mangalwedha, Dist.: Solapur\n    (At present Lodged in Yervade \n    Central Prison)                                              ..Appellant.\n\n\n\n\n                                         \n                         V\/s.\n\n    The State of Maharashtra\n                                 ig                              ..Respondent.\n                               \n                            CRIMINAL APPEAL NO.451 OF 2002\n\n\n    1.      Suresh Dattu Bhojane,\n      \n\n            Age: 27 years,\n   \n\n\n\n    2.      Anna @ Anil Maruti Bhojane,\n            Age: 22 years, \n            Both R\/at : Borale, \n            Tal.: Mangalwedha, Dist.: Solapur\n\n\n\n\n\n            (At present lodged in Yervada\n            Central Prison, Pune).                               ..Appellants.\n\n                         V\/s.\n\n\n\n\n\n    The State of Maharashtra                                     ..Respondent.\n\n\n                            CRIMINAL APPEAL NO.452 OF 2002\n\n\n    Dhondappa Bimrao Nakate,\n    Age: 32 years, Occu.: Agriculturists,\n    R\/at : Borale, Tal.: Mangalwedha,\n    Dist. : Solapur (At present detailed as\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 16:32:52 :::\n                                           2\n\n    condemned Prisoner in Yerwada\n    Central Prison, Pune)                                       ..Appellant.\n\n\n\n\n                                                                          \n                         V\/s.\n\n    The State of Maharashtra                                    ..Respondent.\n\n\n\n\n                                                  \n                            CRIMINAL APPEAL NO.453 OF 2002\n\n\n\n\n                                                 \n    1.     Sachin Rama Bhojane,\n           Age: 18 years, \n           Occu.: Student-cum-business\n\n\n\n\n                                        \n    2.      Satish Rama Bhojane,\n            Age: 27 years, Occu.: Profession,\n            Both R\/o. Borale, Taluka \n            Mangalwedha, Dist. Solapur \n                               \n            (At present detailed as condemned\n            Prisoner in Yerwada Central\n            Prison, Pune)                                       ..Appellants.\n      \n\n                         V\/s.\n   \n\n\n\n    The State of Maharashtra                                    ..Respondent.\n\n                                         AND\n\n\n\n\n\n                       CRIMINAL APPLICATION NO.1171 OF 2010\n                                        IN\n                          CRIMINAL APPEAL NO.453 OF 2002\n\n\n\n\n\n    Sachin Rama Bhojane,\n    Age 30 years, Occu.: Nil\n    R\/o. Borale, Tal.: Mangalwedha\n    District : Solapur                                          ..Applicant\n\n                     V\/s.\n\n    The State of Maharashtra                                    ..Respondent.\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 16:32:52 :::\n                                              3\n\n    Mr.Ujwal Agandsurve for the appellants\n\n    Mr.F.R. Shaikh, APP for State.\n\n\n\n\n                                                                                 \n                         CORAM          :  A.M. KHANWILKAR & U.D.SALVI, JJ.\n\n\n\n\n                                                        \n     \n                 RESERVED ON            :   9th  SEPTEMBER, 2010\n\n                 PRONOUNCED ON  :   18th OCTOBER, 2010.\n\n\n\n\n                                                       \n    JUDGMENT (PER U.D.SALVI, J.)\n<\/pre>\n
    1.<\/p>\n
                  These are the appeals preferred against the judgment and <\/p>\n
    order of conviction under Sections 147, 148, 302 & 307 r\/w. 149 of the <\/p>\n
    I.P.C<\/a>.,   1860   in   Sessions   Case   No.56\/99   passed   by   the   learned   II <\/p>\n
    Additional Sessions  Judge, Pandharpur at Pandharpur  on  21\/2\/2002.\n<\/p>\n
    The accused No.7 Kondabai Bhimrao Nakate and accused No.8 Chhaya <\/p>\n
    Rama   Bhojane   were   acquitted   in   the   said   case   and   the   State   has <\/p>\n
    preferred to remain silent as regards the challenge to the judgment and <\/p>\n
    order of acquittal of the said accused.\n<\/p>\n
    2.            Accused No.4 Manohar Sidram Ukarnade, the appellant in <\/p>\n
    Criminal Appeal No.450\/02, accused No.5 Suresh Dattu Bhojane and <\/p>\n
    No.6 Anna @ Anil Maruti Bhojane, the appellants in Criminal Appeal <\/p>\n
    No.451\/02, accused No.1 Dhondappa Bhimrao Nakate, the appellant in <\/p>\n
    Criminal   Appeal   No.452\/02   and   accused   no.2   Sachin   Rama   Bhojane <\/p>\n
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\n                                            4<\/span><\/p>\n
    and No.3 Satish Rama Bhojane, the appellants in Criminal Appeal No.<\/p>\n
    453\/02 were sentenced as under:-\n<\/p>\n
    (i)     to suffer rigorous imprisonment for a period of one year and to <\/p>\n
            pay fine of Rs.100\/- i\/d. to suffer further simple imprisonment for <\/p>\n
            a period of one week for the offence punishable under Section <\/p>\n
            148<\/a> of I.P.C.;\n<\/p>\n
    (ii)    to suffer rigorous imprisonment for a period of 7 years and to pay <\/p>\n
            a fine of Rs.100\/- i\/d. to suffer S.I. for a further period one week <\/p>\n
            for the offence punishable under section 307<\/a> r\/w. 149 of I.P.C<\/a>.;\n<\/p>\n
    (iii)    to suffer rigorous imprisonment for life and to pay a fine of Rs.\n<\/p>\n
            100\/- i\/d. to suffer further imprisonment for a period one week <\/p>\n
            for the offence punishable under section 302<\/a> r\/w. 149 of I.P.C<\/a>.;\n<\/p>\n
    3.            No separate sentence was passed for the offence punishable <\/p>\n
    under Section 147<\/a> of IPC, 1960.     Substantive sentences were ordered <\/p>\n
    to run concurrently.\n<\/p>\n
    4.            One   Savita   Madhukar   Gaikwad,   sister   of   the   deceased <\/p>\n
    Mohan Mahadev Mungase and the injured Nandkumar Mungase lodged <\/p>\n
    complaint   alleging   assault   with   deadly   weapons   namely   swords   and <\/p>\n
    scythes  on her brother Mohan and Nandkumar at about 8.00 p.m. on <\/p>\n
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\n                                               5<\/span><\/p>\n
    6th February, 1999 in the house of one Rama alias Mama Bhojane by the <\/p>\n
    appellant-accused nos. 1 to 4 and 7 resulting in the murder of Mohan <\/p>\n
    and grievous injuries to Nandkumar, with  Mangalwedha police station.\n<\/p>\n
    Crime at C.R. No. 10\/99 under Section 302<\/a>, 307<\/a>, 34<\/a>, IPC<\/a> 1860 and 135 <\/p>\n
    of Mumbai Police Act, 1951 came to be registered at the said   police <\/p>\n
    station following the said complaint.   The police took the photographer <\/p>\n
    and panch witnesses to the place of occurrence, i.e. the house of Mama <\/p>\n
    Bhojane.   Dead body of Mohan Mungase was found  lying in the house.\n<\/p>\n
    Inquest   was   held   at   the   spot.   The   place   of   occurrence   was <\/p>\n
    photographed.   Body   of   the   deceased   was   sent   for   postmortem <\/p>\n
    examination.   Besides the body of deceased, four swords and scythes, <\/p>\n
    the   weapons   used   in   the   crime   were   recovered   from   the   said   place.\n<\/p>\n
    Blood   was   found   spilled   inside   the   house   of   Mama   Bhojane.   Blood <\/p>\n
    stained weapons were duly seized.  One tempo tractor was also seized <\/p>\n
    from the vicinity of the said house.   Scene of offence panchnama was <\/p>\n
    drawn.\n<\/p>\n
    5.            In the course of investigation, the accused were arrested.\n<\/p>\n
    Blood stained clothes found on person of the appellant-accused no. 1 <\/p>\n
    Dhondappa, accused no. 2 Sachin, accused no. 4 Manohar, accused no.\n<\/p>\n
    4 Satish were seized from their person.     Seized articles were sent for <\/p>\n
    further   scientific   investigation   to   the   Forensic   Science   Laboratory.\n<\/p>\n
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\n                                               6<\/span><\/p>\n
    Meanwhile, the statements of the witnesses were recorded.   Statements <\/p>\n
    of   the   injured   Nandkumar   Mungase   and   Maruti   Nakate   were   also <\/p>\n
    recorded by the Executive Magistrate at Solapur.     The sketch of the <\/p>\n
    scene of offence was procured with the assistance of Inspector of Land <\/p>\n
    Records.      Human blood was detected in the earth collected from the <\/p>\n
    place of occurrence, weapons used in the crime, clothes of the deceased <\/p>\n
    and injured victim, and clothes seized from the  person of the accused <\/p>\n
    nos. 1 to 4.\n<\/p>\n
    6.            Prosecution   further   revealed   that   the   gory   incident   had <\/p>\n
    occurred as a result of quarrel  over the  entrustment  of country liquor <\/p>\n
    shop belonging to Mama Bhojane to the deceased Mohan Mungase and <\/p>\n
    his brother Nandkumar for running it.   According to the prosecution on <\/p>\n
    6th  February, 2009 at about 7.00p.m.   the deceased Mohan Mungase, <\/p>\n
    Balu Mungase, Anil Dhanve and Yuvraj Mungase were sitting near the <\/p>\n
    sho of one Shiva Chougule at village Borale when the accused nos. 1, <\/p>\n
    3,4,5   &   6   arrived   at   that   place   and   started   abusing   and   mortally <\/p>\n
    threatening   Mohan   Mungase;   and     thereafter   the   deceased   Mohan <\/p>\n
    alongwith Balu Mungase, Anil  Dhanve and Yuvraj Mungase went to the <\/p>\n
    house of Mama Bhojane to apprise the wife of Mama Bhojane accused <\/p>\n
    no. 8 Chhaya about the said incident.   Around 8.00 p.m. that day, the <\/p>\n
    prosecution   revealed,   a   telephonic   call   was   made   to   Nandkumar <\/p>\n
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\n                                                7<\/span><\/p>\n
    whereupon Nandkumar and his sister Saivta went to the house of Mama <\/p>\n
    Bhojane and happened to witness the   murderous assault launched by <\/p>\n
    the accused with sharp edged weapons namely swords and scythes on <\/p>\n
    the   deceased   Mohan.     Nandkumar   was   also   assaulted   and   received <\/p>\n
    grievous   injuries.       Providentially,   Nandkumar   was    saved   from  fatal <\/p>\n
    assault at the   hands of the accused nos. 5 & 6 only for the reason of <\/p>\n
    Savita’s intervention.     One Maruti Nakate who happened to come to <\/p>\n
    the   house   of   Mama   Bhojane   was   also   assaulted   with   sharp   edged <\/p>\n
    weapons and received injuries as a result thereof.\n<\/p>\n
    7.            It   is   also   the   prosecution   case   that   Anil   Dhanwe,   in   the <\/p>\n
    meanwhile   after   witnessing   the   quarrel   inside   the   house   of   Mama <\/p>\n
    Bhojane approached police at the outpost situated at Village Borale and <\/p>\n
    could get police constable Mahadev Matkari and his associates to the <\/p>\n
    place of occurrence.   Police constable Mahadev Matkari, according to <\/p>\n
    the prosecution could witness Savita taking out the injured persons  and <\/p>\n
    the accused Nos.2 & 3 following them in order to launch further assault <\/p>\n
    and on finding the police, withdrawing themselves to the confines of <\/p>\n
    the room.  Police constable Mahadev Matkari peeping through the gap <\/p>\n
    in the door could further witness deceased Mohan lying in a pool of <\/p>\n
    blood inside the house and accused Nos.1 to 4 and 7 armed with swords <\/p>\n
    and   scythes   there.     The   prosecution   further   revealed   that   police <\/p>\n
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\n                                              8<\/span><\/p>\n
    constable Mahadev Matkari and others removed the injured Nandkumar <\/p>\n
    and Maruti Nakatate firstly to Mangalwada police station and thereafter <\/p>\n
    to   Rural   Hospital,   Mangalweda.     Following   these   developments,   the <\/p>\n
    prosecution further revealed the crime in the present case came to be <\/p>\n
    registered.\n<\/p>\n
    8.            Charges (Exhibit 2) under Sections 148<\/a>, 302<\/a> r\/w. 149, 307 <\/p>\n
    r\/w. 149 of I.P.C<\/a>. and section 135 of the Bombay Police Act were framed <\/p>\n
    on 23\/2\/2000.   The accused did not plead guilty to the charges.  The <\/p>\n
    record reveals that in response to a notice (Exhibit 11) under section <\/p>\n
    294<\/a>   of   Criminal   Procedure   Code,   1973,   the   accused   admitted   the <\/p>\n
    genuineness of the following documents.\n<\/p>\n
    (i)     Inquest panchanama – dated 7\/2\/1999 (Exhibit-57);\n<\/p>\n
    (ii)    Seizure   panchama   of   the   clothes   of   the   deceased   –   dated
\n            7\/2\/1999 (Exhibit-58);\n<\/p>\n
    (iii)   Arrest   panchama   of   the   accused   Kondabai   Nakate   –   dated
\n            12\/2\/1999 (Exhibit-59);\n<\/p>\n
    (iv)    Post Mortem Notes  – dated 7\/2\/1999 (Exhibit-60);\n<\/p>\n
    (v)     O\/c.   Of   the   letter   dated   7\/12\/1999   to   the   photographer   –\n<\/p>\n
            (Exhibit-61);\n<\/p><\/blockquote>\n
    (vi)    Photographs (Exhibit – 62-66);<\/p>\n
    9.             Besides these documents, the accused also admitted in the <\/p>\n
    evidence, the injury certificates Exhibits 89 & 90 in respect of injuries <\/p>\n
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\n                                                9<\/span><\/p>\n
    sustained by P.W.5 Nandkumar and P.W.7 Maruti Nakate.\n<\/p>\n
    10.            The   prosecution   examined   P.W.1   Vitthal   Pawar, <\/p>\n
    Maintenance   Surveyor   to   place   on   record   the   sketch   of   the   place   of <\/p>\n
    occurrence   and   further   proceeded   to   examine   P.W.2   Ramchandra <\/p>\n
    Phadtare,     P.W.3   Sidheshwar   Dhavare   –   panch   witness,   P.W.4   Savita <\/p>\n
    Gaikwad – the complainant, P.W.5 Nandkumar Mungase – injured victim, <\/p>\n
    P.W.6 Parsuram Randive – panch, P.W.7 Maruti Nakate – injured victim, <\/p>\n
    P.W.8   Balu   Mungase,   eye   witness,   P.W.9   Mahadev     Metkari   –   police <\/p>\n
    constable   of   outpost   at   village   Borale,   P.W.10   Shatrughan   Admane   –\n<\/p>\n
    A.S.I. Mangelwedha police station, P.W.11 Suresh Ghadge – A.P.I. and <\/p>\n
    Investigating Officer.    The panch witnesses and P.W.7 – Maruti Nakate, <\/p>\n
    one of the injured victim turned hostile.  The evidence of P.W.7 Maruti <\/p>\n
    Nakate   however,   affirms   the   occurrence   of   the   gory   incident   at   the <\/p>\n
    house of Mama Bhojane, the place of occurrence at the material time.\n<\/p>\n
    His departure from the prosecution case was marked by an averment <\/p>\n
    that he did not know who were the assailants.\n<\/p>\n
    11.           It   is   in   this   background,   learned   Advocate   Agandsurve <\/p>\n
    submitted   that   the   utterances   in   defence,   as   disclosed   through   the <\/p>\n
    evidence and examination of the accused  in response thereto dismisses <\/p>\n
    the   prosecution   case   as   a   false   and   concocted   one   created   out   of <\/p>\n
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\n                                                10<\/span><\/p>\n
    political   rivalry.     The   accused   in   their   defence   have   examined   D.W.1 <\/p>\n
    Bhimrao Talbhandare, Executive Magistrate to bring on record that the <\/p>\n
    statements   of   P.W.5   Nandkumar   Mungase   and   P.W.7   Maruti   Nakate <\/p>\n
    (Exhibits   144   &   145)   recorded   under   Section   164<\/a>   of   Cr.   P.   C.     The <\/p>\n
    prosecution has relied on both direct and circumstantial evidence and <\/p>\n
    submitted that the evidence was complete and sufficient to rope in the <\/p>\n
    accused persons in the crime, particularly for the reason that there was <\/p>\n
    clinching evidence regarding the incident of assault in Mama Bhojane’s <\/p>\n
    house   and   there     was   no   reason   for   the   injured   victims   to   involve <\/p>\n
    innocent persons in the crime.  The defence on the other hand, assailed <\/p>\n
    the evidence of eye witnesses P.W.4 Savita, P.W. 5 Nandkumar and P.W.8 <\/p>\n
    Balu Mungase.   The contradictions and discrepancies in their evidence <\/p>\n
    were pointed out to discredit their evidence.\n<\/p>\n
    12.            Taking total view of the evidence and its collective study in <\/p>\n
    light of the judicial precedents cited by the rival parties, the perusal of <\/p>\n
    the impugned Judgment shows, the learned trial Court held that the <\/p>\n
    prosecution succeeded in establishing that the appellant accused being <\/p>\n
    armed   with   deadly   weapons   had   formed   an   unlawful   assembly   with <\/p>\n
    common object to commit murder of the deceased Mohan Mungase and <\/p>\n
    the injured victims and had committed murder of the deceased Mohan <\/p>\n
    Mungse   and   attempted   to   commit   murder   of   injured   victims <\/p>\n
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\n                                              11<\/span><\/p>\n
    Nandkumar Mungse and Maruti Nakate.   Failure of the prosecution to <\/p>\n
    give evidence regarding blood group, Learned trial Court held, did not <\/p>\n
    weaken or disturb trustworthy ocular version in respect of   the crime <\/p>\n
    and the criminals involved in the commission of such crime.\n<\/p>\n
    13.           The   learned   Advocate   Agandsurve   for   the   appellants <\/p>\n
    pointed   out   that   with   the   demise   of   the   Appellant   Dhondappa     B.\n<\/p>\n
    Nakate     in   Criminal   Appeal   No.452   of   2002,   the   said   appeal   stood <\/p>\n
    abated and what remained for consideration of the Appellate Court was <\/p>\n
    the question of the involvement of the other appellants in the crime.\n<\/p>\n
    The learned Advocate Agandsurve for the Appellants took us through <\/p>\n
    the evidence led by the rival parties and focused his submission on the <\/p>\n
    testimony of P.W.5 Nandkumar  Mungase.  The reason for this approach, <\/p>\n
    he submitted, was the learned trial Court’s  distaste for the evidence of <\/p>\n
    P.W.4 Savita Gaikwad, the complainant, P.W.6-Parsuram Randive, P.W.7-\n<\/p>\n
    Maruti Nakate and the panch witness.  According to him, the evidence <\/p>\n
    of P.W.5 Nandkumar Mungase suffers with material contradictions and <\/p>\n
    omissions  and therefore, deserves  no credence.  Even  if  believed,    he <\/p>\n
    submitted,   the   evidence   of   P.W.   5   Nandkumar   Mungase   assigned   no <\/p>\n
    specific role to the appellant accused Nos. 5 and 6 in the crime and <\/p>\n
    therefore, the Accused No.5 Suresh Bhojane and Accused No.6-Anna @ <\/p>\n
    Anil Maruti Bhojane deserve accuittal in the present case.\n<\/p>\n
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\n                                                12<\/span><\/p>\n
    14.            In   the   course   of   the   arguments,   it   was   felt   necessary   to <\/p>\n
    consider the efficacy of the medical evidence, namely, the admitted Post <\/p>\n
    Mortem Examination report (Exh. 60), injury certificates(Exh. 89 and <\/p>\n
    90) in absence of the testimony of the concerned medical officers.  Very <\/p>\n
    fairly,     the   learned   Advocate   Agandsurve   for   the   appellants   placed <\/p>\n
    before us the Judgment of the Full Bench of this Court in the case of <\/p>\n
    Shaikh Farid Hussinsab V\/s. State of Maharashtra reported in 1981 Mh.\n<\/p>\n
    L.J.345.   He also drew our attention to the Judgment in the  case of <\/p>\n
    Mohinder Singh Inder Singh V\/s. The State reported in AIR 1953 SC 515, <\/p>\n
    to urge before this Court that it was the duty of the prosecution to prove <\/p>\n
    by experts evidence the nexus between the injuries and weapons, as it is <\/p>\n
    a case of death or injury by lethal weapons.\n<\/p>\n
    15.            The learned Public Prosecutor submitted that the learned <\/p>\n
    trial Court had rightly believed the testimonies of the victims who had <\/p>\n
    opportunity   to   witness   the   crime   in   electric   light.     Occurance   of   the <\/p>\n
    incidence   is   quite   evident   even   from   the   hostile   testimony   of   P.W.   7 <\/p>\n
    Maruti Nakate, as well as the circumstances, which were brought on <\/p>\n
    record  by  the   Investigating   Officer.    He   further  submitted  that  at  no <\/p>\n
    point of time, the accused had raised any issue regarding the medical <\/p>\n
    evidence and questioned the injuries observed by the medical officer in <\/p>\n
    cause of injuries and the cause of death as revealed through the PM <\/p>\n
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\n                                               13<\/span><\/p>\n
    report   (Exhibit   60)   and   Injury   Certificate   (Exhibits   89   &   90).     The <\/p>\n
    admission   of   the   said   documents,   in   such   a   situation,   he   submitted, <\/p>\n
    obviate   the   need   to   examine   the   concerned   medical   officers.     To <\/p>\n
    demonstrate the fact that the weapons were sharp edged  weapons, he <\/p>\n
    invited our attention to the  weapons, which were specially produced <\/p>\n
    before us for inspection.\n<\/p>\n
    16.            In  Shaikh   Farid   Hussinsab’s   case,   the   Full   Bench   of   this <\/p>\n
    Court examined the scope of section 294<\/a> of Cr.P.C. in understanding the <\/p>\n
    worth of the Post Mortem Report, genuineness  of which was admitted <\/p>\n
    by the Accused in evidence.  The probative value of such Post Mortem <\/p>\n
    Report, i.e. the medical evidence came under judicial scanner.   In the <\/p>\n
    said case similar as the present one wherein the doctor who held the <\/p>\n
    post mortem examination and prepared notes was not examined at the <\/p>\n
    trial,   after   the   defence   had   indicated   that   it   was   not   disputing <\/p>\n
    genuineness of the post mortem notes   in response to a query under <\/p>\n
    sub-section 1<\/a> of section 294<\/a> of the Code.   Ganpat Raoji’s case(Ganpat  <\/p>\n
    Raoji   v\/s.   State   of   Maharashtra-reported   in   1980   Mh.L.J.   60)  where <\/p>\n
    similar question was raised and answered in favour of the defence was <\/p>\n
    also considered by the Full Bench.\n<\/p>\n
    17.                   While   dealing   with   Ganpat   Raoji’s   case,   the   Full <\/p>\n
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\n                                                  14<\/span><\/p>\n
    Bench   of   this   Court   observed   that   two   different   rules   one   governing <\/p>\n
    probative   value   of   documentary   evidence   and   other   governing   its <\/p>\n
    reception   in   evidence,   were   read   together   in   arriving   at   a   wrong <\/p>\n
    conclusion.       The   reason   thereof   for   this   observation   lies   in   the <\/p>\n
    difference between the probative value and the reception of documents <\/p>\n
    in evidence.   Rightly so,  therefore, the Full Bench could clearly see in <\/p>\n
    Section 294<\/a> of the Code of Criminal procedure. 1973 the potential to <\/p>\n
    facilitate the waiver of the mode of proof prescribed under Section 67<\/a> to <\/p>\n
    71<\/a>   of   the   Evidence   Act   in   criminal   cases.     In   the   instant   case,   this <\/p>\n
    potential has been utilised in order to dispense with the mode of proof <\/p>\n
    in respect of the P.M. notes Exhibit-60.  As regards the probative value <\/p>\n
    of   the   document,   in   terms   of   its   value   as   “corroborative”  and <\/p>\n
    “substantive” evidence, all depends on the context and set of facts in <\/p>\n
    each case.   The following observations made by the Full Bench of this <\/p>\n
    Court at para 15 of   Shaikh Farid Hussinsab’s  case are material in this <\/p>\n
    regard:-\n<\/p>\n
            “15. Ganpat   Raoji’s   case    as   also   the   Gujrat  High   Court
\n            case were cases in which failure to examine the doctor was
\n            found to have resulted in a miscarriage of justice.  In some
\n            such   cases   location   of   injuries,   extent   of   the   depth   and
\n            width   and   the   details   as   to   the   nature   thereof   and
\n            possibility of their  being caused differently from the one
\n            sought to be established, are all very important factors and
\n            the   doctor’s   answers   to   some     pertinent   questions   in
\n            evidence can make a difference to the result of the case.
\n            But this cannot be true of each and every case.   Whether <\/p>\n
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\n                                                15<\/span><\/p>\n
           the doctor’s evidence is necessary or not depends on facts
\n           and facts of each case, the prosecutor, the accused and his
\n           lawyer being the best judges to decide it as also the points <\/p>\n
           on which each one of them should concentrate their attack.
\n           Their reaction to the query under sub-section (1) ordinarily
\n           should be decisive.  Raising no dispute to the genuineness <\/p>\n
           of   any   document   implies   their   considered   decision   of
\n           further details being irrelevant.  The Court has ordinarily to
\n           accept   this   decision   and   refrain   from   entering   into   the
\n           arena itself unless miscarriage of justice is apprehended on <\/p>\n
           demonstrable grounds.  The section also invests the Court
\n           with a discretion to examine the doctor or any such witness
\n           in   that   case.     The   section   itself   thus   furnishes   in-built
\n           protections   to   the   defence   or   the   prosecutor   against <\/p>\n
           possible   lapses.     It   was   open   to   the   Court   in   its   such
\n           discretion   to   examine   the   doctor   or   any     other   witness <\/p>\n
           when   it   apprehended   miscarriage   of   justice.     Mere   such
\n           apprehension   cannot   justify   interpreting   the   section
\n           differently and hold it inapplicable to post-mortem reports <\/p>\n
           in the face of its plain language indicating to the contrary.”\n<\/p><\/blockquote>\n
    In the instant case, there is no controversy over the injuries sustained by <\/p>\n
    the   deceased   as   well   as   injured   victims   in   the   crime.   No   such <\/p>\n
    controversy figures in the evidence in  respect to the weapons used vis-\n<\/p>\n
    a-vis   injuries   sustained.     The   medical   evidence   in   the   fact   and <\/p>\n
    circumstances of this case, therefore, needs to be accepted.   Judgment <\/p>\n
    in  Mohinder   Singh   Inder   Singh’s  case   for   the   same   reason   is   not <\/p>\n
    applicable in the present case.\n<\/p>\n
    18.           Admitted   documents,   particularly,   inquest   panchanama <\/p>\n
    (Exh.56) and  seizure panchanama (Exh.57 and 58) provide clear view <\/p>\n
    of the following facts:\n<\/p>\n
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\n                                              16<\/span><\/p>\n
    (i)     Body   of   the   deceased   Mohan   Mungase     bearing   lacerated
\n            bleeding injuries on the head, face and neck,  as well as on thigh <\/p>\n
            and waist, was found lying on the tile  flooring inside house No.<\/p>\n
            88\/183, situated at village Borale.\n<\/p>\n
    (ii)    Clothes of the deceased were found blood stained.\n<\/p>\n
    (iii)   Clothes of the deceased were duly seized.\n<\/p>\n
    (iv)    Bloodstained torned and cut clothes  of the injured Nandkumar <\/p>\n
            Mundse were duly seized on 9\/2\/99.\n<\/p>\n
    19.           Evidence   of   P.W.1-Vithal   Pawar,   Maintenance   Surveyor   at <\/p>\n
    Mangalwedhe gives the view of the layout of the said house No.88\/183 <\/p>\n
    at village Borale.  His cross-examination fails to disturb this view in any <\/p>\n
    manner.     In   relation   to   this   evidence,   it   is   necessary   to   further <\/p>\n
    appreciate the evidence of eye-witnesses in the present case.\n<\/p>\n
    20.           Evidence   of   P.W.4   Savita   Gaikwad   and   P.W.5   Nandkumar <\/p>\n
    Mungase reveals that P.W.5 Nandkumar on getting telephonic call from <\/p>\n
    the   house   of   Mama   Bhojane   proceeded   to   the   said   house   and   P.W.4 <\/p>\n
    Savita followed him.  Both of them made mention of electric light in the <\/p>\n
    house   of   Mama   Bhojane   at   the   material   time.     These   facts   have <\/p>\n
    remained unscathed  in their testimonies and have survived their cross-\n<\/p>\n
    examination.\n<\/p>\n
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\n                                            17<\/span><\/p>\n
    21.           As   regards   the   incident   of   assault   with   sharp   edged <\/p>\n
    weapons   i.e.   swords   and   scythe.     Both   P.W.4   Savita   and   P.W.5 <\/p>\n
    Nandkumar   deposed   that   the   deceased   Mohan   was   assaulted   with <\/p>\n
    sword.  P.W.5 Nandkumar named the accused No.1 Dhondappa, Accused <\/p>\n
    No.2 Sachin, Accused No.3 Satish and Accused No.4 Manohar as the <\/p>\n
    accused armed with sword and assaulting the deceased Mohan at the <\/p>\n
    material time.   He further went on to depose that the Accused No.1 <\/p>\n
    Dhondappa gave blow of sword on the head of  Mohan  as a result of <\/p>\n
    which   Mohan   fell   down,   and   then   he   was  assaulted   by   the   other <\/p>\n
    accused No.2 Sachin, Accused No.3 Satish and Accused No.4 Manohar <\/p>\n
    with swords. He further deposed that the Accused No.2 Sachin, Accused <\/p>\n
    No.3 Satish gave sword blows on his right shoulders and just below left <\/p>\n
    side of his throat, and he was saved due to the intervention of his sister <\/p>\n
    Savita from getting further sword blows at the hands of Accused No.5 <\/p>\n
    Suresh  and  Accused No.6  Anna.    He  gave  sequence  of  sword  blows, <\/p>\n
    successively at the hands of Accused No.1 Dhondappa, Accused No.2 <\/p>\n
    Sachin, Accused No.3 Satish.  Significantly, he spoke about the arrival of <\/p>\n
    P.W.7 Maruti Nakate at the place of occurrence at the material time.\n<\/p>\n
    22.           P.W.7 Maruti Nakate deposed that  he was knowing all the <\/p>\n
    accused, deceased Mohan, injured Nandu Mungase and his sister Savita;\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:32:52 :::<\/span>
\n                                             18<\/span><\/p>\n
    and when Mohan died, he  was   at the corner of one of the  road in <\/p>\n
    village Borale and happened to sustain injuries at the door of the house <\/p>\n
    of   Mama   Bhojane.     He   testified   that   he   sustained   blow   from   the <\/p>\n
    backside and did not know who others sustained injuries at that time.\n<\/p>\n
    Obviously,   he   turned   hostile   to   the   prosecution.     In   his   cross-\n<\/p>\n
    examination done by the prosecution, the prosecution made the reason <\/p>\n
    for his hostility, to surface.  He averred that he shifted from a hut to a <\/p>\n
    constructed house in village-Borale after the incident as a beneficiary of <\/p>\n
    the scheme of Panchayat Samity of which one of the accused Chhaya <\/p>\n
    was a chair person.  Whatever be the cause for his hostility, the evidence <\/p>\n
    of P.W.7 Maruti Nakate lost its value only as regards culprits involved in <\/p>\n
    the crime but not the occurrence of incidence at the house of Mama <\/p>\n
    Bhojane.   This can very well be seen from the averments in his cross-\n<\/p>\n
    examination   done  on   behalf  of   the   accused,  which  revealed  that  the <\/p>\n
    incident had occurred in Mama Bhojane’s wada.\n<\/p>\n
    23.           As discussed above, with the admission of P.M.examination <\/p>\n
    notes and injury certificates in evidence in response to the notice under <\/p>\n
    section 294<\/a> of Cr.P.C., there should be no difficulty in looking into the <\/p>\n
    said   medical   evidence   for   understanding   controversy   in   the   present <\/p>\n
    case.  The injury certificates Exh. 89 and 90 give details of the injuries <\/p>\n
    sustained by P.W.5 Nandkumar and P.W.7 Maruti Nakate as a result of <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:32:52 :::<\/span>
\n                                                19<\/span><\/p>\n
    the assault at the material time. Injuries, such as three incise wounds <\/p>\n
    caused by sharp weapon (i) on left side neck (grievous injury); (ii) right <\/p>\n
    shoulders   (simple   injury);   and   (iii)   right   hand   four   fingers     cut <\/p>\n
    transversely   (grievous   injury)     were   found   to   have   been   sustained <\/p>\n
    within two hours of the reported incident  by P.W.5 Nandkumar.  Incise <\/p>\n
    wound caused by sharp object was detected on the right scapula of  P.W.\n<\/p>\n
    7 Maruti Nakate.  In light of this medical evidence and taking over all <\/p>\n
    view of the total evidence, the learned trial Court   rightly concluded <\/p>\n
    that P.W. 5 Nandkumar having sustained the injuries as aforesaid could <\/p>\n
    be believed to have witnessed the incident in the electric light at the <\/p>\n
    material time and there was no reason to doubt his testimony.  Having <\/p>\n
    reached this conclusion, there was no reason for the learned Trial Court <\/p>\n
    to have discarded the testimony of P.W. 5 Nandkumar for the reason of <\/p>\n
    inconsequential   discrepancies   in   his   evidence   vis-a-vis   his   statement <\/p>\n
    Exhibit   145   recorded   by   D.W.   1   Deoram   Bhimrao   Kalbandhare, <\/p>\n
    Executive Magistrate, North Solapur.\n<\/p>\n
    24.            Perusal of the statement at Exhibit 145 recorded by D.W. 1 <\/p>\n
    Deoram   Bhimrao   Kalbandhare,   Executive   Magistrate   reveals   the   fact <\/p>\n
    that P.W. 5 Nandkumar did make a reference to his unconscious state.\n<\/p>\n
    However, this fact has to be viewed in context with other statements <\/p>\n
    made   by   him   as   well   as   the   evidence   on   record.     In   the   statement <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:32:52 :::<\/span>
\n                                                 20<\/span><\/p>\n
    Exhibit   145,   P.W.5   –   Nandkumar   reveals   the   involvement   of   the <\/p>\n
    Appellants – Accused, particularly Accused Nos.1) Dhondiba, 2) Sachin, <\/p>\n
    3)   Satish,   4)   Manohar   in   the   assault   as   a   result   of   which   he   fell <\/p>\n
    unconscious  and the  presence  of  all  the  Appellants  – Accused at the <\/p>\n
    place of incidence.   Evidence of P.W. 9 – Metkari reveals that he had <\/p>\n
    seen P.W.5 – Nandkumar and P.W.7 Maruti and one woman P.W. 4 Savita <\/p>\n
    coming out of house the house of Mama Bhojane, followed by Accused <\/p>\n
    –   Appellants   Satish   and   Sachin   at   the   material   time   and;   he   had <\/p>\n
    removed   the   injured   persons   therefrom.     The   fact   that   the   P.W.   5   –\n<\/p>\n
    Nandkumar  was  conscious   and  could have  consciously witnessed  the <\/p>\n
    said   incident   becomes   clearly   visible   from   the   evidence   of   P.W.   9   –\n<\/p>\n
    Mahadeo Metkari.\n<\/p>\n
    25.            No   reason   which   may   cloud   the   testimony   of   P.W.   5   –\n<\/p>\n
    Nandkumar, an injured victim of the assault emerges from the entire <\/p>\n
    evidence.  Discrepancies as tried to be projected from the statement at <\/p>\n
    Exhibit 145 and  122  recorded  by D.W. 1 –  Kalbandhare  and  P.W. 10 <\/p>\n
    Shatrughn   Admane,   in   the   evidence   of   P.W.   5   –   Nandkumar   do   not <\/p>\n
    change basic theme of the version of P.W. 5 – Nandkumar so as to doubt <\/p>\n
    the said version of assault made by the appellant – accused.  Moreover, <\/p>\n
    the   testimony   of   P.W.   5   –   Nandkumar   finds   corroboration   in   the <\/p>\n
    circumstances brought on record by the prosecution.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 16:32:53 :::<\/span>
\n                                                21<\/span><\/p>\n
    26.            It can very well be seen from the evidence of P.W. 11 Suresh <\/p>\n
    Ghadge that the dead body of Mohan and weapons used in the assault <\/p>\n
    were found lying in the house of Mama Bhojane.   Despite hostility of <\/p>\n
    the   panch   witnesses,   the   admitted   evidence   on   record,   particularly <\/p>\n
    inquest panchanama Exhibit 56 and photographs Exhibit 62 to 66 do <\/p>\n
    lend   flavour   of   truth   to   the   testimony   of   P.W.   11   –   Suresh   Ghadge.\n<\/p>\n
    Results   of   scientific   investigation   coupled   with   the   circumstances   on <\/p>\n
    record   through   the   testimony   of   P.W.   11   –   Suresh   Ghadge   do   show <\/p>\n
    involvement   of   the   appellant   –   accused   as   testified   by   P.W.   5   –\n<\/p>\n
    Nandkumar.  There is no explanation coming forth from the accused for <\/p>\n
    the detection of human blood in the soil collected from the house of <\/p>\n
    Mama Bhojane and in particular the clothes seized from the person of <\/p>\n
    the accused.\n<\/p>\n
    27.            Postmortem   examination   report   Exhibit   60   reveals   that <\/p>\n
    body of the deceased Mohan Mahadeo Mungse, a resident of Village <\/p>\n
    Borale which body was brought to the rural hospital, Mangalwedha for <\/p>\n
    postmortem   examination   by   P.C.   Mahadeo   Metkari   (P.W.   9),   on <\/p>\n
    examination was found with the following antemortem injuries:-\n<\/p>\n
    “1.    Incised would, 7\u00bd” 1″x2″, extending from vertex forehead,
\n           nose to upperlip with fracture skull in the same line, soft <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:32:53 :::<\/span>
\n                                               22<\/span><\/p>\n
           tissue and brain visible, bled profusely;\n<\/p>\n
    2.     Incised wound, 7″x2″, extending from forehead to right ear <\/p>\n
           with fracture skull in same line, right eye destroyed, ear
\n           cut, brain matter visible, fresh.\n<\/p>\n
    3.     Incised wound, 6″ x \u00bd” x \u00bd”, right parietal occipital region,
\n           oblique;\n<\/p>\n
    4.     Incised would on chin and lowerlip 2 \u00bd” x 1″ x 1″ oblique <\/p>\n
           with fracture lower jaw at chin;\n<\/p>\n
    5.     Incised   would   with   cut   throad,   4   \u00bd”   x   \u00bd”   x   1″   above
\n           thyroid cartilege, vessel and narrow cut;\n<\/p>\n
    6.     Multiple   linear   abrasions   on   chest   abdomen   and   right <\/p>\n
           shoulder, 8″ to 13″; and<\/p>\n
    7.     Multiple abrasions on right thigh, 2″ x 3″, 2 \u00bd” x 2:, fresh.”\n<\/p>\n
    and   the  deceased   died   of   shock   and  hamerage  due   to   multiple   scull <\/p>\n
    fracture   coupled   with   the   associated   injuries.     These   facts   do   not <\/p>\n
    militate again the testimony of P.W. 5 – Nandkumar and P.W. 9 Metkari.\n<\/p>\n
    28.            The   learned   Trial   Court   observed   that   there   is   reliable <\/p>\n
    evidence of P.W. 5 – Nandkumar and P.W. 9 – Mahadeo Metkari against <\/p>\n
    the appellant – Accused Nos.1 to 6, and the exclusion of evidence of <\/p>\n
    other witnesses would not render the evidence of P.W. 5 – Nandkumar <\/p>\n
    and P.W. 9 – Mahadeo Metkari useless.  Considering the total evidence <\/p>\n
    on record, there is no reason to discredit the findings of the learned <\/p>\n
    Trial Court.\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:32:53 :::<\/span>
\n                                                 23<\/span><\/p>\n
    29.            As   regards   the   submission   of   the   learned   Advocate <\/p>\n
    Mr.Agandsurve   for   the   appellant   –   accused   that   there   was   no   active <\/p>\n
    participation of the appellant – accused Nos.5 and 6 visible from the <\/p>\n
    evidence, it would be essential to observe that P.W. 5 – Nandkumar in <\/p>\n
    his evidence averred about the presence of the accused No.5 – Suresh <\/p>\n
    and accused No.6 – Anna armed with swords at the material time, and <\/p>\n
    that   he   was   providentially   saved   due   to   the   intervention   of   P.W.   4   –\n<\/p>\n
    Savita.     Evidence   of   P.W.   4   –   Savita   also   speaks   about   the   armed <\/p>\n
    presence of the said accused persons at the place of incidence at the <\/p>\n
    material time.  She deposed that the accused had encircled the deceased <\/p>\n
    Mohan.  These facts in the evidence are sufficient to rope in the accused <\/p>\n
    No.5   –   Suresh   and   accused   No.6   –   Anna   in   the   present   crime   as   it <\/p>\n
    reveals the common object of the appellant – accused in assembling at <\/p>\n
    the place of incident at the material time.\n<\/p>\n
    30.            In midst of delivering this judgment, a Criminal Application <\/p>\n
    bearing   No.1171   of   2010   was   moved   on   behalf   of   the   appellant   –\n<\/p>\n
    accused Sachin Bhojane for permission to engage another advocate and <\/p>\n
    to make further submissions on his behalf.  It is contended on behalf of <\/p>\n
    the appellant – accused Sachin Bhojane that he was not aware about his <\/p>\n
    appeal reaching final hearing and only after he was intimated by the jail <\/p>\n
    authorities in that regard, he started taking steps to engage some senior <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:32:53 :::<\/span>
\n                                              24<\/span><\/p>\n
    advocate of his choice to represent him in the said appeal, and in the <\/p>\n
    meanwhile some other advocate, not authorized by him proceeded with <\/p>\n
    his submissions.   The record reveals that as back as in January 2006, <\/p>\n
    the appeals were posted for hearing and the appellant – accused was <\/p>\n
    duly represented by Advocate Ujwal Agandsurve.  On 25 th August 2010, <\/p>\n
    learned Advocate Agandsurve made a plea for giving discharge to him <\/p>\n
    in the present appeal.  It was then observed that the learned Advocate <\/p>\n
    Agandsurve   continued   to   be   on   record   and   so   long   as   he   was   not <\/p>\n
    discharged,  he  owed  duty  to  the  Court  to  give  assistance  for  speedy <\/p>\n
    disposal of the appeals.  For the reason of appellant – accused Nos.2 to <\/p>\n
    4 being in jail, it was clarified that this Court would proceed with the <\/p>\n
    hearing of the appeals on the next date and the appellant – accused <\/p>\n
    Nos.5 and 6, who are on bail should make necessary arrangement to <\/p>\n
    appear and espouse their cause.  On 31st August 2010, learned Advocate <\/p>\n
    Agandsurve made a submission that he had been instructed to appear <\/p>\n
    for appellant – accused Nos.5 and 6 and this happened in the presence <\/p>\n
    of the accused.  The appeals were accordingly taken up for hearing the <\/p>\n
    next day under caption ‘accused in jail’.  Now, therefore, it does not lie <\/p>\n
    in the mouth of the applicant – accused Sachin Bhojane that Learned <\/p>\n
    Advocate   Agandsurve   was   not   authorized   by   him   to   proceed   in   the <\/p>\n
    present   appeal.     The   learned   Advocate   Agandsurve   being   duly <\/p>\n
    instructed by the applicant – accused Sachin Bhojane had tendered hisv <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:32:53 :::<\/span>
\n                                                 25<\/span><\/p>\n
    appearance on record, and as such was duty bound to proceed with the <\/p>\n
    appeals on behalf of the appellant – accused, including the applicant <\/p>\n
    Sachin   Bhojane.     The   Criminal   Application   No.1171   of   2010   is, <\/p>\n
    therefore, rejected.\n<\/p>\n
    31.            In   our   considered   opinion,   the   appeals   for   the   reasons <\/p>\n
    aforesaid   are   without   any   merit.     As   observed   earlier,   the     Criminal <\/p>\n
    Appeal   No.452   of   2002   stood   abated.   Other   Appeals   are,   therefore, <\/p>\n
    dismissed. Bail bonds of accused Nos.5 and 6 are cancelled.  They shall <\/p>\n
    surrender forthwith.\n<\/p>\n
           (U.D. Salvi, J.)                              (A.M. Khanwilkar, J.)\n      \n   \n\n\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 16:32:53 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Manohar Sidram Ukarande vs The State Of Maharashtra on 18 October, 2010 Bench: A.M. Khanwilkar, U. D. Salvi 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.450 OF 2002 Manohar Sidram Ukarande, Age: 35 years, R\/o. Borale, Taluka Mangalwedha, Dist.: Solapur (At present Lodged in Yervade […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-270809","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nManohar Sidram Ukarande vs The State Of Maharashtra on 18 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manohar-sidram-ukarande-vs-the-state-of-maharashtra-on-18-october-2010-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manohar Sidram Ukarande vs The State Of Maharashtra on 18 October, 2010 - 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