Bombay High CourtShyamsundar Vithal Pawle And ... vs The State Of Maharashtra on 11 September, 2020Bench: S.V. Gangapurwala, M. G. Sewlikar-1-\n\n         IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n                      BENCH AT AURANGABAD\n                 CRIMINAL APPEAL NO. 268 OF 2014\n\n1.     Shyamsundar Vithal Pawle\n       age 63 years, occ. Agri.\n\n2.     Sharad Shyamsundar Pawle\n       age 26 years, occ. Agri.\n\n       R/o Gonar,Tq.Kandhar\n       Dist. Nanded.                                        Appellants\n\n       Versus\n\nThe State of Maharashtra                                    Respondents\n\nMr. Rajenderaa Deshmukkh, Senior Counsel instructed by Mr. Govind A.\nKulkarni, Advocate for the appellants.\nMr. M.M. Nerlikar, APP for the State.\n\n                               WITH\n                 CRIMINAL APPEAL NO. 465 OF 2014\nMadhav s/o Venkat Pawle\nAge 38 years, occ. Agriculture\nR/o Gonar, Tq. Mukhed\nDist. Nanded                                     Appellant\n\n       Versus\n\nThe State of Maharashtra                                    Respondents\n\nMr. N.S. Ghanekar, Advocate for the appellant.\nMr. M.M. Nerlikar, APP for the State.\n\n                                 CORAM : S. V. Gangapurwala &\n                                         M.G. Sewlikar, JJ.RESERVED ON : 07th August, 2020.PRONOUNCED ON : 11th September, 2020.::: Uploaded on - 11/09/2020                 ::: Downloaded on - 12/09/2020 08:29:42 :::-2-JUDGMENT : ( PER M. G. SEWLIKAR, J.)1.              Criminal Appeal No. 268/2014 preferred by original\n\naccused Nos. 1 and 3 and, Criminal Appeal No. 465/2014 preferred by\n\noriginal accused No. 2, are being disposed of by common order as they\n\narise out of the judgment and order dated 05.04.2014, passed by the\n\nlearned Additional Sessions Judge, Kandhar, Dist. Nanded, whereby\n\naccused Nos. 1 to 3 have been convicted of the offence punishable\n\nunder Section 364 read withSection 34of the Indian Penal Code and\n\nare sentenced to rigorous imprisonment for ten years and to pay fine of\n\nRs. 1,000/- each in default, to suffer rigorous imprisonment for six\n\nmonths each and, they were also sentenced imprisonment for life and\n\nto pay fine of Rs. 1,000/- each in default, to suffer rigorous\n\nimprisonment for six months for offence punishable underSection 302read withSection 34of the Indian Penal Code. Both the sentences are\n\ndirected to run concurrently.   By the said judgment, accused Nos. 1 to\n\n3 are acquitted of the offence punishable underSection 506read withSection 34of the Indian Penal Code. By the same judgment and order,\n\naccused No. 4 has been acquitted of all the offences.::: Uploaded on - 11/09/2020                 ::: Downloaded on - 12/09/2020 08:29:42 :::-3-2.              Facts giving rise to these appeals are that appellants 1 and\n\n2 in Criminal Appeal No. 268/2014 original accused Nos. 1 and 2\n\n(hereinafter referred to as accused Nos. 1 and 3) and appellant in\n\nCriminal Appeal No. 465/2014 original accused No. 2(hereinafter\n\nreferred to as accused No. 2) and the deceased Ananda Ganpati Pawle\n\nare the residents of village Gonar. It was the grievance of the deceased\n\nAnanda Pawle that accused Nos. 1 to 3 used to let lose cattle of accused\n\nNo. 1 as a result of which, the cattle used to graze in the land of the\n\ndeceased. On 31.12.2010, there was an altercation between the wife of\n\nthe deceased and accused No. 1 Shyamsundar on the ground that cattle\n\nof accused No. 1 Shyamsundar grazed in the land of the deceased. On\n\n31.12.2010, devotional songs were being sung in the temple at Gonar.\n\nAccused No. 1 Shyamsundar was present there. Deceased Ananda went\n\nthere and abused the accused No. 1 and kicked him on the ground of\n\ngrazing his cattle in the land of the deceased. Accused No. 1\n\nShyamsundar lodged First Information Report in Mukhed Police Station\n\non 01.01.2011 at around 1.00 pm.3.              It is further the case of the prosecution that on 01.01.2011\n\nat about 12.30 pm, deceased Ananda was standing in Lokhande square,::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::-4-Mukhed. Soon thereafter, accused No.1 Shyamsundar and accused no.\n\n2 Madhav came there on motorcycle and started slapping him on the\n\nground of quarrel in the previous night on account of grazing of cattle\n\nand made him sit on the motorcycle and took him by Kautha Road.\n\nThey took him to village Beli and at the pati (the board on which name\n\nof the village is written) beat him. Accused No. 1 beat him by means of\n\nkatti on his both right and left elbows, right and left knees and on right\n\nfoot. Accused No. 2 delivered a blow of stick on both the knees of the\n\ndeceased Ananda and caused fracture to his legs. Accused No. 2 also\n\ndelivered a blow of stick on his left hand and caused fracture. He also\n\ndelivered a blow of stick on his head. Accused No. 3 Sharad dealt a\n\nblow of stone on the head of the deceased Ananda and accused No. 4\n\nbeat him with kicks and fist blows.4.              It is further the case of the prosecution that one Bhimrao\n\nPatil called up police station Mukhed at 3.30 pm and informed that the\n\ndeceased Ananda was lying near Beli pati in injured condition. Police\n\nInspector Kode received this call and directed PW 11 Police Naik\n\nPundlik Bondlewad to go to the spot of the incident and check the\n\nauthenticity of the information. When PW 11 Bondlewad went to the::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::-5-spot, he did not find anyone and, therefore, he again called back Police\n\nInspector Kode who gave him contact number of Bhimrao Patil of\n\nvillage Beli.     When PW 11 Bondlewad        called up Bhimrao Patil, he\n\n(Bhimrao Patil) told him that the deceased was lying on the road to\n\nBeli. When he went there, he found a person lying near the road in the\n\npool of blood. Deceased Ananda on enquiry, told him that accused Nos.\n\n1 to 3 assaulted him by sickle, stone and stick. His both legs were\n\nfractured. Thereafter, he took the deceased Ananda in an auto rickshaw\n\nto Government Hospital, Mukhed, where his dying declaration was\n\nrecorded.       This dying declaration was treated as First Information\n\nReport (Exhibit 44) on the basis of which, offence underSections 364,307,506read withSection 34of the Indian Penal Code was registered\n\nagainst accused nos. 1 to 3.5.              Having regard to the critical condition of the deceased, the\n\nMedical Officer at Mukhed advised the deceased to be taken to Nanded\n\nfor treatment. On reaching Nanded, the doctor declared him dead. The\n\noffence was, therefore, converted intoSection 302of the Indian Penal\n\nCode.::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::-6-6.              Investigation was taken up. Statements of witnesses were\n\nrecorded. After having recorded statement of witnesses, it was revealed\n\nthat the deceased had given oral dying declaration to the witnesses. PW\n\n17 Investigation Officer Syed Saber Syed Ahmed visited the spot of the\n\nincident and drew spot panchanama Exhibit 26. The dead body was\n\nsent for Post Mortem. PW 9 Medical Officer Dr. Durge conducted post\n\nmortem and prepared post mortem report Exhibit 54. Accused Nos. 1\n\nto 3 were arrested on 05.01.2011.         On 06.01.2011, accused no.1\n\nShyamsundar volunteered to produce katti and, accused No. 2 Madhav\n\nvolunteered to produce stick. On recovery of weapons, memorandum\n\nand recovery panchanama Exhibits 73, 74 and 75 respectively were\n\nprepared.        Clothes of the accused were seized under seizure\n\npanchanama Exhibit 77. It was sent to the Chemical Analyser with PW\n\n6 Manohar Pawar for analysis. The Chemical Analyser reported that no\n\npoison was detected and on the basis of his report the Medical Officer\n\n(PW 9), who had reserved his opinion on the cause of death, gave the\n\nopinion that the cause of death was head injury. After collection of\n\nsufficient evidence, charge-sheet was laid before the learned Judicial\n\nMagistrate First Class, Mukhed, who committed the same to the Court\n\nof Sessions, Nanded and it was made over to the Additional Sessions::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::-7-Judge, Kandhar link Court Mukhed, for trial.7.              The learned Additional Sessions Judge, Kandhar, Link\n\nCourt Mukhed, framed charge against the accused vide Exhibit 13. It\n\nwas read over and explained to the accused. They pleaded not guilty to\n\nit and claimed to be tried. Their defence is of total denial and false\n\nimplication. Accused No. 1 also took the plea of alibi. According to\n\naccused No. 1 Shyamsundar, at the time of the incident, he was not\n\npresent at the scene of offence but was at Mukhed police station for\n\nlodging the report against the deceased Ananda.8.              After recording evidence of 18 witnesses, the learned trial\n\nCourt recorded conviction against accused Nos. 1 to 3 - the appellants\n\nherein and acquitted accused No. 4.          This is how the appellants -\n\naccused Nos. 1 to 3 are before this Court.9.              The State has not preferred appeal against the acquittal of\n\naccused no. 4 Gajanan Pawle.10.             Heard Shri Govind Kulkarni, the learned counsel for the::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::-8-appellants in Criminal Appeal No. 268/2014, Shri Nilesh Ghanekar, the\n\nlearned counsel for appellant in Criminal Appeal No. 465/2014 and,\n\nShri Nerlikar, learned APP for the State in both the appeals.11.             Learned counsel Shri Ghanekar argued that the evidence of\n\nthe prosecution is based on the dying declaration given by the deceased\n\nand recorded by PW 11 Police Naik Bondlewad. He argued that the\n\ndying declaration is not worth relying as the Medical Officer, who\n\ncertified the deceased to be in sound mental condition to give dying\n\ndeclaration, was not examined. The prosecution has not disclosed his\n\nname also. Therefore, the prosecution is conspicuously silent about the\n\nmental condition of the deceased at the time of recording of dying\n\ndeclaration.      He argued that the dying declaration cannot be relied\n\nupon as PW 11 Police Naik Bondlewad who recorded the dying\n\ndeclaration has admitted in the cross examination that the size of the\n\nwords "'kjn ioys ;kus MksD;koj nxM ekjyk" is small as compared to the size of\n\nother letters in the dying declaration. He argued that this clearly shows\n\nthat those words were subsequently added by PW 11 Police Naik\n\nBondlewad. He argued that for these reasons also, no reliance can be\n\nplaced on the dying declaration.           He further argued that the::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::-9-prosecution has not adduced evidence about examination of the\n\ndeceased by the Medical Officer, Mukhed, nor the Medical Officer,\n\nMukhed was examined by the prosecution for the reasons best known\n\nto it. He argued that in the absence of this evidence, it is difficult to\n\ngauge as to what was the mental and physical condition of the deceased\n\nat the time of admission. In the absence of this evidence, it is difficult\n\nto conclude that the deceased was in a sound mental state at the time\n\nof giving dying declaration. He further argued that the Medical Officer\n\nShri Durge has stated that brain hemorrhage covered broca's center.\n\nBroca's center is known as speech center. If broca's center is hampered\n\nsufficiently it causes aphasia and a person cannot speak. He further\n\nstated that reference of Subarachonoid hemorrhage in clause 19(iii) of\n\nthe Post Mortem report covers both lobes of cerebral hemispheres\n\ncovering broca's center. He submitted that in this backdrop it is difficult\n\nto believe that the deceased was in a position to speak so as to give\n\ndying declaration to PW 11 Police Naik Bondlewad and oral dying\n\ndeclaration to the witnesses.       He argued that, according to the\n\nprosecution, the incident took place at three places. The first place of\n\nthe incident is Zanzan dhaba, the second place of the incident is\n\nLokhande chowk and the third place is Beli pati.       The prosecution has::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 10 -not prepared the spot panchanama of Lokhande Chowk. He further\n\nargued that PW 14 Sambhaji Waghmare is an eye-witness. He argued\n\nthat he is a chance witness as he happened to be there by chance and\n\nthe evidence of chance witness has to be accepted with caution and\n\nneeds to be scrutinized minutely.    He submitted that the other eye\n\nwitnesses are the relatives of the deceased. Their statements are also\n\nnot consistent. PW 3 Manohar Dharasure did not mention the presence\n\nof accused No. 1 whereas the other witnesses have mentioned his\n\npresence. He argued that the absence of accused No. 1 from the spot of\n\nthe incident has been satisfactorily proved by the accused. He argued\n\nthat at the time of the incident, accused No. 1 was in Kandhar police\n\nstation for lodging the complaint.       The incident, as per the dying\n\ndeclaration, took place at 12.30 pm and the accused No. 1 was in\n\nKandhar police station at 1.00 pm. He argued that this clearly shows\n\nthat at the time of the incident, accused No. 1 Shyamsundar was in\n\nKandhar police station and, therefore, his absence at the spot of the\n\nincident has been proved sufficiently.       He further submitted that\n\nrecovery of weapons at the instance of accused No. 1 and accused No. 2\n\nis doubtful because the accused were hand cuffed right from the time of\n\nleaving the police station till they reported back. He argued that this::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 11 -shows that at the time of recovery of the weapons, accused Nos. 1 and\n\n2 were hand cuffed which clearly indicates that the statement was not\n\nvoluntary but was given under pressure and duress.                  Therefore,\n\nrecovery is not reliable. He further argued that the memorandum of\n\nrecovery of weapons from accused is not worth relying as joint\n\nstatement has been recorded by the Investigation Officer. He argued\n\nthat the law requires that two separate statements ought to have been\n\nrecorded.      He argued that the recovery becomes doubtful for these\n\nreasons also. He further argued that        the dying declaration also\n\nlacks corroboration in material particulars.      According to learned\n\ncounsel Shri Ghanekar, the post mortem report shows incised wounds\n\non parietal region whereas the dying declaration shows that blows of\n\nkatti were given on both knees and both hands. No injury was there on\n\nhead by means of katti. Dying declaration shows that the deceased was\n\nbeaten by means to stone on head but post mortem report does not\n\nindicate any such injury.       He argued that, therefore, the dying\n\ndeclaration lacks corroboration and for this reason also, no reliance can\n\nbe placed on the dying declaration.          He argued that due to\n\nsubarachonoid hemorrhage the condition of the deceased was\n\ndeteriorating and, therefore, the deceased was not in a position to::: Uploaded on - 11/09/2020                 ::: Downloaded on - 12/09/2020 08:29:42 :::- 12 -speak which means, at the time of giving oral dying declaration the\n\ndeceased was not in a position to speak and, therefore, oral dying\n\ndeclarations also need to be discarded. He argued that for all these\n\ndeficiencies, the prosecution has failed to prove guilt of accused beyond\n\nreasonable doubt.12.             Learned counsel Shri Ghanekar placed reliance on the\n\nfollowing judgments :-1.     Arvind Vs. State of Uttar Pradesh\n       Reported in 2019 SCC Online All 40912.     Nallapati Sivaih Vs. S.D.O. Guntur, A.P.Reported in 2008 AIR(SC) 193.     Milind Ramchandra Gharat Vs. State of Maharashtra\n       & another\n       Reported in 2015 ALL M.R. (Cri) 23774.     Laxman Keraba Patil Vs. State of Maharashtra\n       Reported in 2000 ALL M.R. (Cri) 15305.     Suresh s/o Mahadeo Deshmukh Vs. State of Maharashtra\n       Reported in 2018 ALL MR(Cri) 38376.     Suresh s/o Arju Dodorkar (Sonar) Vs. State of Maharashtra\n       Reported in 2005 ALL M.R. (Cri) 159913.             Shri Govind Kulkarni, learned counsel for appellants in\n\nCriminal Appeal No. 268/2014 adopted the arguments of learned::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 13 -counsel Shri Ghanekar. He further submitted that in Police Manual,\n\ncertain guidelines are issued for the police officers for recording dying\n\ndeclarations. He argued that Clause (3) of Section 171 of the Manual\n\nstates that if the dying declaration is recorded by the police, it should\n\nbe, as far as possible, in question and answer form and in the very\n\nwords of the declarant. He argued that PW 11 Bondlewad did not\n\nrecord the dying declaration in question and answer form and,\n\ntherefore, it is not worth accepting.     Learned counsel Shri Kulkarni\n\nfurther argued that the oral dying declaration is a weak type of\n\nevidence and should not generally be accepted and conviction should\n\nnot be recorded on the basis of the oral dying declaration. He further\n\nargued that the dying declaration also suffers from several infirmities.\n\nThe time of commencement of dying declaration and the time at which\n\nit was completed is not recorded on the dying declaration. The Medical\n\nOfficer who endorsed on the dying declaration about the medical\n\nfitness of the deceased has not been examined for the reasons best\n\nknown to the prosecution.       Hence, the dying declaration is not\n\nconfidence inspiring and no reliance can be placed on it. He argued\n\nthat the evidence of PW 14 Sambhaji Waghmare shows that five\n\npersons were riding on a motorcycle and it is impossible to believe that::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 14 -five persons can ride a motorcycle. Hence, the prosecution story is not\n\nfree from doubt. He, therefore, prayed for acquittal of the appellants.14.             Shri Nerlikar, learned APP argued that the eye-witnesses\n\nhave no grudge against the accused. He argued that the accused had\n\nmotive to kill the deceased on account of the quarrel that took place in\n\nthe previous night. He submitted that the deceased had given oral\n\ndying declaration to PW 11 Police Naik Bondlewad.                   The dying\n\ndeclaration was recorded in the Government Hospital at Mukhed. He\n\nargued that there is no requirement of law that before recording dying\n\ndeclaration a certificate from Medical Officer is required to be obtained\n\nabout the mental condition of the deceased. He submitted that it is\n\nsufficient if the person recording dying declaration satisfies himself\n\nabout the mental fitness of the declarant before recording the dying\n\ndeclaration. In the case at hand, there is evidence to show that the\n\ndeceased was in a sound state of mind to give the dying declaration.\n\nHe was in a position to speak and the eye-witnesses have testified to\n\nthat effect.     He argued that the eye-witnesses have deposed about the\n\ndeceased being in the company of all the three accused, the acquitted\n\naccused and the deceased who was in injured condition.                      Their::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 15 -evidence has remained unshattered.         The deceased was seen last in\n\nthe company of the accused and in a span of one hour, the deceased\n\nwas found in injured condition near Beli Pati, which clearly shows that\n\nthe accused were the authors of the crime. He argued that the incident\n\ntook place at about 2.00 pm and accused No. 1 Shyamsundar was in\n\nMukhed police station at 1.00 pm.          He argued that some of the\n\nwitnesses have stated the time of the incident to be between 2.30 pm to\n\n3.00 pm.       Therefore, it was possible for accused No. 1 to come to\n\nKautha, which is around 35 km from Mukhed. He argued that the\n\naccused No. 1 had sufficient time at his disposal to come down to\n\nZanzan dhaba from Mukhed in a span of one hour. He argued that the\n\ntime stated by the witness cannot be calculated with mathematical\n\nprecision. He further argued that the witnesses are the rustic villagers\n\nand they have no sense of time. Therefore, some leeway has to be\n\ngiven so far as calculation of time is concerned. Learned APP argued\n\nthat the distance between Kandhar police station and Mukhed is 35 km.\n\nSaid distance can be covered by motorcycle in a span of an hour.\n\nTherefore, the plea of alibi of accused No. 1 cannot be believed. He,\n\ntherefore, prayed for the dismissal of both the appeals.::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 16 -15.             Learned APP has placed reliance on following judgments :1.State of Uttar Pradesh vs. M.K. Anthonyreported in AIR 1985\n       Supreme Court 482.Mani @ Udattu Man and others vs. Statereported in 2009 AIR\n       (SCW) 2190.3.Jakki @ Selvaraj and another vs. Statereported in 2007(2)\n       Crimes 1514.Kishore Bhadke vs. State of Maharashtrareported in\n       2017(1) AIR Bom.R (Cri.) 5015.Mahavir Singh vs. State of Haryanareported in\n       2014(4) Mh.LJ(Cri) 382.16.             Prosecution evidence is divided in three categories viz.,1)     Dying declaration recorded by PW 11 Police Naik Bondlewad.2)     Oral dying declaration given by the deceased to PW 2 Venkat\n\nPawle, PW 7 Nilawati Pawle - wife of the deceased and PW 13\n\nShantabai.3)     Witnesses who saw the deceased in injured condition with the\n\naccused and they are also the witnesses who had last seen the deceased\n\nin the company of the accused.17.             Shri Ghanekar placed reliance on the case of Suresh s/o::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 17 -Mahadeo Deshmukh vs. State of Maharashtrareported in 2018 ALL MR\n\n(Cri) 3837. In this case, the deceased along with his wife Maya was\n\nresiding in Murtizapur. The deceased had gone to the house of the\n\naccused Suresh Deshmukh.         Wife of the deceased learnt from her\n\ndaughter that the deceased was lying in a pool of blood. When she\n\nwent there, the accused gave her dying declaration that he was beaten\n\nby accused. The dying declaration was held suspicious as when the\n\ndeceased was taken to the hospital he was found dead by the doctor. In\n\nthe case at hand, there is evidence of eye-witnesses and also evidence of\n\nlast seen theory. Therefore, this case is not applicable to the facts of the\n\ninstant case.18.             Dying declaration of the deceased was recorded by PW 11\n\nPolice Naik Bondlewad. So far as dying declaration is concerned, the\n\nlaw is well settled that conviction can be recorded solely on dying\n\ndeclaration provided it is truthful, voluntary and inspires confidence in\n\nthe mind of the Court. The dying declaration recorded under Section\n\n32 of the Indian Evid ence Act, 1872, is an exception to the general rule\n\nagainst the hearsay evidence. In the case ofSham Shankar Kankaria vs.\n\nState of Maharashtrareported in (2006)13 SCC 165, the Honourable::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::- 18 -Supreme Court has held as under :-"      At this juncture, it is relevant to take note ofSection 32of the Indian Evidence Act, 1872 (in short\n            'Evidence Act') which deals with cases in which\n            statement of relevant fact by person who is dead or\n            cannot be found etc. is relevant. The general rule is\n            that all oral evidence must be direct viz. if it refers to\n            a fact which could be seen it must be the evidence of\n            the witness who says he saw it, if it refers to a fact\n            which could be heard, it must be the evidence of the\n            witness who say he heard it, if it refers to a fact\n            which could be perceived by any other sense, it must\n            be the evidence of the witness who says he perceived\n            it by that sense. similar is the case with opinion.\n            These aspects are elaborated inSection 60. The\n            eight clauses ofSection 32are exceptions to the\n            general rule against hearsay just stated. Clause (1)\n            ofSection 32makes relevant what is generally\n            described as dying declaration, though such an\n            expression has not been used in any Statute. It\n            essentially means statements made by person as to\n            the cause of his death or as to the circumstances of\n            the transaction resulting in his death. The grounds\n            of admission are: firstly, necessity for the victim being\n            generally the only principal eye witness to the crime,\n            the exclusion of the statement might deflect the ends\n            of justice; and secondly, the sense of impending\n            death, which creates a sanction equal to the\n            obligation of an oath. The general principle on\n            which this species of evidence is admitted is that they\n            are declarations made in extremity, when the party is\n            at the point of death and when every hope of his\n            world is gone, when every motive to falsehood is\n            silenced, and the mind is induced to the most\n            powerful considerations to speak the truth; a\n            situation so solemn and so lawful is considered by\n            the law as creating an obligation equal to that which\n            is imposed by a positive oath administered in a Court::: Uploaded on - 11/09/2020                      ::: Downloaded on - 12/09/2020 08:29:42 :::- 19 -of justice. ........."It is further held as under :"11. Though a dying declaration is entitled to great\n           weight, it is worthwhile to note that the accused has\n           no power of cross-examination. Such a power is\n           essential for eliciting the truth as an obligation of oath\n           could be. This is the reason the Court also insists that\n           the dying declaration should be of such a nature as to\n           inspire full confidence of the Court in its correctness.\n           The Court has to be on guard that the statement of\n           deceased was not as a result of tutoring, or prompting\n           or a product of imagination. The Court must be\n           further satisfied that the deceased was in a fit state of\n           mind after a clear opportunity to observe and identify\n           the assailant. Once the Court is satisfied that the\n           declaration was true and voluntary, undoubtedly, it\n           can base its conviction without any further\n           corroboration. It cannot be laid down as an absolute\n           rule of law that the dying declaration cannot form the\n           sole basis of conviction unless it is corroborated. The\n           rule requiring corroboration is merely a rule of\n           purdence.On these principles, it will have to be examined whether\n\nthe dying declaration recorded by PW 11 Police Naik Bondlewad meets\n\nall the requirements.19.             Before adverting to the issue whether the dying declaration\n\ninspires confidence or not, it is worthwhile to ascertain whether the\n\ndeath of the deceased was homicidal or not.             The prosecution has::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 20 -examined PW 9 Dr. Durge who conducted the post mortem. He found\n\nfollowing injuries while conducting the post mortem and they are as\n\nunder :-1.     subarchonoid hemorrhage all over brain surface, red in colour.2.     Intra-parenchyman brain hemorrhage over left parietal region.3.     right lung congested having contusion of 2 cm x 2 cm over\n       interior part of right lung, red in colour. Left lung congested.4.     Little blood in both sides of heart.20.             Medical Officer Dr. Durge has given the cause of death as\n\nbrain hemorrhage due to head injury. Looking to the nature of the\n\ninjuries, it is evident that the death of the deceased was homicidal. It is\n\nalso not the defence of the accused that death of the deceased was not\n\nhomicidal or that it was accidental.21.             Coming back to the recording of dying declaration, PW 11\n\nPolice Naik Bondlewad is the witness who first found the deceased lying\n\nnear Beli Pati.       According to him, Police Inspector Kode of Mukhed\n\npolice station informed him at about 3.30 pm that the deceased was\n\nlying at Beli Pati. When PW 11 Police Naik Bondlewad went there,\n\ninitially, he did not find the injured. Therefore, he called back Police::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::- 21 -Inspector Kode, who gave him the number of Bhimrao Patil who had\n\nintimated the police that the deceased was lying at the spot of the\n\nincident. Since the deceased was not found at the place where PW 11\n\nwas directed to go, he called Bhimrao Patil and, on his instructions, he\n\nfound the deceased lying at Beli Pati in a pool of blood. He asked the\n\ndeceased as to how the deceased sustained injuries. Deceased Ananda\n\ntold him that accused Nos. 1 to 3 assaulted him by a big sickle, stone\n\nand stick.       He then shifted the deceased to Government Medical\n\nHospital, Mukhed in auto rickshaw.                    He recorded statement of the\n\ndeceased in Mukhed hospital.                  He obtained endorsement of doctor\n\nregarding condition of patient to give the statement. He thereafter\n\nrecorded statement of the deceased.                           He read over the dying\n\ndeclaration to the deceased. The deceased stated it to be correct. The\n\ndeceased put his thumb impression on it. The dying declaration Exhibit\n\n58 is is in Marathi and it is reproduced for facility of reference as\n\nunder :-fn- 1-1-2011 jksth eh ldkGh 10 ok eh dkekfufeRr vkyks- eh\n            vankts nqikjh lkMs ckjk oktrkps lqekjkl yks[kaMs pkSd eq[ksM ;sFks Fkkacyks\n            vlrk rso<;kr vkeP;k Hkkodhps 'kkelqanj foBBy ioys o ek/kojko\n            O;adVh ioys gs eksVkj lk;dyoj vkys o R;kauh eyk rw dky vkeP;k\n            lkscr okn dk dsykl Eg.kwu >kiMk cqD;kus ekjgk.k d#u eyk eksVkj\n            lk;dyoj clowu ?ksmu dkSBk jksM ?ksmu xsys o rsFks usowu eyk csyh::: Uploaded on - 11/09/2020                                 ::: Downloaded on - 12/09/2020 08:29:42 :::- 22 -xkops ikVh toGwu csyh xkokr tk.kkÚ;k jLR;kus ikVh iklwu FkksM;k\n            varjkoj ?ksmu xsys- o rsFks eyk 'kkelqanj ;kus rq ek÷;kl lkscr dk\n            okn dsyk Eg.kwu R;kus toGhy dRrh dk<wu mtO;k gkrkP;k dksijktoG]\n            mtO;k ik;kP;k xqM?;ktoG] mtO;k ik;kP;k iatkoj] Mkos ik;kps\n            xqM?;ktoG] MkO;k gkrkps dksijkoj ek#u xaHkhj t[keh dsys o ek/ko\n            O;adVh ioys ;kauh dkBhus ek÷;k nksugh ik;koj xqM?;k[kkyh ek#u gkM\n            eksMys o MkO;k gkrkP;k eksMhr ek#u gkr eksMyk vkgs o MksD;kl ekjys\n            R;keqGs jDr fu?kkys- o 'kjn 'kkelqanj ioys ;kus nxMkus MksD;kr ekjys\n            rjh vkeP;k Hkkodhps 'kkelqanj foBBy ioys ek/ko O;adVh ioys ;kauh\n            eyk dky jksth vkeP;k lkscr okn dk dsykl vls Eg.kwu dkBhus o\n            yks[kaMh dRrhus ek÷;k gkrkoj] ik;koj] gkrkoj] MksD;kr ek#u xaHkhj\n            t[keh d#u gkrkps o ik;kps gkM eksMys vkgs- eyk eksVj lk;dyoj\n            clowu yks[kaMs pkSdkrwu ?ksmu tkr vlrkuk cÚ;kp yksdkauh ikghys vkgs-22.             This statement shows that on 01.01.2011, the deceased\n\nwas standing in Lokhande Chowk, Mukhed. At that time, accused Nos.\n\n1 and 2 came there on motorcycle and they asked him as to why he had\n\npicked up quarrel that night. They slapped him. Then they took him\n\non motorcycle and dropped him at Beli Pati. At that place, accused No.\n\n1 beat him on both elbows and both knees and, accused No. 2 beat him\n\nby means of stick, owing to which, he sustained bleeding injury on\n\nhead. Accused No. 3 beat him by means of a stone on his head.23.             Now, the question is whether this dying declaration inspires\n\nconfidence in the mind of the Court.::: Uploaded on - 11/09/2020                            ::: Downloaded on - 12/09/2020 08:29:42 :::- 23 -24.             It was vehemently argued by learned counsel Shri\n\nGhanekar and Shri Kulkarni that the dying declaration does not inspire\n\nconfidence as the Medical Officer, who made endorsement, has not\n\nbeen examined.           The prosecution has not disclosed his name also.\n\nTherefore, the dying declaration cannot be relied upon.25.             Learned counsel Shri Ghanekar and Shri Kulkarni are right\n\nin making the submission that the prosecution has not examined the\n\nMedical Officer to prove the endorsement made by him to the effect\n\nthat the deceased was conscious at the time of giving statement. In the\n\ncross-examination, the question put by accused to PW 11 Police Naik\n\nBondlewad indicates that the deceased was in a sound state of mind\n\nand was in a position to speak.          In the cross-examination, PW 11\n\nBondlewad has stated that he put some preliminary questions to\n\nAnanda and he gave statement in the narrative form.                  This cross-\n\nexamination itself is indicative of the fact that the deceased was in a fit\n\nstate of mind to make a declaration and was also in a position to speak.\n\nTherefore, the submission of both the learned counsel that the deceased\n\nwas not in a sound state of mind and was not in a position to speak has\n\nno force.::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::- 24 -26.             Though the deceased was in sound state of mind while\n\ngiving dying declaration, certain aspects of the matter make the dying\n\ndeclaration suspicious. In the third paragraph of the dying declaration\n\nthe words "'kjn ikoys ;kus nxMkus MksD;kr ekjys " appear to have been added.\n\nPW 11        Police Naik Bondlewad has also admitted in the cross-\n\nexamination that the size of these letters is small in comparison to the\n\nsize of the other letters in the dying declaration. Moreover, in the first\n\npart of the dying declaration, there is no reference of accused No. 3\n\nSharad Pawle. In the initial part of the dying declaration, it is stated\n\nthat accused No. 1 and 2 came at Lokhande square where the deceased\n\nwas standing. However, at the end of the dying declaration, the words\n\n"'kjn ikoys ;kus nxMkus MksD;kr ekjys " appear. It can be seen with naked eyes\n\nthat these words were added subsequently.            Therefore, no implicit\n\nreliance can be placed on the dying declaration. Therefore, the course\n\nwhich needs to be adopted is to find out whether there exists\n\ncorroboration to the dying declaration.27.             As indicated above, the deceased was in a position to speak\n\nas is evident from the cross-examination of PW 11 Police Naik\n\nBondlewad.::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::- 25 -28.             The oral dying declaration has been given to three\n\nwitnesses. One of them is PW 11 Police Naik Bondlewad himself. He is\n\nthe first person who saw the deceased Ananda lying near Beli Pati. So\n\nfar as oral dying declaration is concerned, the law is well settled that\n\nconviction can be recorded solely on oral dying declaration, if it is\n\nvoluntary and inspires confidence.      In the case ofMilind Ramchandra\n\nGharat vs. State of Maharashtra and anotherreported in 2015 ALL M R\n\n(Cri) 2377 it has been held that the oral dying declaration is primarily a\n\nweak piece of evidence and, unless the Court finds that implicit reliance\n\ncan be placed on the evidence relating to oral dying declaration, no\n\nconviction can be based on the oral dying declaration.29.             Evidence will have to be now scanned to ascertain whether\n\nimplicit reliance can be placed on the oral dying declarations. PW 11\n\nPolice Naik Bondlewad has stated that when he reached Beli Pati, he\n\nfound a person lying near the road in pool of blood. PW 11 Police Naik\n\nBondlewad shook that person and that person opened his eyes. He\n\nasked that person about his place of residence and he stated it to be\n\nGonar and he stated his name as Ananda i.e. the deceased.                     The\n\ndeceased also stated to him that accused Nos. 1 to 3 assaulted him by a::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 26 -sickle, stone and stick. His both legs were fractured. In the cross-\n\nexamination, the accused could not bring anything on record to\n\ndiscredit the testimony of this witness. Therefore, implicit reliance can\n\nbe placed on the oral dying declaration.30.             Second witness is PW 2 Venkat Pawle. He has stated that\n\non learning about the quarrel between the accused and the deceased,\n\nhe went to Government Hosiptal, Mukhed along with Shivraj and Jagan\n\nPawle. The deceased was hospitalised and was being given treatment.\n\nHis both hands and legs were fractured and had injury on the head. He\n\nhas further stated that deceased Ananda told him that accused No. 1\n\nShyamsundar, accused No. 2 Madhav and accused No. 3 Sharad\n\nassaulted him by big sickle, stick and a stone. This witness has also\n\nbeen cross-examined at length but nothing could be extracted from him\n\nso as to render his testimony untrustworthy.31.             Another witness is PW 7 Nilawati Pawle who is the wife of\n\nthe deceased. She has stated about the quarrel the deceased had with\n\nthe accused No. 1 in the temple on the ground of leaving the cattle in\n\nher field for grazing. There was altercation between the accused No. 1::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 27 -Shyamsundar and the deceased Ananda.         She went to Government\n\nhopsital, Mukhed and found her husband lying in injured condition.\n\nShe asked her husband about the injuries on the way to Nanded. He\n\ntold her that accused No. 1 assaulted him by big sickle on his hands and\n\nlegs and, accused No. 2 assaulted him by stick. He further told her that\n\naccused No. 3 Sharad assaulted him on his head by a stone. Despite\n\ncross examining this witness at length nothing could be extracted from\n\nher. Testimony of this witness remained unscathed.32.             PW 13 Shantabai Bhosle is another witness to whom the\n\ndeceased had made oral dying declaration. She has stated that on the\n\nday of the incident, accused No. 1 Shyamsundar had been to her and\n\nshe had offered tea to him but he refused saying that he would drink\n\ntea at her home only after committing murder of the deceased Ananda.\n\nThereafter she learnt that the deceased was beaten by accused Nos. 1 to\n\n3 and acquitted accused Gajanan by means of stone, stick and big\n\nsickle.    Thereafter, she, her husband and some villagers reached\n\nGovernment Hospital, Mukhed and saw the deceased having suffered\n\nmultiple injuries. On enquiry, the deceased told her that accused Nos. 1\n\nto 3 and acquitted accused Gajanan beat him by stick, stone and sickle::: Uploaded on - 11/09/2020                ::: Downloaded on - 12/09/2020 08:29:42 :::- 28 -on account of quarrel of grazing the cattle in the field of the deceased.33.             It is true that these witnesses are the related witnesses. PW\n\n13 Shantabai is the cousin sister of deceased Ananda. PW 7 Nilawati is\n\nthe wife of the deceased. However, simply because they are related\n\nwitnesses or interested witnesses, their testimony cannot be discarded.\n\nTheir testimony needs to be scruitinised with caution and, if, their\n\ntestimony is found trustworthy and their creditworthyness is not\n\nimpeached, the same can be relied upon. In the case at hand, PW 7\n\nNilawati is at loggerheads with the accused as the incident occurred\n\nbecause of letting lose the cattle in the field of the deceased for grazing,\n\nwhich resulted in damaging the crop of the deceased and PW 7\n\nNilawati. Naturally, she is interested in securing the conviction of the\n\naccused. However, as stated above, simply because she is an interested\n\nwitness, her testimony cannot be thrown overboard.                    On careful\n\nscrutiny, it is seen that the credentials of this witness have not been\n\nimpeached in the cross-examination. In the cross-examination she has\n\nstated that she talked with her husband while he was being taken to\n\nGovernment Hospital, Nanded in an ambulance.                Nothing has been\n\nextracted in the cross-examination to discredit the testimony of this::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 29 -witness. Therefore, her testimony is confidence inspiring.34.             Even if, the testimony of PW 7 Nilawati            and PW 13\n\nShantabai is kept out of consideration for the sake of argument, there is\n\nevidence of PW 2 Venkat who is related to both, the deceased and the\n\naccused as well. Since he is related to both, he is neither interested in\n\nthe accused nor in the deceased. He has stated that accused Nos. 1 to 3\n\nare his relatives and accused No. 4 is nephew of accused No. 1. The\n\ndeceased was his cousin brother. This fact has not been challenged in\n\nthe cross-examination, which means the accused admit that PW 2\n\nVenkat is their relative. Thus, this clearly shows that this witness has no\n\naxe to grind against the accused. Therefore, his testimony is confidence\n\ninspiring and can be relied upon.35.             Thus, oral dying declaration made by the deceased to these\n\nwitnesses lends corroboration to the statement made in the dying\n\ndeclaration Exhibit 58 that accused No. 3 Sharad was present at the\n\ntime of the incident and he also had assaulted the deceased. Therefore,\n\nthere is ample corroboration in the form of oral dying declaration to the\n\nstatement made in the dying declaration about involvement of all the::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::- 30 -accused including accused No. 3 Sharad.36.             Learned counsel Shri Ghanekar has placed reliance on the\n\ncase ofArvind Bajpai vs. State of Uttar Pradeshreported in 2019 SCC\n\nOnLine All 4091 wherein it has been held as under :-31. As far as implication of 162(2)Cr.P.C. is\n            concerned, as a proposition of law, unlike the excepted\n            circumstances under which 161 statement could be\n            relied upon, as rightly contended by learned senior\n            counsel for the respondent, once the said statement\n            though recorded underSection 161Cr.P.C. assumes the\n            character of dying declaration falling within the four\n            corners ofSection 32(1)of Act, 1872, then whatever\n            credence would apply to a declaration governed bySection 32(1), should automatically deemed to apply\n            with all force to such a statement though recorded\n            underSection 161Cr.P.C. The above statement of law\n            would result in a position that a purported recorded\n            statement underSection 161Cr.P.C. of a victim having\n            regard to the subsequent event of death of the person\n            making statement who was a victim would enable\n            prosecuting authority to rely upon the said statement\n            having regard to the nature and content of the said\n            statement as one of dying declaration as deeming it and\n            falling underSection 32(1)of Act, 1872 and thereby\n            commend all the credence that would be applicable to a\n            dying declaration recorded and claimed as such.34. PW-6, Chandra Prakas Bhatt, deposed that on\n            26.05.2012, he undertook investigation, recorded\n            statement of Smt. Aneeta Bajpai (injured). He further\n            deposed in cross-examination that dying declaration\n            was not got recorded because she had come to her\n            house after getting cured from hospital. He did not::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 31 -take container and Match box in his possession from\n            spot; she died after five days from the date of incident.\n            Thus, it is very clear, when Investigator recorded\n            statement of victim underSection 161Cr.P.C., she was\n            not under the expectation of death and she remained\n            alive about two weeks. Evidently, dying declaration\n            was not recorded by Investigating Officer before two\n            reliable witnesses, therefore, statement underSection\n            161Cr.P.C. does not fall under the category of 'dying\n            declaration' underSection 32of Act, 1872.This case also does not come to the aid of the appellants as\n\nin the abovereferred case, the deceased was alive for two weeks.\n\nHowever, this is the fact situation in the case at hand. The deceased\n\ndied on the way to Nanded after completion of recording of dying\n\ndeclaration at Mukhed.37.             Shri Ghanekar argued that the prosecution has not\n\nadduced any evidence to show as to when the deceased was taken to\n\nthe hospital at Mukhed. That evidence could have proved the condition\n\nof the deceased when he was taken to the hospital at Mukhed. Since\n\nthis evidence has not been adduced by the prosecution, it cannot be\n\nsaid that the deceased was in a position to speak. This submission has\n\nno force. As stated above, cross-examination of PW 11 Police Naik\n\nBondlewad shows that the deceased was in a position to speak.::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::- 32 -38.             Learned counsel Shri Ghanekar argued that the medical\n\nevidence does not support the statements made in the dying\n\ndeclaration. He submitted that the deceased had stated in the dying\n\ndeclaration that he had sustained injuries on both the elbows and knees\n\nby means of katti because of blow given by accused Shyamsundar\n\nwhereas the injuries as noted by PW 9 Dr. Durge in post mortem report\n\nindicate that the deceased had incised wound on parietal bone. He\n\nargued that none of the injuries as stated in the dying declaration\n\nmatch with the injuries noted by the Medical Officer in the post mortem\n\nreport Exhibit 54. This submission cannot be accepted. Evidence of PW\n\n2 Venkat, PW 7 Nilawati and PW 13 Shantabai clearly indicate the\n\npresence and involvement of all the three accused. Therefore, variance\n\nbetween the injuries stated by the declarant in the dying declaration\n\nand the injuries noted by the Medical Officer in post mortem report\n\ndoes not rule out the involvement of the accused.            Moreover, the\n\nprosecution has adduced the evidence of eye witnesses also which\n\nprove involvement of the accused beyond reasonable doubt.39.             Eye witnesses are PW 3 Manohar , PW 10 Raosaheb Kabir\n\nand PW 14 Sambhaji Waghmare. PW 3 Manohar is a commission agent::: Uploaded on - 11/09/2020                ::: Downloaded on - 12/09/2020 08:29:42 :::- 33 -and has shop in Lokhande square at Mukhed. This witness knew the\n\ndeceased as he used to sell his crop through him(Manohar). According\n\nto this witness, at about 2.00 pm he saw the crowd infront of his shop.\n\nAuto rickshaw of Maroti Pawle was parked infront of his shop.\n\nDeceased Ananda and two to three persons were sitting in the said\n\nauto. Accused No. 2 Madhav and accused No. 3 Sharad were in the\n\nauto rickshaw. They had caught Ananda. Clothes of Ananda were torn.\n\nAnanda was alive but there were no movements. Ananda had injury on\n\nhis head, shoulder and his clothes were stained with blood. Accused\n\nNo. 2 Madhav and accused No. 3 Sharad wanted to hire auto of Maroti\n\nPawle but he refused.           Both accused Nos. 2 and 3 made deceased\n\nAnanda to sit on the motorcycle and then they went away.40.             This witness stood to all tests in cross-examination. He\n\nstated in the cross-examination that neither he nor any other person\n\npresent there made any effort to take Ananda to dispensaryHe did not\n\ninform the incident to the family members of Ananda or to the police.\n\nIt is true that this witness did not inform the family members of the\n\ndeceased Ananda nor did he inform the police. Such conduct of this\n\nwitness is not unusual. Now a days, nobody wants to get involved in::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::- 34 -the rig marole of the legal procedure. People also do not want to get\n\nthemselves entangled into the affairs of others. Therefore, simply\n\nbecause this witness did not inform the incident to the family members\n\nof the deceased or to the police, cannot lead to an inference that he was\n\nnot present at the spot of the incident.41.             In the cross-examination, this witness has stated that he\n\nstated before the police that Ananda was in a sitting position and\n\naccused Nos. 2 and 3 had caught him but it is not there in the\n\nstatement. Learned counsel Shri Ghanekar argued that it shows that\n\nthis evidence is in the nature of improvement and, therefore, cannot be\n\nconsidered. The analysis of the statement underSection 161of Cr.P.C.\n\nof this witness reveals that this witness has stated that in the auto\n\nrickshaw accused Nos. 2 and 3 and two more persons were sitting and\n\nthe deceased Ananda was sleeping in the auto rickshaw in injured\n\ncondition. This clearly shows that this witness has stated about the\n\npresence of accused Nos. 2 and 3 and two more persons and about\n\npresence of the deceased in the injured condition in the auto rickshaw.\n\nIt is true that whatever PW 3 has stated in the evidence does not appear\n\nin verbatim in the statement before the police. Mere variation between::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 35 -the statement underSection 161of Cr.P.C. and deposition before the\n\nCourt in narration of the incident would not amount to contradiction.\n\nIt has been held in the case of Rammi aliasRameshwar vs. State of\n\nMadhya Pradeshreported in 1999 Cri.L.J. 4561 thus :-24. When eye-witness is examined at length it is\n            quite possible for him to make some discrepancies.\n            No true witness can possibly escape from making\n            some discrepant details.        Perhaps an untrue\n            witness who is well tutored can successfully make\n            his testimony totally non-discrepant. But Courts\n            should bear in mind that it is only when\n            discrepancies in the evidence of a witness are so\n            incompatible with the credibility of his version that\n            the Court is justified in jettisoning his evidence.\n            But too serious a view to be adopted on mere\n            variations falling in the narration of an incident\n            (either as between the evidence of two witnesses\n            or as between two statements of the same witness)\n            is an unrealistic approach for judicial scrutiny.42.             In the evidence before the Court, PW 3 Manohar has stated\n\nthat the deceased was in injured condition and was sitting in the auto\n\nrickshaw and accused Nos. 2 and 3 had held him. Whereas, in the\n\nstatement before the police, PW 3 Manohar has stated that accused\n\nNos. 2 and 3 were there in the auto rickshaw and the deceased was\n\nsleeping in the auto rickshaw in injured condition.                  These two\n\nstatements are not at all irreconcilable.      On the contrary, they are::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::- 36 -completely in tune with each other and, therefore, it does not amount\n\nto contradiction at all. The submission of learned counsel, therefore,\n\ncannot be sustained.43.             Learned counsel Shri Ghanekar argued that this witness\n\nhas proved the defence of alibi of accused No. 1 Shyamsundar. Shri\n\nGhanekar argued that PW 3 Manohar nowhere states that accused No.\n\n1 Shyamsundar was there at the spot or not. Therefore, this clearly\n\nshows that accused No. 1 was not present at the scene of the offence.\n\nWe do not agree with the submission of learned counsel Shri Ghanekar.\n\nPW 3 Manohar has nowhere stated that accused No. 1 Shyamsundar\n\nwas not present at the spot. What he has stated is that along with\n\ndeceased Ananda, there were two to three persons in the auto rickshaw.\n\nIn the cross-examination also, it was not brought on record that this\n\nwitness knew accused No. 1 Shyamsundar and despite that he did not\n\nmention his name.               Therefore, his testimony nowhere suggests the\n\nabsence of accused No. 1 at the spot of the incident.44.             PW 10 Raosaheb Kabir is another witness who had seen the\n\ndeceased in the company of the accused persons that too in the injured::: Uploaded on - 11/09/2020                        ::: Downloaded on - 12/09/2020 08:29:42 :::- 37 -condition. It has come in the evidence of PW 10 Raosaheb Kabir that\n\nhe had been to Mukhed for purchasing vegetables and other household\n\narticles. He was accompanied by one Ganpati Kamble. They completed\n\nshopping at about 2.00 pm and boarded the auto rickshaw and on their\n\nway to Sawargaon, when the auto rickshaw came near Zanzan Dhaba,\n\nhe saw that quarrel was going on on the road. Therefore, the driver\n\nstopped the auto rickshaw. He saw Shyamsundar (accused no. 1) and\n\nhis three colleagues assaulting Ananda. He new the deceased as his\n\nwife hails from Sawargaon i.e. native place of PW 10 Raosaheb Kabir.\n\nHe asked Shyamsundar as to why he was beating Ananda but accused\n\nNo. 1 did not reply. Nothing could be extracted from the testimony of\n\nthis witness.        This witness shows the presence of accused No. 1\n\nShyamsundar and his three associates.45.             PW 14 Sambhaji Waghmare is the next eye witness. He\n\nused to ply auto rickshaw between Gonar and Mukhed. It has come in\n\nhis evidence that on 01.01.2011, he had been to Lokhande square for\n\nbringing passengers. His auto rickshaw had some mechanical defect\n\nowing to which, he had parked it at Ladke garage at about 1.00 pm to\n\n2.30 pm. The auto rickshaw of Maruti was parked in Lokhande square.::: Uploaded on - 11/09/2020                 ::: Downloaded on - 12/09/2020 08:29:42 :::- 38 -Shamsundar, Madhav and Sharad came to Lokhande square at that\n\ntime.    They met Maruti and boarded           his rickshaw and went away\n\ntowards village Jamb.           They came back after about 30 minutes in\n\nLokhande square with Ananda Pawle who was in injured condition.\n\nMaruti told them that he will not take the auto rickshaw ahead.\n\nShyamsundar, Madhav, Sharad and one unknown person made Ananda\n\nsit on the motorcycle of red colour. Ananda was then taken away on\n\nthe motorcycle towards village Kawatha.46.             Learned counsel Shri Ghanekar branded this witness as a\n\nchance witness. He argued that this witness could not account for his\n\npresence at the spot of the incident. According to learned counsel Shri\n\nGhanekar, the evidence of chance witness is a weak type of evidence\n\nand reliance cannot be placed on it. The Honourable Supreme Court,\n\nin the case ofSachchey Lal Tiwari vs. State of Uttar Pradeshreported in\n\n(2004) 11 Supreme Court Cases 410 has held as under:-7.    Coming to the plea of the accused that PW\n             2 was a "chance witness" who has not explained\n             how he happened to be t the alleged place of\n             occurrence it has to be noted that the said witness\n             was independent witness. There was not even a\n             sugestion to the witness that he had any\n             animosity towards any of the accused. In a::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 39 -murder trial by describing an independent\n             witness as "chance witness" it cannot be implied\n             thereby that his evidence is suspicious and his\n             presence at the scene doubtful. Murders are not\n             committed with previous notice to witnesses -\n             soliciting their presence. If murder is committed\n             in a dwelling house, the inmates of the house are\n             natural witnesses. If murder is committed in a\n             street, only passers-by will be witnesses. Their\n             evidence cannot be brushed aside or viewed with\n             suspicion on the ground that they are mere\n             "chance witnesses".      The expression "chance\n             witness" is borrowed from countries where every\n             man's home is considered his castle and everyone\n             must have an explanation for his presence\n             elsewhere or in another man's castle. It is quite\n             unsuitable an expression in a country where\n             people are less formal and more casual, at any\n             rate in the matter of explaining their presence.\n             The courts below have scanned the evidence of\n             PW 2 in great detail and found it to be reliable.\n             We find no reason to differ.Even if it is accepted for the sake of argument that this\n\nwitness is a chance witness, still the evidence of chance witness cannot\n\nbe discarded simply he being a chance witness.          If his testimony is\n\notherwise trustworthy, the Court can place reliance on it. This witness\n\nhas assigned reason for his presence at the spot of the incident. He was\n\nplying auto rickshaw and owing to a mechanical defect, he had brought\n\nhis auto rickshaw to Ladke garage and had parked it infront of the said\n\ngarage. Therefore, this witness has explained his presence at the spot::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 40 -of the incident. His testimony is trustworthy. Nothing adverse to the\n\nprosecution could be extracted from this witness.47.             Learned counsel Shri Ghanekar argued that the testimony\n\nof this witness cannot be believed because he has stated that all the\n\nfour accused and the deceased went away from the spot of the incident\n\non the motorcycle. Learned counsel Shri Ghanekar argued that five\n\npersons cannot ride a motorcycle.             It is true that this witness has\n\nadmitted in the cross-examination that five persons cannot ride a\n\nmotorcycle.       This submission cannot be accepted.          This witness has\n\nnowhere stated that all the five persons went away on motorcycle.\n\nWhat he has stated is that accused Shyamsundar, Madhav, Sharad and\n\none unknown person made Ananda sit on motorcycle. He has nowhere\n\nstated that all the three accused, one unknown person and deceased\n\nAnanda sat on the motorcycle and went away.48.             So far as the plea of alibi is concerned, learned counsel Shri\n\nGhanekar has placed reliance on evidence of PW 5 Syed Khalik Syed\n\nIsmail who is the Police Constable in police station, Kandhar. According\n\nto this witness, the accused No. 1 had come to the police station::: Uploaded on - 11/09/2020                      ::: Downloaded on - 12/09/2020 08:29:42 :::- 41 -Kandhar at 12.30 pm to lodge the complaint. Learned counsel Shri\n\nGhanekar has invited our attention to the First Information Report\n\n(Exhibit 44) to show that the time of registration of offence was 1.00\n\npm. Shri Ghanekar submitted that this shows that accused No. 1 was at\n\nKandhar police station at 1.00 pm which negatives the theory of the\n\nprosecution that accused No. 1 was present at the scene of offence at\n\n12.30 pm.        He argued that, in terms of the dying declaration, the\n\nincident took place at 12.30 pm and, at that time, accused No. 1 was in\n\nthe police station. This completely rules out the probability of accused\n\nNo. 1 being present at the scene of the offence. We do not agree with\n\nthis submission. The dying declaration shows the time of the incident\n\nas 12.30 pm. it is pertinent to note that the deceased was injured and\n\nmight not have correctly stated the time of the incident. The witnesses\n\ni.e. PW 2 Venkat, PW 10 Raosaheb Kabir and PW 14 Sambhaji\n\nWaghmare, who had seen the deceased along with accused, have stated\n\ntime of the incident to be 2.00 pm to 2.30 pm. Therefore, eye-witness\n\naccount will have to be preferred as they had witnessed the incident.\n\nTherefore, it was not impossible for the accused No. 1 to come back to\n\nMukhed from Kandhar as the distance between Kandhar and Mukhed\n\nbeing 35 km as stated by this witness in the cross-examination.::: Uploaded on - 11/09/2020                 ::: Downloaded on - 12/09/2020 08:29:42 :::- 42 -Therefore, the plea of alibi of accused No. 1 cannot be believed.49.             Post mortem report shows that the deceased had\n\nsubarchonoid hemorrhage all over the brain.          Learned counsel Shri\n\nKulkarni placed reliance on the case of Nallapatti Sivaih vs. S.D.O.\n\nGuntur reported in AIR 2008 SC 19, wherein it is held as under :-32. In the circumstances can it be said that the\n            victim was conscious and coherent and in a fit\n            condition to give the statement ? This aspect of the\n            matter is required to be considered in the\n            background of victim receiving as many as 63\n            injuries on his body including injuries 1 to 13 and 19\n            on the parietal and occipital region on account of\n            which the victim could have gone into coma. The\n            Professor of Forensic Medicine & Medical Officer\n            who conducted the post-mortem, examined as PW\n            11, is an important witness whose evidence has been\n            altogether ignored. He found diffused subarchanoid\n            haemmorrhage present all over the brain which\n            normally results in patient going into coma. He also\n            expressed his opinion that the deceased must have\n            died within one or two hours after receiving the\n            injuries. Can we ignore this vital piece of evidence ?\n            Do we have to accept that the victim having received\n            63 multiple injuries went on speaking coherently\n            from 6.00 p.m. onwards till 7.10 p.m., for about one\n            hour and ten minutes ? There is no evidence and\n            details of any treatment administered to the victim.\n            Dr. B.G. Sugunavathi, Casualty Doctor, first noticed\n            the victim dead at 9.30 p.m. on 05.01.1998 itself.\n            There is no positive evidence as to when the victim\n            died even though he was admitted into the hospital\n            with multiple injuries. These cumulative factors and::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::- 43 -surrounding circumstances make it impossible to rely\n            upon the dying declarations that were recorded in\n            Ex.P-10 and Ex.P-8. These are the circumstances\n            which compel us not to ignore the evidence of P.W.\n            10 - Doctor and Professor of Forensic Medicine. It is\n            not a question of choosing between the eye-witness\n            account as regards the condition of the victim to\n            make a statement on the one hand and the evidence\n            of the Professor and Doctor of Forensic Medicine.\n            The conflict and inconsistency between the two\n            dying declarations and the evidence of the Forensic\n            Expert which remained unimpeached raises a very\n            great suspicion in the mind of the court.This case has no application to the facts of the present case\n\nas in the reported case the deceased had 63 injuries, two of them were\n\non parietal and occipital region on account of which, he could have\n\ngone into coma. The Medical Officer had opined that the deceased\n\nmust have died within one or two hours after receiving the injuries.\n\nThe dying declaration was recorded by 6.00 pm onward till 7.10 pm i.e.\n\nmore than one hour. The Honourable Supreme Court, therefore, did\n\nnot place reliance on the dying declaration as the deceased could not\n\nhave been in a position to speak coherently for more than one hour in\n\nthe backdrop of so many injuries, two of them being serious.50.             This is not the fact situation in the instant case. PW 11::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 44 -Police Naik Bondlewad has stated in the cross-examination that he\n\nasked deceased preliminary questions and the deceased gave the\n\nanswers in narrative form. This clearly shows that the deceased was in\n\na position to speak at the time of giving dying declaration. Therefore, it\n\ncannot be said that the deceased might have gone into coma because of\n\nthe injuries on the parietal region. It is common knowledge that human\n\nbody sometimes does not react in the manner stated in the textbook or\n\nin the manner the Medical Officer opines on the basis of his experience.\n\nTherefore, despite having subarchonoid hemorrhage, it cannot be said\n\nthat the deceased must have gone into coma or his speech faculty in the\n\nbrain might have been damaged.51.             Now the question arises as to the theory of the prosecution\n\nof the deceased being last seen with the accused. PW 3 Manohar, PW\n\n10 Raosaheb Kabir and PW 14 Sambhaji Waghmare have stated that the\n\ndeceased was in the company of the accused. It is true that there is no\n\nevidence to show as to, to which place the accused took the deceased\n\nAnanda. PW 11 Police Naik Bondlewad found him at Beli Pati. PW 3\n\nManohar and PW 14 Sambhaji have stated that the accused took\n\ndeceased Ananda on motorcycle.            According to this witness, the::: Uploaded on - 11/09/2020                    ::: Downloaded on - 12/09/2020 08:29:42 :::- 45 -incident took place between 2.00 pm to 2.30 pm and, after the incident\n\nwas over, the deceased was taken by these accused towards Kawatha on\n\nmotorcycle. At 3.30 pm, the deceased was found at Beli Pati. Thus,\n\ntime gap between the deceased last seen with the accused and the\n\ndeceased being found at Beli pati is small. Therefore, there was no\n\npossibility of intervention of any third person for the commission of the\n\ncrime. Learned APP has placed reliance on the case ofMahavir Singh\n\nvs. State of Haryana, reported in 2014(4) Mh.LJ (Cri.) 382, in which it\n\nhas been held that last seen theory comes into play only when the time\n\ngap between the point of time when the accused and the deceased were\n\nseen together and when the deceased was found dead is very small.\n\nSince the gap is very small, there may not be any possibility that any\n\nperson other than the accused may be the author of the crime. In the\n\ncase at hand also, there is no possibility of any other person committing\n\nthe crime. It is also not suggested to the witness nor it is the defence of\n\nthe accused that some other person had caused the injuries to the\n\ndeceased. Therefore, the time gap between the deceased found alive\n\nwith the accused and the place where the deceased was found in\n\ninjured condition being very small, the only logical inference that can\n\nbe drawn is that the accused are the authors of the crime.::: Uploaded on - 11/09/2020                  ::: Downloaded on - 12/09/2020 08:29:42 :::- 46 -52.             Next question that falls for consideration is recovery of the\n\nweapons.       PW 15 Shivaji Kabir is the witness on memorandum of\n\nrecovery of weapon. Exhibit 70 is the memorandum of accused No. 2\n\nMadhav. PW 15 Shivaji has testified that accused No. 2 Madhav gave\n\nthe memorandum that he had concealed the stick in the crop of toor.\n\nAccordingly, his memorandum was recorded and as led by him, the\n\nstick was recovered from the crop of toor. Accused No. 3 Sharad gave\n\nmemorandum Exhibit 71 in which, he stated that he was ready to\n\nproduce the stone. He stated that he had thrown the stone in the grass\n\nnear the spot. At his instance as led by him, the stone was recovered.\n\nExhibit 72 is the memorandum of accused No. 1 Shyamsundar. He\n\nstated in the memorandum that he had concealed the katti and\n\nmotorcycle at his residence and as led by him, katti and motorcycle\n\nwere recovered. The time of memorandum of accused No. 1 is 12.30\n\npm, accused No. 2 is 12.40 pm and accused No. 3 is 12.50 pm.\n\nAccording to learned counsel Shri Ghanekar, joint memorandum was\n\nrecorded which is impermissible. As stated above, joint memorandum\n\nwas not recorded as contended by learned counsel Shri Ghanekar. Even\n\nif, it is accepted for the sake of argument that it was a joint disclosure,\n\neven then, it will not cause any dent to the case of the prosecution. In::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 47 -the case ofKishor vs State of Maharashtra, reported in AIR 2017 SC\n\n279, it has been held that a joint disclosure or simultaneous disclosure\n\nper se is not inadmissible underSection 27of the Indian Evidence Act.53.             This witness has admitted in the cross-examination that all\n\nthe three accused were hand cuffed right from the time they were taken\n\nout of the police station and brought back to the police station.\n\nLearned counsel Shri Ghanekar placed reliance on the case of Suresh\n\ns/o Mahadeo Deshmukh vs State of Maharashtrareported in 2018 ALL\n\nMR (Cri) 3837 for the proposition that if the accused are hand cuffed at\n\nthe time of recovery of the weapon, the said recovery cannot be relied\n\nupon as it is under duress and pressure. This witness has given a vague\n\nadmission that right from the time of leaving the police station till\n\nreturning to the police station, the accused were hand cuffed. He has\n\nnot stated that at the time of recovery, they were hand cuffed.\n\nTherefore, a vague admission that right from leaving the police station\n\ntill coming back to the police station, the accused were hand cuffed,\n\ndoes not go to show that the accused were hand cuffed at the time of\n\neffecting recovery.         Therefore, the case relied upon by the learned\n\ncounsel for the appellants is not applicable to the instant case.::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 48 -54.             Now the last question that needs consideration is the\n\nmotive behind commission of the crime. Motive is a state of mind and\n\nsometimes it is difficult for the prosecution to prove the motive. It is\n\nsettled principle of law that simply because the prosecution has failed\n\nto prove the motive will not result in throwing the case of the\n\nprosecution overboard, if the case of the prosecution is otherwise\n\ntrustworthy.       In the case at hand, PW 5 Shivaji Kabir has proved the\n\nFirst Information Report lodged by the accused, PW 2 Venkat is the\n\nwitness on the quarrel which took place in the temple. He has stated\n\nthat on 31.12.2010 in the temple of Vitthal at Gonar, devotional songs\n\nwere being sung.           The deceased came to the temple at 00.30 pm.\n\nAccused No. 1 Shyamsundar was in the temple. The deceased Ananda\n\nabused accused Shyamsundar on the ground of letting the cattle lose in\n\nhis field and altercation took place between them. First Information\n\nReport Exhibit 44 bears testimony to this. The First Information Report\n\nconfirms that the incident happened in the temple in the night of\n\n31.12.2020. It further shows that accused No. 1 had given a blow of\n\nkatti to deceased Ananda. Thus, the accused had the motive behind\n\ncommission of crime. Thus, prosecution has proved that accused No. 1\n\nhad the motive to eliminate the deceased.::: Uploaded on - 11/09/2020                   ::: Downloaded on - 12/09/2020 08:29:42 :::- 49 -55.             Learned counsel Shri Ghanekar argued that the witnesses\n\nhave stated that Maruti was the auto driver in whose auto rickshaw\n\naccused had taken the deceased.              He was not examined by the\n\nprosecution and, therefore, adverse inference will have to be drawn\n\nagainst the prosecution. Maruti was the best witness to explain the\n\ncircumstance in which the incident took place. Since he has not been\n\nexamined, the prosecution story becomes unworthy of credit. It is true\n\nthat prosecution has not examined the witness Maruti.                 The record\n\nshows that the prosecutor in the Sessions Court had filed a pursis\n\nExhibit 37 stating that he did not want to examine Maruti Pawle as he\n\nwas on the same point. The prosecutor ought not to have given up this\n\nwitness. It was sheer ignorance on the part of the prosecutor to give up\n\nsuch an important witness. Ignorance of the prosecutor cannot enure\n\nto the benefit of the accused.       Therefore, non-examination of this\n\nwitness will have have no adverse effect on the case of the prosecution\n\nas the prosecution has proved the incident through other witnesses.56.             Chemical Analyser's report Exhibit 17 shows that the blood\n\ngroup of the deceased was 'B' and blood stains of blood group 'B' were\n\nfound on the clothes of the accused. Learned counsel Shri Ghanker::: Uploaded on - 11/09/2020                     ::: Downloaded on - 12/09/2020 08:29:42 :::- 50 -argued that the clothes and the weapon were not sealed and, therefore,\n\nthe evidence in this regard cannot be relied upon.                   It is true that\n\npanchanama does not show that the articles were sealed. However,\n\nthat will not have much effect on the case of the prosecution for the\n\nreason that the prosecution has proved the guilt of the accused beyond\n\nreasonable doubt through other evidence discussed above.57.             Thus,      the   prosecution    has    proved        the     following\n\ncircumstances :-1.     There was a quarrel in the night of 31.12.2010 in the temple of\n\nVitthal Rakhumai between the accused No. 1 Shyamsundar and the\n\ndeceased Ananda and, deceased Ananda had beaten accused No. 1.2.     On 01.01.2011 at 2.00 pm to 2.30 pm, PW 3 Manohar, PW 10\n\nRaosaheb Kabir and PW 14 Sambhaji had seen the deceased in the\n\ncompany of accused in injured condition.3.     The accused had taken the deceased on motorcycle towards\n\nvillage Kawtha.4.     One Bhimrao Patil informed the police station Mukhed about the\n\ndeceased lying in injured condition at Beli Pati.5.     The deceased was found by PW 11 Police Naik Bondlewad at::: Uploaded on - 11/09/2020                         ::: Downloaded on - 12/09/2020 08:29:42 :::- 51 -village Beli Pati.6.     The deceased was taken to hospital.7.     The deceased made oral dying declaration to PW 11 Police Naik\n\nBondlewad.8.     The deceased made oral dying declaration to PW 2 Venkat, PW 7\n\nNilawati and PW 13 Shantabai implicating accused Nos. 1 to 3.9.     The deceased gave dying declaration Exhibit 58 to PW 11 Police\n\nNaik Bondlewad.58.             Thus, the prosecution has successfully proved these\n\ncircumstances. Therefore, we hold that the learned trial Court did not\n\ncommit any error in recording conviction against accused Nos. 1 to 3\n\nunderSection 302,364read withSection 34of the Indian Penal Code.\n\nBoth appeals are, therefore, devoid of any substance. Hence, they stand\n\ndismissed.( M. G. SEWLIKAR )                           ( S. V. GANGAPURWALA )\n        Judge                                          Judge\n\ndyb::: Uploaded on - 11/09/2020                ::: Downloaded on - 12/09/2020 08:29:42 :::