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2020 Supreme(Bom) 820
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
S.V. Gangapurwala, M.G. Sewlikar, JJ.
Shyamsundar Vithal Pawle - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 268 of 2014, 465 of 2014
Decided On : 11-09-2020
Rajenderaa Deshmukkh, Advocate, Govind A Kulkarni, Advocate, M.M. Nerlikar, Advocate, N.S. Ghanekar, Advocate
Headnote:
CRIMINAL APPEAL - SECTION 302, 364 READ WITH SECTION 34 OF THE INDIAN PENAL CODE - [FACTS OF THE CASE] - [FINDING OF THE COURT] - [ISSUES] - [RATIO DECIDENDI] - [FINAL DECISION]
Fact of the Case:
The deceased Ananda Pawle was a resident of village Gonar. Accused Nos. 1 to 3 were also residents of the same village. It was the grievance of the deceased that accused Nos. 1 to 3 used to let loose cattle of accused No. 1 as a result of which, the cattle used to graze in the land of the deceased. On 31.12.2010, there was an altercation between the wife of the deceased and accused No. 1 on the ground that cattle of accused No. 1 grazed in the land of the deceased. On 31.12.2010, devotional songs were being sung in the temple at Gonar. Accused No. 1 Shyamsundar was present there. Deceased Ananda went there and abused the accused No. 1 and kicked him on the ground of grazing his cattle in the land of the deceased. Accused No. 1 Shyamsundar lodged First Information Report in Mukhed Police Station on 01.01.2011 at around 1.00 pm. On 01.01.2011 at about 12.30 pm, deceased Ananda was standing in Lokhande square, Mukhed. Soon thereafter, accused No.1 Shyamsundar and accused no. 2 Madhav came there on motorcycle and started slapping him on the ground of quarrel in the previous night on account of grazing of cattle and made him sit on the motorcycle and took him by Kautha Road. They took him to village Beli and at the pati (the board on which name of the village is written) beat him. Accused No. 1 beat him by means of katti on his both right and left elbows, right and left knees and on right foot. Accused No. 2 delivered a blow of stick on both the knees of the deceased Ananda and caused fracture to his legs. Accused No. 2 also delivered a blow of stick on his left hand and caused fracture. He also delivered a blow of stick on his head. Accused No. 3 Sharad dealt a blow of stone on the head of the deceased Ananda and accused No. 4 beat him with kicks and fist blows.
Finding of the Court:
The learned trial Court recorded conviction against accused Nos. 1 to 3 - the appellants herein and acquitted accused No. 4. This is how the appellants accused Nos. 1 to 3 are before this Court.
Issues: 1. Whether the dying declaration inspires confidence in the mind of the Court? 2. Whether the oral dying declarations lend corroboration to the statement made in the dying declaration about involvement of all the accused including accused No. 3 Sharad? 3. Whether the eye witnesses are trustworthy? 4. Whether the plea of alibi of accused No. 1 can be believed? 5. Whether the recovery of weapons is doubtful?
Ratio Decidendi: 1. The Court held that the dying declaration does not inspire confidence as the Medical Officer, who made endorsement, has not been examined. However, the Court relied on the oral dying declarations made by the deceased to three witnesses, which corroborated the statement made in the dying declaration about involvement of all the accused including accused No. 3 Sharad. 2. The Court found that the eye witnesses were trustworthy and their testimonies remained unscathed in cross-examination. 3. The Court rejected the plea of alibi of accused No. 1 as the time gap between the deceased last seen with the accused and the place where the deceased was found in injured condition was very small. 4. The Court held that the recovery of weapons was not doubtful as the accused were not hand cuffed at the time of effecting recovery.
Final Decision: Both appeals are, therefore, devoid of any substance. Hence, they stand dismissed.
JUDGMENT
M. G. Sewlikar, J. - Criminal Appeal No. 268/2014 preferred by original accused Nos. 1 and 3 and, Criminal Appeal No. 465/2014 preferred by original accused No. 2, are being disposed of by common order as they arise out of the judgment and order dated 05.04.2014, passed by the learned Additional Sessions Judge, Kandhar, Dist. Nanded, whereby accused Nos. 1 to 3 have been convicted of the offence punishable under Section 364 read with Section 34 of the Indian Penal Code and are sentenced to rigorous imprisonment for ten years and to pay fine of Rs. 1,000/- each in default, to suffer rigorous imprisonment for six months each and, they were also sentenced imprisonment for life and to pay fine of Rs. 1,000/- each in default, to suffer rigorous imprisonment for six months for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Both the sentences are directed to run concurrently. By the said judgment, accused Nos. 1 to 3 are acquitted of the offence punishable under Section 506 read with Section 34 of the Indian Penal Code. By the same judgment and order, accused No. 4 has been acquitted of all the offences.
2. Facts giving rise to these appeals are that appellants 1 and 2 in Criminal Appeal No. 268/2014 original accused Nos. 1 and 2 (hereinafter referred to as accused Nos. 1 and 3) and appellant in Criminal Appeal No. 465/2014 original accused No. 2(hereinafter referred to as accused No. 2) and the deceased Ananda Ganpati Pawle are the residents of village Gonar. It was the grievance of the deceased Ananda Pawle that accused Nos. 1 to 3 used to let lose cattle of accused No. 1 as a result of which, the cattle used to graze in the land of the deceased. On 31.12.2010, there was an altercation between the wife of the deceased and accused No. 1 Shyamsundar on the ground that cattle of accused No. 1 Shyamsundar grazed in the land of the deceased. On 31.12.2010, devotional songs were being sung in the temple at Gonar. Accused No. 1 Shyamsundar was present there. Deceased Ananda went there and abused the accused No. 1 and kicked him on the ground of grazing his cattle in the land of the deceased. Accused No. 1 Shyamsundar lodged First Information Report in Mukhed Police Station on 01.01.2011 at around 1.00 pm.
3. It is further the case of the prosecution that on 01.01.2011 at about 12.30 pm, deceased Ananda was standing in Lokhande square, Mukhed. Soon thereafter, accused No.1 Shyamsundar and accused no. 2 Madhav came there on motorcycle and started slapping him on the ground of quarrel in the previous night on account of grazing of cattle and made him sit on the motorcycle and took him by Kautha Road. They took him to village Beli and at the pati (the board on which name of the village is written) beat him. Accused No. 1 beat him by means of katti on his both right and left elbows, right and left knees and on right foot. Accused No. 2 delivered a blow of stick on both the knees of the deceased Ananda and caused fracture to his legs. Accused No. 2 also delivered a blow of stick on his left hand and caused fracture. He also delivered a blow of stick on his head. Accused No. 3 Sharad dealt a blow of stone on the head of the deceased Ananda and accused No. 4 beat him with kicks and fist blows.
4. It is further the case of the prosecution that one Bhimrao Patil called up police station Mukhed at 3.30 pm and informed that the deceased Ananda was lying near Beli pati in injured condition. Police Inspector Kode received this call and directed PW 11 Police Naik Pundlik Bondlewad to go to the spot of the incident and check the authenticity of the information. When PW 11 Bondlewad went to the spot, he did not find anyone and, therefore, he again called back Police Inspector Kode who gave him contact number of Bhimrao Patil of village Beli. When PW 11 Bondlewad called up Bhimrao Patil, he (Bhimrao Patil) told him that the deceased was lying on the road to Beli. When he went there, he found a person lying near
