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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADHANA S. JADHAV, PRITHVIRAJ K. CHAVAN, JJ.
Ganesh Suresh Jadhav – Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 39, 42 of 2016
Decided on : 05-04-2022
Indian Penal Code, 1860 - Section 302, 34, 143, 147, 148 - Bombay Police Act, 1951 - Section 135, 37(1) (a) and (3) - Arms Act, 1959 - Section 4 and 25 - Evidence Act, 1872 - Section 27 - Murder Offence - Homicidal Death - Whether both deceased died homicidal death - Whether death of Ketan was homicidal or due to pre-existing ailments and subsequent septicemia - Whether appellants were authors of those injuries - Whether prosecution has established beyond doubt that it was none other than these four appellants who had a direct nexus in assault and resultant death of deceased - Whether injuries no. 1 and 2 mentioned in column no. 17 of post-mortem report can be caused by a muddemal article swords, which were shown to him - Whether deceased had consumed liquor/alcohol and, therefore, his blood was sent for chemical analysis - Whether injuries described in post-mortem report could be said to be fatal in nature - Whether his evidence can be accepted as a truthful version of entire incident and whether implicit reliance can be placed upon his testimony - Whether he really accompanied deceased to hospital - Whether he had brought both deceased to hospital - Whether Doctor at Y.C.M. hospital had enquired with deceased as to how they sustained injuries - Whether he was present on spot. P.W.1- claims that he knew P.W.2- for several years - Whether P.W.1- was present on spot of incident - Whether blood over swords which alleged to have been recovered was of deceased Ketan or deceased Siddiq – Held, There is one more reason to disbelieve prosecution on the count that deceased Ketan died a homicidal death - Apart from medical evidence discussed herein above, prosecution has examined P.W.10- who is real brother of deceased Ketan - His evidence is of hearsay nature, in sense, he was not an eye-witness - He testified about what had been narrated to him by P.W.1-Narsingh - He testified that deceased Ketan was discharged on next day morning - However, he had again suffered pains and, therefore, he was brought back to hospital on same day - He was again discharged - Police came to their house and recorded his statement - Ketan again started feeling pains and, therefore, cousin of P.W.10- admitted Ketan in D. Y. Patil hospital - Statement so recorded by police cannot be said to be an oral dying declaration as it is hit by Section 32(1) of Evidence Act - It is not case of prosecution that said statement was recorded when Ketan was in expectation of death - It is settled position of law that an oral dying declaration is inherently a weak piece of evidence and hence, implicit reliance cannot be placed upon same - Admittedly, deceased Ketan had died four days after alleged statement made to P.W.10 - Meanwhile he was discharged thrice from hospital - Learned trial Court has not only committed errors in law and fact but also misinterpreted evidence of prosecution witnesses and reached an erroneous conclusion that prosecution has proved case beyond all reasonable doubts - Impugned Judgment is full of surmises and conjectures - It is settled principle of Criminal Jurisprudence that prosecution must stand and fall on it’s own legs - It cannot derive any assistance from defence in proving guilt beyond reasonable doubt – Appeals allowed.
JUDGMENT:
PRITHVIRAJ K. CHAVAN, J.
1. These appeals are by original accused No.1, 4, 5 and 6 who have been convicted of the offence punishable under section 302 r/w 34 of the Indian Penal Code (for short "I.P.C") and sentenced to suffer imprisonment for life, inter alia, fine of Rs.2000/- each, in default, rigorous imprisonment for two months.
2. Original Accused No.2, 3 and 7 have been acquitted of the said offence.
3. All the accused have also been acquitted of the offence punishable under sections 143, 147, 148 of the I.P.C., 37(1) (a) and (3) punishable under section 135 of the Bombay Police Act, 1951 and section 4 punishable under section 25 of the Arms Act, 1959.
4. Prosecution story goes like this;
5. Ketan Bansode (deceased), Siddiq Arkate (deceased) and first informant -Narsingh Chavan (P.W.1) were residents of Talwade and good friends. They used to dine and roam together. On the fateful day of 1st March, 2010 around 7.00 p.m, P.W.1 -Narsingh and deceased Ketan met at Triveni Nagar Chowk. They decided to visit Chinese stall of one Ravi for having Chinese food. Accordingly, they went to Chinese cart of Mr. Ravi which was situated near Krushnanagar Water Storage Tank. Chinese food was served after they placed an order to that effect. When they were about to start eating, 7 to 8 boys suddenly appeared at the scene around 8.30 pm and started kicking tables and chairs. Crockery on the table of the deceased and P.W.1-Narsingh fell down. Obviously, deceased Ketan asked those boys as to why they were kicking the furniture and, therefore, there was altercation. However, Ravi -the Chinese cart owner intervened and those boys left the spot.
6. The said boys returned after a while. Four of them were armed with swords. They started assaulting deceased Ketan. When Siddiq tried to intervene (who also subsequently succumbed to injuries), he too was beaten by those boys on the head and waist. Deceased Ketan was assaulted on his chest by means of stone and on his back by means of sword. Blows of swords were inflicted on the head, hands and hips of deceased Siddiq. One Harjitsingh sitting on another table tried to intervene, however, he too received injuries on his hand. After the assault, assailants escaped.
7. P.W.1 -Narsingh informed brother of deceased Siddiq on phone and hence Siddiq's brother came over there. Both injured were initially taken to Mayur Hospital, Krushnanagar and thereafter Y.C.M Hospital, Pimpri. One Doctor Abhijit Lokhande attached to casualty unit of Y.C.M Hospital examined injured Siddiq and referred him to surgery department. He also examined deceased Ketan. After treating both of them in Y.C.M Hospital, they were sent to ICU ward. Siddiq was taken to Birla Hospital, however, he was declared dead before admission. P.W.1 -Narsingh Chavan thereafter went to Dehu Road Police Station and lodged a report Exhibit 62. P.W.17 -P.S.I Mohandule who was present at the Police Station on 2nd March, 2010 recorded the complaint of P.W.1-Narsingh at 1.40 a.m. Exhibit 62. An offence came to be registered vide C.R. No.72 of 2010 under sections 302, 307, 143, 147, 149 of the Indian Penal Code, 4/25 of Arms Act and 37(1) 135 of the Bombay Police Act. P.W.17 -P.S.I Mohandule went to Y.C.M Hospital and in the presence of pancha witnesses drew inquest on the dead body of Siddiq.
8. Thereafter, P.W.18-Mr. Gokave, Police Inspector took charge of the investigation. On 2nd March, 2010 around 7.00 a.m, he visited the spot of the incident. He drew sport panchnama Exhibit 145. He had seized some articles lying on the spot i.e one chappal,torn pocket of shirt, broken button of shirt, blood mixed earth as well as plain earth and blood stained small stones. He recorded the statements of witnesses as well as statement of deceased Ketan, who was in an injured condition at that time.
9. P.W.11 -Dr. Subhash Madne conducted autopsy over the dead body of Siddiq between 6.15 and 7.15 a.m at Y.C.M. Hospital, Pimpri. He had noted three external injuries on the p
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