1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION CRIMINAL APPLN. NO.: 1131 OF 2010 IN CRIMINAL APPEAL NO.: 123 OF 2010 *** Bhaguram S/o Annarao Kendre ...Appellant Versus State of Maharashtra ...Respondent *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- 15th JUNE, 2010. ORAL ORDER [Per Deshmukh, J.]: 1. We have heard learned counsel Mr. V.D. Salunke for the Applicant and learned A.P.P. Mr. Shaikh for the Respondent/ State. 2. The Applicant, by this application, seeks suspension of the judgment and order passed by the trial Court in Sessions Case No.108 of 2008 dated 26th February, 2010 and his release on bail. 3. Criminal Appeal NO.123 of 2010 was before 2 this Court on 5th April, 2010. On that day, after hearing counsel present before the Court. Appeal was admitted. Record was called for. 4. Today, we have heard learned counsel for the parties at great length. Record is also available. We have seen the record. Present applicant was tried for the offence punishable under section 302, 498-A of Indian Penal Code. On behalf of the prosecution, eight witnesses were examined. The case of the prosecution, in brief, has been mentioned by the trial Court in para 2 of the judgment. From this para 2, it appears that the name of the deceased person is Chhaya. It is mentioned in para 2 that Chhaya was wife of the present Applicant. Date of the incident is 20th October, 2002. Entire case of the prosecution is based on two alleged dying declarations made to P.W.3 Baliram and P.W.4 Bharat. Apart from these two dying declarations, according to the prosecution, such dying declaration was also made by deceased Chhaya to P.W.8 Investigating Officer Mr. Kulkarni, A.P.I. 3 Another set of evidence, brought on record by the prosecution is in corroboration of these three oral dying declarations. It is seizure of the clothes allegedly of the present Applicant, from the spot of the incident. Learned Judge has considered the material, brought on record, in its entirety. The trial Court acquitted the present Applicant for the offence under section 498-A of the Indian Penal Code, however, convicted him for the offence punishable under section 302 of Indian Penal Code and sentenced to suffer R.I. for life and to pay fine of Rs.5,000/-, in default to suffer further R.I. for three months. 5. With the assistance of the counsel present before the Court, we have seen the judgment of the trial Court. In para 23 of the judgment, trial Court has recorded that applicant was married to deceased Chhaya 18 years before the incident. The couple stayed together for about 4 to 5 years. Their relations, during that period, were cordial. In para 7 of the judgment, learned Judge has referred to statement of the present applicant 4 under section 313 of the Criminal Procedure Code. From para 7, it appears that the learned Judge has referred to examination of the present applicant under section 313 Cr.P.C. We have seen from the original record statement of the present applicant under section 313 of the Cr.P.C. It starts from page C-25. Qu4estion NO.50 we are referring which was put by the learned Judge to the present applicant. It was “do you want to lead any evidence in your defence?” The answer given is “No”. Thereafter, learned Judge seems to have put question NO.51 “Doe you want to say anything more”. The answer given by the applicant is “I am filing my written statement”. Thus, written statement Exhibit-43 appears to have been filed by the present applicant in response to question No. 51. Statement under section 313 was recorded on 10th February, 2010. Learned Judge has referred this Exhibit-43 – written statement of the Applicant. The gist of that statement is mentioned in para 7 of the judgment. It appears from the para 7 of the Judgment that according to applicant deceased Chhaya, his 5 wife, had visited her parental home in 2001 on occasion of the festival of Rakhi. She was not sent back by her parents to the applicant. On the contrary, the accused was asked to come down to the house of parents of deceased Chhaya. From the judgment, it appears that parents of deceased were residing at village Kolapa, district Latur. The accused, according to his written statement, stayed with deceased for four months. Parents of the deceased Chhaya were running Dhaba “eating house/ hotel”. It was run by mother of the deceased. According to the applicant, he was unable to cook and that was the reason for quarrel amongst himself and his mother-in-law. Applicant was not willing to stay with parents of the deceased Chhaya. Deceased Chhaya refused to cohabit with him and according to the Applicant, he was forced to stay at parental house of the deceased Chhaya. He did not like it. He left the parental home of deceased Chhaya and started residing at Alandi village. According to Mr. Salunke, this village is under the revenue jurisdiction of Pune district. A statement is also recorded 6 in para 7 by the learned Judge that applicant did not return back from village Alandi to Latur district. 6. On behalf of the prosecution, Medical Officer is examined. Injuries sustained by the deceased, they are on record in the evidence of Medical Officer. These injuries have been mentioned by the learned Judge in para 13 of the Judgment. To appreciate the nature of injuries, we are just listing those injuries herein below: "1. Incised wound on the superior part of left temporal region, saggitaly i.e. straight in direction adm. 5 x 5.1 x 1/2 cm. 2. Incised wound on left mastoid region oblique i.e. behind the left ear, oblique adm. 6 x 1 x 1/2 cms. 3. Stab wound on left parasternal region below breast in 5th inter costal space admn. 4-1/2 x 1. 4. Stab wound on left subcostal region in midelavicle line oblique in nature adm. 7 x 4. It was deep upto visceral cavity and omentum was protruding out of this injury. Omentum is part of intestine. 5. Stab wound on left midaxillary line at 4th inter costal space adm. 7x2x5 cm. 7 It is deep upto subcutaneous and transversely placed. 6. Incised wound having partial amputation of left wrist vertrally with 4 cms., long dorsal skin tab intact with scaphoid having fracture of unlnar styloid process, transversely." 7. We have also seen further part of the observation of the learned Judge in same para No.13. We have also noticed that the Medical Officer found some injuries which are part of para 13. We are also listing those injuries herein below: "1. Haematoma at left superior temporal region adm. 5x1x1/2 cms. 2. Stab wounds to ribs, walls and cartilages, due to which the pleura was found torn down, on left 5th intercostal space in mid clavicle line. 3. Lace3ration of lower part of left lung. 4. Abdominal walls found having stab injury due to which peritonerum was torn on left subcostal region. Due to this injury, cavity was containing 1200 ml. of blood. 5. Large intestine was found having tear in proximal part of descending colon, near spleenic flexer or region adm. 8x2 cm. 8 6. Left kidney having incised laceration about 2/3rd anterior superiorly. The right kidney was found pale due to blood loss." All these injuries are internal injuries. Suffice to notice that the Medical Officer Dr. Datal in his evidence has referred to external as well as internal injuries sustained by deceased Chhaya. These injuries have been considered by the trial Court. 8. Mr. Salunke, learned counsel for the Applicant, drew our attention to evidence of P.W.4. He submitted that, according to the prosecution case, P.W.3 Mr. Baliram Panchal is a witness who claims that deceased made some oral dying declaration implicating the present applicant. According to him, it is not the prosecution case that deceased Chhaya also made oral dying declaration to P.W.4 Bharat. To the contrary, learned A.P.P. points out the observation of learned trial Court in various paragraphs of the judgment. According to him, oral dying declaration was made by deceased Chhaya to P.W.3 Baliram and also to P.W.4 9 Bharat. To appreciate the submissions of both the learned counsel, we have ourselves seen the evidence of P.W.4 Bharat. It is at Exhibit-27, page C-55. We are just recording two, three sentences from the examination in chief of this witness P.W.4 Bharat. “When I reached near the railway tracks, I heard shouts of a female as "Wachwa, Wachwa" [save, save]. At the same time, I noted one female falling on the ground by the side of Railway tracks and one male was found running near from her towards Shiwaji Chowk side. Before I reached near the female, P.W.3 Baliram had reached on the spot. I know him as a teacher residing nearby. I found female to have sustained stab injury on the front portion of her person and at the wrist of her left hand. The injured informed me that she was assaulted by her husband.” With the assistance of learned counsel for the parties we have seen the cross examination. It runs in six lines. We wish to record this cross examination herein below: "2. Apart from me and P.W.3, about 50 persons had gathered on the spot. Except for P.W.3, nobody had visited the spot prior to him. Nobody amongst the 10 persons who had gathered on the spot helped the injured. I had not seen assault on the person of injured. It is not true to say that I have not seen any incident. It is not true to say that I am deposing false on the say of police." “Page C-56, para 2” 9. Mr. Salunke, learned counsel for the applicant submitted that the statement of P>W. 4 Mr. Bharat has been recorded by the police and it is not his case in the statement that oral dying declaration was made by deceased Chhaya to him. Such claim is made by P.W.4 Bharat for the first time in the Court and therefore same could not have been considered by the trial Court. Investigation is a matter to be conducted by the police officer under the provisions of Criminal Procedure Code. Examination of witness by police is a matter governed by section 161 of the Criminal Procedure Code. Section 162 of the Cr.P.Code mandates that statement to police not to be signed. Proviso to sub section (1) of section 162 states that provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into 11 writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in this cross examination. We have noticed that subsection (2) of section 162 has made exception to a statement falling within the purview of section 32 of the Indian Evidence Act. Thus, section 162 of the Cr. P. Code has made available mechanism to accused and prosecution. This is because the Legislature in its wisdom has taken into account human tendency of exaggeration, improvement etc. Since statements of the witnesses recorded by the police are not to be signed under section 161 such mechanism is made available to both the sides of criminal case i.e. the accused and to the prosecution. This facilitates the accused person to prove the omissions, 12 improvements by confronting the witness and resorting to section 145. This section also gives an opp to the prosecution to explain some contingency by way of re-examination. In the case on hand, it is not possible for us to read the statement of P.W.4 recorded by the police. Provision laid down under section 162 could have been utilised by the accused pin pointing P.W.4 when he was available for cross examination. In substance, it is not possible for us to accede to the submissions of learned counsel Mr. Salunke. In our view, learned A.P.P. is justified in relying on the evidence of P.W.4 and contending that the oral dying declaration is made to him by deceased. 10. We are not holding mini trial in a criminal application filed by the present applicant for his release on bail nor hearing appeal finally. We have seen the evidence brought on record by the prosecution. With the assistance of the counsel for the parties, virtually we have read the entire judgment. In our opinion, it can be said that the conviction recorded by the trial Court in the 13 case on hand is not so perverse to consider the application filed by the present applicant for his release on bail even though he was on bail in trial Court and there is no allegation of jumping the bail. We are absolutely not inclined to consider the application for release on bail. 11. Criminal Application stands rejected. No costs. [S. S. SHINDE, J.] [S.B.DESHMUKH, J.] Dated:15/06/2010. ans/1131 14 WRIT PETITION NO.: OF 200 Date of decision: 8th APRIL, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. S. SHINDE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE