GANGARAM SHANTARAM SALUNKHEversusTHE STATE OF MAHARASHTRA

                 GANGARAMSHANTARAMSALUNKHE                                         A
                                       v.
                     THE STATE OF MAHARASHTRA

                            NOVEMBER 22, 2006

               (S.B. SINHA AND MARKANDEY KA TJU, JJ.]                              B

       Penal Code, 1860-Section 302 read with section 34-Conviction
  under-Upheld by High Court-Interference with-Held: Evidence was
·consistent and corroborated by medical evidence-Dying declaration also            C
 could not be discarded-There being few minor discrepancies, does not call
 for interference with the order of High Court-Evidence Act, I 872-Section
  34.

      According to the prosecution case, accused nos. 2, 3 and 4 stopped
vehicle on which Band PW4 were proceeding. Accused No. 3 caught hold of            D
B and accused no. 2 and accused no. 4-appellant assaulted him with knife.
PW4 tried to save the deceased but was threatened. B also tried to save himself,
but was assaulted by accused nos. 2 and 3. B was taken to the hospital. Doctor
examined him and declared him dead. PW 4 got the complaint registered. Trial
Court convicted and sentenced accused nos. I to 4 under section 302 read
with section 34 and section 120B IPC. High Court acquitted accused no. l;          E
however, it upheld the conviction of others. Hence, the present appeal.

      Dismissing the appeal, the Court

     HELD: 1.1. In the instant case, the evidence is consistent and is
corroborated by the medical evidence. A few mere minor discrepancies here          F
and there do not help the case of the appellant. 1295-C)
       1.2. There are two eye witnesses-PW4 and PWS. PW4 clearly identified
the appellant as the unknown man in his deposition before the trial court,
and there is no reason why PW 4 should falsely implicate him. The evidence
of PW4 is also corroborated by the evidence of PWS, who is a neutral person        G
being the driver of the Vehicle. There was no reason for PWS to falsely
implicate the appellant. PWS clearly stated in his evidence that the appellant
inflicted wounds on the deceased. The evidence of PW4 and PWS finds further
corroboration in the dying declaration made by the deceased to PW6.
                                                                    (294-D-GJ
                                      291                                          H
    292                     SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A         1.3. The Doctor only stated that it was possible that the deceased may
    have become unconscious instantneously after sustaining the wounds.
    However, there is a diference between something being possible and something
    being probable or certain. PW6 before whom the dying declaration was
    recorded, stated that the deceased had given his dying declaration before he
B   reached the hospital. Thus, there is no reason to disbelieve the dying
    declaration. (295-A-C)
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 241 of
    2006.

          From the Final Judgment and Order dated 17-10-2005 of the High Court
C   of Judicature at Bombay, Bench at Aurangabad in Cr!. A. No. 60 of 1992.

            Sudhanshu Choudhary and Naresh Kumar for the Appellant.

            V.N. Raghupathy (for Aniruddha P. Mayee), for the Respondent.

D           The Judgment of the Com1 was delivered by

          MARKANDEY KAT JU, J. This appeal has been filed against the
    impugned judgment and order of the Bombay High Court (Aurangabad Bench)
    dated 17.10.2005 in Criminal Appeal No. 60 of 1992 by which the High Court
    has affirmed the sentence of life imprisonment imposed by the Trial Court by
E   judgment dated 20.2.1992 under Section 302 read with Section 34 IPC as well
    as fine of Rs.200/-, in default of which two months R.l.. was also awarded.

            Heard the learned counsel for the parties and perused the record.

          There were four accused originally before the Trial Court namely ( l)
F   Anil Shivram Pawar, (2) Manila! Hiraram Chaudhari, (3) Premraj Hiraram
    Chaudhari and (4) Gangaram Shantaram Salunkhe (the appellant in the present
    case.) All the four accused had been convicted by the Trial Court but in
    appeal the High Court acquitted accused no. l but maintained the conviction
    of accused no. 2, 3 and 4 under Section 302 read with Section 34 l.P.C. In the
    present case the appellant is only accused no. 4 Gangaram Shantaram Salunkhe
G   @Bapu.
          The gist of the prosecution case is that on 13.2.1991 Bhaulal Jadhav the
    deceased along with PW4 Lotu Eko Patil was proceeding from Phuphanagari
    to Jalgaon on bike Bajaj M-80 and when they reached on a way to Jalgaon
    near Khedi Phata at a distance of 3 kms. the appellants, who were in Maruti
H   Van parked by the side ofroad got down. It is further alleged that t.he accused
     GANGA RAM SHANTA RMI SALUNKHE •'. THE STATE OF MAHARASHTRA [MARKANDEY KA TJU, J.]   293

no. 2, 3 and 4 then stopped vehicle on which Shaula! and PW4 were proceeding.                  A
 The accused No. 3 Premraj caught hold Bhaulal and accused no. 2 and 4 i.e.
 Manila! and Gangaram assaulted Shaula! with knife. The complainant PW4
then tried to rescue Bhaulal, however, accused no. 2 Manila! extended threats
to PW4 and, therefore, PW4 started proceeding towards Jalgaon. Bhaulal was
also trying to save himself, however, the accused no. 2 and 3 chased him and
assaulted with weapon like knife. PW4 then immediately went to Taluka Police                   B
Station 'Jalgaon on a vehicle of some another person. PW14 Hamid Khan
Miya Khan Pathan was holding charge of Station Diary at the relevant time
at about 11.45 a.m .. PW4 then disclosed him about the incident that Shaula!
Jadhav is assaulted by Manilal, Premraj and one unknown person. Entry in
the Station Diary to that effect was immediately taken by PWl4 and Police                      C
Constable namely Ukhardu Koli, Sharad Vispute and Pramod, who were on
duty at Police Station, were immediately sent to the spot along with PW4,
however, by that time injured Bhaulal Jadhav was taken to the hospital in a
tractor by one Bharat Jadhav as he was also proceeding to Jalgaon and that
tractor was also owned by Bhaulal. The Police Constable Ukhardu Koli and
others and complainant then proceeded to the hospital. Doctor from hospital                    D
examined Bhaulal and declared. him dead and, therefore, Police Constable
Ukhardu Koli gave information to the Taluka Police Station approximately at
about 12.45 noon about the death of Bhaulal and PW14 thereafter recorded
complaint of PW4 and on the basis of said complaint registered crime No. 16/
 1991 against the present appellants for the offence punishable under Section                  E
120-B, 302 read with Sections 34 and 341, 506 ofl.P.C. PW! 7 Dhanraj Walukar
took up the investigation of the said crime. He visited the hospital, held
inquest over the dead body, referred the same for post mortem, recorded
statements of certain witnesses. Thereafter investigation of the said crime was
taken over by P.I. PW15 P.S. Suryawanshi who arrested accused no. I,
interrogated him and attached revolver at his instance. Record further shows                   F
that PW15 thereafter handed over investigation of the said crime to PW! 7
who then made attempts to arrest accused, as the ·accused no. 2, 3 and 4 were
absconding he succeeded in arresting accused no. 2 Manilal only on 22.3.1991.
During the course of interrogation and while accused Manila( was in the
custody of Police he made discloser statement, showed his willingness to                       G
produce the wearon from the place where it was concealed at Saptashringi
Gadh. Memorandum to that effect is prepared. He then took police and
panchas to the said place and produced knife. Even the accused also showed
his willingness to show the place where he burnt blood stained clothes which
were on his person. He then took police to Nala and shown the place.
                                                                                               H
                                                                    ~
    294                     SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A   Panchnama to that effect is prepared and burnt articles were attached by the
    police. PW! 7 then made attempt to arrest accused no. 3 and 4, however, their
    whereabouts were not known and some where in the month of July, 1991 both
    accused no. 3 and 4 obtained anticipatory bail. Record further shows that
    initially police after completing investigation filed charge sheet against accused
    no. I and 2 showing the accused no. 3 and 4 absconding and after formal
B   arrest of accused no. 3 and 4 subsequently charge sheet was submitted and
    accordingly two separate cases i.e. Sessions Case No. 88/1991and196/1991
    were registered.

          The Trial Col!rt after considering the evidence on record convicted the
C accused under Section 302 read with Section 34 and Section 1208 l.P.C. which
    conviction was upheld in appeal by the High Court.

          In. this case there are two eye witnesses PW4 and PW5. As regards the
    evidence of PW4, he has stated that at the time of the incident the accused
    no. 2 Manila) Hiraman Chaudhari and accused no. 3 Premraj Hiraman Chaudhari
D   and one unknown person got down from the Maruti Van. He has further
    stated that the unknown man gave a blow with an iron sickle on the head of
    the deceased. He further stated that thereafter the unknown man got hold of
    the deceased and accused no. 2 and 3 inflicted blows on him with iron knife
    and sickle.

E         It is submitted by learned counsel for the appellant that since the name
    of the appellant was not mentioned by PW4 hence the chance of false
    implication of the appellant in this case cannot be ruled out.

          We do not agree with this contention. PW4 clearly identified the appellant
    as the unknown man in his deposition before the Trial Court, and there is no
F   reasori why PW4 should falsely implicate him.

          The evidence of PW4 is also corroborated by the evidence of PW5, who
    is a neutral person being the driver of the Maruti Van. There was no reason
    for PW5 to falsely implicate the appellant. PW5 has clearly stated in his
G   evidence that the appellant inflicted wounds on the deceased.

          The evidence of PW4 and PW5 find further corroboration in the dying
    declaration made by the deceased to PW6.

          Learned counsel for the appellant tried to a~sail the veracity of the
H dying declaration through the evidence of the Doctor who conducted the
      GANGARAM SHANTARAM SALUNKHE v. THE STATE OF MAHARASHTRA [MARKANDEY KATJU, J.]   295

post mortem examination, The Doctor stated that it was possible that after                  A
sustaining the wounds the deceased may have gone into an unconscious
state instantaneously.

       We note that the Doctor only stated that it was possible that the
deceased may have become unconscious instantaneously, However, there is
a difference between something being possible and something being probable                  B
or certain. PW6 before whom the dying declaration was recorded, stated that
the deceased had given his dying declaration before he reached the hospitaL
Thus, we see no reason to disbelieve the dying declaration.

      The evidence in this case is consistent and is corroborated by the
medical evidence. A few mere minor discrepancies here and there do not help                 C
the case of the appellant.

      There is no force in this appeal. Hence, it is dismissed.·

NJ.                                                                Appeal dismissed.        D