Bombay High Court
Santosh S/O Dattu Pawar And Another vs The State Of Maharashtra on 10 February, 2022
Author: V.K. Jadhav
Bench: V.K. Jadhav
(1)
criappeal-700.2014.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.700 OF 2014
1. Santosh Dattu Pawar
Age : 26 years, occ : nil
R/o Yeola Road, Behind
Mayureshwar Ganpati Temple,
Kopargaon, Dist. Ahmednagar.
2. Dattu Baburao Pawar
Age : 56 years, occ : nil
R/o Yeola Road, Behind
Mayureshwar Ganpati Temple,
Kopargaon, Dist. Ahmednagar. Appellants
Versus
The State of Maharashtra Respondent
...
Mr. N.S. Ghanekar, Advocate for the appellants.
Mr. S.D. Ghayal, A.P.P. for respondent - State.
...
CORAM : V.K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
Reserved on : 10-01-2022.
Pronounced on: 10-02-2022.
JUDGMENT (Per Sandipkumar C. More ) :
1. This is an appeal by the appellants who are the original accused, against the judgment and order passed in Sessions Case No. 58/2013 dated 18.04.2014 by the learned Additional Sessions Judge, Kopargaon (hereinafter referred to ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (2) criappeal-700.2014.odt as the "trial Court"). Under the impugned judgment, both the appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short "I.P.C."). Accordingly both of them are sentenced to suffer imprisonment for life each and to pay fne of Rs. 5,000/- each, in default to suffer rigorous imprisonment for one year each.
2. The appellants - accused are in jail since their arrest made on 01.04.2013 in this crime.
3. The story of the prosecution, in nutshell, is as under :
Appellant No. 2 Dattu is the father of appellant No.1 Santosh and both of them used to reside in the locality behind Mayureshwar Ganpati Temple at Kopargaon. One Vilas Balkrishna Bhoir i.e. the deceased in this case alongwith his son Ganesh i.e. another deceased in this case, used to reside in the same locality as that of the appellants.
The houses of the appellants and deceased persons were near to each other. The appellants always used the lane aside the house of Vilas Bhoir for urinating. On that count there were frequent quarrels between the appellants and Vilas Bhoir. On ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (3) criappeal-700.2014.odt 31.03.2013 at about 8.30 p.m. appellant No. 2 Dattu had gone to the said lane behind the house of Vilas to pass urine.
However, Vilas obstructed appellant No. 2 and tried to persuade appellant No. 2 for not to do so. On that count, there was quarrel between them. At the relevant time, Ganesh i.e. the son of Vilas had also come out of the house and tried to persuade appellant No. 2 Dattu. However, Dattu started abusing them. On hearing the said quarrel, appellant No.1 Santosh i.e. the son of appellant No. 2 Dattu came out from his house with an axe. Appellant No. 1 Santosh started abusing Vilas and Ganesh and also assaulted Ganesh with the help of the said axe. He gave blows of the said axe on the head of Ganesh, and therefore, Ganesh fell down on the spot being unconscious. Simultaneously appellant No. 2 Dattu had also rushed to his house, brought sickle and gave blows of that sickle on the head of Vilas. Due to those blows Vilas sustained bleeding injuries on his head, and therefore, he called his another son Kailas @ Pappu residing in Ambika Nagar locality. Kailas then with the help of neighbours and friends shifted Vilas and Ganesh in injured condition to Kopargaon Rural Hospital. The Medical Offcer present in the said hospital, after noticing the injuries being of serious nature, asked them to shift Vilas and Ganesh to Saibaba ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (4) criappeal-700.2014.odt Superspeciality Hospital, Shirdi immediately. Accordingly both the injured were shifted to said hospital at Shirdi. Meanwhile Kopargaon police had also got information of the said incident through a memo received from the Medical Offcer. As such, Police Inspector of Kopargaon Police Station deputed A.P.I. Rahul Pawar to attend the hospital at Shirdi for recording statements of both the injured persons.
4. A.P.I. Rahulkumar Dattatraya Pawar i.e. PW-1 visited the Saibaba Super-speciality Hospital at Shirdi and on making enquiry with the Medical Offcer on duty, he learnt that only Vilas Bhoir was in a position to speak and capable of giving statement. Ganesh Bhoir was still unconscious at the relevant time. Therefore, A.P.I. Rahul Pawar recorded statement of Vilas in presence of Medical Offcer. On the basis of the said statement, A.P.I. Rahul Pawar registered Crime No. 111/2013 initially for the offences under Sections 307 and 504 read with Section 34 of I.P.C. at about 1.45 hours on 01.04.2013. However, in the morning of that day Vilas succumbed to the injuries sustained by him. Another injured Ganesh also died thereafter on 03.04.2013. Therefore, the crime against the appellants was converted into under sections 302, 201 read with Section 34 of I.P.C. ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (5)
criappeal-700.2014.odt
5. After registration of F.I.R. at the hands of A.P.I. Rahul Pawar, the then Police Inspector Madhukar Auti of Kopargaon Police Station started investigation. During investigation he got prepared inquest panchanama over the dead body of Vilas with the help of local police by deputing A.S.I. Dhawale. He also prepared spot panchnama in presence of panchas as per Exh.28. He collected blood mixed soil and ordinary soil alongwith other articles found on the spot and in the house of deceased under the same panchnama. He also seized clothes of deceased Vilas under
panchnama Exh.29. He then recorded statements of witnesses and collected medical certifcates from the Medical Offcer, Rural Hospital, Kopargaon alongwith postmortem reports of deceased persons. Clothes of other deceased were also seized under panchnama. He then effected arrest of both the appellants. On 03.04.2013 appellant No. 2 Dattu made disclosure statement for production of clothes which he had worn at the time of incident. Accordingly, by recording such statement, Investigating Offcer recovered those clothes from the house of appellants at the instance of appellant No. 2 Dattu, which were kept in polythene bag under a wooden cot and prepared panchnama to that effect which is at Exh. 30.
On 04.04.2014 appellant No. 1 Santosh, while in police ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (6) criappeal-700.2014.odt custody, also made disclosure statement for production of axe and his clothes worn at the time of incident. The said disclosure statement (Exh.31) was recorded and then at the instance of appellant No. 1 Santosh, axe and the aforesaid clothes were recovered and seized under panchnama (Exh.
32). Then on 08.04.2013 appellant No. 2 Dattu made another disclosure statement for production of sickle as per Exh. 33-A and later on the said sickle was recovered at the instance of appellant No. 2 Dattu, which was buried at the place near his bathroom. The said sickle was seized under panchnama (Exh. 33). Investigating Offcer had also sent muddemal articles and clothes to the Chemical Analyzer. Thereafter on completion of investigation, he fled charge-sheet against the present appellants - accused. On 06.02.2018 the said Investigating Offcer had also submitted C.A. reports and other documents, which he had received after fling of the charge-sheet.
6. After committal of the case before the learned trial Court, he framed charge against the appellants at Exh. 10 for the offences punishable under Sections 302 and 201 read with Section 34 of I.P.C. Both the appellants denied the said charge and claimed trial. On completion of the trial, ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (7) criappeal-700.2014.odt statements of the appellants under Section 313 of the Code of Criminal Procedure (for short "Cr.P.C.") were recorded. Defence of the appellants, as revealed from the cross- examination on their behalf and their statements under Section 313 of Cr.P.C., was of total denial. Learned trial Court thereafter on hearing rival submissions, convicted the appellants / accused as mentioned above.
7. On going through evidence recorded in the trial, it appears that PW-1 Rahulkumar Dattaraya Pawar is the then A.P.I. of Kopargaon Police Station, who had recorded statement of injured Vilas in the intervening night between 31.03.2013 and 01.04.2013 at Saibaba Super-speciality Hospital, Shirdi. According to him, he after consulting the Medical Offcer on duty at the said hospital, found injured Vilas in a position to give statement and after securing the endorsement of the said doctor, he proceeded to record the statement of Vilas. PW-2 Dr. Ajitkumar Tukaram Wagh is the Medical Offcer in whose presence statement of injured Vilas was recorded. This witness had in fact put the endorsement to the effect that Vilas was conscious and ft to give statement. PW-3 Kailash Vilas Bhoir is the another son of deceased Vilas who had taken Vilas and Ganesh to Kopargaon ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (8) criappeal-700.2014.odt Rural Hospital and then to the hospital at Shirdi in injured condition. He has also stated that his father Vilas had told him as to how the appellants assaulted them with axe and sickle. Thus, it appears that deceased Vilas had made oral dying declaration to this witness.
8. PW-4 Deepak Murlidhar Autade is a friend of Kailash who had helped in boarding injured persons in the ambulance for taking to the hospital at Shirdi. PW-5 Shrikrishna Damodhar Jadhav is the relative of deceased Vilas and had gone to the spot of incident on receiving phone call from Kailas i.e. the another son of deceased Vilas. He has deposed how he helped Kailas in taking the injured to the hospitals. PW-6 Nilesh Vitthal Kharmare is a panch witness to the inquest panchnama over the dead body of Vilas Bhoir and he has deposed accordingly. PW-7 Shivaji Popatrao Kawade is a panch witness on spot panchnama as well as seizure panchanama of clothes of deceased Vilas, who has proved the contents of spot panchnama (Exh.28) and seizure panchnama (Exh. 29). This witness also appears to be a panch witness in respect of the discovery panchnamas under
which the appellants / accused had produced clothes, axe and sickle used at the time of incident. Further PW-8 Hamraj ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (9) criappeal-700.2014.odt Sarfraj Padri appears to be a panch witness in respect of the seizure of clothes of deceased Ganesh Bhoir. However, he has not supported the prosecution. PW-9 Vilas Namdeo Dongre is a panch witness on inquest panchnama of dead body of Ganesh and he has stated that he noticed bleeding from ears and mouth of deceased Ganesh. Further, he deposed that there were abrasions on his hands and legs and there was also injury on the head of deceased Ganesh. The said inquest panchnama is at Exh.36.
9. Then the prosecution examined PW-10 Dr. Aniket Trimbak Khot who has conducted postmortem over the dead body of Vilas and he has deposed accordingly and also proved the contents of the postmortem report (Exh.39). PW-11 Dr. Yogesh Hiralal Lade is the another doctor who has conducted postmortem over the dead body of Ganesh Bhoir. This witness has stated about the injuries found on the said dead body and also proved the contents of postmortem report (Exh.41). PW-12 Punja Bansi Dhawale i.e. the then A.S.I. of Kopargaon Police Station is the person who had seized the clothes of injured Ganesh Bhoir from Saibaba Hospital, Shirdi under panchnama (Exh.43). The last witness of the prosecution is the then Police Inspector Madhukar Thakajirao ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (10) criappeal-700.2014.odt Auti who had conducted investigation. We have already discussed the evidence of this witness and it is mostly on the procedural aspect.
10. We have heard the learned Counsel for the appellants as well as learned A.P.P. for the respondent - State.
11. Learned Counsel for the appellants submits that despite knowing the names of eye witnesses, the prosecution did not examine them. Further, he pointed out that the dying declaration (Exh.16) on the basis of which the present appellants have been convicted, is not at all trustworthy and reliable piece of evidence. He submits that though it has come in the evidence that endorsement of doctor on the said dying declaration was made twice i.e. before and after recording of the dying declaration in respect of the ft condition of the maker of it, but in fact there is only one endorsement on the said dying declaration. Further, he pointed out that the Medical Offcer who had made such endorsement, has denied that he was there when the said dying declaration was being recorded. As such, learned Counsel submits that there is difference between ocular evidence and medical evidence, and therefore, the dying ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (11) criappeal-700.2014.odt declaration (Exh.16) cannot be relied upon. He further submits that the doctor who made the aforesaid endorsement, has given some material admissions in his cross-examination which has rendered the entire procedure of recording the aforesaid dying declaration highly doubtful. He further submits that even the weapon sickle was not referred to PW-10 Dr. Aniket Khot who conducted the postmortem of deceased Ganesh. The doctors were also not shown any weapon. Learned Counsel for the appellants submits that the injuries of Ganesh were impossible by the use of axe. Moreover, he submits that though in the report of Chemical Analyzer human blood was detected on muddemal articles, but it's blood group could not be detected, and therefore, no inference of involvement of appellants - accused can be inferred. However, in the alternative, the learned Counsel for the appellants submits that if this Court comes to the conclusion in respect of the guilt of the accused in the affrmative, then considering the sudden quarrel between the appellants and deceased persons, the appellants at the most be held guilty for the offence under Section 304 Part II of the I.P.C. In addition to the submissions, learned Counsel for the appellants placed reliance on the following judgments : ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (12)
criappeal-700.2014.odt
(i) Ram Narain Singh vs. State of Punjab (1075) 4 SCC 497
(ii) Majendran Langeswaran vs. State (NCT of Delhi) 2013 AIR (SC) 2790
(iii) Shivanand @ Shiva Shivshankar vs. State of Maharashtra, (2008) 2 BomCR 626
(iv) Mohammed Parvez @ Aftab Shaikh vs. State of Maharashtra, (2015) 3 BomCR 451.
(v) Nilesh @ Nilikrao Ukarda Jadhav vs. State of Maharashtra, (2016) MhLJ (Cri) 177
(vi) Amar Singh and others vs. State of Punjab (1987) AIR (SC) 826
(vii) Vikram @ Virma vs. State of Madhya Pradesh (2021) Supreme (SC) 706
(viii) Mohar Singh and others vs. State of Punjab.
(1981) AIR (SC) 1578
(ix) Vasant Ramchandra Gaikwad vs. The State (2012) 4 MhLJ (Cri) 637
(x) Chandansing Dhannasing Patre vs. State of Maharashtra (2018) BomCR (Cri) 209
(xi) Kashinath Kisan Bhoye vs. State of Maharashtra (1002) 1 BomCR 95
12. On the other hand, learned A.P.P. also submits strongly that the dying declaration of Vilas Bhoir alone is suffcient to base the conviction of the appellants because it inspires full confdence. According to him, no drug containing drowsy substance was administered to Vilas as claimed by the learned Counsel for the appellants. In fact, ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (13) criappeal-700.2014.odt the Epsolin dose of 200 mg was given to Vilas after recording his dying declaration. Further the Investigating Offcer had taken every care while sending the muddemal articles to the Chemical Analyzer for avoiding any manipulation. Further, recovery of incriminating articles and weapons at the instance of appellants - accused is also proved. He also pointed out that the prosecution had taken efforts to examine the other eye witnesses, but as the said eye witnesses were not intending to support the prosecution, they were left. Lastly, he submits that the present case does not fall under Section 304 Part II of the I.P.C. since the nature of injuries sustained by deceased persons is itself suffcient to disclose the intention of the appellants to commit murder. Learned A.P.P. also placed reliance on the following citations :
(i) Laxman vs. State, 2002 AIR (SC) 2973 (ii) Jagriti Devi vs. State of H.P. (Cri. W.P. No.823/2003) (iii) Rameshbhai Mohanbhai Koli and others vs. State of Gujrat, 2011 AIR (SCW) 378 (iv) Mallikarjun and others vs. State of Karnataka 2019 (8) SCC 359 (v) Mohd. Asiam vs. State of Maharashtra 2001 (9) SCC 362. ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (14) criappeal-700.2014.odt
13. We have carefully gone through the entire evidence on record in the light of the rival submissions made and respective citations relied by the learned Counsel for the appellants as well as as learned A.P.P. On perusal of the entire material it appears that the appellants have been convicted by the learned trial Court mainly on the basis of dying declaration (Exh. 16) and other circumstantial evidence.
14. So far as the case of prosecution in respect of dying declaration is concerned, there appears two dying declarations; one is in recorded form and other is in the form of oral narration by the deceased Vilas to his another son Kailash i.e. PW-3. Learned Counsel for the appellants doubted the contents of recorded dying declaration (Exh. 16) at the hands of PW-1 Rahulkumar Pawar, the then A.P.I. of Kopargaon Police Station, on various grounds, such as, the same is not trustworthy piece and that the mental condition of the deceased while making it was not proper and that it was recorded in so many doubtful circumstances. Learned Counsel for the appellants also placed reliance on the judgment of the Hon'ble Apex Court in the case of Mohar Singh and others vs. State of Punjab reported in (1981) AIR (SC) 1578 wherein the dying declaration in that case was not ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (15) criappeal-700.2014.odt believed as the deceased presumably was not in a position to make such a long statement. Further, in that case the injuries on the deceased were found to be in confict with the medical evidence. However, learned A.P.P. has strongly opposed on the ground that in the instant case there is no long statement in the dying declaration and the evidence of Medical Offcer is also there suggesting that the deceased was in condition to give statement at the relevant time. Therefore, we have to scrutinize the dying declaration in the light of the objections raised by learned Counsel for the appellants.
15. So far as dying declaration (Exh. 16) is concerned, admittedly it appears to be recorded by PW-1 Rahulkumar Pawar, the then A.P.I. of Kopargaon Police Station. Further, PW-2 Dr. Ajit Wagh was the Medical Offcer who was attending Vilas by whom said dying declaration was made. From the evidence of PW-1 A.P.I. Rahulkumar Pawar it appears that in the night intervening 31.03.2013 and 01.04.2013 he was asked by Investigating Offcer of this case i.e. PW-13 P.I. Madhukar Auti, to go to Saibaba Super- speciality Hospital, Shirdi to record statement of injured persons. On going to the said hospital at Shirdi, PW-1 A.P.I. Rahulkumar Pawar met PW-2 Dr. Ajit Wagh and found that ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (16) criappeal-700.2014.odt other injured Ganesh was not in position to give statement, but Vilas was found in position to give statement. PW-2 Dr. Wagh also certifed condition of Vilas under the endorsement marked 'A' on the said dying declaration (Exh. 16). PW-1 A.P.I. Rahulkumar Pawar has stated in his evidence as to how the wife of appellant No. 2 used to throw garbage in front of the house of Vilas and how the appellant No. 1 used to park his rickshaw on the road in the lane where houses of appellants and deceased persons are situated. Though these two incidents appear to be the cause of usual disputes between the appellants and deceased, but the main cause which sparked the incident to take place, is the regular habit of appellants to pass urine behind the house of deceased Vilas. In the dying declaration (Exh. 16) Vilas has stated that on 31.03.2013 at about 8.30 p.m. appellant No. 2 started peeing at the backside of his house and when he requested appellant No.2 for not to do such act, his son Ganesh i.e. the other deceased in this case had also come out and tried to persuade the appellant No. 2 similarly. It has been further stated by deceased Vilas that appellant No. 2 despite regretting about his act of peeing, started abusing them and on hearing the same appellant No. 1 had also come out from his house with an axe in his hand and also started abusing ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (17) criappeal-700.2014.odt them. Further, according to Vilas, appellant No. 1 gave blow of axe on the head of his son Ganesh and when he was trying to resolve the quarrel and appellant No. 2 brought sickle (dks;rk) from his house and hit the same on his head, and therefore, they sustained injuries.
16. Learned Counsel for the appellants vehemently argued that the aforesaid dying declaration could not be believed since the doctor i.e. PW-2 Dr. Wagh in whose presence allegedly the said dying declaration was recorded, has given material admissions which indicate that the said dying declaration was in fact a manipulation. He also submitted that deceased Vilas was not in a ft condition to make such a long statement. Though the learned Counsel for the appellants has made such submissions to discard the aforesaid dying declaration (Exh. 16), but the learned A.P.P. by relying on the judgment in the case of Laxman vs. State, reported in 2002 AIR (SC) 2973, submitted that how the aforesaid dying declaration is trustworthy and reliable.
17. In the case of Laxman vs. State (supra), the Hon'ble Apex Court in para-3 has made the following observations :
::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (18)
criappeal-700.2014.odt "The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confdence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a ft state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a ft mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a ft and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certifcation of the doctor as to the ftness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffce provided the indication is positive and defnite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police offcer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (19) criappeal-700.2014.odt authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specifed statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfed that the deceased was in a ft state of mind. Where it is proved by the testimony of the magistrate that the declarant was ft to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certifcation by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise".
18. On going through the aforesaid observations, it is evident that no specifc format is required for recording the dying declaration. Moreover, even if there is no certifcate by the doctor about the consciousness of the patient, the dying declaration recorded by a Police Offcer can be believed if there is ocular evidence on record showing that the maker of such dying declaration was in a ft state of mind. Further, it also appears that if the person who records such dying declaration is satisfed with the ft condition of the patient making it, then such dying declaration can be believed.
19. The Hon'ble supreme Court in the recent judgment ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (20) criappeal-700.2014.odt in the case of Purushottam Chopra vs. State (Government of NCT of Delhi) reported in (2020) 11 SCC 489, by referring the aforesaid case has laid down certain principles relating the recording of dying declaration and it's admissibility and reliability in para-21. We would like to reproduce the said para as below :
"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-
i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confdence of the Court.
ii) The Court should be satisfed that the declarant was in a ft state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.
iii) Where a dying declaration is suspicious or is suffering from any infrmity such as want of ft state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.
iv) When the eye-witnesses affrm that the deceased was not in a ft and conscious state to make the statement, the medical opinion cannot prevail.
v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfed that the maker is in a ft state of mind and is capable of making the statement
vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (21) criappeal-700.2014.odt declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.
vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the ft and conscious state of the declarant to make the statement.
viii) If after careful scrutiny, the Court fnds the statement placed as dying declaration to be voluntary and also fnds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration".
20. On going through the aforesaid principles, it appears that the Court can believe the dying declaration if it is satisfed that the declarant was in a ft state of mind at the time of making the statement and it was a voluntary statement free from torturing, prompting or imagination. Further, in the said judgment it has been held that if the dying declaration is found to be in accordance with the aforesaid principles, then it can alone be the base for recording conviction against the accused.
21. In the light of the aforesaid observations, we now discuss the evidence in the instant matter in respect of the dying declaration (Exh. 16). We have already stated what PW- 1 A.P.I. Rahulkumar Pawar deposed in his evidence as to ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (22) criappeal-700.2014.odt what was narrated to him by deceased Vilas. Learned Counsel for the appellants has doubted the said dying declaration (Exh. 16) since no information in respect of the condition of deceased while admitting them to Shirdi Hospital was provided to the Constable deputed round the clock at Shirdi Hospital. However, it has already come in the evidence of PW-1 A.P.I. Rahulkumar Pawar that the information in respect of the quarrel between appellants' family and the family of deceased was given to Kopargaon Police Station and the then P.I. Madhukar Auti (PW-13) had told him to record the statement of injured as it was learnt by him that the deceased were taken to Shirdi Hospital. Since PW-1 A.P.I. Rahulkumar Pawar was acting under the instruction of his superior, the act of his going to Shirdi Hospital appears proper in normal circumstances. Further, it appears that PW-1 A.P.I. Rahulkumar Pawar had reached Shirdi Hospital under the instruction of his superior for recording statements of injures persons as soon as possible. Thus the formality to inform the M.L.C. to the constable deputed round the clock at Shirdi Hospital was not at all necessary.
22. Learned Counsel for the appellants also pointed out that dying declaration (Exh.16) was in fact written by one ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (23) criappeal-700.2014.odt Writer, and therefore, it could have been manipulated. However, PW-1 A.P.I. Rahulkumar Pawar in whose presence the said dying declaration was recorded, has stated the contents of the same in detail, and therefore, when he has stated the correct details, then there cannot be a scope for disbelieving him. Moreover, the Medical Offcer on whose certifcation the said statement was recorded, is also examined as PW-2 in the instant case. He has specifcally stated that police came to him at about 0.30 to 1.00 hours in the night and inquired with him about the patients with intention to record their statements. He has further stated that when he made them aware about Vilas was conscious and was in a position to give statement, police recorded statement of Vilas. At the same time he had also disclosed to police that the other injured Ganesh was unconscious and not in a position to give statement. He has categorically stated that he put endorsement on the statement itself that Vilas was conscious and ft to give statement.
23. Learned Counsel for the appellants tried to falsify the testimony of PW-2 Dr. Ajit Wagh by pointing out various admissions of the said Medical Offcer in cross-examination. Admittedly, when the injured patients were brought to the ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (24) criappeal-700.2014.odt Casualty Ward, they were accompanied by some people and relatives. However, the mere fact that the injured persons were accompanied by the relatives, cannot be taken adverse to the prosecution story or to disbelieve the dying declaration on the ground that it was tutored. Further, PW-2 Dr. Ajit Wagh has also admitted in his cross-examination that in the endorsement made by him ft state of mind of the injured was not mentioned. However, the endorsement clearly speaks that patient was conscious, oriented and could give statement. As such, we do not fnd any adversity in the said endorsement to hold that the declarent was not in ft state of mind. In fact, such endorsement indirectly suggests that the mental condition of deceased Vilas was proper. Even otherwise also, the Hon'ble Supreme Court in the aforesaid cases has laid down that the opinion of Medical Offcer is not at all necessary in each and every case, but it is only to be seen that the patient was able to make such statement if the person recording it is satisfed with the same. Therefore, the aforesaid admissions which are pointed out by the learned Counsel for the appellants, can be ignored.
24. It is also submitted by learned Counsel for the appellants that PW-2 Dr. Ajit Wagh has admitted in the cross- ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (25)
criappeal-700.2014.odt examination that while recording dying declaration (Exh.16) by the police, he was not present there. However, the admission further reveals that he was not near Vilas, but he was treating Ganesh i.e. the other injured. It has already revealed in the examination-in-chief of PW-2 Dr. Wagh that both the injured namely Vilas and Ganesh were simultaneously admitted in Casualty Ward, and therefore, treatment to them was simultaneously going on. Therefore, mere fact that the said doctor was not near Vilas, appears immaterial as he might have busy in treating Ganesh at the relevant time in the same room. Further, the learned Counsel for the appellants also pointed out that Epsolin injection was given to Vilas and therefore, the possibility of drowsiness, hallucination and rigidity to Vilas cannot be ruled out. Though PW-2 Dr. Wagh has admitted that there was an endorsement about injecting higher dose of Epsolin 200 mg to Vilas, but he has further stated that the said endorsement was not made by him, but it was an endorsement in respect of the treatment by Dr. Tingare. It is signifcant to note that PW-2 Dr. Wagh has already stated that both the injured patients were treated initially in the Casualty Ward, wherein total eight beds were available and then Vilas was shifted to another room and treated by other doctor. Thus, it reveals ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (26) criappeal-700.2014.odt that the said Epsolin 200 mg dose was in fact given to Vilas after he was shifted to another room and that too after recording dying declaration (Exh.16). As such, the effect of objection raised by learned Counsel for the appellants that at the time of making the dying declaration (Exh.16) Vilas was under symptoms as stated aforesaid in view of Epsolin dose of 200 mg, defnitely goes away. Further Exh. 16 is not the frst dying declaration in the instant case, but before that Vilas had already disclosed to his another son PW-3 Kailash as to how he and Ganesh were injured. From the evidence of PW-3 Kailash, it reveals that his father Vilas had staetd to him as to how the appellants with the help of axe and sickle attacked him and Ganesh when they were persuading the appellants not to use their backyard for passing urine. Moreover, it has also come in the evidence of PW-3 Kailash that when he went to the house of injured on receiving phone call from Vilas, Ganesh was found lying in front of the house of appellants in unconscious state. Moreover, it was also found to him that Vilas was having bleeding injury on his head and got knowledge of assault from Vilas. The story narrated by Vilas to PW-3 Kailash appears to be similar with what was narrated by Vilas to PW-1 A.P.I. Rahulkumar Pawar at the time of recording dying declaration (Exh.16). Thus, dying declaration ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (27) criappeal-700.2014.odt (Exh. 16) defnitely corroborates the version of PW-3 Kailash. Thus, considering all these facts on record, we fnd that dying declaration (Exh. 16) is made voluntarily by Vilas in ft condition and it was not at all a result of tutoring, prompting or imagination. Thus, the said dying declaration (Exh. 16) fulflls the conditions laid down in the aforesaid judgments by the Hon'ble Supreme Court in the cases of Laxman vs. State Maharashtra and Purushottam vs. State (Govt. of NCT of Delhi) (supra) and can be relied for recording conviction against the appellants in the instant case.
25. Learned Counsel for the appellants also raised objection that the injuries caused in the instant case are inconsistent with the weapon used in the assault. Learned Counsel submits that the prosecution is claiming in this case that there was an assault on deceased Ganesh with the help of axe, but no incise wound was found on the person of Ganesh.
26. Admittedly, as per the evidence of PW-11 Dr. Yogesh Lade, who had conducted postmortem over the dead body of Ganesh, following injuries were found externally :
(1) Blackening of right eye, with swelling of eyelids. (2) Abrasion over forehead in midline 2 x 1 cm.::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (28)
criappeal-700.2014.odt (3) Abrasion over nose 1 cm x 1 cm in size.
(4) Contusion with swelling over occipital region on right side measuring of 3 cm x 1 cm.
Though none of the above injuries is an incise wound, but it has been found in the internal examination that Ganesh was having following internal corresponding injuries :
(1) Haematoma note beneath the scalp over occipital region bilaterally extending to posterior parietal region, on right side haemotoma was 5 cm x 2 cm and on the left side haemotoma it was 6 cm x 2 cm.
(2) There was fracture of base of skull, extending from right occipital region to right parietal region of size 7 cm x 1 cm.
(3) Undisplaced fracture line noted on left side at base of skull of 5 cm in size.
(4) There was haemotoma over right hemisphere of size 2 cm x 1 cm.
(5) Meninges and brain was congested.
The internal injuries defnitely suggest that there was fracture of base of skull and haematoma was also noted at two places meaning thereby there was impact of hard and blunt object. One can understand if the blunt part of the axe is used for giving blow, then such type of aforesaid injuries ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (29) criappeal-700.2014.odt are always possible. Therefore, it is not necessary in each and every case that there should be an incise wound if the axe is used as a weapon of assault. Therefore, we do not fnd any force in the submission of learned Counsel for the appellants that the axe will always cause incise would. Further, the medical opinion is always in the form of hypothetical situation and when there is trustworthy dying declaration of Vilas that Ganesh was assaulted with axe on his head, then the aforesaid possibility of having such injuries on the head of deceased Ganesh by blunt side of axe, defnitely gains weightage. Learned Counsel for the appellants for that purpose relies upon the judgments in the cases of Ram Narain Singh vs. State of Punjab, Majendran Langeswaran vs. State (NCT of Delhi), Amar Singh and others vs. State of Punjab and Vikram @ Virma vs. State of Madhya Pradesh (supra), wherein this aspect is dealt with and it has been observed that when the case of prosecution is based on circumstantial evidence, it must prove each and every circumstance forming a chain of event so that there should not be any doubt in the mind of the Court. Further, it has also been observed that if the ocular evidence being inconsistent with the medical evidence and there are contradictions in oral evidence and medical evidence as ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (30) criappeal-700.2014.odt regards weapon used, beneft to the accused needs to be given in those circumstances. However, we are not in agreement with such observations mainly because a strong evidence in the form of reliable dying declaration of Vilas is there. It has been held in many other cases that when the ocular evidence is found trustworthy, then it will override the medical opinion.
27. Learned Counsel for the appellants also raised objection in respect of not sealing the muddemal articles properly, and therefore, submitted that on that point also the prosecution case appears to be doubtful. For that purpose he relied upon the judgment in the case of Shivanand @ Shiva Shivshankar vs. State of Maharashtra (supra), wherein the following observation is made in para 11 :
"11. The prosecution has also relied on recovery of blood stained clothes and weapons at the instance of the accused persons. However, as far as this aspect is concerned, we fnd that there is nothing to show that after the articles were seized, they came to be sealed. None of the panchas have mentioned any sealing nor have any witnesses clearly deposed about this aspect. In fact, the Investigating Offcer also admits that the word "sealing" is not mentioned in the panchnama. Hence, we are not inclined to take this aspect into consideration and we are inclined to rely only on the ocular evidence of the three eye witnesses. We have already discussed the same detail above. We have already observed that evidence of these three witnesses establishes the complicity of accused nos. 1, 2, 3, 5, 6 and 9. Hence, as far as their conviction and sentence is concerned, no interference is called for. However, there is no reliable material on record which ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (31) criappeal-700.2014.odt brings out the complicity of the accused nos. 4, 7 and 8. Hence, we are inclined to set aside the conviction and sentence imposed upon these appellants".
However, learned A.P.P. pointed out the letter dated 16.04.2013 at Exh. 48 under which the Investigating Offcer had sent muddemal articles to Chemical Analyzer. On perusal of the said letter, it is evident that each and every muddemal article was sent to Chemical Analyzer in sealed condition. Further, recovery panchnamas and seizure panchnamas in respect of those articles also indicate that the articles were properly sealed at the time of its respective seizures. Therefore, we do not fnd any substance in the submission of the learned Counsel for the appellants to that effect. Hence, the observation made in the aforesaid case is not helpful to the appellants.
28. Learned Counsel for the appellants also placed reliance on the judgment in the case of Vasant Ramchandra Gaikwad vs. The State (supra) and submitted that the prosecution has not examined any eye witness in this case though they were present and had witnessed the incident. Admittedly in the aforesaid case, it has been observed in para-9 and 10 as below :
"9. The prosecution has examined only three ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (32) criappeal-700.2014.odt witnesses viz., PW-1, Sarveshkumar J. Chavan, who was the informant who informed the police that John was lying in an injured condition in the shop. This witness unfortunately turned hostile and has not supported the prosecution case. Prosecution has then examined PW.2, Dr. Prabhakar Ganesh Bhave, who has performed the postmortem and who has stated that the cause of death was unnatural and homicidal and the third witness is PW.3, Firoz S.Ganjia who is the Investigating Offcer.
10. It has to be noted here that no explanation has been given by the prosecution as to why the independent witness viz. the other informant viz. Silvestor James Peter who had accompanied P.W.1 was not examined. Secondly, P.W. 3 in his evidence has stated that the dying declaration of deceased John was recorded in the presence of other witnesses and the statements of these witnesses were taken. No explanation was given by P.W. 3 as to why these independent witnesses were not examined. Lastly, no explanation has been given as to why the panch witnesses who were present at the time of panchnama of recovery of weapons by deceased - accused Raju Mama and the recovery of clothes at the instance of appellant, Vasant were not examined. The entire prosecution case, therefore, rest on the testimony of the Investigating Offcer, Firoz. In our view, the evidence which is brought on record by the prosecution surely indicates that there is no eye-witness and the entire case of the prosecution rests on circumstantial evidence".
Admittedly, in the instant case a reference has come in the cross-examination of Investigating Offcer PW-13 Madhukar Auti that there were 5 to 6 witnesses to the incident. None of those eye witnesses is examined by the prosecution in the instant case. However, learned A.P.P. specifcally pointed out to us about the purshis fled by learned A.P.P. before the learned trial Court which are at ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (33) criappeal-700.2014.odt Exhs. 37 and 44. On perusal of those purshis it is clearly evident that the prosecution had tried to examine those eye witnesses, but since they were not ready to support the prosecution, they were not examined. As such, it cannot be said that the prosecution miserably failed to examine the independent eye witnesses in the instant case. Therefore, the aforesaid observation does not appear to be helpful to the appellants.
29. Further, the spot panchnama at Exh. 28, which has been proved by PW-7 Shivaji Kawade, also indicates the blood stains upto the house of both deceased. Though the appellants in their written statement given at the time of recording of statements under Section 313 of the Code of Criminal Procedure, have mentioned that no such incident had taken place and they were not connected to it in any manner, but the spot panchnama clearly indicates different story which is well supported by dying declaration made by deceased Vilas. The appellants in their said written statement had also claimed that there was quarrel between both the deceased and on the day of incident both were drunk and fought with each other. However, in the viscera examination of both the deceased no contents of alcohol were ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (34) criappeal-700.2014.odt found. Further, it has already come on record that both the appellants made disclosure statements and produced weapons and their blood stained clothes. Though the panch witness i.e. PW-7 Shivaji Kawade has denied that in his presence appellant Santosh made disclosure statement to produce blood stained clothes or axe, but in the cross- examination itself he has made certain admissions indicating that the appellant Santosh had made such disclosure statement (Exh. 31). This witness has also proved seizure panchnama (Exh. 33) under which sickle was recovered at the instance of another appellant Dattu. Moreover, the Investigating Offcer PW-13 Madhukat Auti has also proved disclosure statement and respective recovery panchnamas in respect of the recovery of incriminating articles at the instance of both the appellants.
30. Learned A.P.P. heavily relied on the judgment of Hon'ble Apex Court in the case of Mallikarjun and others vs. State of Karnataka (supra) wherein it has been observed that merely because panch witnesses turned hostile, recovery of weapon would not stand vitiated. Further, he also relied on the judgment of Hon'ble Apex Court in the case of Mohd. Asiam vs. State of Maharashtra (supra) wherein it is observed ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (35) criappeal-700.2014.odt that even though the panch witnesses turned hostile, evidence of the person who effected recovery, would not stand vitiated. In the instant case, though PW-7 Shivaji Kawade refused to support the case of prosecution in the examination-in-chief, but in his cross-examination he admitted the facts as to how the appellants produced incriminating articles which were seized under the recovery panchnamas as mentioned above. Moreover, the Hon'ble Apex Court in the case of Rameshbhai Mohanbhai Koli and others vs. State of Gujrat (supra), relied upon by learned A.P.P., has observed that while appreciating the evidence of hostile witness a favourable portion to the prosecution wherein some admissions about recovery of incriminating articles admitted in the cross-examination, can be relied upon. Therefore, considering all these observations the evidence of PW-7 Shivaji Kawade in respect of his refusal to support the prosecution story in the examination-in-chief cannot be considered as fatal to the case of prosecution since in the cross-examination he has supported the prosecution case.
31. Lastly, the learned Counsel for the appellants by way of alternative submission tried to argue that the present ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (36) criappeal-700.2014.odt act of the appellants is covered under Section 304-II of the I.P.C. as there is evidence on record about the sudden quarrel between the appellants and deceased at the time of incident. For that purpose he relied on the judgment of this Court in the case of Kashinath Kisan Bhoye vs. State of Maharashtra (supra). On careful reading of aforesaid judgment, it appears that this Court had converted the offence under Section 302 of I.P.C. into one under Section 326 of I.P.C. It has been observed by this Court that if there is no pre-meditation from the side of accused and in the heat of moment accused picked up axe and gave blow on the head of deceased, then as per the exception 4 to Section 300 of I.P.C. the offence of murder does not establish. We would like to reproduce the said exception 4 to Section 300 of I.P.C. as below :
"If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid"
To counter this submission, learned A.P.P. also relied upon the judgment of Hon'ble Apex Court in the case of Jagriti Devi vs. State of H.P. (supra) and submitted that even if the intention of accused was limited to the infiction of a bodily injury suffcient to cause death in the ordinary course of nature, and did not extend to the intention of causing ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (37) criappeal-700.2014.odt death, the offence would still be of murder. However, the aforesaid observations are to be looked into in the light of the facts of present case. So far as exception 4 to Section 300 of I.P.C. is concerned, the homicidal death cannot be considered as murder if it is committed without pre-mediation in a sudden fght in the heat of passion upon sudden quarrel.
32. However, in the instant case though there was quarrel between the parties, but the deceased persons since beginning were persuading the appellants for not to use their backyard as a place of urinal. The dying declaration (Exh.
16), which we have already relied upon clearly indicates that initially deceased Vilas had requested the appellant No. 2 not to urinate at the backside of his house, but it was the appellant No. 2 instead of regretting about his act, started abusing Vilas. Another deceased Ganesh i.e. the son of Vilas, who subsequently came there, also started persuading the appellant No. 2. It has come on record that when the appellant No. 2 continued abusing the deceased, appellant No. 1 on hearing the same directly came there with an axe and also started abusing the deceased persons. Thus, it appears that since beginning both the appellants - accused were in aggressive mood and assaulted the deceased persons ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (38) criappeal-700.2014.odt on the vital parts of their bodies such as heads. It is also disclosed by Vilas in his dying declaration that after the appellant No. 1 gave blow of axe on the head of Ganesh, the appellant No. 2 Dattu went inside his house and came with a sickle and struck him on his head. As such, there cannot be a scope to hold that the incident took place without pre- meditation in a sudden fght or in the heat of passion upon a sudden quarrel. On the contrary, it appears that the aspect of sudden provocation on the part of deceased is completely absent here as the appellants - accused in aggressive mood, brought the weapons and assaulted the deceased persons. Therefore, we are not agree with the submission made by learned Counsel for the appellants that the appellants be alternatively convicted under Section 304-II instead of conviction under Section 302 of I.P.C.
33. Under such circumstances, after going through the entire material on record, it has been revealed that on the day of incident the appellants in fact assaulted the deceased persons with the help of axe and sickle and gave blows on the vital parts of the bodies of deceased and brutally killed them. Further, dying declaration (Exh. 16) of Vilas recorded by PW-1 A.P.I. Rahulkumar Pawar is also found trustworthy and ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 ::: (39) criappeal-700.2014.odt reliable which is well supported by the other circumstantial evidence on record, such as seizure of articles at the instance of the appellants. Therefore, we are of the opinion that the learned trial Court after considering the entire material on record has rightly convicted the appellants for the offence punishable under Section 302 read with Section 34 of I.P.C., and therefore, no interference is required in the impugned judgment and order at the hands of this Court. We accordingly dismiss the present criminal appeal. (SANDIPKUMAR C. MORE, J.) (V.K. JADHAV, J.) VD_Dhirde ::: Uploaded on - 10/02/2022 ::: Downloaded on - 11/02/2022 11:52:58 :::