Bombay High Court
Bablya Alias Ramesh Shankar Yarpude vs State Of Maharashtra on 10 July, 2002
Equivalent citations: 2003CRILJ731
Author: V.M. Kanade
Bench: R.K. Batta, V.M. Kanade
JUDGMENT V.M. Kanade, J.
1. The appellant/accused was charged under Section 302 of the Indian Penal Code for having committed the murder of one Pramod Bhimrao Atkar on 15-9-1995 and the 10th Additional Sessions Judge, Nagpur, vide its Judgment and Order dt. 2-4-1997 passed in Sessions Trial No. 500/95, convicted the accused appellant herein under Section 302 of the Indian Penal Code and sentenced him to suffer R.I. for life and to pay a fine of Rs. 1000/- in default to suffer further R.I. for one year. The appellant/accused is challenging the said judgment and order in this appeal.
2. FACTS :
It is the prosecution case that on 15-9-1995 the appellant and deceased Pramod had gone to Mominpura Basti. The accused told the deceased that they would demand an amount of Rs. 1000/- from Sagirbhai Sharif Khan and if he did not pay the amount, he would beat him. Deceased Pramod did not like that idea and told the accused that it would not be proper to beat Sagirbhai especially when he always helped them. It is the case of the prosecution that deceased Pramod at that time caught hold of the neck of the accused and thereafter the accused told deceased Pramod that he wanted to ease himself and that he would come back in a minute. It is the case of the prosecution that within a short time, the accused came back and gave 4 blows on the person of the deceased with the knife, one on his chest and abdomen and two other blows on his waist and thereafter ran away from the scene of offence. The injured Pramod was then put in the rickshaw and sent to Mayo. Hospital where his statement was recorded by P.S.I., Pandharinath Dhokane (PW. 20) and thereafter in the morning Pramod succumbed to the injuries and died. The Police registered an offence vide Crime No. 298/95 initially under Section 307 of the Indian Penal Code, thereafter it was converted to an offence under Section 302 of the Indian Penal Code. The police recorded the statement of number of witnesses. Panchanama was drawn, Clothes of the accused and deceased were seized. The knife was recovered at the instance of the accused and charge sheet was filed against the accused. The accused pleaded not guilty to the said charge. The Sessions Court on the basis of the evidence adduced by the prosecution, convicted the accused under Section 302 of the Indian Penal Code.
3. We have heard the learned counsel appearing on behalf of the accused and also the learned A.P.P. appearing on behalf of the State. We have perused the entire evidence on record which is in the form of oral testimony of the witnesses as well documentary evidence adduced by the prosecution and also we have gone through the judgment and order of the trial Court.
4. The learned counsel appearing on behalf of the appellant has submitted that the only evidence against the appellant is in the form of dying declaration and all other witnesses in the said case was turned hostile and have not supported the prosecution case. It is submitted that the dying declaration has been recorded by the Investigating Officer P.W. 20 Pandharinath Dhokane. He submitted that Dr. Rajaram Dhole, who has given the certificate on the requisition from the P.S.O. Tahail, has been examined as P.W. 18. The said Dr. Rajaram Dhole has admitted in his cross-examination that when the deceased was admitted in the casualty ward, he was unconscious. He submitted that the Investigating Officer had not called the Executive Magistrate for the purpose of recording the dying declaration and that therefore, there was a serious lacuna in the prosecution case in respect of the recording of the dying declaration and, therefore, he submitted that the prosecution had not established beyond reasonable doubt that the accused had committed murder of deceased Pramod.
5. The learned A. P. P. appearing on behalf of the State vehemently opposed the submission raised by the learned counsel appearing on behalf of the appellant. He submitted that on the basis of the solitary dying declaration the accused could be convicted and even if there was no other evidence on record this particular piece of evidence was sufficient to convict the accused. It is submitted that Doctor had given a certificate about the fitness of the deceased while recording the dying declaration and merely because the said dying declaration was recorded by the P.S.I., Pandharinath (P.W. 20) that by itself would not be a sufficient ground for the purpose of discarding the said evidence, in the form of dying declaration.
6. The prosecution, in this case has examined as many as 21 witnesses. However, out of 21 witnesses, 2 witnesses have been examined as eye-witnesses and the other witnesses are either the panch witnesses or the panchas who were examined to prove the panchanamas. However, unfortunately none of these witnesses have supported the case of the prosecution. All the witnesses have turned hostile and as such either the direct or circumstantial evidence is not brought on record by the prosecution to establish that the accused had committed the murder of deceased Pramod.
7. The only evidence, which the prosecution could adduce in support of its case, was the evidence of P.S.I. Pandharinath (P.W. 20) who has proved the dying declaration recorded by him. P.W. 20 Pandharinath has stated in his evidence that when Pramod was admitted in the Hospital, he cent a requisition to Dr. Rajaram Dhole (P.W. 18) who has given a certificate on the requisition itself that the patient is fit to give statement. P.W. 20 Pandharinath, in his evidence, has stated that he recorded the statement of Pramod, in view of the fitness certificate given by P.W. 18 Dr. Rajaram Dhole. It is difficult to accept the said evidence which has been adduced by the prosecution. Though normally when the Doctor gives a certificate of fitness in respect of the patient who is admitted in his hospital or under his care and custody, is sufficient for the purpose of accepting the said evidence as has been observed by the Apex Court in number of judgments, yet the evidence of the Investigating Officer and other circumstances also have to be taken into consideration in order to see whether the said evidence is trustworthy or not. In our view, the evidence of P.W. 20 Pandharinath cannot be relied upon, firstly, because so far as deceased Pramod is concerned, he was admitted in the Hospital in an unconscious condition. P.W. 7 Raji Chhole who is a rickshawala a who brought deceased Pramod to the Hospital, has deposed that the people forcibly put the body of Pramod in his rickshaw and asked him to take that body to the Hospital. These persons told the rickshawala that they would follow him. However, nobody followed P.W. 7 Raji and he alone took the injured Pramod to Mayo Hospital. P.W. 7 Raji has categorically stated that when injured Pramod was admitted in the Mayo Hospital, he was unconscious. P.W. 18 Dr. Rajaram Dhole in his cross-examination has also admitted that from the hospital record which was shown to him it was clear that the deceased, when admitted in the hospital, was unconscious. The thumb impression of the deceased has been taken at the bottom of one paper. It is not mentioned that as why the thumb impression has not been attested by any person. It is also not mentioned that whether it is right or left hand thumb impression of either deceased or any other person. On the left hand corned of the said document Exh. 61 there is a remark that patient is fit to give statement. Below that the date and time is mentioned. It is pertinent to note that the time is shown at 1.10 a.m., Deceased Pramod was admitted in the hospital at about 11-11-30 p.m. and he died in the early morning on the next day i.e. on 16-9-1995. P.W. 20 Pandharinath in his statement in cross-examination has admitted that at 11-30 p.m. he has received information that the patient was unconscious and was unable to give any statement. He has further stated that he had recorded the statement of the injured in the ward when he was brought from the operation theatre. He has stated that the injured was already removed to the operation theatre before he reached Mayo Hospital. He has also admitted that the P.I. had told him that he should call a Executive Magistrate for recording the dying declaration. He has further admitted that he did not issue any letter to the Magistrate to record dying declaration and that he had given requisition to the Executive Magistrate in the morning. From the evidence of P.W. 20 Pandharinath it is difficult to accept his version that Pramod would have been conscious and fit to make the statement immediately after he was brought from the operation theatre. Normally when the patient is sent to the operation theatre for the purpose of a major operation he is given general anesthesia and normally it takes some time for the patient to revive his consciousness from the said anesthesia. It is, thus, difficult to believe the version of P.W. 20 that immediately after Pramod was brought from operation theatre, he would be in a fit and conscious condition to make a statement. In our view, therefore, the evidence of P.W. 20 Pandharinath is not trustworthy especially when there is no evidence on record which would establish that the accused appellant has committed the murder of deceased Pramod. In the absence of any other evidence on record, it is difficult to rely on the dying declaration recorded by P.W. 20 Pandharinath especially When admittedly there are number of lacunae and the procedure which is normally required to be followed in recording of the dying declaration, has not been followed. There is also a very serious doubt in our mind as to whether the patient was really in a fit state and.condition to make that statement soon after he had been brought from the operation theatre. It is an admitted position that. the deceased died in the early hours in the morning. Neither Dr. P.W. 18 was present at the time of recording dying declaration nor any certificate has been given by him at the end of the recording of dying declaration regarding fitness of the deceased. Under such circumstances, we are of the view that the accused is entitled to be given benefit of doubt. Under the circumstances, the appeal will have to he allowed.
8. In the result the appeal is allowed. The finding and order of conviction of the leaned Sessions Judge, is quashed and set. aside. It is directed that: the appellant be released forthwith from the jail unless he is required in any other case.