Bombay High Court
Sushila Radhelal Radhe Gangbhoir @ ... vs State Of Maharashtra Thr. Its Police ... on 28 June, 2018
Author: M.G. Giratkar
Bench: P.N. Deshmukh, M.G. Giratkar
1 apeal64.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 64 OF 2013
Sheikh Ahmed Munshi Sheikh,
aged about 66 years, Occupation
Labourer, R/o Bhaldapura,
Nagpur. ... APPELLANT
VERSUS
State of Maharashtra, through
its Police Station Officer, Kalamna,
Police Station, Nagpur. ... RESPONDENT
....
Shri Anil Mardikar, Senior Advocate for the appellant.
Shri S.J. Kadu, Additional Public Prosecutor for the respondent/State.
....
WITH
CRIMINAL APPEAL (APEAL) NO. 65 OF 2013
Suman @ Sushila Radhelal
@ Radhe Shahu,
aged about 30 years, Occupation
R/o Shyam Nagar, Pardi,
Nagpur.
... APPELLANT
VERSUS
State of Maharashtra, through
its Police Station Officer, Kalamna,
Police Station, Nagpur. ... RESPONDENT
....
Shri Anil Mardikar, Senior Advocate for the appellant.
Shri S.J. Kadu, Additional Public Prosecutor for the respondent/State.
....
::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 :::
2 apeal64.13
CORAM : P.N. DESHMUKH AND
M.G. GIRATKAR, JJ.
DATED : 28TH JUNE, 2018.
ORAL JUDGMENT : (Per M.G. Giratkar, J.)
By way of present appeals, both the appellants challenged the judgment and order dated 29th December, 2012 passed by Ad-hoc Additional Sessions Judge-4, Nagpur in Sessions Trial No. 160 of 2012, thereby convicting the appellants for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/- each, in default, to further suffer RI for one month.
2. The case of the prosecution against the appellants (hereinafter referred as accused in short), is as under :-
Accused No.2/Sheikh Ahmed Munshi was having shop in Santra Market, Nagpur. Two years before the incident, deceased Uttam Narnaware and accused No.1/Suman were working in the shop of accused No.2 at Kalamna Orange Market in Khalla No.5. While deceased and accused No.1 working together, they developed illicit relations.
Accused No.1 was behaving like wife of deceased. Thereafter quarrel took place between deceased and accused No.1. Deceased started ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 :::
3 apeal64.13 working at another shop. Accused No.1 continued her work with accused No.2. She was behaving like keep of accused No.2.
3. On 09.12.2011, accused No.1 called deceased in the shop of accused No.2. Accused No.2 assaulted deceased by bamboo stick. Accused No.2 felled down deceased. Accused No.1 poured kerosene on the person of deceased and accused No.2 set deceased on fire. Deceased sustained severe burn injuries. Incident took place at about 09:45 in the night.
4. Somebody informed to the son of deceased namely Roshan Uttam Narnaware. Roshan went to the spot of incident. He went to the Police Station. Police came to the spot of incident and taken the deceased to Mayo Hospital, Nagpur. On 10.12.2011, Roshan lodged report in the Police Station, Kalamna. Crime was registered against both the accused. Investigating Officer prepared spot panchnama, seizure panchnama etc. Statements of accused were recorded. On the request of Investigating Officer, Special Executive Magistrate recorded dying declaration of deceased. Deceased died on 11.12.2011. Postmortem was conducted by Medical Officer. After completing investigation, charge- sheet came to be filed before the JMFC, Nagpur, who, in turn, committed the same to the Court of Session, Nagpur.
::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 :::
4 apeal64.13
5. The trial Court framed charge against accused Nos.1 and 2 at Exh.5. The same was read over and explained to the accused, to which, they pleaded not guilty and claimed to be tried. The prosecution has examined 14 witnesses. At the conclusion of trial, both the accused came to be convicted as aforesaid.
6. Heard Shri Anil Mardikar, learned Senior Counsel appearing on behalf of both the accused. He has pointed out various discrepancies in the evidence of prosecution. Learned Senior Counsel has submitted that the deceased was unconscious when PW-10 (ASI Vishnu Wanabakode) went to Mayo Hospital. As per his evidence, he requested Medical Officer to certify about the fitness of deceased. Doctor certified in writing that the deceased was not in a fit condition to give statement.
7. Learned Senior Counsel has submitted that PW-1, who was said to be eye witness, not supported the prosecution. Evidence of Special Executive Magistrate (PW-5) is not reliable. He has stated that on 10.12.2011, he was on duty in the CBI Court at Nagpur. In the recess period, at about 02:00 p.m., he received requisition from the police to record the dying declaration. Without seeking any permission from the superior officer, he went to Mayo Hospital and recorded dying ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 5 apeal64.13 declaration. Learned Counsel has submitted that on 10.12.2011, it was a second Saturday and holiday to the Court. The way of recording the dying declaration creates doubt. Medical Officer who has certified about the fitness was not examined by the prosecution. Hence, dying declaration (Exh.22) cannot be relied on. It creates doubt about the incident stated by the deceased.
8. Learned Senior Counsel has pointed out cross-examination of PW-12 (PSI Pradeep Powar). He has stated in his evidence that, he arrested accused No.1 on 19.12.2011 from her house. Her name is shown in the arrest panchnama (Exh.70) as "Suman Radhelal Shahu"; whereas in the documents ration card, ID card, her name is written as "Sushila Radhe Ganboir". Those documents are at Exhs.94 to 96. The name of accused No.2 is shown in the charge-sheet as "Sheikh Ahmed Munshi", but name in the arrest panchnama of accused No.2 is shown as "Sheikh Ahmed Sheikh Sadulla". None of the witnesses identified accused persons before the Court. PW-3 complainant not identified accused before the Court. In such circumstances, identity of accused is not proved by the prosecution. Except dying declaration (Exh.22), there is no other evidence against the accused. Exh.22 is a doubtful document. Reliance cannot be placed on without any corroboration. At last, submitted that learned trial Court wrongly convicted the accused ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 6 apeal64.13 persons. Hence, appeal be allowed.
9. Heard Shri S.J. Kadu, learned Additional Public Prosecutor appearing on behalf of the respondent/State. He has pointed out Exh.22 and submitted that this document (Exh.22 dying declaration) shows that accused Nos.1 and 2 in furtherance of their common intention, committed murder of deceased. Learned trial Court rightly convicted both the accused. Appeal is without any merit and liable to be dismissed.
10. Except dying declaration (Exh.22), there is no other incriminating evidence against the accused persons. Exh.22 appears to be doubtful because PW-5 who was working as a Clerk in the Court and also working as a Special Judicial Magistrate, has stated in his evidence that it was a working day on 10.12.2011. In the recess period, at about 02:00 p.m., he received requisition and went to Mayo Hospital, obtained certificate from Medical Officer and recorded the statement of deceased vide Exh.22. His evidence appears to be doubtful because it is brought on record that it was a second Saturday having holiday to the Court. Moreover, the way of writing the dying declaration (Exh.22) shows that it is doubtful. In the cross-examination, he has admitted that he started recording dying declaration and at the end he signed and mentioned the time of completion; whereas Exh.22 shows that he has mentioned the ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 7 apeal64.13 time of recording dying declaration and completion on the top of the dying declaration.
11. Though PW-5 has stated that he has satisfied about the physical and mental condition of the deceased, there is no endorsement on dying declaration (Exh.22) about the fitness of patient. At the end at about 03:30 p.m., there is endorsement of doctor that patient was throughout fit. There is overwriting about the time of completion of dying declaration. This fact is admitted by PW-5.
12. As per the evidence of PW-4, nearest relative of deceased, inquest panchnama (Exh.18) was prepared in his presence. As per his evidence, deceased had sustained severe burn injuries. His face, chest, hands were burnt. PW-10 (ASI Wanabakode) has stated in his evidence that he went to Mayo Hospital and requested Medical Officer to certify about the fitness of deceased for recording dying declaration. Medical Officer issued certificate in writing that deceased was not in a position to give statement. He was unconscious. In such circumstances, it is material to note that the condition of the patient/deceased was serious and whether he was in a position to give the statement before PW-5 Special Executive Magistrate appears to be doubtful. ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 :::
8 apeal64.13
13. PW-5 has stated in his evidence that doctor certified him about the fitness stating that deceased was in a fit condition to give statement, but prosecution has not examined the Medical Officer. Hence, the prosecution has failed to prove that at the time of recording dying declaration (Exh.22), deceased was in a fit condition to give statement. Therefore, dying declaration (Exh.22) cannot be said to be a reliable document.
14. The identity of accused No.1 Suman is doubtful. Whether accused No.1 was the same person who poured kerosene is not proved by the prosecution. PW-1 not stated against any of the accused. PW-2 not supported the prosecution case. PW-3, son of the deceased, has stated in his evidence that he came to know about the incident that his father was lying in burnt condition. Thereafter, he went to the spot and saw that his father was lying on the ground. He asked his father what has happened. Then he replied that Ahmed burnt him and Suman poured kerosene on his person. Except the words "Ahmed and Suman", detailed descriptions were not stated. This witness Roshan is the son of deceased. He has not stated in his evidence that accused Nos.1 and 2 are the same persons who were named as "Suman and Ahmed". Moreover, his evidence is contradictory to the evidence of PW-10. He has stated in his evidence that he went to Police Station, brought the police and ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 9 apeal64.13 thereafter deceased was shifted to Mayo Hospital; whereas PW-10 ASI has stated in his evidence that PW-3 came to Police Station. Thereafter, he went to the spot of incident. Deceased was not there. He was already shifted to Mayo Hospital.
15. Charge-sheet also shows the names of only Suman and Ahmed. Detailed descriptions of their names are not mentioned in the charge-sheet. Arrest panchnama (Exh.70) shows that name of accused as "Suman Radhelal Shahu"; whereas it is brought on record in the cross- examination of PW-12 that he seized the documents from the house of accused and her name is shown as "Sushila Radhe Ganboir". This document (Exh.91) creates doubt as to whether accused No.1 is the same woman or any other lady was involved in the incident.
16. Now it is well settled law that conviction can be awarded solely on the basis of dying declaration, provided that, it should inspire confidence of the Court. If the dying declaration creates doubt, then further corroboration is necessary for the conviction of accused. The Hon'ble Supreme Court in the case of Khushal Rao .v. State of Bombay (reported in AIR 1958 SC 22) has observed as under :-
"In order to pass the test of reliability, a dying declaration ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 10 apeal64.13 has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."
17. Dying Declaration (Exh.22) creates doubt because evidence of PW-5 shows that he went to Mayo Hospital from the Court without obtaining permission from the superior officer. The way of writing dying declaration appears to be doubtful. He has admitted in his cross- examination that he started recording dying declaration at about 02:35 p.m. and concluded at 03:30 p.m. and at the end, he signed on the dying declaration. Thereafter, he did not write anything. But Exh.22 shows that at the top, he has written starting time as 02:35 and completion of time as 03:30 p.m. It creates doubt. Moreover, evidence of PW-10 ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 11 apeal64.13 clearly shows that the deceased was in a critical condition. He was unconscious. Doctor not allowed him to record the statement of patient/deceased. Medical Officer certified him in writing that the patient was not in a fit condition to give the statement.
18. PW-5 has stated that patient was fit to give statement and accordingly Medical Officer certified the same. But Medical Officer was not examined by the prosecution. Deceased has stated in his statement (Exh.22 Dying Declaration) as under :-
"He was working in Kalamna Santra Market as labour. Before two years, he was working with Ahmed. One lady namely Suman was working as a labour. Hence, they developed physical relationship. She was behaving like his wife. Now he was working with another person and Suman was working with Ahmed. Suman cut off relations with him and behaving as a keep of Ahmed. On 09.12.2011, Suman quarreled with him at about 12:00 noon. Thereafter she called him at about 08:00 p.m. Thereafter, he went to her. She poured kerosene and Ahmed ignited match stick and set him on fire. Thereafter his son came to spot and admitted him in Mayo Hospital."
19. As per the case of prosecution, accused No.2 beat the deceased by stick. It is also recovered as per Section 27 of the Indian ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 12 apeal64.13 Evidence Act. In the dying declaration (Exh.22), deceased has nowhere stated about the beating by accused No.2 by stick. The fitness of deceased also not proved and, therefore, the dying declaration (Exh.22) creates doubt about the incident. Dying declaration (Exh.22) is not corroborated by any other evidence. Corroboration is necessary when dying declaration found to be doubtful. The principle behind it that the dead person cannot be called for cross-examination and, therefore, it is the duty of the Court to be very careful while relying on the uncorroborated dying declaration.
20. The prosecution has created doubt on the recovery of articles etc. Recovery of kerosene can was shown as per the confessional statement of accused No.1. But, PW-10 has stated in his evidence that he went to the spot of incident along with PW-3. He has prepared spot panchnama. He found one box having kerosene etc. This itself shows that kerosene box/can was already found by PW-10 on the spot of incident. Therefore, recovery of can at the instance of accused No.1 is nothing but a farce made by investigating authority.
21. Evidence on record shows that Exh.22 (dying declaration) is doubtful. It is not corroborated by any other evidence. Therefore, reliance cannot be placed on the uncorroborated doubtful Dying ::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 ::: 13 apeal64.13 Declaration (Exh.22). Moreover, identity of both the accused is not proved by the prosecution. The prosecution has failed to establish that accused Nos.1 and 2 are the same persons who burnt the deceased. Learned trial Court not considered the material evidence on record in its proper perspective and wrongly convicted the accused. Hence, we are inclined to allow both the appeals and proceed to pass the following order.
O R D E R
(i) Criminal Appeal Nos.64 of 2013 and 65 of 2013 filed by the appellants are allowed.
(ii) Judgment dated 29.12.2012 passed by Adhoc Additional Sessions Judge-4, Nagpur in Sessions Trial No.160 of 2012 convicting the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is quashed and set aside. The appellants are acquitted of the offence charged with.
(iii) Fine amount, if any, paid by the appellants, be returned to them.
(iv) R and P be sent back.
JUDGE JUDGE
*rrg.
::: Uploaded on - 11/07/2018 ::: Downloaded on - 13/07/2018 22:59:27 :::