Sambhaji Ganapati Patil And ... vs The State Of Maharashtra
2005 Latest Caselaw 1506 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard learned Counsels for the Appellants Accused and the learned APP for the Respondents State and Advocate supporting the Respondents State.

2. Five accused were prosecuted and tried for offence under Section 302 read with 34, Sections 147, 148, 302 read with 149 etc. Original Accused Nos. 3, 4 and 5 were acquitted and the present appellants original accused Nos. 1 and 2 came to be convicted under Section 302 read with 34 of IPC, therefore, this appeal.

3. One Gorkha who was working as a weaver in handloom at Ichalkaranji, is the victim. He is alleged to have been killed by the appellants accused. In the trial court, prosecution examined as many as 21 witnesses. All, excepting the Police Officer witnesses, and, the three witnesses, to whom dying declaration was made by the deceased, turned hostile. The entire conviction of the appellants accused is based on dying declarations. Apart from that, there is no incriminating circumstance against the appellants - accused in the form of recovery of weapon, recovery of blood stained clothes, or they are being seen at the scene of the offence, and this fact is conceded to by the learned APP.

4. The question, therefore, is, whether the appellants - accused have been rightly convicted by the trial court on the basis of dying declarations. Mr. M.B. Gawade, who is supporting the learned APP relied upon two judgments of the Supreme Court Jaswant Singh v. State (Delhi Administration), and Tapinder Singh v. State of Punjab, wherein the Supreme Court has laid down that:

"A dying declaration is admitted in evidence on the principle of necessity. The fact that it is not tested by cross-examination on behalf of the accused merely serves to put the Court on its guard by imposing on it an obligation to scrutinize all the relevant circumstances. If the dying declaration is acceptable as truthful then even in the absence of other corroborative evidence the Court can act upon it and convict the accused."

There is no doubt, in our mind, about the aforesaid proposition of law. The dying declaration can be made as a sole basis for the conviction if it is found reliable.

5. Out of the three dying declarations, one is recorded by SEM at Exhibit 37 at about 5.15 p.m. on 26.1.1989. The victim was attacked at 3.30 p.m. on the same day and the SEM recorded his dying declaration. The dying declaration is otherwise appears to be proper. However, the most important reason for discarding the dying declaration is that the SEM himself did not write the dying declaration, and, when questioned in the cross examination he was not able to give the name of the person who wrote the dying declaration. Admittedly, SEM was working as such since 1987. He must have had sufficient experience of writing of dying declarations. He is bound to be educated so as to able to write the dying declaration and holding the identification parade, which is generally the job of the SEM. No explanation is given by him in his evidence any where either in examination in chief or in cross examination as to why he did not write the dying declaration himself. Not only that, but he does not give the name of the person who wrote the dying declaration. This creates strong doubt about the dying declaration recorded at Exhibit 37. Apart from this, the SEM has nowhere stated in his examination in chief that before recording the dying declaration, he consulted the doctor and obtained opinion about his physical fitness and capability of the victim to give dying declaration. Neither there is endorsement at the beginning nor at the end, nor any oral evidence of the SEM, in this regard. Therefore, this dying declaration, cannot be accepted as true, genuine reflection of what transpired at that particular moment.

6. The second dying declaration relied upon by the prosecution is at Exhibit 39. It is recorded by the Police Officer. We, may incidentally say here that the handwriting on Exhibit 37 and Exhibit 39 appears to be identical. Apart from that, there is an endorsement of the doctor on Exhibit 39 at the end of dying declaration, but the word, as rightly argued by Mr. Patil and Mr. Shirodkar, "unconscious" have been altered to "conscious". This creates serious doubt about the authenticity and genuineness of the dying declaration Exhibit 39, and therefore, that second piece of evidence, also has to be rejected.

7. The third dying declaration, is oral dying declaration made by the victim to his wife Indubai Gorakha Gawali. She was examined as P.W. 10. She was at home and one Nadaf came to her house and informed her that one Sambhaji Patil and some other persons had attacked her husband with a knife near Poonam Bakery. It is to be mentioned here that Nadaf whose name has been named by this witness P.W. 10, turned hostile, and did not support the prosecution. Then according to P.W. 10 she went near her husband, he told her that one Sambhaji Patil and 2 - 3 persons attacked him. The learned APP, tried to contend that there is no reason for Indubai to falsely implicate the accused Sambhaji, and nothing is brought in the cross examination of this witness to create doubt about her testimony, and therefore, this dying declaration could be made the basis for conviction.

8. On the other hand Mr. Patil pointed out from the cross examination that the witness has damaged her testimony by admitting, firstly, that apart from Sambhaji Patil the victim was attacked by Balu Salwi, Devanndant Lokhare, Ashok Bhore and Raju Dhotre. Actually, these four persons were not the accused before the trial court. Only five persons were before the trial court, out of which Accused Nos. 3, 4, and 5 have been acquitted and those acquitted accused are not Balu Salwi, Devanndant Lokhare, Ashok Bhore and Raju Dhotre. Therefore, firstly, it is clear that this important witness of the prosecution has named somebody or named somebody about whom the police did not find any connection with the assault. Secondly, she admitted in her cross examination that her husband was repeatedly telling her that he should be taken to the hospital and thereafter he will disclose the name of the assailants. She also admitted that her husband was not in a position to talk when he was removed from the spot to the hospital. He was also not in a position to talk with her. She has repeatedly stated that when police came, her husband was demanding water, and told the police that he should be taken to the hospital first and thereafter he will disclose the name of the assailants. She has also admitted that some persons belonging to Hindu Ekta Union, of which the victim was the member, had gathered near her husband and those persons were prompting the husband and giving him certain names as to who were the assailants.

9. It is true, and, it appears to us, that this witness P.W. 10 was woman of 25 years of age. She might be labouring under pain and suffering for the loss of the husband and she had given these answers they appear to be unnatural. But whatever that may be. It is her evidence before the court. In order to convict the accused it has to be seen whether the conviction can be based on dying declaration made to this witness P.W. 10.

10. The admissions given by the witness in the cross examination, create doubt about the veracity. There is no other corroborating evidence. Two other dying declarations have to be rejected, for the reasons stated above, and this dying declaration of P.W. 10 is not without blemish. It will not be proper to convict the appellants - accused on the charge of murder, solely on the basis of this dying declaration alone. We are not in agreement with the submissions made by the learned APP or the Advocate supporting him.

11. In the result, we, therefore pass the following order:

ORDER

Appeal is allowed.

Conviction of the appellants -original accused Nos. 1 and 2 under Section 302 read with 34 of IPC, is set aside. They are acquitted of the charges. They are on bail, their bail bonds stand cancelled.

In view of the above, Criminal application No. 6917 of 2005 for modification of order dated 25.6.1991, Criminal Application No. 7127 of 2005, Criminal Application No. 7128 of 2005, Criminal Application No. 7129 of 2005, Criminal Application No. 6341 of 2005, all for review and/or recall of order dated 25.6.1991, filed by different applicants, does not survive. The same are therefore rejected.