Bombay High Court
Nana Babu Pawar & Ors vs State Of Maha on 5 January, 2018
Bench: S.P. Deshmukh
1 Cr. Appeal 41.2003 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 41 OF 2003
1. Nana S/o Babu Pawar
Age : 26 Yrs., Occ. Agri.,
R/o : Mangwadgaon,
Taluka Kaij, Dist. Beed.
2. Rajabhau S/o Gopinath Jadhav
Age : 30 Yrs., Occ. Agri.,
R/o : Mangwadgaon, .... APPELLANTS/
Taluka Kaij, Dist. Beed. [ORI.ACCUSED]
V E R S U S
The State of Maharashtra .... RESPONDENT
......
Mr. S.J.Salunke, Advocate for Appellants.
Miss. S.S.Raut, A.P.P. for Resp. - State.
......
CORAM : SUNIL P. DESHMUKH &
P.R.BORA, JJ.
DATE OF JUDGMENT : 5th JANUARY, 2018
......
2 Cr. Appeal 41.2003 - [J]
ORAL JUDGMENT : [PER - P.R.BORA, J.]
1. Heard Shri. S.J.Salunke, the learned counsel
appearing for the appellants - accused and Ms. S.S.Raut, the
learned A.P.P. appearing for the State. Perused the impugned
Judgment and the evidence on record.
2. The present Appeal is directed against the Judgment
and Order passed by the learned Ad-hoc Additional Sessions
Judge, Ambajogai in Sessions Case No. 43/2002 on 30/11/2002
whereby the appellants have been convicted for the offence
punishable u/s 302 r/w 34 of I.P.C. The appellants are hereinafter
referred to as 'the accused'. It was the allegation against the
accused that they knowingly and intentionally caused the death of
one Rajendra Ganpati Jadhav in the intervening night of 16 th and
17th February, 2002 by administering him a poisonous substance.
The learned trial Court has held the allegations so raised against
the accused to have been proved by the prosecution beyond
reasonable doubts. While reaching to the said conclusion, the
learned trial Court has mainly relied upon the testimony of
Subhabai [P.W.4], the wife of deceased Rajendra and the
disclosure statement jointly given by the accused leading to
recovery of incriminating articles.
3 Cr. Appeal 41.2003 - [J]
3. Admittedly, there is no direct evidence to show that the
accused administered a poisonous substance to deceased Rajendra,
which ultimately resulted in causing his death. It is Subhabai
[P.W.4] who has alleged that the accused administered poisonous
substance to her husband deceased Rajendra. The offence was
registered and the investigation was set in motion admittedly on
such complaint lodged by Subhabai [P.W.4]. As has been testified
by Subhabai [P.W.4], deceased himself disclosed to her that
accused brutally beat him and forcibly administered him some
poisonous substance. Perusal of the impugned Judgment reveals
that the learned trial Court has held the facts so stated by
Subhabai [P.W.4] as the oral dying declaration of deceased
Rajendra about the cause of his death and relying upon the same,
has held the accused guilty for causing the death of deceased
Rajendra.
4. No-doubt, the oral dying declaration can form the
basis of conviction. However, it is well settled that the Court must
be satisfied about the truthfulness of the same before the said
declaration can be acted upon and must also be satisfied that the
said declaration was made by the deceased in a fit mental and
physical condition. The impugned Judgment is attacked by the
accused on the ground that the trial Court has failed in
appreciating the said aspect and ignoring the circumstances on
4 Cr. Appeal 41.2003 - [J]
record leading to an inference that the deceased was not in a
condition to make any statement when Subhabai [P.W.4] met him,
has accepted the said statement to be the oral dying declaration of
deceased Rajendra.
5. On perusal of the evidence on record, we find
substance in the objection raised by the learned counsel appearing
for the accused. As has come on record, the insecticide known as
'Endosulphan' was revealed to have been administered to or
consumed by deceased Rajendra and the same resulted in causing
his death. Dr. Rajendra Suryawanshi [P.W.6] has deposed that the
percentage of the poison so administered to deceased Rajendra
was fatal to his life. As has been further deposed by the said
witness, if a person consumes fatal dose of poison, he may remain
conscious for 10 to 15 minutes.
6. In view of the medical evidence as aforesaid, if the
testimony of Subhabai [P.W.4] to the effect that when she met
deceased Rajendra on 17/02/2002 at about 8.00 a.m., he
disclosed to her that the accused administered him the poisonous
substance, is to be believed, a further inference has to be drawn
that the alleged poisonous substance was administered to
deceased Rajendra at around or in the period between 7.30 a.m. to
8 a.m. It has to be, therefore, seen whether any such cogent
5 Cr. Appeal 41.2003 - [J]
material is there on record leading to an inference that the
poisonous substance was administered to deceased Rajendra in the
said period.
7. The prosecution has, admittedly not brought on
record any such concrete evidence. On the contrary, the material
on record shows that the poisonous substance was administered to
deceased Rajendra some times between 11.00 p.m. to 12.00 mid-
night. In the F.I.R. lodged by Subhabai [P.W.4], there is a
categorical averment that the accused administered poisonous
substance to deceased Rajendra on 16/02/2002 during 11.00 p.m.
to 12.00 mid-night. The document at Exh. 19 which is spot
panchanama, carries similar averment that Subhabai [P.W.4]
informed the panch witnesses that her husband deceased Rajendra
was brutally beaten and was administered poisonous substance by
the accused on 16/02/2002 in the period between 11.00 p.m. to
12.00 mid-night. The contents of the said panchanama were duly
proved by Bibhishan Rambhau Ingle [P.W.2], one of the panch
witnesses to the spot panchanama. Similar averments are there in
the document at Exh. 17, which is an inquest panchanama, the
contents of which have been duly proved by Sanjay Todkar
[P.W.1], one of the panch to the said panchanama.
8. Thus, the F.I.R., the spot panchanama and Inquest
6 Cr. Appeal 41.2003 - [J]
panchanama consistently reveal a fact that as per the information
given by Subhabai [P.W.4], a poisonous substance was
administered to deceased Rajendra on 16/02/2002 during the
period between 11.00 p.m. to 12.00 mid-night. Time of death of
deceased Rajendra, as per the post-mortem examination report, is
within 24 hours in relation to the post-mortem findings and in
relation to the last meal taken by deceased Rajendra within seven
hours thereof. The prosecution has not brought on record any
evidence to show or suggest as to when the last meal was taken by
deceased Rajendra. The testimony of Subhabai [P.W.4] is totally
silent on this aspect.
9. It was sought to be canvassed by learned A.P.P. that
Subhabai [P.W.4] has specifically deposed that her husband did
not tell the time of incident. It was, therefore, the further
argument of the learned A.P.P. that the averments in the F.I.R. as
well as in the spot panchanama and inquest panchanama that the
accused administered poisonous substance to deceased Rajendra
on 16/02/2002 in the period between 11.00 p.m. to 12.00 mid-
night are to be ignored. We are not all impressed by the
submission so made. For a moment, even if it is accepted that the
time as stated by Subhabai [P.W.4] while lodging the F.I.R. for
occurrence of the alleged incident, was not stated to her by
deceased Rajendra, the fact remains that the prosecution has not
7 Cr. Appeal 41.2003 - [J]
brought on record any such evidence on the basis of which an
inference could have been drawn that the poisonous substance was
administered to deceased Rajendra allegedly by the accused
persons before half-an-hour of his making the disclosure about the
said incident to Subhabai [P.W.4] so as to believe that when such
disclosure was made by deceased Rajendra, he was in a conscious
state of mind.
10. As is revealing from the testimony of Subhabai
[P.W.4] after she saw deceased Rajendra lying in the cattle shade
and after it was disclosed by him to her that the accused had
administered him the poisonous substance, she loudly shouted for
help and rushed to the land known as 'Khatkali'. Subhabai [P.W.4]
has further deposed that one Tatyarao Jadhav met her, who
happens to be her cousin brother-in-law, and she narrated the
incident to him. She has further deposed that at that time tractor
of Balasaheb Jadhav was coming from her back side, wherein
Devidas Kerba Jadhav [P.W.5], Harischandra and Balasaheb were
sitting. Subhabai [P.W.4] further deposed that they took the
tractor at cattle shade, where Rajendra was lying and all of them
lifted him and put him in the said tractor, whereupon he was
taken to the Govt. hospital at Kallamb. Though there is no further
material on record and it also can not be gathered from the
evidence of P.W. 4 Subhabai as to within how much time she
8 Cr. Appeal 41.2003 - [J]
brought the tractor at the place where deceased was lying, a
reasonable inference can be drawn that no much time was
consumed and within at the most 10 to 15 minutes the tractor had
reached at the place where deceased Rajendra was lying. It is
nowhere the case of the prosecution that something was disclosed
by deceased Rajendra in presence of the aforesaid persons viz.
Tatyarao Jadhav, Devidas Kerba Jadhav [P.W.5], Harishchandra
and Balasaheb, who had been at the spot of occurrence with the
tractor to take him to the hospital. It is also not the case of the
prosecution that at the relevant time deceased Rajendra was in a
conscious state of mind and was able to speak. On the contrary,
Devidas Kerba Jadhav [P.W.5] has, in clear words, deposed before
the Court that when he along with Tatyarao Jadhav, Balasaheb,
etc. reached to the spot of occurrence, they saw Rajendra lying
there in unconscious condition.
11. Having regard to the evidence as aforesaid, serious
doubts are raised whether deceased Rajendra was really conscious
and in a fit mental condition to disclose to P.W. 4 Subhabai as to
what had happened with him.
12. Dr. Rajendra Suryawanshi [P.W.6] in his cross
examination by accused No. 1 has stated that deceased Rajendra
died within seven hours of his taking meal. As we have noted
9 Cr. Appeal 41.2003 - [J]
earlier, there is nothing on record to show as to when the meal
was taken by deceased Rajendra on the day of the alleged incident.
Usually, the villagers/farmers take meal in the evening before 8.00
p.m. In the instant case, even if it is assumed that deceased
Rajendra on the relevant day might have taken his meal bit late,
the same time can not be unreasonably stretched beyond 10.00
p.m. In such circumstances also, there was no possibility of
deceased Rajendra remaining alive, much less conscious till 8.00
a.m. on the next day. It is, therefore, difficult to believe the facts
stated by P.W. 4 Subhabai in her testimony before the Court that
at about 8.00 a.m. on 17/02/2002 when she met deceased
Rajendra, he was conscious and disclosed to her about the alleged
misdeeds of the accused persons.
13. There can not be a dispute that oral dying
declaration can form basis of conviction and the oral dying
declaration proved by a prosecution witness can not be discarded
merely on account of the said witness being close relative of the
deceased. But it is equally settled that such a declaration has to be
trust-worthy, free from every blemish and also must inspire
confidence. The evidence on record which we have elaborately
discussed herein above, the very fact whether the deceased was in
a conscious state of mind when the alleged oral dying declaration
is said to be made by deceased Rajendra to P.W. 4 Subhabai,
10 Cr. Appeal 41.2003 - [J]
appears highly doubtful and in the circumstances it would be very
unsafe to rely upon the same and to base the conviction of the
accused on such oral dying declaration.
14. It need not be stated that if the Court has to rely
upon the dying declaration of the deceased, may be written or
oral, the said Court must be satisfied that the deceased was in a fit
state of mind to make the statement. In the impugned Judgment,
the learned Additional Sessions Judge has not expressed any such
satisfaction, though he has relied upon the oral dying declaration
of deceased Rajendra allegedly made by him to P.W. 4 Subhabai.
Though the medical evidence on record clearly suggest that the
dose of poison administered or consumed by deceased Rajendra
was fatal and in such circumstances there was no possibility of
deceased Rajendra remaining conscious for more than 15 to 20
minutes thereafter, the learned Additional Sessions Judge has not
made any discussion in regard to the said evidence.
15. As per the opinion recorded in the postmortem
examination which is reiterated by Dr. Rajendra Suryawanshi
[P.W.6] in his testimony before the Court, the poisonous substance
which was noticed to have been administered to or consumed by
deceased Rajendra was 'organo phosphorous'. The Modi's Medical
Jurisprudence says that in case of fatal dose of 'organo
11 Cr. Appeal 41.2003 - [J]
phosphorous', the symptoms begin in 30 minutes and death results
within 30 minutes to three hours. We reiterate that Dr. Rajendra
Suryawanshi [P.W.6] has unequivocally stated that if a person
consumes a fatal dose of poison which was noticed to have been
consumed by deceased Rajendra, he may remain conscious only
for 10 to 15 minutes thereafter. Having considered the evidence
which we have discussed in detail herein above, we find it unsafe
to accept the case of the prosecution that at 8.00 a.m. on
17/02/2002, deceased Rajendra was conscious and that he
disclosed to his wife P.W. 4 Subhabai that the accused persons
administered him the poisonous substance.
16. In the case of oral dying declaration, reproduction of
exact information and/or words used by the deceased while giving
such declaration assumes vital importance. In the instant matter,
in the F.I.R. lodged by P.W. 4 Subhabai, she has reported that
when she saw deceased Rajendra at about 8.00 a.m. on
17/02/2002 and made enquiry with him, deceased Rajendra
disclosed to her that the accused persons, on account of the earlier
day's incident beat him with fists and kicks, more particularly very
heavily on his chest and that they had administered him the
poisonous substance. In her testimony before the Court, P.W. 4
Subhabai has however deposed that when she asked deceased
Rajendra as to why and how he was lying there, deceased
12 Cr. Appeal 41.2003 - [J]
Rajendra disclosed to her that the accused gave blows on his face
and other parts of his body and also administered him the
poisonous substance. In her testimony before the Court, P.W.4
Subhabai did not state that the accused also disclosed about the
earlier day's incident and the further fact that the accused brutally
beat him by fists and kicks, and more particularly heavily on his
chest.
17. More over, the facts aforesaid stated by P.W. 4
Subhabai are not corroborated by the medical evidence. The
postmortem examination report does not show existence of any
external injury on person of deceased Rajendra. Had it been the
fact as deposed by P.W. 4 Subhabai that deceased Rajendra was
brutally beaten by the accused by fists and kicks and more
particularly heavily on his chest, the same must have been
reflected in the postmortem examination report. The description
of the dead body as is revealing from the Inquest panchanama
[Exh.17] also demonstrate that no sign of any injury or assault was
noticed on person of deceased Rajendra. At least contusions must
have been noticed where the blows were inflicted on person of
deceased Rajendra. In the circumstances as above, we are unable
to implicitly rely on the testimony of P.W. 4 Subhabai and it would
not free from risk to base the conviction of the accused on the
basis of uncorroborated version of P.W. 4 Subhabai.
13 Cr. Appeal 41.2003 - [J]
18. Further, as was pointed out by the learned counsel
for the accused, the fact deposed by P.W. 4 Subhabai that
deceased Rajendra was first taken to the rural hospital at Kallamb,
but as the Medical Officer was not available at the said hospital,
deceased Rajendra was required to be taken to SRTR hospital at
Ambajogai, also is not free from doubt. It is not in dispute that
P.W. 6 Dr. Rajendra Suryawanshi was the Medical Officer at Rural
hospital at Kallamb. P.W. 6 Dr. Suryawanshi in his evidence
before the Court has stated that on 17/02/2002 he was on duty
since 9.00 a.m. to 9.00 a.m. of the next day and the other staff was
also on duty on that day. P.W. 6 Dr. Suryawanshi also stated that
on 17/02/2002 there were three Medical Officers and one Medical
Superintendent on duty in the Rural hospital at Kallamb. As has
come on record through the evidence of Abdul Razzak, the
Investigating Officer, he did not investigate whether Medical
Officer was available or not at the Rural hospital at Kallamb in the
morning of 17/02/2002. This circumstance also raises doubt
about the facts stated by P.W. 4 Subhabai that deceased Rajendra
was first taken to the Rural hospital at Kallamb, but was not
treated there since no Medical Officer was present in the said
hospital.
19. We have also carefully perused the seizure
panchanama in regard to the clothes on person of deceased
14 Cr. Appeal 41.2003 - [J]
Rajendra which is at Exh. 21. The description of the clothes seized
of the deceased nowhere demonstrates that on any of the said
clothes i.e. white Dhoti, white colour terricot shirt and baniyan,
there was any stain of poisonous substance or medicine or that
any of the said clothes was smelling poisonous substance or
medicine. On the contrary, the description of the clothes on
person of the accused persons which were seized allegedly in
pursuance to the memorandum statement given by the accused,
were possessing the stains of the poisonous medicines on the said
pants and shirts and the said clothes were smelling of the said
poisonous medicine. In the circumstances, though in the C.A.
report, Organo Chloro insecticide 'Endosulphan' is stated to have
detected on the Dhoti of deceased Rajendra, the said evidence also
can not be said to be unblemished or free from doubt so as to rely
upon the said evidence, the fact apart that merely on the basis of
such evidence, no conclusion could have been drawn about the
guilt of the accused.
20. After having considered the entire evidence on
record, we are not satisfied that the prosecution has brought on
record the evidence establishing the entire chain of circumstances
which are consistent only with the guilt of accused and
inconsistent with their innocence. When the evidence against the
accused is of circumstantial nature, all the links in the chain must
15 Cr. Appeal 41.2003 - [J]
be conclusively established by cogent and unimpeachable
evidence. In the trial for the offence punishable u/s 302 of I.P.C.,
when the case of the prosecution is based on circumstantial
evidence, the evidence of the prosecution has to be closely
scrutinized and there should not be any weak link being a ground
of reasonable suspicion which may call for acquittal. We reiterate
that in the instant matter, the offence came to be registered on the
basis of the report lodged by P.W. 4 Subhabai and it is undisputed
that the allegations made by P.W. 4 Subhabai in her said report
were based on the facts allegedly disclosed to her by deceased
Rajendra before suffering the death. As has been elaborately
discussed by us, there are serious doubts whether deceased
Rajendra was in-fact conscious and in a position to disclose
something to P.W. 4 Subhabai when P.W. 4 Subhabai met him at
about 8.00 a.m. on 17/02/2002. The alleged declaration made by
deceased Rajendra to P.W. 4 Subhabai is the sole base for
initiating prosecution against the accused and as discussed by us in
detail, the prosecution has utterly failed in proving the said fact
beyond reasonable doubts benefit of which would certainly go to
the accused. In the above circumstances, we do not deem it
necessary to indulge in testing the veracity of the other evidence
on record in the form of C.A. reports or the recovery of
incriminating articles in pursuance to the memorandum statement
allegedly given by the accused. When the prosecution has failed in
16 Cr. Appeal 41.2003 - [J]
establishing the very first link in the chain of circumstances, it
would be very unsafe to base the conviction of the accused for the
offence with which they are charged. For the reasons stated
above, the impugned Judgment cannot be sustained and deserves
to be set aside.
21. In the result, the following order is passed.
ORDER
[i] The Judgment and Order passed by the I Ad-hoc
Additional Sessions Judge, Ambajogai, District Beed
on 30/11/2002 in Sessions Case No. 43/2002 is
quashed and set aside.
[ii] Accused No. 1 Nana S/o Babu Pawar and accused
No. 2 Rajabhau S/o Gopinath Jadhav are acquitted of
the charges levelled against them. Their bail bonds
stand cancelled.
[iii] The fine amount, if any, paid by the accused be
refunded to them.
[iv] The appellants - accused are directed to furnish P.R.
17 Cr. Appeal 41.2003 - [J]
Bond of Rs. 15,000/- [Rupees Fifteen Thousand]
each with one solvent surety in the like amount u/s
437-A of Cr.P.C. before the trial Court.
[v] The Criminal Appeal thus stands allowed.
[P.R.BORA] [SUNIL P. DESHMUKH]
JUDGE JUDGE
KNP/Cr. Appeal 41.2003 - [J]
