Bombay High Court
Nurul Shamsul Haq Shah vs The State Of Maharashtra on 4 May, 2022
Bench: S.S. Jadhav, P. K. Chavan
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CRIMINAL JURISDICTION
CRIMINAL APPEAL NO.794 of 2014
Nurul Shamsul Haq Shah,
Aged about 24 Yrs., occu.
Fabrication, Indian inhabitant
of Mumbai, residing at
Room No.34, Mahatma Kabir Nagar,
Milan Welfare Society,
Near New Masjid, Shahar Road,
Chakala, Vile Parle (East),
Mumbai - 400099.
(At present Kolhapur Central
Jail, Kalamba) = APPELLANT
(orig. Accused No.2)
VERSUS
The State of Maharashtra
(at the instance of Vile Parle
Police Station) = RESPONDENT
AND
CRIMINAL APPEAL NO.788 of 2014
1. Imtiyaz Mohammed Saahid Shaikh
Age: 26 Yrs., R/o Behind Cafe
Sahar Hotel, Badi Bawadi,
Bihari Mohalla, Chakala
Cigarette Co.,
Mahatma Kabir Nagar,
Andheri (East) Mumbai
At : Convict Prisoner No.cl
Kolhapur Central Prison,
Kolhapur - 416 007.
2. Mohammed Sahil Rabban Khan,
Age: 29 Yrs., R/o Pande Nagar,
Near Shankar Mandir,
Nalasopara (West), Dist. Thane,
At : - Convict Prisoner No.cl
Kolhapur Central Prison,
Kolhapur - 416 007. = APPELLANTS
(Appellant No.1 is
Digitally signed orig. Accused No.1
UDAY by UDAY
SHIVAJI & Appellant No.2
SHIVAJI JAGTAP
Date: is orig. accused No.3)
JAGTAP 2022.05.04
11:41:09 +0530
(2)
VERSUS
The State of Maharashtra
(at the instance of Vile Parle
Police Station, Mumbai) = RESPONDENT
--------
Dr. Yug Mohit Choudhari, Advocate for Appellant (in
Criminal Appeal No.794/2014);
Ms. Payoshi Roy,(Appointed), Advocate for Appellant
(in Criminal Appeal No.788/2014);
Ms. M.M.Deshmukh, APP for Respondent-State.
-----
CORAM : SMT. SADHANA S.JADHAV &
PRITHVIRAJ K.CHAVAN, JJ.
RESERVED ON : 03/02/2022
PRONOUNCED ON : 04/05/2022
JUDGMENT (PER :- PRITHVIRAJ K.CHAVAN, J.)
1. Feeling aggrieved with and dissatisfied
by the impugned judgment and order of conviction
passed by Additional Sessions Judge, Greater
Bombay, on 12th February, 2013, convicting the
appellants of the offence punishable under Section
302 of Indian Penal Code and sentencing them to
suffer life imprisonment, present appeals have been
preferred.
2. Prosecution story goes like this.
i) Deceased Mohd. Yusuf Mohd. Shahid Shaikh
(for short "the deceased"), who was working as a
labour on contract basis in 'Bisleri Company' , had
been to Andheri - Sahar road near "Gol Building" to
watch "Garba" dance on 13.10.2010 at about 9.30 pm
along with his friends. While returning home at
about 10.40 pm, he was accosted by accused No.1 -
Imtiyaz Mohd. Shahid Shaikh and his brother
(original accused No.4) - juvenile in conflict
with law and accused No. 2 - Nurul Shamsul Haq Shah
on a footpath of Nagori Ajmeri Dairy. All of them
picked up quarrel with the deceased on account of
some previous dispute. Deceased was beaten by
kicks and fists blows. Meanwhile, accused No.2 -
Nurul, by a telephonic message, called accused No.3
- Mohd. Sahil Rabban Khan, who was a companion of
one Nirmal Singh, a known bully. No sooner did
accused No. 3 - Mohd. Sahil Rabban Khan reached the
spot, he whipped out a sharp edged weapon and
inflicted its blows on the chest and stomach of the
deceased. There was a lot of hue and cry. People
in the vicinity gathered there. The assailants
made their escape good from the spot. The deceased
was admitted in Cooper hospital by his friend
Mushtaq and neighbours. He was in I.C.U.
ii) PW 10 - B.B.Rane, who was attached to
Vile Parle police station as Police Inspector, upon
receiving information about the assault, rushed to
the Cooper hospital and recorded statement of the
deceased in the presence of the Medical Officer.
On the basis of the said statement, he registered a
crime, vide CR No.578/2010 under Sections 307, 504
read with 34 of IPC. However, on 14.10.2020 around
21.30 hrs. the deceased succumbed to the injuries
on his person. It is the case of the prosecution
that at the time of recording his statement, the
deceased had disclosed each of the assailants by
naming them in particular to PW 10 - Rane. The
Investigating Officer conducted investigation into
the crime. He visited the scene of occurrence. He
drew a spot panchanama in the presence of panch
witnesses. He had recorded the statements of the
witnesses. Clothes on the person of the deceased,
which were at the time of the incident, were seized
under a panchanama. During the course of
investigation, on the basis of a voluntary
statement of accused No.3 Mohd. Sahil, had
collected samples of blood-stained soil from the
spot by drawing a panchanama (Exh.20). Meanwhile,
deceased succumbed to the injuries and, therefore,
Section 302 of IPC came to be added. The accused
were arrested. During custody of accused No.3 -
Mohd. Sahil, pursuant to his voluntary statement,
the weapon used in commission of the offence came
to be recovered at his instance by drawing a
panchanama under Section 27 of the Evidence Act.
The muddemal property was sent for chemical
analysis to the forensic laboratory. After the
investigation and as a result of investigation,
charge sheet has been laid in the Court of 10th
Metropolitan Magistrate, Andheri against the four
accused.
3. The learned Magistrate committed the case
to the Court of Sessions as the offences were
exclusively triable by the Court of Sessions.
4. All the accused were produced before the
Additional Sessions Judge on 20.12.2011.
5. Charge (Exh.-9) was framed under Section
302 read with 34 of IPC. It was read over and
explained to each of the accused in vernacular, to
which, they pleaded not guilty and claimed to be
tried.
6. Defence, as emerged from the line of
cross-examination as well as from their statements
made under Section 313 of Cr.P.C., is that they
have been falsely implicated in this case. No
defence evidence has been adduced on their behalf.
7. To substantiate the charge, the
prosecution examined as many as 11 witnesses
coupled with some documentary evidence in the form
of autopsy report of the deceased, report of the
forensic laboratory, discovery panchanama etc.
8. The learned Additional Sessions Judge,
after going through the evidence of the prosecution
witnesses and after hearing the prosecution and the
defence, by the impugned judgment, convicted and
sentenced the appellants of the offence punishable
under Section 302 read with 34 of IPC. Each of the
appellants were sentenced to suffer R.I. for life
and fine of Rs.5,000/-, in default, S.I. for six
months.
9. We heard Mr. Yug Choudhari and Ms.
Payoshi Roy, learned Counsel for the appellants in
respective appeals and learned APP for the
Respondent-State. We have also perused written
submissions on behalf of the appellants.
10. The factum of death of the deceased as a
homicidal one has not been disputed by the defence.
PW 9 - Dr. Viren Vinayak Chewle, who was attached
to Cooper Post Mortem Center on 15.10.2010,
conducted an autopsy over the dead body of the
deceased between 11.45 am and 1.00 pm. On external
examination, he noticed 18 injuries, which are
described in column No.17 of the autopsy report in
the following manner, -
"(1) Suture wound seen at the midline
measuring 30 cm in length, extending
vertically from xiphoid process to 4 cm
below umbilicus. Sutures made up to of
stainless steel material.
(2) CLW spherical in shape 5 cm x 4
cm with intestine protruding out
(colostomy)
(3) Suture wound, when opened, stab
wound measuring 2.5 cm x 1 cm x 5cm one
angle acute, margins reddish, regular,
wound located transversely.
(4) Suture wound, when opened, stab
wound measuring 4 cm x 1 cm x 4.5 cm
located 5 cm lateral and 1 cm below left
nipple.
(5) Suture wound, when opened, stab
wound measuring 3 cm x 1 cm x 4 cm
located 6 cm lateral to right nipple, on
angle acute, margins reddish, well
defined. Wound transverse in change.
(6) Suture wound, when opened, stab
wound measuring 1 cm x 0.5 cm x 2.5 cm
located 9.5 cm from midline on the left
side in left hypochondrium inferior
aspect, one angle acute margins reddish,
well defined. Wound oblique in shape.
(7) Suture wound, when opened, stab
wound of 2 cm x 0.5 cm x 1 cm located 4
cm laterally and 1.5 cm below injury
No.6, one angle acute, margins reddish,
well defined.
(8) Suture wound, when opened, stab
wound of 3.5 cm x 1.5 cm x 3 cm located 2
cm inferior to injury no. 7, one angle
acute, margins reddish, well defined.
(9) Suture wound, when opened, stab
wound of 3 cm x 1 cm x 3.5 cm located 2
cm below injury no.2 oblique in nature.
One angle acute, margins reddish, well
defined.
(10) Suture wound, when opened, stab
wound measuring 2.5 cm x 1 cm x 3 cm
located 6 cm lateral to injury no. 2
oblique, one angle acute, margins
reddish, well defined.
(11) Suture wound, when opened, stab
wound measuring 2.5 cm x 1 cm x 4 cm
located 2 cm lateral to injury no. 10 one
angle acute, well defined.
(12) Suture wound, when opened, stab
wound measuring 2.5 cm x 1 cm x 5 cm
located 4 cm right of xiphoid process,
one angle acute, margins reddish, well
defined.
(13) Suture wound, when opened, stab
wound measuring 2.5 cm x 1 cm x 7.5 cm
located 4 cm below injury no. 12 one
angel acute, margins reddish, well
defined.
(14) Suture wound located 8 cm from
midline, 5 cm below right nipple when
opened stab wound of 3 cm x 1 cm x 5 cm
one angle acute, margins reddish, well
defined.
(15) Suture wound, when opened, stab
wound of 2 cm x 1 cm x 3 cm located 1 cm
before umbilicus, one angle acute,
margins reddish, well defined.
(16) Suture wound, when opened, stab
wound of 2.5 cm x 0.5 cm x 4.5 cm located
at dorsum of left hand, one angle acute,
margins reddish, well defined.
(17) Suture wound at the base of 4th
finger of left hand 2.5 cm x 0.5 cm x 1
cm, one angle acute, margins reddish,
well defined (stab wound).
(18) Suture wound between 3rd and 4th
fingers, when opened CLW of 3 cm x 1 cm x
1 cm margins reddish, well defined.
All the above said injuries were
ante-mortem in nature."
11. On internal examination, he noticed the
following internal injuries, -
"(1) Contusion in 5th inter coastal space
right antero lateral.
(2) CLW 4th IC space left 3 x 3 cm reddish
and 7th IC space left 4 x 3 cm, reddish. "
He categorically opined that cause of death was due
to stab wound (unnatural). According to the expert,
the injuries could have been caused by a sharp
pointed weapon having one sharp edged side and one
blunt side. When the weapon was shown (Article -A),
he opined that the said injuries could have been
caused by Article A. The autopsy report is proved
at Exhibit-38. There is no effective cross-
examination of this witness.
12. The prosecution case revolves around the
testimonies of mainly three eye-witnesses, viz. PW
1 - Mohammad Gufran Dawood Shaikh; PW 3 - Mohammad
Moosa Shaikh; and PW 6 - Mohammad Akram Jamir
Shaikh coupled with a statement recorded by the
Investigating Officer, which was treated as a dying
declaration of the deceased, which is at Exhibit-
41.
13. Before scrutinizing the evidence of the
aforesaid witnesses of the prosecution, it would be
expedient to note an important admitted fact. All
these three eye witnesses knew all the accused
since all of them are residents of the same
locality including the deceased. Evidence of PW 1
- Mohammad Gufran indicates that on 13 th October,
2010, he along with the deceased, Accused No.2 -
Nurul and Accused No.1 - Imtiyaz and accused No. 4
- Juvenile in conflict with law (for short, "the
juvenile") along with one Ramji had been to Gol
building, Kabir Nagar to participate in Garba
dance. While returning from the programme, the
juvenile had received a phone call from someone,
who made fun of him on mobile. The juvenile slapped
one Ramji. However, the deceased intervened and
asked the juvenile as to why he had slapped Ramji.
The scuffle ensued between them, which was pacified
by the deceased as well as accused No.1 - Imtiyaz
and accused No. 2 - Nurul. Again, there was a
scuffle on the way, which was pacified by the
deceased and this witness. It is testified by PW 1
- Mohammad Gufran that accused No. 2 - Nurul had
made phone call to one Nirmal, who was a Bhai of
that area (Goon). At that time, accused No. 3 -
Mohammad Sahil - the main assailant, came over
there. Accused No.2 - Nurul pointed out his finger
towards the deceased. Thereafter accused No. 3 -
Mohammad Sahil whipped out a dagger from his pocket
and started stabbing the deceased by inflicting
blows on his chest and stomach. The deceased tried
to ward off the blows. PW 1 - Mohd. Gufran got
frightened. He further testified that accused
Imtiyaz and Nurul caught hold of the deceased when
accused No.3 Mohd. Sahil was assaulting the
deceased. He further testified that he could not
see other injuries on the person of the deceased.
However, the deceased fell down. Persons in the
vicinity gathered on the spot. Nobody came forward
for rescuing the deceased. The assailants ran away
from the spot.
14. When this witness was cross-examined,
several vital admissions surfaced from which a
reasonable doubt arises as to the authenticity of
his version. Admittedly, the incident occurred
around 10.00 pm. If it is an admitted fact that
all the accused along with 15 more persons had been
to the said place for participating in Garba dance,
why names of rest of the persons have not been
clarified by the prosecution ? PW 1 had testified
that he was unaware whether the deceased and
accused were playing Garba dance. There was a
crowd, as it is obvious, when there is a festival
of Garba dance. He admits that he was standing
separately at some distance from the deceased and
the accused near the stall of one Nagori Chaiwala.
He also admits that there was dim light when
accused No.3 arrived on the spot. Admittedly, the
deceased was a good friend of this witness. The
fact that the deceased, accused Nos. 1 and 2 had
been to participate in Garba dance near Gol
building, is proved to be an omission, which is, in
fact, a material omission. Even the fact that
accused No.3 took out a dagger from his pocket and
started stabbing the deceased is also proved to be
an omission.
15. These material facts indeed go to root of
the prosecution case. His further vital admission
surfaced in cross renders his testimony unworthy of
credit when he admits that when he noticed accused
No.3, taking out a dagger, he got frightened and
ran away from the spot. He did not know as to what
had happened thereafter. He admits that thereafter
he had left the city from 13.10.2010 to 15.10.2010.
When the police arrived on the spot on the same
night, he was not present over there. It is
strange that though he being close friend of the
deceased, instead of helping him or approaching the
police, not only he left the spot but also left the
city of Mumbai. He admits that after running away
from the spot he had never been to the police
station on his own. This also creates a doubt as to
what had been the exact cause of fight, resulting
into death of the deceased and whether he had
actually seen the accused No.3 stabbing the
deceased. He is not firm on his stand. His further
categorical admission that before his statements
were recorded by the police at the police station,
he had discussed about it with other witnesses,
which obviously means that the statements under
Section 161 of Cr.P.C,, which came to be recorded
by the Investigating Officer, are quite identical
and tailor-made.
16. None of the aforesaid three eye-
witnesses, viz. PW 1 - Mohammad Gufran Dawood
Shaikh; PW 3 - Mohammad Moosa Shaikh; and PW 6 -
Mohammad Akram Jamir Shaikh, have testified about
the presence of each other even though they are
related and knew each other. They had even met in
the hospital and had decided to give their
statements to the police. It is apparent from the
record that each of these eye-witnesses have played
prominent and significant part in the incident. PW
1 - Mohd. Gufran and PW 3 - Mohd. Moosa Shaikh
claimed to have separated the scuffle and PW 6 -
Mohammad Akram Jamir Shaikh claimed to have chased
the assailants. Had there been substance in the
same version of these witnesses, at least one of
them could have noticed the presence of other two
witnesses at the relevant time. Silence of each of
them as regards the presence of the others creates
suspicion about the veracity of their testimonies.
17. The dying declaration of the deceased
(Exh. 41) does not find mention of the presence of
any of these three witnesses claimed to have
intervened and separated the assailants and the
deceased. In fact, in the last statement of the
deceased, there is no reference of PW 1 - Mohd.
Gufran, who claims to have intervened twice in the
dispute. This assumes significance in light of the
fact that the deceased had only named one Mohd.
Mushtaq, as amongst those, who took him to the
hospital. The deceased has not whispered anything
about the presence of the aforesaid three
witnesses. We shall discuss the dying declaration
qua the deceased in the later part of the judgment.
18. PW 1 - Mohd. Gufran admits of knowing one
Mushtaq and PW 6 - Mohd. Akram Jamir Shaikh; yet he
does not mention their presence at the spot either
in Court or to the police station. PW 3 - Mohd.
Moosa, on the other hand, testified that he had
seen PW 1 - Mohd. Gufran at the hospital. It is
unfathomable as to why PW 1 - Mohd. Gufran does
not say anything as regards his visit to the
hospital where the deceased is alleged to have
given history of assault by unknown persons. This
would indeed expose falsity of the evidence of PW 1
- Mohd. Gufran.
19. It is significant that the statement of
PW 1 - Mohd. Gufran came to be recorded by the
police two days after the incident. Why his
statement could not be recorded when he was present
in the hospital itself, has also not been clarified
by the prosecution. If he was in the hospital, why
he had escaped out of the city, is also an unsolved
mystery. Evidence of PW 1 - Mohd. Gufran,
therefore, does not inspire confidence as it is
quite apparent that he has suppressed certain
material facts. The learned Counsel for the
appellant has, therefore, rightly argued that false
implications of the accused in the case, cannot be
ruled out in view of the fabricated evidence of PW
1 - Mohd. Gufran. It is the evidence of PW 3 -
Mohammad Moosa that he had taken the deceased to
the hospital. However, during trial he denied that
he had taken the deceased to the hospital, for,
his role as alleged eye-witness would have been
exposed as being false. It is evident from the
record that at the time of recording the evidence
of PW 3 - Mohammad Moosa, the accused were not
produced in the Court from the jail. As a result,
there was no occasion for this witness to identify
the accused in the dock. It would also be in
violation of the rights of the accused under
Section 273 of Cr.P.C.. Even if it is the evidence
of PW 3 - Mohd. Moosa that he had noticed accused
No.1 - Imtiyaz, accused No.2 - Nurul, scuffling
with the deceased and later on noticed accused No.2
- Nurul calling one Nirmal Bhai, it is surprising
as to how if the phone call was made by accused No.
2 Nurul to Nirmal Bhai, accused No.3 - Mohd. Sahil
arrived on the spot with the dagger ? During cross
it was suggested to this witness that he is facing
trial under Section 302 of IPC in the Court at
Calcutta, which he denied.
20. In so far as testimony of PW 6 - Mohd.
Shaikh is concerned, there is no reference of his
name in the testimonies of PW 1 or PW 3. As
already stated, even PW 6 nowhere states as
regards the presence of PW 1 and PW 3.
Interestingly, PW 6 admits that he does not know
PW 1. However, PW 1 has already stated that he
knew PW 6, who also resides in the same locality
and that they are on visiting terms. PW 6 however,
categorically admits that he is a history-sheeter
against whom an order of externment was in
existence when he adduced evidence before the
Trial Court. He had taken permission from the
police to enter into the district of Mumbai for
giving evidence in the trial Court. His evidence
is untrustworthy for the reason that during cross-
examination he admits pending four criminal cases
against him since 2005. He was arrested in all
the criminal cases and was on bail. It is,
therefore, difficult to place implicit reliance
upon the testimony of such witness. Thus, it is
apparent that PW 6 is clearly under the control of
Mumbai police and, therefore, he cannot be said to
be an independent witness, giving evidence on oath
as per his free will. He can be said to be an
extremely vulnerable witness. He had stated
before the police about his relations with the
deceased but in the court during trial, he took a
"U" turn. His evidence is also, therefore,
required to be considered with utmost caution and
cannot be accepted at its face value. It is
difficult to accept his version as truthful.
21. The versions of the three eye-witnesses
as regards the incident in question is concerned
are so identical that in normal course, it could
not have been so in such a chronological order.
The versions are tailor made. As such, the
evidence of all these witnesses will have to be
accepted with a pinch of salt. The defence has
succeeded in rebutting their testimonies to a
considerable extent and has created a dent in the
authenticity of their testimonies. We say so even
for the reason that if the dying declaration is
juxtaposed vis-a-vis the versions of these
witnesses, falsity of the prosecution case is
quite apparent.
22. Turning to the aspect of dying
declaration of the deceased, according to the
prosecution, the deceased in his dying declaration
(Exh.41) had stated that he was produced at the
hospital by his friend and a neighbour - Mushtaq,
who has not been examined by the prosecution.
According to the prosecution, Mushtaq was an eye-
witness of the incident. Why the prosecution has
not examined said Mushtaq ? Withholding his
evidence would result in drawing an adverse
inference, as per Section 114(g) of the Evidence
Act. Had he been examined, perhaps, he would have
deposed the real story behind the incident. This
is significant in light of the fact that the
prosecution has not succeeded in bringing on
record the genesis of the crime. This aspect also
would go to the root of the prosecution case. It
is surprising that when the said Mushtaq was
present at the time of admission of the deceased
in the hospital, why he did not utter a single
word as regards the identity and presence of the
assailants at the relevant time.
23. PW 2 - Mohammad Tamanna Gulam Mohammad
Shaikh has been examined as a witness on the spot
panchanama. However, it appears that he has not
disclosed the fact that he happened to be the
grand-father of the deceased and was also present
in the hospital after he came to know about his
admission in Cooper hospital. He too, did not
utter anything about the incident in question.
24. It has been strenuously argued by the
learned Counsel for the appellants that the dying
declaration (Exh. 41) is patently fabricated
document as it bears name of different person
other than the deceased. Secondly, the deceased
did not know, as per his own admission, the names
of the assailants; thirdly, the deceased was not
in a fit condition to give his last statement and
fourthly, mandatory procedure for recording of the
dying declaration has not been followed by the
Investigating Officer. As such, the counsel would
argue that there is nothing in the said statement
of the deceased, which would instill confidence
and would vouch as regards its genuineness and
veracity.
25. Undisputedly, name of the deceased is
Md. Yusuf Shaikh Md. Shahid Hussain. If the
deceased was conscious as well as alert and
mentally fit to give a dying declaration, he would
have surely stated his correct name. However, name
purportedly given by the deceased in the dying
declaration is Md. Yusuf Md Shahid Shaikh. This is
something which no prudent man will accept and
believe. This itself gives a jolt to the veracity
of the dying declaration. There is a room for
doubt as to whether the so-called dying
declaration is indeed genuine or a fabricated
document by the police ? The deceased, in a
normal course, would not have stated his incorrect
name. It is something inconceivable. The dying
declaration is an exception to the hearsay rule, for,
it is not subjected to cross-examination. It can,
therefore, only be admitted in evidence, if there
is absolutely no doubt whatsoever about its
genuineness. The major discrepancies herein-above
are, therefore, significant in the given
circumstances.
26. Even if it is presumed for a moment that
name of the deceased in Exh. 41 has been mis-spelt
or mistakenly given in a way it was given, it
would indicate that the deceased was not in a fit
state to give his last statement since he did not
state his own name correctly.
27. PW 8 - Dr. Imam Gulab Mansoori, who had
personally examined the deceased on his admission,
stated that, he was conscious and oriented, who
had given history of assault. What has been
stated in the history of assault is " Injury by
unknown persons and by unknown weapons." A
perusal of the medical papers would clearly show
that the deceased was conscious and oriented on
admission. Had the assault been committed by the
accused persons, it defies logic and common sense
that the deceased himself and the eye-witness (PW
3), who were present at the hospital and well
acquainted with the accused would report a history
of assault by unknown persons and by unknown
weapons. There is one more angle to this case. As
per the evidence of PW 8 Dr. Mansoori that he had
endorsed at 12.30 AM on 14.10.2010 that the
deceased was conscious and stable. However, it
has been contradicted by other evidence on record,
which would show that it was impossible for the
deceased to give any dying declaration at 12.30 am
and that, in fact, no such dying declaration was
recorded. PW 8 -Dr. Mansoori testified that when
he examined the deceased at 12.10 AM, his
condition was critical. Relatives of the deceased
were called and thereafter he was taken to the
operation theatre. If the deceased was taken in
the operation theatre at 12.10 am for emergency
surgery, which according to PW 8 Dr. Mansoori,
lasted for about four hours, it is inconceivable
that the victims dying declaration came to be
recorded at 12.30 am. PW 8 Dr. Mansoori admits
that when he put an endorsement at Exh. 35, at
that time he had not seen the deceased because the
deceased was taken into the operation theatre as
he was in a critical condition. This again shows
that when the endorsement (Exh.35) was made by PW
8 Dr. Mansoori at 12.30 am, the deceased was
already inside the operation theatre and no dying
declaration could have been recorded when the
deceased was on the operation table. It is also
clear that at the time of making the endorsement
at Exh.35 by the doctor, the deceased was not
before him. There is no mention in the dying
declaration as to the time when it commenced and
when it was completed.
28. A perusal of the medical papers, more
particularly the papers relating to the
observations of the Officer and the prescription
of the different medicines indicates that on
13.10.2010 at about 11.58 pm, i.e. 32 minutes
before the dying declaration was recorded, there
is an entry, recommending that the deceased should
be taken to the operation theatre for emergency,
for, Laparotomy for multiple stab injuries. At
12.10 am on 14.10.2010 (i.e. 20 minutes before
completing the dying declaration), there is
another entry on the medical papers, stating "
High Risk Condition : Patient's condition is not
stable and the high risk has been explained to the
relatives in their own language." A further entry
at 12.10 am reads, "Patient's condition has been
explained to the relatives and the urgent need for
surgery is also explained. Relatives gave consent
for the same including death on Operation Table
consent as patient is a high risk." There is a
categorical admission of PW 8 - Dr. Mansoori when
his attention was drawn to the medical papers that
under such circumstance when the deceased's
condition becomes more critical, with each passing
minute and when the deceased is moaning in pains,
the deceased is not in a position to understand
whatever is spoken to him or asked to him. PW 8
Dr. Mansoori further admits that general
anesthesia was administered to the deceased and,
therefore, the deceased was in an unconscious
state, who was then kept on a ventilator.
29. As such, a cumulative effect of the
aforesaid evidence would clearly indicate that the
said dying declaration of the deceased is not a
document which can be considered to be truthful,
genuine and authentic statement of the deceased
who was under the expectation of death. Neither
PW 8 - Dr. Mansoori nor PW 10 - Bhushan Rane, the
Investigating Officer, have testified that the
deceased was in a fit mental state to give a
statement or there is nothing on record to
indicate that the deceased was well oriented with
time, place and person. The endorsement of the
doctor is only as regards physical condition of
the deceased which is not sufficient. As such, no
reliance can be placed on Exhibit-35.
30. It would be apposite to place reliance
upon a judgment of the Supreme Court in case of
K.Ramchandra Reddy and Anr. Vs. Public Prosecutor
- (1976) 3 SCC 618. The relevant part is extracted
below :-
"6. The accused pleaded innocence and
averred that they had been falsely
implicated due to enmity. Thus it would
appear that the conviction of the accused
depends entirely on the reliability of
the dying declaration Ext. P-2. The dying
declaration is undoubtedly admissible
under Section 32 of the Evidence Act and
not being a statement on oath so that its
truth could be tested by cross-
examination, the Courts have to apply the
strictest scrutiny and the closest
circumspection to the statement before
acting upon it. While great solemnity and
sanctity is attached to the words of a
dying man because a person on the verge
of death is not likely to tell lies or to
concoct a case so as to implicate an
innocent person yet the Court has to be
on guard against the statement of the
deceased being a result of either
tutoring, prompting or a product of his
imagination. The Court must be satisfied
that the deceased was in a fit state of
mind to make the statement after the
deceased had a clear opportunity to
observe and identify his assailants and
that he was making the statement without
any influence or rancour. Once the Court
is satisfied that the dying declaration
is true and voluntary it can be
sufficient to found the conviction even
without any further corroboration. The
law on the subject has been clearly and
explicitly enunciated by this Court in
Khushal Rao v. State of Bombay where the
Court observed as follows:
On a review of the relevant
provisions of the Evidence Act
and of the decided cases in the
different High Courts in India
and in this Court, we have come
to the conclusion, in agreement
with the opinion of the Full
Bench of the Madras High Court,
aforesaid, (1) that it cannot be
laid down as an absolute rule of
law that a dying declaration
cannot form the sole basis of
conviction unless it is
corroborated, (2) that each case
must be determined on its own
facts keeping in view the
circumstances in which the dying
declaration was made; (3) that it
cannot be laid down as a general
proposition that a dying
declaration is a weaker kind of
evidence than other pieces of
evidence; (4) that a dying
declaration stands on the same
footing as another piece of
evidence and has to be judged in
the light of surrounding
circumstances and with reference
to the principles governing the
weighing of evidence; (5) that a
dying declaration which has been
recorded by a competent
magistrate in the proper manner,
that is to say, in the form of
questions and answers, and, as
far as practicable, in the words
of the maker of the declaration,
stands on a much higher footing
than a dying declaration which
depends upon oral testimony which
may suffer from all the
infirmities of human memory and
human character, and (6) that in
order to test the reliability of
a dying declaration, the Court
has to keep in view the
circumstances like the
opportunity of the dying man for
observation, for example, whether
there was sufficient light if the
crime was committed at night,
whether the capacity of the man
to remember the facts stated had
not been impaired at the time he
was making the statement, by
circumstances beyond his control;
that the statement has been
consistent throughout if he had
several opportunities of making a
dying declaration apart from the
official record of it; and that
the statement had been made at
the earliest opportunity and was
not the result of tutoring by
interested parties.
Hence, in order to pass the test of
reliability, a dying declaration 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."
The above observations made by this Court
were fully endorsed by a Bench of five
Judges of this Court 'in Harbans Singh v.
State of Punjab - 1962 Supp 1 SCR 104 .
In a recent decision of this Court in
Tapinder Singh v. State of Punjab -
(1971) 1 SCR 599, relying upon the
earlier decision referred to above, this
Court observed as follows:
"It is true that a dying
declaration is not a deposition
in court and ii is neither made
on oath nor in the presence of
the accused. It is, therefore,
not tested by cross-examination
on behalf of the accused. But a
dying declaration is admitted in
evidence by way of an exception
to the general rule against the
admissibility of hearsay
evidence, on the principle of
necessity. The weak points of a
dying declaration just mentioned
merely serve to put the court on
its guard while testing its
reliability, by imposing on it an
obligation to closely scrutinise
all the relevant attendant
circumstances."
31. According to the prosecution, the
deceased had narrated the contents of his
declaration in Hindi, but the same were recorded in
Marathi by PW 10.- Bhushan Rane. However, PW 10 -
Bhushan Rane has nowhere stated that he had read
over the statement to the deceased and ascertained
from him (deceased) that it had been recorded as
per his say. This is an essential requirement
before placing reliance upon the said statement. A
statement to this effect, which is in the form of
dying declaration, will not be admissible under
Section 32 of the Evidence Act, as it neither forms
part of the circumstance, leading to the deceased's
death, nor it is something about which the deceased
alone could have deposed, nor does it pass a
necessary test which is the raison d'etre of
admitting dying declaration into evidence. Absence
of such oral evidence that the statement was read
over and explained to the maker and that the maker
agreed to its correctness assumes greater
importance in the present case as the deceased was
admittedly a Hindi speaker and the dying
declaration was written in Marathi language.
32. Interestingly, PW 10 - Bhushan Rane, the
Investigating officer admits that he was not well
versed with the procedure for recording dying
declaration and he even did not know that the time
of its commencement and conclusion is required to
be endorsed upon the same. There is even no
endorsement that before recording the declaration,
the deceased was examined by the doctor certifying
his fitness. PW 8 - Dr. Mansoori admits that he
was not aware of the time when the police had
started recording the dying declaration. He was
also not aware of the time at which the dying
declaration was completed. He admits that when he
put his endorsement on Exh. 41, the deceased was
not before him because he had already been taken in
the operation theatre as he was critical. He also
admits that the date written below his endorsement
has been over-written and there is an
interpolation. Moreover, there is no counter-
signature over the over-writing.
33. A bare reading of Exh. 41 would
demonstrate that originally blank spaces where the
date and time of the offence were meant to be
written, were left blank and the contents were
interpolated later with a visibly different pen.
The difference between the rest of the dying
declaration and the dates and time mentioned in the
dying declaration with regard to the size of the
space/gap between words and alphabets/numbers and
the size as well as thickness of the
alphabets/numbers make it clear that these entries
have been interpolated subsequently in the gaps
left in the text of Exh.41.
34. All these aspects diminishes and denudes
the value of the dying declaration as well as
credibility of the investigation by the police.
The Investigating officer could have collected the
call details of the cell phone of accused Nurul,
who alleged to have made a call, upon which,
accused Mohammad arrived at the spot with a dagger.
This aspect would have proved the presence of
accused - Nurul on the spot at the relevant time.
35. Interestingly, PW 7 - Najmakhatun
Shahidhussain Shaikh, who is mother of the
deceased has turned hostile. She had been to the
hospital. It is the case of the prosecution that
the deceased had narrated the incident to his
mother, however, she categorically denied that any
such information was given by the deceased to her
in the form of an oral dying declaration, naming
the accused as his assailants. Had there been
assault by the accused, he would have definitely
stated the said fact to his mother. PW 7 -
Najhmakhatun would have been the last person to
shield the real murderers of her son and the first
person to name the accused. PW 7's vehement
denial clearly supports the submissions of the
accused that they have been falsely implicated on
the basis of the fabricated evidence.
36. The Directorate of Forensic Science
Laboratory in its report at Exhibit-46 in respect
of full open shirt, Jeans pant qua accused No.3 -
Mohd. Sahil opined that human blood ABO grouping
over those two articles was inconclusive. Even the
ABO grouping of human blood over the knife/dagger
alleged to have been discovered at the instance of
the accused No. 3 - Mohd. Sahil, was inconclusive.
Thus, even the discovery under Section 27 of the
Indian Evidence Act does not establish any nexus
between the stab injuries on the person of the
deceased and the knife/dagger (Article - A).
37. The learned Trial Court has failed to
appreciate the evidence of the prosecution
witnesses in its correct perspective. No
independent witness came to be examined by the
prosecution though at the relevant time there was
a crowd on the occasion of Garba dance. There is
no evidence to show that it was a pre-planned
murder as the accused had a common intention and a
prior concert to eliminate the deceased. No iota
of evidence to that effect has been brought forth
by the prosecution. The learned Trial Court has
failed to appreciate the inherent and serious
lacunae in the prosecution's case as well as
inconsistencies and discrepancies brought by the
defence on the record. The findings arrived at by
the learned Trial Court are on the basis of
surmises and conjectures which would not sustain
in the eyes of law. The prosecution has,
therefore, failed to bring home the guilt of the
accused beyond all reasonable doubts.
Consequently, the impugned judgment and order of
conviction needs to be quashed and set aside. In
the circumstances, following order is expedient.
ORDER
a. Criminal Appeal No.794/2014 and
788/2014 are allowed.
b. The impugned judgment and order
of conviction dated 12th February, 2013
passed by the learned Additional Sessions
Judge,Greater Bombay, in Sessions Case
No.134 of 2011, is quashed and set aside.
c. The appellants are acquitted of
the offence with which they were charged.
d. Their bail bonds stand
cancelled.
e. Fine amount, if paid, be
refunded to them.
f. The order as regards disposal of
the muddemal property is maintained.
( PRITHVIRAJ K.CHAVAN ) ( SMT.SADHANA S.JADHAV )
JUDGE JUDGE
BDV
