Bombay High Court
Shoeb Mansuri @ Samir Shaikh vs The State Of Maharashtra And Anr on 18 January, 2023
Bench: Nitin W. Sambre, R. N. Laddha
Digitally
signed by
CHITRA
CHITRA SANJAY
SANJAY SONAWANE
SONAWANE Date:
2023.01.19
17:07:29
+0530
Chitra Sonawane.
1
32-IA-2418-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2418 OF 2022
IN
CRI.APPEAL NO.735 OF 2022
Shoeb Mansuri @ Samir Shaikh ... Applicant/Appellant.
Versus
The State of Maharashtra & Anr. ... Respondents.
---
Mr.Aniket Nikam, Advocate i/b Mr. Amit Icham, for the Applicant.
Mr A. R. Kapadnis, for the Respondent-State.
---
CORAM: NITIN W. SAMBRE AND
R. N. LADDHA, JJ.
DATE : 18th JANUARY, 2023.
P.C. :-
. Heard.
2. Appellant/Accused came to be convicted in Sessions Case
No.342 of 2019, by the District Judge, Panvel, Raigad, for the offences
punishable under Sections 302, 326, 324, 323, 504, 506 of the Indian
Penal Code and is sentenced to suffer RI for life and fine.
3. Case of the prosecution is based on the eye-witnesses. However,
each of the eye-witness, who are direct relatives of the
Applicant/Accused have turned hostile.
4. The only independent piece of evidence which the Sessions
Chitra Sonawane.
32-IA-2418-2022.doc
Court relied on for achieving conviction in the case in hand is,
evidence of PW 4, Investigating Officer who has recorded Dying
Declaration of the deceased. PW 4 who is examined at Exhibit No.57,
the Investigating Officer has stated that when he visited the hospital,
he came to know that patient by name Kamal Ajit Halder was under
treatment. At that time, he saw cut injury on neck and two stab
injuries i.e. on chest and stomach. He has further stated that upon
inquiry with the Doctors, it was informed to him that the statement of
the deceased can be recorded as there is no injury to the brain.
Accordingly, the Investigating Officer proceeded to record the Dying
Declaration. He has also recovered knife at the instance of the
Accused from the spot of incident.
5. In the cross examination, the said witness has admitted that he
has not obtained any specific opinion from the Medical Officer as to
whether the patient is physically and mentally fit to give statement.
6. In the aforesaid background, Mr.Nikam, the learned Counsel for
the Applicant/Accused would urge that though the Dying Declaration
was narrated to PW 4 are in Hindi, however, same was recorded in
Marathi i.e. vernacular understandable to the PW 4, Investigating
Officer. He would urge that the mental state of mind of the deceased
was not ascertained from the Doctor and as such, testimony of PW 4
and also the circumstances in which the Dying Declaration was
recorded, does not repose confidence in the prosecution theory.
According to him, conviction can not be based on such a weak piece of
evidence.
Chitra Sonawane.
32-IA-2418-2022.doc
7. Learned APP would urge that there is no dispute as regards
proposition of law that the Police Officer in law can record the Dying
Declaration. In support of his contention, he has relied on the
Judgment of the Apex Court in the matter of 1) Laxman Vs. State of
Maharashtra1 and 2)Munnu Raja & Anr. Vs. The State of M.P. 2, he
would urge that certification of the Doctor before recording the Dying
Declaration by the Police Officer is not mandatory as long as the Police
Officer noticed that the deceased was in a conscious and fit state of
mind. According to the APP, even if the conviction is based on the sole
testimony and the Dying Declaration, same is corroborated by other
material on record and as such, he has sought rejection.
8. Considered the submissions.
9. As at this stage, it is clarified by Mr.Nikam in response to Court's
query, that fine amount is not deposited till this date, which he
assures, on instructions, to be deposited within one week, stand over
to 30th January 2023, for further orders.
[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.]
1 AIR 2002 SC 2973.
2 AIR 1976 SC 2199.
