[Cites 29, Cited by 0]
Bombay High Court
Doli Ledha Ravidas vs The State Of Maharashtra on 27 January, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:3865-DB APEAL-741-2021 (2) (1) ALMOST FINAL.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PURTI
PRASAD
PARAB
CRIMINAL APPELLATE JURISDICTION
Digitally signed by
PURTI PRASAD
PARAB
Date: 2026.01.27
19:39:07 +0530
CRIMINAL APPEAL NO. 741 OF 2021
ALONGWITH
INTERIM APPLICATION NO. 3585 OF 2025
IN
CRIMINAL APPEAL NO. 741 OF 2021
Doli Ledha Ravidas
Age : 35 Years, Occ.: Nil.
R/o. Utsav Hotel, Ashok Nagar,
Kalyan Road, Bhiwandi,
Dist. : Thane. ...Appellant
Versus
The State Of Maharashtra
Through Shanti Nagar Police
Station, Dist. : Thane ...Respondent
_______
Dr. Uday P. Warunjikar a/w Ms. Sonali R. Chavan for the Appellant.
Dr. Dhanlakshmi S. Krishnaiyer APP for the Respondent/State.
_______
CORAM: MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
RESERVED ON: 8th JANUARY 2026.
PRONOUNCED ON : 27th JANUARY 2026.
JUDGMENT ( Per : SHREERAM V. SHIRSAT, J.)
1. The present Appeal has been filed challenging the impugned
Judgment and Order dated 31/3/2021, passed by the District Judge
and Sessions Court, at Thane in Sessions Case No 277/2017, whereby
the Appellant has been convicted for the offence punishable under
Section 302 IPC and he has been sentenced to undergo
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imprisonment for life and to pay fine of Rs.1000/- and in default to
suffer S.I. for one month.
2. Brief facts of the prosecution's case are as under:
a. It is the case of the prosecution that informant is working
as waiter at Bhiwandi and his elder brother Vasudev
worked in a Textile factory, at Sonale. It is further the
case of the prosecution that the deceased Vasudev was
unmarried and was staying alone. It is further the case
that prior to 10 years Accused Doli Ravidas, a person from
the village of informant came to Sonale with his wife and
children. Deceased Vasudev was staying with family of
Accused. It is the case of the prosecution that the Accused
went to his native place at Jharkhand by leaving his wife
and children at Bhadwad. It is the case that there were
illicit relations between Deceased Vasudev and wife of the
Accused. It is further the case that since Doli came to
know about the said relation there used to occur quarrel
between the Accused and Deceased Vasudev and
therefore deceased Vasudev started staying separately.
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b. It is further the case of the prosecution that on
13/01/2017 at about 7.30 p.m. the brother of the
deceased went to see deceased Vasudev at Five Textiles as
he was aware about the night duty of deceased Vasudev
at 8.00 p.m and was waiting for him on the road outside
the factory. It is further the case that after about 7.30
p.m, he heard shouts of deceased Vasudev from ground
and hence he ran towards him. He found deceased
Vasudev had fallen down on the ground and Accused was
seen running away towards Adivasi pada. When the
brother of the deceased asked deceased Vasudev as to
what happened to him Vasudev told him that Accused
Doli assaulted him in stomach with knife. It is the case
that deceased Vasudev had sustained bleeding injuries.
Thereafter, other people gathered at the spot and in short
time deceased Vasudev became unconscious. It is further
the case that police came to the spot and Vasudev was
taken to IGM hospital where he was declared dead. The
brother of the Accused/Informant lodged complaint
against the Accused Doli committing murder of his
brother Vasudev. On the basis of said information on
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14/1/2017 offence came to be registered vide C.R. No. I-
08/2017 with Shantinagar Police Station.
c. Investigation into the said crime was conducted. After
concluding investigation chargesheet came to be filed
before JMFC, Bhiwandi. Since offence punishable under
section 302 IPC is triable by Court of Sessions, case was
committed for trial to the said Court.
3. Charge was framed against accused under section 302 of the
IPC. The Appellant denied the charge and claimed to be tried.
4. Prosecution examined following witnesses in support of the
case.
1. P.W. 1 - Ramesh Tukaram Salvi, Panch witness
2. P.W. 2 - Shamshad Ahmed Ansari, owner of the hotel
3. P.W. 3 - Kiran Nanji Ghavari, Panch witness
4. P.W. 4 - Ranjeet Jageshwar Das, Brother of the deceased
5. P.W. 5 - Umedsingh Khyatsingh Rawat, Manager
6. P.W. 6 - Ashfak Abdul Kayyum Ansari, Panch witness
7. P.W. 7 - Ramrao Tryambak Dikhale, IO
8. P.W. 8 - Dr. Avinashkumar Dhanawade
9. P.W. 9 - Dr. Jayshree Sanjya Mhaske
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5. After examining the prosecution witnesses, the statement of
the Accused- Appellant came to be recorded. The Appellant did not
examine any defence witness. After hearing the arguments and after
considering the evidence on record, the trial court was pleased to
convict the Appellant for the offence punishable under section 302 of
the IPC and sentenced to imprisonment for life and to pay fine of
Rs.1000/- and in default to suffer S.I for one month.
6. The Appellant has preferred the present appeal challenging the
impugned judgment and order dated 31/3/2021.
7. We have heard Ld. Counsel Shri Uday Warunjikar for the
Appellant and APP Dr. Dhanalaxmi Krishna Iyer for the State.
8. The Ld. Counsel for the Appellant has submitted that the
evidence that has been brought on record is not sufficient to convict
the accused/ appellant and the trial court has erred in convicting the
appellant. The Ld. Counsel has submitted that the trial court has
disbelieved the recovery of knife as it was sent to the CA in an open
condition and therefore there is nothing to connect the Appellant to
the crime in question. The Ld. Counsel has submitted that PW 2 has
stated that he had seen the quarrel between two persons at 8 to 8:30
at a place behind the company and that the timing did not match
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with the timing as stated by PW 4 who has stated that it was around
7:30 that PW 4 heard about the quarrel and that too from the place
which was at the side of the company. He has further submitted that
PW 4, mentions about the enmity between the deceased and the
Appellant regarding illicit relationship with the wife of the Appellant,
however, the wife of the Appellant has not been examined and
therefore the motive also cannot be said to be conclusively
established. He has further submitted that there was no street light
and therefore it is difficult to believe that the PW4 or for that matter
even PW 2 could have seen the Appellant or anyone at that time. The
Ld. Counsel has further submitted that the Appellant has given a
probable explanation with respect to the injuries which were found
on his person and submitted that the Accused has not to prove his
defence beyond reasonable doubt but on preponderance of
probability. He has further submitted that as far as the result of the
chemical analysis is concerned, the same is not of any avail to prove
the prosecution case as no blood was detected on the shirt of the
accused and the blood stains found on the pant of the
Accused/Appellant is inconclusive. He has further argued that the
Doctor who examined the appellant has deposed that the injuries
caused to the Appellant are possible by more than one person and it
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is possible by other reason than assault. The Ld. Counsel therefore,
submitted that the only material connecting the Appellant is the dying
declaration which is suspicious and should not be acted without
corroborative evidence and therefore has urged that the Appellant
deserves to be acquitted.
9. Per contra, the public prosecutor has submitted that the
prosecution has proved the case beyond reasonable doubt. She has
submitted that the evidence of PW 4 with respect to dying declaration
and identification is crucial and that itself is sufficient to prove the
case of the prosecution. She has submitted that nothing has been
brought up by the defence in cross examination to disregard the
testimony regarding the dying declaration. The Ld. APP has further
submitted that the dying declaration appears to be true and free from
any embellishment, and therefore, such a dying declaration by itself is
sufficient for recording conviction, even without looking for
corroboration. She has further submitted that the testimony of PW4
falls into the category of wholly reliable witness and therefore the
trial court has rightly convicted the applicant after taking into
consideration the cogent evidence that has surfaced on record and
prayed that the conviction be confirmed.
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10. Considering the arguments raised, it will therefore, be
necessary to suitably analyze the deposition of the material witnesses
and to see whether on re-appreciation of evidence led before the
Sessions Court, the judgement recording conviction of the Appellant
for offence and the section 302 of the IPC is proper and maintainable.
Analysis of the Evidence:
11. PW 1, Ramesh Tukaram Salvi is the Panch witness and he has
stated that in 2017, he was working as a Mukadam at Bhiwandi
Mahanagar Palika. He has stated that on 14 January 2017, his
superior Subhash Zhalke informed him to attend the police station
and accordingly at 11:45 am he attended the police station. He has
further submitted that he along with another panch witness, Kiran
Gowri were taken to the spot of incident at Village Sonale Bhavdhad
Siddhivinayak compound and in their presence, the blood mixed with
earth was taken and sealed, and Panchama was prepared. The spot
Panchnama was exhibited as exhibit 21.
12. PW 2, Shamshd Ahmed Shaikh, is the owner of the hotel by
name Shrikant Hotel, which is situated at Bhadwad near Adivasi Pada
for last 4 to 5 years. He has deposed that he knows the deceased
Vasudev as he was his regular customer, and he was working in the
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company. He has deposed that on 13/1/ 2017, he opened the hotel at
regular time and at 6 pm he had been to market and came back at
about 8 to 8:30 PM. He further deposed that he noticed at the place
behind the company, there was a quarrel between two persons and
thereafter he saw Vasudev fell on the ground and other person ran
away. He has further deposed that when he went near the deceased
Vasudev, he saw that he had sustained injury to his stomach by knife
and other people also gathered there at the same time. In the cross-
examination, this witness has stated that it was not dark at the spot at
the time of incident but has stated that there were no street lights. He
has further deposed that the company duty hours are from 7 AM to 7
PM. Further in the cross he has said that it is correct to say that he did
not see anybody running away from the spot.
13. PW No 3, Kiran Nanaji Gari, is the Panch witness for recovery of
knife at the instance of the Appellant. He has deposed that on
14/1/2017, he was called by Shanti Nagar police station along with
PW 1 Ramesh Salvi and had requested to act as a panch. He has
further deposed that the applicant had made a statement that the
accused wants to show the place where he had hidden the knife
which he had used in the commission of the offence. He has further
deposed that the accused led the police along with them i.e the
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Panchas to Village Sonale and from beneath a stone he removed a
knife which was having handle of blue colour and that the said knife
was taken charge of under a Panchnama and the panchas had signed
on it. He identified the knife in the court and also identified the
Accused.
14. PW4, Ranjeet Jageshwar Das, is the younger brother of the
deceased. He has deposed that he was working as a waiter in Hotel
Utsav since last nine years and that the deceased was his real brother,
who was residing at Village Sonale and was working in a textile
company. He has deposed that accused was residing in the same
village and he knows the Accused. He has further deposed that his
brother Vasudev was residing with the family of the Accused. He has
deposed that the Accused had been to his native place, and when he
returned, he realized that the accused was having an affair with his
wife and therefore the deceased had started residing separately. He
has further deposed that on 13/1/2017, the deceased had his night
duty and at around 7 PM and he was waiting for him near the
company. He has deposed that after 7:30 pm he heard shouts of
quarrel from the side of a company, and therefore he rushed to the
spot. He saw that his brother was lying on the ground and when he
asked him as to what had happened, the deceased replied that the
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accused had assaulted him by means of knife. He has further deposed
that he raised alarm and the people around there gathered and he
saw the Accused fleeing away from the said spot, from a distance of
around 10 feet. Thereafter, police arrived and took the deceased to
the hospital who was declared dead before he could be admitted to
the hospital. He has deposed that he lodged a complaint with the
police. He has further deposed that his statement before the
magistrate was also recorded.
15. PW5, Umesh Singh Khaat Singh Rawat is the manager where
the deceased was working. He has deposed that the workers used to
work from 8 AM to 8 PM and four workers were working from 8 PM
to 8 AM. He has further deposed that 13/1/2017 at 8 PM, one
Pradeep bhai called him on phone and informed that deceased was
assaulted at the backside of the factory, and therefore instructed
Mukadam Dutta Beedkar to take Vasudev to Hospital.
16. PW 6, Ashfaq Abdul Qayyum Ansari is the Panch witness to the
recovery of clothes of the Accused. He has deposed that on
14/1/2017, he was called to Shanti Nagar Police Station at about 5 to
5:30 PM. He has deposed that one accused was there in the police
station and his name was Ravi Das. He has further deposed that the
clothes i.e shirt and pant of the accused were seized in his presence
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and that there were blood stains on the pant of the accused. He has
deposed that the clothes of the accused were sealed and signature
was obtained. He has also deposed that the accused had injury to his
right hand finger.
17. PW7, Ramrao Dekhle is the investigating officer who has
collected the Earth samples mixed with blood, drawn the sketch of
the spot, arrested the appellant. He has further deposed that he
noticed that there were injuries on the person of the accused. He has
taken charge of the clothes of the accused and noticed that there
were blood stains on the pant of the accused. He has further deposed
that he had called the Panchas after the accused had made a
voluntary statement to show the place where he had hidden the knife
which was used in the commission of the offence.
18. PW8, Dr. Avinash Dhande, is the doctor, who has examined the
accused for the injuries sustained by him. He has deposed that he
examined the accused and found 10 injuries on his persons which are
as follows
i) Abrasion over right chest region below clavicle 3 X 1 cm.
ii) Abrasion over right arm medial aspect 3 x 1 cm.
iii) Contusion over right arm posturer aspect 2 and ½ x 1 cm.
(redness of skin).
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iv) Contusion over right intra scapular region 3 and ½ cm. X 2 cm.
(redness of skin.).
v) Contusion over super scapular region 6 cm. X 1 cm (redness of skin).
vi) Abrasion over left side of neck 1 x 1 cm.
vii) Abrasion over right wrist joint ½ x ½ cm.
viii) Incised wound over right index finger 2 x 1/4 cm. x muscle deed
ix) Incised wound over right middle finger 1 cm x 1/4 cm x muscle deep.
x) Abrasion over right forearm 5 x 1 cm.
19. This witness has deposed that all these injuries were simple in
nature and the age of injuries was within 12 hours. He has further
deposed that injury number 1 to 7 and 10 were due to hard and blunt
object and injuries number 8 and 9 were due to hard and sharp
weapon. He has further deposed that abrasions are possible by fall
and injury numbers 8 and 9 are possible with laying off hand on
sharp and hard object. He has further deposed that injuries at serial
numbers 8 and 9 are also possible during the course of assault by
sharp object. He has also placed on record the injury certificate which
has been marked as exhibit 60.
20. PW9 Jayashree Sanjay Maske is the medical officer attached to
Indira Gandhi Memorial Hospital Bhiwandi. She has deposed that she
received a letter from Shanti Nagar Police Station, along with knife
seeking opinion about possibility of causing of injuries to the
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deceased with the said weapon. She has deposed that after verifying
the weapon and post-mortem notes, she has opined that injuries
mentioned in column 17 are possible with weapon sent by the police
for opinion. In the cross-examination she has deposed that that it is
possible that injuries mentioned in column 17 could be caused by
more than one person and injury number 4 and 5 from column
number 17 are grievous. She also produced on record the post-
mortem report which was marked as exhibit 65. The cause of death
was due to hemorrhage shocked due to injury to vital organs by hard
and sharp object. In the cross examination the witness has admitted
that she had received the weapon for obtaining opinion and it was in
open condition.
21. The Ld. Counsel for the Appellant has relied upon the following
judgment in support of her submissions:
Arvind Singh vs. State of Bihar, 2001 SCC OnLine SC 697
"20 Dying declarations shall have to be dealt with care and caution
and corroboration thereof though not essential as such, but is
otherwise expedient to have the same in order to strengthen the
evidentiary value of the declaration. Independent witnesses may not
be available but there should be proper care and caution in the
matter of acceptance of such a statement as trustworthy evidence..."
22. The Ld. APP has relied upon the following judgments in support
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of her contentions
(i) Uttam vs. The State of Maharashtra1
(ii) The State of Madhya Pradesh vs. Ramjan Khan & Ors.2
(iii) Manjunath & Ors. Vs. State of Karnataka3.
In Uttam vs. The State of Maharashtra , the Hon'ble Apex Court
has observed as under :
11. Dying declaration is the last statement that is made by a person
as to the cause of his imminent death or the circumstances that had
resulted in that situation, at a stage when the declarant is conscious
of the fact that there are virtually nil chances of his survival. On an
assumption that at such a critical stage, a person would be
expected to speak the truth, courts have attached great value to the
veracity of such a statement. Section 32 of the Indian Evidence Act,
187213 states that when a statement is made by a person as to the
cause of death, or as to any of the circumstances which resulted in
his death, in cases in which the cause of that person's death comes
into question, such a statement, oral or in writing made by the
deceased victim to the witness, is a relevant fact and is admissible
in evidence. It is noteworthy that the said provision is an exception
to the general rule contained in Section 60 the Evidence Act that
'hearsay evidence is inadmissible' and only when such an evidence
is direct and is validated through cross-examination, is it
considered to be trustworthy.
"12. In Kundula Bala Subrahmanyam and Another v. State of
Andhra Pradesh , this Court had highlighted the significance of a
dying declaration in the following words :
"18. Section 32(1) of the Evidence Act is an exception to the
general rule that hearsay evidence is not admissible evidence and
unless evidence is tested by cross-examination, it is not
creditworthy. Under Section 32, when a statement is made by a
person, as to the cause of death or as to any of the circumstances
which result in his death, in cases in which the cause of that
person's death comes into question, such a statement, oral or in
writing, made by the deceased to the witness is a relevant fact and
is admissible in evidence. The statement made by the deceased,
called the dying declaration, falls in that category provided it has
1 Criminal Appeal No. 485 of 2012
2 Criminal Appeal No. 2129 of 2014.
3 2023 SCC OnLine SC 1421
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been made by the deceased while in a fit mental condition. A dying
declaration made by person on the verge of his death has a special
sanctity as at that solemn moment, a person is most unlikely to
make any untrue statement. The shadow of impending death is by
itself the guarantee of the truth of the statement made by the
deceased regarding the causes or circumstances leading to his
death. A dying declaration, therefore, enjoys almost a sacrosanct
status, as a piece of evidence, coming as it does from the mouth of
the deceased victim. Once the statement of the dying person and
the evidence of the witnesses testifying to the same passes the test
of careful scrutiny of the courts, it becomes a very important and a
reliable piece of evidence and if the court is satisfied that the dying
declaration is true and free from any embellishment such a dying
declaration, by itself, can be sufficient for recording conviction
even without looking for any corroboration......."
"13. In Shudhakar v. State of Madhya Pradesh, this Court had
opined that once a dying declaration is found to be reliable, it can
form the basis of conviction and made the following observations :
The "dying declaration" is the last statement made by a person at a
stage when he is in serious apprehension of his death and expects
no chances of his survival. At such time, it is expected that a person
will speak the truth and only the truth. Normally in such situations
the courts attach the intrinsic value of truthfulness to such
statement. Once such statement has been made voluntarily, it is
reliable and is not an attempt by the deceased to cover up the truth
or falsely implicate a person, then the courts can safely rely on such
dying declaration and it can form the basis of conviction. More so,
where the version given by the deceased as dying declaration is
supported and corroborated by other prosecution evidence, there is
no reason for the courts to doubt the truthfulness of such dying
declaration."
"14. In Paniben (Smt.) v. State of Gujarat on examining the entire
conspectus of the law on the principles governing dying
declaration, this Court had concluded thus :
"18. ........ (i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration.
(Munnu Raja v. State of M.P.17 )
(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. (State
of U.P. v. Ram Sagar Yadav18 ; Ramawati Devi v. State of
Bihar19 )...
....
In Lakhan v State of Madhya Pradesh
"10. This Court has considered time and again the
relevance/probative value of dying declarations recorded under
different situations and also in cases where more than one dying
declaration has been recorded. The law is that if the court is
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satisfied that the dying declaration is true and made voluntarily by
the deceased, conviction can be based solely on it, without any
further corroboration. It is neither a rule of law nor of prudence
that a dying declaration cannot be relied upon without
corroboration. When a dying declaration is suspicious, it should
not be relied upon without having corroborative evidence. The
court has to scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting
or imagination. The deceased must be in a fit state of mind to
make the declaration and must identify the assailants. Merely
because a dying declaration does not contain the details of the
occurrence, it cannot be rejected and in case there is merely a
brief statement, it is more reliable for the reason that the
shortness of the statement is itself a guarantee of its veracity. If
the dying declaration suffers from some infirmity, it cannot alone
form the basis of conviction. Where the prosecution version differs
from the version given in the dying declaration, the said
declaration cannot be acted upon."
"24. The principles governing the circumstances where the courts
can accept a dying declaration without corroboration, have been
dealt with extensively in Khushal Rao (supra) and for ready
reference, reproduced as under :
"16. 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
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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."
The State of Madhya Pradesh vs. Ramjan Khan & Ors.,
"26. Now, the surviving question is only whether the prosecution
had succeeded in establishing conclusively beyond any reasonable
doubt that the culprits for the murder of Naseem Khan, are the
respondents herein as held by the trial Court or whether they are
entitled to the benefit of doubt and consequential acquittal as held
by the High Court. In the decision in Anil Phukan v. State of Assam,
this Court held that conviction could be based on testimony of a
single witness provided his testimony is found reliable and inspires
confidence.
In Manjunath & Ors. Vs. State of Karnataka, 2023
"22. For an eye-witness to be believed, his evidence, it has been
held, should be of sterling quality. It should be capable of being
taken at face value. The principle has been discussed in Rai
Sandeep @ Deepu alias Deepu v. State (NCT of Delhi) as follows-
"22. In our considered opinion, the "sterling witness" should be of
very high quality and caliber whose version should, therefore, be
unassailable. The court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What would
be more relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the court.
It should be natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in the
version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and howsoever
strenuous it may be and under no circumstance should give room
for any doubt as to the factum of the occurrence, the persons
involved, as well as the sequence of it. Such a version should have
co- relation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert opinion.
The said version should consistently match with the version of
every other witness. It can even be stated that it should be akin to
the test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as well as all
other such similar tests to be applied, can it be held that such a
witness can be called as a "sterling witness" whose version can be
accepted by the court without any corroboration and based on
which the guilty can be punished. To be more precise, the version
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of the said witness on the core spectrum of the crime should
remain intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version in
material particulars in order to enable the court trying the offence
to rely on the core version to sieve the other supporting materials
for holding the offender guilty of the charge alleged."
23. A reference can be made to the judgment of the Apex Court in
the case of Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012)
4 SCC 327 wherein it has been observed as under :-
"23. The "dying declaration" essentially means the statement made by a
person as to the cause of his death or as to the circumstances of the
transaction resulting into his death. The admissibility of the dying
declaration is based on the principle that the sense of impending death
produces in a man's mind, the same feeling as that of a conscientious and
virtuous man under oath. The dying declaration is admissible upon the
consideration that the declaration was made in extremity, when the maker is
at the point of death and when every hope of this world is gone, when every
motive to file a false suit is silenced in the mind and the person deposing is
induced by the most powerful considerations to speak the truth.
24. There are several contentions which have been raised by the Ld.
Counsel for the Appellant in order to make an attempt to establish
that the conviction is not sustainable. The thrust and emphasis of the
argument is on the ground that the dying declaration, which is an
oral dying declaration, made to the first informant PW 4 is suspicious.
He has submitted that if the dying declaration is omitted from
consideration, then there is no other material to connect the
Appellant to the crime in question.
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25. In the judgment relied upon by the Appellant in the case of
Arvind Singh vs. State of Bihar, (supra) there is no doubt about the
proposition of law that the dying declaration shall have to be dealt
with care and caution and is expedient to have corroboration in order
to strengthen the evidentiary value of the declaration, however it may
not be possible at all times to have corroboration in cases where the
dying declaration is made in a situation where the condition of the
victim is such that there is hardly any time to find any corroboration,
before he or she succumbs. Therefore, in such situations the courts
have to meticulously and cautiously analyse the evidence to whom
the dying declaration is made and then come a conclusion whether
the witness is believable or not and whether it inspires confidence.
26. It will therefore have to be seen whether the oral dying
declaration made to the informant inspires confidence and whether
the conviction can be sustained solely on the basis of dying
declaration without any corroboration.
27. PW 4 is the first informant to whom the deceased has made the
dying declaration, has stated as under. The relevant portion is
reproduced here in below.....
दि नां क १३-०१-२०१७ रो जी वा सु वा हया ची नां ईट डयाट ह ती
सुमा रो ७-०० वा जीती मा त्या च्या कपनां जीवाळ गेलो ह ती वा त्या ची
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वा ट प ह ती ह ती सुमा रो ७-३० नांतीरो कपनां च्या बा जीलो असुलोल्या
मा कळ्या जी गेतीनां आवा जी vkyk- eh vkoktkP;k fn'ksus /kkor
xsyks- eh ek>k HkkÅ वा सु वा rsFks iMysyk ikfgyk- eh त्या लो
क या >kys असु विवाची रोलो त्या नां मालो nksyhus ची क( नां मा रोल्या ची
lkafxrys- त्या नांतीरो मा आरोड ओरोड कलो - त्या नांतीरो आजी(बा जी(ची लो क
तीथे xksGk >kys- R;kosGh मा nks लो लो पळ( नां जी ती नां प विहलो मा
सुमा रो ह QqVko#u त्या लो ikfgys- xksGk झा लोल्या लो क प,क-
क ह लो क लो च्या मा गे त्या लो पकडण्या सु ठी iGkys- फो नां
कल्या नांतीरो प विलोसु घटनां स्थेळ आलो- प विलोसु सु बाती मा वा सु वालो
bafnjk गे धी ह4विस्पटलोलो घऊनां गेलो - ह4स्प टलोमाध्या खलो
करोण्या प(वा8ची त्या ची मा9त्या झा लो - घटनांबा बाती मा प विलोसु नां दिफोया :
दि लो - आती मालो दि नां क १४-१-२०१७ ची जीबा बा खविवालो -
त्या वारो मा झा सुह आह-
28. Therefore, what evidence has come on record in the nature of
deposition of PW4 is very lucid and clear and the first informant/PW4
has stated that when he asked the deceased as to what had happened,
he had in no uncertain terms, replied that he was assaulted by Doli.
There is no ambiguity of whatsoever nature in the said deposition. It
will also be pertinent to note that there is nothing brought on record
by way of cross-examination or any other evidence to discredit the
said witness on this aspect. PW 4 has also stated that his statement
was recorded before the magistrate which is a statement recorded
under section 164 of Cr. PC. However, there is no cross-examination
even referring to the statement under section 164 Cr.PC. This Court
had asked the Court Associate of this Court to open the statement
recorded under section 164 Cr.PC, which was in a sealed envelope.
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After opening the same, it was placed before the court for perusal.
Having perused the same, this court finds that there is complete
corroboration to what PW4 has deposed in his deposition before the
trial Court. Surprisingly there is no cross-examination. Thus there is
nothing to dis-believe the evidence of PW 4 and this witness appears
to be of sterling quality.
29. This court finds that the dying declaration is true and free from
any embellishment. There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without corroboration and if
the court is satisfied, the declaration is true and voluntary, it can base
conviction on it without corroboration. In the present case that
deceased had an opportunity to identify the Appellant and without
any loss of time, voluntarily, had at the first instance what is called as
"Rule of First Opportunity", informed PW 4 upon being asked by PW4
as to what had happened. There is nothing on record to come to
conclusion or harbor a reasonable suspicion or doubt that the
deceased could have been tutored. The suggestion put to PW4 that
the deceased was not in condition to make any statement is also
denied by PW4.
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30. The motive also plays an important role and the evidence on
record shows that the Appellant has a motive to commit the murder
of the deceased. There is no reason otherwise for the deceased who is
on the deathbed in that ephemeral moment to falsely and maliciously
accuse the present Appellant unless he is the one who has assaulted
him. The basic premise is nemo moritus praesumitur mentire i.e man
will not meet his maker with a lie in his mouth is the reason in law to
accept the veracity of such statement.
31. It was tried to be brought on record in the cross-examination of
PW 2 and 5 that there was no street light and therefore, it was
submitted that in absence of any street light the Appellant could not
have been seen running away. However, if the cross examination of
PW 2 is perused, although it is stated that there is no street light,
PW2 has categorically answered in the cross-examination that it is not
correct to say that it was dark at the spot at the time of incident and
therefore that though there was no street light but not dark either, is
sufficient material to come to a conclusion that the PW 4 had seen the
appellant running away.
32. It has come in the evidence of the investigating officer that he
had noticed injuries on the person of the appellant. The explanation
which was tried to be given in the statement recorded under Section
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313 of Cr. P.C. was that the accused-appellant was working in a loom
factory and the accused had caught a running loom, which caused
incise wounds to the Appellant, so also the other workers tried to pull
him out which caused further abrasions to his body. The said
explanation offered by the Appellant does not stand to reason and
logic considering the other evidence that has come on record. PW5
has answered in cross examination that on 13/1/1 2016, there was
no work in the factory in the day shift and due to power cut on
Friday, working was not done. Considering the nature of the injuries
which are found on the person of the accused, it is difficult to
countenance the version of the accused that such injuries could be
caused by the explanation which is tried to be given about handling
of running loom and of pulling of the Appellant by other co-workers.
Further the PW 8 in the cross examination has categorically deposed
that injury at serial numbers 8 and 9 are also possible during the
course of assault by sharp object and that the age of injuries was
within 12 hours. The irresistible conclusion that can be drawn is that
there was a scuffle between the Appellant and the deceased during
which the accused has suffered the injuries. The defence taken by the
accused- appellant therefore crumbles like a pack of cards. Although
it is true that the Accused has not to prove his defence beyond
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reasonable doubt but on preponderance of probability, still the
explanation offered has to be palatable and not just any unreasonable
and incredulous explanation. The defence taken by the Appellant is
improbable and therefore cannot be believed.
33. Further, although the recovery of knife is not believed by the
trial court due to the reason that when the weapon was sent to the
medical officer for opinion on 2/2/2017, was not in a sealed
condition. However, fact remains that it was recovered at the instance
of the accused-appellant. The issue which was raised by the Ld.
Counsel for the Appellant that the recovery otherwise also cannot be
relied upon as the same was from an open place accessible to all.
34. Although the recovery here is eclipsed by the fact that it was not
sent in a sealed condition, however it will have to be seen whether
the recovery perse can be said to be believable, albeit from an open
place or whether in such circumstances where the recovery though
from an open place and outside the visibility of others can be said to
be a recovery in terms of section 27 of the Indian Evidence Act.
35. A profitable reference can be made to the following judgments
State of Himachal Pradesh vs. Jeet Singh (1999) 4 Supreme Court
Cases 370
"26. There is nothing in Section 27 of the Evidence Act which renders the
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statement of the accused inadmissible if recovery of the articles was made from
any place which is "open or accessible to others". It is a fallacious notion that
when recovery of any incriminating article was made from a place which is open
or accessible to others. It would vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in places which are open or accessible
to others. For Example, if the article is buried on the main roadside or if it is
concealed beneath dry leaves lying on public places or kept hidden in a public
office, the article would remain out of the visibility of others in normal
circumstances. Until such article is disinterred its hidden state would remain
unhampered. The person who hid it alone knows were it is until he discloses that
fact to any other person. Hence the crucial question is not whether the place was
accessible to others or not but whether it was ordinarily visible to others. If it is
not, then it is immaterial that the concealed place is accessible to others."
John Pandian vs. State Represented By Inspector of Police (2010) 14
Supreme Court Cases 129
"57. It was then urged by the learned counsel that this was an open place and
anybody could have planted veechu aruval. That appears to be a very remote
possibility. Nobody can simply produce a veechu aruval planted under the thorny
bush. The discovery appears to be credible. It has been accepted by both the
Courts below and we find no reason to discard it. This is apart from the fact that
this weapon was sent to the Forensic Science Laboratory (FSL) and it has been
found stained with human blood. Though the blood group could not be
ascertained, as the results were inconclusive, the accused had to give some
explanation as to how the human blood came on this weapon. He gave none.
This discovery would very positively further the prosecution case."
Lochan Shrivas Vs. The State Of Chhattisgarh, Criminal Appeal Nos.
499-500 Of 2018
"32. The said recovery on the memorandum of the appellant under Section 27 of
the Evidence Act, has been attacked by the defence on the ground that the same
is from an open place, accessible to one and all. In this respect, it is apposite to
rely on the following observations of this Court in the case of State of Himachal
Pradesh v. Jeet Singh :
"26. There is nothing in Section 27 of the Evidence Act which renders the
statement of the accused inadmissible if recovery of the articles was made from
any place which is "open or accessible to others". It is a fallacious notion that
when recovery of any incriminating article was made from a place which is open
or accessible to others, it would vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in places which are open or accessible
to others. For example, if the article is buried in the main roadside or if it is
concealed beneath dry leaves lying on public places or kept hidden in a public
office, the article would remain out of the visibility of others in normal
circumstances. Until such article is disinterred, its hidden state would remain
unhampered. The person who hid it alone knows where it is until he discloses
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that fact to any other person. Hence, the crucial question is not whether the place
was accessible to others or not but whether it was ordinarily visible to others. If it
is not, then it is immaterial that the concealed place is accessible to others."
It could thus be seen that this Court has held that what is relevant is not whether
the place was accessible to others or not, but whether it was ordinarily visible to
others. If the place at which the article hidden is such where only the person
hiding it knows until he discloses that fact to any other person, then it will be
immaterial whether the concealed place is accessible to others."
36. From the above what can be deduced is that what is relevant is
not whether the place was accessible to others or not, but whether it
was ordinarily visible to others. In the present case the knife was
hidden underneath the stones which was not visible to others though
in an open place and which was within the exclusive knowledge of
the Appellant till the time he led the team for recovery.
37. Be that as it may, even if the evidence of knife being stained
with blood is discounted, the oral dying declaration of the deceased
clearly stated that he was assaulted by the knife. Tainted recovery, if
it is to be so held, may not be lethal to the case of prosecution as the
evidence led by the prosecution, especially the evidence of PW 4
proves beyond reasonable doubt that the death of the deceased was
caused by the accused.
38. Another aspect which cannot be lost sight of is that the stand
taken by the Appellant is that he has been falsely implicated however
there is no explanation given as to why the Appellant has been falsely
implicated. Even in cross examination nothing has been brought on
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record by the Appellant to substantiate its claim that he has been
falsely implicated. The opportunity to explain his stand was available
to him while recording statement under Section 313 of Cr.P.C.
however, the same has not been availed of. No doubt the Appellant
has a right to maintain silence even before the Court during the
examination under 313 of Cr.P.C. however, the Court would be
entitled to draw an inference including adverse inference as may be
permissible. Reference can be made to the judgment of the Hon'ble
Supreme Court in the case of Vahitha Vs State of Tamil Nadu, (supra)
wherein in paragraph 45 the Court has been pleased to observe as
under:-
45. In Ramnaresh [Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 :
(2012) 2 SCC (Cri) 382] , this Court has, though recognised the right of the
accused to maintain silence during investigation as also before the Court in
the examination under Section 313CrPC but, at the same time, has also
highlighted the consequences of maintaining silence and not availing
opportunity to explain the circumstances appearing against him, including
that of the permissibility to draw adverse inference in accordance with law.
This Court observed and held as under : (SCC pp. 274-75, paras 49 & 52)
"49. In terms of Section 313CrPC, the accused has the freedom to maintain
silence during the investigation as well as before the court. The accused may
choose to maintain silence or complete denial even when his statement
under Section 313CrPC is being recorded, of course, the court would be
entitled to draw an inference, including adverse inference, as may be
permissible to it in accordance with law.
* * *
52. It is a settled principle of law that the obligation to put material
evidence to the accused under Section 313CrPC is upon the court. One of
the main objects of recording of a statement under this provision of CrPC is
to give an opportunity to the accused to explain the circumstances
appearing against him as well as to put forward his defence, if the accused
so desires. But once he does not avail this opportunity, then consequences in
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law must follow. Where the accused takes benefit of this opportunity, then
his statement made under Section 313CrPC, insofar as it supports the case
of the prosecution, can be used against him for rendering conviction. Even
under the latter, he faces the consequences in law."
(emphasis supplied)
38. The other issue raised by the Ld. Counsel for the Appellant with
respect to the timing of the incident cannot be said to be such so as to
discard the entire prosecution case or raise any doubt about the case
of the prosecution. The PW 2, in examination in chief has stated that
he came back at about 8 to 8:30 PM and he noticed that at the place
behind the company there was a quarrel between two persons. PW 4
has stated that approximately after 7:30 PM, he heard the shouts
from an open place behind the company. PW 5 has stated that on
13/1/2016 at about 8 PM, one Pradeep bhai called him on phone and
informed that Vasudev was assaulted. If the time line is seen, the
difference is not such which should make the court totally disbelieve
the prosecution case. PW 2 has given an approximate time of about 8
to 8:30 whereas PW 4 has clearly stated the timing to be after 7:30
PM, thus, the incident has taken place somewhere after 7:30 PM and
at about 8 PM. The difference of timing as narrated by PW 2,4 and 5
is not such as to discard the evidence which otherwise is believable.
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39. The court therefore comes to the conclusion that the
prosecution has proved the case beyond reasonable doubt and the
conviction is proper. The Appeal therefore stands dismissed and the
conviction of the Appellant is upheld.
40. Appeal stands disposed of accordingly. Pending Application is
also disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
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