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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1009 OF 2014
IN
CRIMINAL APPEAL NO. 1009 OF 2014
Ramchandra @ Ram Mewalal Yadav
Age : 27 years, Occu : Material Supplier, R/o. Room No.101, Sitaram Sadan, Tulinj Road, Nallasopara (E), (At present in the Nashik Central Jail) …. Appellant
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane …. Respondent
IN
CRIMINAL APPEAL NO. 1009 OF 2014
Ramashankar Singh
Age : 67 years, Occ : Nil, R/o. S/o. Ramkeshav Singh, Guri Gauri, Gorry, Ghazipur, Uttar Pradesh – 233223. …. Applicant/Intervenor
In the matter between :-
Ramchandra @ Ram Mewalal Yadav
Age : 27 years, Occu : Material Supplier, R/o. Room No.101, Sitaram Sadan, Tulinj Road, Nallasopara (E), (At present in the Nashik Central Jail) …. Appellant
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane …. Respondent
IN
CRIMINAL APPEAL NO. 1015 OF 2014
Roshan @ Chini Dannichand Thakur
Age : 25 years, Occupation : Transport Service, R/o. A/4, Shrikunj, Gayatri Park, Nalasopara (E).
(At present in the Nashik Central Jail) …. Appellant
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane …. Respondent
IN
CRIMINAL APPEAL NO. 1015 OF 2014
Ramashankar Singh
Age : 67 years, Occ : Nil, R/o. S/o. Ramkeshav Singh, Guri Gauri, Gorry, Ghazipur, Uttar Pradesh – 233223. …. Applicant/Intervenor
In the matter between :-
Roshan @ Chini Dannichand Thakur
Age : 25 years, Occupation : Transport Service, R/o. A/4, Shrikunj, Gayatri Park, Nalasopara (E).
(At present in the Nashik Central Jail) …. Appellant
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane …. Respondent
IN
CRIMINAL APPEAL NO. 1016 OF 2014
Age : 25 years, Occcupation : Business, R/o. E/13, Navjyoti Apartment, Tulinj Road, Nalasopara (E), (At present in the Nashik Central Jail) …. Appellant
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane …. Respondent
IN
CRIMINAL APPEAL NO. 1016 OF 2014
Ramashankar Singh
Age : 67 years, Occ : Nil, R/o. S/o. Ramkeshav Singh, Guri Gauri, Gorry, Ghazipur, Uttar Pradesh – 233223. …. Applicant/Intervenor
In the matter between :-
Rahim Rais Khan
Age : 25 years, Occcupation : Business, R/o. E/13, Navjyoti Apartment, Tulinj Road, Nalasopara (E), (At present in the Nashik Central Jail) …. Appellant
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane …. Respondent
Dr. Yug Mohit Chaudhary a/w. Mr. Anush Shetty for the Appellant in APEAL/1016/2014.
Mr. Sarthak Shetty a/w. Dnyanesh Bhatkhande and Mr. Sagar Thakur i/b. Mr. Prakash Shetty for the Appellant in APEAL/1009/2014.
Mr. Pachpansingh Gusign a/w. Ms. Sheetal Pakhare for the Appellant in
APEAL/1015/2014.
Mr. Anil Galgali a/w. Mr. Bhavesh Magam for the Applicant in
IA/4978/2024, IA/4979/2024 and IA/4800/2024.
Mr. Avinash A. Naik, APP for the Respondent – State in
APEAL/1009/2014 and in APEAL/1015/2014.
Ms. Geeta Mulekar, APP for the Respondent – State in APEAL/1016/2014.
DATED : 19th JUNE, 2025
ORAL JUDGMENT
2) Heard Dr. Yug Chaudhary, learned Counsel for the Appellant in APEAL/1016/2014; Mr. Sarthak Shetty, learned Counsel for the Appellant in APEAL/1009/2014; Mr. Pachpansingh Gusign for Counsel the Appellant in APEAL/1015/2014; Mr. Anil Galgali, learned Counsel for the Applicant/Intervenor in IA/4978/2024, IA/4979/2024 and IA/4800/2024; Mr. Avinash Naik and Ms. Geeta Mulekar, learned APPs for the Respondent- State in APEAL/1009/2014, APEAL/1015/2014 and APEAL/1016/2014 respectively.
3) The prosecution case is that, between the night of 15/04/2012 and 16/04/2012, out of a petty quarrel, the Accused No.1-Rahim intercepted the car in which the deceased – Neeraj Singh was travelling with his friends. The Accused No.1 along with the other two accused, damaged the car. They assaulted Neeraj’s friends with sticks and caused assault on the deceased with a broken beer bottle and a knife. Neeraj’s friends took him first to Alliance Hospital and then on the advice of the Doctor present in the hospital, to a speciality hospital i.e., Orbit Hospital. It is the case of the prosecution that, a Police Officer recorded Neeraj’s statement in Orbit hospital in the morning of 16/04/2012 based on which the FIR was registered. The Accused No.1-Rahim was arrested on 18/04/2012. The other two accused were arrested on 20/04/2012. The statements of the eye witnesses were recorded, spot panchanama was conducted. He was shifted to another hospital in Mumbai. He succumbed to his injuries while undergoing treatment in the evening of 16/04/2012.
4) The investigation was carried out. The clothes of the accused were seized. The beer bottle was seized at the instance of the Accused No.1- Rahim and the knife was seized at the instance of Accused No.2 – Roshan @ Chini. The Articles were sent for CA examination. After the investigation was concluded, the charge-sheet was filed and the case was committed to the Court of Session.
5) During trial, the prosecution examined 16 witnesses. The main witnesses were the three eye witnesses who had allegedly accompanied the deceased when the incident took place. The prosecution also examined PHC – Nathuram Hate attached to Kashimira Police Station who had recorded the dying declaration. There is medical evidence in the form of the Doctor who had conducted the Post Mortem examination, the Doctor who had medically examined the deceased at the time of recording of his dying declaration and the Doctor who had treated him in Orbit Hospital. There is evidence in the form of panchas for various panchanamas including the spot panchanama and the recovery panchanama. A Finger Print Expert was examined to show that the finger print on the recovered beer bottle was that of Accused No.1-Rahim. The defence of the Appellants was of total denial and false implication.
6) The learned Judge believed the evidence of the eye witnesses and the evidence of dying declaration. Based on these reasons, the learned Judge convicted and sentenced the Appellants as mentioned above. Evidence of the Eye Witnesses:- 7) The main evidence in this case is in the form of direct evidence of the eye witnesses. PW[1] – Hiren Yadnic was the first eye witness. He has deposed as follows:- The deceased Neeraj Singh was his friend. He was a resident of Nalasopara. On 15/04/2012, at around 11:30 p.m., PW[1], Neeraj and few other friends including PW[2] – Piyush Shah and PW[3] – Loyoid Nazarin had gone to play a box cricket match at Taki Road. After the match was over, the deceased and those three eye witnesses were together. The match got over at around 12:30 a.m. in the night. They went to Hotel Prabhat on the highway. They travelled in the Santro Car of Neeraj. They had their dinner in that hotel. They were in that hotel upto 02:00 a.m. The Accused No.1 – Rahim was their friend. They met him at the gate of Hotel Prabhat. The Accused No.1-Rahim started abusing Neeraj and asked him to play Teen Patti. Neeraj refused and reminded him that, they could instead play the game of arm wrestling. Neeraj reminded him that the Accused No.1 – Rahim had lost in the past. Rahim got annoyed and caught Neeraj’s shirt. It was torn. Neeraj asked Rahim to pay for the shirt. Rahim got annoyed further and started quarreling. Neeraj’s friends separated them. Rahim then made a phone call to someone and told him that he was being assaulted by ten persons and sought their help. Since PW[1], Neeraj and others did not want to aggravate the situation, they decided to go home. Accordingly, they started to go away from Prabhat Hotel. PW[1] was driving the car. Neeraj was sitting next to him. The other two friends were sitting in the back. When they reached Goraipada in front of Joya Hospital, the Accused No.1 – Rahim came in his car and intercepted Neeraj’s car. The Accused Nos.[2] and 3 came on a motorcycle at the spot. They were accompanied by one more accused – Sandeep who was absconding during the trial. The Accused Nos.[2] and 3 were on the same bike. The Accused No.1 – Rahim got down from his car. He jumped on the bonnet of Neeraj’s car and kicked the windscreen causing crack in the windscreen. He then got down and started beating PW[1] with fist blows. His friends joined him. The Accused No.3 - Ramchandra and Sandeep started assaulting PW[1] with a bamboo. Loyoid and Piyush i.e., PW[3] and PW[2] were assaulted by Sandeep and Ramchandra with bamboo. The Accused No.1 – Rahim and Accused No.2 – Roshan @ Chini went near Neeraj. They were having a broken bottle and a knife in their hands, respectively. They assaulted Neeraj with those weapons. PW1’s specific case is that Neeraj was assaulted in his abdomen and on his neck. At that time, Neeraj was still sitting inside the car. They pulled Neeraj out of the car and then Accused No.2 – Roshan @ Chini assaulted him on the neck and near his shoulder with the knife. According to PW[1], he could not intervene as Sandeep and Ramchandra were assaulting him. He saw Neeraj running towards a lane next to Joya Hospital. The Accused then beat and abused the PW[1], PW[2] and PW[3] and then left the spot. All of these witnesses then went in the direction where Neeraj had run away. They found him sitting in front of the door of one house. He was bleeding. Thereafter, his friends took him to Alliance Hospital in a rickshaw. They informed Neeraj’s mother who came to the hospital. The Doctors examined Neeraj and told them that there was no facility of CT Scan at Alliance Hospital and therefore, advised them to take Neeraj to Orbit Hospital at Mira Road. He was taken there. Neeraj’s father came to Orbit Hospital. The Doctor advised surgery. For that purpose, Neeraj was taken to Asian Heart Hospital at Bandra. However, Neeraj succumbed to his injuries before the surgery could be performed. PW[1] identified all the accused before the Court. According to him, he knew the accused much before the incident. He identified the broken bottle and knife in the Court. He identified the wooden sticks. In his cross-examination, PW[1] admitted that Tulinj Police Chowky was at a distance of five minutes walk from Alliance Hospital. Joya Hospital is five kms away from Alliance Hospital. One Kumar Kakade came to Alliance Hospital after they had reached there. He came there within ten to twenty minutes. He was a social worker. He enquired about the incident. According to PW[1], they narrated the incident to him and that he did not call the police. Kakade is not examined by the prosecution. PW[1] admitted that he did not inform the Doctor about the place of the assault, the name of the assailants and the weapons. He deposed that they took Neeraj to Orbit Hospital from Alliance Hospital and that, they left Alliance Hospital at about 04:30 a.m. The Doctor in Alliance Hospital informed them that Neeraj’s general condition was bad. He denied the suggestion that Neeraj was drowsy when he was taken to Alliance Hospital. They reached Orbit Hospital at about 06:00 a.m. He admitted that his name and signature were not taken in Orbit Hospital. He also admitted that at the time of admission in Orbit Hospital, Neeraj was breathless. He further admitted that he did not inform anybody in the Orbit Hospital about the place of the offence, the names of the assailants and the weapon of assault. Neeraj’s cousin - Sadho and mother – Usha were present in the Orbit Hospital at the time of his admission. He was immediately taken to ICU. After he was admitted, the Doctor informed them that Neeraj was serious and surgery was advised. He categorically deposed that he did not meet any police officer either in Alliance Hospital or Orbit Hospital. He was there in Orbit Hospital upto 07:30 p.m. He did not contact the Police during that time. The place of incident was on the main road connecting Nalasopara to the highway. The incident lasted for about 4-5 minutes. During that period, he did not raise any shouts. The rickshaw driver did ask them about the incident. PW[1] did not disclose the names of the assailants to the rickshaw driver. He could not give details of that rickshaw. While travelling in the rickshaw, he had supported Neeraj. PW[2] - Piyush was sitting on the other side. Neeraj was bleeding. His entire body was smeared with blood. He admitted that his clothes as well as PW2’s clothes were stained with blood. He was wearing the same clothes till he left Orbit Hospital at 07:30 p.m. He did not inform any Doctor about the injuries suffered by him due to the assault with sticks. Significantly, he has further deposed that he met the police for the first time in the evening of 17/04/2012 and he narrated the incident to the Police for the first time on that day. According to him, the statements of the other two eye witnesses were recorded on 18/04/2012. At about 03:15 a.m. in the night of the incident, he had gone to the house of Neeraj and had informed his mother about the incident and had brought her to Alliance Hospital. According to him, he himself had sustained five to six blows of bamboo in the assault. The blows were forceful. He went to the Doctor for the first time on 18/04/2012 but he did not remember name of the Doctor. He stated that the Muddemal Article i.e., the knife was shown to him and he knew that a chopper is bigger in length than a knife. Importantly, this witness was asked questions about important omissions of facts which he has not mentioned in his police statement but had deposed about them before the Court. He could not explain as to why these facts were not mentioned in his police statement. All these omissions are important and he could not assign any reason as to why he had not mentioned those facts in his police statement. Those omissions were as follows:- (a) It was not mentioned that accused-Rahim was holding a black coloured broken bottle and the accused-Chini was holding a knife like weapon. (b) It was not mentioned in his police statement that Neeraj was assaulted with a knife like weapon on his neck and abdomen.
(c) It was not mentioned in his police statement that Neeraj was pulled from the car and the accused Chini assaulted him on his head and shoulder with a knife like weapon.
(d) It was not mentioned in his statement that Ram and
Sandeep assaulted him with bamboo and therefore he could not come out of the car. (e) He could not explain as to why his police statement did not mention the fact that Neeraj was sitting in front of door of one house. PW[1] has further deposed in his cross-examination that he was given a letter dated 12/07/2012 for attending the Test Identification Parade on 13/07/2012. He had shown his willingness to attend that Test Identification Parade but he never went for the Test Identification Parade. He has not explained as to why he did not attend the Test Identification Parade. The prosecution evidence does not show that any Test Identification Parade was actually held. He further admitted that on 17/04/2012, he was called by the Police to the spot of incident in the morning. He denied the suggestion that at the time of incident, Neeraj was alone in the car and he himself as well as the other two eye witnesses were not with him. He deposed that his brother – Sameer was already admitted in Alliance Hospital when Neeraj was brought to Alliance Hospital. He admitted that they did not seek any help from the house where Neeraj was sitting after the assault. He further stated that they did not take Neeraj to Joya Hospital which was very near to the spot because, according to him, there was no facility in that hospital. A suggestion was given to him on behalf of the Accused No.3 that there was a dispute during the cricket match and to cover up the incident, one Kakade had actively participated in covering the true facts.
8) PW[2] – Piyush Shah is the second eye witness. He has narrated the incident exactly in the same manner as narrated by PW[1] right from the time when they had gone to play the cricket match. He has deposed that after the match, they went to Prabhat Hotel. They had their dinner. Then, there was a quarrel between Neeraj and the Accused No.1. He has described the quarrel in the same manner. He then described about the incident of intercepting their car and the accused assaulting them. Regarding the actual assault, he deposed that the accused – Ramchandra, Roshan and Sandeep started beating them with bamboo. Rahim and Chini were assaulting Neeraj. Rahim was having a broken bottle in his hand and Chini was having a knife. Neeraj was assaulted on his chest. He was then pulled from his car and was assaulted on his neck. He was also assaulted on the right shoulder and abdomen. Thereafter, Neeraj ran towards the lane near the road of Joya Hospital. The accused abused these witnesses and went away. According to him, PW[1] and PW[3] alongwith himself then went where Neeraj was lying in front of one house. He was bleeding. Neeraj told them that he had removed a piece of glass from his abdomen. He requested them to take him away from that place. He was taken to Alliance Hospital in a rickshaw. PW[2] has narrated about taking him to Alliance Hospital and then to Orbit Hospital. After one hour of admitting Neeraj to Orbit Hospital, PW[2] himself and PW[3] – Loyoid went home. At about 09:00 p.m., they came to know that Neeraj had succumbed to his injuries. In the cross-examination, he deposed that there were about 12 to 15 customers when the incident occurred at Prabhat Hotel. It lasted for about 10-12 minutes. At the time of the incident, he had received two blows of bamboo on right arm and leg. He did not approach any Doctor for his own injuries. He admitted that the Doctors had informed them that Neeraj’s health was critical. He could not explain as to why his police statement did not mention that Neeraj was assaulted with a knife. He could not explain why he had described the assault with a chopper in his police statement. That particular portion was a contradictory statement to his version of assault by a knife. When Neeraj was taken to the hospital in a rickshaw, according to PW[2] he had pressed the lower part of abdomen of Neeraj. He further deposed that the clothes of all the three witnesses i.e., PW[1], PW[2] and PW[3] were stained with blood while taking Neeraj to the hospital. He could not give the details of the rickshaw and its driver. The same suggestions about Kumar Kakade was given to him but he deposed that he did not meet Kumar Kakade at Alliance Hospital. He met Sadho Singh i.e., Neeraj’s cousin at about 03:15 a.m. to 03:30 a.m. in Alliance Hospital. Sadho came to the hospital after Neeraj was admitted in the hospital. According to PW[2], it would be incorrect to say that Sadho had admitted Neeraj in Alliance Hospital. Sadho had made enquiry with them as to who had assaulted Neeraj and with what weapon. PW[2] had disclosed the names of the Appellants to Sadho. He further admitted that Kashimira Police Station was situated just across the road opposite the Orbit Hospital. He could not explain as to why he left Orbit Hospital though at that time, Neeraj was in critical condition. He reached his house at about 07:50 a.m. His statement was recorded by the police on 18/04/2012 at 05:00 p.m. It was recorded in the Police Chowky. He admitted that for the first time on 18/04/2012, he narrated the incident to the police. On 12/07/2012, he received the message to attend the Test Identification Parade at Thane Central Prison that was to be held on 13/07/2012 but he did not attend it. He could not explain as to why certain facts were not mentioned in his police statement. He could not explain as to why it was not mentioned in his police station that accused-Rahim was having a broken bottle and accused – Chini was having a knife in his hand. He could not explain why it was not mentioned that Neeraj was first assaulted on his chest and thereafter he was pulled from the car and was assaulted on his neck. His police statement did not mention that Neeraj had sustained injuries on his right shoulder and abdomen. He could not explain as to why he had not stated before the police that Neeraj was lying in front of that particular house. He had not given his blood stained clothes to the police. The police did not ask for the same. He had washed his clothes on the same day. They were kept in his house. He admitted that Joya Hospital was the nearest hospital from the spot of the incident. He admitted that Neeraj would have got the earliest treatment if he was taken to Joya Hospital. There were four more hospitals on the way from Joya Hospital to Alliance Hospital.
9) PW[3] – Loyoid Nazarin was the third eye witness. He has also described the incident in the same manner as described by the other two eye witnesses. He had described about the incident at Prabhat Hotel and then the actual incident of the fatal assault. He has deposed that Accused No.1 – Rahim and Accused No.2 – Chini assaulted Neeraj with a bottle and a chopper like knife. Neeraj ran away in the lane of Joya Hospital. Then they went near Neeraj. He told them that he had removed a piece of glass from his abdomen. They took him to Alliance Hospital in a rickshaw and then to Orbit Hospital. At about 06:00 a.m. to 07:00 a.m., he came back to his house from the hospital. In the evening, he came to know that Neeraj had succumbed to his injuries. He identified the accused-Ram who was present in the Court. The other accused were not present in the Court. He identified the weapons i.e., the beer bottle and the knife. In his cross-examination, he deposed that his statement was recorded by the police on 18/04/2012 in the evening. Before that, he did not disclose the incident to anyone else. He was in the Orbit Hospital for about half an hour. They had reached there at about 05:45 a.m. The distance between Alliance Hospital and Orbit Hospital is about forty-five minutes to one hour on a motorcycle. They started at about 04:30 a.m. from Alliance Hospital. They were in that hospital for about an hour. He deposed that according to him, there was an injury on the left side of the lower part of abdomen of Neeraj. He could not depose anything about the injuries caused by glass bottle. The injury by knife was caused on the chest. According to him, Neeraj had sustained 8-10 injuries. He himself had received 3-4 blows of bamboo on his hand and leg. After that, certain omissions were put to him from his police statement. He could not explain as to why his police statement did not mention that after assaulting Hiren, Rahim came to the side of Neeraj and assaulted him with a beer bottle. According to him, the blows of bamboo were given to him forcefully. He admitted that Tulinj Police Chowky is situated at the distance of five kilometers walk from Alliance Hospital. He did not feel like informing about the incident in the said Police Chowky. He could not explain as to why he did not go for Test Identification Parade even after receiving the letter. Evidence of Dying Declaration:- 10) The prosecution has relied on the evidence of the dying declaration which was treated as the FIR. In that context, the prosecution has examined PW12 PHC - Nathuram Hate and PW-13 Dr. Vinodkumar Jaiswal who had permitted recording of the dying declaration.
11) PHC – Hate has stated that at the relevant time, he was attached to Kashimira Police Station as Police Head Constable. On 16/04/2012 at about 07:30 a.m., he received a memo from Orbit Hospital regarding admission of one patient. The name of the patient was Neeraj Singh. PW-12 visited the hospital at 08:00 a.m. Neeraj was admitted in ICU. PW12 made inquiries with the Doctor and asked him whether the patient was conscious and was in a position to give a statement. The Doctor informed that the patient was conscious and his statement could be recorded. PW12 then made inquiry with the patient and recorded his statement in PW12’s own handwriting. PW12 has deposed that it was recorded as per the say of the patient. According to him, the statement was recorded in the presence of the Doctor. It was read over to the patient after it was recorded. His signature was obtained on it. PW12 also signed the statement and then the signature of Doctor was obtained on it. That particular statement was produced on record at Exhibit – 77. It was produced before the PSO and on the basis of that statement, the FIR was registered. The records show that it was registered by zero number. PW12 then addressed a letter to Nalasopara Police Station for registration of the FIR and for further action. In his cross-examination, he deposed that Kashimira Police Station is 10 minutes walking distance from Orbit Hospital. He went to the hospital on his motorcycle and took about five minutes to reach there. He produced the memo receipt of the hospital but it was marked as Article ‘X’ as it was not proved properly. It was not given an exhibit number at that stage. He had not made any entry in the Station Diary when he had left the police station for recording Neeraj’s statement. When he went to the hospital, he did not make any inquiry as to who was the Doctor incharge under whom the patient was treated. The Doctor with whom he made inquiries informed him that, since one hour the patient was in a serious condition but he denied the suggestion that at that time the patient was having an oxygen mask. He admitted that there was one injury on the neck and two injuries on the left side of the chest. He asked several questions to the patient but he did not take note of those questions. He did not take any note that the Doctor had given the opinion that the patient was conscious and was in a position to make a statement and the statement was recorded in the presence of the Doctor. According to PW12, it took about 30-45 minutes for recording the statement but he had not recorded the timing on that statement. He could not explain as to why he did not mention the timing. PW12 reached back to the police station at about 09:00 a.m. He accepted that there was correction in the timing mentioned in the second paragraph of Exhibit – 77 but no initial was made on that correction. He further admitted that he did not meet anybody in Orbit Hospital who claimed to have seen the incident of assault. Patient’s mother was in the hospital. She did not tell PW12 regarding the names of the assailants and the names of the witnesses. He could not state as to in whose handwriting the FIR was written. He further admitted that endorsement of the Doctor on the statement was obtained after the writing was over. He denied the suggestion that between 08:00 to 08:45 a.m., Neeraj was not in the hospital and was in a serious condition.
12) Exhibit-77 is the dying declaration of Neeraj which runs into three pages. It purportedly bears Neeraj’s signature. There is no timing mentioned on that dying declaration. The FIR was lodged at Kashimira Police Station at 01:05 p.m. on 16/04/2012 as mentioned therein. It bears the endorsement of Dr. Vinod Jaiswal. He had put his signature for Dr. Sandip Patil. The statement starts with Neeraj’s full description i.e. name, occupation, details of his address and two mobile phone numbers. The statement then mentions that he was residing with his parents and was studying a Diploma course. Then he had described that they had attended the cricket match on 15/04/2012 at 23:30 hours. The overwriting referred to in the cross-examination of PW12, is in respect of this time of 23:30 hours. A perusal of that time shows that the time is apparently changed from 21:30 hours to 23:30 hours. Then, he had described that PW[1], PW[2], PW[3] and he himself had gone to Prabhat Hotel in his Santro Car for dinner. At 01:30 a.m., the Accused No.1 met him outside the hotel. He was under the influence of liquor. He started abusing Neeraj who also abused the Accused No.1 – Rahim. Neeraj and others then were returning home. They were intercepted by the Accused No.1 in his Swift Car. He then described the incident of assault. The Accused No.1 – Rahim had assaulted Neeraj with a chopper on his chest and on his right hand. Accused No.2 – Chini assaulted him on his throat with a chopper. The other accused Ram and Sandeep were assaulting the witnesses with bamboo. The incident had taken place at 02:30 a.m. on Santosh Bhuvan Road. There was no reference to an assault by a broken beer bottle. The bottle is not referred anywhere in the entire statement. The weapon was mentioned as chopper.
13) PW13 – Dr. Vinod Jaiswal is another important witness in respect of this dying declaration. He deposed that he was working with Orbit Hospital as RMO. Neeraj Singh was admitted in that hospital on 16/04/2012 at about 07:00 a.m. He further deposed that he attended the duty at around 08:30 a.m. to 09:00 a.m. and after that, he examined the patient in ICU. According to him, the patient was conscious at that time. As soon as he joined the duty, two police officers came to ICU and inquired with him about the condition of the patient. He told them that they could record the statement of the patient. The police officers recorded Neeraj Singh’s statement and at that time, he was present near the patient. According to him, the statement was recorded in his presence. After the recording was over, he made his endorsement on the statement that the patient was conscious and was able to give the statement. He identified his endorsement and stated that it was in his own handwriting. In the cross-examination, he admitted that he could not give the exact time at which he reported for duty on that day. He further admitted that he had seen the medical treatment papers of Neeraj Singh before he entered the witness box. From the record, General Surgeon – Dr. Sandip Patil had examined the patient at 07:30 a.m. on that day and had advised C.T. scan of neck, chest and abdomen promptly. PW13 further admitted that he himself was not incharge of the patient. He could not tell at what time the patient was taken out of the hospital for conducting C.T. scan. He admitted that when he examined the patient, he found him in a critical condition. He could not tell which questions were asked by the police to the patient. He could not tell what answers were given by the patient. He admitted that in the medical papers, his name appeared in the entry made at 10:00 a.m. and it did not appear anytime prior to that. There was another Dr. Vinod Pal attached to that hospital and in the entry at 10:00 a.m., no surname was mentioned after the name ‘Vinod’. According to him, the recording of statement was over within 15-20 minutes. He did not remember the time at which he made the endorsement. He agreed that taking the patient for C.T. scan would be the priority than recording of the statement of the patient. He denied the suggestion that the patient was not in a condition to speak. Medical Evidence:-
14) The medical evidence in this case is also important.
15) PW[8] – Dr. Akhilesh Mishra was attached to Alliance Hospital. He was the first Doctor who had treated Neeraj Singh. He has deposed that on his examination, he found that Neeraj’s general condition was very poor. His pulse was not palpable. The blood pressure was not recorded. The patient was drowsy but arousable. He was occasionally obeying verbal command. He was moving all his four limbs. There was reduced air entry on the left side of the chest lower aspect. There was guarding of abdomen. He found four stab injuries on the chest. Stitches were given to the patient. There was one CLW over the neck anteriorly measuring 0.[5] x 1 cm. His blood pressure was not recorded. Intravenous injection was given. Painkiller was given. Once he was stabilised, he was referred to Higher Center for further management. At the time of transfer, the patient was conscious. He was kept on oxygen. He produced the medical certificate at Exhibit – 66. When we perused the record of this case, the number ‘Exhibit- 66’ was scored off, but that statement is on record because there was duplication of Exhibit-66. In that certificate, there was a mention of three stab injuries on the chest and one incised wound on the deltoid region. There was no reference to the neck injury. The history also does not mention the names of the assailants and other details. Significantly, the certificate mentions that he was brought to Alliance Hospital by Sadho Singh who was the cousin of Neeraj Singh. It is not mentioned that any of the witnesses i.e. PW[1], PW[2] or PW[3] had brought Neeraj Singh to the hospital. In the cross-examination, PW[8] accepted that the patient was brought to the hospital by his cousin Sadho Singh. He was admitted at 04:30 a.m. on 16/04/2012. He reiterated that the patient was brought to the hospital in a serious condition. He accepted that there was no mention of any injury on the neck in Exhibit-66. He did not notice any injury on the abdomen. He has further admitted that if trachea and larynx are punctured, then a person would not be in a position to speak. The patient was transferred to a higher hospital at 05:30 a.m. The record did not show that the police were intimated about this patient. According to him, Alliance Hospital was the biggest private hospital in Nalasopara.
16) PW11 – Dr. Sandip Patil had treated Neeraj Singh in Orbit Hospital. He has deposed that he was a General Surgeon. At 07:15 a.m. on 16/04/2012, Neeraj Singh was admitted to Orbit Hospital. He was transferred from Alliance Hospital. At that time, the patient was conscious. He then described four injures on the chest and also the incised wound on the neck approximately 2 cm in size. There was no bleeding. He has further deposed that he had advised C.T. scan of the chest and abdomen. There was blood in the chest cavity. Emergency surgery was planned. The patient was shifted to operation theatre for undergoing surgery at 12:00 p.m. but he developed sudden cardiac arrest and hence, the surgery was postponed and the patient was shifted to ICU. He was put on ventilatory support. The patient’s relative insisted to transfer him to Asian Heart Hospital and accordingly, he was shifted to Asian Heart Hospital at 07:30 p.m. in cardiac ambulance. The injuries were grievous and life threatening. He produced the medical papers on record which are marked at Exhibit-75. He admitted that the entry made at 07:00 a.m. did not show any abdominal injury. The patient was admitted in a critical condition. At 08:00 a.m., another RMO – Dr. Vinod Pal attended the patient. Even at that time, the patient’s condition was critical. There was pain on deep inspiration because of laborious breathing. It was due to reduced air entry to the left side of the chest. The patient was admitted to the hospital by his brother – Sadho. He was accompanied by Neeraj Singh’s mother. The names of the assailants and weapons were not disclosed to the hospital authority. At 10:00 a.m., the general condition of the patient was poor. At 11:00 a.m., he personally explained Neeraj’s condition to the relatives regarding the high risk. By 11:00 a.m., he decided that the patient needed abdominal surgery. From the CT scan, it was revealed that the patient had suffered internal hemorrhages. There was no facility of CT scan in Orbit Hospital and therefore, he was taken out of the hospital for CT scan of the neck, chest and abdomen as per his advise. The CT scan report was made available at 11:00 a.m. For each of these parts, separate CT scan was required and it required approximately one hour for CT scan of each part of the body. The CT scan center was situated at about 10-15 minutes driving distance from their hospital. Before 11:00 a.m., atleast for one and a half hour, the patient was out of the hospital for CT scan. He volunteered that it took one hour for carrying out CT scan of the entire body. At 08:00 a.m. itself, the gravity of the stab injury was informed to the relatives of the patient. At 12:00 p.m., he was suffering with heavy difficulties and his condition continued to be critical. He had to be kept on oxygen. From 12:00 p.m. onwards, the patient was unconscious till he was transferred to Asian Heart Hospital. He admitted that in case of neck injury, the patient may not be in a position to speak. The medical papers at Exhibit-75 show the serious condition of the patient right from his entry. At 10:00 a.m., there is mention of Dr. Vinod but prior to that, there is mention of Dr. Vinod Pal who had seen the patient. There is no reference to Dr. Vinod Jaiswal. The endorsement at 11:00 a.m. in the medical papers show that the patient’s relatives were explained the serious condition of the patient. After that, it was mentioned that it was a very high risk condition. In short, the medical papers show that Neeraj Singh was in critical condition and it was explained to his relatives.
17) PW15 – Dr. Rajesh Dere had conducted the Post Mortem examination. He mentioned that there were nine injuries. There were five injuries on the chest which were sutured. There was stab injury of size 2.[5] cm x 1 cm x 4 cm deep over anterior aspect of neck at level below laryngeal cartilage placed horizontally with clean cutting edges and directed upwards and backwards. There was linear abrasion on the right lumbar region and there were two incised wounds of the length 4 cm and 5 cm on the right forearm. On the internal examination, he noticed blood in plura cavity, puncture wound corresponding to the neck injury and corresponding internal damage because of the other injuries. The cause of death was haemorrhagic shock following multiple stab injuries. The Post Mortem notes show that the neck dissection revealed that there was haematoma in the muscle of neck corresponding to that stab injury to the neck. According to him, the knife and the broken bottle shown from the Muddemal articles could have caused those injuries. In the cross-examination, he admitted that there was puncture noticed on larynx and trachea. The depth of the injury was 4 cm.
18) The other corroborative pieces of evidence are in the nature of spot pancha, recovery pancha, Finger Print Expert and the Investigating Officer.
19) PW[4] – Ashok Singh was examined as a pancha for spot panchanama. He was also a pancha for recovery of clothes of the Accused No.2. He produced the spot panchanama on record at Exhibit – 42. According to him, PW[1] – Hiren had shown that spot. Significantly, the spot panchanama also mentions that the spot was shown by PW[1] – Hiren. The spot panchanama was conducted between 07:00 a.m. to 07:15 a.m. on 17/04/2012. Very importantly, the spot panchanama describes the entire incident with names of the Accused. Of course, this particular description in the spot panchanama of the incident is not admissible, but the significance lies in the fact that according to the prosecution case, PW[1] was present at the spot at 07:00 a.m. on 17/04/2012 and he had shown the spot to the police. Inspite of that, his statement was not recorded. In fact, the deposition of PW[1] shows that it was recorded in the evening on 17/04/2012. PW[4] was also a pancha for seizure of clothes and footwear of the deceased. On 22/04/2012, in his presence, the Accused No.3 – Ramchandra Yadav had shown the spot where his motorcycle was parked. It was seized. Then, the Accused No.3 took the pancha and the police officer to his house. This witness has further stated that he was waiting on the ground floor. The police and Accused No.3 climbed upto the Accused No.3’s house and came with his clothes. He therefore could not describe what had transpired in the Accused No.3’s house. That panchanama is produced on record at Exhibit – 44.
20) PW[5] – Rohan Dhurve was a pancha in whose presence the Accused No.1 produced his clothes from his house. That panchanama is produced on record at Exhibit – 52. In the cross-examination, he admitted that the door of Accused No.1’s house was open and there were other rooms on that floor and that anybody could have entered that house. He did not notice any blood stains on the clothes.
21) PW[6] – Hitesh Tandel was a pancha in whose presence the Accused No.2 - Roshan Thakur @ Chini had produced his clothes which he was allegedly wearing at the time of the incident. This panchanama was conducted on 22/04/2012. The motorcycle was also shown and it was seized. The clothes were produced from his room. The clothes as well as a knife was kept in a plastic bag under a showcase. The weapon was also seized. That panchanama was produced on record at Exhibit – 55. He could not depose as to whether anybody was present in the house. He admitted that anybody could have entered the house. He did not particularly look at the articles for presence of blood stains. The Article – the weapon in his house was a kitchen knife. That panchanama is produced on record at Exhibit – 54.
22) PW[7] – Santosh Bangera was a pancha in whose presence allegedly the Accused No.1 – Rahim had produced a broken glass bottle on 24/04/2012. That panchanama is produced on record at Exhibit – 59. The Acused No.1 took the panchas and the police near Santosh Bhuvan. He led them to the garbage lying in that lane in search for the broken bottle. According to him, the police took the bottle with the help of a handkerchief. It was a brown coloured bottle stained with blood. On 30/04/2012, he again attended the police station and on this occasion, in his presence, the Finger Print Expert lifted finger prints from that bottle. That panchanama is produced on record at Exhibit – 61. On 27/04/2012, in his presence, a Swift Car was seized. He admitted that the garbage was lying in an open place and anybody could have seen the bottle lying in the garbage. No seal was put on the bottle at the time of its seizure. The box was not in a sealed condition when the finger prints were lifted from the glass bottle. The panchanama itself mentions that the accused himself had taken out the glass bottle. The panchanama does not mention that the police picked up the glass bottle. It is specifically mentioned that the Accused No.1 took out the glass bottle from that garbage. In that case, the finger prints on that bottle loses all its significance.
23) PW16 – Anil Arabat was examined as the Finger Print Expert. He had lifted the finger prints on 30/04/2012 from that broken glass bottle in Nalasopara Police Station. He developed one chance print in presence of the I.O. On 28/06/2012, he received a finger print slip of the Accused No.1 – Rahim from Nalasopara Police Station. He compared the finger prints and according to him, the finger print of the left middle finger of the Accused No.1 – Rahim matched with the finger print on the bottle.
24) PW[9] – Jatin Patil was a pancha in whose presence the Accused No.3 – Ramchandra produced bamboos on 24/04/2012. That panchanama is produced on record at Exhibit – 67. The bamboos were produced in front of Hindustan Water Supply Shop from a dustbin but there was no mention of dustbin in the panchanama itself. He admitted that it was an open place and he could easily see the bamboos when they went near the garbage bin. That panchanama is produced on record at Exhibit – 68.
25) PW10 – Amol Ghag had taken photographs of the spot and of the Santro Car.
26) PW14 – API Dinesh Tayde was the Investigating Officer. He was attached to Nalasopara Police Station. He investigated the offence registered vide C.R.No.I-278/2012. It was transferred to Nalasopara Police Station from Kashimira Police Station under ‘0’ number. He deposed that by the time he received the investigation, it was dark. Therefore, though he visited the spot, he did not prepare the panchanama and one constable was deployed at the spot. He then went to the address of the injured who was by then shifted to Asian Heart Hospital. His friends were at his residence. PW14 took information from them about the incident. Next day morning, he went to the spot and conducted the spot panchanama. He went to the lane in front of that spot where the injured had sat on the verandah. It was house of one Keshav Hadale. However, he did not notice any stains of blood on that verandah. On inquiry with the residents, one Yamunabai told him that she had seen the blood and she had cleaned the verandah. He then mentioned that the spot was shown by PW[1]. The Accused No.1 – Rahim was arrested on 18/04/2012 in the evening. PW14 deposed about various recovery panchanamas. He produced the C.A. certificate on record. The Accused – Sandeep was still absconding. In the cross-examination, he admitted that by end of the day on 16/04/2012, he had come to know that there were eye witnesses to the incident. At 06:50 p.m. on 16/04/2012, he had gone through the FIR and at that time, he knew the names of PW[1], PW[2] and PW[3] who had seen the incident. He admitted that statement of PW1-Hiren was recorded on 17/04/2012. The statements of PW[2] – Piyush and PW[3] – Loyoid were recorded on 18/04/2012. He had not asked these witnesses as to why they had not given their statements earlier. He further deposed that he was aware that the Test Identification Parade was to be conducted when the accused were unknown and that he had sought permission from JMFC, Vasai on 05/07/2012 to conduct the Test Identification Parade of the accused and the permission was granted. The Test Identification Parade was arranged at Thane Central Jail on 13/07/2012 and he had given notice to PW[1], PW[2] and PW[3] on 12/07/2012 for attending the Test Identification Parade but he did not further explain as to why the Test Identification Parade was not held. He had not received any communication from these witnesses that they would be unable to attend the Test Identification Parade. He admitted that he could see from the statements and the dying declaration that there was material discrepancy in respect of the weapon of assault and that there was no reference to a beer bottle in the dying declaration. The rickshaw driver who had taken the deceased from the spot to the Alliance Hospital could not be found. According to him, his inquiry did not reveal that the three witnesses had their clothes smeared with blood while taking the deceased to the hospital. Those witnesses did not offer their clothes for seizure. He further stated that since there were no visible injuries on these witnesses, they were not referred for medical examination. He admitted that when the clothes of the accused were seized, he did not notice blood stains. He did not notice blood stains on the knife. He admitted that the recoveries were made from open places. He admitted that broken bottles are normally found in the garbage. There was no mention in the panchanama that the bottle was kept in the brown box. He then proved the omissions from the evidence of the eye witnesses PW[1], PW[2] and PW[3] which were referred to hereinabove while discussing their evidence.
27) The C.A. report was produced on record at Exhibit – 83 and the results show that clothes of the deceased had human blood of ‘B’ Group. However, the clothes of the accused show presence of human blood but the blood group was inconclusive. The knife, bamboos and the broken bottle show presence of human blood but the blood group was inconclusive. This is the entire evidence led by the prosecution.
28) Dr. Yug Chaudhary, learned Counsel for the Appellant – Rahim (Accused No.1) made the following submissions:-
(i) The evidence of the eye witnesses is totally unreliable. It is full of contradictions and omissions. Their evidence is contrary to the description of the incident mentioned in the dying declaration.
(ii) The statements of the eye witnesses are recorded much belatedly. PW1’s statement was recorded by the police in the evening on 17/04/2012 and the statements of the other two eye witnesses i.e., PW[2] and PW[3] were recorded on 18/04/2012. No explanation is offered for the same. Their conduct is unnatural.
(iii) According to the prosecution case, PW[1] was present at the spot on 17/04/2012 in the morning at 07:00 o’clock where he showed the spot of incident at the time of conducting the spot panchanama and yet, his statement was not recorded at that time. The police waited till the evening to record his statement. This clearly shows that they are shown as witnesses as an afterthought and they have concocted a story.
(iv) Their presence is nowhere mentioned in the admission record of either of the hospitals i.e., Alliance Hospital and Orbit Hospital.
(v) If they were knowing that their friend Neeraj
Singh’s health condition was critical, then they would not have left him in Orbit Hospital in the morning. They made no attempt whatsoever to help him after that in shifting Neeraj to Asian Heart Hospital or even asking after his health.
(vi) According to them, they had helped Neeraj Singh to be taken to Alliance Hospital first from the spot and at that time, they had supported him in the rickshaw. The evidence shows that their clothes were smeared with blood but they had not produced their clothes during the investigation and there is no corroboration to their evidence that they were present at the spot.
(vii) All of them have stated that they were assaulted forcefully with bamboo sticks but there is no medical evidence supporting this part of their evidence showing injuries suffered by them because of assault with bamboo sticks.
(viii) Curiously, they were called for Test Identification
Parade. If the witnesses knew the assailants and if they had even given their names in the police statements, then there was absolutely no reason as to why the police had arranged to conduct the Test Identification Parade. Even then, neither of these witnesses cared to remain present at Thane Central Jail.
(ix) The blood stained clothes of these witnesses were not seized.
(x) There is no independent corroboration to the evidence of these witnesses in respect of their presence at any of the spots. It was possible for the investigating agency to have produced the evidence of the employees of Prabhat Hotel or even the spot where the deceased had taken shelter after the assault but none of these witnesses was examined.
(xi) Very significantly, the prosecution has not examined the mother and cousin of the deceased who were present in the hospitals. The record shows that the deceased was admitted to Alliance Hospital and Orbit Hospital by his cousin – Sadho Singh. Therefore, he was an important witness who could have provided the link between the incident and the admission of the deceased in the hospital but he is not examined. No explanation is offered as to why these two witnesses were not examined.
(xii) The evidence of dying declaration is extremely doubtful. The medical evidence shows that the larynx and trachea of the victim were punctured and therefore, it was impossible for Neeraj to have uttered any word. The dying declaration runs into three pages. Dr. Chaudhary submitted that the reliability of a dying declaration given by a patient in a critical condition relies on the brevity of the dying declaration. In this case, the detailed version including the detailed address, two telephone numbers, background etc. belies the fact that the deceased himself could have given that dying declaration particularly when the medical evidence shows that he was in a critical condition and he lost consciousness within a couple of hours thereafter. Even the timing of recording of the dying declaration does not match. The name of the Doctor who had given the endorsements on the dying declaration, is not mentioned in the medical papers.
(xiii) The Police Head Constable who had recorded the dying declaration, had reached the hospital at 8 o’clock whereas the Doctor himself i.e., Dr. Vinod Jaiswal had reached the hospital subsequently.
(xiv) According to PHC – Hate, the recording of dying declaration took atleast 45 minutes whereas Dr. Jaiswal has stated that it was over within 15 minutes.
(xv) Though Dr. Jaiswal claims to be present at the time of recording of the evidence, he has not deposed as to what the deceased had told the police. He has not referred to his statement at all. He could not tell as to what were the questions put by PHC – Hate to this witness. As far as the recovery evidence is concerned, the evidence shows and it is even admitted by the witnesses and the Investigating Officer that the recoveries were either from open spaces accessible to all where the articles could be easily seen. They were not even concealed. The clothes of the Accused No.1 were taken from his house which was open and anybody could have entered that house. In any case, the C.A. reports are inconclusive in respect of the blood group of the blood found on these articles. Therefore, there is no connecting evidence of these articles with the incident. The Finger Print Expert’s opinion loses all its significance in the background of the fact that the panchanama mentions that the Accused No.1 himself had taken out the bottle from the open space. Therefore, it was but natural that his finger prints would appear on that bottle. The procedure of lifting the finger prints is not beyond doubt because the evidence of the expert witness and the Investigating Officer shows that the bottle was not properly sealed and it was not kept properly in a sealed box. In any case, the dying declaration makes no reference to any broken beer bottle.
29) Dr. Chaudhary, learned Counsel relied on the judgment of the Hon’ble Supreme Court in the case of Sohan and another v/s. State of Haryana and others with Rajinder and others v/s. State of Harayana[1] and in the case of State of Punjab v/s. Harbans Singh and another[2], in support of his contentions that absence of seizure of blood stained clothes of the witnesses in the facts of this case, operates against the prosecution case.
30) Shri. Pachpansingh Gusign, learned Counsel appearing for the Appellant (Accused No.2) adopted the arguments advanced by Dr. Chaudhary.
31) Shri. Sarthak Shetty, learned Counsel for the Appellant (Accused No.3) adopted the arguments of Dr. Chaudhary and added that there was discrepancy in the eye witnesses’ evidence as far as the role of the Accused No.3 is concerned. He submitted that the autorickshaw driver was not examined and it was not difficult to locate that particular rickshaw driver. The labels on the sticks did not mention the signature of the panchas. The recovery was made from the open space.
32) We also heard Mr. Anil Galgali, learned Counsel for the Intervenor and the learned APPs Shri. Naik and Ms. Mulekar opposing the submissions made by the learned Counsel for the Appellants. They submitted that the incident took place in three stages. The first one was outside Prabhat Hotel. The second one was at the spot where the Car was intercepted and the third one was when the deceased was assaulted and when he had run to a nearby lane. These three stages are consistently described by the eye witnesses and are also reflected in the dying declaration. The depositions of the eye witnesses coupled with the dying declaration, are consistent and barring a few minor contradictions which do not go to the root of the matter, all this evidence is consistent. It is supported by the recovery of weapons and the C.A. reports. The medical evidence shows the injuries suffered by the deceased and it corroborates the ocular version of the witnesses and also that of the dying declaration. There is supporting evidence of finger print found on the broken beer bottle. The omissions referred to by Dr. Chaudhary are minor in nature and they do not amount to contradiction in the evidence of these witnesses. The learned Judge has rightly considered all these aspects and has rightly recorded the conviction. The delay in recording the statements of the eye witnesses is not fatal to the prosecution. It was not necessary to have seized the clothes of the witnesses.
33) Learned counsel for the Intervenor submitted that though the larynx was punctured, it was possible for the deceased to have given his declaration by whispering without involving the larynx.
34) We have considered these submissions.
35) The main evidence in this case is that of the eye witnesses and the dying declaration. We have discussed this evidence in detail in the earlier paragraphs. As far as PW[1] is concerned, he is an important witness. He was present right from the beginning of the incident till the deceased was taken to the hospital. Therefore, his version is very important. According to the prosecution case, his name was disclosed in the dying declaration itself and therefore, the Investigating Officer was aware of PW1’s name on 16/04/2012 itself. The record shows that the spot was shown by this witness – PW[1] which is mentioned in the spot panchanama conducted at 07:00 a.m. on 17/04/2012. The entire evidence is described in the spot panchanama. That means, according to the prosecution case, PW[1] was available to the police on 17/04/2012 in the morning at 07:00 a.m. Therefore, that was the time when the Investigating Officer should have immediately recorded his statement because immediate disclosure from the available witness assumes greater significance. This was not done and his statement was recorded belatedly at about 05:00 p.m. in the evening. No explanation whatsoever is offered for this. The defence has brought out certain omissions of the fact which PW[1] had not mentioned in his police statement. We have referred to those omissions in the earlier part of this Judgment. He had not mentioned in his police statement that the accused – Ramchandra and Sandeep had started beating him with bamboo. He had not mentioned that the Accused No.1 – Rahim and Accused No.2 - Chini were holding a bottle and a knife and he had not specifically mentioned in his statement that they assaulted Neeraj with a knife like thing on his neck and abdomen. All these omissions are important because it is not clearly brought out by the prosecution as what exactly was the murder weapon. The dying declaration does not make any reference to any broken beer bottle. At some places, according to the witnesses, the murder weapon was a chopper and not knife. The dying declaration also refers to a chopper. All these are material discrepancies and contradictions.
36) PW2’s evidence also suffers from important omissions. His police statement did not mention that initially Neeraj was assaulted on his chest and thereafter, he was removed from his Car and then he was assaulted on his neck.
37) PW[3] accepted that his police statement does not mention that the accused were from his locality and therefore, he knew them. He could not explain as to why he did not go for the Test Identification Parade. He also accepted that Tulinj Police Chowky was five minutes walking distance from Alliance Hospital and he had gone there to collect his bike yet, he did not inform the police about this incident. This conduct is unnatural. The record of these hospitals do not mention anywhere that the patient was brought to the hospital by either of these witnesses. This is very significant. In this context, in the facts of this case, their evidence could have been corroborated by various factors. Importantly, the prosecution could have easily produced their blood stained clothes because according to PW[1] and PW[2], the clothes of all these witnesses were stained with blood. PW[3] had stated that he had not supported the deceased and therefore there was no blood on his clothes. This particular deposition is rather unbelievable. All the three eye witnesses were together and they had travelled together to take the deceased to the hospital. Therefore, it was not possible that there would be no blood stains on the clothes of PW[3]. In any case, the other two eye witnesses have admitted that the clothes of all of them were stained with blood but the clothes were not seized and there is no explanation offered. The blood stained clothes of these eye witnesses would have corroborated their presence at the time of the incident, atleast in the facts of the present case. Dr. Chaudhary relied on the judgments of Harbans Singh and Sohan and another as mentioned earlier. The relevant paragraph from Harbans Singh (supra) is paragraph 9 which reads thus:-
38) The relevant paragraph and observations in Sohan and another (supra) is paragraph 28 which reads thus:- “ We may add that the prosecution case entirely rested on the sole evidence of PW-7, who was not only interested being the cousin of the deceased and was inimical too to the accused in view of the civil litigation referred to above. It was unsafe to act on his evidence without any corroboration. Although there were material witnesses available to corroborate, their non-examination or withholding their evidence was a serious lacuna in the prosecution case. Nonexamination of another eye-witness, Sumer, whose name was mentioned in the FIR and who had witnessed the occurrence according to PW-7, was also fatal. PW-7 stated that he himself, his brother Dani Ram and his cousin Tara Chand went to the place of occurrence and lifted Daya Nand to his house and their clothes got bloodstained. The bloodstained clothes were neither produced nor seized. Failure to do so raises a serious doubt as to the version of PW-7. Dani Ram and Tara Chand were also not examined. PW-7 stated that immediately after the occurrence he ran towards his house; in front of his house Dani Ram and Tara Chand were sitting, he informed them and narrated about the incident and thereafter all three of them went to the place of occurrence and brought the deceased Daya Nand to his house. If only Dani Ram and Tara Chand were examined they would have corroborated the evidence of PW-7. This again shakes the prosecution case. The High Court disbelieved the recovery of both weapons and clothes In all cases recovery by itself may not be material. But in this case in the absence of corroboration to the evidence of PW-7, the recovery aspect assumed importance. The civil litigation was started in 1982; the suit was decreed in favour of Sohan, accused no. 1 in 1993; the appeal filed by the deceased and PW-7 was pending on the date of occurrence; there was no immediate provocation or cause for committing the offence on 11.2.1985. ” In the facts of the present case, this is an important lacunae in the prosecution case. In this particular case, since we do not find that the evidence of the eye witnesses is reliable, therefore, in particular in the facts of this case, this lacunae assumes importance.
39) The prosecution could have easily led evidence in respect of the customers or atleast the employees of Prabhat Hotel where the deceased and PW[1], PW[2] and PW[3] had taken dinner. This was important because the incident started from there as the Accused No.1 – Rahim had picked up a quarrel with the deceased outside Prabhat Hotel but the prosecution case is silent in that behalf. Similarly, nobody from the house where the deceased had taken shelter, was examined. No blood was found on the verandah of that house. The prosecution has also not examined the cousin of the deceased – Sadho Singh and his mother. They were important witnesses because the deceased was admitted to the hospital by Sadho Singh. He was the best person to have given his evidence in respect of the admission of the deceased to the hospital and the knowledge of the incident if he had gathered it from the eye witnesses.
40) The corroborative piece of evidence in respect of recovery of weapons and clothes also does not help the prosecution case, because as discussed earlier, the recoveries were from open and accessible places or from the houses which were accessible to others. In any case, there was no linking evidence because the blood group was not established. The finding of finger prints on the beer bottle has lost its significance because the panchanama itself mentions that the Accused No.1 had taken out the glass bottle from the garbage. This would mean that the Accused No.1 – Rahim was made to handle the bottle and therefore it was obvious that his finger prints would appear on that bottle. Thus, we find there is absolutely no corroborative evidence to support the version of the eye witnesses.
41) The only other important feature in this case is recording of the dying declaration. We have perused the dying declaration and we find that it was highly improbable that a dying man in this case, who was in critical condition, could have given such a detailed and lengthy dying declaration. The medical evidence as discussed earlier, showed that his larynx and trachea were punctured and the Doctors have admitted that in such a case, it is not possible for a patient to speak. Therefore, it is unbelievable that he could have given this dying declaration. There is a discrepancy between the evidence of PHC – Hate who had recorded the dying declaration and Dr. Jaiswal who had endorsed that the patient was in a position to give that dying declaration. The timings do not match. Dr. Vinod Jaiswal’s presence is nowhere mentioned in the medical papers. His endorsement was given after the dying declaration was recorded. Though he claims to have remained present throughout the recording of the dying declaration, he could not depose as to what was narrated by the deceased to the police. This throws doubt on the veracity of the recording of the dying declaration.
42) Dr. Sandip Patil has deposed that in the morning on 16/04/2012 at 07:30 a.m. itself, the patient was advised to be taken for CT scan and some significant period was necessary for conducting the CT scan. It was also a priority because he was to be operated urgently. Therefore, it is also difficult to believe that in between taking him for CT scan, the police would insist on recording the dying declaration and the Doctor would permit him. It is also on record that, the injured was taken for CT scan outside the Orbit Hospital and then he was brought back. This also adds to the discrepancy in the time.
43) All these factors show that it is not safe to hold that the dying declaration was properly recorded as per the version given by the deceased himself. Significantly, within a very short time, he was put on the ventilator and oxygen mask. He even had lost his consciousness. From then onwards, his health deteriorated to the point that he succumbed to his injuries.
44) Thus, we find that the evidence of the eye witnesses is extremely doubtful. The recording of dying declaration is even more doubtful. There is no corroborative piece of evidence supporting the direct evidence which was necessary in this particular case because of the poor quality of evidence of the eye witnesses. As a result, benefit of doubt must be given to the accused and they deserve to be acquitted. Hence, the following Order:- (a) The Criminal Appeal Nos.1009/2014, 1015/2014 and 1016/2014 are allowed. (b) The impugned Judgment and Order dated 17th November, 2014 passed by the learned Additional Sessions Judge, Vasai in Sessions Case No.66/2012 convicting and sentencing the Appellants, is set-aside.
(c) The Appellants are in custody. They shall be released forthwith, if not required in any other case.
(d) Before being released, the Appellants shall execute a P.R. Bond in the sum of Rs.25,000/- each for their appearance under Section 481 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, in case an Appeal is preferred.
45) With the disposal of the Appeals, all the companion Applications are also disposed of. (SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)