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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.708 OF 2002
THE STATE OF MAHARASHTRA )...APPELLANT
Age 42 years, Resident of Lower Lane, )
House No. 3604 (b), Ratnagiri. )...RESPONDENT
Mr.H.J.Dedhia, APP for the Appellant – State.
Mr.Rakesh Bhatkar, Advocate for the Respondent.
JUDGMENT
1 This appeal is filed by the State challenging the judgment and order of acquittal dated 13th July 2001 passed in Sessions Case No.52 of 2000 by the learned Sessions Judge, Ratnagiri, for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC). avk 1/25
2 It is the case of prosecution that one Anant Tukaram Bhise (since deceased) was neighbour of informant. On 15th December 1999, at about 8.00 a.m., the informant as usual had been to the house of deceased. The deceased, his mother Laxmibai Bhise (PW[6]) and one Dhondu Pangale were there. They were chitchatting. The accused also resides in the neighbourhood and was in a habit of quarreling with his wife and therefore, they all used to persuade him.
3 The prosecution alleges that because of the said persuasion and keeping in mind grudge, on 15th December 1999, at about 12 p.m., the accused armed with a knife (suri) came from his house abusing and threatening and gave a blow of knife on left side of the abdomen of the deceased, as a result of which, it started bleeding. The deceased was then removed to Civil Hospital by the informant and informant’s son viz. Rajesh for treatment.
4 Later on, the informant lodged a report with Police Station Ratnagiri on the basis of which Crime No.176 of 1999 avk 2/25 under Section 324, 504, 506 of the IPC came to be registered against the accused. However, it appears that as during the course of treatment the deceased succumbed to the injuries, the accused came to be charged with Section 302 of the IPC.
5 It appears from the record that PW12 Police Head Constable Suresh Krishna Bhagwat recorded the complaint of the informant and drew Spot Panchnama. PW13 Assistant Sub- Inspector Vilas Sakharam More seized clothes of the deceased and also recovered a knife at the instance of accused. PW15 Police Inspector Prakash Vitthal Wani collected the Chemical Analyzer’s Report and later on after completion of investigation, Assistant Police Inspector Dalvi forwarded the charge-sheet against the accused.
6 In order to prove the charge, the prosecution examined as many as fifteen witnesses and exhibited number of documents. The respondent-accused was questioned under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) avk 3/25 about the incriminating evidence and circumstances and he denied all of them as false and further that a false case is filed against him.
7 Mr.Dedhia, learned APP for the State, assailing the impugned judgment and order of acquittal submitted that the learned Trial Judge failed to appreciate the evidence of prosecution witnesses in proper perspective. The learned Trial Judge failed to appreciate the dying declaration recorded by the Special Judicial Magistrate (PW[8]) and wrongly held that the same is surrounded by suspicious circumstances. Apart from the oral evidence and as also the dying declaration, there is evidence of recovery of weapon at the instance of the accused which was also not taken into consideration by the learned Trial Judge. If the whole evidence adduced by the prosecution is read in proper perspective, then there is no scope to the conclusion that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. For all these reasons, the appeal deserves to be allowed, argued learned APP. avk 4/25
8 Mr.Bhatkar, the learned counsel for respondentaccused, on the other hand, forcefully opposed the submissions advanced by the learned APP and took us through the oral testimonies of the material witnesses and pointed out how they are inconsistent apart from being not reliable. The learned counsel also assailed the truthfulness of the dying declaration allegedly recorded by the PW[8] Special Judicial Magistrate and pointed out the infirmities appearing therein. In short, the learned counsel supported the impugned judgment and order of acquittal by contending that there being no merit in the appeal, the same is liable to be dismissed.
9 We have carefully gone through the record of the prosecution and more particularly the testimonies of material witnesses with the help of learned APP and learned counsel for the respondent-accused.
10 After having scanned the whole record, we gather that there are two set of evidences on record. One, in the form of oral avk 5/25 testimonies of the relatives of the deceased, who allegedly were present at the time of incident. The another set of evidence is in the form of dying declaration recorded by PW[8] Special Judicial Magistrate.
11 Before we look into both the set of evidences, we would like to note from the record whether the death of the deceased was homicidal or otherwise. 12 PW10 Dr.Sudesh Kallapa Chougule states in his evidence (Exh. 29) that on 15th December 1999 he was attached to Civil Hospital, Ratnagiri as a Medical Officer. The deceased was brought by neighbour Shivaji Gopinath Agre. He examined the deceased at about 12.20 p.m. and found stabbed wound over left mid-chest 6 space 3 x ¼ cm into pleura deep. Surgical emphysema was present. It is his further evidence that injury was grievous and then accordingly he issued Medical Certificate at Exh. 30. avk 6/25
13 Then there is evidence of Dr.Shivmurthy Khandalkar, Exh. 44. It is his evidence that at the relevant time he was Resident Medical Officer (R.M.O.), Civil Hospital, Ratnagiri. The deceased was brought in the hospital and was admitted at around
12.20 p.m. He examined him at 1.00 p.m. The deceased himself disclosed to him that he was stabbed by his cousin Pradeep Bhise. On examination, he found a stab wound 6th intercostal space on left side of chest. According to him the injury was sufficient to cause death in the ordinary course of nature.
14 It is his further evidence that as there was bleeding in the chest (haemothorax), operation was necessary and the same was done under the supervision of the Civil Surgeon of which he was also one of the operating surgeons. During operation, he found internal injuries namely left lung tear and tear of the pericardium of the heart. He then proved the original case papers at Exh. 45. avk 7/25
15 Lastly, there is evidence of PW[9] Dr.Mahesh Sadashiv Velankar (Exh. 27) who performed an autopsy over the dead body of the deceased. His evidence shows that while performing postmortem on the dead body of the deceased, he noted following external injuries:
His evidence then shows that during internal examination he found following injuries: “1 Palpable fracture left 7th rib 2 Pleura ruptured beneath stab injury, wound in 6th intercostal space
3 Left bronchi stumped” avk 8/25 According to him, his left lung was removed because it was bleeding as a result of injury. In his opinion, the cause of death was pneumonitis due to post operative pneumonectomy of left lung (it means that there was inflammation to the right lung because of removal of his left lung by operation).
16 During the course of recording of his evidence, this witness was shown the knife i.e. weapon of offence (Article 1) and he opined that external injury no.1 was possible with it and was sufficient to cause death in ordinary course of nature. He then proved the postmortem report at Exh. 28.
17 The cumulative effect of the evidence of all the above noted Medical Officers is that the injury no.1 was not only grievous but was sufficient in the ordinary course of nature to cause death. Secondly, the blow of the assault was so forceful that it had caused injury to the left lung and it was required to be removed as it was bleeding as a result of the injury and that led to pneumonitis due to post operative pneumonectomy of left lung. avk 9/25 The cross-examinations of all these material witnesses do not, in any manner, diminish the findings of these Medical Officers as to the cause of death. Having regard to the nature of injury, looking to the complications and as also cause of death as opined by PW[9] Medical Officer, we hold that the deceased died a homicidal death.
18 This takes us to ocular testimony of the prosecution witnesses viz. PW[1], PW[4], PW[5] and PW[6]. 19 PW[1] Dhondu Shankar Bendre – informant, states in his evidence (Exh. 7) that the deceased was his brother-in-law and was his neighbour. He had been to the house of deceased. He, the deceased, his mother Laxmibai (PW[6]) and one Pangale were talking in the courtyard. It was about 12 noon. The accused came near the deceased and was holding a knife in his hand. The accused then delivered its blow on the stomach of the deceased. The deceased shouted and fell down on the ground. On hearing the shouts of the deceased, his wife Jayashree (PW[5]), his daughter Vandana and son Rajendra (PW[4]) came out of the avk 10/25 house. Many people also gathered in the courtyard. They took the deceased to Civil Hospital, Ratnagiri, while he went to Ratnagiri Police Station and gave report about the incident. He then proved his report at Exh. 8.
20 The informant, needless to state, is very closely related to the deceased, in as much as, as per his cross-examination his wife Sushma is younger sister of the deceased. It also appears from his cross-examination that there was some quarrel between the deceased and accused on account of partition of the house. This shows that the relations between the deceased and accused were strained. Be that as it may, we revert back to the examination-in-chief of the informant.
21 The presence of this witness needs to be questioned on three counts. Firstly, if the First Information Report (FIR) is read carefully, it appears that on 15th December 1999 at about 8 a.m. this witness had been to the house of deceased for chitchatting and the incident in question took place at about 12 p.m. whereas avk 11/25 the evidence gives a semblance that he had been to the house of the deceased at or around the time of the incident i.e. 12 noon and then the incident took place. Secondly, the FIR shows that after the incident, it was he and son of the deceased viz. Rajendra Bhise (PW[4]) who took the deceased to Civil Hospital for treatment. His evidence, on the contrary, shows that the people who gathered after the incident, took the deceased to Civil Hospital, Ratnagiri. Thirdly, it appears from this crossexamination that the City Police Station is about one kilometer away from the spot. If his evidence is to be believed, this witness immediately after the incident had left for police station to report the matter. However, his cross-examination shows that he went to the police station by rickshaw and the time was about 2 p.m. It is not made clear as to how it took so long to reach the police station. It means till 2 p.m. no report had been lodged by this witness and this becomes clear from his further cross-examination wherein he stated that at the Civil Hospital, they all decided to make complaint against the accused. Incidentally, it may be noted from the record that the FIR came to be recorded at about 4.15 avk 12/25 p.m. whereas the incident in question had taken place around 12 p.m. Absolutely there is no explanation as to the delay in lodging the FIR. This is an aspect which definitely will have a bearing on the outcome of the prosecution case.
22 The next witness is PW[4] Rajesh Anant Bhise – son of the deceased. He states in his evidence (Exh. 16) that on 15th December 1999 he was present in the house. At about 11.30 a.m. or 12 noon he heard shouts of his father and therefore came out of the house. His father was lying in the pool of blood. He saw the accused running away with a knife in his hand.
23 It is very clear from the evidence of this witness that it is only after hearing the shouts of the father that he came out of the house only to see his father lying in a pool of blood. What is relevant from his evidence is that he had also seen the accused running away with a knife in his hand. Thus, evidence of this witness clearly indicates the presence of accused after the incident and that too fleeing from the spot with a knife in his hand. avk 13/25 However, this piece of evidence i.e. the fleeing of accused from the spot with a knife in his hand has come in the evidence by way of omission. Since this fact was missing from his statement and as he was confronted in the cross-examination as to such omission, he expressed ignorance whether he had stated so before the police during the course of recording of his statement on 15th December
1999. But, PW12 Investigating Officer has duly proved this omission in his cross-examination at paragraph 10 by stating that this witness had not stated before him that he had seen the accused running away with a knife in his hand.
24 In view of above, the evidence of this witness to the effect that he had seen the accused running away armed with a knife in his hand will have to be excluded from consideration. All that his evidence helps now is that he had only seen the deceased lying in a pool of blood. 25 PW[5] Jayashree Anant Bhise – wife of the deceased states in her evidence (Exh. 17) that on 15th December 1999, at avk 14/25 about 12 noon, her husband was sitting on a stonewall situated in the courtyard. Her mother-in-law Laxmibai (PW[6]) and Dhondu Shankar Bendre i.e. PW[1] informant were speaking with her husband. PW[1] Dhondu was also talking with her husband. She was inside the house along with her son Rajesh (PW[4]) and daughter Vandana. It is her further evidence that the accused was giving abuses to her husband. She heard shouting of her husband and others. Therefore she came out running and saw her husband lying in a pool of blood. She also saw the accused running away. There was injury on the left side of the stomach of her husband.
26 Again, evidence of this witness is not in consonance with the FIR in as much as it appears from her evidence that PW[1] informant, her mother-in-law Laxmibai (PW[6]), Dhondu Nathuram Pangale and the deceased were chitchatting around 12 p.m. which is not the case made out in the FIR. FIR shows that they all were chitchatting around 8 a.m. on 15th December 1999. Even PW[4] Rajesh, her son, does not say so in his examination-in-chief. This is one aspect of her evidence. avk 15/25
27 We further note from her evidence that at the relevant time she was inside the house like her son Rajesh (PW[4]). We disturbingly note here that major part of her evidence has come on record by way of omission. Her evidence showing that the accused was giving abuses to her husband, that she heard shouts of others, that she saw her husband lying in a pool of blood, that she saw the accused running away and finally that she noted injury on the left side of the abdomen of her husband has all come by way of omissions. When confronted in the cross-examination as to missing of all these important facts in her statement, she insisted on having said so before the Investigating Officer. But PW[2] Investigating Officer in his cross-examination at paragraph 9 has proved all these omissions by stating that all these material facts, which are noted by us, were never told by this witness during the course of recording of her statement. Therefore, needless to state, the evidence of this witness is not worth consideration. avk 16/25 28 PW[6] Laxmibai Tukaram Bhise – mother of the deceased states in her evidence (Exh. 18) that on 15th December 1999, at about 10 a.m. or 11 a.m., she was sitting in the courtyard. The deceased was sitting on a stonewall. Dhondu (PW[1]) informant was also sitting in the courtyard along with Dhondu Pangale. They all were chitchatting.
29 Her further evidence is that Pradeep Bhise i.e. the accused came from behind and delivered a knife blow on left side of stomach of the deceased and therefore he fell down from the wall. Therefore, she shouted and on hearing her shouts, her daughter-in-law Jayashree (PW[5]) and son Rajesh (PW[4]) came running out of the house.
30 Like PW[1] and PW[5], the evidence of this witness also shows that they were all chitchatting around 11 a.m. which is not at all the case made out in the FIR and not supported by PW[4] son. What is striking feature of evidence of this witness is that he had seen the accused giving a blow of knife on the left side of the abdomen of the deceased and therefore she raised commotion and avk 17/25 on hearing those shouts, her daughter-in-law Jayashree (PW[5]) and son Rajesh (PW[4]) came running out of the house. Interestingly, it is PW[5] wife who claims that after hearing the shouts of her husband, she came out of the house only to see her husband lying in a pool of blood. She has nowhere deposed that it was the shouts of her mother-in-law which made her to run out of the house.
31 Apart from above, what is really disturbing is that though the incident took place on 15th December 1999 and as is clear from her cross-examination that the police had also been to her house on the same day, still her statement came to be recorded on 20th December 1999 i.e. on the 6th day after the incident. There is no explanation from the side of prosecution why and under what circumstances the statement of this witness came to be recorded so belatedly. Ganesh Bhavan Patel vs. State of Maharashtra[1] is an authority for the proposition that delay in recording of statement of prosecution witnesses under Section 161 of the Cr.P.C., although these witnesses were or could be available avk 18/25 for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. This being so, we are not prepared to take her testimony on its face value and distance ourselves.
32 Having cleared the lackluster ocular testimony of the above noted witnesses, we are of the considered opinion that we are not comfortable and convinced with the same and therefore we do not want to place any sort of reliance upon them.
33 Now time to go through the evidence relating to dying declaration allegedly given by the deceased to PW[8] Special Judicial Magistrate. 34 PW[8] Mohan Vishwanath Athavale states in his evidence (Exh. 23) that at the relevant time he was working as Special Judicial Magistrate and had authority to record dying declaration. On 15th December 1999, after his services were requisitioned, he visited the Civil Hospital, Ratnagiri and made an enquiry from the concerned Medical Officer whether the patient avk 19/25 was conscious or not. Doctor examined the patient and found him fit to make statement and also accordingly certified. It is his further evidence that he accordingly recorded the statement of the deceased and also proved his thumb impression of left hand and the said dying declaration at Exh. 24.
35 In Sampat Babso Kale and Another vs. State of Maharashtra[2] the Hon'ble Apex Court has held that no doubt a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration. We need not refer to the entire law on the point of dying declaration but it would be apposite to refer to the judgment of the Hon'ble Apex Court in Sham Kankaria vs. State of Maharashtra[3] wherein it is held as follows: “Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is 2 (2019) 4 Supreme Court Cases 739 avk 20/25 essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence………….”
36 In the present case we note from the evidence of PW[8] and as also from the dying declaration itself that the same was recorded in between 2.15 p.m. to 2.40 p.m. The evidence of PW[8] shows that he had satisfied from the concerned Medical Officer that not only the patient was conscious but was also in a fit condition to give his statement and also the concerned Medical avk 21/25 Officer gave certificate to that effect. But if the evidence of none other than the son of the deceased viz. PW[4] Rajesh and wife of the deceased (PW[5] Jayashree) is seen, then firstly we find from the cross-examination of PW[4] Rajesh that his father was unconscious when he was under treatment till evening and was taken to Intensive Care Unit on a stretcher and nobody was allowed to meet his father. It is apparent from his crossexamination that till evening he was very much present in the hospital and his father was unconscious. If nobody was allowed to enter into the Intensive Care Unit then questionably the dying declaration filed on record could not have been recorded in between 2.15 p.m. to 2.40 p.m. on 15th December 1999.
37 Although PW[5] wife on her part denied in her crossexamination that her husband was not unconscious during the treatment and her statement (portion marked “A”) showing that her husband was unconscious, according to her, was wrongly recorded by the Investigating Officer, but then again PW12 Investigating Officer in his cross-examination at paragraph 9 avk 22/25 specifically stated and proved that the portion marked “A” in the statement of this witness showing that her husband was unconscious was correctly recorded as per her say and therefore that portion came to be exhibited at Exh. 38. Therefore, what emerges clearly from the evidence of son and wife of the deceased is that the deceased was unconscious at the relevant time.
38 Even assuming for the sake of argument that both the abovestated witnesses have incorrectly deposed about the consciousness or unconsciousness of the deceased, then unfortunately, the prosecution has not led clear and cogent evidence in that regard and rather there is failure on its part, in as much as the concerned doctor who certified that the deceased was in a fit state of mind to give statement is not examined by the prosecution for the reasons best known to it.
39 One more reason. The said dying declaration purportedly shows that it was thumb impressioned by by the deceased. Under what circumstances the thumb impression was taken and not the signature of the deceased is also not explained avk 23/25 by the prosecution. It is also to be observed from the said dying declaration and which is rightly observed by the learned Trial Judge that the last three lines appear to have been inserted after thumb impression was purportedly taken. To say that the dying declaration in question is surrounded with suspicious circumstances would not be far fetched. In such circumstances and the fact that no evidence is forthcoming to our satisfaction that the deceased was in a fit state of mind, we are not prepared to accept the dying declaration in question. Therefore, the same goes away.
40 We have also noted from the evidence of PW14 Medical Officer that the deceased had also told him that he was stabbed by his cousin Pradeep Bhise (accused). Interestingly, case papers nowhere clearly spell out that the deceased had specifically told this witness that he was assaulted or stabbed by the accused. This being so, we also do not find merit in this piece of evidence and consequently reject it. avk 24/25
41 This brings us to the remaining evidence on record. The prosecution has also placed reliance on recoveries at the instance of respondent-accused and as also reports issued by Chemical Analyzer. However, in view of several loopholes as noted hereinabove and the failure of main circumstances finding its way to connect respondent-accused cogently and conveniently with the crime, the recoveries and Chemical Analyzer’s Reports lose their worth and force.
42 On perusal of the entire evidence we are of the considered view that the learned Trial Judge was right in holding that the prosecution has failed to prove its case beyond reasonable doubt. The finding of the learned Trial Judge could not be said to be perverse. It was based on proper appreciation of evidence.
43 For the aforesaid reasons, we find no merit in the appeal and accordingly dismiss the appeal. (V. G. BISHT, J.) (PRASANNA B. VARALE, J.) avk 25/25 Arti V.