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2007 DIGILAW 935 (BOM)

Madhukar Ramsingh Alkari v. State of Maharashtra

2007-07-11

P.V.HARDAS, S.P.KUKDAY

body2007
JUDGMENT : ( Per S.P.Kukday, J.) 1. Appellant is convicted for having committed murder of his nephew Kamlakar and is sentenced to suffer imprisonment for life by IInd Ad-hoc Additional Sessions Judge, Jalgao. This order dated 1st April, 2005, is impugned in the present appeal. 2. Facts of the prosecution case lie in a narrow compass. Radhabai Ramsing Alkari ( Rajput) of village Shirsad has four sons Mangalsing ( P.W.2), Bhagwat ( P.W.1), Vitthal and Madhukar ( Appellant) and three daughters. The daughters are married and reside at their matrimonial house. Radhabai and her sons reside separately. Bhagwat had two sons Kamlakar aged 24 years and Rajendra aged 12 years. Wife of appellant secured a divorce and has left two young daughters Sonabai and Pooja with the appellant. The family has four bighas of ancestral land which was given to Pradeep Mahajan ( P.W.4) for cultivation on yearly rent of Rs.7000/-. Income from the field is equally shared by the mother and the sons. On the insistence of the appellant the land was subsequently partitioned. Each sharer got Twenty five gunthas of land in the partition. Appellant had given his land to Pradeep for cultivation on yearly rent of Rs.2100/-. He desired to sell the land but could not do so as other sharers opposed on the ground that he would require money in future for the marriage of his daughters. The appellant was thus angry with his brothers and was threatening them with dire consequences. 3. Field of Ambadas Kisan Alwal was taken for cultivation by Bhagwat on half share basis. On 11th March 2004 Kamlakar went to this field at about 4.00 to 5.00 p.m. as wheat crop was recently harvested from the field. On his way back appellant met him at about 5.00 p.m. outside the gate of the field of Bhagwan Shivdas Badgujar. Appellant asked him to tie bunch of raw bananas to his bicycle. After he finished the work and was still bending, appellant inflicted blow with sickle on the backside of his head. When he turned round, he found the second blow coming and blocked that blow with right hand, sustaining injury to right palm. After the assault the assailant left the place. Kamlakar met Bhura Pawari ( P.W.5) who was returning to Shirsad in his bullock cart by Deulwada road and climbed his bullock cart. When he turned round, he found the second blow coming and blocked that blow with right hand, sustaining injury to right palm. After the assault the assailant left the place. Kamlakar met Bhura Pawari ( P.W.5) who was returning to Shirsad in his bullock cart by Deulwada road and climbed his bullock cart. When Bhura asked him about injuries on his neck and palm, Kamlakar disclosed that his uncle Madhukar had inflicted those injuries. After some time Bhura saw Mangalsing going to the village in his cart and stopped him. Kamlakar got down from the cart of Bhura and climbed the cart of Mangalsing. Kamlakar also disclosed to his uncle Mangalsing of the assault by the appellant. Mangalsing took Kamlakar to his house where Kamlakar disclosed to his father Bhagwat that he was assaulted by uncle Madhukar and lost consciousness. Kamlakar was then taken to Sakali Rural Hospital. As his condition was serious, Kamlakar was referred to Civil Hospital, Jalgaon, but was taken to Neurology and Trauma Center of Dr.Jain at 9.00 p.m. Dr.Pankaj Rane ( P.W.7) who was on duty found that the deceased was unconscious and in serious condition. The deceased had two injuries, one on retro-auricular ( behind right ear) and the other on right palm. Both were incised injuries having clean cut margins. The doctor informed Zilla Peth Police Station where A.D. (Ex.40) was registered at zero number and Head Constable Sonawane was directed to record statement of the deceased. When the Head Constable approached him at the hospital, Dr.D.R.Sonawane made endorsement on memo ( Ex.30) that the patient is not in a position to make a statement. The patient succumbed to the injuries on 12th March 2004 at about 7.35 in the morning. After the death was reported, Officer from Zilla Peth Police Station held inquest ( Ex.14) on the dead body and sent it for the post mortem to the Civil Hospital. Dr.Bharat Sonawane performed the postmortem and prepared report (Ex.35) giving the cause of death as the head injury and intra-cerebral bleeding. 4. After the funeral Bhagwat lodged report of the incident with Sakhali Outpost of Yaval Police Station alleging that his brother Madhukar committed murder of his son Kamlakar as they opposed him for selling agricultural land allotted to his share. On the basis of this FIR offence under Section 302 was registered against the appellant by PSI Waman Choudhari ( P.W.9). After the funeral Bhagwat lodged report of the incident with Sakhali Outpost of Yaval Police Station alleging that his brother Madhukar committed murder of his son Kamlakar as they opposed him for selling agricultural land allotted to his share. On the basis of this FIR offence under Section 302 was registered against the appellant by PSI Waman Choudhari ( P.W.9). The investigating officer then visited the scene of the occurrence. Bicycle to which bunch of raw bananas was tied, banana leaves stained with blood and samples of soil were attached from the spot under Panchnama( Ex.14). Appellant was arrested on 13th. On the next day the appellant made a confessional statement ( Ex.24). Sickle and shirt stained with blood produced by the appellant from a pit dug under a tree in the field of Chudaman were attached under seizure Memo ( Ex.25). The articles were sent to Forensic Laboratory. Report of the Chemical Analyser ( Ex.42) disclosed that Sickle and shirt were stained with blood of ‘O’ group whereas human blood was found in the sample of the soil and on banana leaves. On completion of the investigation the appellant was charge sheeted. 5. At the trial the appellant pleaded false implication. According to the appellant his brothers are not giving money of his share nor are allowing him to live with them in the ancestral house. He is living by the side of the river on government land and his daughters are in the Remand Home as he does not have money for their education. His brothers have falsely implicated him in this case to usurp his share in ancestral property. 6. In support of its case, the prosecution examined nine witnesses. Before turning to the merits we may notice evidence of material witnesses. Bhura ( P.W.5) states that while he was coming to Shirsad at about 5.30 p.m. Kamlakar approached him in injured condition and sat in his cart. In response to his queries, Kamlakar told him that his uncle Madhukar assaulted him. When he came near the canal he saw Mangalsing going to the village in his cart and stopped him. Mangalsing ( P.W.2) stated that Kamlakar got down from the cart of Bhura, sat in his cart and disclosed to him that Madhukar had assaulted him. He brought Kamlakar to his house where Bhagwat was present. When he came near the canal he saw Mangalsing going to the village in his cart and stopped him. Mangalsing ( P.W.2) stated that Kamlakar got down from the cart of Bhura, sat in his cart and disclosed to him that Madhukar had assaulted him. He brought Kamlakar to his house where Bhagwat was present. Bhagwat ( P.W.1) has narrated family background and has referred to the unhappiness of the appellant as his brothers opposed him and did not allow him to sell land allotted to his share. Recounting the events of the fateful day, Bhagwat stated that Mangalsing brought Kamlakar to the house in injured condition. On his arrival Kamlakar disclosed to him that appellant asked him to tie raw bananas to the cycle and assaulted him with sickle while he was still bending. He turned round and blocked the second blow with right hand and snatched the sickle. Kamlakar brought that sickle to the house. Bhagwat then referred to the medical aid given to his son and filing of FIR after the funeral. The witnesses have repelled suggestion that Kamlakar was unconscious and had not made any statement to them. 7. Dr.Pankaj Rane ( P.W.7) stated that the deceased was brought to the hospital on 11th at about 9.00 p.m. in semi-conscious state. He informed the police and treated the patient. The patient had suffered (i) large CLW posterior to right ear about 8 x 2 cms x bone deep; (ii) incised wound over right palm 15 x 2 cms. and (iii) small abrasion over left nipple 2 x 2 cms; as mentioned in the injury certificate ( Ex.33) issued by him. The patient never regained consciousness and succumbed to the head injury which was sufficient to cause death, on 12th at about 7.35 in the morning. Intimation of the death was given by him to Zilla Peth Police and the certificates were issued on request of the investigating officer. During the cross-examination the doctor mentioned that if there is excessive bleeding due to the head injury the patient goes into coma and dies due to the blood loss. 8. Dr.Bharat ( P.W.8) performed autopsy. Intimation of the death was given by him to Zilla Peth Police and the certificates were issued on request of the investigating officer. During the cross-examination the doctor mentioned that if there is excessive bleeding due to the head injury the patient goes into coma and dies due to the blood loss. 8. Dr.Bharat ( P.W.8) performed autopsy. He found three external injuries ( i) Vertical stitched wound behind right ear 2" x 1/2"; (ii) lateral stitched wound on right palm, from index finger towards wrist, having length of 4" and (iii) Abrasion on right side of the fore head, 1/2" in length. The internal examination disclosed oval shapped fracture of skull at right mastoid region 2-1/2" x 1-1/2", the pieces were separated. There was semi-liquid in the stomach indicating that the last meal was taken 12 hours prior to the death as the digestion was complete. The autopsy surgeon prepared postmortem report (Ex.35) opining that the death is caused on account of head injury and due to intra-cerebral bleeding. To the query by the court, the witness replied that blood loss was not the reason for the coma. 9. On appreciation of the evidence the Sessions Judge found that the evidence of Bhagwat, Bhura and Mangalsing regarding the oral dying declaration is trustworthy. He further found that the witnesses have given satisfactory explanation for the delay in filing FIR. The medical evidence corroborates ocular testimony of the prosecution witnesses and establishes that the deceased died a homicidal death. In conformity with these findings, the trial Judge convicted the appellant of the offence punishable under section 302 of the Penal code and sentenced him as stated earlier. 10. Main plank of the argument of learned amicus curiae Miss Pratibha Patil is that the prosecution case is entirely based on the oral dying declaration made to the partisan witnesses. The injuries suffered by the deceased indicate that he went into the coma after the assault. The medical evidence falsifies ocular testimony of the related witnesses regarding the oral dying declaration. In any event the evidence of prosecution witnesses regarding the alleged dying declaration is not consistent and does not inspire confidence. Learned amicus curiae would argue that conviction can be based on the dying declaration only if it is wholly reliable. The medical evidence falsifies ocular testimony of the related witnesses regarding the oral dying declaration. In any event the evidence of prosecution witnesses regarding the alleged dying declaration is not consistent and does not inspire confidence. Learned amicus curiae would argue that conviction can be based on the dying declaration only if it is wholly reliable. For this proposition reliance is placed on the decision of the Apex Court in P.Mani V. State of Tamil 161) Nadu ( (2006) 3 SCC 161 ). 11. Learned A.P.P. Shri P.B.Varale supported the order of conviction and sentence passed by the trial Judge on the premise that the evidence of the prosecution witnesses is cogent and consistent. Shri Varale submits that the oral dying declaration to the witnesses is made immediately after the occurrence and deserves credence. 12. Undisputedly, the prosecution case is entirely based on the dying declaration. Learned amicus curiae Miss Pratibha Patil has rightly argued that conviction can be based on the sole evidence of the dying declaration if it inspires confidence and is proved to be wholly truthful. Dying declaration is made admissible in evidence by Section 32 by way of an exception to the general rule embodied in section 60 of the Evidence Act that the evidence of a fact in issue must be direct. Legal maxim nemo moriturus praesumitur mentire (a man will not meet his Maker with a lie in his mouth) explains why such a statement is regarded as sacrosanct. The solemn moment at which the statement is made lends authenticity of oath to the dying declaration. However, it has to be kept in mind that the statement is made behind the back of the accused and cannot be tested by the cross-examination. The Courts are thus duty bound to carefully scrutinize the attending circumstances while evaluating intrinsic worth of the dying declaration. If the Court is satisfied that the dying declaration is un-blemish and not influenced by tutoring, prompting or vengeance, there can be no impediment in founding conviction on the basis of the dying declaration even in the absence of corroboration. However, if there are circumstances which create suspicion about the authenticity of the statement the benefit must go to the accused. The principles governing the topic are enunciated in Muthu Kutty 11 v. State, ((2005) 9 SCC 11). In para 14 of the report, at page 120, Their Lordships observed: "14. However, if there are circumstances which create suspicion about the authenticity of the statement the benefit must go to the accused. The principles governing the topic are enunciated in Muthu Kutty 11 v. State, ((2005) 9 SCC 11). In para 14 of the report, at page 120, Their Lordships observed: "14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence." 13. In P.Mani v. State of T.N., ( (2006) 3 161 SCC 161), the Apex Court observed in para 14 of the report: "14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them." 14. The oral dying declaration stands on a different footing. If the prosecution relies on the oral dying declaration, it must be shown that the declarant was physically fit to make a statement. It must further be shown that exact words of the deceased are reproduced and the statement does not suffer from any infirmity. The principles governing appreciation of the oral dying declaration are adverted to in Darshandevi v. State of Punjab ( 1995 Supp. 4 SCC 126 126). It must further be shown that exact words of the deceased are reproduced and the statement does not suffer from any infirmity. The principles governing appreciation of the oral dying declaration are adverted to in Darshandevi v. State of Punjab ( 1995 Supp. 4 SCC 126 126). In para 10 of the report it is observed. "10. There is variance in the statements of the two witnesses with regard to the exact words allegedly used by the deceased. According to PW 2, the deceased had stated that the appellant had sprinkled kerosene on him when he was lying asleep and had burnt him, while Lachhmi Devi, PW 1 did not attribute any such statement to the deceased. PW 1 reiterated in her cross examination "all that Madan Lal told me was that he had been burnt by Darshana Devi by sprinkling kerosene". Even though an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact words of the declaration in this case detract materially from the value of the oral dying declaration." 15. In the light of the above principles, the acceptability of the alleged oral dying declarations in the instant case has to be considered. Learned amicus curiae Miss Patil has rightly pointed out that there is variance between the version of the dying declaration reproduced by Bhura, Mangalsing and Bhagwat. Bhura to whom first disclosure is made is apparently a chance witness. He mentions that the deceased told him that Madhu Kaka inflicted the injuries to him. Mangalsing mentions that injuries of the deceased were bleeding and his body was covered with blood. According to him, the deceased disclosed that Madhu Kaka inflicted injuries by sickle from the back side and that he obstructed the second blow of the sickle with right palm; whereas Bhagwat further elaborates mentioning that the deceased disclosed that on the road leading to the field appellant asked him to tie bunch of raw bananas to his bicycle. According to him, the deceased disclosed that Madhu Kaka inflicted injuries by sickle from the back side and that he obstructed the second blow of the sickle with right palm; whereas Bhagwat further elaborates mentioning that the deceased disclosed that on the road leading to the field appellant asked him to tie bunch of raw bananas to his bicycle. After he tied the bunch and was bending forward, the appellant inflicted a blow with sickle on the backside of the head, he obstructed the second blow with his right palm and snatched the sickle and brought it to the house. It is apparent that each witness has elaborated the alleged disclosure by the deceased. The awareness of the witnesses regarding the precarious condition of the deceased is reflected in the statement of Bhagwat that immediately after the disclosure the deceased lost consciousness. Medical evidence of Dr.Pankaj of the Trauma Center and autopsy surgeon Dr.Sonavane shows that the deceased had suffered bleeding injuries on the head. There was a large CLW behind right ear which had resulted in causing oval shaped fracture of the skull; tearing memberane; rupturing brain tissues at the fractured site and at the base of the brain. The deceased was throughout unconscious and succumbed to the injuries while he was in coma. The fact that the skull was fractured, membrane of the brain was torn and that the death is caused on account of the head injury coupled with intra cerebral bleeding would show that the deceased must have lost consciousness after sustaining the injuries, in this background it is difficult to believe that the deceased could move about on his own and make a statement to Bhura, Mangalsing and Bhagwat. The fact that each of them has made addition to the alleged statement made by the deceased further create doubt regarding the genuineness of the statement. Considering the nature of the injuries sustained by the deceased and the fact that he was in coma till his death we have no hesitation whatsoever to sustain contention of learned amicus curiae Miss Patil that the deceased could not have made any statement and that no reliance can be placed on the testimony of the partisan witnesses regarding the alleged dying declaration. Learned trial Judge committed an error in appreciating the significance of the reply of Dr.Sonawane that the coma was not induced by the bleeding. Learned trial Judge committed an error in appreciating the significance of the reply of Dr.Sonawane that the coma was not induced by the bleeding. What was suggested was that the injury to the brain was responsible for coma and not the bleeding. The evidence of Bhagwat, that the deceased had brought sickle to the house discredits evidence regarding the discovery of the weapon. That apart, the discovery of weapon and the shirt loses its value as the clothes of the deceased were not attached and his blood group is not ascertained. The motive for the assault on the deceased by the appellant tried to be suggested by the father of the deceased is also not satisfactory. It is alleged that bunch of banana was tied to the bicycle of the appellant, if that is so then there is no explanation why the appellant left the bicycle at the scene of the occurrence. No evidence is placed on record to establish the bicycle found at the scene of occurrence belonged to the appellant or that he borrowed or rented it from someone. All these infirmities in the prosecution evidence create suspicion regarding credibility of the evidence brought on record. The evidence on record is insufficient to forge chain of circumstances excluding possibility of the innocence of the appellant. Considering the totality of the evidence, in our considered opinion the trial Judge has committed an error in placing implicit reliance on the dying declaration of the deceased and convicting the appellant on the basis of unreliable evidence of the partisan and chance witnesses. In this view of the matter, we cannot uphold the order of conviction and sentence passed by the trial Judge. . The appeal is thus allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to the appellant. Since the appellant is in jail, he be set free forthwith, if not wanted in any other case. . Fees payable to learned Counsel for the appellant is quantified at Rs.5,000/- ( Rupees five thousand).