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2010 DIGILAW 1233 (BOM)

Gulshanbi Ayubsha v. State of Maharashtra

2010-08-26

A.H.JOSHI, PRASANNA B.VARALE

body2010
Judgment : A.H. Joshi, J. The appellant and other four accused persons were charged for offence punishable under Section 302 read with Section 34 of Indian Penal Code, for killing one Rijwanabee on 2nd February, 2003 at about 4-00 p.m. at Gawalipura, Washim, in furtherance of common intention to intentionally or knowingly cause her death. 2. The learned Sessions Judge convicted Accused Nos.1 and 2 for offence punishable under Section 302 read with Section 34 of Indian Penal Code, and sentenced each of them to undergo Rigorous Imprisonment for life and to pay a fine of Rs.500/-, in default thereof, Simple Imprisonment for one month, and acquitted the rest. 3. Criminal Appeal No.423 of 2004 filed by Accused No.2 - Akilabi has been decided, and she has not been sentenced, giving the benefit of her being a juvenile offender on the date of commission of offence. 4. Heard learned Adv. Mr. Anil Mardikar for the appellant and learned APP Mr. V.A. Thakre for the respondent. 5. Prosecution had relied upon two eye-witnesses - PW 3 -Rabiyabee Mohamadsha (Exh.65) (pages 40-41) and PW 4 - Mumtazha Mohamadsha (Exh.66) (Pages 42-43). Both these witnesses have turned hostile. 6. Case totally rests upon Dying Declaration. 7. There are two Dying Declarations on record. Dying Declaration (Exh.71) is recorded by Executive Magistrate on 2nd February, 2003. Another Dying Declaration (Exh.86) is recorded by Police Sub-Inspector on 3rd February, 2003. 8. The Dying Declaration (Exh.86) does not bear the certificate of a doctor as to consciousness and fit state of mind of the deceased at the time of making the Dying Declaration. 9. Dying Declaration (Exh.86) is proved by the Investigating Officer - PW 8 - Baburao Chavan. He has narrated in paragraph No.4 of his Examination-in-Chief as to what Rizwanbee told. This statement does not disclose that this witness had ascertained about the fitness of Rizwanbee's mind and health to make the statement. He admits that he did not ask the doctor to opine as to the condition of the patient to give a statement. 10. The Dying Declaration recorded by the Magistrate is at Exh.71 which is proved by him through his testimony at Exh.69 at pages 53 to 55 of the paper-book. 11. He admits that he did not ask the doctor to opine as to the condition of the patient to give a statement. 10. The Dying Declaration recorded by the Magistrate is at Exh.71 which is proved by him through his testimony at Exh.69 at pages 53 to 55 of the paper-book. 11. It is seen from the Dying Declaration (Exh.71) that the Medical Certificate before recording statement and at the bottom of Dying Declaration is as follows:- Before recording the Dying Declaration :- "Certificate :- Patient is conscious of the beginning of giving declaration." Sd/- Ritu, Dr. Ritu Tiwari, 1. 07.55 p.m. Date : 2-2-03 After recording the Dying Declaration :- "Patient was conscious during giving of dying declaration." Sd/- Ritu Tiwari, 2. 8. p.m. Dr. Ritu Tawari." (Quoted from page Nos.57 and 59 of the appeal paper-book. Underlining is done to highlight important and relevant sentences). 12. In relation to Dying Declaration (Exh.86) recorded by the Police Sub-Inspector, no Medical Certificate as to fitness is incorporated. The Police Sub-Inspector, who has recorded this Dying Declaration, did not record in Dying Declaration about fit state of mind of Rizwanbee. He has also failed to prove in his evidence about said fact. 13. The order of conviction is challenged in present appeal urging the points, namely:- (a) Present is a case where conviction is based solely on Dying Declaration. (b) While the conviction is ordered solely on Dying Declaration because it is not free from doubts, it cannot be relied upon in absence of corroboration, and in present case, the Dying Declaration is not corroborated by other evidence. (c) The Medical Certificate was not obtained by Police Sub-Inspector who has recorded the Dying Declaration. (d) Though the Magistrate has secured the Medical Certificate, it is silent on the point of fit state of mind of the person making the Dying Declaration. (e) The Dying Declaration doesnot reflect that while recording Dying Declaration, the Executive Magistrate has made enquiries and put certain questions to the deceased which could enable the Court to draw an inference that by virtue of those questions and answers to those given by the person making the statement, she was mentally fit and in a position to give Dying Declaration. 14. To support his contention, learned Adv. Mr. Anil Mardikar has placed reliance on following judgments:- (a) Mehiboobsab Abbasabi Nadaf Vs. 14. To support his contention, learned Adv. Mr. Anil Mardikar has placed reliance on following judgments:- (a) Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka (2007 (3) Crimes 291 (SC)), (b) Ramilaben Hasmukhbhai Khristi & anothr Vs. State of Gujarat ( (2002) 7 SCC 56 ), (c) Laxmi (Smt) Vs. Om Prakash & others ( (2001) 6 SCC 118 ), (d) Uka Ram Vs. State of Rajasthan ( (2001) 5 SCC 254 ), (d) Dandu Lakshmi Reddy Vs. State of A.P. ( AIR 1999 SC 3255 ), (f) State of Rajasthan Vs. Prithvi Raj (Crimes VII 1995 (3) 260), (g) K. Ramchandra Reddy & another Vs. The Public Prosecutor ( (1976) 3 SCC 618 ), (h) Hari Ram Vs. The State (1965 (2) Cri.L.J. 132 (Vol.71, C.N. 39)), and (i) Manohar Dadarao Landge Vs. State of Maharashtra ( 2000 (2) Mh.L.J. 3 ). 15. The purpose of relying on these judgments is to urge that :- (a) It would not be impossible to base the conviction solely on Dying Declaration and in each case, corroboration to Dying Declaration may not be required, however, on facts, if the proof of Dying Declaration comes within the bracket of doubt on account of any of the defects or deficiencies, then proof of Dying Declaration needs corroboration. (b) When it is not duly demonstrated that the person making the Dying Declaration was in a fit state of mind, and if such inference is not possible from the tenor of Dying Declaration, and proof of said fact of state of mind of the person making said statement, reliance on such Dying Declaration would be unsafe and would not be permissible. 16. Based on these submissions, it is urged that the conviction, which is solely based on Dying Declaration, which is not free from defects and doubts, is liable to be set aside and the appellant is entitled for acquittal. 17. Learned APP Mr. V.A. Thakre, while opposing the appeal, has argued that:- (a) There is no strict or statutorily prescribed format of Dying Declaration. (b) Dying Declaration even made to Police Officer could be relied upon. Corroboration to Dying Declaration is not a condition precedent. 17. Learned APP Mr. V.A. Thakre, while opposing the appeal, has argued that:- (a) There is no strict or statutorily prescribed format of Dying Declaration. (b) Dying Declaration even made to Police Officer could be relied upon. Corroboration to Dying Declaration is not a condition precedent. (c) The Certificate of Fitness by doctor is not a condition precedent and all that is required is that while recording Dying Declaration, the Executive Magistrate or the person recording it has to get himself satisfied that the patient is conscious, and is in a fit state of mind. 18. In support of hissubmissions, learned APP Mr. Thakre placed reliance on following Judgments:- (1) Ravi and anothr Vs. State of Tamil Nadu ( (2004) 10 SCC 776 ), (2) Laxman Vs. State of Maharashtra (2002) 6 SCC 710 ), (3) Panchdeo Singh Vs. State of Bihar ( (2002) 1 SCC 577 ), and (4) Bhagirathibai Ramchandra Belurkar & others Vs. State of Maharashtra (2006 (1) Mh.L.J. (Cri.) 1203). 19. This Court has perused Dying Declaration (Exh.86) recorded by Police Sub-Inspector and Dying Declaration (Exh.71) recorded by Magistrate. What this Court finds as common in both these Dying Declarations is as follows:- (a) In both the Dying Declarations, the persons, who have recorded the statements, have failed to record that Rizwanbee was in a fit state of mind to give a statement. (b) The text of Dying Declarations or testimonies of the witnesses proving those do not disclose that the witnesses had put questions to Rizwanbee and received replies from her in an effort to ascertain her fit state of mind to give the statement. (c) The questions, if any, put by them to witness and replies are not brought on record. 20. Certificate of doctor is incorporated in relation to Dying Declaration (Exh.71) recorded by the Executive Magistrate. This Certificate is restricted to consciousness and not to the fitness. 21. This Court would not get adversely influenced barely due to the deficiencies in certificate, i.e., lack of certification of fitness. An omission in the Certificate may otherwise be bridged, had the Executive Magistrate himself recorded satisfaction and proved it. 22. This Certificate is restricted to consciousness and not to the fitness. 21. This Court would not get adversely influenced barely due to the deficiencies in certificate, i.e., lack of certification of fitness. An omission in the Certificate may otherwise be bridged, had the Executive Magistrate himself recorded satisfaction and proved it. 22. The deficiency of the Doctor's Certificate as to fitness would have become insignificant, had the Magistrate, before recording the statement of Rizwanbee, put her some questions and ascertained her fitness of state of mind for making a Dying Declaration, on the basis of questions and answers. 23. Considering law as relied upon and on reappreciation of evidence, this Court finds that in both the Dying Declarations, the condition precedent that the person recording statement is satisfied that the person making the statement, i.e., Rizwanbee, was in a fit state of mind to make the statement is absent. 24. In the result, the Dying Declaration, which is the sole piece of evidence relied upon by the prosecution, falls short of worthiness of reliance to sustain the conviction. 25. In the result, appeal succeeds. Appeal is allowed. Judgment and order of conviction and sentence is set aside. Appellant be set at liberty unless required in any other offence.