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2012 DIGILAW 282 (BOM)

Madhav Kesu Kharat v. State of Maharashtra

2012-02-08

A.H.JOSHI

body2012
Judgment : ORAL JUDGMENT : 1. Heard the parties. 2. Perused the record. 3. The appellants were charged for offence punishable under Section 302 r/w 34 of the Indian Penal Code for committing murder of appellant no.1_ s brother Deochand by stick or other deadly weapon. 4. The background of the case is that in the night between 17th and 18th January, 1997 i.e. at about 3.00 a.m. to 4.00 a.m. on 18th, Deochand was fatally assaulted by accused persons. The injury was caused to the head and there was profuse bleeding. 5. Wife of Deochand noticed her husband Deochand in fatally injured position in the morning. She took him to the hospital at Shirdi Sansthan. Medico Legal Case was recorded and he was examined by the Doctors. Ultimately, Deochand succumbed to the injuries at about 4.05 p.m. on 18th January, 1997. 6. The accused pleaded alibi and examined the defence witness to prove that he was allotted night duty on the farm by his employer. 7. After considering the evidence led by the prosecution, learned Sessions Judge has convicted accused no.1 for the offence of culpable homicide not amounting to murder under Section 304-II of the Indian Penal Code and sentenced him to suffer R.I. for 7 years and to pay fine of Rs.10,000/-. 8. Accused no.2 was convicted for the offence punishable under Section 325 r/w 34 of the Indian Penal Code and was sentenced to suffer S.I. for six months and to pay fine of Rs.2,000/-, in default to suffer S.I. for one month; as well as he was convicted for the offence punishable under Section 323 of the Indian Penal Code and sentenced to suffer S.I. for six months and to pay fine of Rs.1,000/-, in default to suffer S.I. for 15 days and that the sentences against accused no.2 were to run concurrently. 9. Learned Sessions Judge directed that after deposit of the fine amount of Rs.13,000/-, it be paid to respondent no.2, namely PW 1 Thakubai w/o Deochand Kharat. 10. The points pressed in service by learned Advocate for the appellants can be summarised as follows:- (a) There are no eye witnesses. (b) Case is based on Dying Declaration. 9. Learned Sessions Judge directed that after deposit of the fine amount of Rs.13,000/-, it be paid to respondent no.2, namely PW 1 Thakubai w/o Deochand Kharat. 10. The points pressed in service by learned Advocate for the appellants can be summarised as follows:- (a) There are no eye witnesses. (b) Case is based on Dying Declaration. (c) On the Dying Declaration signature of Medical Officer appears, but a certificate as regards the state of health of the declarant being in fit state of health and mind to give the statement is not given/written by the Doctor. (d) Dr. Desai, who has signed on the Dying Declaration without any comment, too has not been examined. (e) Dr. Deshmukh PW 7, states that the state of health of Deochand was deteriorating. (f) The medical evidence of PW 5 Dr. Ashok Kamble, who has proved the cause of death of patient is of no use to the prosecution to prove the accusations against the appellant. 11. Learned A.P.P. urged in support of the conviction stating that the Dying Declaration is worth reliance. Considering the short span of time available at the hands of police it was not possible to record the Dying Declaration before Magistrate, and urged that the conviction is liable to be maintained. 12. It is seen that the first information report is registered on the basis of Dying Declaration recorded by Police Head Constable. Recording of the F.I.R. is at 16.05 horus on 18.1.1997. Time of recording the Dying Declaration is not given on record. 13. PW 5 Ashok Kamble deposes about the status of health of patient. Relevant portion thereof is quoted as below:- “6. Cross-exam. By Mr. Pimpalwadkar, Advocate for both the accused. I am not able to give the time between injury and ultimate death. It is possible that injured may be unconscious for couple of hours before the death. The injured may be unconscious prior to his death. During medical treatment on such injury the patient may be unconscious for about 2 or 3 hours before the death. 7. No re-exam. 8. To the Court – The kind of hemorrhage was found subdural Haemorrhage forms haemotoma. The haemotoma gets enlarged as time passes and the pressure on the brain increases as the time passes. The clinical examination may not reveal haemotoma unless cat scan like investigation. Health of the patient deteriorate as the time passes. 7. No re-exam. 8. To the Court – The kind of hemorrhage was found subdural Haemorrhage forms haemotoma. The haemotoma gets enlarged as time passes and the pressure on the brain increases as the time passes. The clinical examination may not reveal haemotoma unless cat scan like investigation. Health of the patient deteriorate as the time passes. 9. Nocross-exam. By defence.” [quoted from page nos. 168 and 169 of paper book] 14. It is seen that the patient was taken to the hospital at Shirdi. The record in that regard is Exh. 32. It shows that the time when the patient was examined as 11.30 a.m. on 18.1.1997. The injuries, it’s cause, state of patient and reference, etc. is narrated in Exh.32 as follows:- “Date and time : 18.1.97 -11.30 a.m. of examination Description of : 1) CLW Occipital the wound about 4 x ½ inch bone deep 2) (L) Black eye 3) Head Injury Age of the wound : About within 2 hours Probable Weapon : Blunt used Nature of injury : Grievous Condition : Poor Patient examined on the same day evening and was sent for p.m. Place : Shirdi Sd/- Dr.M.Y.Deshmukh, date : 18.2.97/ Dy.Chief Medical Officer, 11.00 hours Shri Sainath Hospital, Shirdi” [quoted from page 189 of the paper book] 15. PW 7 Dr. Deshmukh had examined the patient. The testimony of Dr. Deshmukh is Exh. 31. His observations deposed by him are as follows:- “On 18.1.97 at 11.30 a.m. I examined Deochand Kharat, who had following injuries on his person:- 1) C.L.W. Occipital about 4 x ½ cms. bone deep. 2) Left eye black. 3) Head Injury. The injuries were within 24 hours, caused by hard and blunt object. The injury was grievous as there was open bone on account of skull injury. That apart, there was black eye which is significance of hemorrhage and contriction of pupils. Condition was poor as patient expired on the same day in the evening. After 3.55 p.m. patient slowly went in deterioration.” [quoted from page 185 of the paper book] 16. In the cross-examination, PW 7 Dr. Deshmukh has given the time of death. Relevant portion is quoted below:- “2. Cross-exam. By Mr.Pimpalwadkar, Adv. for accused : There is no mention in my certificate that patient slowly went in deterioration after 3.55 p.m. I mainly look after surgical cases. There are two or three physicians. In the cross-examination, PW 7 Dr. Deshmukh has given the time of death. Relevant portion is quoted below:- “2. Cross-exam. By Mr.Pimpalwadkar, Adv. for accused : There is no mention in my certificate that patient slowly went in deterioration after 3.55 p.m. I mainly look after surgical cases. There are two or three physicians. I had treated the patient. At 4.05 p.m. patient may be in semi conscious condition. In semi conscious condition patient may speak irrelevant, incoherent. Patient was able to walk-soon after the receipt of the injury.” [quoted from page 187 of the paper book] 17. In the Dying Declaration recorded by the police, the story as to how the assault occurred is narrated in detail. 18. The case rests on Dying Declaration, and therefore, the pivotal question is whether Deochand was in a position to make the Dying Declaration when it is said to have been recorded. 19. Prosecution has not made it clear as to why and how much time was spent between the fact of recording of Dying Declaration and registration of F.I.R. 20. It is seen that the health of patient was deteriorating due to profuse bleeding. PW 7 Dr. M.Y. Deshmukh himself has examined the patient at 11.30 a.m. and prosecution could have secured from him a clarification as to whether the patient was in a position to make a statement -the Dying Declaration. This failure of the prosecution gives a fatal blow to the prosecution story. Case papers show the line of treatment and state of health at different hours, would have been useful. This important piece of evidence is not brought forward by the prosecution. 21. In this situation, the prosecution has dragged the court in the field of speculation and it wants court to believe that the delcarant was in a fit position to give Dying Declaration, particularly in the background that Dr. Desai, who had purportedly signed the Dying Declaration Exh.25 has not been examined. 22. In the present case, in which there is neither eye witness nor any piece of circumstantial evidence available against the accused. Entire thrust of prosecution is reliance on the Dying Declaration. The Dying Declaration has to be proved beyond any shadow of doubt whatsoever, it being a piece of evidence sought to be trusted without any scrutiny of cross-examination of maker of said statement. Entire thrust of prosecution is reliance on the Dying Declaration. The Dying Declaration has to be proved beyond any shadow of doubt whatsoever, it being a piece of evidence sought to be trusted without any scrutiny of cross-examination of maker of said statement. Therefore, it turns out to be extremely difficult proposition to rely on the Dying Declaration in present case. 23. In the result, maintaining conviction would mean to maintain it on suspicion, which cannot be done. 24. In the result, appeal succeeds and same is allowed. The judgment and order conviction and sentence against both the appellants is set aside. Fine amount, if paid by the appellants, be refunded to them. Their bail bonds stand cancelled.