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2014 DIGILAW 2191 (BOM)

Anil v. State of Maharashtra

2014-10-27

B.R.GAVAI, V.M.DESHPANDE

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JUDGMENT : B.R. Gavai, J. 1. Being aggrieved by the judgment and order passed by the learned Ad-hoc Additional Sessions Judge, Amravati dated 17.8.2010 in Sessions Trial No. 35/08, thereby convicting the appellants for the offence punishable under Sections 302 & 342 read with Section 34 of the Indian Penal Code and sentencing them under Section 302 of the Indian Penal Code to suffer R.I. for life and to pay a fine of Rs. 5,000/- and in default, to suffer further R.I. for six months, and sentencing them under Section 342 of the Indian Penal Code to suffer R.I. for three months and to pay a fine of Rs. 500/- and in default, to suffer further R.I. for 15 days, the appellants have approached this Court. The prosecution story, in brief, as could be gathered from the material placed on record is as under:-- On 5.11.2007 the Police Station Rajapeth received a telephonic information that two persons were apprehended in Kanha Apartment at Badnera Road, Amravati. On receipt of the information, the police personnel from the Rajapeth Police Station went to the spot. They received the information that one person was set on fire in one room of the Kanha Apartment. The police party apprehended two persons who were caught by the persons at that place. The police party entered into the said room at Kanha Apartment. They saw that both the hands and legs of the person in the room were tied by rope. PW. 8 Ganesh Kale, Head Constable untied his hands and legs. The person was sent to Irwin Hospital. In the hospital, the dying declaration of the said person whose name was disclosed as Premkumar Joshi came to be recorded. On the basis of the said report, a FIR came to be registered initially for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The deceased succumbed to the injuries. As such, an offence under Section 302 of the Indian Penal Code also came to be added. On the basis of the FIR, the investigation was set in motion. At the conclusion of investigation, a charge-sheet came to be filed against four accused persons including the son of the deceased in the Court of J.M.F.C., Amravati. As such, an offence under Section 302 of the Indian Penal Code also came to be added. On the basis of the FIR, the investigation was set in motion. At the conclusion of investigation, a charge-sheet came to be filed against four accused persons including the son of the deceased in the Court of J.M.F.C., Amravati. Since the case was exclusively triable by the learned Sessions Court, the same came to the committed to the Court of learned Sessions Judge, Amravati. The learned trial Judge framed the charges against four accused persons. All the accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge recorded the order of conviction and sentence against the present appellants as aforesaid. However, the other two accused came to be acquitted. Being aggrieved by the order of conviction and sentence, the present appeals have been filed by the appellants. 2. The learned Counsel appearing on behalf of the appellants, submit that the learned trial Judge has grossly erred in convicting the appellants. It is submitted that the conviction is only on the basis of the dying declaration. It is, however, submitted that the said dying declaration is full of lacunae. It is further submitted that the names in the dying declaration do not tally with the actual names of the accused persons. It is, therefore, submitted that the appeals deserve to be allowed and the accused/appellants deserve to be acquitted. 3. As against this, the learned A.P.P. submits that the accused were apprehended near the spot of the occurrence. It is further submitted that the accused persons have sustained burn injuries which are not explained by them. It is, therefore, submitted that the prosecution has proved the circumstances beyond reasonable doubt and as such, the appeals need no interference. 4. With the assistance of the learned A.P.P. and the learned Counsel for the appellants, we have scrutinized the entire evidence on record. Most of the witnesses in the present case have turned hostile. The conviction has been recorded by the learned trial Judge basically on the basis of the dying declaration of the deceased recorded by PW. 3 Ramesh Kokate, A.S.I. The true translation of the dying declaration of the deceased Premkumar Joshi as recorded by PW. Most of the witnesses in the present case have turned hostile. The conviction has been recorded by the learned trial Judge basically on the basis of the dying declaration of the deceased recorded by PW. 3 Ramesh Kokate, A.S.I. The true translation of the dying declaration of the deceased Premkumar Joshi as recorded by PW. 3 Ramesh on 5.11.2007 is as under:-- "On being asked, I personally state as under:-- I reside at the above mentioned address. I have wife named Sau. Laxmi and one son and one daughter. Since 8 to 10 years, my wife and children are residing separately from me. On 5.11.2007, at 2.00 O'clock in the night, after cleaning my shop of spare parts situated at Rayali Plots, when I was going to my room in Bhagwan Nagar by scooter, three persons riding on one motor-cycle gave a dash to my scooter on the turning of road leading from Moti Nagar to Bhagwan Nagar as a result of which I fell down and they beat me with kicks and fists and removed the clothes from my person. The said three persons forcefully took away from me, the total amount of Rs. 1300/- consisting of a currency note of Rs. 1000/- and three currency notes of Rs. 100/- which was in my pocket. Thereafter, injections were administered to my both the upper arms. Out of them, one person was Anil Patel residing at Jawahar Nagar in Akola, second person was being called as Deshmukh and third gray haired person was middle-aged. As they were talking amongst themselves, I came to know the names of two persons. The said three persons tied Dupatta (Long piece of cloth) around my neck, beat me and took me to the room in Kanha Apartment. Thereafter, I do not know anything. Then, I regained consciousness in the morning. My both the hands and legs were tied with rope. Thereafter, they beat me with kicks and fists and said to me, "Give money of Soyabean. How much property do you have." Then, they forcefully obtained my signatures on the four blank cheques of Andhra Bank, however I do not know from where they had bought those four blank cheques. In the evening, the bald person said to Anil Patel, "Fill 1 litre of petrol in your vehicle and bring 1 litre of petrol in a bottle." Thereafter, he brought petrol. In the evening, the bald person said to Anil Patel, "Fill 1 litre of petrol in your vehicle and bring 1 litre of petrol in a bottle." Thereafter, he brought petrol. Then, all the said three persons consumed liquor and also forcefully made me to consume liquor. Thereafter, they tied my both the hands and legs with rope and poured on my person, petrol from the bottle brought along. As there was load-shedding at that time, the electric supply was off. They lighted a candle and the said three persons, after pouring petrol, set me on fire with the help of that candle in the Kanha Apartment at Bhaktidham. As I raised shouts loudly, people gathered. After setting me on fire, all the said three persons fled away therefrom. The reason for setting me on fire is that they were intending to forcefully purchase my own plot measuring 7000 square feet situated near Badnera Railway Station, without paying money and thereby grab the same. Only for the same reason, they, with an intention to kill me, poured petrol on my person, tied my hands and legs with rope and set me on fire with the help of candle as a result of which I sustained burns. There are burn injuries all over my person. The candle with which they had set me on fire, was burning there itself. As I raised shouts, the crowd of people from the vicinity gathered, and police arrived immediately and took me to Irwin Hospital for treatment and admitted me to ward No. 4. Presently, I am undergoing treatment. This is my statement. It has been recorded as per my version. It has been read over to me. It is recorded correctly. As there are burn injuries all over my both the hands, I cannot put signature. (T.I.) Thumb-impression of injured Premkumar Papalal Joshi." It would thus be seen from the aforesaid dying declaration that in the said D.D. the deceased has given name of one Anil Patel from Akola. The name of the other person as referred in the Dying Declaration is one Deshmukh. The perusal of the names of all the four accused would reveal that none of the accused are having surnames Patel or Deshmukh. 5. No doubt that a conviction can be based solely on the basis of dying declaration. The name of the other person as referred in the Dying Declaration is one Deshmukh. The perusal of the names of all the four accused would reveal that none of the accused are having surnames Patel or Deshmukh. 5. No doubt that a conviction can be based solely on the basis of dying declaration. However, the said dying declaration is required to be found trustworthy, reliable and one which inspires confidence of the Court. In the said dying declaration, there is no endorsement of the Doctor certifying that prior to giving of the dying declaration, the deceased was examined and he was found to be physically and mentally fit to give dying declaration. The prosecution in this case relies on the entry made by Dr. Shyam Higade PW. 7 on the memo addressed to him by PW. 3 Ramesh. The entry below Exh.108 on the memo does bear signature of PW. 7 Shyam, wherein it is stated that patient is fit for statement. However, it is to be noted that there is no endorsement of the doctor after recording of the dying declaration that he was present when the dying declaration was recorded and that the patient was examined and found to be physically and mentally fit to give the dying declaration. PW. 7 Dr. Shyam Higade has also been examined. From his evidence also, it would be clear that the statement of the deceased was not recorded in his presence. It would also be clear from his evidence that after the dying declaration was recorded, the patient was not examined by the said Doctor and found to be physically and mentally fit to have given dying declaration. PW. 3 Ramesh, who recorded the dying declaration has admitted in his evidence that he had not obtained the opinion of the Medical Officer on the statement of Premkumar. He has further admitted that he has not mentioned in the statement as to when he started recording the dying declaration and as to when it was complete. It is further to be noted that at two places in the said dying declaration, there appears to be interpolation. It appears that while referring to a place where the deceased was taken after beating him initially "Maje" (my) was written. However, the same has been subsequently struck off and changed to "Kanha Apartment". It is further to be noted that at two places in the said dying declaration, there appears to be interpolation. It appears that while referring to a place where the deceased was taken after beating him initially "Maje" (my) was written. However, the same has been subsequently struck off and changed to "Kanha Apartment". At another place with respect to consumption of alcohol, the word "Mala" (me) has been subsequently written. The same is in different ink. We, therefore, find that the dying declaration cannot be said to be the one which is trustworthy, reliable and inspires confidence. Apart from that, the Doctor has himself admitted that the statement was not recorded in his presence. As such, we find that it will not be safe to base conviction only on the basis of the dying declaration. 6. The other circumstance on which the prosecution relies is the accused being apprehended near the Kanha Apartments. Almost all the independent witnesses have turned hostile. Apart from that, PW. 8 Ganesh Kale, Head Constable, who had gone to the spot after receipt of the information has himself admitted in his evidence that when he went to the spot there was darkness in the area. In any case, even if the accused were found near Kanha Apartment, that circumstance by itself cannot be sufficient enough to hold them guilty for having committed murder of the deceased. 7. It is further pertinent to note that PW. 8 Ganesh in his evidence has stated that when the police party went to the room in the Kanha Apartment, they found the deceased in a burnt condition. It is further stated by him that he saw both the hands and legs of the person tied by the rope. He further states that he untied the hands and legs of that person. If it is the prosecution case that the hands and legs of the deceased were tied and thereafter he was set on fire, then it is not probable that the rope would be in an intact condition. This casts a serious doubt regarding the truthfulness of the prosecution case. It is further to be noted that even the Chemical Analyser's report finds that the result of the test of partly burnt piece of rope for detection of petroleum hydrocarbons is negative. This casts a serious doubt regarding the truthfulness of the prosecution case. It is further to be noted that even the Chemical Analyser's report finds that the result of the test of partly burnt piece of rope for detection of petroleum hydrocarbons is negative. It is a settled law that however a strong suspicion may be, it cannot take a place of proof beyond reasonable doubt and conviction cannot be based only on the basis of a strong suspicion. We find that the prosecution has utterly failed to prove the incriminating circumstances against the accused. In any case, the prosecution has not proved the chain which is complete leading to no other conclusion than the guilt of the accused. In that view of the matter, we find that the appeals deserve to be allowed. Criminal Appeal Nos. 232/2011 and 302/2012 are allowed. The order of conviction and sentence of the appellants, is quashed and set aside. The appellants are acquitted of the charge with which they are charged. The bail bonds of the appellant in Criminal Appeal No. 232/2011 shall stand discharged. The appellant in Criminal Appeal No. 302/2012 is directed to be set at liberty forthwith, if not required in any other case. The amount of fine, if any paid, by the appellants be returned to them.