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2018 DIGILAW 843 (BOM)

State of Maharashtra v. Harbhajan @ Hargovind

2018-03-22

B.R.GAVAI, M.G.GIRATKAR

body2018
JUDGMENT : 1. The State has filed the present appeal against the judgment of acquittal in Sessions Trial No. 166/2010 by the Additional Sessions Judge-2, Amravati by which the accused/ respondent came to be acquitted for the offence punishable under Section 302 of IPC. 2. The case of the prosecution against the accused/respondent can be summarized as under: On 02.07.2010 at about 04:00 p.m. deceased Vikas Tryambakrao Deshmukh was sitting near the wall, near the laundry shop of Chauhan at Mahavir Nagar. He asked accused Harbhajan Kambli as to where he was going. Accused told him that he was going to bring fodder for shegoat. Accused Harbhajan Kambli asked the deceased as to why he asked him as to where he was going. Over the said issue, the accused taken out a knife and started assaulting the deceased. Accused caused injury on his face, both the arms, abdomen and neck. Thereafter accused ran away from the spot. He was admitted in the Irwin Hospital by his friends Gajanan Waghode, Nilesh Khonde and Deorao Sawarkar. 3. Dr. Sundhya Deshmukh (PW-3), Medical Officer was on duty she issued memo to the police. Police had been to record the dying declaration/statement. She issued certificate at Exh.26 stating that deceased was unfit to give statement. On the next day morning statement of deceased was recorded by Head Constable Vijay Sawarkar. Dr. Sundhya Deshmukh Medical Officer certified that patient was fit to give the statement. 4. Head Constable Vijay Sawarkar recorded the statement of deceased. Deceased stated before him in dying declaration at Exh.52 that, when he was sitting in the laundry, he asked the accused as to where he was going, accused asked him as to why he asked him as to where he was going. Accused taken out a knife and stabbed on his face, arms, stomach etc. On the basis of the statement of deceased, crime was registered against the accused. 5. As usual investigation was carried out. After completing the investigation, chargesheet was filed before the Judicial Magistrate First Class, Amravati, who, in turn, committed it to the Court of Session. 6. The Trial Court framed charge against the accused at Exh.4. The same was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The defence appears to be of total denial. 6. The Trial Court framed charge against the accused at Exh.4. The same was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The defence appears to be of total denial. At the conclusion of the trial, the learned Trial Court acquitted the accused/respondent for the offences charged against him. 7. Heard Shri N.R. Patil, the learned Additional Public Prosecutor for the appellant/State. He has pointed out that dying declaration at Exh.52 show that accused committed the murder of deceased. Shri P.V. Navlani, the learned counsel for the accused/respondent submitted that Trial Court rightly acquitted accused/respondent. 8. As per the dying declaration at Exh.52 friends of deceased namely Gajanan Waghode, Nilesh Khonde and Deorao Sawarkar admitted the deceased in the Irwin Hospital, Amravati for medical treatment. 9. The material eye-witnesses namely Gajanan Waghode (PW-1) and Deorao Sawarkar (PW-2) not supported to the prosecution. Other witness Nilesh Khonde not examined by the prosecution. 10. PW-3, 4, 5 and 6 are the Medical Officers. PW-3, 4 and 6 gave medical treatment to the deceased. PW-5 conducted postmortem on the dead body of the deceased. He found five injuries on the dead body. 11. There is no dispute that deceased died homicidal death. But prosecution failed to establish that accused/respondent was the author of crime. The material witnesses PW-1 and PW-2 not supported to the prosecution. Recovery of weapon is not duly proved. Panchas not supported to the prosecution. 12. The case of the prosecution only rested on the dying declaration at Exh.52. As per the evidence of PW-3 Medical Officer Dr. Sundhya Deshmukh, when police came to record the dying declaration on 02.07.2010 at about 07:45 p.m. She issued certificate that patient was not fit to give dying declaration. Again at about 09:15 p.m. she issued certificate at Exh.26 stating that patient was fit to give dying declaration. 13. The evidence of PW-3 shows that condition of deceased was very critical, he was operated. The Medical Officer Dr. Arun Shende (PW-6) has stated that he had taken Xray of the deceased. He found fracture to mandible. The evidence of Dr. Suresh Thorat (PW-4) shows that he had given treatment to the deceased and he had operated the patient. He has specifically stated that "I cannot say whether patient was in a position to talk with a mandible and maxillae fracture." 14. He found fracture to mandible. The evidence of Dr. Suresh Thorat (PW-4) shows that he had given treatment to the deceased and he had operated the patient. He has specifically stated that "I cannot say whether patient was in a position to talk with a mandible and maxillae fracture." 14. In view of the evidence of Dr. Sundhya Deshmukh and Dr. Suresh Thorat it is clear that deceased had sustained injuries on his mandible. Therefore, he was not in a position to talk. Hence, the dying declaration recorded by Head Constable Vijay Sawarkar vide Exh.52 appears to be doubtful. 15. Except the dying declaration at Exh.52 there is no incriminating evidence against the accused. Now it is well settled law that accused can be convicted only on the basis of dying declaration provided it should inspire the confidence of the Court. In the case of Surindrakumar v. State of Haryana, (2012) AllMR (Cri) 696 (SC), Hon'ble Supreme Court has held that "if the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration" "Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected." 16. In the present case, material eye witnesses i.e. PW-1 and PW-2 not supported to the prosecution. Recovery of weapon not duly proved. Panchas on the recovery of weapon not supported to the prosecution. The evidence of Medical Officer Sundhya Deshmukh show that when she examined the patient at 07:45 p.m. patient was not in a fit condition to give the statement. At about 09:15 p.m. she issued certificate stating that patient was fit to give the statement. The Medical Officer who operated the patient on 03.07.2010 has stated that patient had sustained injury to mandible and maxillae of fracture. He could not state before the Court that patient was in a position to talk. This itself show that the dying declaration at Exh.52 recorded by Head Constable Vijay Sawarkar (PW-14) is suspicious and cannot be relied on. It is held by the Hon'ble Supreme Court in the case of Khushal Rao v. State of Bombay, (1958) AIR SC 22, when the dying declaration appears to be doubtful then further corroboration is necessary. 17. This itself show that the dying declaration at Exh.52 recorded by Head Constable Vijay Sawarkar (PW-14) is suspicious and cannot be relied on. It is held by the Hon'ble Supreme Court in the case of Khushal Rao v. State of Bombay, (1958) AIR SC 22, when the dying declaration appears to be doubtful then further corroboration is necessary. 17. In the present case..........except Exh.52 there is no other witness to corroborate the evidence of Head Constable Vijay Sawarkar, who recorded dying declaration Exh.52, the dying declaration Exh.52 appears to be doubtful and therefore, conviction cannot be based on the sole uncorroborated dying declaration. The learned Trial Court rightly recorded its finding. There is no merit in the appeal. Hence, we proceed to pass the following order: ORDER (i) Criminal Appeal No. 43/2013 is dismissed. (ii) The bail bond of accused/respondent stands cancelled. (iii) R & P be sent back to the Trial Court.