drp {1} Cri. Appeal No.123/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.123 OF 2010 Bhaguram s/o Annarao Kendre APPELLANT Age-29 years, Occ-Labour R/o Khadgaon Road, Latur Tq & Dist-Latur VERSUS The State of Maharashtra RESPONDENT Through MIDC Police Station, Lautr, Tq-& Dist-Latur ....... Mr. V.D.Salunke, Advocate for the appellant Mr. S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 30 th June 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.5000/-, in default of which to undergo further RI for 3 months, by the Sessions Judge, Latur, by judgment dated 26.02.2010, in Sessions Case No. drp {2} Cri. Appeal No.123/2010 108/2008, by this appeal, questions the correctness of his conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - PW-8 Police Inspector Prakash Kulkarni, who was attached to MIDC police station, Latur, was on duty on 20.10.2002. On that day, PW-3 Baliram and PW-4 Bharat met him while he was proceeding in a police vehicle towards Shivaji Chowk. PW-3 Baliram informed him that near the Kailas Bar, adjoining railway line, one person had stabbed his wife with knife. Accordingly PW-8 PI Kulkarni, rushed to the scene of offence along with the police staff and PW-3 and PW-4. On reaching the scene of offence, he noticed a female lying in pool of blood, who on inquiry, disclosed her name as Chhaya. On further inquiry she disclosed that she had been stabbed by her husband. PW-8 PI Kulkarni, PW-3 Baliram, PW-4 Bharat and police constable placed the injured in the police vehicle and she was carried to the Civil Hospital, Latur. One constable was deputed to remain on guard at the scene of offence. In the Civil Hospital, injured Chhaya was examined by the medical officer. A request was made for issuance of a medical certificate vide Exhibit-37. During the treatment, the injured succumbed to her injuries at about 3.45 p.m. and accordingly, the medical officer intimated about the death of Chhaya at Exhibit-38. PW-5 Rukminbai, mother of deceased Chhaya arrived at the drp {3} Cri. Appeal No.123/2010 hospital, unfortunately, after Chhaya had succumbed to her injuries. Statement of PW-5 Rukminbai came to be recorded at Exhibit-30, on the basis of which an offence came to be registered vide crime No.118/2002 u/s 302 and 498A of the Indian Penal Code. Inquest Panchanama came to be drawn in the presence of witnesses, at Exhibit-22. The dead body of deceased Chhaya was referred for postmortem examination. On 20.10.2002, Rukminbai was taken to the scene of offence, where the scene of offence Panchanama came to be drawn at Exhibit-34. From the scene of offence, bags, clothes, towel and a knife came to be seized. Clothes of the deceased came to be seized in the presence of Panchas and a search was made for the accused, but the accused could not be arrested till 25.10.2002. 3. Postmortem, on the dead body of deceased Chhaya came to be performed by PW-1 Dr.Rajkumar Datal. PW-1 Dr. Rajkumar noticed the following external injuries - 1. Incised wound on the superior part of left temporal region, saggitaly i.e. straight in direction admeasuring 5 x 5 and 1 x ½ cm. 2. Incised wound on left mastoid region oblique i.e. behind the left ear, oblique admeasuring 6 x 1 x ½ cm. 3. Stab wound on left parasternal region below breast in 5th inter costal space admeasuring 4 x ½ x 1 cm. This injury was deep up to lungs. drp {4} Cri. Appeal No.123/2010 4. Stab wound on left subcostal region in mid clavicle line oblique in nature admeasuring 7 x 4 cm. It was deep up to visceral cavity deep and amentum was protruding out o fthis injury. Omentum is part of intestine. 5. Stab wound on left mid axillary line at 4th inter costal space admeasuring 7 x 2 x 5 cm, it was deep up to subcutaneous and transversely placed. 6. Incised wound having partial amputation of left wrist ventrally with 4 cms, long dorsal skin tag intact with scaphoid having fracture of ulnar styloid process, transversely. On internal examination, he noticed haematoma at left superior temporal region admeasuring 5 x 1 x ½ cm. Stab wounds to ribs, walls and cartilages, due to which the pleura was found torn down on left 5th inter costal space in mid clavicle line. Laceration of lower part of left lung was also noticed. Abdominal walls were found having stab injury due to which peritoneum was torn on left sub costal region. Because of the injury the cavity was containing 1200 ml of blood. Large intestine was found having tear in proximal part of descending colon near spleenic flexer or region admeasuring 8 x 2 cm. Left kidney having incised laceration about 2/3rd anterior superiorly. The medical officer opined that the cause of death was due to hemorrhagic shock due to multiple visceral injury. The medical officer has further opined that injuries No.3 to 6 were sufficient in ordinary course of nature to cause death. The drp {5} Cri. Appeal No.123/2010 Postmortem report is at Exhibit-19 and the provisional certificate is at Exhibit-18. 4. Trial Court has acquitted the appellant-accused for the offence punishable u/s 498A of the Indian Penal Code. In that light of the matter, therefore, evidence of PW-5 Rukminbai and PW-6 Laxman would not assist the prosecution case in respect of the offence punishable u/s 302 of the Indian Penal Code. The entire prosecution case, therefore, now revolves round the testimony of PW-3 Baliram, PW-4 Bharat and PW-8 Police Inspector Prakash Kulkarni, who claim that deceased had made an oral dying declaration to them. In order to effectively deal with the submissions advanced before us, by Shri V.D.Salunke, learned counsel for the appellant and Shri Tambe, learned APP for respondent State, it would be useful to refer to the evidence of the prosecution witnesses. 5. PW-3 Baliram states that on the day of the incident he was outside his house and had heard cries of a woman as “Save me save me”. Upon hearing the cries he rushed in that direction and noticed one person stabbing a lady. When he went near the lady, he noticed that the person fled from the scene of the offence. On reaching near the lady he noticed that the lady had sustained injuries and, therefore, he questioned her as to what had happened. The injured lady disclosed to him that she had been assaulted by her husband. According to him, at that time PW-4 drp {6} Cri. Appeal No.123/2010 Bharat also came there and both of them, therefore, ran towards the MIDC police station. On the way, they met PW-8 PI Kulkarni, to whom they informed about the incident. PW-3 Baliram and PW-4 Bharat returned back to the scene of offence along with the police. The police, thereafter, lifted the injured and placed her in the jeep and took her to the hospital. In cross examination PW-3 Baliram has admitted that he had not stated in his previous statement about hearing the cries of the lady as “Save me Save me” and his rushing towards the railway line. Omission has been duly proved that he had not stated in his previous statement about the oral dying declaration alleged to have been made to him by deceased Chhaya. 6. Prosecution has examined PW-4 Bharat, who states about hearing cries of a lady and rushing to the place and noticing the assailant fleeing from the scene of the offence. He further states that when he reached to the spot, he noticed that PW-3 Baliram was present. PW-4 Bharat states that he questioned the injured lady, who informed him that she had been assaulted by her husband. PW-4 Bharat further states that he, along with PW-3 Baliram ran towards MIDC police station and were met by PI Kulkarni on the way. Along with the police they returned back to the scene of offence where the injured lady was placed in the jeep and taken towards the hospital. 7. Curiously, PW-3 Baliram does not state that at the drp {7} Cri. Appeal No.123/2010 time of disclosure of the injured lady, PW-4 Bharat was present. PW-3 Baliram also does not state that the injured lady had subsequently made any disclosure to PW-4 Bharat. PW-4 Bharat is very categorical in his statement that when he had reached the scene of offence, PW-3 Baliram was already present and the injured had informed him i.e. PW-4 Bharat about the incident. Evidence of PW-4 Bharat in respect of disclosure by the lady is not supported by PW-3 Baliram and there is another circumstance, which impels us to repel the prosecution evidence in respect of oral dying declaration and that circumstance is the omissions in the previous statement of PW-3 Baliram in respect of hearing of the cries and rushing towards the place of incident and of the injured lady disclosing the incident to him. 8. PW-8 PI Kulkarni states that he met PW-3 and PW-4 on the way, and in their company he returned to the scene of offence, where he questioned the lady and the injured lady disclosed to him that she had been assaulted by her husband. The aforesaid disclosure is not supported by the evidence of PW-3 Baliram and PW-4 Bharat. Neither PW-3 Baliram nor PW-4 Bharat state about the injured lady making any disclosure statement to PW-8 PI Kulkarni. We, further find that if indeed, such a disclosure had been made by the injured lady, statement of PW-3 Baliram or PW-4 Bharat ought to have been recorded so that an offence could be registered. However, the offence came to be registered on the basis of the statement of PW-5 Rukminbai at Exhibit-30 i.e. after drp {8} Cri. Appeal No.123/2010 Chhaya had succumbed to her injuries. All these circumstances, therefore, impel us to reject the alleged oral dying declaration. Curiously also, no steps were taken for recording the dying declaration of the injured in the hospital. On the basis of the aforesaid suspicious circumstances, therefore, according to us, implicit reliance cannot be placed on the oral dying declarations. If the oral dying declarations are left out of the consideration, there is absolutely no evidence against the appellant. Prosecution has not come forward with any other circumstance, which would unerringly point to the guilt of the accused. 9. The Trial Court has found that the appellant-accused was absconding for a period of 5 years. Unfortunately, abscondance, as a circumstance, is not put to the appellant – accused in his statement, recorded u/s 313 of the Criminal Procedure Code. No evidence has been tendered by PW-8 PI Kulkarni in respect of the abscondance of the appellant. Merely stating that the accused was not available for a period of 5 days, cannot be considered as sufficient evidence of abscondance. Moreover, circumstance of abscondance is hardly any evidence of guilt. It cannot be used as a link in the prosecution chain of circumstances to prove the guilt of the accused. Ultimately, flight is no evidence of guilt. Even an innocent person, when faced with accusation of having committed serious crime, is likely to flee. A reference in this behalf, may usefully be made to the judgment of the Supreme Court in “Paramjeet Singh V/s State of drp {9} Cri. Appeal No.123/2010 Uttarakhand” (2010) 10 SCC 439. 10. In the aforesaid circumstances, therefore, according to us, the appeal deserves to be allowed and the appellant deserves to be acquitted by giving benefit of doubt. Accordingly, the criminal appeal is 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 him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel123-10