1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.500 OF 2007 Balaji s/o Pandurang Londhe, Age : 28 years, Occu. Coolie, R/o Hanumantwadi, Tq. & Dist. Latur ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellant; Mr K.G. Patil, A.P.P. for the respondent - State. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 17th November, 2009 ORAL JUDGMENT (PER P.V. HARDAS, J) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code, by the Ad hoc Additional Sessions Judge-3, Latur, by judgment dated 30.11.2007, in Sessions Case No.10 of 2007, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.12 Sikandar Pakhali, a Police sub Inspector who was attached to police station, Gandhi Chowk, Latur, was informed on 28.8.2006 at about 1.30 p.m. by the Police Station Officer A.S.I. Sonkavade that a woman residing in Motinagar had sustained injuries on account of a knife. P.W.12 Police Sub Inspector Pakhali accordingly instructed for a vehicle to be sent to Motinagar and along with one Police Constable proceeded to Motinagar on his motorcycle. He went to the house of P.W.2 Shamalbai Lohare where he noticed one of the tenants, a lady, lying in a pool of blood near the door of her house. The injured lady had sustained several bleeding injuries. Meanwhile the police vehicle arrived at the scene and the injured lady was immediately shifted at the Civil Hospital, Latur. The injured lady came to be admitted in the hospital. As per the medical papers produced at Exh.47 the injured lady by name Lata was admitted in the hospital at 1.45 p.m. P.W.12 P.S.I. Pakhali requested the Medical Officer P.W.11 Dr. Dhele to examine the injured and opine if the injured was in a fit condition to give her statement. P.W.11 Dr. Dhele accordingly informed P.W.12 P.S.I. Pakhali that injured was in a condition to give her statement. Accordingly, P.W.12 P.S.I. Pakhali recorded the statement of the injured. Injured Lata stated in her statement that her brother/accused Balaji had arrived at her residence at 3 about 1.00 to 1.30 p.m. and was annoyed with her as she was maintaining illicit relations with one Mahendra Dhaware after the death of her husband. Her brother Balaji accordingly stabbed her on her abdomen, chest, face, right arm, right thigh, etc. The aforesaid statement came to be recorded as per the narration of the injured and thumb impression of injured Lata was obtained on the said statement. The statement was immediately forwarded to the police station. Meanwhile, P.W.6 Changdeo who was attached to police station Gandhi Chowk, Latur was performing the duty at the police station. At about 1.45 p.m. a person with blood stained clothes arrived in the police station who disclosed his name as Balaji. Evidence of P.W.6 Changdeo P.S.I. discloses that the said person i.e. the accused confessed . However, the aforesaid confession is inadmissible in evidence. Suffice it to say that the accused produced a knife which came to be seized. An entry to that effect was taken in the station diary, the copy of which is at Exh.31. Meanwhile he received the statement of Lata on the basis of which an offence punishable under section 307 of the Indian Penal Code vide Crime No.188 of 2006 came to be registered against the accused. In the presence of panch the blood stained clothes of the accused which comprised shirt and trouser came to be seized. The knife also came to be seized in the presence of panchas. Thereafter statements of the witnesses came to be recorded. The seized property was referred to the Chemical Analyser for examination. The report of the Chemical Analyser at Exh.60 discloses that on examination the blood group of deceased was 4 determined as "A" group. The blood group of the accused is also determined as "A" group. The clothes of injured Lata were found to be stained with blood of "A" group, while the clothes of the accused were found stained with blood of "A" group. The knife also was found stained with blood of "A" group. On completion of the investigation a charge- sheet against the appellant came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exh.6 came to be framed against the appellant/accused for offence punishable under section 302 of the Indian Penal Code. The accused abjured his guilt and claimed to be tried. Prosecution in support of its case examined 12 witnesses. The prosecution principally relied upon the dying declaration at Exh.51 and the evidence of P.W.6 P.S.I. Changdeo, who disclosed that the clothes and the knife produced by the accused were stained with blood of "A" group. The defence of the accused was of denial and in his statement under section 313 of the Code of Criminal Procedure the accused had claimed that the daughter of deceased Lata i.e. P.W.1 Pooja had come to him and informed him that her mother deceased Lata was being subjected to beating at the hands of P.W.4 Mahendra. The accused in his further statement states that he had rushed to the scene of the offence and had found P.W.4 Mahendra wielding a knife and in the scuffle Mahendra had inflicted injuries to the accused and had stabbed deceased Lata. According to him, he had accordingly gone to the police station for reporting the offence against 5 P.W.4 Mahendra. According to him, he has been falsely implicated in the case by the police at the behest of P.W.4 Mahendra. The Trial Court repelled the defence and found that the prosecution had established the offence against the accused beyond reasonable doubt and accordingly convicted and sentenced the accused. 4. In order to effectively deal with the submissions advanced before us by Smt. S.S. Jadhav, learned Counsel for the appellant and Shri K.G. Patil, learned A.P.P. for the State, it would be useful to refer to the evidence of the prosecution witnesses. 5. As pointed out by us above, P.W.12 P.S.I. Pakhali states about recording of the statement of injured at Exh.51. P.W.11 Dr. Dhele who had examined the injured Lata before her statement came to be recorded, states that she was attached to Civil Hospital, Latur as a Medical Officer since 1999. She states that on 28.8.2006 she was working as a Duty Medical Officer at Civil Hospital, Latur when at 1.45 p.m. a patient by name Lata Laxman Dhamale was brought to the hospital by one Police Constable Rathod. She states that she immediately admitted the patient in the hospital and the patient was conscious though the patient was seriously injured. The patient disclosed the history of being assaulted by a sharp iron object at 1.30 p.m. on 28.8.2006. She states that she accordingly started the treatment and meanwhile P.S.I. P.W.12 Pakhali inquired from her as to whether the patient was conscious as he intended 6 to record her statement. According to P.W.11 Dr. Dhele she informed P.W.12 P.S.I. Pakhali about the condition of injured and accordingly P.S.I. Pakhali recorded the statement of injured Lata. She states that the statement was recorded in her presence by P.W.12 P.S.I. Pakhali. She further states that thereafter she had given the endorsement about the consciousness of injured Lata. Her endorsement reads as under :- "Patient conscious and statement taken in presence of me." 6. Prosecution has also examined P.W.9 Dr. Pawar, who had treated injured Lata. P.W.9 Dr. Pawar states that he was appointed in 2004 as a Medical Officer and since then was in service as the Medical Officer. He further states that patient Lata Laxman Dhamale was admitted in the hospital at 1.30 p.m. on 28.8.2006. He states that he resumed his duty at 2.00 p.m. and was informed by Dr. Dhele - P.W.11 that the patient was admitted in Minor Operation Theatre. He further informed that the said patient had several stab injuries. He went near the patient and administered I.V. fluid and antibiotics to the patient. According to him, by administration of the I.V. fluid and antibiotics he attempted to maintain the blood pressure of the patient. Sutures were applied wherever they were essential. Dr. Nisale and Dr. Patil were called, who attended the patient along with P.W.9 Dr. Tushar Pawar. He states that on the same day at 2.45 p.m. the patient succumbed to her injuries and thereafter post mortem came to be conducted. He has produced the case papers of 7 injured Lata at Exh.39. In cross-examination he states that on the basis of the medical papers he can state that patient had been admitted in the hospital at 1.45 p.m. on 28.8.2006. He states that when he commenced his treatment, patient was semi-unconscious. He further states that in multiple stab injuries patient becomes semi-unconscious, unconscious and thereafter dies. 7. In respect of the recording of the dying declaration at Exh.51, Smt. Jadhav, learned Counsel for the appellant has urged before us that the medical papers disclose that Lata was admitted in the hospital at 1.45 p.m. The papers further disclose that the condition of Lata was irritable but she was conscious. The medical papers further disclose that at 2.00 p.m. her case was reviewed and it was found that her general condition was poor. According to the learned Counsel for the appellant, Lata succumbed to her injuries at about 2.45 p.m. It is, therefore, urged before us that the condition of Lata was extremely precarious as she had sustained 17 stab injuries which all were bleeding and on account of which Lata would not be in a position to give her statement as she could not be said to be oriented though she may be conscious. Learned A.P.P. has urged before us that in the light of evidence of P.W.11 Dr. Dhele and P.W.12 P.S.I. Pakhali, the question of consciousness of Lata, therefore, stands firmly established. 8 8. P.W.11 Dr. Chhaya Dhele, who had admitted Lata in the hospital at 1.45 p.m. in no uncertain terms states that though the condition of Lata was feeble, she was conscious. She had examined Lata prior to her statement being recorded by P.W.12 P.S.I. Pakhali. In no uncertain terms, P.W.11 Dr. Chhaya Dhele states that Lata was conscious and was in a condition to give her statement and in fact in her presence statement of Lata came to be recorded. P.W.11 Dr. Dhele has been cross-examined at length. Nothing has been elicited in the cross-examination of P.W.11 Dr. Dhele which would even remotely indicate that injured Lata was not in a fit mental state to have her statement recorded. She has denied the suggestion that Lata was not conscious and was not in a fit condition when her statement came to be recorded. Merely because Lata had sustained 17 stab injuries and succumbed to her injuries within 45 minutes of the recording of her statement at Exh.51 would not override the effect of the evidence of P.W.11 Dr. Dhele, who states that Lata was conscious when her statement was recorded as well as the evidence of P.W.12 P.I. Pakhali, who states that he had recorded the statement of Lata as per her say. The evidence of both these witnesses in no uncertain terms indicates that Lata had deposed and her statement came to be recorded by P.W.12 P.S.I. Pakhali. The fact that Lata was in a condition to give her statement is deposed to by P.W.11 Dr. Dhele. As pointed out by us earlier, nothing has been elicited in the cross- examination of these witnesses to even remotely come to a conclusion or draw an inference that the patient was not in a condition to give her 9 statement. As pointed out by us above, merely because condition of Lata had worsened and had succumbed to her injuries at 2.45 p.m. would not be an indication that she was not in a fit condition to give her statement. The medical papers disclosed that at 1.45 p.m. Lata was conscious though her condition was feeble. The medical papers do not at any point of time, particularly at 2.00 p.m. indicate that Lata was semi-unconscious. In fact, P.W.1 Dr. Pawar began treatment subsequently. The initial treatment was administered by P.W.11 Dr. Dhele. We are, therefore, not much inclined to attach any importance to the statement of P.W.9 Dr. Pawar that injured Lata was in semi-unconscious state. In any event, it appears that P.W.9 Dr. Pawar began treating Lata after the dying declaration at Exh.51 came to be recorded. If that be the case, the condition of Lata of a semi-unconscious state, would not in any manner whittle down the evidentiary value of the dying declaration at Exh.51. 9. It was urged before us by Smt. S.S. Jadhav, learned Counsel for the appellant that the evidence of P.W.1 Pooja, daughter of deceased Lata clearly supports the defence of the appellant/accused. P.W.1 Pooja, daughter of deceased Lata no doubt states about a quarrel which had erupted between P.W.4 Mahendra and her mother. She states about her mother asking her to fetch appellant Balaji from the market. She states about going to the market for informing accused Balaji and thereafter going to the hospital and returning back and learning about her mother being injured. This witness unfortunately was not cross-examined by the 10 prosecution. For some inexplicable reason the learned Prosecutor chose not to declare this witness hostile and cross-examine. Prosecution has also examined P.W.4 Mahendra to whom the accused has putforth his defence by way of suggestions. The aforesaid suggestions have been stoutly denied by P.W.4 Mahendra. The defence of the appellant/accused appears to be that it was P.W.4 Mahendra who had stabbed his mistress deceased Lata and it was not the appellant who had stabbed his sister deceased Lata. The accused cannot be said to have probablized his aforesaid defence on the strength of the infirm testimony of P.W.1 Pooja, who according to us ought to have been declared hostile by the prosecution. The evidence of Pooja is not corroborated from the evidence of any other prosecution witness. We are, therefore, not inclined to accept the plea that the defence of the appellant/accused has been probablized by the evidence of P.W.1 Pooja. 10. We have examined in detail and with meticulous care the evidence led by the prosecution in respect of recording of the dying declaration at Exh.51. According to us, the prosecution has established beyond reasonable doubt that deceased Lata had stated at Exh.51 that it was the appellant/accused who had inflicted the multiple stab injuries, which ultimately resulted in her death. Such reliable piece of evidence cannot be superseded nor white-washed by the admission of P.W.1 Pooja, who, apart from the fact was child witness, ought to have been declared hostile by the prosecution. The evidence of recording of the dying declaration 11 inspires confidence of the Court and, therefore, we have no hesitation in holding that the prosecution has been able to establish the offence against the accused beyond reasonable doubt. The accused had gone to the police station with blood stained clothes and had produced knife which came to be seized. The clothes on the person of the accused were found stained with blood of "A" group as well as the knife which was found stained with blood of "A" group. No doubt, the blood group of the appellant/accused is "A" group. However, since no ostensible injuries much less bleeding injuries were found on the person of the accused, the blood on his clothes would not amount to be satisfactorily explained by the appellant/accused. 11. Upon consideration of the rival submissions advanced before us by the learned Counsel for the parties and after taking into consideration the evidence on record, according to us the prosecution has been able to establish the offence against the appellant/accused beyond reasonable doubt. In that light of the matter, the appeal which is sans merit, therefore, deserves to be dismissed. Criminal Appeal No.500 of 2007 is accordingly dismissed confirming the conviction and sentence of the appellant.