1 APEAL.202-04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.202 OF 2004 1. Shri Ganesh Sakharam Kamble, ] Age : 24 years, Occupation : Business, ] 2. Shri Vinod Namdeo Salve, ] Age : 26 years, Occupation : Labourer, ] Both Resident of : 611, Kasewadi ] Zoppadpatti, Bhavanipeth, Pune. ] [Currently in Yeravada Jail] ] ..APPELLANTS. [Orig. Accused Nos.1 & 2] Versus The State of Maharashtra ] [at the instance of Khadak Police Station, ] Pune] ]..RESPONDENT. .......... Ms.Pranali Kakade, Advocate for the Appellants. Mrs.A.S. Pai, A.P.P. for the State. .......... CORAM : D. D. SINHA AND A .R. JOSHI, JJ. DATE OF RESERVING THE ORDER : 07TH JUNE, 2011. DATE OF PRONOUNCING THE ORDER : 03RD AUGUST, 2011 PPD 2 APEAL.202-04 ORAL JUDGMENT (PER A.R.JOSHI,J.) : 1. Heard rival arguments at length on this Appeal preferred by the Appellants/original accused Nos.1 & 2. Both the appellants were convicted in Sessions Case No.489 of 2002 vide order dated 30.12.2003 passed by the 3rd Ad-hoc Additional Sessions Judge, Pune. By the impugned judgment and order in Sessions Case No.489 of 2002 both the present appellants / accused Nos.1 & 2 were convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and were sentenced to suffer imprisonment for life and were directed to pay fine of Rs.500/- each, in default of payment of fine to suffer R.I. For six months each. In the said Sessions Case, total six accused were tried. However, accused Nos.3 to 6 were acquitted of all the charges. Admittedly, since date of arrest i.e. since 14.7.2002 both the appellants / accused Nos.1 & 2 were in jail and as such after the judgment and order of conviction they are still in jail till date. 2. After the present Appeal was admitted vide order dated 29.3.2004, the application for bail was rejected by another Division Bench and as such during pendency of the present Appeal, both the appellants / accused Nos.1 & 2 are in jail. Reportedly, there is no 3 APEAL.202-04 Appeal by the State challenging the acquittal of remaining accused Nos.3 to 6. 3. The case of the prosecution narrated in nutshell is as under :- One Firoz Kallu Shaikh ( since deceased ) was residing at Kasewadi, Bhawani Peth, Pune in the vicinity of the residence of one girl by name Swati. Allegedly said Swati and deceased Firoz had love affair. However, it was not approved by the present appellant No.1 / accused No.1 Ganesh (brother-in-law of Swati) and her mother and as such there were strained relations between the parties on account of such love affair and in fact there were earlier threats given by the present appellant No.1 / accused No.1 to the deceased and deceased was reprimanded by accused No.1 and was threatened of dire consequences of amputating his hands and legs. Apparently the love- affair continued and as such it resulted in doing away with Firoz and as such the incident occurred at the early hours of 11 th July, 2002. On the fateful day, deceased Firoz was sleeping on a hand-cart parked by the roadside of the locality where he was staying. His another friend namely Azij Shaikh ( PW-4 ) was also sleeping by his side. At that early hours allegedly present appellants and their other associates – total about 5-6 persons, gathered on the spot and started assaulting 4 APEAL.202-04 the deceased Firoz by means of weapons like sattur, sword etc. The attack on the deceased Firoz was rather severe inasmuch as he sustained about 56 injuries on various parts of his body. However, he did notice the presence of present appellants / accused Nos.1 & 2 as assailants along with other persons. He noticed appellant No.1 / accused No.1 possessing a sattur and appellant No.2 / accused No.2 possessing a sharp-edged weapon and also noticed that they inflicted blows on his person by the said weapons. He also noticed other assailants however could not identify them. After the incident of assault, all the assailants ran away from the spot. Due to commotion, persons in the locality gathered on the spot and carried the deceased Firoz in an auto-rickshaw to Kasewadi Police Outpost. Then the victim was taken to Sasoon Hospital by the police. The Medical Officer of Sasoon Hospital started treatment. 4. It is also the case of the prosecution that one API Dhananjay Solankar (PW-10) was on the night-round at early hours of 11th July, 2002 and received information regarding assault on the victim at Kasewadi locality and reached Kasewadi Outpost and learnt that the injured had been referred to Sasoon Hospital for treatment. He reached the Hospital and enquired with the Medical Officer and 5 APEAL.202-04 found that the injured Firoz was in a condition to give statement and accordingly recorded the statement of the victim. Allegedly, in the said statement, which is subsequently marked as Exhibit-67, names of the present appellants were specifically mentioned. After recording of the statement of the victim, endorsement of the attending Medical Officer (PW-12) was taken and said statement was treated as First Information Report. During the course of investigation, various panchnamas were conducted including the spot panchnama, and statements of various witnesses were recorded. While under medical treatment, at about 11 a.m. or so the victim Firoz succumbed to the injuries. Inquest panchnama was conducted and postmortem on the dead body was conducted. Offence punishable under Section 302 of IPC was added in the chargsheet. 5. During the course of investigation, the appellants were arrested. The clothes of the accused were taken charge of under different panchnamas. Memorandum statement of the present appellant No.1 / accused No.1 was recorded and in furtherance of the same, weapon allegedly used by appellant No.1 / accused No.1 was recovered under the panchnama. Seized muddemal articles and weapons were sent for chemical analysis. On completion of the 6 APEAL.202-04 investigation, chargesheet was filed against the six accused persons including the present appellants. 6. Prior to appreciating the rival submissions, in order to determine the points in controversy and to bring down the scope of the arguments advanced on behalf of the appellants, certain factual position as emerged from the prosecution evidence brought before the trial Court, is as under : [i] All the alleged eye witnesses i.e. PW-4 Azij Shaikh, PW-5 Raju Momin and PW-11 Rangnath Jadhav have turned hostile to the case of the prosecution on the aspect of actual involvement of the appellants / accused Nos.1 & 2 in the assault on the deceased Firoz. [ii] The panch witnesses i.e. PW-1 Madhukar Shinde for spot panchnama, PW-2 Ayub Shaikh for seizure of clothes of the deceased, PW-6 Prafulla Jani for seizure of clothes of accused and PW-8 Altaf Shaikh for memorandum panchnama & seizure of weapon from accused No.1, had turned hostile to the case of the prosecution. [iii] PW-10 PSI Dhananjay Solankar recorded the statement of then injured Firoz Shaikh, who was taking treatment in the hospital and said statement Exhibit-67 was treated as FIR and said statement is bearing endorsement of the then attending Doctor PW-12 Dr.Kaustub Kulkarni who had examined injured Firoz and found him conscious and oriented for giving his statement to 7 APEAL.202-04 the police. [iv] Victim Firoz Shaik died in the hospital while taking treatment at about 11:00 a.m. on 11.7.2002. His postmortem was conducted by PW-13 Dr.Milind Wable and as much as 56 injuries mainly on the hands, legs and other parts of the body, were found on the dead body and many of the injuries were linear abrasions and incised wounds. One of the injuries was chopped wound on the right little finger. Most of the injuries were on the limbs. As such, death of Firoz Shaikh was homicidal. 7. Bearing in mind the above factual position, the arguments advanced on behalf of the appellants / accused Nos.1 & 2 are required to be considered. Learned Counsel Ms.Pranali Kakade for the appellants submitted that since the alleged eye witnesses turned hostile, the entire case is based on the circumstantial evidence and mainly on the dying declaration of the victim which is at Exhibit-67. It is submitted that the alleged dying declaration of victim Firoz Shaikh, is unacceptable as there is no corroboration to his statement. To further this argument, it is pointed out to us that the substantive evidence of PW-7 Smt.Farida (mother of the victim) is required to be scrutinized with care and caution inasmuch as she had improved on her story than that given before the police. On this aspect it is 8 APEAL.202-04 submitted on behalf of the appellants that PW-7 had given the names of other accused also, as said names were told to her by her son Firoz while taking treatment in the hospital. On this aspect, it is further argued that the statement of Firoz Shaikh (Exhibit-67) does not disclose the names of other assailants except the names of the present appellants / accused Nos.1 & 2. It is further submitted that the substantive evidence of PW-7 cannot be taken as a corroboration to the dying declaration of victim. Lastly, it is argued that the names of any of the accused persons including the present appellants were not at all mentioned in the medical history given by the brother of the deceased while admitting the victim Firoz Shaikh in the hospital. This factual position can be established from the substantive evidence of PW-12 Dr.Kaustub Kulkarni, further argued. 8. Counter to the above arguments, learned A.P.P. Mrs.A.S. Pai brought our attention to the contents of Exhibit-67 – the detailed statement of the victim recorded by PW-10 PSI Solankar. Learned A.P.P. also placed reliance on the substantive evidence of PW-12 Dr.Kaustub Kulkarni and stated that there is corroboration by way of substantive evidence of PW-12 to the contents of the dying declaration. Apart from this, it is also argued that the dying 9 APEAL.202-04 declaration if inspires confidence as to its authenticity, can alone be taken into consideration for conviction of the accused persons if such dying declaration implicate them beyond a reasonable doubt. 9. Considering the admitted factual position mentioned above and considering the rival arguments, it is to be ascertained in the present Appeal – as to whether the dying declaration (Exhibit-67) can be accepted in order to implicate the present appellants / accused Nos.1 & 2 in the offence of murder. In order to answer this point, it is to be seen whether the authenticity of the dying declaration of the victim i.e. Exhibit-67 is established and for this purpose the substantive evidence of PW-10 Dhananjay Solankar and that of PW-12 Dr.Kaustub Kulkarni is required to be scrutinized. 10. Firstly, coming to the substantive evidence of PW-10 PSI Dhananjay Solankar, it must be said that on the fateful night he was on the night-duty and received information that one person is assaulted at Kasewadi and as such he reached Kasewadi Outpost at about 3:00 a.m. on 11.7.2002 and revealed that injured had been referred to Sasoon Hospital. Accordingly, he reached the Sasoon Hospital and met the attending Doctor and came to know the name of the injured as – Firoz Kallu Shaikh. From the Medical Officer, he 10 APEAL.202-04 came to know that the injured was taking treatment in Ward. Sensing the emergency of the hour, he told the Medical Officer that he wanted to record the statement of the injured and requested him to ascertain the condition of the patient as to whether patient was in a position to give the statement or not. On this the Medical Officer (PW-12) examined the injured and found that the said injured was in a position to give the statement. Apparently, at that time the relatives of the injured were not present in the Ward. According to PW-10, Firoz Shaikh narrated the entire incident inasmuch as on 11.7.2002 he was sleeping on the four-wheel cart in front of the house of his maternal- uncle. His friend was with him. At about 3:00 to 3:30 a.m. he was awakened by the fall of his friend on the ground. That time he realized that blood was coming out of his ear and he put hand on his ear. He also noticed presence of present appellants / accused Nos.1 & 2 armed with weapons and inflicting the injuries on his person. He noticed that Sattur was in the hand of appellant No.1 / accused No.1 and one sharp-edged weapon was in the hand of appellant No.2 / accused No.2. He also noticed some other persons, but, could not identify them. According to PW-10 this was the statement given by the victim – Firoz Shaikh. As both the hands of Firoz Shaikh were 11 APEAL.202-04 bandaged, his left leg thumb impression was obtained on the statement. So also, the endorsement of the attending Doctor PW-12 Dr.Kaustub Kulkarni was obtained. Said endorsement reads as “patient is conscious and oriented”. The said endorsement is signed by PW-12 Dr.Kaustub Kulkarni. Now after going through the substantive evidence of PW-12 Dr.Kaustub Kulkarni, it must be said that his evidence is corroborating the evidence of PW-10 as to recording of the statement and more specifically as to the condition of the injured Firoz Shaikh who was fit to give his statement. It is an admitted position that history given by the patient and his brother was of assault at home at Kasewadi, Bhavani Peth, Pune and assault by sharp and blunt object. On initial examination of the victim, it was found that he was bleeding from both the ears, but, there was no history of unconsciousness or vomiting or convulsions. The substantive evidence of PW-12 shows that he examined the patient, his general condition was stable, he was fully conscious and oriented, and his pupils were normal. In para-6 further substantive evidence of PW-12 shows that he was present at the time of recording the statement of the injured Firoz Kallu Shaikh on 11.7.2002 in Ward No.12 in Sasoon Hospital. Prior to recording the statement the 12 APEAL.202-04 concerned police officer had approached him and asked him whether the patient is in a state to give the statement or not. He then examined the patient and came to the conclusion that the patient is fully conscious and oriented to give the statement. Thereafter the concerned police officer started recording the statement of the patient. After recording the statement he made endorsement under his signature that the patient is conscious and oriented. It bears his endorsement under his signature. 11. Considering the import of the substantive evidence of PW-10 and PW-12, as detailed above, in our considered opinion, said evidence of dying declaration is to be accepted wherein the names of the present appellants / accused Nos.1 & 2 are stated and also stated about specific roles played by them as well as weapons used. 12. Bearing in mind this substantive evidence, the evidence of PW-7 Farida Shaikh (mother of the victim) can be scrutinized. In her substantive evidence PW-7 mentioned that on the relevant night, Firoz was sleeping on the four-wheel cart of Aziz. At about 3:30 a.m. Rangnath Jadhav came to her house and knocked the door. He told that Firoz was assaulted by Ganesh Kamble, Vinod and Dhanraj More 13 APEAL.202-04 and another boy by name Ganesh. Further, the substantive evidence of PW-7 is reproduced verbatim, as appearing in para-2 of her evidence, which reads as under :- “ .... I rushed there by running and noticed Firoz in the pool of blood. My son told me that he is assaulted by Ganesh and 5 to 6 boys. In the hospital also my son told me the names of Ganesh Kamble, Dhanraj Yadaade, Ambadas More, and another Ganesh, Bapu Londhe. I recognize the said boys. (The witness has pointed out the accused who were sitting in the court and stated that these are the same boys).” 13. Much is argued on behalf of the appellants on the above substantive evidence of PW-7 Farida Shaikh (mother of the victim) and it was pointed out that the said witness had improved upon her statement inasmuch as she has taken the name of other accused persons apart from the name of accused No.1, however, she had not taken the name of accused No.2. Much emphasis was placed on the substantive evidence of PW-7 that she knew regarding the assault from Rangnath Jadhav (PW-11). It is an admitted position that said PW-11 Rangnath Jadhav did not support the case of the prosecution regarding any assault and narrating about it to PW-7. By pointing out 14 APEAL.202-04 this position, it is further argued that this is hearsay and hence not acceptable. There is no dispute regarding this factual position as argued on behalf of the appellants. Moreover, it is apparent from the substantive evidence of PW-10 that only the names of present appellants / accused Nos.1 & 2 were narrated by the victim while giving his statement. However, according to PW-7 her son (victim Firoz Shaikh) had given the names of other persons also. This discrepancy is much highlighted by Miss.Pranali Kakade– the learned Counsel for the appellants, and it is submitted that on this count itself the substantive evidence of PW-7 is not acceptable. It is further argued that in the police statement PW-7 did not mention that she knew the names of the assailants through her son. According to learned Counsel for the Appellants this is the omission and which is material rendering the evidence of PW-7 unacceptable. This omission has not been proved by the defence by putting questions to the Investigating Officer. In that event, the argument on behalf of the appellants / accused cannot be accepted. All the same, considering arguments and the evidence of PW-7 not corroborating the case of the prosecution as to the contents of the statement of the victim, in our opinion there is sufficient corroboration to such statement by way of 15 APEAL.202-04 substantive evidence of Medical Officer PW-12. In our view, consequently the contents of the said statement Exhibit-67 can safely be relied upon and corroborated by the evidence of PW-12 which implicate the appellants / accused Nos.1 & 2 for the offence of murder of Firoz. 14. Needless to mention that for establishing a guilt of an accused person, the nature of evidence must be sufficient to prove case of the prosecution against the accused beyond a reasonable doubt. In the case in hand even though all the eye witnesses and also the panchas were declared hostile, the remaining evidence is sufficient to hold the appellants / accused Nos.1 & 2 guilty of the offence of murder. It is not fatal to the prosecution that the names of the assailants are not mentioned in the admission-papers when the victim was brought to the hospital for emergency treatment. 15. Needless to mention that dying declaration if truthful, reliable and trustworthy conviction can be based on this sole evidence without there being any corroboration from other source, however, rule of prudence is to seek corroboration. The victim and the appellants were knowing each other. There was love affair between PW-3 Swati and the victim, and it was not liked by appellant No.1 / 16 APEAL.202-04 accused No.1 and his other relatives. As such, considering these circumstances, in our view there is nothing to doubt involvement of the appellants / accused Nos.1 & 2 in the offence of murder. 16. In the result, there is no merit in the present Appeal and the same is accordingly disposed of with following order :- :: O R D E R :: i. Criminal Appeal No.202 of 2004 stands dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)