1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No.43/2010 In Criminal Appeal No.546/2009 [Gokulprasad Basantprasad Pansare .vrs. State of Maharashtra] ........................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ........................................................................................................................................ CORAM : A.P. LAVANDE & P.D. KODE, JJ. RESERVED ON : JULY 13, 2010 PRONOUNCED ON : JULY 19, 2010 Heard Mr. S.V. Sirpurkar, learned counsel for the applicant/appellant and Mr. T.A. Mirza, learned APP for the non- applicant/respondent. The applicant has prayed for suspension of substantive sentence imposed upon him and for releasing him on bail during pendency of the appeal preferred by him. By the judgment and order recorded on 2.11.2009 in Sessions Case No.4/2000, learned Additional Sessions Judge, Chandrapur has convicted the applicant for offences under Sections 302, 449 and 342 of IPC and sentenced him to suffer life imprisonment and a fine of Rs.2,000/-, i/d R.I. for 2 months on the 1st count ; R.I. For 2 months and a fine of Rs.500/- i/d S.I. for one month on 2nd count and R.I. for 2 months and a fine of Rs.500/- i/d S.I. for one month on 3rd count One more co-accused tried along with the applicant at the said trial was acquitted from the charge of commission of such offences. Such of the facts as are necessary for decision of this application are as under : The incident in question had occurred at 1.30 a.m. in the 2 night in between 17th and 18th of September, 2008 in room in which deceased Bharat Yadav was residing in the house of Manohar Duryodhan in Ward No.5 at Gadchandur, Tahsil–Korpana. Upon dying declaration Exh.30 of deceased recorded by PW9 ASI Sanjay Shirbhare, the FIR was registered. As per said dying declaration-cum-FIR, deceased was having an affair with one Maya Pansare (PW12) and had kept her as his concubine and they were residing as husband and wife. On 22.8.2008 deceased had been to Ballarsha and from the said place he had returned to Gadchandur on 3.9.2008 and found that his mistress was not at his place. Deceased had then enquired with the relatives of Maya but she was not traced out. On 9.9.2008 he had enquired with Smt. Kamlabai Nakshine, the friend of Maya and she had informed that his wife Maya had left with Gokulprasad of Uparwahi. On 12.9.2008 deceased found one letter in his house purported to be written by the applicant in which deceased was threatened of dire consequences in event of making enquiry or filing any complaint regarding Maya. Thereon deceased under the feeling that said letter was written by applicant had filed report against the applicant regarding the same. On 18.9.2008 deceased returned from ‘Bhajan’ by 00.30 hours. Around 1.30 hours his door was knocked with call “Bharat Bharat”. He opened the door. Two persons entered the room with applicant following them. The applicant questioned as to why deceased had lodged report with Police Station and he should take his wife back from him. Thereon deceased replied as to why applicant had taken his wife and now he was not going to take her back. Thereafter, one of the person pressed mouth of deceased, another took can in the house and sprinkled kerosene in the house and on the person of deceased from rear side. Both of them left the room and applicant threw a lighted match-stick on person of deceased because of which deceased started burning. Applicant closed the door from outside. Upon hearing the shouts of deceased ‘Dhav Bhachao Bhachao’ 3 neighbour-tenant Pradip Upare (PW1) opened the door. Deceased came out of the house. PW1 and Shamlal Duryodhan extinguished the fire by pouring water and brought deceased at Gadchandur Hospital. After recording Exh.30, PW9 called Naib Tahsilar PW5 Madhukar Kasturkar for recording dying declaration of deceased and accordingly he recorded dying declaration Exh.40. PW9 visited the spot and drew spot panchanama Exh.32 and seized articles lying on spot inclusive of kerosene can, two burnt match-sticks, match-box and threat letter. He arrested the applicant on 18.9.2008 and seized his clothes, mobile sim. On 23.9.2008 deceased succumbed to the burn injuries and inquest panchanama of the corpse was drawn and same was sent for post-mortem. The offence of murder was added to the crime already registered. At the conclusion, applicant and acquitted co- accused were chargesheeted. The prosecution had examined in all 13 witnesses at the trial. The defence of applicant was that of total denial and false implication. After appreciating evidence adduced, the trial court had convicted and sentenced the applicant as narrated hereinabove. Mr. Sirpurkar, learned counsel for the applicant, urged that there was no eyewitnesses for the crime. The conviction is rested upon the circumstantial evidence in shape of dying declaration-cum-FIR Exh.30 and dying declaration Exh.40 of deceased respecitvely recorded by PW9 and by Executive Magistrate PW5 and oral dying declaration allegedly made by the deceased to PW1, son of the landlord of deceased and PW2. He urged that all said evidence of said witness is fragile and insufficient to connect the applicant with the incident or lead to the conclusion of guilt of applicant as erroneously arrived by trial Court. He urged that the evidence of PW5 does not prove Exh.30 in the manner as ruled in the decision of this Court in the case of Deorao Sonbaji Bhalerao and another .vrs. State of Maharashtra, reported in 2008 ALL MR (Cri) 1921 and hence same will be required 4 to be left out of consideration and as such the same is not helpful to establish link of applicant with the death of deceased. He urged that the claim of PW1 that he was present when dying declaration of deceased was recorded by police-PW9 at the hospital and in said statement deceased had implicated the applicant being in the nature of improvement at trial has been brought on record and the relevant omissions has been duly proved. He urged that the claim of PW2 of deceased at the hospital having made a dying declaration and during the same had implicated the applicant as a perpetrator of the crime also being in the nature of improvement has been brought on the record by duly establishing relevant omissions regarding the relevant aspect. He urged thus both claims even upon prima facie consideration deserves to be discarded and as such their evidence is not helpful to the prosecution for establishing the guilt of the applicant. He urged that prosecution evidence also fails to prove motive behind the crime as the report of handwriting expert regarding the alleged chit recovered is inconclusive. He further urged that the evidence of prosecution witness PW12 Maya clearly establishes that in the relevant night the applicant was in her house. He further urged that even the evidence of PW9 and dying declaration Exh.30 recorded by him is also insufficient to establish the applicant being culprit as name of the person who had thrown the stick is said to be “Gokulprasad” and identity of applicant as being the said Gokulprasad is not established by the said evidence or any other evidence. The learned counsel urged that in spite of deceased being alive for a period of 7 days after the incident still the investigating officer has not taken any steps to get it confirmed by taking appropriate steps for the same, including holding test identification parade. He urged that kerosene being an article of common use merely because the same was detected upon clothes of the applicant would not be an incriminating circumstance advancing the prosecution case as hardly there is any other evidence to link the applicant with the crime committed. The learned counsel thus urged that considering such 5 character of prosecution evidence the applicant deserves to be released on bail during pendency of appeal as he has fair chances of success in the same. Mr. Mirza, learned APP vehemently opposed the grant of bail by stating that the guilt of applicant for offence of murder has been duly proved by the evidence adduced by the prosecution. Though learned APP fairly admitted that as per the decision of this court referred by the learned counsel for the applicant, dying declaration Exh.40 cannot be said to have been properly proved and will be required to be excluded still there exists sufficient evidence to establish guilt of the applicant for offence of murder. He urged that evidence of PW9 and dying declaration Exh.30 duly establishe the same. He urged that even the said evidence is duly corroborated by the evidence of PW1 and PW2 atleast in the respect of fact of dying declaration of deceased being recorded by PW9 in hospital. He urged that considering evidence of PW9 and Exh.30 the same prima facie reveals Gokulprasad mentioned in the dying declaration made by the deceased being nobody else but the applicant. Such a facet is clearly established by Exh.30 itself as the said duly proved dying declaration will be required to be read as a whole and upon such a reading the same clearly reveals that Gokulprasad referred in the later part is none else but the one whose details were given by the deceased in earlier part of same dying declaration. Learned APP further urged the truth of the prosecution case is also found assured by the circumstance of kerosene being detected upon clothes of applicant. He urged that having regard to the same it is difficult to conclude that identity of the applicant as being said Gokulprasad is not established by the prosecution by other evidence. He urged that considering the percentage of burn injuries then sustained by the deceased and his then condition it could not be expected that I.O. Could have or ought to have held identification parade. He urged that the trial Court having arrived at the conclusion about guilt of applicant after assessment of the prosecution 6 evidence at present stage of bail pending the appeal the same cannot be reassessed as tried to be attempted by learned counsel for the applicant. He thus contended that guilt of applicant being prima facie borne from the evidence surfaced at the trial as such no error being committed by the trial court in convicting and sentencing the applicant, he is not entitled to be released on bail. He urged that the applicant was not granted bail during the course of trial. After carefully perusing the record and the decision relied and considering rival submissions, we find it difficult to find any merit in the prayer for bail made by the applicant who has been found guilty for commission of offence after assessment of the evidence led by the prosecution at trial. We are of such a opinion in spite of there being substance in the submissions canvassed by learned counsel for the applicant for leaving out of consideration the dying declaration Exh.40 recorded by PW5, in view of the same being not proved in accordance with law as ruled in the decision of case Deorao (supra) to which one of us (A.P. Lavande, J.) was party and so also the claim staked by PW1 and PW2 of implicating applicant as an culprit being liable to be discarded on the count of the same being improvement. We are of such a opinion as upon prima facie consideration of record it is difficult for us to accept the submission that identity of applicant as the said culprit “Gokulprasad” is not borne from the evidence of PW9 and dying declaration-cum-FIR Exh.30 recorded by him. We are of such a considered opinion as prima facie there is reference to only one Gokulprasad in the said dying declaration and his details by way of residential address and so also as the person against whom complaint was lodged by the deceased regarding writing of letter are found mentioned. Having regard to the same at present stage we find it difficult to accept the submission that prima facie identity was not borne from the evidence which was placed before the trial court and upon which the trial court has rested the conviction after taking into consideration the other evidence. Needless to add that in the same context the evidence having prima facie revealed that the applicant was 7 immediately arrested on 18th of September, 2008 at about 14.30 hours and clothes on his person were seized and sent to C.A. and kerosene was detected upon the same is prima facie a factor supporting complicity of the applicant. Similarly after prima facie considering evidence of PW12 Maya and the same revealing of having admitted in the cross examination in the earlier part to the question : whether in the night Gokulprasad had not left the house in the night hours, PW12 having answered that she did not know and that she had slept and thereafter she was confronted with her police statement with portion to somewhat contrary effect also makes us to prima facie believe that by her evidence presence of the applicant from the spot at the time of incident does not stand excluded or same establishes alibi. As a result of the aforesaid discussion we are of considered opinion that there exists evidence prima facie establishing guilt of the accused for the offences for which he is convicted and sentenced and as such there being no merit in the application preferred. Before parting with the order, we earnestly feel it necessary to mention that in the instant case the evidence of Naib Tahsildar PW5 was recorded on 3.10.2009. The decision in present case was delivered on 2.11.2009 much after delivery of judgment of this Court on 30th June, 2008 in the case of Deorao Sonbaji Bhalerao and another .vrs. State of Maharashtra (2008 ALL MR (Cri) 1921, wherein requirement of law for proving a dying declaration recorded was fully explained. In spite of the same no steps were taken by concerned for properly proving the dying declaration recorded by Naib Tahsildar. Furthermore we are coming across the number of similar matters in such steps are not found to be taken. Since the judgment in case of Deorao has been already ordered to be circulated , we hope that at least in future necessary steps would be taken for proving such dying declaration to avoid occurring of miscarriage of justice due to admissible evidence being not properly adduced at the trial. As a result of the earlier discussion and with the aforesaid 8 observations, we dismiss the application. The application stands disposed of accordingly. JUDGE JUDGE halwai/gulande.