1 Cri.Appeal No. 242 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 242 OF 2009 Awez Ahmed s/o Fazal Ahmed, Age : 24 years, R/o Itwara, Bhusarline, Nanded, District Nanded ..APPELLANT VERSUS State of Maharashtra ..RESPONDENT Mr Joydeep Chatterji, Advocate for the appellant; Mr N.H. Borade, A.P.P. for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 5th January, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/-, in default to undergo further imprisonment for six months, by the Additional Sessions Judge, 2 Cri.Appeal No. 242 of 2009 Nanded, by judgment dated 23.2.2009, in Sessions Case No.60 of 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 :- P.W.10 Uttam Bahirwad, a Police Constable who was on duty on 1.12.2007 at the Vishnupuri Dam saw a car coming from Asarjan village towards the river side by the dirt road at about 12.30 to 12.45 p.m. After some time he heard the cries "save, save". P.W.10 Police Constable Bahirwad along with others rushed towards the place from where he had heard the cries. On going there he noticed an injured boy named Avesh (deceased), who was lying on the boundary of the agricultural field. P.W. 10 Bahirwad thereafter informed the police station and inquired from the injured his name and the injured told his name as Avesh. The injured further disclosed that the appellant/accused named Avej ha lured him and brought him to that place and poured acid and thereafter had stabbed him with a knife. A call was received on the mobile phone of the injured and P.W.10 Bahirwad accordingly informed the caller that acid was thrown on the injured and the injured had been stabbed. Thereafter a police vehicle came at the scene and the brothers of the injured also arrived in the meantime. The injured was placed in a police jeep and taken to the Government Hospital. P.W.22 P.S.I. Dighole was directed by P.W.23 P.I. Bhokare to rush to the Vishnupuri Dam. P.W.22 P.S.I. 3 Cri.Appeal No. 242 of 2009 Dighole along with the staff went to the scene of the offence. The injured was then placed in a police jeep and shifted to the hospital. A requisition at Exh.92 came to be issued to the Magistrate for recording the dying declaration. P.W.22 P.S.I. Dighole expressed his desire to record the statement of the injured and accordingly P.W.24 Dr. Tilak, who was present in the ward informed P.W.22 P.S.I. Dighole that the injured was in a fit condition to give his statement and accordingly recording of the statement of the injured commenced. The injured, however, could not complete the statement as he became unconscious. Thereafter P.W. 20 Prashant Rajvaidya, who was Judicial Magistrate First Class, on receipt of the requisition arrived at the hospital. P.W.21 Dr. Dongre certified that the injured was in a fit condition to give his statement and accordingly the recording of the statement of the injured commenced. Midway the injured experienced some respiratory problem and on examining him P.W.21 Dr. Dongre opined that the injured was not in a position to give further statement. The incomplete dying declaration recorded by P.W.20 Prashant Rajvaidya is at Exh.94 while the statement of the injured recorded by P.W.22 P.S.I. Dighole is at Exh.99. Meanwhile P.W.1 Mohd. Afsar, brother of deceased Avesh lodged the report at Exh. 33, on the basis of which an offence vide Crime No.275/2007 under section 307 of the Indian Penal Code came to be registered at 3.45 p.m. Upon registration of the Crime, P.W.23 P.I. Gokave proceeded to the scene of the incident and requested P.W.11 Sarang, a Photographer to take photographs of the scene of the offence. From the scene of the 4 Cri.Appeal No. 242 of 2009 offence an acid kettle/container containing some acid, one steel tumbler, knife, foot-wear of the left foot and one cap came to be seized. The vehicle, an Indigo silver coloured car bearing registration No.MH 26 N 272 was also seized. Acid stains were found on the front and the back seat of the car and one foot-wear of the right leg was found in the car. Blood stains were also found in the car. The dickey of the car was found open and lid of the kettle was found in the dickey. Exhs.51 to 64 are the photographs of the scene of the offence. 3. Meanwhile, information was received that the injured Avesh had succumbed to his injuries and accordingly inquest panchnama of the dead body of the injured came to be drawn at Exh.38 in the presence of P.W.3 Mohd. Ismile. Dead body of deceased Avesh was referred for post mortem examination and post mortem on the dead body came to be performed by P.W.12 Dr. Shirin Bande Ali. P.W.12 Dr. Bande Ali noticed chemical burn injury of 54% on the head, neck and face, right and left upper limb, chest, right and left lower limb. He also noticed a stab injury on the neck near the carotid region 3 x 2 x 1 cm. He noticed another stab injury on the mid line of sternum, 3 x 1/2 x 1/2 cm. He also noticed a cut injury over the right index finger, 3 x 2 x 1 cm. P.W.12 Dr. Bande Ali opined that all the injuries were ante mortem. P.W.12 Medical Officer further opined that the burn injuries and injury no.2, i.e. stab injury over the neck were sufficient to cause death in the ordinary course of nature. The Medical Officer opined that the cause of death was shock due to 5 Cri.Appeal No. 242 of 2009 54% chemical burn injury with stab injury. The post mortem report is at Exh.76. Meanwhile, police staff was deputed for arresting the accused. Clothes which had been worn by the accused came to be seized vide panchnama at Exh.42 in the presence of P.W.6 Jitendra from P.W.14 Munirabegum. On 8th the appellant/accused came to be arrested at Aurangabad. He was referred for medical examination and was examined by P.W.13 Dr. Durge. He noticed one old burn mark on the right and left palm, right forearm and left forearm. He opined that the injuries had been sustained prior to 24 hours. He accordingly issued the certificate at Exh.80. He has opined that the injuries could be caused while throwing nitric acid. Statements of witnesses under section 164 of the Code of Criminal Procedure came to be recorded. Seized property was referred for chemical examination along with the requisition at Exh. 86. The C.A. reports are Exhs.23 TO 28. The C.A. reports disclose that the blood group of deceased was "A" group while that of the accused was "O" group. The clothes of accused were found stained with blood of "A" group. Similarly, one of the knives which was found at the scene of the offence was found stained with blood of "A" group. The container which was found in the kettle as well as the steel glass, which was seized from the scene of the offence contained nitric acid. Similarly, nitric acid was detected on the cap, knives and the clothes of the deceased. Nitric acid was also detected on the clothes of the accused. Further to the completion of investigation a charge-sheet against the accused came to be filed. 6 Cri.Appeal No. 242 of 2009 4. On committal of the case to Court of Sessions, Trial Court vide Exh.4 framed charge against the appellant for offence punishable under section 302 of the Indian Penal Code. The accused denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 24 witnesses. The defence of the appellant as can be seen from the written defence submitted by him is that the deceased drove the car towards the Vishnupuri Dam and dashed the car against a tree. Deceased alighted from the car and attempted to stab the accused. There was scuffle between the deceased and the accused and the accused pushed the deceased and thereafter the deceased removed a can and attempted to pour some chemical on the accused, which attack the accused repulsed and in that process chemical fell on the head and the face of the deceased. Some chemical also fell on the hands of the accused. Since the deceased had exhibited an aggressive intent, the accused fled from the scene. The Trial Court, accepting the evidence of the prosecution witnesses and repelling the defence of the accused convicted and sentenced the accused as aforestated. 5. In order to appreciate and effectively deal with the submissions advanced before us by Shri Chatterji, learned Counsel for the appellant and Shri Borade, learned Assistant Public Prosecutor for the State, it would be useful to refer to the evidence of the prosecution witnesses. 7 Cri.Appeal No. 242 of 2009 The prosecution unfolds its case through the evidence of P.W.1 Mohd. Afsar, brother of deceased and the first informant. P.W.1 Mohd. Afsar states that the accused and the deceased were initially good friends but on account of a quarrel between them over a miss call given by the deceased to the accused they were not on talking terms. About fifteen days prior to the incident they had resumed their friendship and started visiting each other. Marriage of accused was fixed on 30.12.2007 and, therefore, the accused had asked the deceased to accompany him to Hyderabad, but the deceased was not willing to go who, therefore, was avoiding the accused. On 1.12.2007 at about 11.45 a.m. to 12.00 p.m. the accused came to his house in a Tata Indigo car bearing registration No.MH 26 N 272. The accused called the deceased and, therefore, the deceased went with the accused in his car. the deceased was driving the car while the accused sat on the rear seat. P.W.1 Mohd. Afsar experienced some uneasiness and, therefore, at about 1.15 p.m. telephoned the deceased on his cell phone, the number of which was 9890908785. The call was answered by some one, who told P.W.1 Mohd. Afsar that the accused had thrown acid on his brother and had assaulted him by a knife near Vishnupuri Dam. P.W.1 Mohd. Afsar along with his brother Khusro and his friends P.W.9 Majid and one Mujib rushed to the scene of the incident. There they saw that the police had arrived at the scene and the police had kept injured Avesh in a police jeep. P.W.1 Mohd. Afsar also sat in the jeep and questioned his brother injured Avesh as to how he had sustained the injuries. The injured 8 Cri.Appeal No. 242 of 2009 informed him that he had been deceived and brought near the Vishnupuri Dam by the accused who threw acid on him and stabbed him with a knife. Avesh thereafter was taken to the Government Hospital at Nanded. A complaint at Exh.33 came to be lodged subsequently. Avesh succumbed to his injuries at about 5.00 to 5.30 p.m. In cross-examination he has admitted that he knows P.W.8 Khaja. He has also admitted that Abdul Razak, Majid, Mujib and Sk. Irshad were all friends of the deceased. P.W.8 Khaja Mujiboddin was also their friend. He has also admitted that father of the accused gives his vehicle on hire. He has also admitted that the Tata Indigo car No.MH 26 N 272 is also given on hire. He has also admitted as correct that the deceased and the accused being friends were frequently going out in the car together. He has admitted that a quarrel between the deceased and the accused had taken place in the hotel of P.W.8 Khaja and at that time P.W.1 Mohd. Afsar was not present. He has also admitted as correct that on the day of the incident, at about 1.00 p.m. Mujib and Majid had come to his house to inform him that the deceased was injured. Both of them had informed that they had received a telephone that they had called the cell phone of the deceased. He has admitted that acid was seen on the person of his brother Avesh from his head upto his thighs. He has also admitted that the lips were also burnt on account of the acid. He has admitted that when the police recorded the statement of injured Avesh, he was by his side. He has denied the suggestion that on account of the burns to the lips, Avesh was not in a position to speak and was already unconscious 9 Cri.Appeal No. 242 of 2009 when he was admitted in the hospital. He has also admitted that apart from the misunderstanding over the miss call, there was no enmity between the deceased and the accused. He has denied the suggestion that the persons who had gathered at the scene had informed him that there was a quarrel between the deceased and the accused in which the deceased had tried to pour acid on the accused and to save himself the accused had pushed the Can containing the acid and the contents of the Can had fallen on the deceased. He has also denied the suggestion that in the process some acid had also fallen on the hands and palms of the accused. He has also denied the suggestion that there was a scuffle and in the scuffle the deceased had sustained injury by a knife. 6. We have carefully examined the evidence of P.W.1 Mohd. Afsar and according to us despite searching cross-examination P.W.1 Mohd. Afsar has emerged as a reliable witness. Evidence of P.W.1 Mohd. Afsar regarding the oral dying declaration is also corroborated by the evidence of P.W.10 Police Constable Uttam as well as by the evidence of P.W.9 Majid. The prosecution has also examined other witnesses in respect of the oral dying declaration made to them as well as to P.W.1 Mohd. Afsar. In the first information report at Exh.33, there is a recital about the oral dying declaration made by injured Avesh to P.W.1 Mohd. Afsar. 7. Prosecution has also examined P.W.4 Baburao and P.W.5 Tukaram, who are eye-witnesses to the incident. P.W.4 Baburao states 10 Cri.Appeal No. 242 of 2009 that he is an agriculturist having his agricultural land near the Vishnupuri Dam. He states that on 1.12.2007 he was working in his field and at about 12.30 to 1.00 p.m. he noticed a white car coming towards Vishnupuri Dam. Thereafter he heard shouts for help and, therefore, ran in the direction of the shouts. He states that others had also rushed there. He states that near the car he saw two boys and one of the boys had sustained injuries by acid while the other boy was stabbing him with a knife. He states that they rushed to rescue the boy under the attack and the assailant thereafter fled towards the Dam. He states that the injured was taken to his field and thereafter a policeman from the Dam was called. He states that the injured had informed him that his name was Avesh and that his friend Avej had assaulted him. P.W.4 Baburao candidly admitted that he would not be able to identify the assailant. In cross-examination he has admitted as correct that one Namdeo, on witnessing the burnt face of the injured got petrified and ran away. He has also denied the suggestion that the injured was not in a position to speak. He has admitted that he had not informed his uncle as to what the injured had told him. He has also admitted that he was working at a distance of about 160 ft. from the scene of the incident. 8. P.W.5 Tukaram states that he is an employee in the Irrigation Department and was working at the Vishnupuri Dam. At about 12.30 to 1.00 p.m. he heard shouts as "save, save". At that time P.W.10 Police Constable Uttam Bahirwad was present along with him. They both ran 11 Cri.Appeal No. 242 of 2009 towards the place from where the cries were coming and saw a boy with injuries. He states that they asked his name and he told his name as Avej and further disclosed that his friend Avesh had brought him there by deceiving him and thereafter had assaulted him. He then states that the Police Constable received a call on the mobile phone of the injured and the Police Constable accordingly answered that call. He also states that P.W.10 Constable Uttam informed the police station and a vehicle arrived and took the injured with him. Brother of the injured had also arrived there and thereafter scene of the offence panchnama was drawn. In cross-examination he has admitted that the place where the boy had fallen was the boundary of the agricultural field. Omission has been duly proved that he had not stated in his statement recorded under section 164 of the Code of Criminal Procedure that a call had been received on the cell phone of the injured and when P.W.10 Constable Bahirwad had answered the call. Omission has been duly proved that he had not stated that the injured disclosed his name as Avej. He has admitted that the brother of the injured had arrived there within short time after the arrival of the police. Omission has been proved in respect of the cries which he had heard as "save, save". 9. Mr Chatterji, learned Counsel for the appellant has urged before us that no reliance at all can be placed on the testimony of P.W.4 Baburao and P.W.5 Tukaram as P.W.4 Baburao has candidly admitted that he could not identify the assailant. It is further urged before us that in the 12 Cri.Appeal No. 242 of 2009 light of the omissions in the evidence of P.W.5 Tukaram, no reliance at all can be placed on his testimony. It is also urged before us that P.W.5 Tukaram has stated that the injured was Avej, i.e. the accused, while the assailant was Avesh, i.e. the injured. It is true that P.W.4 Baburao has admitted that he could not identify the assailant. In his presence the injured had disclosed his name as well as the name of the assailant. To us, it appears that P.W.5 Tukaram has committed a mistake in stating that the name of the injured was Avej while that of the assailant was Avesh in the light of the similarity of the names of deceased and the accused. According to us, this error is completely insignificant and does not affect the credibility of the evidence of these witnesses. From the evidence of these witnesses, it emerges that the injured was stabbed by the assailant. In the light of the defence of the accused that he was present at the scene of the offence and as the injured had displayed aggressive intent he fled from the scene, the identity of the second person at the scene of the offence no longer remains doubtful. The accused and the deceased were alone in the car and were also alone at the scene of the offence, in the sense that apart from the deceased and the accused no third person was present. In such circumstances, therefore, failure of P.W.4 Baburao to identify the assailant pales into insignificance. 10. Prosecution has also examined P.W.8 Khaja Mujiboddin, the owner of the hotel in whose hotel the deceased had slapped the accused. He 13 Cri.Appeal No. 242 of 2009 states that he had purchased a second hand mobile instrument from the injured for Rs.500/- but had paid the deceased only Rs.100/-. On the day of the incident he was intending to repay balance amount of Rs.400/- and, therefore, at about 9.30 a.m. had telephoned the deceased. After half an hour the deceased called P.W.8 Khaja and informed him that he would come to take the money within half an hour. Since the deceased did not come, P.W.8 Khaja again telephoned him at about 12.45 p.m. to 1.00 p.m., which was answered by one unknown person. That unknown person had disclosed that some one had poured acid on the deceased and, therefore, Khaja should go near the Vishnupuri Dam. In the meantime P.W.9 Majid had come to Khaja for borrowing the scooter but P.W.8 Khaja disclosed about the information and along with P.W.9 Majid went to the house of the deceased on the scooter and informed P.W.1 Mohd. Afsar. P.W.1 Mohd. Afsar, his brother and P.W.8 Khaja and P.W.9 Mohd. Majid, therefore, proceeded towards the Dam. He states that on reaching the scene he had noticed policemen taking the injured in the police jeep. P.W.1 Mohd. Afsar also sat in the jeep and questioned the deceased about the injuries and injured Avesh had informed P.W.1 Mohd. Afsar that the accused by deceiving him had brought him at the scene and had poured acid and thereafter had stabbed him. In cross- examination omission has been proved that he had not stated in his previous statement about the deceased slapping the accused. Contradiction at portion marked "A" is proved that he had given a scooter to P.W.9 Mohd. Majid. 14 Cri.Appeal No. 242 of 2009 11. P.W.9 Mohd. Majid states that on the day of the incident he had gone to the hotel of P.W.8 Khaja for borrowing a scooter but P.W.8 Khaja had informed him about the injuries sustained by the injured and, therefore, he along with Khaja went to the house of deceased. He states that he and Khaja accompanied P.W.1 Mohd. Afsar and his brother to the Vishnupuri Dam. He states that P.W.1 Mohd. Afsar also sat in the jeep and questioned the injured and the injured informed him that the accused by deceiving him had brought him to the scene and thereafter had poured acid and stabbed him with a knife. In cross-examination he has denied to have stated portion marked "A" in his statement that he had borrowed the scooter from P.W.8 Khaja. Omission has been duly proved that he had not stated in his previous statement that Khaja Mujiboddin had disclosed him that acid had been poured on the deceased and the accused had stabbed him. 12. From the evidence of the prosecution witnesses adverted to above, it clearly emerges that the deceased was last seen alive in the company of the accused. Oral dying declarations had been made by deceased to P.W.1 Mohd. Afsar, P.W.4 Baburao, P.W.5 Tukaram, P.W.8 Khaja, P.W.9 Mohd. Majid and P.W.10 Police Constable Uttam. Despite these witnesses being cross-examined at length, nothing has been elicited in the cross-examination which would shake the credibility of these witnesses in respect of what they had deposed before the Court. We, 15 Cri.Appeal No. 242 of 2009 therefore, find that implicit reliance can be placed on the oral dying declarations made by injured. 13. Shri Chatterji, learned Counsel for the appellant has urged before us that on account of the burns sustained by injured Avesh he could not have been in a position to speak. It is also urged before us that the accused had no motive for committing murder of deceased. It is true that deceased had sustained burns on account of the acid which was thrown on him. However, merely because the lips were burnt that would not in any manner indicate that deceased was not in a position to speak. All the witnesses to the oral dying declaration have consistently deposed about the deceased making a declaration to them. They have corroborated the declaration made to P.W.1 Mohd. Afsar. The oral dying declaration made to P.W.1 Mohd. Afsar stands reflected in the first information report. There is nothing on record to indicate that because of the burns sustained by the deceased to his lips, the deceased was not in a position to speak. In the absence of such material, therefore, according to us, no