Bisram Sanu Jambhekar vs State of Maharashtra

A.B. Chaudhari, J.—Being aggrieved by the judgment and order dated 26.10.2004, passed by the Additional Sessions Judge, Achalpur in Session Trial No. 10/2004 by which the Appellant/accused was convicted for the offence punishable u/s 302 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo simple imprisonment for 15 days, the present appeal was filed by the Appellant.

In support of the appeal, learned Counsel for the Appellant made the following submissions.

(a) The prosecution case is not based on any direct evidence and is based only on oral and written dying declarations.

(b) The witnesses on oral dying declaration have not supported the prosecution and the trial Court has also disbelieved them.

(c) The only evidence on record that remains for consideration is that of written dying declaration proved by P.W.8 Abdul Jabbar, the Executive Magistrate.

(d) Perusal of the evidence of P.W.8 Abdul Jabbar with other evidence and the dying declaration (Exh.28) show many serious discrepancies and therefore, the said dying declaration (Exh.28) will have to be discarded. In the absence of any corroborative evidence and existence of serious discrepancies in the dying declaration, the same is liable to be rejected and consequently, the Appellant is liable to be acquitted.

(e) F.I.R. was lodged by the sister of the deceased but she has not been examined before the Court though the prosecution claimed that she was an eye witness to the incident. There is no explanation furnished by the prosecution for not producing her before the Court.

Per contra, learned A.P.P. for the Respondent opposed the appeal and argued that some corroboration can be found out from the cross-examination of the witnesses who deposed about oral dying declaration and particularly the mother of the deceased and therefore, the appeal deserves to be dismissed.

We have heard learned Counsel for the rival parties at length. We have also carefully perused the record and the evidence of the witnesses. F.I.R. (Exh.32) was lodged by Smt. Rajali Kasdekar the younger sister of the deceased Maniklal. The F.I.R. was exhibited and proved by the Investigating Officer.

Informant Rajali described the incident in the F.I.R. stating therein that on 1.11.2003 the Appellant had brought his daughter Pramila and the deceased Maniklal from Burhanpur to the village since his daughter had eloped with him. At about 5:00 p.m. the Appellant came with stick to her house when deceased Maniklal was with her in the house. Therefore, Maniklal went out from the back door of the house towards the house of his uncle Munna Bhilavekar who was followed by Bisram and Isram. Then deceased Maniklal went inside the house of uncle Munna and the Appellant and Isram barged their entry into the house of uncle. Then Isram lifted kerosene tin and put it on the person of Maniklal while Bisram lighted a matchstick and burnt Maniklal. She raised shouts and thereafter had poured water on his person. It is thus clear that she was an eye witness to the incident and was also the informant.

In the first place, she lodged F.I.R. on 6.11.2003 in respect of the incident dated 1.11.2003, for which there is no explanation. If she was an eye witness the police did not make any attempt to produce her before the Court during trial and there is no explanation why she was not produced. The story set out in the F.I.R. (Exh.31) is completely different from the story stated by Maniklal in his dying declaration (Exh.28). In dying declaration (Exh.28) the story about he being in the house with his sister Rajali at the relevant time and then he going out from the back door as Bisram the Appellant had come with stick at the house is to be found nowhere in the dying declaration (Exh.28). The story that the Appellant had gone to the house of Maniklal armed with stick is not to be found in the dying declaration (Exh.28).

On the contrary, the dying declaration shows that while Maniklal was moving on the road, he found Appellant and Isram with axe and stick in their hands at some distance and therefore, he went into the house of his uncle where the incident of burning allegedly took place.

In our opinion, this discrepancy in the dying declaration and the prosecution story is a serious discrepancy. Not only that the evidence of P.W. 8 _ Abdul Jabbar that Maniklal had told him while giving dying declaration that Bisram and Isram met him in the way when he was going to the house of his uncle and that they were armed with stick, is a very important omission, which has been duly brought on record in the cross-examination of P.W.8 _ Abdul Jabbar. It is further seen that Maniklal was burnt as per the prosecution case to the extent of 90% and was shifted from Dharni hospital to Irvin hospital Amravati and the dying declaration was recorded on the second day.

From the evidence of Doctor particularly in the cross-examination, it is difficult to believe that the patient was mentally fit to give dying declaration. It is highly doubtful whether he was fit to give dying declaration having been administered pain killers and the Doctor says that he did not measure the body temperature of the patient before declaring him fit.

It is in this view of the matter, we are of the opinion that the dying declaration (Exh.28) requires corroboration. But then all other prosecution witnesses have not supported the prosecution case and thus there is no corroborative evidence to the satisfaction of this Court for corroborating the dying declaration (Exh.28). We are of the opinion that we should not take the risk of convicting the Appellant or confirming the conviction of the Appellant in the wake of the above serious discrepancies in the prosecution evidence. That apart, the dying declaration (Exh.28) though was recorded on 2.11.2003 and was received by the Investigating Officer on 4.11.2003, no offence was registered and it is only after Rajali gave a report, the offence was registered on 6.11.2003 but then Rajali had no explanation as to why F.I.R. was lodged after 5 days particularly when she was an eye witness. There is no explanation as to where was she when the deceased Maniklal was taken to Dharni hospital first and thereafter to Irvin hospital, Amravati.

To sum up, in the above factual scenario, benefit of doubt will have to be extended to the accused. We, therefore, hold that the conviction of the Appellant for the offence charged against him is not legal. In the result, we pass the following order.

ORDER

(i) Criminal Appeal No. 76/2005 is allowed.

(ii) The impugned judgment and order dated 26.10.2004, passed by the Additional Sessions Judge, Achalpur in Session Trial No. 10/2004 is set aside.

(iii) Appellant is acquitted of the offence charged against him

(iv) Appellant be set at liberty.

(v) Fine, if paid, be refunded to the appellant/accused.