Sudhakar vs The State of Maharashtra

Anand Vasant Nirgude, J.—This appeal challenges judgment and order dated 27th June, 2001, passed by learned II Additional Sessions Judge, Ahmednagar, in Sessions Case No. 53 of 1999, in which the appellants/original accused nos. 1 to 4 were convicted for the offence punishable u/s 302 read with Section 34 of the Indian Penal Code and were sentenced to suffer life imprisonment and to pay a fine of Rs. 500/- each with a default clause. The appellants were also convicted for the offence punishable u/s 323 read with Section 34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment of one month and to pay a fine of Rs. 500/- with a default clause. Both the substantive sentences were directed to run concurrently.

The facts leading to the case, in short, can be stated as under:-

Victim of this case is one Suryabhan Dhakne. There was a dispute between Suryabhan and the appellants. The appellants assaulted him during the night between 21st and 22nd December, 1998. Appellant no. 1 during the attack used knife and stabbed Suryabhan in abdominal region. Suryabhan in injured condition could narrate the incident to his brother-in-law Shivaji. Immediately Suryabhan was rushed to hospital. During the course of treatment, Suryabhan made a dying declaration to a police officer, on the basis of which, offence was registered initially u/s 307 and 323 read with Section 34 of the Indian Penal Code against the appellants, but after Suryabhan succumbed to the injuries, offence u/s 302 of the Indian Penal Code was added.

The learned judge of the lower Court believed depositions of prosecution witnesses and convicted the appellants, as mentioned above.

Upon hearing the submissions at bar and perusal of impugned judgment as well as evidence on record, following questions/points arose for our consideration:-

[i] Whether the prosecution case should be rejected due to delay in recording First Information Report ?

[ii] Whether the prosecution could prove two dying declarations of victim Suryabhan made to prosecution witness nos. 3 and 5 ?

[iii] Whether the prosecution could prove that appellant nos. 2 to 4 shared common intention with appellant no. 1 who stabbed victim Suryabhan ?

The prosecution case depended on seven witnesses. However, we found that the evidence of prosecution witness nos. 3, 4 and 5 are crucially important.

The gist of the evidence, in short, can be stated as under:-

Prosecution witness no. 4 Vishwanath stated that during the night between 21st and 22nd December, 1998, he was at his home. His house is situated in his agricultural field at a distance of about 1/2 k.m. from Shevgaon town. He further stated that families by name Golwe reside at some distance from his house in their agricultural field. He further disclosed that at some distance from his house, houses of families by name Dhakne also reside in their field. He disclosed that he knew Suryabhan Dhakne, who resided along with Golwes near their house. He said that one Shivaji Golwe was Suryabhan''s brother-in-law. At about 11.30 p.m. during that night, he heard barking of dogs. He went out of his house and heard human calls. He looked at the direction and saw Suryabhan in injured condition. Suryabhan was clutching his abdomen. He immediately brought Suryabhan to his house. The injuries on his abdomen were bleeding. He tore a dhoti and tied Suryabhan''s injury. Suryabhan told him to call his brother-in-law Shivaji. He immediately went to Shivaji and brought him to his house. Shivaji then asked Suryabhan as to what had happened to him. Suryabhan told them that the appellants had assaulted him and appellant no. 1 had delivered knife blows on his person, whereas other three appellants delivered fists and kicks on his person. Shivaji then took Suryabhan to hospital.

In cross-examination, this witness admitted that Suryabhan''s brother Manik resided in the neighbourhood. (This was probably asked to highlight the fact that Suryabhan called for his brother-in-law Shivaji and not his brother and cousins.) In the cross-examination, he also admitted that along with Shivaji, his two brothers and mother also came to see Suryabhan. He further admitted that till the police recorded his statement, he did not disclose the above mentioned facts to any one.

Prosecution witness no. 5 is Shivaji, who disclosed that during that night, prosecution witness no. 4 Vishwanath came to his house and told him that Suryabhan was assaulted and he should come to see him. He, his elder brother Ambadas, Somnath and mother Subhadra went to Vishwanath''s house by their tractor. They saw Suryabhan lying in injured condition on ota of Vishwanath''s house. He asked Suryabhan as to what had happened. Suryabhan told him that appellants abused and assaulted him. When he fell down on the ground, appellant no. 1 took out knife and gave blow with knife on his stomach. At that time, the other appellants had caught hold of him.

He said, he took Suryabhan on a tractor to Rural Hospital, Shevgaon. At about 03.00 a.m., they reached there. The doctor of Rural Hospital took Suryabhan inside the hospital and asked them to wait outside. Suryabhan was unable to speak at that time. The doctor advised them that Suryabhan should be taken to Civil Hospital Ahmednagar. Thereafter, they went to Shevgaon village in search of a jeep. In the meantime, ambulance came from Aurangabad, in which they took Suryabhan to Civil Hospital Ahmednagar. They reached Ahmednagar hospital at about 5.00-05.30 a.m. Suryabhan was admitted to Civil Hospital Ahmednagar. He was there for about 7-8 days, but, thereafter, he was shifted to Pune in K.E.M. Hospital. Suryabhan was treated in K.E.M. Hospital Pune for about 20 days, but died there. He further disclosed that there existed dispute between appellants and Suryabhan upon sharing of water of a well.

During cross-examination, he was asked as to why he did not lodge complaint about the incident soon after Suryabhan was taken to hospital at Shevgaon and also at Ahmednagar. The villager claimed he did not know complaint is required to be given. He stated, he told incident to doctor.

Prosecution witness no. 3 is the next witness who is equally important. He is Ashok Lolge, a Police Constable of Shevgaon Police Station. He said that during the night of 20th and 21st December, 1998, he was on duty as Police Station Officer. At about 02.50 a.m., he received a message on phone from Shevgaon Rural Hospital that Suryabhan was admitted to that hospital in injured condition. He took entry of this message in the station diary and went to the hospital. He saw Suryabhan and asked the doctor as to whether the patient was able to give statement. Doctor opined that the patient was not in a position to give statement. Suryabhan was then transferred to Civil Hospital Ahmednagar for further treatment. He came back to the police station from where he gave a message to Tofkhana Police Station, Ahmednagar that Suryabhan was shifted to civil hospital at Ahmednagar and they should record his statement. On not receiving message from Tofkhana Police Station, on 23rd December, 1998, at about 04.00-04.30 p.m., he went to Civil Hospital Ahmednagar and saw Suryabhan. He asked the duty Medical Officer as to whether Suryabhan could give his statement. He then recorded his statement. Suryabhan implicated appellants being his assailants. After recording the statement, he went back to the Police Station Shevgaon and registered offence vide Crime No. 164 of 1998, u/s 307, 323, 504 read with Section 34 of the Indian Penal Code and u/s 37[1][3] read with Section 135 of the Bombay Police Act. He said, thereafter, investigation was handed over to one P.S.I. Mr. Chate. P.S.I. Chate apparently carried on further investigation. He recorded scene of offence panchnama. He also recorded panchnama regarding discovery of knife at the behest of appellant no. 1, but the prosecution could not prove this evidence. The panch witnesses turned hostile. P.S.I. Chate also did not attend the trial for recording his deposition. After waiting for his presence in the Court for quite sometime, the learned public prosecutor dropped him as prosecution witness.

Point Nos. 1 & 2:-

Learned counsel for the appellants Shri N.K. Kakade is quite critical of the evidence of prosecution witness nos. 3 to 5. He asserted that the delay that had occurred in recording of First Information Report in this case has made the deposition of all the three witnesses unbelievable. He asserted that after the incident if prosecution witness nos. 3 to 5 had really learnt about names of assailants, they would have certainly lodged complaint to Shevgaon Police Station either after admitting Suryabhan in Shevgaon Rural Hospital or at Civil Hospital Ahmednagar. He pointed out further that the police were not unaware of the incident. At about 02.50 a.m., during that night, the police learnt that Suryabhan, in injured condition, was admitted to Rural Hospital Shevgaon. The medical certificate issued by Medical Officer Shevgaon Rural Hospital indicated clear history of assault. The entry in medico-legal-register was taken at about 01.45 a.m. Even the Police Head Constable of Shevgaon Police Station PW 3 had gone to the hospital to see the injured and intended to record his statement. If the injured was not in a position to record his statement at that time, he asserted, nothing had prevented him from recording statements of either Suryabhan or Vishwanath who were first two persons who saw the injured first. The fact that such statements were not recorded, clearly indicated that prosecution witnesses Shivaji and Vishwanath were not aware of the names of the appellants. He further pointed out that after Suryabhan was admitted to Hospital at Ahmednagar, there was sufficient time for Shivaji to take further steps in the case like reporting the incident to police either at Ahmednagar or at Shevgaon for the entire day of 22nd December, 1998, but no action in this direction was taken by Shivaji or the Police Head Constable, PW 3 Ashok. The case thus was still hanging in limbo. It is at 05.00 p.m. On 23rd December, 1998, further progress occurred in this case. The learned counsel for the appellants, in view of these circumstances, asserted that the prosecution witness nos. 4 and 5 most probably did not know till then as to who had assaulted Suryabhan.

Learned counsel for the appellants then attacked the veracity of the deposition of prosecution witness no. 3 and the dying declaration recorded by him. The learned counsel pointed out that admittedly there is no endorsement of the medical officer on the dying declaration. Even the timing is not mentioned on the dying declaration. He pointed out that in order to give credibility to this dying declaration, the prosecution ought to have examined the medical officer who had attended Suryabhan at that time. We would first deal with the second objection.

The argument that because necessary formalities at the time of recording dying declaration were not followed, the dying declaration should be altogether rejected, is not acceptable to us. In our view, the dying declaration is sufficiently proved by prosecution witness no. 3. In the cross-examination of this witness, all the necessary particulars are brought on record. This witness specifically mentioned that at about 4.30 p.m., he rushed to the hospital. He obtained the medical officer''s endorsement that the patient was fit to give statement at about 05.10 p.m. This endorsement is also proved by him. He further stated in cross-examination that soon after this endorsement, he and the medical officer reached near Suryabhan for recording his statement. During the entire recording of the statement, he said, the medical officer was present next to him. In view of these assertions, there is no substance in the argument that the dying declaration did not have medical officer''s endorsement. Besides this, witness had no personal interest in the case. This witness was simply doing his duty. He had received phone call from rural hospital during the night between 21st and 22nd December, 1998. Soon thereafter, he went to see the victim at rural hospital Shevgaon and since he could not record his statement, then this witness (quite commendably) went to Ahmednagar out side his police stations local limits for recording statement of the victim. His evidence shows in the night of 21.12.1998 he could not know who had admitted Suryabhan in hospital as those persons had gone in town in search of ambulance and he could not go along to Civil Hospital as he was on P.S.O. duty. He had given wireless message to Topkhana Police Station to record statement of the injured and naturally waited on 22nd December, 1998. This witness also deposed in verbatim as to what Suryabhan told him. He further proved the dying declaration by stating that Suryabhan had put his signature on the statement in his presence.

The concern of prosecution witness shivaji was first to provide medical aid to Suryabhan. He could not have been in proper state of mind during the night of the incident. He could succeed in taking Suryabhan to Civil Hospital Ahmednagar at about 05.00 - 05.30 a.m. during that night. This was indeed a big achievement for him. In next two days, Suryabhan and his other relatives were more concerned about Suryabhan''s health which kept deteriorating as facts show that even hospital at Ahmednagar after a point got patient shifted to better equipped K.E.M. Hospital at Pune. Besides, they were certain that the police of Shevgaon police station were aware of the incident and would take appropriate steps in time. If not never, but rather belatedly, as expected the police of Shevgaon Police Station arrived at Civil Hospital Ahmednagar on 23rd December, 1998 at about 04.30 p.m. It can also be imagined that the Police Head Constable PW 3 Ashok thought it fit to first record statement of the victim and then register offence on the basis of it. At that moment, prosecution witness no. 3 was the person who could have taken a decision as to whether he should wait till the victim makes his statement or whether he should record statements of others, as in the night of 21st December, 1998, he could expect that patient on shifting from Rural Hospital to Civil Hospital at Ahmednagar would stabilize. As such, his decision for waiting till recording the statement of the victim for the purpose of registration of offence cannot be said to be improper. Thus, the delay in recording first information report would not prove fatal to the prosecution case. We are also inclined to believe depositions of prosecution witness nos. 4 and 5. Prosecution witness no. 4 is specially trustworthy. He is not related to the parties and he is neither interested in prosecution case. While narrating the incident, he did not exaggerate the accounts. His conduct was natural. He first provided first-aid to injured Suryabhan, made him comfortable, and as per his request, went to call his brother-in-law Shivaji. He followed what injured told him. His concern was to provide help to the victim. This was natural conduct. He even admitted that he had not stated to police that Suryabhan had told him that appellants delivered fist and kick blows to him.

Prosecution witness no. 5 is also a reliable witness. As explained above, his failure to lodge complaint regarding incident on 22nd December, 1998, will not prove fatal to the prosecution case. His conduct was found quite natural. He too did not exaggerate the account of oral dying declaration. In view of this, we are inclined to believe the prosecution case about oral as well as written dying declarations.

Point No. 3:-

Having reached the conclusion that we would believe the prosecution case based on dying declarations, we would turn our attention to the allegations made against appellant nos. 1 to 4. As mentioned above, the dying declarations disclosed that the assailants of the victim were the appellants. The dying declaration in writing gives graphic account of the incident. It disclosed that the appellants ambushed the victim during the night. While he was going towards his house alone, they first abused him. They all assaulted him, due to which he fell down on the ground. After he fell down, it was appellant no. 1 who stabbed him. The written dying declaration mentioned that when appellant no. 1 was stabbing the victim, the others were instigating him and asking him that he should finish the victim. Thus, there is clear indication on record that appellant nos. 2 to 4 also shared the intention of killing the victim. The offence of murder is thus proved against all the appellants.

ORDER

[i] Appeal stands dismissed.

[ii] Conviction of appellants u/s 302, 323 read with Section 34 of the Indian Penal code is confirmed.

The appellants to surrender to their bail bonds for undergoing substantive sentence within four weeks.