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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.76/2005
APPELLANT :- Bisram Sanu Jambhekar,
Aged about 45 years,
R/o Dabka, Tq. Dharni,
District Amravati,
(Prisoner No. C-2914, Central
Prison, Amravati).
...VERSUS...
RESPONDENT :- ig State of Maharashtra,
Through P.S.O. Dharni.
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[Shri R.M. Daga, Adv. for appellant]
[Shri T.A. Mirza, APP for respondent]
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CORAM : A.B. CHAUDHARI AND
P.D.KODE, JJ.
Date of reserving the judgment: 03.03.2011
Date of pronouncing the judgment: 11.04.2011
J U D G M E N T (PER : A.B. CHAUDHARI, J.)
1. 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 under Section 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
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payment of fine to further undergo simple imprisonment
for 15 days, the present appeal was filed by the
appellant.
2. 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
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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.
3. 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.
4. 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.
5. 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
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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.
6. 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
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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).
7.
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.
8. 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
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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.
9. 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.
10. 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
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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.
11. 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.
O R D E R
(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.
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