2005 Supreme(SC) 440

2005(2) Supreme 458
Supreme Court of India
(From Bombay High Court)
K.G. Balakrishnan & B.N. Srikrishna, JJ.
Sheikh Meheboob @ Hetak & Ors. —Appellants
versus
State of Maharashtra —Respondent
Criminal Appeal No. 772 of 2004
Decided on 10-3-2005
Counsel for the Parties :
For the Appellants : Uday U. Lalit, Sr. Advocate, Satyajit Desai, Nitin Sangra, Prasenjit Keswani and Venkateswara Rao Anumolu, Advocates.
For the Respondent : Mukesh K. Giri, Advocate.­

Important pointWhere two Courts have concurrently analysed the evidence and recorded a ­conviction or acquittal, the Supreme Court is reluctant to reappraise the evidence and differ therefrom save in exceptional circumstances indicative of gross miscarriage of justice.­

Headnote:Indian Penal Code, 1860—Section 302/34—Acquittal—Murder of a young boy aged 20 years by burning—Benefit of doubt to accused—Appellants were convicted for offences under Section 302/34 IPC by the trial Court—Convictions were affirmed on appeal to the High Court—Convictions were based on the dying declaration and evidence of father (PW2) of deceased boy—Serious doubts as to credibility of prosecution case—Written report allegedly made by PW2 not produced—Prosecution having suppressed the document, adverse inference drawn—PW2 had no idea as to the recording of dying declaration—Contradictions between his evidence and evidence of Investigating Officer—Failure to produce rickshaw driver who allegedly took the deceased to the hospital—Gaping holes in prosecution case based on eye witness account—Dying declaration was recorded by the Executive Magistrate—Serious doubts as to who put kerosene on body of deceased—In medical history notes it was reported ‘burns self inflicted’—Medical record raised a number of questions which were not satisfactorily answered—Whether convictions recorded by Courts below are sustainable—(No)—Appellants are entitled to the benefit of doubt.

       Held : Where two courts have concurrently analysed the evidence and recorded a conviction or acquittal, this Court is reluctant to reappraise the evidence and differ therefrom save in exceptional circumstances indicative of gross miscarriage of justice for reasons. This is one such case where we need to interfere. Since the two legs on which the case of the prosecution rests consist of the testimony of Hanumandas (PW 2), and the dying declaration of Lalit Kumar, we were taken through the evidence with particular focus on the aforesaid and shown a number of circumstances which raise serious doubts as to the credibility of the prosecution case. The testimony of Hanumandas (PW 2), together with the manner in which the prosecution was conducted, raises the first serious doubt. (Paras 3 and 4)

       On a fair reading of the evidence of Hanumandas (PW 2) the sequence of events given by Hanumandas before the Court suggests that when he admitted his son to the hospital, the accused-appellants had come to the hospital and threatened him. This was followed by his frantic call to the Police ­Control Room, the arrival of the police ­immediately thereafter and his going to the City Kotwali Police Station on his Luna Moped and lodging a report about the whole ­incidence including the threat given to him. In fact, reading the evidence of Hanumandas as a whole, it would suggest that he had no idea as to the recording of the dying ­declaration at all, for he no where mentions it. Nor does it appear from his evidence that the dying declaration was recorded prior to Hanumandas going to the Kotwali Police Station to lodge his written report.­ (Para 7)

       Apart from these glaring discrepancies, the evidence of Hanumandas as an eye witness does not appear to be credible. A number of inconsistencies between his statement to the police under Section 161 and his evidence were thrown up in the cross examination. The contradictions between his evidence and the evidence of the Investigating Officer (PW 10) make interesting ­reading. For every inconsistency between his police statement and his evidence in the court, while Hanumandas insisted that he had made some statement or had not made such statement, the Investigating Officer directly contradicts him on the issue. Apart from the contradictions, there is contradiction with evidence of the other cited witness Shyam Kumar (PW.9). Shyam Kumar flatly contradicts Hanumandas (PW 2). If we were to go by his evidence, no such incident ever took place in his presence. Though, the prosecution cited Shyam Kumar (PW 9) as an eye witness, no wonder the prosecution was constrained to declare Shyam Kumar as a hostile witness and having been won over. (Para 8)

       Who took Lalit Kumar to the hospital, is also shrouded in mystery. According to Shyam Kumar (PW 9), his uncle, Lakshmi Narayan, had taken Lalit Kumar to the hospital and got him admitted. Who extinguished the fire, is also a matter of controversy. While Hanumandas claims to have done it himself, the dying declaration and the evidence of Shyam Kumar (PW 9) suggest that some of the residents of the locality had done it. Strangely, the Investigating Officer (PW 10), who recorded the statement, candidly admitted that he had made no effort to trace the rikshaw driver, who took Lalit Kumar to the hospital. The rikshaw driver would have been a material witness on the issue as to who accompanied Lalit Kumar to the hospital. It is not possible to believe that, in a small town like Akola, the police were not able to trace the rikshaw driver, who had carried. Lalit Kumar to the hospital. So much for the gaping holes in the prosecution story based on the eye witness account. Doubts arising from the eye witness accounts left too many question marks and too many unexplained ­circumstances, which contra-indicated their acceptance without corroboration. Corroboration was available in the form of a document, which was not deliberately placed on record by the prosecution. This by itself should have sufficed for the court to induce a reasonable doubt as to the discharge of the onerous burden by the prosecution. (Paras 9 and 10)

       The medical record raises a number of questions, which have not been satisfactorily answered, and which preclude implicit acceptance of the dying declaration (Ex.49). First, who admitted Lalit Kumar to the hospital? The dying declaration suggests that the neighbours had done so, while Hanumandas (PW 2) maintained that it was he, who had admitted him to the hospital. Second, who gave the history of the patient to the doctor on duty at the time of admission? Hanumandas (PW 2) says nothing about it. The medical record suggests that the uncle of Lalit Kumar (Laxmi Narayan) was the one who accompanied the patient, and probably had given the history of the burns to the doctor on duty at the time of admission. The medical record also has two curious endorsements. At one place, it says that there was history of “accidental burns”; at another place there was history of “self-inflicted burns”. The dying declaration itself indicates that the deceased had started to make a statement which was suggestive of his having poured kerosene on himself and set himself on fire because the appellants were demanding interest and beating him. The evidence of the Executive Magistrate (PW 4) clinches that this was precisely what the deceased had stated in the first instance, which he changed on hearing some shouting from outside. These are some of the circumstances which raise serious doubts as to the implicit credibility of the dying declaration. We have carefully examined the reasons adduced by the Sessions Court and the High Court for accepting the dying declaration as credible, and for accepting the evidence of Hanumandas (PW 2), and the dying declaration (Ex.49), as bringing home the charge of murder against the appellants beyond the shadow of reasonable doubt. Shadows, there are; dark enough to eclipse the truth. Both the courts have ignored a number of reasonable doubts which legitimately arose on the evidence led by the prosecution, and its conduct in suppressing the vital document and witnesses. We are not satisfied that the evidence led on record by the prosecution proves the guilt of the accused-appellants beyond reasonable doubt. (Paras 16 and 17)