IMPORTANT POINT
When origin and genesis of crime is shrouded in mystery and prosecution has tried to improve its case from stage to stage conviction cannot be sustained.

ORDER :

The judgment dated 17.11.2009 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No. 500 of 2007 confirming the judgment of conviction and sentence dated 30.11.2007 passed by the Ad hoc Additional Sessions Judge-3, Latur in Sessions Case No. 10 of 2007 is called in question in this appeal by the convicted accused.

2. The brief facts leading to this appeal are that, at about 1:30 p.m. on 28.08.2006, the police officer, Sikander Pakhali (PW12) received information that a woman had been stabbed. Upon reaching the house of Shamalbai Lohare, PW2 (landlady of the house of the deceased), he noticed that the deceased Lata was lying in a pool of blood and she was shifted to the hospital at about 1:45 to 2:00 p.m. PW12 was informed by Dr. Dhele (PW11) that the deceased was in a fit condition to give the statement and PW12 recorded the same. The deceased in her statement stated that the appellant/accused (brother of the deceased) was annoyed with her as she was having an illicit relationship with Mahendra Dhaware (PW4) after the death of her husband and thus, stabbed her in her abdomen, chest, face, right arm, etc. At the same time, i.e. at about 1:45 to 2:00 p.m., the appellant/accused voluntarily arrived at the police station in bloodstained clothes carrying bloodstained knife and disclosed his name as Balaji and the crime committed by him to Changdeo, PW6, the officer of the police station. Lata succumbed to injuries at about 2:45 p.m.

The dying declaration of the deceased itself was treated as the first information and the report was sent to the Jurisdictional Magistrate.

3. The appellant/accused was tried for offence under Section 302 of the Indian Penal Code (for short, “the IPC”). As mentioned supra, the Trial Court convicted the accused for the said offence and sentenced him to life imprisonment. The judgment of the Trial Court is confirmed by the High Court.

We have heard Mr. A. Sirajudeen, learned senior counsel appearing on behalf of the appellant/accused and Mr. Nishant Ramakantrao Katneshwarkar, learned counsel appearing on behalf of the respondent-State, who have taken us through the entire material on record and effectively assisted the Court.

4. The entire case of the prosecution depends upon (a) the dying declaration; (b) motive for commission of offence; (c) the accused voluntarily went to the police station in bloodstained clothes having a bloodstained knife with him.

5. We have perused the original dying declaration which has been tampered with. Though the name of Mahendra (PW4) was written earlier, it was struck off and in its place the name of Balaji (accused) is inserted at one place. No valid reason is forthcoming from the side of the prosecution for tampering with a vital document such as dying declaration. The dying declaration is at Ext. 51. PW12, the Investigating Officer stated to have recorded the same in the hospital in the presence of the Doctor (PW11), who had certified the fitness of the victim to make the statement. However, in order to satisfy ourselves, we have perused the medical records maintained by the hospital in order to ascertain the correctness of the deposition made by the Doctor (PW11) with regard to the fitness of the victim. The record reveals that the patient was conscious but, was seriously injured. The history recorded in the medical sheets discloses that the victim was stabbed by a sharp iron object. Immediately on admission, the treatment had started. Patient was facing difficulty in respiration and had sustained 17 injuries with haemorrhage. All the injuries were incised and were caused by a sharp object. The patient was having trachycardia. Since the patient was pregnant, the uterus was palpable and pregnancy was about 78 months. Immediately, the surgeon was informed in view of the urgency and thereafter treatment was commenced by the surgeon.

PW11, the doctor before whom the dying declaration was recorded, clearly admits in the cross-examinatio