2004 Supreme(Bom) 800

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Brahme P.S., J.
Prakash Wamanrao Lakde .... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 252 of 2001, decided on 14-6-2004.
Advocates appeared :
V.R. Trivedi, for appellant-accused.
Mandape, A.P.P, for respondent/State.

Headnote:Criminal Procedure Code, 1973 - Section 374 - Appeal against conviction - Challenged - Contentio n, dying declaration not endorsed by Medical Officer mental and physical fitness and capability to make statement of victim not certified - FIR not disclosing dying declaration - Further statement not bearing signature of victim. - Held, in evidence of witnesses Police Officer recording statement and doctor not examined part of evidence as to mental and physical fitness of victim not impaired by any other circumstances, absence of endorsement on dying declaration will not render dying declaration unreliable. Further complainant’s report is corroboration to what has been stated by victim in dying declaration as to assault on him by appellant with knife. 2001(6) SCC 118; 2003 Bom CR (Cri) 1025; 1999(7) SCC 695 - Referred to.

       Criminal Procedure Code, 1973 - Section 374 - Recovery of knife - Contention eye-witnesses not supported incident. - Held, through evidence of Investigating Officer factum of disclosure statement made on interrogation by him and also recovery of weapon at instance of accused established. 2004 All MR (Cri) 419 - Distinguished.

       Criminal Procedure Code, 1973 - Section 374 - Appreciation - Assault by knife - Multiple bleeding injuries - Conviction under Section 304 Part I of Indian Penal Code, injury No. 1 fatal - Challenged in appeal - Contention medical evidence does not prove that injury proved to be fatal whether charge under Section 304, Part I of Indian Penal Code proved. - Prosecution did not examine doctor who performed operation. In absence of his evidence, suspicion exists how fatal injury caused. Court accepted submission of appellants that paucity of evidence, offence under Section 304 Part I not made out. Accepting accountability of appellant for external injuries on thighs with knife offence under Section 326 of Indian Penal Code made out.

       Evidence Act, 1872 - Section 3 - Appreciation - Multiple bleeding injuries - Conviction under Section 304, Part I of IPC as are injury proved fatal and because of rupture and cutting of main blood vessel - Challenged in appeal - Contention considering medical evidence, not proved that injury proved to be fatal was result of assault by appellant with knife - Point whether charge under Section 304, Part I proved. - Prosecution did not examine doctor who performed operation. Absence of evidence, of doctor it is in shadow of suspicion as to how fatal injury caused. Court accepted submission of appellant’s counsel that with pausity of evidence which prosecution required to adduce, offence under Section 304, Part I not made out. Accepting accountability of appellant for external injuries on thighs with knife offence under Section 326 of IPC made out. Convicted and punished for 5 years rigorous imprisonment.

       Evidence Act, 1872 - Sections 3 and 27 - Recovery of weapon - Contention witnesses in whose presence disclosure made not supported. - Held, through evidence of Investigating Officer, the fact of disclosure statement made on interrogation by him and also recovery of weapon at instance of accused established. 2004 All MR (Cri) 419 distinguished.

       Evidence Act, 1872 - Sections 3 and 32 - Dying declaration recorded by police - In dying declaration no endorsement made by Medical Officer about mental and physical fitness and capability to make statement of victim - FIR not disclosing statement i.e. dying declaration recorded - Further statement does not bear signature of victim cannot be relied. - Mere absence of endorsement on dying declaration will not make dying declaration unreliable. 2001 (6) SCC 118; 2003 Bom CR (Cri) 1025; 1999 (7) SCC 695 - Referred to.

       [Indian] Penal Code, 1860 - Sections 302, 304, Part 1 and 326 - Assault by knife not vital parts - Multiple bleeding injuries - Conviction under Section 304, Part I, as injury No. 1 proved fatal and because of rupture and cutting of main blood vessel - Challenged in appeal - Contention considering medical evidence, injury proved to be fatal was result of assault by appellant - Point whether charge under Section 304, Part I established. - Held, prosecution did not examine doctor performing operation. In absence of evidence, it is in realm of suspicion as to how the fatal injury was caused. Court accepted submission of appellant’s Counsel that with pausity of evidence which prosecution required to adduce, offence under Section 304 Part I not proved out. Accepting accountability of appellant for external injuries on thighs with knife offence under Section 326 made out. Convicted and punished for 5 years rigorous imprisonment.

       [Indian] Penal Code, 1860 - Sections 302, 304, Part I and 326 - Conviction - Appeal against - Challenged - Contention dying decla ration not endorsed by Medical Officer about mental and physical fitness and capability of making statement of victim - FIR not disclosing statements i.e. dying declaration recorded - Further statement does not bear signature of victim accordingly cannot be relied. - Held, in recorded evidence of witnesses Police Officer and doctor, when factum of physical and mental fitness of victim at the time when his statement was recorded is told of and when part of evidence as to mental any physical fitness of victim not impaired by any other circumstances, mere absence of endorsement on dying decla ration will not convert dying declaration to be unreliable. Further complainant’s report is corroboration to what has been stated by victim in dying declaration as to assault on him by appellant with knife. 2001 (6) SCC 118; 2003 Bom CR (Cri) 1025; 1999 (7) SCC 695 - Referred.