2014 Supreme(Bom) 1594

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR
B.P. DHARMADHIKARI AND C.V. BHADANG, JJ.
Natthu s/o Bakshu Uike – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 263 of 2000
Decided on: 11th August, 2014

Headnote:Evidence Act, 1872 - Section 8 Conduct of accused. Since absconding by itself not proves guilt of a person hence absconding of accused alone cannot be taken as an incriminating circumstance to base conviction. In the case of Sunil Kundu and another, 2013 All SCR 1804, the Hon’ble Apex Court was concerned with a similar situation about adverse inference being drawn on account of appellant-accused being absconding. The following observations in para 28 are to the point :

       "It was argued that the accused wee absconding and, therefore, adverse inference needs to be drawn against them. It is well-settled that absconding by itself does not prove the guilt of a person. A person may run away due to fear of false implication or arrest. It is also true that the plea of alibi taken by the accused has failed. The defence witnesses examined by them have been disbelieved. It was urged that adverse inference should be drawn from this. We reject this submission. When the prosecution is not able to prove its case beyond reasonable doubt, it cannot take advantage of the fact that the accused have not been able to probabilise their defence, it is well-settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt."

       It can thus be seen that the abscondance by itself alone cannot be taken as an incriminating circumstance to base conviction but can always be considered along with other prosecution evidence available on record.

       Evidence Act, 1872 - Section 32 Recording of dying declaration. Law not requires or prescribes any particular form in which dying declaration is to be recorded. The law does not require or prescribe any particular form in which the dying declaration is to be recorded. There is also no requirement of the fitness of the witness being certified, as a rule, by Medical Officer. It is essentially a rule of prudence and caution. The material consideration is that the Court has to be satisfied about the dying declaration being natural and one inspiring confidence.

       The evidence of the officer, who records the dying declaration, should show his satisfaction and the Court, on appreciation of his evidence, should come to the conclusion that indeed the deceased was in a fit state of mind to give the statement and that he had sufficient opportunity to observe the assailant and the assault and that the statement is not the outcome of either prompting or tutoring or a figment of imagination. In an appropriate case, the Court would look for corroboration in order to lend credence to the evidence in the form of dying declaration.

       [INDIAN] PENAL CODE, 1860 - Sections 300, 320 and 326 Offence of murder or causing grievous hurt. Where deceased after sustaining injuries caused by accused with knife, remained indoor patient for more than 21 days and died of septicemia therefore accused liable to be convicted under Section 326, IPC. From the evidence of the eye-witness, the nature of injuries sustained and the part of the body targeted and particularly in absence of acceptable medical evidence to establish a causal connection between the injuries and septicemia, that no intention or knowledge of causing death or causing such bodily injury as is likely to cause death can be attributed to the appellant and in Court’s considered view, the offence would fall under Section 326 of IPC namely of having voluntarily caused grievous hurt by dangerous weapon or means. Admittedly, the appellant was an indoor patient for more than 21 days and the injuries would clearly be covered by clause ’eighthly’ of Section 320 of IPC. That the conviction of the appellant needs to be modified to one under Section 326 of IPC. This takes Court to the question about awarding of appropriate punishment.

       [INDIAN] PENAL CODE, 1860 - Section 326 Conviction and sentence under. Where accused convicted and sentenced under Section 326, IPC, already suffered incarceration for about one year and 4 months therefore sentence of 3 years reduced to period already undergone. In Bankat and another v. State of Maharashtra, 2005 Cri LJ 646 : 2005 All MR (Cri) 246 (SC), the Hon’ble Apex Court, in view of the fact that 10 yeas had elapsed from the date of incident and taking a note of the parties having settled their dispute outside the Court, had found that the sentence for the period already undergone for the offence punishable under Section 326 of the Indian Penal Code which was less than a year was sufficient. In G. Satyanarayana Reddy and others v. State of Andhra Pradesh, V-1994 (2) Crimes 318, the occurrence was of the year 1980 and the sentence of three years for the offence punishable under Section 326 of the Indian Penal Code was reduced to period already undergone, which was for a year.