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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.R. Gavai, V.M. Deshpande, JJ.
Syed Amin Syed Nabi - Appellant
Versus
The State of Maharashtra through Police Station, Badnera, Tq. Dist. Amravati - Respondent
Criminal Appeal No. 409 of 2014
Decided On : 11-07-2016
Evidence Act, 1872 - Section 32-Dying declaration-Reliability of.-There evidence of witness was showing that victim was lying in pool of blood and was not in a position to speak and this statement of father and uncle that oral dying declaration was made by victim to them was held to be inadmissible and unreliable.
The evaluation of the prosecution evidence shows that the evidence of PW 2 and PW 3 do not inspire confidence in respect of oral dying declaration. The false implication at their behest of the appellant is not completely ruled out for the reasons stated in the FIR.
Indian Penal Code, 1860 - Section 300-Evidence Act, 1872, Section 3-Murder-Appreciation of evidence.-Where as a property dealer witness did not disclose this circumstance to police, his evidence was not regarded as admissible as he was also related to victim-deceased.
It is crystal clear that after death, this prosecution witness was accompanying to the hospital so also to the police station. This witness is not a rustic person. He is a property dealer and broker. Therefore, it would have been but natural on his part to disclose immediately to the police that he had seen the deceased in the company of the appellant near Ibrahim Garage when he reached near the railway.
In that view of the matter, according to us, this witness is not trustworthy witness especially when he is a close relative of the deceased. Therefore, his evidence cannot be considered at all.
Indian Penal Code, 1860 - Section 300-Evidence Act, 1872, Sections 3, 8 and 32-Murder- Conviction.-It was alleged that accused-appellant caused death of deceased by inflicting cut injury on neck of victim though it was based on circumstantial evidence but the chain of circumstances was not so complete as it proved the guilt of accused and oral dying declaration was also not held to be reliable. Hence, conviction of accused-appellant was set aside.
V.M. Deshpande, J.
The appellant has questioned his conviction and consequent order of sentence in the present appeal, which is imposed upon him by the learned Additional Sessions Judge, Amravati in Sessions Trial No. 205/2011 dated 23.05.2014 by which the appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs. 25,000/- and in default to undergo simple imprisonment for one year for his conviction for the offence punishable under Section 302 of the Indian Penal Code.
2. The prosecution case as it is disclosed during the course of trial is as under :
When Sahebrao Jagdale was discharging his duties as Police Sub Inspector at Police Station, Badnera on 06.07.2011 at about 11.15 p.m., Mohd. Sharafatullah (PW3) came to the Police Station and gave his oral report Exh.36.
On the basis of the same, Sahebrao Jagdale registered a crime bearing Crime No. 116/2011. The printed FIR is at Exh37.
The FIR states that Mohd. Sharafatullah (PW3) is having two sons. Elder is Najakatullah aged 30 years, the deceased who was working as truck driver. His friend Mohd. Amin, the present appellant is also truck driver. Both of them used to work on the truck of one Syed Harun for about 78 months. After marriage of Najakatullah, he left the driving of Syed Harun and then started working as driver of Mohd. Jamirulla (PW2), who is also the brother of the first informant. According to the FIR, the appellant used to insist that he should work on the truck of Syed Harun else he will face with the dire consequences.
The FIR further proceeds that on 06.07.2011 at about 7.30 p.m. the deceased Najakatulla left his house for going to Amravati. At 10 O' clock, he made a phone call to Mohd. Jamirullah (PW2) and it was informed that he is near railway gate. At the same time, the gateman Allauddin Waliuddin (PW4) informed that one boy is lying in the pool of blood and, therefore, the first informant and Jamirullah (PW2) went to the railway gate cabin. That time, they noticed that Najakatulla drenched with blood, was not able to speak properly. They noticed that there was a big injury to his neck. He was unable to speak. He was taken to Irwin Hospital, Amravati in auto rickshaw where, on his admission, he was declared dead.
On the next day, PSI Jagdale went to the General Hospital. He conducted inquest over the dead body and prepared the inquest panchanama Exh.40 in presence of pancha witnesses.
3. Subsequently, investigation was conducted by Sanjay Dahake (PW9) and also Prashant Kalputwar (PW8).
Sanjay Dahake (PW9) went to the spot of occurrence and prepared the spot panchanama Exh.44. He recorded statement of Rauf Khan on 28.09.2011.
Prashant Kalputwar (PW8) on 06.07.2011 seized the clothes of the appellant under seizure memo Exh.42. He also seized the clothes of Mohd. Jamirullah (PW2) and his mobile phone under seizure memos Exh.33 and 34 respectively. He also seized mobile phone of the appellant under seizure memo Exh.43.
On 09.07.2011, when the appellant was in custody, he made a disclosure statement to Prashant Kalputwar (PW8) in presence of pancha witnesses and agreed to show the place where the weapon 'Sattur' is kept. The memorandum statement is at Exh.45 and consequent recovery of the said weapon is under seizure memo Exh.46.
On 10.07.2011, the appellant gave his disclosure statement to Prashant in presence of pancha and agreed to show the place where he has committed murder of the deceased Najakatulla. Accordingly, the police party, in presence of pancha, went to the spot. There he recorded the statement and spot which is at Exh.47. After completion of the investigation, charge-sheet was filed in the Court of J.M.F.C. Court No. 6, Amravati.
The learned Magistrate found that the case is exclusively triable by the Court of Sessions and, therefore, he committed the case to the Court of Sessions. The learned Sessions Judge framed the charge against the appellant and one Syed Alim Syed Nabi. The appellant was charged for the offence punishab
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