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2017 Supreme(Bom) 1410
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
VASANTI A. NAIK, M.G. GIRATKAR, JJ.
Suresh - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 7 of 2015
Decided On : 05-09-2017
For the Respondent: A.M. Deshpande.
The reliability of a dying declaration and sufficiency of circumstantial evidence in establishing guilt beyond reasonable doubt.
Headnote:
Dying Declaration - Murder - Indian Penal Code - Section 302
Fact of the Case:
The deceased went to demand money from the accused, was found lying in a pool of blood, and made an oral dying declaration accusing the accused of beating him with a stone. The medical officer declared the deceased brought dead at the hospital.
Finding of the Court:
The court found the oral dying declaration unreliable due to lack of corroboration and the deceased's likely unconscious state. The circumstantial evidence was deemed insufficient to convict the accused.
Issues: Reliability of oral dying declaration, sufficiency of circumstantial evidence
Ratio Decidendi: The court can convict based on a dying declaration if it inspires confidence, but in this case, the lack of corroboration and the deceased's likely unconscious state rendered the declaration unreliable. Circumstantial evidence must point towards the guilt of the accused, which was not the case here.
Final Decision: The accused was acquitted of the offence punishable under Section 302 of the Indian Penal Code due to the unreliable dying declaration and insufficient circumstantial evidence.
M.G. Giratkar, J.
1. The appellant has challenged the Judgment of conviction awarded by the Additional Sessions Judge, Akola in Sessions Trial No. 152 of 2012, dated 13.11.2014, by which he is sentenced to suffer life imprisonment for the offence punishable under Section 302 of the Indian Penal Code and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for two months.
2. The case of the prosecution/complainant, in short, is as under:
The deceased along with his wife namely Maya was residing near Lakadgunj over bridge, Murtizapur. The complainant lost her first husband. She married with the deceased/ husband for the second time. She has two daughters namely Chhakuli and Shalini. The deceased along with his family and parents were residing jointly. The accused is relative of deceased. He was always visiting to the house of the deceased. The accused and the deceased both were addicted to liquor.
3. On 5th August, 2012, the deceased went outside for bringing liquor. He returned back at about 9.00 a.m. He told his wife/complainant that he wanted to go to the house of the accused to get the amount back which was given by him to the accused. Later, he told her that he has drunk liquor excessively and therefore, he will go in the evening.
4. In the evening, at about 5.30 p.m. deceased Sonu went to the house of the accused. His wife/complainant was knowing that the accused is a quarrelsome person and therefore, she suspected that there would be some quarrel between the accused and the deceased. Therefore, she sent her daughter Chhakuli after 510 minutes towards the house of appellant Suresh. After sometime, Chhakuli returned back and informed to the complainant that her father was lying there and blood was oozing (“papa vaha pade hai aur unka bahut khoon ja raha hai”). The complainant immediately rushed to the spot of incident. She found her husband lying in a pool of blood. He had injuries on his face, nose etc. On the complainant asking her husband/deceased, he replied that he was beaten by accused Suresh. Then she asked him by what means he was beaten. He replied that the accused beat him by stone. The complainant called auto and took the deceased to the Government hospital, Akola. Doctor examined the deceased and declared him brought dead. Complainant lodged the report in the Police Station, Murtizapur about the incident.
5. After report, investigation machinery was put in motion. The Investigating Officer started investigation. He went to the spot of incident, prepared spot panchanama, seizure panchanama, inquest panchanama etc. The Investigating Officer arrested the accused. He was referred to the Medical Officer. The Investigating Officer seized the clothes of the deceased, stone and the clothes of accused and their blood samples etc. The Investigating Officer sent all the seized properties to the Chemical Analyser for examination as per the letter at Exh.44. The Investigating Officer recorded the statements of complainant and other witnesses. It was revealed during the investigation that the accused committed murder of deceased Sonu.
6. After completing investigation, charge sheet was submitted to the Court of the Judicial Magistrate, First Class, Murtizapur. The offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the Sessions Court. Therefore, Judicial Magistrate, First Class, Murtizapur committed the case for trial to the Court of Sessions at Akola.
7. The Additional Sessions Judge, Akola framed charge at Exh.2. The charge was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
8. The defence of the appellant/accused appears to be of total denial and false implication due to enmity.
9. Prosecution has examined in all nine witnesses. The statement of accused was recorded under Section 313 of the Code of Criminal Procedure. The accused denied the material incriminating evidence against him.
10. The learned Additional Sessions J
