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2017 Supreme(Bom) 1726
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
ROHIT B. DEO, J.
Mahendra S/o. Tekchand Behere – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No.755 of 2004
Decided On : 21-11-2017
For the Appellant : Mr. Anil Mardikar, learned senior counsel
For the Respondent: Mr. A.V. Palshikar, Additional Public Prosecutor
The central legal point established in the judgment is the requirement for dying declarations to be certified by a doctor and the caution needed in accepting them as evidence.
Headnote:
IPC - Assault - Section 326 - Summary: The court discussed the evidence related to the assault on the deceased and the reliability of the dying declarations. It highlighted the legal provisions regarding dying declarations, the need for certification by a doctor, and the caution required in accepting dying declarations as evidence. The court ultimately acquitted the accused based on the lack of confidence in the dying declarations.
Fact of the Case:
The deceased was assaulted by the accused, leading to his death. The prosecution relied on dying declarations as evidence.
Finding of the Court:
The court found the evidence of the prosecution witnesses unreliable and raised concerns about the dying declarations not being certified by a doctor. It ultimately acquitted the accused due to lack of confidence in the dying declarations.
Issues: Reliability of dying declarations, credibility of prosecution witnesses, and compliance with legal requirements for dying declarations.
Ratio Decidendi: The court emphasized the need for dying declarations to be certified by a doctor and discussed the caution required in accepting dying declarations as evidence.
Final Decision: The accused was acquitted of the offence punishable under Section 326 of the Indian Penal Code.
The appellant seeks to assail the judgment and order dated 7.12.2004, in Sessions Trial 85 of 2000, delivered by the 1st Adhoc Additional Sessions Judge, Nagpur, by and under which the appellant (hereinafter referred to as “the accused”) is convicted for the offence punishable under section 326 of the Indian Penal Code (“IPC” for short) and is sentenced to suffer rigorous imprisonment for 5 years and to payment of fine of Rs. 10,000/-.
2. Heard Shri. Anil Mardikar, learned senior counsel for the appellant and Shri. A.V. Palshikar, learned Additional Public Prosecutor for the respondent/State.
3. The case of the prosecution, as is unfolded during the course of trial is thus:
4. The voting for the Loksabha and State Assembly election was scheduled on 5.9.1999. The deceased, Bhaiyyalal Damodar Sharma, who was a resident of village Khadka situated in Tahsil Hingna, District Nagpur, cast his vote and at 5.30 p.m. or thereabout and then came at the square near the Khadka Hingna road. The accused, who and the deceased were on inimical terms, accosted and abused the deceased Bhaiyyalal Sharma. The accused, who was armed with spear, inflicted a spear blow on the left rib. Bleeding from wound, Bhaiyyalal proceeded towards his house. The son and wife of Bhaiyyalal, accompanied him to Police Station Hingna. Bhaiyyalala lodged report on the basis of which offence punishable under section 326 of the IPC was registered against the accused.
5. Bhaiyyalal was referred to and admitted in the Medical Collage & Hospital, Nagpur. The next day, on 6.9.1999, the dying declaration of Bhaiyyalal was recorded by Assistant Sub Inspector Laxminarayan Tiwari, who is examined as PW 8. A second dying declaration was recorded by Head Constable Panjabrao (PW 13) on 7.9.1999.
6. Bhaiyyalal expired on 24.9.1999 and offence punishable under section 302 of the IPC was additionally registered against the accused.
7. In the interregnum, the spot panchanama was prepared on 6.9.1999, the sketch map of the spot of incident was drawn by the Revenue Inspector, the accused was arrested on 14.9.1999 and one spear with stick was seized from the accused in the presence of the panchas, clothes of the accused were seized, the clothes of the victim Bhaiyyalal were seized from his son Damodar.
8. The inquest panchanama was prepared on 25.9.1999 and the dead body was referred for post mortem. The post mortem examination report was obtained, the spear which was seized from the accused was sent to the medical expert for opinion and the doctor opined that the injuries suffered by the deceased were possible by the said weapon. The blood sample of the accused was taken, the seized property was sent to Chemical Analyzer, the statements of the witnesses were recorded and the charge-sheet was submitted in the Court of Judicial Magistrate First Class, Nagpur, who committed the proceedings to the Sessions Court.
9. The learned Sessions Judge framed charge for offence punishable under section 326 and 302 of the IPC, the accused abjured guilt and claimed to be tried in accordance with law, the defence as is discernible from the tenor of the cross-examination and the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial and false implication.
10. The learned senior counsel Shri. Anil Mardikar for the accused advanced the following submissions, amongst others:
(a) The accused is not named in the First Information Report lodged by the deceased Bhaiyyalal (Exh. 26). The First Information Report refers to one Behere as the assailant. The prosecution has not excluded the possibility of existence more than one persons with the same surname (Behere), who could be the residents of the village or the vicinity.
(b) Dying declaration (Exh. 45), which is recorded by PW 8 Assistant Sub Inspector Shri Tiwari does not bear the thumb impression or the signature of the injured nor a certification of the medical practitioner stating that the deceased was in fit condition to g
