Criminal Appeal No. 115 of 1997,Criminal Appeal No. 127 of 1997

12th June, 2002

Petitioner Counsel: Shri. R.M. SAMBRE
Respondent Counsel: Shri. R.M. DAGA, Shri. S.G. LONEY

Cases Cited:
Koli Chunilal Savji Vs. State of Gujarat, 1999 Cri. L.J. 4582 [Para 4,8]

JUDGMENT

R.K. Batta, J. :- Heard learned Advocate for the appellant in Criminal Appeal No. 115 of 1997, learned A.P.P. in Criminal Appeal No. 127 of 1997 and learned Advocate for respondent Nagesh in both the appeals. Admittedly no appeal is maintainable at the instance of private party in a sessions trial conducted on filing of the Chargesheet by the State. Accordingly, learned Advocate for the appellant in Criminal Appeal No. 115 of 1997 sought permission to convert the appeal into revision. The request was allowed and the criminal appeal is permitted to be converted in criminal revision. The office shall accordingly make necessary entries converting the Criminal Appeal no.. 115 of 1997 to criminal revision for the purpose of record.

2. In both the matters, there is an application for condonation of delay. The matters are pending for almost five years now. in the facts and circumstances, delay in filing the same is condoned.

3. We have heard learned A.P.P. and Advocates for the parties and it is proposed to dispose of both the matters by common judgment since they arise out of the same judgment passed by the learned Additional sessions Judge, Nagpur, whereby respondent Nagesh was acquitted of the offence under section 302 of the Indian Penal Code. Criminal Appeal No. 115 of 1997 which has been converted into criminal revision, has been filed by the wife of the deceased and Criminal Appeal No. 127 of 1997 has been filed by the State.

4. Learned A.P.P. Shri Loney urged before us that though the eye witnesses had not supported the prosecution case yet the evidence on record which consisted of F.I.R./Dying Declaration (Exh. 58) recorded by Head Constable Bhanurao Bele (PW-14) as also oral dying declaration made by the deceased to his wife PW-3 Ramabai Reddy are sufficient to bring home the guilt of the respondent Nagesh and that the trial Court erred in recording acquittal in the case under consideration. He urged before us that the oral dying declaration made by the deceased to PW-3 Ramabai Reddy could not be rejected by the trial Court on the ground that the statement has been recorded by the police after seven days since she was in a mourning during that period and the delay in recording the statement of PW-3 cannot be said to be fatal in the circumstances. He has further urged that the trial Court had rejected dying declaration/F.I.R. (Exh. 58) on the ground that before the same was recorded no certificate regarding consciousness of fitness of the deceased had been obtained by PW-14. Placing reliance on Koli Chunilal Savji and another V. State of Gujarat (reported in 1999 Cri. L.J. 4582), it is urged that in every case it is not a mandatory requirement that the certificate from the doctor should be obtained and if the statement/dying declaration recorded without the certificate of the doctor inspires confidence, the same can be acted upon. He, therefore, contends that the order of acquittal be set aside.

5. Learned Advocate Shri Sambre, appearing on behalf of the appellant in Criminal Appeal No. 115 of 1997, which has been allowed to be converted into revision, adopted the arguments advanced by the learned A.P.P.

6. On the other hand, learned Advocate for respondent Nagesh submitted before us that all the eye witnesses have not supported the prosecution case; that the trial Court has disbelieved the recovery of the Knife on the ground that it had been planted by P.S.I., that there is nothing in the evidence of PW-14 who recorded the F.I.R./dying declaration to suggest that when he recorded the same the deceased was mentally in a fit state of affairs to give the statement and the fact that the said statement is so cryptic by itself casts doubt on the authenticity of the same. He also urged before us that though the PW-3 has stated that her statement was recorded on the next day of the incident yet no statement of PW-3 recorded on the next day has been produced. He, therefore, contends that in this set of facts the delay in recording the statement of PW-3 has to be examined and in these circumstances, the trial Court was perfectly right in discarding the oral dying declaration alleged to have been made by the deceased to her. Accordingly, it is urged that the acquittal of the respondent Nagesh is not required to be interfered with.

7. The prosecution had examined as many as 15 witnesses to support the charge. A number of eye witnesses were examined by the prosecution. All said witnesses, namely, PW-1 Shankar Dongre, PW-2 Rupchand Meshram, PW-4 Gopikrushna Reddi, PW-11 Ajay Choukse, PW-12 Ramesh Choukse and PW-13 Bhimrao Dongre did not support the prosecution. The prosecutor was permitted to put the question in the nature of cross-examination to these witnesses, but nothing material could be elicited by the learned A.P.P. during the cross-examination.

8. The prosecution case was, therefore, left with the F.I.R./Dying Declaration (Exh. 58) recorded by PW-14 Head Constable Bhanurao Bele and oral dying declaration alleged to have been made by the deceased to his wife PW-3 Ramabai Reddy. It is no doubt true that in the facts and circumstances, the F.I.R. can be treated as dying declaration as the maker of the F.I.R. namely the deceased had died. According to learned A.P.P. such F.I.R. which is treated as dying declaration in the circumstances, does not require any certification from the doctor as to the mental fitness of the maker and in this connection reliance has been placed on Koli Chunilal Savji and another V. State of Gujarat (cited supra). It has been laid down by the Apex Court in this judgment that it is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. But in the absence of doctor while recording the dying declaration, the said declaration does not lose its value and can be accepted. In this case before the Apex Court, the Magistrate who had recorded the dying declaration of the deceased had been examined as a witness with regard to the condition of the deceased. The Magistrate has stated in her deposition that she told the doctor on duty that she has to record the statement of the deceased and she showed the doctor the Police Yadi. The doctor then introduced the Magistrate to the deceased and when she asked the doctor about the condition of the deceased, the said doctor categorically stated that she was in a conscious condition. It also appeared from her evidence that though there was no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient, but there has been an endorsement on the Police Yadi indicating that the deceased was fully conscious. It is in this set of facts that the Apex Court came to the conclusion that there was no reason to discard the testimony of the Magistrate. It is pertinent to note that the Apex Court has laid down that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. Therefore, we have to examine whether in the case under consideration, any attempt was made by Head Constable PW-14 Bhanurao Bele before recording the F.I.R. which has now to be treated as dying declaration that the declarant was in a fit condition to make the statement in question. From his evidence, it is clear that he did not make any enquiries with the doctor on duty regarding the fitness of the deceased to make statement nor does his evidence show that he had himself ascertained before recording the F.I.R./Dying Declaration that the deceased was in a fit state to make statement. PW-14 has stated that after he had reached the spot of the incident, the deceased upon enquiry made by him had stated that respondent Nagesh inflicted injuries by means of knife on his person. PW-14 admits that he did not record the said statement of the deceased on the spot of the incident and that he recorded the F.I.R. in the hospital. He also admits that in the said F.I.R. which was recorded in the hospital, he did not mention that the deceased Rama Reddy had made oral statement before him on the spot of the incident. The F.I.R./Dying Declaration is at Exh. 58. The spacing in the later part of Exh. 58 does give an indication that the material was sought to be fitted in above the signatures allegedly made by the deceased. The interse spaces between the words and the intrse spacing between the lines in the first part of Exh. 58 upto little more than half of the said page is different as compared to the one in the later part of the said page. Though this fact was not agitated before the trial Court yet it does create some doubt in the matter. Though in Exh. 58 there appear some details of the incident, yet in his deposition PW-14 Bhanurao Bele had merely stated deceased told him that accused Nagesh inflicted the injuries by means of knife on his person. Besides this, no further details as recorded in the F.I.R./Dying Declaration have been deposed to by PW-14 Bhanurao Bele. In this set of facts, no implicit reliance can be placed on the F.I.R./Dying Declaration (Exh. 58) upon which reliance was placed by the prosecution.

9. Coming to the evidence of PW-3, she has stated that the younger brother of her husband had informed her that the accused stabbed her husband Rama Reddy by knife. PW-4 Gopikrushna who is younger brother of deceased Rama Reddy had stated that their brother Satyanarayan informed him that Rama Reddy was assaulted by accused Nagesh. This witness admitted that he was sitting in the Court when statement of PW-3 was being recorded. PW-5 Satyanarayan, younger brother of deceased Rama Reddy has stated that labourers who were with deceased had told him that he was assaulted by somebody. This evidence, therefore, breaks the link of the statement of PW-3 that younger brother of her husband had come and told her that the accused had stabbed her husband by knife. According to PW-4, he had been to the Mayo Hospital at about 1.00 p.m. and at that time when she met with her husband and she was told by her husband that Nagesh stabbed him by knife. Except for this cryptic statement, she has not given any details about what her husband informed her. She has further stated that on the next day of the incident, she had gone to the police station and police obtained her signature on her statement and thereafter she never went to the police station. She also states that on the next day police came to her house. No statement of this witness recorded on next day has come-forth. It is in this set of facts that the delay in recording the statement of this witness which has been taken into consideration by the trial Court has an important bearing. It is to be noted that all the eye witnesses have not supported the prosecution case and the trial Court has disbelieved the recovery of the knife which has been planted by the P.S.I.

10. In view of the above state of affairs, we find it difficult to interfere with the acquittal recorded by the trial Court. Accordingly, Criminal Appeal No. 115 of 1997, which has been converted into revision and Criminal Appeal No. 127 of 1997 are hereby dismissed.

Appeal dismissed.