2007 ALL SCR 51
S.B. SINHA AND MARKANDEY KATJU, JJ.
Gangaram Shantaram Salunkhe Vs. State Of Maharashtra
Criminal Appeal No.241 of 2006
22nd November, 2006
Petitioner Counsel: SUDHANSHU CHOUDHARY, NARESH KUMAR
Respondent Counsel: V. N. RAGHUPATHY, ANIRUDDHA P. MAYEE
Evidence Act (1872), S.32 - Penal Code (1860), S.302 - Dying declaration - Dying declaration recorded before deceased had reached hospital - Doctor who conducted post-mortem examination stated that it was possible that after sustaining wounds deceased may have gone in unconscious state instantaneously - But there is difference between something being possible and something being probable or certain - Hence, dying declaration could not be disbelieved. (Paras 11, 12)
MARKANDEY KATJU, J.:- This appeal has been filed against the impugned judgment and order of the Bombay High Court (Aurangabad Bench) dated 17.10.2005 in Criminal Appeal No.60 of 1992 by which the High Court has affirmed the sentence of life imprisonment imposed by the Trial Court by judgment dated 20.2.1992 under Section 302 read with Section 34, IPC as well as fine of Rs.200/-, in default of which two months R.I. was also awarded.
3. There were four accused originally before the Trial Court namely (1) Anil Shivram Pawar, (2) Manilal Hiraram Chaudhari, (3) Premraj Hiraram Chaudhari and (4) Gangaram Shantaram Salunkhe (the appellant in the present case). All the four accused had been convicted by the Trial Court but in appeal the High Court acquitted accused no.1 but maintained the conviction of accused nos.2, 3 and 4 under Section 302 read with Section 34, I.P.C. In the present case the appellant is only accused no.4 Gangaram Shantaram Salunkhe @ Bapu.
4. The gist of the prosecution case is that on 13.2.1991 Bhaulal Jadhav the deceased along with PW-4 Lotu Eko Patil was proceeding from Phuphanagari to Jalgaon on bike Bajaj M-80 and when they reached on a way to Jalgaon near Khedi Phata at a distance of 3 kms. the appellants, who were in Maruti Van parked by the side of road got down. It is further alleged that the accused nos.2, 3 and 4 then stopped vehicle on which Bhaulal and PW-4 were proceeding. The accused No.3 Premraj caught hold Bhaulal and accused no.2 and 4 i.e. Manilal and Gangaram assaulted Bhaulal with knife. The complainant PW-4 then tried to rescue Bhaulal, however, accused no.2 Manilal extended threats to PW-4 and, therefore, PW-4 started proceeding towards Jalgaon. Bhaulal was also trying to save himself, however, the accused nos.2 and 3 chased him and assaulted with weapon like knife. PW-4 then immediately went to Taluka Police Station Jalgaon on a vehicle of some another person. PW-14 Hamid Khan Miya Khan Pathan was holding charge of Station Diary at the relevant time at about 11.45 a.m.. PW-4 then disclosed him about the incident that Bhaulal Jadhav is assaulted by Manilal, Premraj and one unknown person. Entry in the Station Diary to that effect was immediately taken by PW-14 and Police Constable namely Ukhardu Koli, Sharad Vispute and Pramod, who were on duty at Police Station, were immediately sent to the spot along with PW-4, however, by that time injured Bhaulal Jadhav was taken to the hospital in a tractor by one Bharat Jadhav as he was also proceeding to Jalgaon and that tractor was also owned by Bhaulal. The Police Constable Ukhardu Koli and others and complainant then proceeded to the hospital. Doctor from hospital examined Bhaulal and declared him dead and, therefore, Police Constable Ukhardu Koli gave information to the Taluka Police Station approximately at about 12.45 noon about the death of Bhaulal and PW-14 thereafter recorded complaint of PW-4 and on the basis of said complaint registered crime No.16/1991 against the present appellants for the offence punishable under Section 120-B, 302 read with Sections 34 and 341, 506 of I.P.C. PW-17 Dhanraj Walukar took up the investigation of the said crime. He visited the hospital, held inquest over the dead body, referred the same for post-mortem, recorded statements of certain witnesses. Thereafter investigation of the said crime was taken over by P.I. PW-15 P.S. Suryawanshi who arrested accused no.1, interrogated him and attached revolver at his instance. Record further shows that PW-15 thereafter handed over investigation of the said crime to PW-17 who then made attempts to arrest accused, as the accused nos.2, 3 and 4 were absconding he succeeded in arresting accused no.2 Manilal only on 22.3.1991. During the course of interrogation and while accused Manilal was in the custody of Police he made discloser statement, showed his willingness to produce the weapon from the place where it was concealed at Saptashringi Gadh. Memorandum to that effect is prepared. He then took police and panchas to the said place and produced knife. Even the accused also showed his willingness to show the place where he burnt blood stained clothes which were on his person. He then took police to Nala and shown the place. Panchnama to that effect is prepared and burnt articles were attached by the police. PW-17 then made attempt to arrest accused no.3 and 4, however, their whereabouts were not known and some where in the month of July, 1991 both accused nos.3 and 4 obtained anticipatory bail. Record further shows that initially police after completing investigation filed charge sheet against accused nos.1 and 2 showing the accused nos.3 and 4 absconding and after formal arrest of accused nos.3 and 4 subsequently charge sheet was submitted and accordingly two separate cases i.e. Sessions Case No.88/1991 and 196/1991 were registered.
5. The Trial Court after considering the evidence on record convicted the accused under Section 302 read with Section 34 and Section 120B, I.P.C. which conviction was upheld in appeal by the High Court.
6. In this case there are two eye-witnesses PW-4 and PW-5. As regards the evidence of PW-4, he has stated that at the time of the incident the accused no.2 Manilal Hiraman Chaudhari and accused no.3 Premraj Hiraman Chaudhari and one unknown person got down from the Maruti Van. He has further stated that the unknown man gave a blow with an iron sickle on the head of the deceased. He further stated that thereafter the unknown man got hold of the deceased and accused nos.2 and 3 inflicted blows on him with iron knife and sickle.
7. It is submitted by learned counsel for the appellant that since the name of the appellant was not mentioned by PW-4 hence the chance of false implication of the appellant in this case cannot be ruled out.
8. We do not agree with this contention. PW-4 clearly identified the appellant as the unknown man in his deposition before the Trial Court, and there is no reason why PW-4 should falsely implicate him.
9. The evidence of PW-4 is also corroborated by the evidence of PW-5, who is a neutral person being the driver of the Maruti Van. There was no reason for PW-5 to falsely implicate the appellant. PW-5 has clearly stated in his evidence that the appellant inflicted wounds on the deceased.
11. Learned counsel for the appellant tried to assail the veracity of the dying declaration through the evidence of the Doctor who conducted the post-mortem examination. The Doctor stated that it was possible that after sustaining the wounds the deceased may have gone into an unconscious state instantaneously.
12. We note that the Doctor only stated that it was possible that the deceased may have become unconscious instantaneously. However, there is a difference between something being possible and something being probable or certain. PW-6 before whom the dying declaration was recorded, stated that the deceased had given his dying declaration before he reached the hospital. Thus, we see no reason to disbelieve the dying declaration.