Advocates appeared :

Mr. A. H. KAPADIA and Mr. V. N. DAMLE, Advocates for the Appellant.

Mr. K. B. CHOUDHARY, A.P.P. for Respondent.

P. V. HARDAS, J.:- Criminal Appeal No.742 of 2003 has been filed by original accused no.3 Rafiq while Criminal Appeal No.785 of 2003 has been filed by original accused nos.1 & 2. Since both these appeals challenge the conviction of the appellants for offence punishable under section 302 read with section 34 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs.1,000/- each, in default further imprisonment for three months, passed by the 2nd Ad hoc Additional Sessions Judge, Nanded, by judgment dated 17-10-2003, in Sessions Case No.41 of 1999, both these appeals are being decided by this common judgment.

2. Such of the facts as are relevant for the decision of these appeals can be stated thus :-

P.W.9 A.S.I. Shripat Jankar was attached to the Bhagyanagar police station. On 23-8-1998 while he was at Tarodanaka chowki he received a phone message from the P.S.O., Bhagyanagar police station for recording the statement of injured one Datta who was admitted in the Govt. Medical College & Hospital at Nanded. He, therefore, went to the hospital, contracted the Medical Officer who pointed out injured Datta to him. He inquired from the Medical Officer about the fitness of injured to give his statement and the Medical Officer informed him that injured was in a condition to give a statement. P.W. 9 A.S.I. Jankar, therefore, recorded the statement of injured Datta as per Exh.50. P.W. 5 Mazar Hussain who was on duty at Bhagyanagar police station as a P.S.O. was handed over the complaint of injured Datta and accordingly registered Crime No.167 of 1998 initially under section 326 read with section 34 of the Indian Penal Code and handed over the investigation to P.W.14 Ashok Thorat. P.W.14 P.I. Ashok Thorat took over the investigation of the crime and went to the scene of the offence and drew the scene of the offence panchanama at Exh.68 in the presence of P.W.2 Dattatraya and P.W.1 Rajeshwar, who did not support the prosecution. On the same day he collected sample of blood stained soil and control soil vide panchanama at Exh.69 in the presence of P.W.1 Rajeshwar and P.W. 2 Dattatraya. Original accused no.2 Raosaheb is alleged to have produced Jambiya and Katti (sickle) which came to be attached vide panchanama at Exh.70 in the presence of P.W. 16 Bhimrao. Thereafter he issued a requisition to the Special Judicial Magistrate for recording the dying declaration of injured Datta. P.W.8 Namdeo Sonkamble who was working as Special Judicial Magistrate received a requisition from police station, Bhagyanagar for recording the dying declaration of injured Datta. Accordingly on 23-8-1998 he went to the hospital at Nanded and recorded the dying declaration of injured Datta at Exh.48. P.W.11 Dr. Shantikumar Baradkar had examined injured when P.W.8 Namdeo had recorded the dying declaration at Exh.48. On his admission in the hospital at Nanded, injured Datta had been examined by P.W. 10 Dr. Mohd. Taher who had noticed the following external injuries :-

1. Sharp deep cutting wound 5 inches x 1/2 inch deep over face extending to left eye brow to right cheek. X-ray showing fracture of nasal bone to sharp cutting wound;

2. 1/2 inch over forehead left side at scan show bregmatic fracture;

3. Sharp cutting wound 3 x 1/2 inch over left forearm on dorsome size, evidence of refracture - lower end and redious;

4. Sharp deep cutting wound 2 x 1/2 inch over right forearm on dorsome-evidence of fracture redious under placed, evidence of refracture of ulna;

5. Sharp cutting wound 2 inch in length on right upper arm deep to muscle;

6. Sharp cutting wound 3 inch in length over right elbow joint deep up to muscle tendon - evidence of fracture of carpal bone;

7. Sharp cutting wound 1/2 inch length on left elbow joint partial amputation of left middle finger;

8. Incised wound 2 inch length 1/2 inch deep on left parital region;

9. Contused lacerated wound 1/2 inch x 1/2 inch over chest open wound causing collapse of lung;

10. Contused lacerated wound 11/2 inch x 1/2 inch over left thigh above knee joint.

It appears that injured Datta succumbed to his injuries and, therefore, his body was referred for post-mortem and post-mortem was conducted by P.W.6 Dr. Abhay Uppe. P.W.6 Dr. Uppe had noticed the following external injuries :-

1. Sutured wound over the face running oblique from lt. frontal to rt. maxillary region 17 cm in length, stitches with signs of healing;

2. Sutured wound over the Rt. frontal region forehead 5 cm. in length with healing;

3. Two superficial incised wound over the Rt. chest above the nipple measuring 4 cm x 2 cm each white colour;

4. Incised wound below pesternum measuring 3 cm with tailing to the middle measuring 4 cm white colour;

5. Incised wound over the pesternum 3 x 2 cm;

6. Sutured would 2 cm in length below the medial spicendyle with healing;

7. Surgical wound over the 7th intercostal space 4 x 3 x 3 cm (for ICD);

8. Incised wound 9 cm x 2 cm over the Rt. upper limb over the humerus oblique;

9. Superficial incised wound above the cubital fossa 3 cm x 1 cm;

10. Incised wound 2 cm x 1 cm over the Rt. upper limit on the lateral;

11. Two sutured wound 5 cm above illegal crest with tailing on Rt. side;

12. Sutured wound over the lt. thing oblique 8 cm in length with healing;

13. Abrasion dark brown in colour below the Rt. knee joint;

14. Two sutured wound 6 cm in length over the occipital region & 12 cm in length over the back of the neck with healing;

15. Sutured wound over the Rt. scapula 7 cm in length;

16. Superficial incised wound over the back 9 cm in length;

17. Sutured wound 4 cm in infraxillary line;

18. Sutured wound 4 cm on the medial aspect of Rt. humerus with healing;

19. Two sutured wounds 9 cm in length & 10 cm in length over the back of cubital fossa with healing;

20. Chop wound 5 x 4 cm fascia deep on the Rt. forearm extenser aspect white colour with healing;

21. Two cut incised wounds 2 x 3 cm bone deep 5 cm above the Rt. wrist joint;

22. Cut incised wound 3 x 4 cm muscle deep over the extenser aspect of Rt. wrist joint allextenser tenders cut;

23. Amputation of Rt. ring finger;

24. Sutured wound over the Rt. wrist joint 11 cm in length;

25. Bedsores over the buttocks.

He also noticed following ante mortem internal injuries

1. Skull-Depressed fracture over the frontal aspect of skull 4 x 1.5 cm in size;

2. Brain edematous and congested subdural heamatoma over the frontal region.

According to P.W. 6 Dr. Uppe, deceased Datta died on account of head injury with multiple cut incised injuries. The post-mortem report is at Exh.38. After completion of the investigation, a charge-sheet against the appellants and original accused no.4 Sanjay came to be filed.

3. On committal of the case to Court of Sessions, Trial Judge, vide Exh.19, framed a charge against all the accused for offence punishable under sections 302 read with Secs.34, 326 read with sec.34 of the Indian Penal Code and under section 135 of the Bombay Police Act. The Trial Judge on consideration of the evidence convicted and sentenced the appellants who are original accused nos.1 to 3 for offence punishable under section 302 read with section 34 of the Indian Penal Code, while acquitting original accused no.4. The entire case of the prosecution rests on the four dying declarations which are at Exh.50, Exh.51, Exh.48 and Exh.45. During the trial, P.W. 12 Dr. Pundlik Jamdade produced the case papers at Exh.64 in respect of treatment given to Datta in the hospital at Nanded.

4. Before we advert to the submissions advanced before us by Shri. Joydeep Chatterji and Shri. V. N. Damle, learned Counsel appearing on behalf of the appellants in the two appeals, it would be useful to first refer to the evidence in respect of the recording of the dying declarations.

5. The first dying declaration which was recorded is at Exh.50 and the same was recorded by P.W. 9 Shripat Jankar. P.W. 9 Shripat Jankar states about going to the hospital at Nanded and after verifying from the Medical Officer the fitness of injured Datta to give his statement, recorded the dying declaration of injured Datta on 23-8-1998 in between 3.40 p.m. to 4.10 p.m. In the dying declaration at Exh.50 injured Datta had stated that on 23-8-1998 at about 7.30 a.m. he was proceeding on his motorcycle along with his nephew aged 10 months. When he was near the flag pole in Rajesh Nagar, accused no.1 Navnath, accused no.2 Raosaheb and accused no.3 Mohd. Rafiq came in front of his motorcycle and accused no.1 dealt a blow of sword on his neck. On account of receiving the injury by sword, he along with his nephew fell down. He then began to go by the road in Ulhasnagar and the accused chased him and dealt injuries on various parts of his body by means of a sword. He has stated that accused no.2 Raosaheb was armed with a knife called Jambiya and accused no.3 had a weapon similar to a sickle. He expressed his suspicion that the accused had been instigated by some one to kill him. It was on the basis of this statement that the offence vide Crime No.167 of 1998 came to be registered. Perusal of Exh.50 shows that there is an endorsement of the Medical Officer dated 23-8-1998 made at 2.00 p.m. that the patient is conscious oriented and fit for giving statement. P.W.9 A.S.I. Jankar after recording the statement of injured at Exh.50 immediately recorded another statement at Exh.51 . In the statement at Exh.51 injured Datta had stated that in the morning at about 7.00 a.m. he was proceeding on his motorcycle towards his house and near the Canal accused nos.1, 2 & 3 had inflicted injuries on him by means of a knife (Jambiya) and sickle. He has stated that he does not know the reason as to why they had assaulted him. Perusal of Exh.51 shows that there is no endorsement of the Medical Officer regarding the mental fitness of injured at the time of recording of the dying declaration.

6. In respect of the recording of the dying declarations at Exhs.50 and 52, P.W. 9 A.S.I. Jankar has stated in examination-in-chief itself that when the dying declaration at Exh.50 was being recorded, mother of injured Datta was present. In cross-examination he has admitted that injured Datta was a notorious criminal from the area under the jurisdiction of Bhagya Nagar police station and there were several crimes registered against Datta. He has stated that he was knowing Datta as well as his mother Gayabai when he had recorded the statements at Exhs.50 & 51.

7. Dying declaration at Exh.48 came to be recorded by P.W. 8 Namdev Sonkamble who was the Special Judicial Magistrate. P.W. 8 Namdev Sonkamble states that he went to the hospital on 23-8-2003 and recorded the dying declaration in between 3.40 p.m. to 4.10 p.m. The contents of the dying declaration were thereafter read over to the declarant and the declarant put his thumb mark of the right hand. He thereafter approached the Doctor on duty who made endorsement to the effect that the patient was fully conscious while recording the dying declaration. He has further stated that during recording the dying declaration, only the Doctor and he were present. In cross-examination he has admitted that at the commencement of the recording of the dying declaration he did not obtain the endorsement of the Doctor.

8. Datta in his dying declaration at Exh.48 states that on 23-8-1998, at about 7.00 a.m. he was proceeding along with his nephew aged 10 months on his motorcycle. While returning home, near the house of one Shri. Dharmadhikari, accused no.2 Raosaheb, accused no.1 Navnath, accused no.3 Rafiq and accused no.4 Sanjay obstructed him and his nephew fell down from the motorcycle. Accused no.2 Raosaheb dealt blows by sword and the other accused dealt blows by knife (Khanjir). Thereafter he was taken near Santosh garage and thrown there. Thereafter his mother admitted him in the hospital.

9. P.W. 11 Dr. Shantikumar Baradkar is the Medical Officer who had examined injured Datta when his statement at Exh.48 was being recorded. Dr. Baradkar in his evidence states that on 23-8-1998, Special Judicial Magistrate had called him for recording the dying declaration and he made the endorsement on the dying declaration to the effect the patient was fully conscious while recording the dying declaration. In cross-examination he has admitted that he did not make any endorsement before commencement of the recording of the dying declaration in respect of the condition of injured. He has admitted that he had not given treatment for the injuries sustained by injured Datta. He has stated that he does not know what was the treatment given to injured Datta. He has admitted that he was not continuously present during recording of the dying declaration at Exh.48 as he had to look after other patients in the Casualty Ward.

10. The fourth dying declaration of Datta came to be recorded at Exh.45 by P.W.7 Mohd. Yousuf. P.W. 7 Mohd. Yousuf Kazi states that he was on duty as P.S.O. at the J.J. Marg police station, Mumbai. On 29-8-1998 at about 1.00 a.m. he was informed by Police Constable Rane that one Datta, resident of Nanded, had been admitted in Ward no.13 of J. J. Hospital , Mumbai. He accordingly went to Ward No.13 of J. J. Hospital and approached injured Datta who expressed his willingness to give the statement in the morning. Accordingly on the next day i.e. on 30-8-1998 he went to Ward no.13 at 7.00 a.m. and the Doctor informed him that Datta was in a condition to give a statement and thereafter recorded the statement of Datta at Exh.45. In cross-examination he has admitted that he has not obtained the certificate of any Doctor on the dying declaration at Exh.45 about the physical and mental fitness of Datta for giving his statement. He has stated that Datta succumbed to his injuries on 2-9-1998.

11. In the dying declaration at Exh.45 injured Datta had stated that he runs a hotel styled as Shri Sai Tea House. He states that every year for the installation of the idol of Lord Ganesh, the young persons from the locality gather donations. On 21-8-1998 accused no.1, accused no.2 and accused no.3 had come to his hotel and had asked him donation of Rs.251/-. Datta, however, informed them that he had no money at present and he had asked them to come on 26-8-1998, but would pay them only Rs.51/- as donation. The three accused went away without stating anything. On 23-8-1998 at about 7.20 a.m. he along with his nephew, aged 10 months, had gone on his motorcycle. Suddenly at about 7.20 a.m., accused nos.1, 2 & 3 came there armed with sword, knife and Dagger(Khanjir) and the three accused without uttering a single word began to assault him. He placed his nephew aside and the three accused dealt blows by sword, as a result of which he fainted. A small boy who resides near his house went home and informed his mother, brother and sister. He was thereafter admitted in the hospital.

12. On perusal of the dying declaration at Exh.45, it is apparent that there is no certificate or endorsement of any Medical Officer. There is no explanation as to why Datta had said that he would give his statement on the next day.

13. The learned Counsel appearing on behalf of the appellants have urged before us that the four dying declarations contain variance on material aspect and, therefore, it is not safe to accept any one of the dying declarations as acceptance of any one dying declaration necessarily falsifies the other. The learned Counsel have also urged before us that a dying declaration should be accepted in its entirety and the multiple dying declarations could not be dissected to pick and choose certain portions from the same to be fitted like a pieces of a jigsaw puzzle. The learned A.P.P. appearing on behalf of the respondent has submitted that in all the dying declarations the names of the appellants have been stated and, therefore, all the dying declarations, despite the variance, are confidence inspiring pieces of evidence.

14. In dying declaration at Exh.50 which was recorded by P.W.8 Shripat Jankar, injured Datta had stated that :-

(i) the three accused had obstructed his motorcycle;

(ii) accused no.1 Navnath who was armed with a sword had dealt a blow of sword on his neck, as a result of which he along with his nephew fell down;

(iii) he then proceeded on the road and the accused chased him and dealt blows by means of sword;

(iv) accused no.2 Raosaheb was armed with knife (Jambiya) while accused no.3 Rafiq was armed with sickle;

(v) the accused had been set up by some one to kill him.

15. In the dying declaration at Exh.51 Datta had stated that all the three accused had assaulted him by means of (i) knife (Jambiya) and sickle, (ii) he could not ascribe any reason for the assault.

16. In the dying declaration at Exh.48 which was recorded by P.W. 8 Namdeo, Special Judicial Magistrate, Datta had stated-

(i) that four accused had obstructed him as a result of which his nephew fell down;

(ii) he was dragged from the motorcycle;

(iii) accused no.2 Raosaheb was armed with sword while the others who were armed with Dagger (Khanjir) assaulted him;

(iv) he was taken near the Santosh garage and thrown there.

17. In the dying declaration at Exh.45, which was recorded by P.W.7 Mohd. Yousuf, Datta had stated -

(i) accused had asked for donation of Rs.251/- and Datta had stated that he would give them only Rs.51/-;

(ii) the three accused came from behind armed with sword, knife and Dagger;

(iii) without uttering a single word all of them began to assault him;

(iv) he kept his nephew aside;

(v) on account of the injuries he fainted.

18. Of the four dying declarations, Exh.51 and Exh.45 do not bear the endorsement of any Medical Officer regarding the fitness of Datta to have made the statement. In respect of the dying declaration at Exh.48 recorded by P.W.8 Namdeo, Special Judicial Magistrate, the evidence is that he had recorded the dying declaration without verifying if injured Datta was in a condition to give his statement. According to P.W.8 Namdev, the Medical Officer was present throughout the recording of the dying declaration and had later on stated that Datta was in a fit condition to give a statement. The evidence of P.W.11 Dr. Shantikumar is quite to the contrary as he states that he was not present continuously throughout the recording of the dying declaration as he had other patients to attend to. The Medical Officer who had certified the fitness of injured to have made the statement when Exh.50 was recorded, has not been examined. We have reproduced the salient features of the dying declarations and we find that the discrepancies are irreconcilable. We are not also satisfied with the evidence tendered by the prosecution in respect of the recording of the dying declarations. Prosecution had examined P.W.15 Nagarbai who did not support the prosecution and thus apart from the dying declarations there is no other evidence. The medical case papers produced at Exh.64 show that history of assault was narrated by the declarant as well as his relatives. Names of the accused have not been mentioned. The medical case papers further show that since injured Datta had bled profusely, frantic efforts were made for blood transfusion. The medical papers further show that on 23-8-1998, at 2.00 p.m. Datta had been given blood transfusion. He had also been given injection of Avil. His general condition was throughout moderate to poor. Another suspicious circumstances is that mother of injured Datta was present when his dying declaration at Exh.50 came to be recorded. P.W.9 Shripat Jankar has not stated the time when Exh.50 came to be recorded. The Medical Officer who had endorsed about the fitness of Datta has not been examined. The endorsement had been made at 2.00 p.m. For some inexplicable reason, P.W. 9 Shripat Jankar then recorded another dying declaration at Exh.51. Exh.51 was recorded immediately after recording of Exh.50. There is no endorsement on Exh.51 of any Medical Officer regarding the fitness of declarant to give his statement. P.W. 11 Dr. Shantikumar Baradkar was on duty from 2.00 p.m. to 9.00 p.m. on 23-8-1998. It is extremely strange that if he was on duty why was the endorsement of Dr. Baradkar not obtained on Exh.50 and who is the Medical Officer who had endorsed on the declaration at Exh.50. None of these witnesses state that they had on questioning found Datta to be in a fit condition to give his statement. The discrepancies in the dying declaration to which we have alluded to, certainly reinforce the belief that Datta was not in a fit mental condition when the dying declarations came to be recorded. It is inexplicable as to why the Investigating Officer felt the need and the necessity of recording multiple dying declarations. The variances in the multiple dying declarations vis-a-vis each other necessarily casts a cloud of suspicion regarding the truthfulness of the contents of the dying declarations. The dying declarations are shorn of the sanctity which is attached to the dying declaration and as a result of which the dying declarations cannot be made the foundation for sustaining a conviction. In cases of multiple dying declarations it is not permissible for the Court to pick up some facts from each of the dying declarations and use them as pieces of jigsaw puzzle to reconstruct an entirely new declaration. The dying declaration should be accepted in its entirely and it is impermissible to pick and choose pieces from the dying declaration. In the event of inter se discrepancies in the dying declarations, it is extremely unsafe to accept any one as a truthful narration, particularly in the absence of any other evidence which would render a particular version as a truthful version. Accused no.4 has been falsely implicated in one dying declarations. This is an additional reason for not placing implicit reliance on the dying declarations.

19. In view of the infirmities which we have noticed in the dying declarations, according to us, it would be extremely unsafe to rely on any of the dying declarations for sustaining the conviction of the appellants.

20. Accordingly, Criminal Appeal No.742 of 2003 is allowed. The conviction and sentences passed on the appellant is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid, be refunded to the appellant. Since he is in jail, the appellant be released forthwith if not wanted in any other case.

Criminal Appeal No.785 of 2003 is allowed. The conviction and sentences passed on the appellants are quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid, be refunded to the appellants. Since the appellants are in jail, they be released forthwith if not wanted in any other case.

Appeal allowed.