Full Judgment Text
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CASE NO.:
Appeal (crl.) 772 of 2004
PETITIONER:
Sheikh Meheboob @ Hetak & Ors.
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 10/03/2005
BENCH:
K.G. Balakrishnan & B. N. Srikrishna
JUDGMENT:
J U D G M E N T
SRIKRISHNA, J.
The appellants, who were convicted for offences under Section 302/34
IPC by the IInd Additional Sessions Judge, Akola, and whose convictions
were affirmed on appeal to the High Court of Judicature at Bombay, are
before this Court by special leave.
According to the prosecution case, a young lad of 20 years, Lalit
Kumar, was murdered by the three appellants by setting him on fire on
14.3.1992 at about 10.00 p.m.. The alleged motive for this heinous act is that
the appellants used to advance monies to young boys, including Lalit
Kumar, to enable them to gamble, and demand interest on the monies
advanced. According to the prosecution, although Lalit Kumar had returned
the capital amount, since he failed to return the interest as demanded by the
appellants, the appellants killed him in the gruesome manner as alleged. The
conviction is based on the dying declaration of Lalit Kumar (Ex. 49) and the
evidence of the father of Lalit Kumar, Hanumandas (PW 2).
Where two courts have concurrently analysed the evidence and
recorded a conviction or acquittal, this Court is reluctant to reappraise the
evidence and differ therefrom save in exceptional circumstances indicative
of gross miscarriage of justice for reasons. This is one such case where we
need to interfere. Since the two legs on which the case of the prosecution
rests consist of the testimony of Hanumandas (PW 2), and the dying
declaration of Lalit Kumar, we were taken through the evidence with
particular focus on the aforesaid and shown a number of circumstances
which raise serious doubts as to the credibility of the prosecution case.
The testimony of Hanumandas (PW 2), together with the manner in
which the prosecution was conducted, raises the first serious doubt.
According to Hanumandas, on the fateful day at about 8:30 to 9:00 p.m. he
was coming towards his house after a long day at his shop, and while he was
about 15 to 20 feet away from his house, he saw Appellant No. 3 (Mohd.
Bhoja) had caught hold of Lalit Kumar, Appellant No. 2 (Ismail) poured
kerosene on the body of Lalit Kumar and Appellant No. 1 (Meheboob) set
him on fire with a match stick. Hanumandas claimed that his other son,
Shyam Kumar was also witnessing the scene from a distance of about 10 to
15 feet from the spot of incident. Lalit Kumar was engulfed in fire and ran
towards the bathroom situated within the compound of Hanumandas house.
Hanumandas ran after him and attempted to extinguish the fire. When they
reached the bath room, Hanumandas poured water from a bucket which was
outside the bathroom and tried to extinguish the flame. Being unsuccessful
in his attempt, he brought a blanket from the house and wrapped the blanket
around Lalit Kumar and extinguished the fire. Thereafter, he called a cycle-
rikshaw and took Lalit Kumar to the Main Civil Hospital, Akola for
treatment. He admitted Lalit Kumar in the hospital for treatment. He
claimed that, at that time, all the three appellants had come to the hospital
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and given him threats that if he complained to the police, his entire family
would be finished. Hanumandas stated that he had made a telephone call on
the emergency telephone Number 100 from the hospital to the Police
requesting for a Police van be sent immediately. Immediately, a Police van
did arrive at the hospital along with police personnel, on seeing whom the
accused ran away. Thereafter, Hanumandas went to the City Kotwali Police
Station on his Luna Moped and gave a written report disclosing the entire
incident in connection with his son Lalit Kumar being set up on fire by
pouring kerosene on his body and also the threat given to him and his son in
the hospital. The Police had received his written report. From the sequence
of events narrated by Hanumandas it would appear that the written report
made by Hanumandas to the Police would be the first contemporaneous
document putting on record the true facts pertaining to the incident. That
would have been the touchstone on which the credibility of Hanumandas
could have been tested. Unfortunately, that document appears to have been
suppressed. It was obligatory on the prosecution to place the document on
record for a fair trial. Not only did the prosecution fail to produce the
document voluntarily, but the prosecution failed to produce the document
despite an application for production of the said document by the accused
and the order made thereupon by the Sessions Court for its production.
Three contentions have been urged by the learned counsel for the
appellants. First, that the failure of the prosecution to produce the document,
whose existence is affirmed by the witness, PW 2, leaves a yawning gap in
the story of the prosecution. Second, it gives rise to an adverse inference
that, had it been produced, it would have disproved the case of the
prosecution. Third, the said report, being the first information given to the
Police, ought to have been treated as the FIR.
Though, these issues were raised before the Sessions Court as well as
the High Court, they have been side-tracked on reasoning which appears to
us to be unsustainable. While the Sessions Court referred to this contention
urged by the defence, it has given no reason for not accepting the contention.
The High Court accepted the contention that Hanumandas (PW 2) had made
the report to the Police about the incident and that, if the said report was
made, then it ought to have been treated as the FIR. The High Court,
however, dismissed the contention by taking the view that nothing had been
placed on record, either in cross examination of Hanumandas, or otherwise,
to show that the report to the City Kotwali Police Station had been lodged by
him before the dying declaration was recorded. And that, unless the defence
shows that the said report was prior to the dying declaration, it could not be
treated as FIR, particularly when there is no suggestion put to the
Investigating Officer, Jaswant Singh Hushare (PW 10), that the said report
was deliberately suppressed and withheld by the police.
In our view, the reasoning of the High Court is erroneous. The
defence made an application for production for a vital document (that it is a
vital document, cannot be denied); the trial court accepting the application
for production of such document passed an order directing the prosecution to
produce the document and the prosecution failed to do so without any
explanation, whatsoever. The conclusion is irresistible that the prosecution
has suppressed the document. The fact that no suggestion was put to the
Investigating Officer is totally irrelevant. As to whether the said report was
made prior to the dying declaration (Ex. 49), on a fair reading of the
evidence of Hanumandas (PW 2) the sequence of events given by
Hanumandas before the Court suggests that when he admitted his son to the
hospital, the accused-appellants had come to the hospital and threatened
him. This was followed by his frantic call to the Police Control Room, the
arrival of the police immediately thereafter and his going to the City Kotwali
Police Station on his Luna Moped and lodging a report about the whole
incidence including the threat given to him. In fact, reading the evidence of
Hanumandas as a whole, it would suggest that he had no idea as to the
recording of the dying declaration at all, for he no where mentions it. Nor
does it appear from his evidence that the dying declaration was recorded
prior to Hanumandas going to the Kotwali Police Station to lodge his written
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report.
Apart from these glaring discrepancies, the evidence of Hanumandas
as an eye witness does not appear to be credible. A number of
inconsistencies between his statement to the police under Section 161 and
his evidence were thrown up in the cross examination. The contradictions
between his evidence and the evidence of the Investigating Officer (PW 10)
make interesting reading. For every inconsistency between his police
statement and his evidence in the court, while Hanumandas insisted that he
had made some statement or had not made such statement, the Investigating
Officer directly contradicts him on the issue. Apart from the contradictions,
there is contradiction with evidence of the other cited witness Shyam
Kumar (PW 9). Shyam Kumar flatly contradicts Hanumandas (PW 2). If we
were to go by his evidence, no such incident ever took place in his presence.
Though, the prosecution cited Shyam Kumar (PW 9) as an eye witness, no
wonder the prosecution was constrained to declare Shyam Kumar as a
hostile witness and having been won over.
Who took Lalit Kumar to the hospital, is also shrouded in mystery.
According to Shyam Kumar (PW 9), his uncle, Lakshmi Narayan, had taken
Lalit Kumar to the hospital and got him admitted. Who extinguished the fire,
is also a matter of controversy. While Hanumandas claims to have done it
himself, the dying declaration and the evidence of Shyam Kumar (PW 9)
suggest that some of the residents of the locality had done it. Strangely, the
Investigating Officer (PW 10), who recorded the statement, candidly
admitted that he had made no effort to trace the rikshaw driver, who took
Lalit Kumar to the hospital. The rikshaw driver would have been a material
witness on the issue as to who accompanied Lalit Kumar to the hospital. It
is not possible to believe that, in a small town like Akola, the police were not
able to trace the rikshaw driver, who had carried Lalit Kumar to the
hospital.
So much for the gaping holes in the prosecution story based on the
eye witness account. Doubts arising from the eye witness accounts left too
many question marks and too many unexplained circumstances, which
contra-indicated their acceptance without corroboration. Corroboration was
available in the form of a document, which was not deliberately placed on
record by the prosecution. This by itself should have sufficed for the court
to induce a reasonable doubt as to the discharge of the onerous burden by the
prosecution.
The other limb of the prosecution story (perhaps bearing greater
weight) is the dying declaration (Ex. 49). We may ignore the usual
contentions urged by the defence to discredit the dying declaration. The law
as to the test for credibility of a dying declaration has been laid down by a
Constitution Bench in Laxman v. State of Maharashtra . We may,
therefore, reject the contentions of the appellants that the certification as to
mental fitness of the victim was not proper or that it was written in a
particular language, in a particular fashion, and such like.
The dying declaration (Ex. 49) was recorded at 00:05 hours by the
Executive Magistrate, C.H. Upadhye (PW 4), on a requisition received on
14th March 1992 at 2345 hrs. through Police Constable Vijay, Batch No.
2067 attached to Police Station Ramdaspeth, Akola, requesting for recording
of dying declaration at Main Hospital, Akola. According to PW 4, he
received the requisition letter at his residence at about 2345 hrs. on that day.
Immediately, thereafter, he went to the hospital and meet the Medical
Officer on duty. He asked the Medical Officer to examine the patient and
certify that the patient Lalit Kumar was in a fit condition to make his
statement. The doctor issued a certificate (Ex. 49A). Then, he asked the
relatives of the patient, who were present there, to go out from that place.
After all of them had left the place, he recorded the dying declaration in
question and answer form. The questions were put in Marathi and the
patient replied in Marathi. What was written was read over to the patient
and the patient admitted the same to have been correctly recorded. His
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signature could not be obtained as his both hands had burn injuries. The
dying declaration, thereafter, was signed by PW4 and also once again
endorsed with the certificate of the Medical Officer that the patient had been
fit to make such a statement.
The dying declaration has a curious aspect, which needs to be
highlighted. The dying declaration reads as under:
"I had taken money from Ismail. Mahmmad and
Mehboob and I repaid the same to them. They asked me
for more interest, they beat me, therefore Ismail,
Mahmmad, Hetak poured kerosene on my person and set
me on fire with the match stick. While I was running in
the house, people from the locality rushed there and
extinguished the fire caught to my person and then
brought me in the hospital."
The original Exhibit 49, which is written in Marathi, shows that the words
"mi ghaslet angavar" have been struck off. When asked for an explanation,
the Executive Magistrate, C.H. Upadhye (PW 4), explained that the
aforesaid words, which mean "I kerosene on the body" had been stated by
the patient before him at that time. According to him, he was sitting facing
the patient with his back towards the door of the room, and there was some
shouting heard from outside after which the patient had changed his version.
He maintains that, the words which are struck off had been uttered by the
deceased in the first instance, and changed by him as a result of some
shouting from outside. So those words were struck off.
Exhibit 52, the medical case papers placed on record and proved
through, Dr. Ganesh Gir Gosavi (PW5), also raise some further doubts. In
the medical case record, the very first entry, which logically should have
been the entry made at the time of admission, bears the date 17/3. The
history notes: "burns. Self inflicted", after which comes the line of
treatment. On page 2 of the medical record, there is an endorsement in
Marathi, which says, "the doctor told me that my brother’s son’s condition is
very serious" and bears someone’s signature. On page 4 of the medical
record, there is an endorsement "H/o Accidental burn."
According to Dr. Ganesh Gir Gosavi (PW 5), he was present as doctor
on duty from 9:00 p.m. on 14th March to 9:00 a.m. the next morning. He
also stated that he was on duty at 9:45 p.m., and one Dr. Tayade was the
CMO on out-door duty. He identified the hand writing and signatures of Dr.
Tayade and proved the medical records. When his attention was drawn to
the fact that the medical record noted that there was "self-inflicted" burns, in
the history of the patient, he claimed that he was unable to say as to who had
given the history of the patient. He, of course, claimed that, as sufficient
time had elapsed and a number of patients were examined and treated by
him, it was not possible to remember facts of each and every case.
The medical record raises a number of questions, which have not been
satisfactorily answered, and which preclude implicit acceptance of the dying
declaration (Ex. 49). First, who admitted Lalit Kumar to the hospital? The
dying declaration suggests that the neighbours had done so, while
Hanumandas (PW 2) maintained that it was he, who had admitted him to the
hospital. Second, who gave the history of the patient to the doctor on duty at
the time of admission? Hanumandas (PW 2) says nothing about it. The
medical record suggests that the uncle of Lalit Kumar (Laxmi Narayan) was
the one who accompanied the patient, and probably had given the history of
the burns to the doctor on duty at the time of admission. The medical record
also has two curious endorsements. At one place, it says that there was
history of "accidental burns"; at another place there was history of "self-
inflicted burns". The dying declaration itself indicates that the deceased had
started to make a statement which was suggestive of his having poured
kerosene on himself and set himself on fire because the appellants were
demanding interest and beating him. The evidence of the Executive
Magistrate (PW 4) clinches that this was precisely what the deceased had
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stated in the first instance, which he changed on hearing some shouting from
outside. These are some of the circumstances which raise serious doubts as
to the implicit credibility of the dying declaration.
We have carefully examined the reasons adduced by the Sessions
Court and the High Court for accepting the dying declaration as credible,
and for accepting the evidence of Hanumandas (PW 2), and the dying
declaration (Ex. 49), as bringing home the charge of murder against the
appellants beyond the shadow of reasonable doubt. Shadows, there are; dark
enough to eclipse the truth. Both the courts have ignored a number of
reasonable doubts which legitimately arose on the evidence led by the
prosecution, and its conduct in suppressing the vital document and
witnesses. We are not satisfied that the evidence led on record by the
prosecution proves the guilt of the accused-appellants beyond reasonable
doubt.
In our view, the appellants are entitled to the benefit of doubt. In the
result, we allow the appeal and set aside the judgments of the High Court
and the Sessions Court. The appellants are acquitted of the charges against
them. The appellants shall be set at liberty forthwith, unless required to be
detained in connection with any other case.