Full Judgment Text
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CASE NO.:
Appeal (crl.) 661 of 2005
PETITIONER:
Sham Shankar Kankaria
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 01/09/2006
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
With
Crl. A. No. 358 of 2005, Crl. A. Nos. 634-636 of 2005,
Crl. A. Nos. 700-702 of 2005
ARIJIT PASAYAT, J.
These appeals are directed against a common judgment
of the Division Bench of the Bombay High Court by which
eight appeals were disposed of. Six of them were by the
accused persons while two were by the State. Out of the two
Criminal Appeals filed by the State, one was against the
acquittal of the accused persons of the charge under Section
302 read with Section 34 of the Indian Penal Code, 1860 (in
short the ’IPC’) and of Section 135 of the Bombay Police Act,
1951 (in short the ’Bombay Act’). The other was for
enhancement of sentence. The two appeals filed by the State
were allowed, except in respect of two who had died, while the
six appeals filed by the accused persons were dismissed.
The appeals were directed against the judgment and
order dated 6th February, 1993 passed by the learned Third
Additional Sessions Judge, Nasik whereby accused No.1 Sham
Shankar Kankaria was convicted for offence punishable under
Section 304 Part II IPC. The other five accused persons were
convicted for offence punishable under Section 325 read with
Section 34 IPC. All the six accused persons were convicted for
offence punishable under Section 342 read with Section 34
IPC. For the first offence accused No.1 Sham Shankar
Kankaria was sentenced to undergo rigorous imprisonment for
six years and to pay fine of Rs.3,000/- with default
stipulation. For the second offence each of accused Nos. 2 to
6 were sentenced to undergo rigorous imprisonment for four
years and to pay fine of Rs.2,000/- with default stipulation.
For the third offence, all the six were sentenced to undergo
rigorous imprisonment for six months and to pay a fine of
Rs.3,000/- each with default stipulation. The accused Nos.1
to 6 were acquitted of the charge under Section 302 read with
Section 34 IPC and Section 135 of Bombay Act. While the
accused persons challenged their conviction and sentence, the
State questioned correctness of the judgment of the trial court
and prayed for enhancement of sentence and for conviction
under Section 302 of the first accused and under Section 302
read with Section 34 IPC in respect of each of the accused
persons.
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Prosecution version in a nutshell is as follows:
On 13th January, 1992 one Vijay @ Bablu, the son of
Kashinath Kedare, who was residing with his parents and
other members of the family in House No.1342, situated at
Khadkali area of Nasik City, was called by the accused No.3
Sanjay and the accused No.5 Khandu and, therefore, he left
his house at about 8 p.m. along with the said accused
persons. He did not return till late night. At about 2’o clock
in the night between the 13th and 14th January, 1992, accused
Khandu went to the house of Vijay and knocked the door of
his house. On opening the door by Sanjay Kedare (P.W.9),
accused Khandu informed Sanjay that his brother Vijay had
been assaulted and was lying at some place. Sanjay thereupon
accompanied Khandu who took him to the top floor of Bharti
Lodge, where Sanjay found his brother Vijay in injured
condition tied to the cot with his hands and legs tied. Sanjay
also saw some blood oozing out from the head of Vijay. Sanjay
released the hands and legs of Vijay and asked him as to how
it had happened, whereupon he was told by Vijay that all the
six accused after tying him to the cot, assaulted him severely
with instruments like iron pipe and wooden stick on the
allegation that he had stolen a bicycle. Sanjay thereupon
carried Vijay to his residence and Vijay once again narrated
the said incident to his mother in the presence of Sanjay and
from there, he was taken in a rickshaw to the Civil Hospital,
Nasik. On the way to the hospital, Vijay became unconscious
and on being admitted to the hospital, he was declared to have
been dead. Sanjay lodged complaint in writing at Bhadrakali
Police Station where the FIR was registered relating to offences
under Sections 302, 342, 143, 147 and 149 IPC read with
Section 37(1) read with Section 135 of the Bombay Act. On
commencement of the investigation, all the six accused were
arrested, their clothes were seized under the panchnama. The
body of the deceased Vijay was subjected to the inquest
panchnama as well as post mortem examination. The medical
officer opined that the death of Vijay was due to shock,
intracranial hemorrhage and due to fracture of skull. After
carrying out the spot panchnama, the articles at the spot of
the incident including the blood scrapping were collected from
the scene of offence. The iron pipe was recovered at the
instance of the accused No.1 Sham Kankaria, Coir Cord and
pieces of wooden pegs having blood stains were seized from
the spot of the incident. The seized articles were sent for
examination by the Chemical Analyser. The blood sample of
the deceased was also collected and sent for medical analysis
along with the clothes on the body of the deceased. On
conclusion of the investigation, all the six accused were
charge-sheeted. They were tried before learned Additional
Sessions Judge and were convicted and sentenced by the
judgment and order dated 6th February, 1993. Challenge was
made to the same before the High Court, as noted above.
The High Court analysed the evidence and was of the
view that the trial court was not justified in acquitting the
accused persons of the charge of offence punishable under
Section 302 read with Section 34 IPC and by only convicting
accused No.1 Sham Shankar Kankaria in terms of Section 304
Part II IPC. During the pendency of the appeals, accused No.3
Sanjay and accused No.5 Khandu Deoram Abhang expired.
Therefore, the two appeals filed by them were held to have
abated. Similar was the case in the appeals filed by the State,
so far as they were concerned. For rest of the accused the
appeal filed by the State was allowed and the appeals filed by
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the accused persons were dismissed.
Each of the accused persons were held guilty for offence
punishable under Section 302 read with Section 34 IPC.
Accordingly, conviction was recorded and sentence imposed as
noted earlier.
In support of the appeals, learned counsel for the
appellants submitted that the High Court has not kept in view
the correct principles of law. Ramesh and Mustaq (PWs. 1 and
3) were stated to be eye witnesses. Their evidence does not
inspire confidence and in fact they contradict each other in
many material aspects. So-called dying declaration before
Sanjay and Hirabai (PWs. 9 and 10) also lack credibility. In
any event, the High Court should not have interfered with the
well reasoned and well discussed judgment of the trial court
without indicating any reason or basis therefor. Even
according to the prosecution, there was only one injury
inflicted on the head of the deceased. There was no eye
witness as to who had assaulted on the head. A presumption
has been made that the head injury was caused by the
accused No.1 Sham Shankar Kankaria because the witnesses
stated to have seen a small iron pipe in his hand. Even
according to the prosecution version, the accused No.4 Raju
was holding a small stick of about one foot long length and is
supposed to have given blow on the legs and the hand. No
role has been ascribed to the other appellants i.e. respondents
2 and 6. There is no question of applying Section 34 IPC
because the prosecution itself is to the effect that the accused
persons wanted to extract confession from the deceased that
he had stolen a bicycle. There is no material brought on record
that the accused persons shared any common object to either
cause injury to the deceased or kill him. Residuary plea
submitted is that the trial court found that Section 304 Part II
IPC was the correct provision to be applied. The High Court
attached undue importance to certain factors which had no
relevance for deciding the question as to the nature of offence.
Learned counsel for the respondent-State on the other
hand supported the judgment of the High Court.
At this juncture, it is relevant to take note of Section 32
of the Indian Evidence Act, 1872 (in short ’Evidence Act’)
which deals with cases in which statement of relevant fact by
person who is dead or cannot be found, etc. is relevant. The
general rule is that all oral evidence must be direct viz., if it
refers to a fact which could be seen it must be the evidence of
the witness who says he saw it, if it refers to a fact which
could be heard, it must be the evidence of the witness who
says he heard it, if it refers to a fact which could be perceived
by any other sense, it must be the evidence of the witness who
says he perceived it by that sense. Similar is the case with
opinion. These aspects are elaborated in Section 60. The eight
clauses of Section 32 are exceptions to the general rule against
hearsay just stated. Clause (1) of Section 32 makes relevant
what is generally described as dying declaration, though such
an expression has not been used in any Statute. It essentially
means statements made by a person as to the cause of his
death or as to the circumstances of the transaction resulting
in his death. The grounds of admission are: firstly, necessity
for the victim being generally the only principal eye-witness to
the crime, the exclusion of the statement might deflect the
ends of justice; and secondly, the sense of impending death,
which creates a sanction equal to the obligation of an oath.
The general principle on which this species of evidence is
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admitted is that they are declarations made in extremity, when
the party is at the point of death and when every hope of this
world is gone, when every motive to falsehood is silenced, and
the mind is induced by the most powerful considerations to
speak the truth; a situation so solemn and so lawful is
considered by the law as creating an obligation equal to that
which is imposed by a positive oath administered in a Court of
justice. These aspects have been eloquently stated by Lyre
LCR in R. v. Wood Cock (1789) 1 Leach 500. Shakespeare
makes the wounded Melun, finding himself disbelieved while
announcing the intended treachery of the Dauphin Lewis
explain:
"Have I met hideous death within my view,
Retaining but a quantity of life,
Which bleeds away even as a form of wax,
Resolveth from his figure ’gainst the fire?
What is the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth?"
(See King John, Act 5, Sect.4)
The principle on which dying declaration is admitted in
evidence is indicated in legal maxim "nemo moriturus
proesumitur mentiri \026 a man will not meet his maker with a lie
in his mouth."
This is a case where the basis of conviction of the
accused is the dying declaration. The situation in which a
person is on deathbed is so solemn and serene when he is
dying that the grave position in which he is placed, is the
reason in law to accept veracity of his statement. It is for this
reason the requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration be
excluded it will result in miscarriage of justice because the
victim being generally the only eye-witness in a serious crime,
the exclusion of the statement would leave the Court without a
scrap of evidence.
Though a dying declaration is entitled to great weight, it
is worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth
as an obligation of oath could be. This is the reason the Court
also insists that the dying declaration should be of such a
nature as to inspire full confidence of the Court in its
correctness. The Court has to be on guard that the statement
of deceased was not as a result of either tutoring, or prompting
or a product of imagination. The Court must be further
satisfied that the deceased was in a fit state of mind after a
clear opportunity to observe and identify the assailant. Once
the Court is satisfied that the declaration was true and
voluntary, undoubtedly, it can base its conviction without any
further corroboration. It cannot be laid down as an absolute
rule of law that the dying declaration cannot form the sole
basis of conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence. This Court has laid
down in several judgments the principles governing dying
declaration, which could be summed up as under as indicated
in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
" (i) There is neither rule of law nor of
prudence that dying declaration cannot be acted
upon without corroboration. [See Munnu Raja &
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Anr. v. The State of Madhya Pradesh (1976) 2 SCR
764)]
(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. [See State
of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR
1985 SC 416) and Ramavati Devi v. State of Bihar
(AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting
or imagination. The deceased had an opportunity to
observe and identify the assailants and was in a fit
state to make the declaration. [See K.
Ramachandra Reddy and Anr. v. The Public
Prosecutor (AIR 1976 SC 1994)]
(iv) Where dying declaration is suspicious, it
should not be acted upon without corroborative
evidence. [See Rasheed Beg v. State of Madhya
Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious
and could never make any dying declaration the
evidence with regard to it is to be rejected. [See
Kaka Singh v State of M.P. (AIR 1982 SC 1021)]
(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction. [See
Ram Manorath and Ors. v. State of U.P. (1981 (2)
SCC 654)
(vii) Merely because a dying declaration does
contain the details as to the occurrence, it is not to
be rejected. [See State of Maharashtra v.
Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]
(viii) Equally, merely because it is a brief
statement, it is not to be discarded. On the
contrary, the shortness of the statement itself
guarantees truth. [See Surajdeo Oza and Ors. v.
State of Bihar (AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy
whether deceased was in a fit mental condition to
make the dying declaration look up to the medical
opinion. But where the eye-witness said that the
deceased was in a fit and conscious state to make
the dying declaration, the medical opinion cannot
prevail. [See Nanahau Ram and Anr. v. State of
Madhya Pradesh (AIR 1988 SC 912)].
(x) Where the prosecution version differs
from the version as given in the dying declaration,
the said declaration cannot be acted upon. [See
State of U.P. v. Madan Mohan and Ors. (AIR 1989
SC 1519)].
(xi) Where there are more than one statement
in the nature of dying declaration, one first in point
of time must be preferred. Of course, if the plurality
of dying declaration could be held to be trustworthy
and reliable, it has to be accepted. [See Mohanlal
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Gangaram Gehani v.State of Maharashtra (AIR
1982 SC 839)]."
In the light of the above principles, the acceptability of
alleged dying declaration in the instant case has to be
considered. The dying declaration is only a piece of untested
evidence and must like any other evidence, satisfy the Court
that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. If after careful scrutiny the
Court is satisfied that it is true and free from any effort to
induce the deceased to make a false statement and if it is
coherent and consistent, there shall be no legal impediment to
make it basis of conviction, even if there is no corroboration.
[See Gangotri Singh v. State of U.P. [JT 1992 (2) SC 417),
Goverdhan Raoji Ghyare v. State of Maharashtra (JT 1993 (5)
SC 87), Meesala Ramakrishan v. State of Andhra Pradesh (JT
1994 (3) SC 232) and State of Rajasthan v. Kishore (JT 1996
(2) SC 595)].
There is no material to show that dying declaration was
result of product of imagination, tutoring or prompting. On the
contrary, the same appears to have been made by the
deceased voluntarily. It is trustworthy and has credibility.
Criticism that PWs 9 and 10 being relatives have falsely
implicated the accused persons needs rejection for the simple
reasons that no material has been brought on record to show
as to why they would falsely implicate the accused and shield
actual culprit.
Under the provisions of Section 34 the essence of the
liability is to be found in the existence of a common intention
animating the accused leading to the doing of a criminal act in
furtherance of such intention. As a result of the application of
principles enunciated in Section 34, when an accused is
convicted under Section 302 read with Section 34, in law it
means that the accused is liable for the act which caused
death of the deceased in the same manner as if it was done by
him alone. The provision is intended to meet a case in which
it may be difficult to distinguish between acts of individual
members of a party who act in furtherance of the common
intention of all or to prove exactly what part was taken by each
of them. As was observed in Ch. Pulla Reddy and Ors. v. State
of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is
applicable even if no injury has been caused by the particular
accused himself. For applying Section 34 it is not necessary
to show some overt act on the part of the accused.
Judged in the background and the principle set out
above, the inevitable conclusion is that the prosecution has
clearly established that the vital blow was given by the
accused No.1 Sham Shankar Kankaria. The question is what
is the appropriate provision for his conviction. Taking into
account the surroundings facts and the nature of the weapon
allegedly used, in our considered view the correct provision for
conviction would be Section 304 Part I, IPC and custodial
sentence of 10 years would meet the ends of justice. His
conviction under Section 342 IPC as well as the sentence are
maintained. The sentences shall run concurrently. On the
facts of the case Section 34 IPC has no application for the
offence punishable under Section 304 Part-I IPC. There is no
material to show that the accused persons shared common
object of causing any injury to the deceased or to cause his
death. That being so Section 34 IPC has no application. It is
the prosecution case that the accused persons wanted to
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extract a confession from the deceased of his having
committed theft of a cycle. So far as accused persons 2, 4 and
6 are concerned considering their role they have to be
convicted under Section 342 read with Section 34 IPC, as also
Section 325 read with Section 34 IPC. The corresponding
sentences imposed by the trial Court and maintained by the
High Court need no interference. In the ultimate result the
appeals are partly allowed to the extent indicated above.
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