R.K. Batta, J.@mdashThe appellant was tried for the murder of Gajanan Barghat u/s 302 of the Indian Penal Code. The prosecution examined 13 witnesses in support of the charge. The evidence against the appellant primarily consist of written dying declaration as well as oral dying declaration made by the deceased. The trial Court accepted dying declarations as also recovery of knife at the instance of the appellant. As a result, the trial Court convicted the appellant u/s 302 of the Indian Penal Code and sentenced him to undergo life imprisonment and pay fine of Rs. 5,000/-, in default, to suffer further rigorous imprisonment for one year.
2. The prosecution case, in brief, is that on the previous day of the incident in question, Jainab, mother of the appellant had threatened Shantabai (P.W. 1) who had gone to fetch water from the tap that if anybody from her family goes to their tap, he would be killed. At that time, Sherif, brother of the appellant also threatened Shantabai (P.W. 1) and Hamid Dama abused her in filthy language and the next day, that is to say, on 17-10-1989 at about 7.30 p.m. deceased Gajanan, husband of Shantabai is stated to have been assaulted by the appellant Hamid with knife. The said Gajanan was taken in the Primary Health Centre, Narkhed where his dying declaration was recorded by P.S.I. Ramchandra Katole (P.W. 13). Prior to the recording of the dying declaration of Gajanan, P.S.I. Ramchandra Katole gave requisition to the Medical Officer about the condition of the injured Gajanan and the doctor opined that Gajanan was in a fit condition to give statement. P.S.I. Ramchandra Katole recorded the dying declaration on which the doctor had signed. The deceased Gajanan is also reported to have made oral dying declaration to his wife Shantabai (P.W. 1), his son P.W. 4 Subhash, Ashok (P.W. 5), Parvatibai (P.W. 6) and Haridas (P.W. 10). The knife used in the crime was also recovered by the police at the instance of the appellant. The case of the appellant is total denial.
3. Learned Advocate, Mr. M.R. Daga argued on behalf of the appellant and urged before us that there is overwriting in respect of the name of the accused in the first information report and in the dying declaration recorded by P.W. 13 Ramchandra. The name mentioned is "Hanif" and not "Hamid". Therefore, according to the learned Advocate for the appellant, the writer constable who had recorded the said dying declaration, was required to be examined by the prosecution in the circumstances and non-examination of the said writer constable vitiated the dying declaration. He also pointed out that the Medical Officer who had certified the fitness of the deceased Gajanan for the purpose of recording dying declaration, has not been examined nor the record of the examination by the doctor has been produced in the Court. It was next urged that even though there are signatures of the doctor below dying declaration, yet the Investigating Officer has not stated in his deposition that the doctor was present at the time of recording of dying declaration of Gajanan. The dying declaration recorded by P.S.I. Ramchandra Katole (P.W. 13) is also criticised by learned Advocate for appellant on the ground that there was ample time for the police to have called Executive Magistrate for the purposes of recording dying declaration, but no such attempt was made by the police. Second limb of attack by learned Advocate for the appellant is that even in the written as well as oral dying declaration, only one blow on the back is said to have been inflicted though the post-mortem report shows that there were two incised stitch wounds. This according to him, creates doubt regarding medical evidence. In this connection, it was also urged that even though the post-mortem report was exhibited being an admitted document by the appellant, yet, there is nothing to show that the injuries were sufficient in the ordinary course of nature to cause death. He, therefore, contends that being a case of only one blow and there being no evidence as to whether the same was sufficient to cause death, the offence would at the most fall u/s 304, Part-II of the Indian Penal Code.
4. Learned A.P.P. submitted before us that the doctor had not only certified that Gajanan was fit to make statement, but the doctor had also remained present during the recording of the dying declaration and had duly signed the dying declaration. According to the learned A.P.P., in view of the serious injuries on the person of the appellant, Executive Magistrate was not called and that it is not necessary that in all cases, the Executive Magistrate should be called to record dying declaration. It was further urged that the prosecution has been able to establish motive through the evidence of P.W. 1 Shantabai as on the previous day, threat of killing was given by the mother and brother of appellant Hamid to Shantabai (P.W. 1). Learned A.P.P. also urged that there is no reason whatsoever to discard the oral dying declaration made by the deceased to prosecution witnesses P.W. 4 Subhash, P.W. 5 Ashok, P.W. 6 Parvatibai and P.W. 10 Haridas. It is also urged that recovery of knife at the instance of the appellant further lends credence and corroboration to the prosecution case. It is, therefore, urged that appeal be dismissed.
5. On the question of motive, prosecution has led evidence of P.W. 1 Shantabai who has stated that on the previous day of the incident, when she had gone to take water from the tap of Gani, Hamid, Dama and Sharif picked up quarrel; they abused her in filthy language. Janib, mother of accused threatened that if anybody from family goes to their tap, they would be killed. She also stated that Sharif, brother of accused threatened. There is, in fact, no challenge to the said incident which took place on a day prior to the incident in question except that this witness has not stated before police regarding threat given by Hamid and his brother.
6. The prosecution had led evidence of many witnesses on oral dying declaration made by deceased Gajanan. The first such witness is Shantabai (P.W. 1) who is wife of deceased Gajanan. She has stated that when she had asked her husband as to who had assaulted him, he told that accused Hamid had caused injuries to him. This fact which is deposed by P.W. 1 Shantabai in the Court did not figure in her police statement and as such, the evidence of Shantabai in this respect cannot be given credence.
7. The next witness examined by the prosecution in respect of oral dying declaration is, P.W. 4 Subhash who is son of deceased. He has stated that one Moreshwar came to him at Nagpur and informed him that accused Hamid had assaulted his father and his father is admitted in the hospital. This Moreshwar has not been examined by prosecution. P.W. 4 Subhash further states that he went to Mayo Hospital to see his father and asked his father as to how incident occurred. His father, deceased Gajanan told him that while he was returning from Mutton Market, accused Hamid stabbed him in the back as a result of which he sustained bleeding injuries and he had fallen on the ground. There was absolutely no challenge to this statement of Subhash (P.W. 4) by the defence to the effect that deceased Gajanan had told him that accused Hamid had stabbed him in the back as a result of which he sustained bleeding injuries and fall on the ground.
8. The next witness examined by prosecution is P.W. 5 Ashok who has stated that he had accompanied Gajanan to Mayo Hospital, Nagpur and Gajanan was murmuring that he was assaulted by son of Muslim person. He further states that Gajanan told him that Hamid had stabbed him by means of knife in his back. In cross-examination he stated that before putting Gajanan in jeep, there was no talk in between him and Gajanan and at the time when he had asked some questions to Gajanan, Gajanan did not tell name of anybody. This is in substance the statement of P.W. 5 Ashok which is recorded in vernacular Marathi. We had to resort to the vernacular version recorded in Marathi language since we found that the trial Court had not correctly translated the vernacular version while recording the same into English language. From this statement, it is clear that after Gajanan was being taken to Mayo Hospital, Nagpur in Jeep he was murmuring that son of a Muslim had assaulted him and he also told Ashok (P.W. 5) that Hamid had stabbed him with knife in his back. This oral declaration appears to be first in point of time immediately after the incident when Gajanan was being taken to the hospital. The fact that this witness Ashok had accompanied Gajanan to Mayo Hospital, Nagpur has not been challenged by the defence. The evidence of this witness also proves that Gajanan was initially murmuring that son of a Muslim had assaulted him, but when Ashok (P.W. 5) made enquiries with him after Gajanan was being taken in a jeep, Gajanan told him that Hamid had stabbed him by means of knife on the back. No animous, enmity or reason has been attributed to Ashok (P.W. 5) and as such, there is no reason as to why his testimony should be disbelieved being an independent witness and especially when his testimony could not be shaken during the cross-examination.
9. The next witness examined by prosecution is P.W. 6 Parvatibai living in the same locality where the deceased lived. She has stated that she had accompanied deceased Gajanan to Primary Health Centre, Narkhed. She then stated that she did not go to hospital as a result of which Public Prosecutor was permitted to put question in the nature of cross-examination. During cross-examination by P.P., she admitted that she had accompanied P.W. 1 Shantabai and Gajanan to Nagpur in ambulance van. It may be mentioned here that from P.H.C., Narkhed, deceased had been shifted to Mayo Hospital, Nagpur. She further stated that deceased Gajanan had told her that son of Mehtab Pinjari had stabbed him by means of knife. This was told to her by Gajanan in hospital in Nagpur.
10. The next witness examined by the prosecution on oral dying declaration is P.W. 10 Haridas. He has stated that he had gone to Primary Health Centre, Narkhed from where Gajanan was shifted to Nagpur Hospital. He had accompanied Gajanan in the van to Mayo Hospital. He has further stated that he asked Gajanan as to how he was injured and he told him that accused Hamid stabbed him with knife. There has been practically no challenge to the deposition of Haridas (P.W. 10) except for confronting him with his statement before the police. Unfortunately, the trial Court has not cared to look into the record nor it appears that the Public Prosecutor was diligent since there is, in fact, no contradiction in the statement of Haridas (P.W. 10) on material particulars. The trial Judge has recorded the statement of Haridas (P.W. 10) on this aspect as stating. "I cannot assign any reason as to why police did not write that Gajanan told me about the assault by accused Hamid when he was admitted in the hospital at Nagpur.". The statement of this witness before the police shows that this witness had categorically stated that Gajanan told him that Hamid had assaulted him with knife on his back. That is the reason as to why this so called contradiction was not even put by the defence to the Investigating Officer since there was, in fact, no contradiction as such. There is, therefore, no reason whatsoever to disbelieve the testimony of Haridas (P.W. 10).
11. In addition to the oral dying declaration before the witnesses, P.W. 4 Subhash, P.W. 5 Ashok, P.W. 6 Parvatibai and P.W. 10 Haridas, we have written dying declaration which was recorded in this case by P.S.I. Ramchandra Katole (P.W. 13), P.W. 13 Ramchandra Katole has stated that he had received phone message at 7.45 p.m. about the incident that Gajanan was in Primary Health Centre, Narkhed. He, therefore, went to the Primary Health Centre, Narkhed and recorded statement of Gajanan. He has stated that prior to recording said statement of Gajanan, he had given requisition to Medical Officer about the condition of injured Gajanan and the doctor had opined at Exhibit 47 that Gajanan was in a fit condition to give statement. Thereafter he recorded the statement of Gajanan which was signed by the doctor and Gajanan which is Exhibit 48. Exhibit 47 bears the endorsement of doctor in Marathi ...................................... Statement (Exhibit 48) of Gajanan bears his signature and the said statement shows that the same was read over to him and he found the same to be correctly recorded as per his say. The doctor has made endorsement below Exhibit 48 that the statement was recorded before him and it is signed by the doctor. During the cross-examination of P.S.I. Ramchandra (Exhibit (sic P.W.) 13), there was no challenge to the fact that P.S.I. Ramchandra had taken opinion of the doctor who had certified that the patient was in a fit condition to give statement and that the statement (Exhibit 48) bears the signature of doctor certifying that the said statement was recorded before him. The only suggestion which was given to this witness was to the effect that the patient was unconscious and unable to speak and that P.S.I. Ramchandra had prepared statement (Exhibit 48) on his own which was denied by P.S.I. Ramchandra (P.W. 13).
12. Learned Advocate for the appellant has in this respect urged before us that the doctor was not examined by the prosecution nor the Investigating Officer says in his deposition that the doctor was present when the statement (Exhibit 48) was recorded. It is, no doubt, true that the doctor has not been examined in this case, but Exhibits 47 and 48 speaks for themselves and we have already pointed out that there was no challenge to the fact that the doctor had certified that the patient was in a fit condition to give statement and that the statement was recorded in the presence of the doctor. The record to that effect is available at Exhibits 47 and 48 which have been duly proved through the evidence of Ramchandra (P.W. 13) before whom the said endorsements were made.
13. Insofar as recording of dying declaration by Police Officer is concerned, it may be mentioned here that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement depends on the facts and circumstances of each particular case. No hard and fast rule can be laid down for this and it would all depend upon facts and circumstances of each case. It may also be pointed out that the dying declaration recorded by a Police Officer cannot be ignored by the Court simply on the ground that a Magistrate was not associated with the making of statement when time factor permitted him to be so associated.
14. The next question which has been raised by learned Advocate for the appellant relates to non-examination of the doctor. We have already stated that there was no challenge to the certificate of the doctor to which reference was made by P.S.I. Ramchandra to the effect that Gajanan was in a fit condition to give statement nor there was any challenge to the fact that doctor was present at the time of recording of the statement of Gajanan which is crystal clear from Exhibits 47 and 48.
15. At this stage we may point out that if the prosecution is even otherwise able to establish by independent testimony that declarant was fit to make statement, non-examination of the doctor on the question of fitness of the declarant is not fatal. The Apex Court in
16. In
17. In the case under consideration, the written dying declaration was recorded by P.S.I. Ramchandra (P.W. 13) at Primary Health Centre, Narkhed after obtaining a certificate from the doctor about the fitness of Gajanan and the doctor also remained present during the recording of the said statement which was duly certified by the doctor at the end of the said statement. The deceased Gajanan also made oral dying declaration to P. W. 4 Subhash, P.W. 5 Ashok, P.W. 6 Parvatibai and P.W. 10 Haridas at different places. Oral dying declaration to P.W. 4 Subhash and P.W. 6 Parvatibai was made in the hospital at Nagpur by deceased Gajanan. The dying declaration was made by deceased Gajanan to P.W. 5 Ashok while he was being transported in the jeep/van from Primary Health Centre to Nagpur hospital. The dying declaration to Haridas (P.W. 10) was made by deceased Gajanan at hospital at Nagpur. All this would go to show that Gajanan was not only conscious, but was in a fit state to give statement. In these circumstances, non-examination of the doctor by prosecution does not have much consequence. Of course, if the doctor had been examined, it would have strengthened the prosecution case, but non-examination of doctor, in the facts and circumstances of this case, does not in any way weaken the prosecution case.
18. The trial Court had also relied upon the recovery of the knife at the instance of the accused which, strictly, speaking, cannot be said to be a recovery u/s 27 of the Indian Evidence Act since the pancha Gangadhar (P.W. 9) has not spoken at all about the disclosure made by the accused/appellant. P.W. 9 has, however, stated that the accused took out knife which was hidden below stone. Therefore, the fact that the accused pointed out the place where the knife was hidden below the stone, would be relevant as conduct of the accused u/s 8 of the Indian Evidence Act.
19. The non-examination of the writer constable who recorded the dying declaration of deceased Gajanan does not have any material effect on the prosecution case since it is a clear case of honest mistake made in recording the statement in respect of the name as "Hanif" instead of "Hamid" which was corrected. The fact that mistake was honest, is supported by the oral dying declaration made by the deceased Gajanan before four witnesses to which we have already referred.
20. Learned Advocate for the appellant has urged that the witnesses have stated that only one blow was given with knife by the appellant to Gajanan on his back and as such, the offence would fall u/s 304, Part-II of the Indian Penal Code. He also urged that doctor has not stated that the injuries are sufficient in the ordinary course of nature to cause death. In this respect, it may be pointed out that according to the post mortem report which was exhibited as an admitted document, there are five injuries on the person of the deceased viz.---
"(1) Stitched wound with two stitches vertically situated over Lt. scapular region 1 1/2" x cavity deep margins clear cut, contused angles clear (sharp);
(2) Stitched wound with three stitches transversely situated on Rt. side of chest in anterior axillary line one inch above Lower costal margin size 1 1/2" x 1/2" x muscle deep edges and angles clean cut.
(3) Abrasion with peeling off of the skin measuring 2" 11/2" situated below Rt. knee anterior aspect brownish hard scab present.
(4) Linear non continuous abrasion over lt. fore-arm 1" below elbow joint on inner aspect size 2" x 1 1/4" Brownish scab present.
(5) Scattered abrasions over ant aspect of Rt. foot distal part size varying from 1/4 cms x 1/4 cms to 1/2 cm x 1/4 cm. Brownish in colour."
21. The internal examination of the dead body of Gajanan shows that there was through and through stab 1" in length in upper lobe near the lower border of the left lung as also there was blood clot and cut injury to right vertical of the heart. The injuries, by itself, are sufficient in the ordinary course of nature to cause death. The medical evidence on record clearly establishes that there were two incised wounds on the person of deceased Gajanan, one on the left scapular region and the other one on the left side of the chest in the anterior axillary line one inch above lower costal margin .Besides this, there are three other abrasions and no doubt, abrasions can be caused due to fall, but the two incised wounds are as a result of assault by knife. Therefore, in view of the medical evidence on record as also that of Subhash (P.W. 4) who has, in fact, spoken that his father told him that the appellant had stabbed on his back and he sustained bleeding injuries, we are of the opinion that it is not a case of one blow as pointed out by the learned Advocate for the appellant. There is thus no merit in the submission of the learned Advocate for the appellant that the offence would fall u/s 304 Part-II of the Indian Penal Code.
22. For the aforesaid reasons, we do not find any merit in this appeal and the appeal is hereby dismissed.
