SHAIKH HAMID SHAIKH MEHTAB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for the murder of Gajanan Barghat under section 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 under section 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 under section 304, Part-II of the Indian Penal Code.