SADASHIV MARYA PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THROUGH this appeal, the appellant challenges the Judgment and order dated 10-4-1985 passed by the II Additional Sessions Judge, Thane, in Sessions case no 364 of 1983, whereby he has been convicted and sentenced in the manner stated hereinafter :- i)Under section 302 IPC to imprisonment for life; and ii)Under section 324 IPC to one years, R. I. and to pay a fine of Rs. 100/- in default to undergo 3 months R. I. The substantive sentences of the appellant were ordered to run concurrently. In short, the prosecution case is that the deceased Jaywant got married to PW 3 Indu Patil in February 1983. Her brothers had objection to the marriage. On 22-5-1983, at about 8.30 to 8.45 p. m. Jaywant and Indu were inside the kitchen of their house in village Vitava Taluka and District Thane. At that time, the appellant who was Indu's brother armed with a Kukri came and assaulted Indu and Jaywant with it. Indu ran out of the house and sought the help of her neighbours. Atmaram Patil PW 4 who was living at a distance of 200 to 250 feet from Indu's house and Taibai Shankar Patil PW 6 who was also living nearby immediately thereafter came to Indu's house. They saw that Jaywant was lying near the mori of his house and blood was oozing out from his injuries. They asked Jaywant as to who had assaulted him and he replied that it was the appellant. Atmaram Patil rushed to the police outpost at Kalwa and informed the Police Officer on duty about the incident. PSI Shivaji Deshmukh PW 8 of the said police outpost who was on duty along with Atmaram Patil rushed to Jaywant's house and took him immediately to the Civil Hospital, Thane for treatment. In the said hospital, Jaywant died within one hour of his admission.

(2.) THE injuries of Indubai were medically examined the same day at 10.20 p. m. at the Civil Hospital, Thane by Dr. Ashok Joshi PW 2 who found on her person six incised wounds, which in his opinion were attributable to a sharp edged weapon like a kukri (article no. 1) shown to him. After Indubai had been medically examined, her FIR was recorded at Civil Hospital. Thane and on its basis. PSI Rabale registered an offence.

(3.) WE have heard Mr. Niteen Pradhan with Ms S. D. Khot for the appellant and Mr. S. R. Borulkar Additional Public Prosecutor for the State of Maharashtra-Respondent. WE have also perused the entire material on record including the statement of Taibai Shankar Patil PW 6.WE are satisfied that it would not be prudent and safe to place reliance on the oral dying declaration made to her by the deceased and the logical imperative of the said finding would be extending the benefit of doubt to the appellant. The Supreme Court in the case of Bhagwan Das and another - Appellants V. State of Rajasthan - Respondent, reported in AIR 1957 Supreme Court page 589, in para 12, has observed that ordinarily a oral dying declaration by itself is insufficient for sustaining the conviction on a charge of murder. The said para 12 reads thus :- " The other piece of evidence which the prosecution relied upon was the two dying declarations made by Shivlal to Gyaniram PW 4 and Jora PW 7. Besides the infirmities which the testimony of these two witnesses (Gyaniram PW 4 and Jora PW 1) suffered from due to material contradictions in their respective statements made at various stages of the case and which have been pointed out by the learned Sessions Judge who said about Gyaniram; 'in such a state of affairs, I refuse to put any weight and value to the statement of Gyaniram. . . . . . . . . . " their evidence cannot be a sure foundation for maintaining the conviction of the statement of Hazari the sole eye witness is disregarded, as it must be disregarded in this case, because ordinarily a dying declaration of the kind which the prosecution has relied upon is by itself insufficient for sustaining a conviction on a charge of murder. " (Emphasis supplied) There are three reasons, in main, as to why we are not inclined to accept the statement of Taibai Patil. Firstly, we find that she has been interrogated under section 161 Cr. P. C. after two days and no plausible reason for her belated interrogation has been furnished by the prosecution. The Supreme Court has frowned upon the belated interrogation under section 161 Cr. P. C. of a witness. In this connection, those who have a penchant for authorities would do well to peruse the observations of the Supreme Court, contained in para 16, in the case of G. B. Patel V/s State of Maharashtra, reported in AIR 1979 Supreme Court, page 135 wherein the Supreme Court has said that in some cases even interrogation of a witness after a delay of couple of hours may prove fatal. Secondly, we find that according to Taibai Patil, at the time when Jaywant told her that the appellant had assaulted her, Atmaram Patil PW 4 was present, but Atmaram Patil on the converse does not claim that he was present when Jaywant Patil told Taibai Patil that the appellant had assaulted him. Thirdly, evidence of Taibai Patil is that when she went to the house of Jaywant, Jaywant put his head on her lap. If that was so, then there would have been blood on the clothes of Taibai Patil for it should be remembered that he had suffered as many as seven incised wounds and their perusal indicates that profuse bleeding must have ensued from them. Again for no ostensible reason the blood-stained clothes of Taibai Patil were not taken into possession during the course of the investigation. They would have demonstrated her presence at the house of Jaywant and probablised his making a oral dying declaration to her. When the said infirmities are examined in the light of the ratio laid down in AIR 1957 Supreme Court page 589 supra, in our Judgment it becomes extremely hazardous and unsafe to sustain the conviction of the appellant on the solitary oral dying declaration deposed to by Taibai Patil PW6.