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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. 28007