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CASE NO.: Appeal (crl.)  772 of 2004

PETITIONER: Sheikh Meheboob @ Hetak & Ors.

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 10/03/2005

BENCH: K.G. Balakrishnan & B. N. Srikrishna

JUDGMENT: J U D G M E N T

SRIKRISHNA, J.

       The appellants, who were convicted for offences under Section 302/34  IPC by the IInd Additional Sessions Judge, Akola, and whose convictions  were affirmed on appeal to the High Court of Judicature at Bombay, are  before this Court by special leave.

       According to the prosecution case, a young lad of 20 years, Lalit  Kumar, was murdered by the three appellants by setting him on fire on  14.3.1992 at about 10.00 p.m.. The alleged motive for this heinous act is that  the appellants used to advance monies to young boys, including Lalit  Kumar, to enable them to gamble, and demand interest on the monies  advanced. According to the prosecution, although Lalit Kumar had returned  the capital amount, since he failed to return the interest as demanded by the  appellants, the appellants killed him in the gruesome manner as alleged. The  conviction is based on the dying declaration of Lalit Kumar (Ex. 49) and the  evidence of  the father of Lalit Kumar, Hanumandas (PW 2).

       Where two courts have concurrently analysed the evidence and  recorded a conviction or acquittal, this Court is reluctant to reappraise the  evidence and differ therefrom save in exceptional circumstances indicative  of gross miscarriage of justice for reasons. This is one such case where we  need to interfere.  Since the two legs on which the case of the prosecution  rests consist of the testimony of Hanumandas (PW 2), and the dying  declaration of Lalit Kumar, we were taken through the evidence with  particular focus on the aforesaid and shown a number of circumstances  which raise serious doubts as to the credibility of the prosecution case.

       The testimony of Hanumandas (PW 2), together with the manner in  which the prosecution was conducted, raises the first serious doubt.  According to Hanumandas, on the fateful day at about 8:30 to 9:00 p.m. he  was coming towards his house after a long day at his shop, and while he was  about 15 to 20 feet away from his house, he saw Appellant No. 3 (Mohd.  Bhoja) had caught hold of Lalit Kumar, Appellant No. 2 (Ismail) poured  kerosene on the body of Lalit Kumar and Appellant No. 1 (Meheboob) set  him on fire with a match stick.  Hanumandas claimed that his other son,  Shyam Kumar was also witnessing the scene from a distance of about 10 to  15 feet from the spot of incident.  Lalit Kumar was engulfed in fire and ran  towards the bathroom situated within the compound of Hanumandas house.   Hanumandas ran after him and attempted to extinguish the fire. When they  reached the bath room, Hanumandas poured water from a bucket which was  outside the bathroom and tried to extinguish the flame.  Being unsuccessful  in his attempt, he brought a blanket from the house and wrapped the blanket  around Lalit Kumar and extinguished the fire. Thereafter, he called a cycle- rikshaw and took Lalit Kumar to the Main Civil Hospital, Akola for  treatment.  He admitted Lalit Kumar in the hospital for treatment.  He  claimed that, at that time, all the three appellants had come to the hospital

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and given him threats that if he complained to the police, his entire family  would be finished.  Hanumandas stated that he had made a telephone call on  the emergency telephone Number 100 from the hospital to the Police  requesting for a Police van be sent immediately.  Immediately, a Police van  did arrive at the hospital along with police personnel, on seeing whom the  accused ran away.  Thereafter, Hanumandas went to the City Kotwali Police  Station on his Luna Moped and gave a written report disclosing the entire  incident in connection with his son Lalit Kumar being set up on fire by  pouring kerosene on his body and also the threat given to him and his son in  the hospital.  The Police had received his written report. From the sequence  of events narrated by Hanumandas it would appear that the written report   made by Hanumandas to the Police would be the first contemporaneous  document putting on record the true facts pertaining to the incident. That  would have been the touchstone on which the credibility of Hanumandas  could have been tested.  Unfortunately, that document appears to have been  suppressed. It was obligatory on the prosecution to place the document on  record for a fair trial.  Not only did the prosecution fail to produce the  document voluntarily, but the prosecution failed to produce the document  despite an application for production of the said document by the accused  and the order made thereupon by the Sessions Court for its production.   

Three contentions have been urged by the learned counsel for the   appellants.  First, that the failure of the prosecution to produce the document,  whose existence is affirmed by the witness, PW 2, leaves a   yawning  gap in  the story of the prosecution. Second, it gives rise to an adverse inference  that, had it been produced, it would have disproved the case of the  prosecution.  Third, the said report, being the first information given to the  Police, ought to have been treated as the FIR.

Though, these issues were raised before the Sessions Court as well as  the High Court, they have been side-tracked on reasoning which appears to  us to be unsustainable.  While the Sessions Court referred to this contention  urged by the defence, it has given no reason for not accepting the contention.   The High Court accepted the contention that Hanumandas (PW 2) had made  the report to the Police about the incident and that, if the said report was  made, then it ought to have been treated as the FIR. The High Court,  however, dismissed the contention by taking the view that nothing had been  placed on record, either in cross examination of Hanumandas, or otherwise,  to show that the report to the City Kotwali Police Station had been lodged by  him before the dying declaration was recorded. And that, unless the defence  shows that the said report was prior to the dying declaration, it could not be  treated as FIR, particularly when there is no suggestion put to the  Investigating Officer, Jaswant Singh Hushare (PW 10), that the said report  was deliberately suppressed and withheld by the police.  

In our view, the reasoning of the High Court is erroneous.  The  defence made an application for production for a vital document (that it is a  vital document, cannot be denied); the trial court accepting the application  for production of such document passed an order directing the prosecution to  produce the document and the prosecution failed to do so without any  explanation, whatsoever. The conclusion is irresistible that the prosecution  has suppressed the document.  The fact that no suggestion was put to the  Investigating Officer is totally irrelevant.  As to whether the said report was  made prior to the dying declaration (Ex. 49), on a fair reading of the  evidence of Hanumandas (PW 2) the sequence of events given by  Hanumandas before the Court suggests that when he admitted his son to the  hospital, the accused-appellants had come to the hospital and threatened  him.  This was followed by his frantic call to the Police Control Room, the  arrival of the police immediately thereafter and his going to the City Kotwali  Police Station on his Luna Moped and lodging a report about the whole  incidence including the threat given to him.  In fact, reading the evidence of  Hanumandas as a whole, it would suggest that he had no idea as to the  recording of the dying declaration at all, for he no where mentions it. Nor  does it appear from his evidence that the dying declaration was recorded  prior to Hanumandas going to the Kotwali Police Station to lodge his written

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report.  

Apart from these glaring discrepancies, the evidence of Hanumandas  as an eye witness does not appear to be credible.  A number of  inconsistencies between his statement to the police under Section 161 and  his evidence were thrown up in the cross examination. The contradictions  between his evidence and the evidence of the Investigating Officer (PW 10)  make interesting reading.  For every inconsistency between his police  statement and his evidence in the court, while Hanumandas insisted that he  had made some statement or had not made such statement, the Investigating  Officer directly contradicts him on the issue.  Apart from the contradictions,  there is contradiction with evidence of  the other cited witness Shyam  Kumar (PW 9). Shyam Kumar flatly contradicts Hanumandas (PW 2). If we  were to go by his evidence, no such incident ever took place in his presence.  Though, the prosecution cited Shyam Kumar (PW 9) as an eye witness, no  wonder the prosecution was constrained to declare Shyam Kumar as a  hostile witness and having been won over.

Who took Lalit Kumar to the hospital, is also shrouded  in mystery.  According to Shyam Kumar (PW 9), his uncle, Lakshmi Narayan, had taken  Lalit Kumar to the hospital and got him admitted. Who extinguished the fire,  is also a matter of controversy.  While Hanumandas claims to have done it  himself, the dying declaration and the evidence of Shyam Kumar (PW 9)  suggest that some of the residents of the locality had done it.  Strangely, the  Investigating Officer (PW 10), who recorded the statement, candidly  admitted that he had made no effort to trace the rikshaw driver, who took   Lalit Kumar to the hospital. The rikshaw driver  would have been a material  witness on the issue as to who accompanied Lalit Kumar to the hospital.  It  is not possible to believe that, in a small town like Akola, the police were not  able to trace the rikshaw driver, who had carried   Lalit Kumar to the  hospital.

So much for the gaping holes in the prosecution story based on the  eye witness account. Doubts arising from  the eye witness accounts left too  many question marks and too many unexplained circumstances, which  contra-indicated their acceptance without corroboration. Corroboration was  available in the form of a document, which was not deliberately placed on  record by the prosecution.  This by itself should have sufficed for the court  to induce a reasonable doubt as to the discharge of the onerous burden by the  prosecution.

The other limb of the prosecution story (perhaps bearing greater  weight) is the dying declaration (Ex. 49).  We may ignore the usual  contentions urged by the defence to discredit the dying declaration. The law  as to the test for credibility of a dying declaration has been laid down by a  Constitution Bench in Laxman v.  State of Maharashtra . We may,  therefore, reject the contentions of the appellants that the certification as to  mental fitness of the victim was not proper or that it was written in a  particular language, in a particular fashion, and such like.

The dying declaration (Ex. 49) was recorded at 00:05 hours by the  Executive Magistrate, C.H. Upadhye (PW 4), on a requisition received on  14th March 1992 at 2345 hrs. through Police Constable Vijay, Batch No.  2067 attached to Police Station Ramdaspeth, Akola, requesting for recording  of dying declaration at Main Hospital, Akola. According to PW 4, he  received the requisition letter at his residence at about 2345 hrs. on that day.   Immediately, thereafter, he went to the hospital and meet the Medical  Officer on duty. He asked the Medical Officer to examine the patient and  certify that the patient Lalit Kumar was in a fit condition to make his  statement. The doctor issued a certificate (Ex. 49A). Then, he asked the  relatives of the patient, who were present there, to go out from that place.  After all of them had left the place, he recorded the dying declaration in  question and answer form.  The questions were put in Marathi and the  patient replied in Marathi.  What was written was read over to the patient  and the patient admitted the same to have been correctly recorded.  His

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signature could not be obtained as his both hands had burn injuries. The  dying declaration, thereafter, was signed by PW4 and also once again  endorsed with the certificate of the Medical Officer that the patient had been  fit to make such a statement.

The dying declaration has a curious aspect, which needs to be  highlighted. The dying declaration reads as under:  "I had taken money from Ismail. Mahmmad and  Mehboob and I repaid the same to them. They asked me  for more interest, they beat me, therefore Ismail,  Mahmmad, Hetak poured kerosene on my person and set  me on fire with the match stick. While I was running in  the house, people from the locality rushed there and  extinguished the fire caught to my person and then  brought me in the hospital."

The original Exhibit 49, which is written in Marathi, shows that the words  "mi ghaslet angavar" have been struck off. When asked for an explanation,  the Executive Magistrate, C.H. Upadhye (PW 4), explained that the  aforesaid words, which mean "I kerosene on the body" had been stated by  the patient before him at that time.  According to him, he was sitting facing  the patient with his back towards the door of the room, and there was some  shouting heard from outside after which the patient had changed his version.   He maintains that, the words which are struck off had been uttered by the  deceased in the first instance, and changed by him as a result of some  shouting from outside. So those words were struck off.

       Exhibit 52, the medical case papers placed on record and proved  through, Dr. Ganesh Gir Gosavi  (PW5), also raise some further doubts. In  the medical case record, the very first entry, which logically should have  been the entry made at the time of admission, bears the date 17/3. The  history notes: "burns. Self inflicted", after which comes the line of  treatment.  On page 2 of the medical record, there is an endorsement in  Marathi, which says, "the doctor told me that my brother’s son’s condition is  very serious" and bears someone’s signature. On page 4 of the medical  record, there is an endorsement "H/o Accidental burn."

       According to Dr. Ganesh Gir Gosavi (PW 5), he was present as doctor  on duty from 9:00 p.m. on 14th March to 9:00 a.m. the next morning.  He  also stated that he was on duty at 9:45 p.m., and one Dr. Tayade was the  CMO on out-door duty.  He identified the hand writing and signatures of Dr.  Tayade and proved the medical records.  When his attention was drawn to  the fact that the medical record noted that there was "self-inflicted" burns, in  the history of the patient, he claimed that he was unable to say as to who had  given the history of the patient.  He, of course, claimed that, as sufficient  time had elapsed and a number of patients were examined and treated by  him, it was not possible to remember facts of each and every case.

The medical record raises a number of questions, which have not been  satisfactorily answered, and which preclude implicit acceptance of the dying  declaration (Ex. 49). First, who admitted Lalit Kumar to the hospital?  The  dying declaration suggests that the neighbours had done so, while  Hanumandas (PW 2) maintained that it was he, who had admitted him to the  hospital.  Second, who gave the history of the patient to the doctor on duty at  the time of admission?  Hanumandas (PW 2) says nothing about it.  The  medical record suggests that the uncle of Lalit Kumar (Laxmi Narayan) was  the one who accompanied the patient, and probably had given the history of  the burns to the doctor on duty at the time of admission. The medical record  also has two curious endorsements.  At one place, it says that there was   history of "accidental burns"; at another place there was history of "self-  inflicted burns". The dying declaration itself indicates that the deceased had  started to make a statement which was suggestive of his having poured  kerosene on himself and set himself on fire because the appellants were  demanding interest and beating him.  The evidence of the Executive  Magistrate (PW 4) clinches that this was precisely what the deceased had

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stated in the first instance, which he changed on hearing some shouting from  outside.  These are some of the circumstances which raise serious doubts as  to the implicit credibility of the dying declaration.

       We have carefully examined the reasons adduced by the Sessions  Court and the High Court for accepting the dying declaration as credible,  and for accepting the evidence of Hanumandas (PW 2), and the dying  declaration (Ex. 49), as bringing home the charge of murder against the  appellants beyond the shadow of reasonable doubt. Shadows, there are; dark  enough to eclipse the truth. Both the courts have ignored a number of  reasonable doubts which legitimately arose on the evidence led by the  prosecution, and its conduct in suppressing the vital document and  witnesses.  We are not satisfied that the evidence led on record by the  prosecution proves the guilt of the accused-appellants beyond reasonable  doubt.  

In our view, the appellants are entitled to the benefit of doubt.  In the  result, we allow the appeal and set aside the judgments of the High Court  and the Sessions Court. The appellants are acquitted of the charges against  them. The appellants shall be set at liberty forthwith, unless required to be  detained in connection with any other case.