Abdul Razak
Husseinshabir Mohmed Syedbalu @ Janardan S Vs. State of Maharashtra [1997] INSC
721 (10 September 1997)
M. K.
MUKHERJEE, K. T. THOMAS
ACT:
HEADNOTE:
Present:
Hon'ble
Mr. Justice M.K. Mukherjee Hon'ble Mr. Justice K.T. Thomas U.R. Lalit, Sr. Adv.,
A.M. Khanwilkar, Ms. Punam, D. Goburdhen, MS. Pinky Anand, Shiv Kumar Suri and
S.M. Jadhav, Advs. with him for the appearing parties.
The
following Judgment of the Court was delivered:
Shabir Mohamad Syed V. State of Maharashtra WITH CRIMINAL APPEAL NO. 1137 OF 1995 Balu @ Janardan Shantaram Shirke V. State of Maharashtra WITH CRIMINAL APPEAL NO. 615 OF 1997
MUKHERJEE,
J.
In
Sessions Case No. 122 of 1989 on the file of the Additional Sessions Judge, Fourth Court, Thane, seven persons were
arraigned for rioting, five murders and other related offences. While
acquitting two of them, the trial Judge convicted the other five under Sections
147, 342/149, 440/34 and 302/149 I.P.C. and sentenced them to different terms
of imprisonment, including life, and fine. Aggrieved thereby the five convicts
(who were arrayed as A1 to A5 in the trial Court) preferred appeals in the High
Court which were dismissed. Assailing the dismissal of their appeals three of
them namely A2, A3 and A4 have filed these appeals which have been heard
together and this judgment will dispose of them.
2.
Briefly stated the prosecution case is as under:- (a) In the Waldhuni are of Kalyan
City the Railway own a number of buildings, rooms of which are allotted to its
employees. Eknath Brahmane (P.W.4), is one of such employees who was allotted
room No.7 on the ground floor of Building No. 1003. That room was used by the
two sons of Eknath, namely, Manohar and Sanjay as their study; and Eknath along
with his other family members lived in a nearby chawl;
(b)
Two and a half months prior to the incident with which we are concerned in
these appeals, Eknath and his friend Rajesh were arrested for attempting to
commit the murder of Baksh Jamalkhan Pathan, brother of Amir Jamal Khan Pathan
(A1) and, a week before the incident, they were released on bail. Since the
attempt was made to commit the murder of his brother a1 bore a grudge against
them.
(c) In
the night of October
20, 1988 Sanjay along
with his brother Manohar and friends Rajesh, Harshad and Roml were sleeping in
their study. At or about 3.45
A.M. they woke up on
hearing some noise from outside the window and found their beds splashed. They Immediately
got up and saw the accused persons pouring petrol inside the room through the
window. Thereafter they set the room on fire by throwing an ignited match stick
and left bolting the door from outside.
(d) A
little when Kanhayalal, a regular milk supplier to the residents of the railway
quarters, reached there he detected some fire in room No. 7. He immediately
sent information to the family members of Rajesh and to Eknath.
On
receiving that information they rushed there and found the room locked from
outside and fire inside. Eknath unlocked the room and saw Sanjay, Harshad and Romi
lying dead on the floor of the room and Rajesh and Manohar in the bathroom in a
critical condition. All of them had burn injuries on their persons.
(e) Eknath
immediately reported the incident to the Police Station over telephone and
arranged to send Manohar and Rajesh to Ulhasnager Central hospital. On
receiving the telephonic message Inspector Nanavade reached the spot and having
learnt that the condition of Manohar and Rajesh was deteriorating issued
direction to S.I. Tulshiram (P.W.20) to get their statements recorded by a
Magistrate. Service of Dr. Prem Narayan Talareja (P.W.16), a Special Executive
Magistrate, were accordingly requisitioned. He went to the hospital and record
their statements (Exh. 59 and 60). A formal complaint of Rajesh was also
recorded by S.I. Shripat Malache (P.W.20) and on that complaint Police
registered a case and took up the investigation. As the condition of Manohar
and Rajesh was serious, they were transferred to K.E.M. Hospital, Bombay where the former died on October 26, 1988, and the later on the following day. On completion of
investigation police submitted charge-sheet and in due course that case was
committed to the Court of Session.
3. At
the outset, we may point out that the prosecution case, to the extent it sought
to prove that the above named five boys were set on fire while they were
sleeping inside room No. 7 of Railway building No. 1003 and that owing to burn
injuries they met with their death stands proved by overwhelming evidence on
record. Since, this part of the prosecution case was not challenged by the
accused persons in the Courts below we need not detail or discuss the evidence
adduced in proof thereof.
4. To
prove that the three appellants before us, namely Balu @ Janardan Shantaram Shirke
(A2) Shabbir Mohammed Sayyed (A3) and Abdul Razak Hussein Pathan (A4) were
amongst the miscreants who perpetrated the ghastly crime the prosecution relied
solely upon the two dying declarations of manohar and Rajesh which recorded by
P.W.16. Some other circumstantial evidence was also pressed into service by the
prosecution to sustain the charges against A1 and A5 but as they have not
preferred any appeal we need not detail the same. Both the Courts below found
that the dying declarations were properly recorded and that it was absolutely
safe to make them the sole basis of conviction
5. To
appreciate the comments made by the learned counsel for the appellants against
reception of and reliance upon the dying declarations we may first refer to the
evidence laid by the prosecution in proof thereof. Dr. Gaikwad (P.W.15), in
whose presence the dying declarations were recorded, testified that he was on
duty in the Central Hospital, Ulhasnagar from 9 P.M. on October
21, 1988 to 9 A.M. on the following day. At or about 5 A.M. (I.e. October 21, 1988) Manohar Bramhane and Baba were
brought to the hospital by constable Chundrate of Mahatma Phule Chowk Police
Station, Kalyan. On their examination he found that both of them had burn
injuries: the extent of such injuries were 40% and 50% respectively. After preparing
their case papers (Exts. 57 and 58 respectively) and admitting them in the
hospital, he sent information to the police. Act or about 6.30 A.M. a Police Inspector and a Special Executive
Magistrate (P.W.16) came to the hospital and enquired of him about the
condition of the patients. He then examined the level of t heir consciousness
by asking their names and ages, we brought them to the hospital and as to what
had happened to them. He found that they were able to make statements and,
accordingly he made identical endorsements in the margin of the two papers in
which the dying declarations were to be recorded (Exts. 59 and 60). The endorsements
made by him in the margin reads as under;
"Patient
is conscious and able to give statement.
6. He
next deposed that after he made the above endorsements certifying the
conditions of the patients the Special Executive Magistrate got the dying
declarations recorded, one after the other, by a constable who was on hospital
duty. The Special executive Magistrate put the questions to the patients and
answers given by them were recorded by the police constable in `Marathi'. After
the dying declarations were recorded the patients put their signatures on their
respective dying declarations. Then he (P.W.15) again examined the patients and
found that they were conscious. Accordingly he made another endorsements on the
dying declarations which reads as under:- "Patients is conscious and able
to give statement and was to through out his statement which is taken in my
presence."
7. In
this testimony Dr. Prem Narayan Talareja (P.W.6), the Special Executive
Magistrate, stated that on being requested by the Sub-Inspector of Police he
went to the hospital at 6.45
A.M.. to record dying
declarations of two persons. Reaching there he met Dr. Gaikwad (P.W.15) and
enquired of him about the patients and further asked him to verify whether
those patients were in a position to give statements. Accompanied by the doctor
he then went and reached the patients' beside Dr. Gaikwad examined both the
patients by putting certain questions and they were replied correctly.
Accordingly Dr. Gaikwad made endorsements about the condition of the patients
on two papers and he handed over that to him. On being satisfied about their
health, he requested the doctor to call the police constable who was then on
hospital duty to write down the declarations of the patients as he (P.W.16)
could not write `Marathi', though he could speak and follow that language.
After the constable was brought he (P.W.16) started putting questions in
`Marathi', first to Manohar and the answers give by him were written down by
the constable. He followed the same procedure in respect of the other patient.
On perusal of the evidence of the doctor and the Special Executive Magistrate,
we find that they corroborated each other and their evidence clearly
establishes that both the declarants were conscious and able to make
statements. There is nothing on record also to indicate as to why they would
depose falsely.
8.
That brings us to the contents of the two documents (Exts. 59 and 60). Both the
declarants were first asked about their name, address, age, occupation and
their residence. Thereafter each of them was asked as to how they received the
burn injuries. In answer thereto Manohar told that he along with Romeo, Harshad,
Sanjay and Rajesh slept in room No. 7 of building No. 1003 on October 20, 1988 at or about 10.30 P.M. In the following morning at about 3.45 hours he
heard the noise of the window and got up. He found some cold liquid falling on
his body. At that time he saw the following persons standing in front of the
window; (i) Amir Pathan residing at Waldhuni, (ii) Richard Philips residing at Waldhuni,
(iii) Baba, brother of Lambu Yusuf, residing at Machhibazar (iv) Sabir, brother
of Babadu and (V) Baba Shirke residing at Kalyan Rambaug. They threw petrol
through the window of the room which fell on his body as also on the bodies of
others. He was lastly by P.W.16 what was the reason for burning them. The
answer of Manohar to that was that Amir told them that you people had killed my
brother Mohamad and hence I will not keep you alive.
Manohar
further stated that the above persons were angry about the assault on Mohamad Pathan
and hence they conspired together to throw petrol on them. He lastly stated
that Amir latched the room from outside and set the fire in the room.
As a
result, Romeo, Harshad and Sanjay died on the spot, while they were taken to
the hospital. The statement made by Rajesh is in conformity with and
corroborates that of Manohar so far as the manner of setting them of fire as
also the names of the miscreants.
9. In
assailing the dying declaration, it was first submitted on behalf of the
appellants that P.W.16 admitted that he was no authorised to record a dying
declaration and hence the Courts below ought not to have placed any reliance
upon them. This contention has to be stated only to be rejected firstly,
because, our attention has not been drawn to any Rules which require that
without empowerment in Executive Magistrate cannot record a dying declaration;
secondly,
because, even if there is any such Rule absence of such power does not in any
way undermine the status of P.W.16 as an Executive Magistrate; thirdly, because
there is uncontroverted evidence on record that no other Special Executive
Magistrate was readily available for the purpose;
and
lastly because there is no requirement of law that a dying declaration must
necessarily be made to a Magistrate.
It
appears that the above contention was raised before both the Courts below, and
it was negatived in view of the evidence on record and relying on the following
passage from [A.I.R. 1983 S.C. 164]:
"A
statement, written or oral, made by a person who is dead as to the cause of his
death or as to any of the circumstances of the transaction which resulted in
his death, in cases in which the cause of that person's death comes into
question, becomes admissible under Section 32 of the Evidence Act.
Such
statement made by the deceased is commonly termed as dying declaration. There
is no requirement of law that such a statement must necessarily be made to a
Magistrate. What evidentiary value or weight has to be attached to such
statement, must necessarily depend on the facts and circumstances of each
particular case, In a proper case, it may be permissible to convict a person
only on the basis of a dying declaration in the light of the facts and
circumstances of the case."
10. It
was next contended that as the dying declaration were not made by the two
victims at the earliest available opportunity the possibility of their being
the outcome of tutoring by interested parties could not be excluded in
elaborating this contention it was submitted that prior to the recording of the
dying declarations by the Magistrate, the victims were questioned by the
Investigating Officers as also by Dr. Gaikwad (P.W.15), but before them they
did not mention the names of the miscreants. This connection is also without
any substance. From the evidence it appears that both of them were rushed to the
hospital in a critical condition and immediate steps were taken by the
Investigation Officer to record their statements in details.
So far
as the doctor is concerned, we heave already noticed that it was only after the
Magistrate came that he ascertained whether the patients were able to make any
statement. In or considered opinion the circumstance which clearly negates an
inference that the statements were tutored to implicate the appellants falsely
is that there is nothing on record to suggest that either of the two victims or
any member of their family had any axe to grind against them (the appellants).
This apart, considering the time when, and the manner in which, the incident
took place no person, other than the victims could have known the miscreants
and, therefore, the question of furnishing their names by others could not have
arisen.
11. On
behalf of the appellants our attention was drawn to the cross-examination of
P.W.15, where he started, interalia, that one of the patients disclosed his
name as `Rajesh' at the time of recording of his dying declaration, but earlier
when his name was asked for filling in his case papers (Ext. 58) he gave his
name as `Baba Tike'. P.W.15 further stated that when two names were stated by
the same person he (P.W.15) felt that the said patient might be hallucinating.
According to the learned counsel, in view of the above answers given by the
doctor it must be said that the patient was not in a position to make a dying
declaration and that whatever he told was due to hallucination. This contention
also does not merit acceptance for the dying declaration of Rajesh corroborate
in all material particulars with that of Manohar including the names of the
miscreants which necessarily mean that at the time his dying declaration was
recorded Rajesh was in a proper frame of mind, even if earlier he was not so.
Having given our anxious consideration to the entire evidence relating to the
dying declarations, we are in complete agreement with the Courts below that
they can be safely made the basis of conviction.
12.
The only other question that remains to be answered is whether from the above
dying declarations the identities of the three appellants as the miscreants has
been properly and correctly established. It was submitted on behalf of the
appellants that from the vague and cryptic description of the miscreants given
in the dying declaration it could not be said that three of them mentioned
therein unmistakably referred to the appellants. As earlier noticed, the
prosecution sought to establish that of the five miscreants named in the dying
declarations Balu shirke referred to A2, Shabir to A3 and Baba (Lambu Yusuf's
brother) to A4. Having considered the evidence relating to this aspect of the
matter we are of the view that identifications of A2 and A3 stand fully
established but not that of A4. So far as A2 is concerned, apart from his name
is place of residence was stated in the dying declarations and he was arrested therefrom.
Indeed, during the trial it was not even suggested that he was not a resident
of the place mentioned in the dying declaration. So far as A3 in concerned, we
find that in his examination under Section 313 Cr.P.C. when he was told that he
was described as brother of Babdu he denied the same. Relying upon the above
answer it was submitted before us that in absence of any other evidence to
prove that `Shabir' mentioned in the dying declarations referred to A3 his
identity could not be said to have been established. We do not find any
substance in this contention for it was decided in cross-examination of P.W.21
that the address of A3 as given in the charge-sheet was his own house. It was
also elicited from him that A3 was the brother of Babadu. There cannot be any
manner of doubt, therefore, regarding the identify of A3. As regards A4 he was
sought to be identified with reference to his having a brother by the name `Lambu'
Yusuf. When his identification on the basis thereof was assailed before the
trial Court, it wrongly took note of the fact that he was described as `Lambu'
and since, according to the trial Court, he was the tallest among the persons
who were facing the trial it concluded that he was correctly identified. The
conclusion drawn by the trial Court is not only factually incorrect but also
presumptive.
A4 is
therefore entitled to the benefit of reasonable doubt.
13.
For the foregoing discussion, we dismiss Criminal Appeal Nos. 1136 and 1137 of
1995 preferred by Shabir Mohamad Syed (A3) and Balu @ Janardhan Shantaram Shirke
(A2) respectively and allow Criminal Appeal No. 615 of 1997 preferred by Abdul Razak
Hussain (A4). A4 who is in jail be released forthwith unless wanted in
connection with some other case.
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