Allowed

Vijay Narottam Tamore v. the State of Maharashtra

Bombay HC16 Jul 2013APEAL/401/2007

Case brief

AI extract

What is this about?

The High Court quashed the conviction of an appellant convicted under Section 304 Part II IPC for fatal injury. The court held the conviction bad in law due to the failure to put incriminating circumstances, specifically the dying declaration and blood-stained weapon, to the accused during Section 313 proceedings, violating the principle of fair trial.

What did the court decide?

The judgment and order convicting the appellant were quashed and set aside. The appellant was directed to be released forthwith, if not required in any other offence.

Vijay Narottam Tamore Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 401 OF 2007

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Vijay Narottam Tamore ) aged 20 years, residing at Dandi, Taluka Palghar, ) Dist. Thane. ).. Appellant vs. The State of Maharashtra ).. Respondent

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Mr. Prakash Naik, Advocate, for the appellant. Ms. P.P.Shinde, APP, for the State.

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CORAM: SMT. SADHANA S.JADHAV,J. DATE : 16^th July, 2013

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JUDGMENT:

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The appellant herein is the original accused No.3 in Sessions Case No.88 of 1999. He is convicted for the offence punishable under Section 304(II) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years by the First Adhoc Addl. Sessions Judge, Palghar vide judgment and order dated 28.3.2007.

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Such of the facts which are necessary for the decision of this Appeal

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are as follows :-

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Deceased Arvind and his brothers (i.e. Prakash and others) were fishermen by profession. They were owners of a boat. In the year 1999, Vishnu (i.e. original accused No.1) was serving on that boat as fisherman. He then stopped working with Arvind. On 2.6.1999 at about 9.30 p.m., Vishnu had been to the house of Prakash and requested to settle his account. Prakash asked him to come on the following day, that gave a cause for a verbal altercation. Arvind heard about the incident and proceeded towards the house of Prakash. At that time, original accused Nos. 2, 3 and 4 also came there to support Vishnu. Arvind then raised his voice and started quarrelling. Vijay i.e. the present appellant stabbed Arvind with a Darkhand (a small knife like weapon used by fisherman to catch fish) on his navel and also assaulted Prakash and others. Thereafter Arvind was taken to Tarapur. Then he was referred to Dahanu Cottage Hospital. Tarapur police recorded statement of Arvind on the basis of which Crime No.17/1999 was registered against the accused for the offences punishable under Sections 307, 404, 506 read with Section 34 of IPC. Arvind was then being shifted to Bhagwati Hospital, however, he succumbed to the injuries on the way. Hence, Section 302 of IPC was added. The investigation was set in motion. The present appellant was arrested on 4.6.1999. It is alleged by the prosecution that while in police

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custody, the present appellant had made a disclosure statement. The memorandum is at Exhibit 35. Pursuant to the memorandum, a seizure panchnama was recorded under Section 27 of the Evidence Act on 8.6.1999. It is the specific case of the prosecution that at the behest of the present appellant, they had recovered Darkhand i.e. an iron strip about 1 ft. 3 inches in length and 1 -1/2 cm. broad with pointed ends. There were blood stains on the said weapon upto 2 inches.

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The statement of injured Arvind was recorded by Tarapur Police Station and the same is treated as dying declaration which is marked at Exhibit 40. It is shown by the prosecution that Exhibit 40 is a panchnama. PW-9 Jijabrao Rangu Patil has reduced the said statement into writing. It is pertinent to note that he has not deposed before the Court about the contents of the statement at Exhibit 40. He has admitted in the cross-examination that the condition of the patient was serious. The Medical Officer had informed him that some x-ray has to be taken and hence the injured was sent to Dahanu. He has further admitted that Tarapur Primary Health Centre had given primary medical treatment to Arvind. PW-3 Krishna Haridas Tamore had accompanied the injured to the Hospital at Tarapur. He had also accompanied Arvind firstly to the police station and then to the hospital. PW-3 has specifically admitted in the cross-examination that he had narrated the incident to the police. The police had sent them to Tarapur

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Mhi 4 Cri-Appeal-401-07 (copy).sxw Government Hospital. The doctor at Tarapur examined Arvind and immediately referred him to Dahanu Hospital. As the doctors at Tarapur were unable to give proper treatment, the condition of Arvind had deteriorated and he was referred to Cottage Hospital Dahanu. According to PW-3, police had accompanied the injured to Dahanu. He was then admitted that police had not recorded statement of Arvind at Tarapur. Since his condition had deteriorated, the doctor had advised them to take Arvind to Bhagwati Hospital. Medical treatment was given by the doctor at Dahanu. In view of this, it is doubtful as to whether the statement of the injured Arvind which is treated as dying declaration and is marked Exhibit 40 was recorded by the Tarapur Police. More so, as the prosecution has not placed on record the medical certificate issued by the doctor at Tarapur. The doctor who was attached to the Primary Health Centre, Tarapur has also not been examined by the production. The prosecution has placed on record the medical certificate issued by Bhagwati Hospital.

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PW-1 is brother of deceased Arvind. According to PW-1 – Prakash Tamore is the brother of deceased Arvind. According to PW-1, they had brought injured Arvind Tamore. He was referred to Dahanu Cottage Hospital. The police van accompanied them from Tarapur to Dahanu. He has not stated that the statement of Arvind was recorded by the police at Tarapur Primary Health Centre. In the cross-examination, PW-1 has admitted that he along with his brother

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Krishna and his wife went to the Police Station Tarapur along with injured who was in the vehicle and the police recorded the statement of the deceased Arvind in the police station. He has categorically admitted that the condition of Arvind was serious when he was taken to Government Dispensary at Tarapur. He has further stated that the condition of Arvind had deteriorated at Dahanu. They were in the Cottage Hospital Dahanu for about 1 to 1-1/2 hour. He has specifically stated that he does not know whether the statement of his brother Arvind was recorded in Dahanu Cottage Hospital. Hence, recording of statement of Arvind at Tarapur which is at Exhibit 40 is shrouded with mystery.

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The statement of the present appellant was recorded under Section 313 of Cr.P.C. On perusal of the statement under Section 313 of Cr.P.C. of the appellant, it is clear that no question was put to the accused that the statement of the deceased Arvind was recorded at Exhibit 40 and that he had disclosed that the present appellant was his assailant. It is pertinent to note that the incriminating circumstance upon which the Court has relied and convicted has not been put to the accused in his statement under Sec. 313 of Cr.P.C.

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In the present case, the question No.8 put to the present appellant is as follows :-

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“Q. 8 : It has further come in evidence that on 2-6-99 P.W.9 A.S.I. Patil visited the cottage hospital Dahanu and after taking opinion of medical officer PW.10 Dr. Vaidya recorded the statement of deceased Arvind vide Exh.40 what you say ? “

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There is no further question put to the accused that the deceased had disclosed to PW-9 that the present appellant is the author of fatal injury. It is further pertinent to note that the question relates to the statement of Arvind recorded at Cottage Hospital, Dhanu. It is apparent on the face of the record that the said statement which is marked at Exhibit 40 is reduced into writing by the Asstt. P.S.I. of Tarapur Police Station according to PW-

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1 & 2. Hence, the question No.8 is a misleading fact put to the accused

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which he could not have answered and he has rightly said that it is false.

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It is further pertinent to note that pursuant to the disclosure statement of the accused, the weapon of assault was seized under Sec. 27 of the Indian Evidence Act. Seizure panchnama shows that there were blood stains on the said weapon. The panchnama is at Exhibit 35. The question No.7 formulated in the statement under Sec. 313 of Cr.P.C. only indicates seizure of the weapon. However, it is not mentioned that there

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were blood stains.

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The Investigating Officer PW-8 has stated that the seized property was sent to C.A. for analysis along with the report and a letter dated 30.6.1999. The evidence of PW-8 was recorded on 23.2.2006 and till then the C.A. Reports were not received. Hence, mere seizure of weapon at the behest of the accused by itself would not be an incriminating circumstance. There has to be a nexus between the seizure of the weapon with the fact that it was the same weapon which was used for causing fatal injury. In the absence of such evidence, it would be unjustified to convict the accused on the basis of the recovery under Section 27 of the Indian Evidence Act.

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In the statement under Section 313 of Cr.P.C., question No.7 reads as follows :-

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“Q.7 It has further come in evidence that P.W.8 A.P.I. Sawant carried out investigation in this crime and arrested you accused. On 8-6-99 you accused Vijay while in police custody made a disclosure statement about the weapon of offence and produced one iron weapon named as Darkhand and seized under panchanama vide Exh. 35. What you say “

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There is no question put to the accused that the said weapon was blood stained. Hence, the recovery by itself cannot be treated as an incriminating circumstance.

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The Apex Court in the case of Shaikh Maqsood vs. State of

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Maharashtra (2009) 6 SCC 583, has held as follows :

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“14. The word generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should' also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. Then whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.”

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In the present case, the accused was not given a notice/opportunity to explain the circumstances that deceased Arvind had made a dying declaration before the Asstt. P.S.I. of Tarapur Police Station that the present appellant is the author of the fatal injury. There was no opportunity given to the accused to explain the circumstance that the weapon which was recovered under Section 27 of the Evidence Act was blood stained and was sent to the chemical analyzer. Therefore, the conviction recorded against the accused would be bad in law. The prosecution has failed to establish the guilt of the accused beyond reasonable doubt. The appellant was in jail from 4.6.1999 to 7.4.2000. He was taken into custody on 28.3.2007 i.e. on the date when the judgment was delivered and since then he is in jail.

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Hence, the judgment and order dated 28.3.2007 passed by the Addl. Sessions Judge, Palghar, in Sessions Case No.88 of 1999 convicting the appellant for the offence punishable under Section 304 Part II of the Indian Penal Code is hereby quashed and set aside. The Appeal is allowed. The appellant be released forthwith, if not required in any other offence.

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(SMT.SADHANA S.JADHAV, J.)

Vijay Narottam Tamore v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vijay Narottam Tamore v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

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