Damodar Appu Mudliar vs State of Maharashtra

Vishnu Sahai, J.—Through this appeal, the appellant challenges the Judgment and Order dated 23-1-1992 passed by the Vth Additional Sessions Judge, Thane, in Sessions Case No. 513 of 1989, convicting and sentencing him to undergo imprisonment for life, for the offence u/s 302, Indian Penal Code.

In short, the prosecution case runs as under :-

The deceased Ms. Vallarmadi was the daughter of Meera Mudliyar, PW 8 and the wife of the appellant, with whom she was married about four years prior to the incident. After marriage, she lived at various places with the appellant and at the time of the incident was living with him in Balappa Tinappa Sutar Chawl, New Balaji Nagar, Ambernath, Khuntavali, Taluka Ulhasnagar, District Thane. Frequent quarrels used to take place between her and the appellant resulting in her repeatedly coming over and staying with her mother.

On 19-5-1989, at about 10.30 p.m. a quarrel took place between the appellant and the deceased which culminated in the former stabbing the latter and in her coming out from the house. About the said time, Tabika Bhagul PW 2 who was residing behind the house of the appellant, came there and she told her that she was feeling giddy and asked her to call her parents.

Evidence of Dandapanan Mudliyar PW 1 and Meera Mudliyar PW 8, brother and mother of the deceased respectively, shows that at about the said time, a girl from Balaji Nagar came and informed them that the appellant had killed Vallarmadi. On the said information, Dandapanan Mudliyar PW 1 and his father went to the house of the appellant and found the deceased in an injured condition. She was having injuries on stomach, face and on hand. Consequently, they took her to Lapsia Hospital by a auto-rickshaw.

Evidence of Dr. Harish Lapsia PW 5 of Lapsia Hospital shows that Vallarmadi was brought to the hospital at about 10.15 p.m. on 19-5-1989. At that time, she was fully conscious. Her clothes were stained with plenty of blood. She was having the following injuries :-

"1. 1/2" incised wound below left breast.

1/2" incised wound left side of chest, it was bleeding.

With every breath blood plus air bubbles were coming out through the wounds suggestive lung tear.

Incised wound about 1" superficial on abdomen. Such two wounds were there.

Wounds on both forearms one on each forearm about 1/2" superficial."

The said injuries were sufficient, in his opinion, to cause death in the ordinary course of nature.

The evidence of Dandapanan Mudliyar PW 1 and Dr. Harish Lapsia PW 5 also shows that at Lapsia Hospital, Vallarmadi made oral dying declarations in terms that the appellant had stabbed her.

Dr. Lapsia has categorically stated that when he interrogated her as to how she was injured, she candidly told him that her husband had beaten her and had inflicted wounds on her with a knife. She also told him that he used to quarrel with her and his first wife had died due to torture at his hands.

Since Vallarmadi was in a critical condition, Dr. Lapsia advised that she be shifted to a bigger hospital such as Sion Hospital.

Evidence of Dandapanan Mudliyar PW 1 shows that he asked his friend Ram Murthy to bring an ambulance and at the instance of Dr. Lapsia, who had asked him to lodge an F.I.R., proceeded to police station, Ambernath and lodged his F.I.R. there the same night. It was recorded by ASI Govind Salunkhe PW 11 who on its basis registered C.R. No. I 174 of 1989.

Evidence of Dandapanan Mudliyar PW 1 further shows that at police station, Ambernath, his friend Ram Murthy came and informed him that as per doctor''s advise he had taken Vallarmadi to Bombay in an ambulance but, she had died on way to the hospital.

The investigation was conducted in the usual manner by P.I. Sadashiv Manvar PW 10, ASI Govind Salunkhe PW 11 and P.I. Vilas Jadhav PW 12. P. I. Jadhav after completing the same, submitted the charge sheet against the appellant on 21-7-1989.

Going backwards, the autopsy on the corpse of Vallarmadi was conducted on 20-5-1989 at about 7 a.m. by Dr. Kollengode Ram Murthy PW 9 who found on it the following ante-mortem injuries :-

"1. Sutured wound on the chest left side near the nipple, 314" in long oblique in direction in 5th intercostal space.

Sutured wound on the chest on right side near the border with the abdomen 1 Vi" away from the centre horizontal in direction.

Sutured wound on the right hypocondrium 2" below and 2" away from injury No. 2 oblique in direction and 1/2" long.

Sutured wound on the webets space between the right ring finger and the little finger, 3 1/4" in long and horizontal in direction.

Sutured wound 1/4" in long on the distal phalanx of the right middle finger, dorsally."

In the opinion of the doctor, the said injuries were caused by a sharp edged object and were fresh in nature.

On internal examination, the doctor found three cuts in the walls corresponding to injury Nos. 1, 2 and 5, lungs pale; a cut in the lower lobe of left lung corresponding to external injury No. 1; a cut in the wall of the abdomen; and tear in the peritoneum.

The case was committed to the Court of Sessions in the usual manner where the appellant was charged for an offence punishable u/s 302, Indian Penal Code to which he pleaded not guilty and claimed to be tried.

During the trial, in all the prosecution examined 12 witnesses. We may straight away mention that there is no eye-witness of the incident and the conviction of the appellant hinges on three dying declarations made by the deceased on the night of the incident itself to :-

(i) Dr. Harish Lapsia PW 5 at Lapsia Hospital;

(ii) Dandapanan Mudliyar PW 1; and

(iii) Meera Mudliyar PW 8. Defence of the appellant was that of denial.

The learned trial Judge believed the three dying declarations; rejected the defence of the appellant; and convicted and sentenced the appellant in the manner stated in para 1, above. Hence, this appeal.

We have heard learned counsel for the parties and perused the entire material on record. We are implicitly satisfied that the appeal deserves to succeed. In our view, the appellant deserves the benefit of doubt.

As mentioned earlier, the conviction of the appellant hinges on three dying declarations made by the deceased to :-

(i) Dr. Harish Lapsia PW 5 at Lapsia Hospital;

(ii) Dandapanan Mudliyar PW 1; and

(iii) Meera Mudliyar PW 8.

We have no reservations in concluding that the first two dying declarations (i) and (ii) cannot be accepted because, a perusal of the statement of the appellant recorded u/s 313, Criminal Procedure Code shows that they were not put to him. In the oft-referred case of Sharad Birdhichand Sarda Vs. State of Maharashtra, , the Supreme Court in paras 142, 144 and 198 has laid down that a circumstance which has not being put to the accused, in his statement u/s 313, Criminal Procedure Code cannot be used against him and has to be completely excluded from consideration. The said ratio of the Apex Court is binding on us and therefore, we exclude the first two dying declarations as a basis for sustaining the conviction of the appellant for the offence u/s 302, Indian Penal Code.

9A. This leaves us with the third dying declaration namely that made by Vallarmadi to her mother Meera Mudliyar PW 8. Evidence of Meera Mudliyar is that on the night of the incident at about 10.45 p.m. when she went to Dr. Lapsia''s Hospital and asked her about the incident, she replied that the appellant had assaulted her by a knife.

We do not think it safe to sustain the conviction of the appellant on this dying declaration. In her cross-examination, Meera Mudliyar PW 8 stated that Vallarmadi had died on Friday and her statement was recorded on Sunday and till then, she had not disclosed about this incident to anyone.

Not only do we find that Meera Mudliyar''s statement u/s 161, Criminal Procedure Code was recorded after, an unexplained delay but, her conduct in not disclosing the incident to anyone, till her said statement was recorded, to be very unnatural.

The Supreme Court has frowned upon the belated interrogation and the unnatural conduct of a witness very severely in a catena of decisions and has made them sole grounds for not placing reliance on the testimony of witnesses.

These infirmities have to be evaluated in the light of the fact that Meera Mudliyar PW 8 was a highly interested witness whose evidence has to be approached with utmost caution and circumspection. In our view, if Meera Mudliyar''s evidence is approached on the said anvil, it would not be safe to accept the oral dying declaration deposed to by her. In this connection, we would do well to bear in mind the caution given by the Supreme Court, in para 12, of the oft-quoted case of Bhagwandas Vs. The State of Rajasthan, wherein their Lordships have observed thus :-

"12. The other piece of evidence which the prosecution relied upon was the two dying declarations made by Shivlal to Gyaniram PW 4 and Jora P.W. 7. Besides the infirmities which the testimony of these two witnesses (Gyaniram P.W. 4 and Jora P.W. 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 if 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)

Hence, this dying declaration has also to be rejected.

No other trustworthy evidence has been adduced by the prosecution which would bring home the guilt of the appellant for the offence u/s 302, Indian Penal Code.

Tabika Bhagul PW 2 to whom the deceased also made a oral dying declaration immediately after the incident, has been declared hostile and having gone through her evidence we are of the view that it does not merit any acceptance.

Ballappa Sutar PW 3, owner of the chawl. in one of the rooms of which the deceased was residing, has only proved the time of the incident and the factum of the deceased being injured. His evidence does not incriminate the appellant in any manner, although he stated that he told his wife, immediately after seeing the deceased in an injured condition, that the appellant might have assaulted the deceased.

For the said reasons, we feel it safe and prudent to extend the benefit of doubt to the appellant.

In the result, this appeal is allowed. The conviction and sentence of the appellant for the offence u/s 302, Indian Penal Code is set aside. He is acquitted of the said offence. He is in jail and shall be released forthwith unless wanted in some other case.