SHEIKH MEHEBOOB @ HETAK AND ORS.versusSTATE OF MAHARASHTRA

A                  SHEIKH MEHEBOOB @ HETAK AND ORS.                                 -·
                                           v.
                           STA TE OF MAHARASHTRA

                                  MARCH l 0, 2005

B             [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.)                                            ....



         Penal Code, I860-Section 302 r/w Section 34-Prosecution for
   murder-Incident seen by two eye-witnesses-Evidence of one eye-witness
   contradictory to his own police statement, evidence of other eye-witness and
c  that of Investigating Officer, Dying Declaration and Medical Record-
  ·Credibility of Dying Declaration doubtful-Deliberate suppression of first
   Written Report made by the eyewitness-Conviction by Courts below-On
   appeal, held: In view of the contradictions and doubts in the prosecution case,
   the guilt ofthe accused not proved beyond reasonable doubt-Accused acquitted
D giving benefit of doubt.
              Appellants-accused were charged u/s 302 IPC for having caused
    death of a person by setting him on fire. According to PW-2, father of the
    deceased, his son (PW-9) and he had witnessed the incident According to him,                 If
    he extinguished the fire, took the deceased to hospital on a rickshaw, on getting
E   threat at the hospital from the appellants called a police van, thereafter went
    to Police Station and gave a Written Report Dying Declaration of the deceased
    was recorded by Executive Magistrate (PW-4). During Trial, the Written
    Report by PW-2 was suppressed by the prosecution. Despite its production
    was sought, it was not produced. The evidence of PW-2 was in contradiction
    with his police statement and with the statements of PWs 9 and 10 (the
F
    Investigating Officer) and the Dying Declaration. According to PW-9 no such
    incident took place in his presence and hence he was declared hostile. In the
    Dying Delcaration, the words "I kerosene on the body" were deleted. PW-4
    explained that those words were spoken by the deceased, but the version was
    changed after shouting heard from outside. Hence, the words were deleted.
G   In the medical case papers, the burns, at one place, were shown as 'self
    inflicted' and at another as 'accidental'. The contention of the accused was             I
    that failure to produce the Written Report by PW-2 had given rise to an
                                                                                                             r
    adverse inference that, had it been produced, it would have disproved the case
    of the prosecution. Trial Court rejected the contention and relying on the
                                                                                         I
H                                        628
                  SHEIKH MEHEBOOB@ HETAK v. STA TE OF MAHARASHTRA                 629

    Dying Declaration and the evidence of PW-2, convicted the appellants for the          A
    offences charged. High Court upheld the conviction. Hence, the appeal.

             Allowing the appeal, the Court

           HELD: I. The reasoning of the High Court for rejecting the contention
    that failure to produce Written Report by PW-2 gives rise to adverse                  B
    inference, is erroneous. 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, on a
    fair reading of the evidence of PW 2 the sequence of events given by him
    before the Court suggests that he had no idea as to the recording of the Dying        C
    Declaration at all, for he nowhere mentions it. Nor d_oes it appear from his
    evidence that the Dying Declaration was recorded prior to his going to the
    Police Station to lodge his Written Report. (633-D-F]

          2. Evidence of PW-2 as an eye-witness does not appear to be credible.
    A number of inconsistencies between his statement to the police under Section         D
    161 Cr.P.C. 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 PW-2 insisted that he
    had made some statement or had not made such statement, the Investigating             E
    Officer directly contradicts him on the issue. Apart from the contradictions,
    there is contradiction with evidence of the other cited witness PW 9, who flatly
    contradicts PW 2. (633-G-H; 634-A-B]

          3. Who took the deceased to the hospital and extinguished the fire, is
    also a matter of controversy. The evidence of PW-9 and the Dying Declaration          F
    of the deceased in this regard are in contradiction with the evidence of PW-
    2. Investigating Officer admitted that he had made no effort to trace the
    rikshaw driver, who took the deceased to the hospital. The rikshaw driver
    would have been a material witness on the issue as to who accompanied the
    deceased to the hospital. It is not possible to believe that, in a small town, the    G
    police were not able to trace the rikshaw driver, who had carried the deceased
    to the hospital. (634-C-D]
r
         4. Doubts arising from the eye _witness account left too many question
    marks and too many unexplained circumstances, which contra-indicated their
    acceptance without corroboration. Corroboration was available in the form             H
    630                     SUPREME COURT REPORTS                    [2005] 2 S.C.R.

A 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          .1
    reasonable doubt as to the discharge of the onerous burden by the prosecution.
    1634-E-F)

           5. The medical record raises a number of questions, which have not been
B   satisfactorily answered, and which preclude implicit acceptance ofthe·Dying
    Declaration. The Dying Declaration suggests that the neighbours had admitted
    the deceased in the hospital, while PW 2 maintained that it was he, who had
    admitted him to the hospital. As regards the history of the patient given to
    the doctor on duty at the time of admission, PW-2 says nothing about it. The
C   medical record suggests that the uncle of the deceased 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
    "accidenta; burns"; at another place there was history of "self- inflicted
    burns". The Dying Declaration itself indicates that the deceased had started
D   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 stated in th~ first instance, which
    he changed on hearing some shouting from outside. These are some of the
E   circumstances which raise ~erious doubts as to the implicit credibility of the
    dying declaration. 1636-E-H]

          Laxman v. State of Maharashtra, 12002) 6 SCC 710, referred to.

          6. Both the Courts have ignored a number of reasonable doubts which
F   legitimately arose on the evidence led by the prosecution, and its conduct in
    suppressing the vital document and witnesses. The evidence led on record by
    the prosecution does not prove the guilt of the accused-appellants beyond
    reasonable doubt. The appellants are entitled to benefit of doubt. (637-B-C)

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 772
G of2004.
          From the Judgment and Order dated 12.2.2004 of the High Court of
                                                                                        .,
    Juidicature at Bombay, at Nagpur Bench in in Crl.A. No. 369 of 1999.

        Uday U. Lalit, Satyajit Desai, Nitin Sangra, Prasenjit Keswani and
H   Venkateswara Rao Anumolu for the Appellants.
         SHEIKH MEHEBOOB@ HETAK "·STA TE OF MAHARASHTRA [SRIKRISHNA, J J631

--         Mukesh K. Giri for the Respondent.                                            A
           The Judgment of the Court was delivered by

          SRIKRISHNA, J. The appellants, who were convicted for offences
     under Section 302/34 IPC ~by the llnd Additional Sessions Judge, Ako la, and
     whose convictions were affirmed on appeal to the High Court of Judicature           B
     at Bombay, are bdore this Court by special leave.

           According to the prosecution case, a young lad of 20 years, Lal it Kumar,
     was murdered by the three appellants by setting him on fire on 14.3 .1992 at
     about I0.00 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              C
     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         D
     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          E
     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.
                                                                                         F
            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 Jong 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            G
     caught hold of Lal it 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              H
    632                     SUPREME COURT REPORTS                    [2005) 2 S.C.R.

A 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
B   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 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
C   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
D   his "';itten 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
E   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.
F
          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.
G   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
H   us to be unsustainable. While the Sessions Court referred to this contention
       SHEIKJ I MEHEBOOB@ HET AK r. STATE OF MAHARASHTRA [SRIKRJSHNA, J ]   63 3

urged by the defence, it has given no reason for not accepting the contention. A
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, however1
dismissed the contention by taking the view that nothing had been placed on
record, either in cross examination of Hanumandas, or otherwise, to show B
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
                                                                            1
suppressed and withheld by the police.                                           C
      In our view, the reasoning of the IJigh CcJort 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 D
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 E
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 F
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 report.
                                                                                   G
      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 I 61 and his evidence were
thrown up in the cross examination. The contradictions between his evidence
and the evidence of the Investigating Officer (PW JO) make interesting reading.
For every inconsistency between his police statement and his evidence in the       H
    634                       SUPREME COURT REPORTS                  [2005] 2 S.C.R.

A   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
    cuntradicts 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
B   Kumar (PW 9) as an eye witness, no wonder the prosecution was constrained
    to declare Shyam Kumat 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
C   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
D   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.

E         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
F   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
G   credibility of a dying declaration has been I.aid 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.


H   i.    r2002J 6 sec 110.
      SHEIKH MEHEBOOB@HETAK 1·. STATE OF MAHARASHTRA [SRI KRISHNA, .I]    63 5
      The dying declaration (Ex. 49) was recorded at 00:05 hours by the           A
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     B
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      C
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 signature could not be obtained as
his both hands had bum 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.                  D
      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       E
        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        F
"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           G
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,    H
    636                     SUPREME COURT REPORTS                    [2005] 2 S.C.R.

A   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
B   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
C   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
    a11d proved the medical records. When his attention was drawn to the fact
    that the medical record noted that there was "self-inflicted" bums, 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
D   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
    sati~factorily answered, and which preclude implicit acceptance of the dying
    declaration (Ex. 49). First, who admitted Lalit Kumar to the hospital? The
E   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
F   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
G   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 stated in the first instance,
    which hP. changed on hearing some shouting from outside. These are some
    of the circumstances which raise serious doubts as to the implicit credibility
H   of the dying declaration.
      SHEIKH MEHEBOOB @HET AK v. STA TE OF MAHARASHTRA [SRIKRISHNA, J )     63 7
       We have carefully examined the reasons adduced by the Sessions Court        A
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      B
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    C
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.

K.K.T.                                                        Appeal allowed.      D