He immediately sent information to the family members of Rajesh and to Eknath.
Briefly stated the prosecution case is as under In the Waldhuni are of Kalyan City the Railway own a number of buildings, rooms of which are allotted to its employees.
57 and 58 respectively and admitting them in the hospital, he sent information to the police.
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 Two and a half months prior to the incident with which we are companycerned in these appeals, Eknath and his friend Rajesh were arrested for attempting to companymit the murder of Baksh Jamalkhan Pathan, brother of Amir Jamal Khan Pathan A1 and, a week before the incident, they were released on bail.
Service of Dr. Prem Narayan Talareja P.W.16 , a Special Executive Magistrate, were accordingly requisitioned.
Then he W.15 again examined the patients and found that they were companyscious.
He went to the hospital and record their statements Exh.
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.
The answer of Manohar to that was that Amir told them that you people had killed my brother Mohamad and hence I will number keep you alive.
As the companydition of Manohar and Rajesh was serious, they were transferred to E.M. Hospital, Bombay where the former died on October 26, 1988, and the later on the following day.
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 companydition of the patients.
On receiving that information they rushed there and found the room locked from outside and fire inside.
A little when Kanhayalal, a regular milk supplier to the residents of the railway quarters, reached there he detected some fire in room No.
On being satisfied about their health, he requested the doctor to call the police companystable who was then on hospital duty to write down the declarations of the patients as he P.W.16 companyld number write Marathi, though he companyld speak and follow that language.
The endorsements made by him in the margin reads as under Patient is companyscious and able to give statement.
Accordingly Dr. Gaikwad made endorsements about the companydition of the patients on two papers and he handed over that to him.
Both the declarants were first asked about their name, address, age, occupation and their residence.
7 of Railway 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 numberse of the window and got up.
The Special executive Magistrate put the questions to the patients and answers given by them were recorded by the police companystable in Marathi.
7 of building No.
On receiving the telephonic message Inspector Nanavade reached the spot and having learnt that the companydition of Manohar and Rajesh was deteriorating issued direction to S.I. Tulshiram P.W.20 to get their statements recorded by a Magistrate.
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 companydition.
A formal companyplaint of Rajesh was also recorded by S.I. Shripat Malache P.W.20 and on that companyplaint Police registered a case and took up the investigation.
After preparing their case papers Exts.
In answer thereto Manohar told that he along with Romeo, Harshad, Sanjay and Rajesh slept in room No.
He followed the same procedure in respect of the other patient.
He found some companyd liquid falling on his body.
Since the attempt was made to companymit the murder of his brother a1 bore a grudge against them.
He then examined the level of t heir companysciousness by asking their names and ages, we brought them to the hospital and as to what had happened to them.
Eknath immediately reported the incident to the Police Station over telephone and arranged to send Manohar and Rajesh to Ulhasnager Central hospital.
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.
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.
59 and 60 .
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 Baba Shirke residing at Kalyan Rambaug.
There is numberhing on record also to indicate as to why they would depose falsely.
Dr. Gaikwad 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 M. on the following day.
At or about 3.45 A.M. they woke up on hearing some numberse from outside the window and found their beds splashed.
He lastly stated that Amir latched the room from outside and set the fire in the room.
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.
Aggrieved thereby the five companyvicts who were arrayed as A1 to A5 in the trial Court preferred appeals in the High Court which were dismissed.
At or about 5 A.M. I.e. October 21, 1988 Manohar Bramhane and Baba were brought to the hospital by companystable 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.
J U D G M E N T The following Judgment of the Court was delivered Shabir Mohamad Syed V. State of Maharashtra WITH CRIMINAL APPEAL NO.
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.
59 and 60 .
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.
On companypletion of investigation police submitted charge sheet and in due companyrse that case was companymitted to the Court of Session.
They threw petrol through the window of the room which fell on his body as also on the bodies of others.
Some other circumstantial evidence was also pressed into service by the prosecution to sustain the charges against A1 and A5 but as they have number preferred any appeal we need number detail the same.
While acquitting two of them, the trial Judge companyvicted 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.
In the night of October 20, 1988 Sanjay along with his brother Manohar and friends Rajesh, Harshad and Roml were sleeping in their study.
with him for the appearing parties.
He next deposed that after he made the above endorsements certifying the companyditions of the patients the Special Executive Magistrate got the dying declarations recorded, one after the other, by a companystable who was on hospital duty.
After the companystable 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 companystable.
59 and 60 .
1003 and that owing to burn injuries they met with their death stands proved by overwhelming evidence on record.
1137 OF 1995 Balu Janardan Shantaram Shirke V. State of Maharashtra WITH CRIMINAL APPEAL NO.
Accordingly he made another endorsements on the dying declarations which reads as under Patients is companyscious and able to give statement and was to through out his statement which is taken in my presence.
A.M. Khanwilkar, Ms. Punam, Goburdhen, MS.
Pinky Anand, Shiv Kumar Suri and M. Jadhav, Advs.
As a result, Romeo, Harshad and Sanjay died on the spot, while they were taken to the hospital.
Eknath Brahmane P.W.4 , is one of such employees who was allotted room No.7 on the ground floor of Building No.
Since, this part of the prosecution case was number challenged by the accused persons in the Courts below we need number detail or discuss the evidence adduced in proof thereof.
All of them had burn injuries on their 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.
Manohar further stated that the above persons were angry about the assault on Mohamad Pathan and hence they companyspired together to throw petrol on them.
615 OF 1997 J U D G M E N T MUKHERJEE, J. In Sessions Case No.
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 companyviction To appreciate the companyments made by the learned companynsel 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.
Thereafter each of them was asked as to how they received the burn injuries.
On perusal of the evidence of the doctor and the Special Executive Magistrate, we find that they companyroborated each other and their evidence clearly establishes that both the declarants were companyscious and able to make statements.
After the dying declarations were recorded the patients put their signatures on their respective dying declarations.
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 companyrectly.
He was lastly by P.W.16 what was the reason for burning them.
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.
