Calcutta High Court (Appellete Side)
Nil Kamal Singh @ Nil Kumar Singh vs State Of West Bengal & Ors on 30 April, 2015
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 366 of 2014
Nil Kamal Singh @ Nil Kumar Singh
Versus
State of West Bengal & Ors.
For the appellant : Ms. Meenal Sinha
For the State : Mr. Manjit Singh
Mr. Pawan Kumar Gupta
Judgment on: 30.04.2015.
Debasish Kar Gupta , J. :
This appeal is directed against the judgment and order of conviction dated December 17, 2013 and sentence dated December 18, 2013 passed by the Ld. Additional Sessions Judge, Fast Track Court, Siliguri, District- Darjeeling in Sessions Case No.10(1)2012, corresponding to Sessions Trial No.10/2012. By virtue of the impugned judgment the appellant was found guilty of the offence punishable under Section 302 of I.P.C. and accordingly convicted thereunder imposing sentence to suffer rigorous imprisonment for life as also to pay fine of Rs.2,000/- (Rupees Two thousand only) and in default to suffer further rigorous imprisonment for 6 (six) months. The appellant was in custody and the period of detention which he had undergone during investigation, enquiry and trial was directed to be set off in accordance with the provisions of Section 428 Cr.P.C. against the term of substantive sentence.
The prosecution case in a nutshell was as under:-
On July 4/5, 2011 at about 12.00 a.m. (night) the appellant came in front of the house of the complainant Smt. Gita Sarkar and asked her husband to come out of the house. The husband of the complainant Dilip Sarkar, since deceased, woke up from sleep and asked the appellant to come on the next day morning. The appellant insisted upon holding a discussion with the deceased at that point of time. The deceased came out of his residence and the appellant drove him to a metalic road at some distance from the house. One Hari Mondal, P.W.4, a neighbour of the deceased, came out of his residence upon hearing the shouting of the appellant. At that point of time the complainant and P.W.4 the aforesaid Hari Mondal were at a distance of about 15/20 feet from the alleged place of occurrence of the incident. The complainant and her neighbours namely, the aforesaid P.W.4 and Uttam Mallick, P.W.3, rushed to the spot. The deceased fell down and told them that the appellant had stabbed him. Attempt was made to apprehend the appellant but he fled away.
Thereafter the complainant took her husband to Batasi Hospital with the help of the neighbours. The doctor of the above hospital referred the matter to North Bengal Medical College & Hospital. According to the complainant, her husband breathed his last on the way to hospital and he was declared dead by the doctor of North Bengal Medical College & Hospital.
A letter of complaint dated July 5, 2011 of the aforesaid complainant was treated as First Information Report bearing F.I.R. No.63/11 dated July 5, 2011, in respect of Kharibari P.S. Case for the year 2011 for initiating a proceeding under Section 302 of I.P.C. against the appellant. Investigation report dated July 5, 2011 under the provisions of Section 174 of Cr.P.C. was prepared by P.W.6. Post mortem over the body of the deceased was done by P.W.5, who was and Assistant Professor of North Bengal Medical College & Hospital. Post mortem report was prepared by the P.W.5. A charge-sheet No.74/11 dated September 22, 2011 was filed in the above case against the appellant under Section 302 of the I.P.C.
The case was transferred to the Court of Additional Sessions Judge, Fast Track Court, Siliguri, District-Darjeeling, by an order of Learned Additional Sessions Judge, Siliguri, District-Darjeeling for disposal. Ultimately, the case was disposed of by the Ld. Additional Sessions Judge, Fast Track Court, Siliguri, District-Darjeeling by passing the impugned judgment and order of conviction and sentence.
It is submitted by Ms. Meenal Sinha, learned Counsel appearing on behalf of the appellant, at the very outset that the guilt of the convict was not proved on the basis of deposition of any eyewitness. According to Ms. Sinha P.W. nos.3, 4, 8 and 9 were not present in place of occurrence and they were at a distance of 15 to 20 feet from the place of occurrence. None of the above witness saw the appellant stabbing of the deceased by the appellant. The P.W.3 saw that there was a quarrel going on between the deceased and the appellant in front of the house of the deceased. The P.W.4 saw that the deceased and the appellant were scuffling with each other. According to his deposition, the deceased came back running towards him and fell down saying that the appellant had stabbed him with a knife. From the deposition of the P.W.8 it was evident that the deceased was lying on the road and his wife was holding him. He further saw that there was a gamcha tied on the waist portion of the deceased and there was sign of bleeding from the waist portion of stomach of the deceased. According to him, the P.W. nos.3, 4 and 9 told him that the deceased had been assaulted with a knife by the appellant.
It is further submitted by Ms. Sinha that the evidences were purely circumstantial in nature. According to Ms. Sinha the circumstances from which the conclusion of guilt was drawn had not been fully established. Our attention was drawn to the following facts on the basis of the materials on record:
(i) According to the deposition of P.W.1, the wife of the deceased, she got the information from her husband that he had been assaulted with a knife but the name of the convict was not mentioned by him.
(ii) There was a contradiction with regard to existence of electric pole at the place of occurrence. According to P.W.4, there was existence of an electric pole in front of the house of the deceased.
(iii) There was also contradiction with regard to the nature of the road which was the place of occurrence. According to P.W.3, it was a metal road. But according to P.W.4, it was kaccha road.
(iv) From the deposition of P.W.10, the Medical Officer of Batasi Primary Health Centre, the wound of the deceased was covered and tied with gamcha and he did not remove the same in anticipation of more bleeding.
(v) There was contradiction with regard to places of sustaining injury of the deceased. According to the investigation report prepared under Section 174 of Cr.P.C., there was a cut mark on the chest of the deceased while according to the postmortem report there were three injuries - 1. Abrasion 2" inch x 2 inch front of left shoulder going downward medially. 2. One spindle shaped puncture measuring 1 ¼ inch x 1/3 rd. inch x chest cavity left side of the chest wall 3 inch below the left nipple 2 inch left lateral from midline and 7 inch below the suprastarnal notch, upper end of starnum between the 7 and 8th inter costal space, margin of wound was clean cut with tailing downwards.
(vi) There was contradiction with regard to the cause of death of the deceased. In view of the deposition of P.W.1 read with the deposition of the P.W.5 in course of cross-examination. The cause of death of the deceased might be punctural injury consequent upon falling down of the deceased on a pointed edge of tin.
(vii) There was contradiction with regard to the letter of complaint which was treated as F.I.R. According to P.W.1, it was prepared by the P.W.2 on her instruction. According to P.W.2 he could not recollect the name of person on whose instruction he had written the F.I.R.
(viii) There was contradiction with regard to the vehicle, which was used for removal of the deceased from Batasi Primary Helth Centre to the North Bengal Medical College & Hospital.
According to P.W. nos.1, 3, 4 and 8, the deceased was removed to the hospital in the car of P.W.8 which was "Wagon-R". According to P.W.9, the deceased was removed to North Bengal Medical College & Hospital in ambulance.
(ix) There was contradiction with regard to the time and place of recovery the weapon of offence. According to P.W.9, the police recovered the knife from a tea garden where Nil Kamal had thrown it. According to him, police seized blood stained mud in his presence from the spot on the following day at 6 p.m. He was one of the witnesses of seized article and those seized articles were not produced in Court at the time of his deposition. According to P.W.16, who was the Officer-in-Charge in Kharibari Police Station at the material point of time and the I.O. of the case, the weapon of offence was seized on July 5, 2011 in the morning.
(x) According to P.W.13, Assistant Director, Biology Division of State Forensic Science Laboratory, Government of West Bengal, she had received one sealed cloth covered Card Board Case in connection with the above case containing one paper packet and two envelopes. Another paper packet contained one knife with wooden handle inside the paper packet "A". According to the aforesaid P.W.13, she did not receive any report from the Serologist with regard to the group of blood.
(xi) There was also contradiction with regard to the number of P.W.12 who handed over the seized article with a seizure list to the Kharibari Police Station. He was one of the witnesses of seizure list but the seized articles were not produced before the Court at the time of his deposition.
(xii) The P.W.11 was the photographer. Admittedly, he did not took the photograph of the body of deceased. He took photograph of the place of occurrence with his digital camera. Neither the digital camera nor the relevant C.D was produced in Court. It is also submitted by Ms. Sinha that in case of circumstantial evidence, motive assumes greater importance that in the case where direct evidences for murder are not available. According to Ms. Sinha, each and every incriminating circumstances must be clearly established by reliable and clinching evidence to complete the chain of evidence. Minor scuffling between the deceased and the appellant was not sufficient for convicting the appellant. It is further submitted that no incriminating material had been brought to the notice of the appellant in case of examining him under provisions of Section 313 Cr.P.C. to give a chance to him to give reply. Therefore, according to Ms. Sinha, the motive was not proved beyond doubt.
Ms. Sinha relied upon the decision of Sharad Biridhichand Sarda vs. State of Maharashtra, reported in AIR 1984 SC 1622, Balwinder Singh vs. State of Punjab, reported in AIR 1987 SC 350, Tanviben Pankaj Kumar Divetia vs. State of Gujarat, reported in AIR 1997 SC 2193, Sanatan Naskar & Anr. vs. State of West Bengal, reported in AIR 2010 SC 3570, Bipta Kharia vs. State of W.B., reported in 2012(4) AICLR 579, Tapas Routh vs. State of W.B., reported in 2013(2) AICLR 540, Sukhjit Singh vs. State of Punjab, reported in (2015) 1 SCC (Cri) 76, State of Himachal Pradesh vs. Raj Kumar, reported in (2015) 1 SCC (Cri) 290 and Nagaraj vs. State Rep. By Inspector of Police, Salem Town, Tamil Nadu, reported in 2015 STPL(Web) 189 SC in support of her above submissions.
It is submitted by Mr. Pawan Kumar Gupta, learned junior Government Advocate, High Court, Calcutta, that the guilt of the accused was proved considering the evidences of eye witness. According to him P.W.1 was the wife of the deceased. Assuming that there was paucity of light at the place of occurrence. The appellant was identified by his voice. So the presence of appellant at the place of occurrence was proved. P.W.3 was a neighbour of the deceased. The fact of quarrel was corroborated by his evidence.
It is further submitted by Mr. Gupta that on the basis of the oral dying declaration of the deceased before the P.W.1, the learned Court below passed the judgment and order of conviction and sentence. The above dying declaration was corroborated by the P.W.nos.3, 4, 8 and 9 in their evidences. According to Mr. Gupta all of them were neighbours and as such they were independent witnesses. So far as the place and time of occurrence were concerned, according to Mr. Gupta, the same was proved on the basis of the evidences of P.W.nos.1, 3, 4, 8 and 9. Drawing the attention of this Court towards the provisions of Section 134 of the Indian Evidence Act, it is also submitted by Mr. Gupta that no particular number of witness should in any case to be required for the prove of a fact. The quality of the witnesses is material.
Drawing our attention towards the evidence of the P.W.2, it is submitted by Mr. Gupta that the First Information Report was based on a letter of complaint of P.W.1. The P.W.2 subscribed the above letter of complaint. It was proved by the evidence of the P.W.2. According to Mr. Gupta, the fact of quarrel in between the deceased and the appellant was proved on the basis of the investigation report prepared under Section 174 Cr.P.C., taking into consideration the evidence of P.W.nos.1, 3, 4, 8 and 9.
With regard to the evidence of P.W.11, a photographer by profession, it is submitted by Mr. Gupta that on the basis of the photographs, the place of occurrence was proved.
With regard to the absence of the name of the appellant in the inquest report, it is submitted by Mr. Gupta that it was not necessary in accordance with law.
It is further submitted by Mr. Gupta that the recovery of weapon used in the offence was proved from the evidence of P.W.16 and the same was corroborated by the P.W.9 in his evidence. Though the seized articles were not produced during examination of P.W.9, the same was produced at the time of recording the evidence of P.W.16. Our attention was drawn by Mr. Gupta towards the provisions of Section 27 of the Indian Evidence Act, in support of his above submissions.
It is also submitted by Mr. Gupta that though the name of P.W.13 was not mentioned in the charge-sheet, there was no bar or impediment to produce the above witness by the prosecution after praying for the same before the learned Court below. With regard to the constable number of P.W.14, it is submitted by Mr. Gupta that the same was changed consequent upon his transfer to another police station after the occurrence of the incident.
It is submitted by Mr. Gupta that the relevant questions were put to the appellant in accordance with the provision of Section 313 Cr.P.C.
Finally it was submitted by Mr. Gupta that the sample of blood collected from the body of the deceased was proved on the basis of the sufficiency of material on record.
Mr. Gupta relied upon the decision of Uday Bhan vs. State of U.P. reported in AIR 1962 SC 1116, Kripal Singh vs. State of U.P., reported in AIR 1965 SC 712, Sivaji Sahabrao Bobade vs. State of Maharashtra, reported in AIR 1973 SC 2622, Pedda Narayan vs. State of Andhra Pradesh , reported in 1975 SCC (Cri) 427, Allarakha K. Mansuri vs. State of Gujarat, reported in 2002 CRLJ 1489 (SC), State of U.P. vs. Lekh Raj, reported in 2000 SCC (Cri) 147, Aanwarul Haq vs. State of U.P., reported in (2005) 10 SCC 581, Dalbir Singh vs. State of Haryana reported in 2008 AIR (SCW) 3957, Satbir Singh & Ors. vs. State of U.P., reported in 2009 SC 2163, Alamgir vs. State (NCT Delhi), reported in 2003 SCC (Cri) 165 and unreported judgment dated November 11, 2014 passed in CRA No.2388 of 2014 in support of his above submissions.
We have heard the learned Counsels appearing for the respective parties at length. We have given our thoughtful consideration to the evidence of the prosecution witnesses. The material on record including the First Information Report, investigation report prepared under Section 174 Cr.P.C., rough sketch map with regard to place of occurrence, post mortem report, charges framed against the convict, charge-sheet amongst other materials, for examining propriety of the impugned judgment and order of conviction and sentence.
After due consideration of the evidences of P.W.nos.1, 3, 4, 8 and 9, we do not find that any of them was eyewitness of stabbing deceased by the appellant.
For the purpose of examining the claim of the prosecution on the basis of the dying declaration the provisions of Section 32 and sub-Section (1) of the Indian Evidence Act thereof are quoted below:-
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured with an amount of delay or expense which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) when it relates to cause of death. - When the statement is made by a person 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. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
The other provisions of Section 32 of the Indian Evidence Act are not relevant for this case.
Before we proceed to deal with the issue of acceptability of oral dying declaration in this case, it is apposite to refer to the post mortem report which was proved by P.W.5, Dr. Rajib Prasad, Assistant Professor posted at North Bengal Medical College & Hospital at the material point of time. According to him the death was due to anti mortem stab wound on the body of the deceased causing the death. They were as follows:- "HIGH COURT FORM NO. (J) 1
FORM OF HEADING DEPOSITION In the Court of the Additional District & Sessions Judge, Fast Track, 2nd Court, Siliguri Sessions Case No. 10(1) of /12 Present: Smt. Sumitra Roy, Addl. S.J., F.T., 2nd Court, Siliguri Deposition of witness No.5 for the Prosecution taken on oath/solemn affirmation on the 3rd day of May, 2012 My name is Dr. Rajib Prasad, Asst. Professor, N.B.M.C.(H) Matigara.
Son/ of Mr. R.C. Prasad Resident of Naxalbari Police Station Naxalbari My age is 37 year My occupation is Doctor District : Darjeeling.
I am the Assistant Professor, now posted at North Bengal Medical College and Hospital. On 5.7.11 I held one Post Mortem in connection with Matigara P.S.U.O.Case No.509/2011. I held Post Mortem over the body of one Dilip Sarkar, the body was brought and identified by Constable 1534 S. Hembrum.
On holding examination I found the following :
1. Abrassion 2" Inch x 2 inch front of left shoulder goes down-ward medially.
2. Onespindel shaped puncture wound measuring 1 ¼ inch x 1/3 rd. inch x cheastcavity left side of the cheast wall 3 inch below the left mipple 2 inch left lateral from mid line and 7 inch below the suprastarnal notch, (upper end of the starnum) between the 7th and 8th inter costal space, margin of wound is clean cut which tailling down ward medially.
3. On disection there is clean cut fracture of upper border of the 8th rimb and lower border of the 7th rib on the left side with the prenitration of the wall i.e. a hole and perported the lung, pure pericardium.
4. Whole of thora cavity was full of blood with collapse of left lung.
This is my P.M. prepared and signed by me.
In my opinion the death was due to antemortem stab wound. The P.M. report is marked Exbt. 4 Cross-examination :
An advocate declines to cross examine.
Hence allowed.
Cross-examination:
It is a fact I did not mentioned the exact time of the injury in my report.
It is a fact I did not mention the exact time of death of the deceased in my P.M. Report.
It is a fact if a personsfalls on a blunt or roug surface injuries such as abression 2 Inch x 2 Inch front of left may occure. Not a fact that punctual injury found by me will not occure if a person falls on a pointed edge of tin.
D/C by me, Addl. S.J.mF.T.-II, Slg. Addl. S.J., F.T.-II, Slg." It is now well-settled that acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone and every motive to falsehood is silenced. The man is induced by the most powerful consideration to speak only the truth. Since there is no scope of cross-examination, the Court insists that the dying declaration should be of such nature as to inspire full confidence on the Court in its truthfulness and correctness. The another cardinal principle is this that the Court is always under obligation to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. It is also the function of the Court to assert that the deceased was in fit state of mind and had the opportunity to observe and identify the assailant. Once the Court is satisfied with regard to the fulfillment of the above conditions, communication of an oral dying declaration by words or by signs or otherwise will suffice provided the indication is positive and definite.
Reference may be made to the decision of a Constitution Bench in the matter of Laxman vs. State of Maharashtra, reported in (2002) 6 SCC 710 and the relevant portions of the decision are set out below:-
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed in so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.
The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or writing and any adequate method of communication whether by words or by signs or other will suffice provided the indication is positive and definite."
The final opinion of the doctor is that the death was caused due to shock and haemorrhage as a result of ante mortem injuries may occur by the weapon of offence. However, it is necessary to mention that the above opinion was not challenged either before the Trial Judge or before the High Court. Reliance may be made to the decision of Parbin Ali & Anr. vs. State of Assam, reported in (2013) 2 SCC 81 and the relevant portions of the above decision are quoted below:-
"11. The final opinion of the doctor is that the death was caused due to shock and haemorrhage as a result of the ante-mortem injuries in the abdomen caused by sharp weapon and homicidal in nature. The said opinion was not challenged either before the trial Judge or before the High Court. We may fruitfully note here that the said witness had not been at all cross-examined. Whether such a person receiving certain injuries would be in a position to speak or not has not been brought out any where in the evidence. In the backdrop, the testimonies of the witnesses who have deposed in respect of the oral dying declaration are to be scrutinized."
So far as the question of alleged contradiction with regard to the cause of death of the deceased is concerned, according to the deposition of P.W.5, who had prepared the post mortem report, the cause of death was anti mortem stab wound. Though he had deposed in course of cross-examination that it was not a fact that punctural injury found by him would not occur if a person fall down on a pointed edge of tin, no material on record is available with regard to the fact of falling down of the deceased on a pointed edge of tin. From the deposition of P.W.1, the wife of the deceased, it is evident that she denied that the deceased and the appellant fell down on the road. Further from the recording of deposition of the appellant under Section 313 of Cr.P.C. (Question no.23 and the answer thereof), it appears that the evidence of P.W.5 to the effect that "the death of the deceased was due to antimortem stab injury" was brought to his knowledge. It was merely denied by the appellant. No prayer was made to adduce evidence against the above opinion of the P.W.5, who had prepared the post mortem report.
There is no reason to disbelieve the dying declaration made by the deceased to the witness concerned. In the event their residence of the same village and are natural witnesses to the dying declaration made by the deceased. Reference may be made to the decision of Pothakumari Srinivasulu vs. State of A.P., reported in (2002) 6 SCC 399 and the relevant portions of the decision are set out below:-
"7. We find no reason to disbelieve the dying declaration made by the deceased to the witnesses PWs 1, 2 and 3. They are all residents of the same village and are natural witnesses to the dying declaration made by the deceased. No reason is assigned, nor even suggested to any of the three witnesses, as to why at all any of them would tell a lie and attribute falsely a dying declaration to the deceased implicating the accused-appellant. Though each of the three witnesses has been cross- examined but there is nothing brought out in their statements to shake their varacity."
Considering the impugned judgment we find that the dying declaration was made to the P.W.1 who was the wife of the deceased. Such declaration was corroborated by P.W.nos.3, 4, 8 and 9 who were the residents of the local area. The above dying declaration was made immediately after the incident of a scuffling in between the deceased and the appellant at a distance of about 15 to 20 kilometers from the place where the P.W.nos.3, 4, 8 and 9 were present at the material point of time. The learned Court below took into consideration the injuries mentioned in the post mortem report and corroborating evidences of P.W.no.1, 3, 4, 8 and 9. Further the learned Court below took into considerations the evidence of P.W.10 who was the medical officer of Batasi Primary Health Centre. It is equally true that the condition of the deceased had been deteriorated at the time of his removal to the Batasi Primary Health Centre and he could only express his pain arising out of the injuries sustained by him within a short period of time. He was declared dead by the P.W.5, who was the Assistant Professor at North Bengal Medical College & Hospital at the material point of time. Therefore, taking into consideration the proposition of law settled by the Hon'ble Supreme Court in the matter of Puran Chand vs. State of Haryana, reported in (2010) 6 SCC 566, we are of the opinion that there is no scope of interfering with the observations made by the learned Court below for accepting the dying declaration of the deceased. The relevant portions of the decision are set out below:-
"17. Again, it is extremely difficult to reject a dying declaration merely because there are few factual errors committed. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis or conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned. We have tested the dying declaration with all these factors in mind and we are satisfied that even the trial court and the appellate court have fully satisfied themselves in respect of the acceptability of this dying declaration.
18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused. This Court is Sham Shankar Kankaria v. State of Maharashtra has taken stock of the following cases where the principles governing dying declaration have been laid down:
(i) Paniben v. State of Gujarat
(ii) Munnu Raja v. State of M.P.
(iii) State of U.P. v. Ram Sagar Yadav
(iv) Ramawati Devi v. State of Bihar
(v) K. Ramachandra Reddy v. Public Prosecutor
(vi) Rasheed Beg v. State of M.P.
(vii) Kake Singh v. State of M.P.
(viii) Ram Manorath v. State of U.P.
(ix) State of Maharashtra v. Krishnamurti Laxmipati Naidu
(x) Surajdeo Ojha v. State of Bihar
(xi) Nanhau Ram v. State of M.P.
(xii) State of U.P. v. Madan Mohan and
(xiii) Mohanlal Gangaram Gehani v. State of Maharashtra."
The learned Court below relied upon the evidences of P.W.no.3, 4, 8 and 9, who were independent witnesses, because they were the resident of the locality concerned. We are of the view that there was no legal impediment to make it the sole basis of conviction.
It is the settled proposition of law that the Court while passing an order of conviction on the basis of a dying declaration look for some corroborating evidences only in the event there exists any suspicion as regards correctness or otherwise of such dying declaration. Reference may be made to the decision of Ranjit Singh & Ors. vs. State of Punjab, reported in (2006) 13 SCC 130 and the relevant portions of above decision are set out below:
"13. It is now well settled that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence. It is also well known that in a case where inconsistencies in the dying declarations, in relation to the active role played by one or the other accused persons, exist, the court shall lean more towards the first dying declaration than the second one."
On the basis of the discussion and observations made hereinabove, there was no suspicion in the mind of the learned Court below with regard to correctness or otherwise of such dying declaration. Therefore, there was no impropriety on the part of the learned Court below to pass the impugned judgment and order of conviction and sentence in this case.
With regard to the submission of Ms. Sinha that no incriminating material had been brought to the notice of the appellant in course of his examination under Section 313 Cr.P.C., we have found that the learned Court below took into consideration the injuries sustained by the deceased as appeared from the post mortem report and the remarks recorded in the above report that "Death was due to the Ante-Mortem stab wound". Considering the injuries mentioned in the above post mortem report and the dying declaration of the deceased as evident from the depositions of P.W.1 and corroboration of the above as appeared from the evidences of P.W.nos.3, 4 and 9, we find no substance in the above submissions. Necessary to point out that in course of recording his statements under Section 313 of the Cr.P.C. had not putforth any substantial plea except a bald denial and chose not to adduce any evidence.
In the above facts and circumstances, we are of the view that the above objection is not sustainable in law on the basis of the decision in the matter of Parbin Ali vs. State of Assam, reported in (2013) 2 SCC 81 and the relevant portions of the above decision are quoted below:-
"4. The accused abjured their guilt and desired to face the trial. During the trial, the prosecution, in order to establish its case, examined nine witnesses and brought on exhibit number of documents. After completion of the prosecution evidence, the accused persons were examined under Section 313 CrPC. They had not put forth any substantial plea except a bald denial and chose not to adduce any evidence."
On the basis of the discussions and observations made hereinabove that the learned Court below passed the impugned judgment and order of conviction and sentence relying upon the dying declaration of the deceased made to the P.W.1, his wife. The decisions of Sharad Biridhichand Sarda (supra), Balwinder Singh (supra) and Tanviben Pankaj Kumar Divetia (supra), have no manner of application in this case. All the aforesaid judgments deal with the procedure to be followed while the judgment and the order of conviction and sentence are passed relying upon the circumstantial evidence.
The decision of Bipta Kharia (supra), Tapas Routh (supra) and Raj Kumar (supra) are also not applicable in this case. In view of the distinguishable facts and circumstances in the case in hand the learned Court below took into consideration the evidence to the P.W.1 which was corroborated by the P.W.nos.3, 4, 8 and 9, who were the local residents having no individual interest involved in this case. There was corroboration of the post mortem report and the deposition of P.W.10, who was the medical officer and prepared the post mortem report.
As discussed hereinabove, weapon of offence was produced in Court before the P.W.16. The above evidence was corroborated by P.W.9. The learned Court below arrived at a conclusion that the weapon of offence was put in accordance with the provisions of Section 27 of the Indian Evidence Act. Therefore, the decision of Sanatan Naskar (supra) has no manner of application in this case.
The decision of Sukhjit Singh (supra) and Nagaraj (supra) do not help the case of the appellant in view of the dying declaration of the deceased before the P.W.1 and corroboration of the same taking into consideration the remarks of the medical officer available in the post mortem report. Needless to point out here that in view of the principle of law settled in the matter of Parbin Ali (supra), the above decisions have no manner of application in this case taking into consideration that in course of recording the statements of the appellant under Section 313 of Cr.P.C, the appellant did not putforth any substantial plea save and except a bald denial and also chosen not to adduce any evidence.
In view of the observations made hereinabove we do not find any substance in the submissions made by Ms. Sinha. The circumstances from which the conclusion of guilt was drawn cannot be interfered with.
We are, therefore, not inclined to interfere with the impugned judgment and order of conviction and sentence.
This appeal is, thus, dismissed.
Let the Lower Court Records be sent to the learned Court below expeditiously.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree. ( Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)