Gujarat High Court
State Of Gujarat vs Upadhyay Manojkumar Arvindbhai on 19 December, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/876/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 876 of 1994
with
CRIMINAL REVISION APPLICATION NO. 315 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== STATE OF GUJARAT....Appellant Versus UPADHYAY MANOJKUMAR ARVINDBHAI....Respondent ========================================================== Appearance:
In Criminal Appeal No.876/1994:
MS HARDIK SONI, ADDL.PUBLIC PROSECUTOR for the Appellant MR AD SHAH, ADVOCATE for the Respondent In Criminal Revision Application No.315/1994: MS ARCHANA ACHARYA, ADVOCATE, for the Petitioner MS HARDIK SONI, ADDL.PUBLIC PROSECUTOR for Respondent No.1 MR AD SHAH, ADVOCATE for Respondent No.2 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MR.JUSTICE B.N. KARIA Date : 19/12/2017 COMMON C.A.V. JUDGMENT (PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI) Page 1 of 76 HC-NIC Page 1 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT
1. The challenge in Criminal Appeal No.876/1994, preferred by the State of Gujarat is to the judgment and order dated 30.04.1994, passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.58/1991, whereby the respondent original accused has been acquitted of the charge under Section 302 of the Indian Penal Code, 1860 ("the IPC").
2. The original complainant has also assailed the above referred judgment in Criminal Revision Application No.315/1994.
3. The case of the prosecution, in brief, is that respondent Manojkumar Arvindbhai Upadhyay and Dilip Chandulal Modi (the deceased) were living in the same neighbourhood and were friends. On 03.07.1989, the deceased left his house at 8:00 PM. At about 8:45 PM, his father Chandulal Manilal Modi (PW1) received information that his son had got injured. Respondent No.1 came home and said that "Modi's son" (deceased) had beaten him. Hence, PW1, the complainant and father of the deceased came to know of the incident. PW1 immediately went to Municipal Page 2 of 76 HC-NIC Page 2 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT Hospital, Sidhpur, along with his son. When he reached there, the Police personnel were lifting his son out of an autorickshaw. He went near his son and saw that he was injured near his stomach. When his son was being taken into the Hospital on a stretcher, he asked him how he got injured and his son (the deceased) told him that the respondent had stabbed him with a knife. His son was treated there but the Doctor advised that he should be immediately taken to Ahmedabad for treatment. While they were going to Ahmedabad, between Maktupur and Unjha, the vehicle got spoiled. The deceased was taken to the Government Hospital, Unjha, in another jeep.
However, when they reached the Hospital at Unjha, the Doctor informed him that his son Dilip had passed away. The body of Dilip was taken back to Sidhpur Hospital and his father filed the complaint before the Police Inspector Shri U.C.Thakur, which was registered. The Investigating Officer visited the spot and the Inquest Panchnama was prepared. Statements of witnesses were recorded. On information received Page 3 of 76 HC-NIC Page 3 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT from the respondent, the knife, which was the weapon of offence, was seized and sent to the Forensic Science Laboratory (FSL). As the Investigating Officer, Shri U.C.Thakur, was transferred, the investigation was handed over to Police Sub Inspector Shri B.R.Thakur. Upon completion of investigation, a Chargesheet against the respondent was filed in the Court of Judicial Magistrate, First Class, Sidhpur, under Section 302 of the IPC. As the offence was triable by a Court of Sessions, the learned Magistrate committed the case to the Sessions Court. The Sessions Court framed the charge against the respondent at Ex.7, which was read over and explained to him. The respondent denied his guilt and claimed to be tried. Accordingly, the case was put to Trial.
4. In his statement under Section 313 of the Criminal Procedure Code, 1973 ("the Code"), the respondent denied his guilt and stated that on Monday, the 3rd of July, 1989, at about 8:45 PM, he was standing in front of Vedwada when Dilip (the deceased) came from his house and told him Page 4 of 76 HC-NIC Page 4 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT to come for a walk. Both of them went for a walk and reached Jhampli Pole. There Dilip met another friend whom he neither recognizes nor knows the name of. After walking for some time, they reached the Naaka (gate) at Saifipura. It was dark there. He told Dilip that it was dark but Dilip said there would be light ahead, so they should keep walking. When they were at the Naaka at Saifipura, in the dark, Dilip asked him why he had spoken to his brother. He asked Dilip what he was referring to, as he did not know anything. At that time Dilip and his friend started giving him fist blows on his stomach, due to which he suffered unbearable pain. Dilip took out a knife and gave him a knife blow. When Dilip was in the process of giving the second knife blow, he caught hold of Dilip's hand. There was a scuffle, pulling and pushing. Dilip wanted to get his hand released while he kept on holding his hand. In this pulling and pushing to and fro, Dilip may have sustained an injury with the knife, regarding which he cannot say anything as it was dark. When Dilip's hand got Page 5 of 76 HC-NIC Page 5 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT released, he ran home, frightened. On the way, near Vedwada, he (respondent) met a relative who asked him what had happened, to which he replied that Dilip had hit him and he should be taken to the Hospital. At the Hospital, the Doctor treated him. He was vomiting and suffering from great pain in his stomach. In the meanwhile, the Police Sub Inspector came and asked him what had happened, to which he replied that Dilip had hit him. He did not give any other complaint. The PSI told him to sign on a paper, saying that otherwise he would be sent to Jail. He was, therefore, made to sign on the paper but does not remember how many signatures he appended on it. He states that he had his blood group checked and the report is being placed on record.
5. In support of its case, the prosecution examined as many as twelve witnesses and produced documentary evidence. No defence witnesses were examined.
6. The Trial Court, after appreciating the oral and Page 6 of 76 HC-NIC Page 6 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT documentary evidence on record, rendered the judgment of acquittal in favour of the respondent by recording detailed reasons.
7. Assailing the said judgment, Mr.Hardik Soni, learned Additional Public Prosecutor, submitted that the prosecution is not required to prove the presence of the accused which is already proved by his statement under Section 313 of the Code. The accused has admitted there was a scuffle between him and the deceased and the knife could have injured the deceased in the said scuffle. A crosscomplaint has also been filed by the respondent against the deceased at Mark 13/8 which ought to have been exhibited by the learned Judge.
8. That, though the eyewitness has turned hostile, two Police witnesses, namely PWs3 and 4 were on duty on the date and time of the incident. They were approached for help by the deceased and had taken him to the Hospital. The deceased has given a Dying Declaration before PW3, in the presence of PW4. The motive for the crime was Page 7 of 76 HC-NIC Page 7 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT that the deceased was writing bad letters to the sisterinlaw (Bhabhi) of the respondent, which was also disclosed by the deceased. The evidence of PWs3 and 4 regarding the oral Dying Declaration given by the deceased ought to have been believed. However, the learned Judge has discarded the testimonies of PWs3 and 4 without recording cogent reasons.
9. That the injury received by the accused is minor in nature and no vein has been cut, whereas the injury received by the deceased proved fatal.
10. That the map of the Scene of Offence (Ex.30) shows the place where blood was found. The observation of the Trial Court that the deceased took more than ten to fifteen minutes to reach the Police officials, therefore he could not have been in a position to give an oral Dying Declaration looking to the nature of his injuries, is not correct. The map shows that the deceased could have reached the Police personnel even in an injured state, given his oral Dying Declaration.
Page 8 of 76 HC-NIC Page 8 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT
11. That it is a case of circumstantial evidence and the prosecution has been successful in proving the chain of circumstances, including motive for the crime which is the alleged harassment of the Bhabhi of the respondent by the accused.
12. That the bloodstained knife has been recovered at the instance of the respondent. The Serological Report indicates that human blood of BGroup was found on the knife. The clothes of the accused and the deceased were also found stained with human blood of BGroup. The involvement of the respondent is thus proved.
13. That the FIR, at Mark 13/8, lodged by the respondent was lodged prior in point of time. It should therefore have been exhibited as it was admitted by PW12, the Investigating officer. The learned Judge has erred in law in accepting the objection of the defence counsel and not exhibiting the same. When the FIR was registered, PW12 was not aware that the respondent had inflicted a blow on the deceased, therefore, the provisions of Section 162 of the Page 9 of 76 HC-NIC Page 9 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT Code would not come in the way to prevent its exhibition, as stated by the Trial Court. When PW12 reached the Hospital he did not meet the deceased, his relatives or even PWs3 and 4, who had brought the deceased to the Hospital. It cannot therefore be said that investigation had started into the incident when the cross complaint by the respondent was registered.
14. That, though the Panch witnesses of the Discovery Panchnama did not support the case of the prosecution, however, on this aspect, reliance can be placed upon the testimony of the first Investigating Officer, PW11. From his testimony it is clear that the knife was recovered at the behest of the respondent, which is another incriminating circumstance against the respondent.
15. That the respondent has himself been injured, therefore, his involvement in the incident is established. In the case history recorded by the Medical Officer, it has been stated by the respondent that he was assaulted by the deceased Page 10 of 76 HC-NIC Page 10 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT with the knife.
16. That the learned Judge has not appreciated the evidence on record in proper perspective and has arrived at a wrong conclusion by recording the acquittal of the respondent. The judgment and order of the Trial Court, being illegal and perverse, deserves to be quashed and set aside and the appeal allowed.
17. Learned Additional Public Prosecutor has made submissions regarding the evidentiary value of the statement of the accused under Section 313 of the Code, to support which he has relied upon the following judgments:
(1) Khairuddin And Others v. State of West Bengal - (2013)5 SCC 753 (2) N.V.Subba Rao v. State, Through Inspector of Police, CBI/ SPE, Visakhapatnam, Andhra Pradesh - (2013)2 SCC 162
18. In support of his submission that the provisions of Section 162 of the Code would not come in the Page 11 of 76 HC-NIC Page 11 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT way of exhibiting the FIR filed by the respondent, learned Additional Public Prosecutor has relied upon a judgment of the Supreme Court in Satish Narayan Sawant v. State of Goa - (2009)17 SCC 724
19. Ms.Archana Acharya, learned counsel appearing for the complainant, Shri Chandulal Manilal Modi, father of the deceased and the revision petitioner, has submitted that the complaint at Mark 13/8 made by the respondent against the deceased, has illegally not been exhibited by the learned Judge. When PW12 reached the Hospital, the deceased had already been shifted to Ahmedabad. He found the respondent there and recorded the FIR at Mark 13/8. As this FIR has been registered prior in point of time, it cannot be said that investigation had commenced regarding the incident involving the deceased. Hence, there was no legal impediment in the way of the Trial Court to decline exhibiting the FIR.
20. That it is evident from the material on record, Page 12 of 76 HC-NIC Page 12 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT as also from the complaint given by the respondent, that there was a quarrel between the deceased and the respondent. That being so, the knife would be in the body of the deceased or at the place of incident. However, it is stated that the knife has been discovered. Under the circumstances, it cannot be said that the knife was discovered. Learned counsel for the revision petitioner has taken the Court through the contents of Section 27 of the Indian Evidence Act, 1972 ("the Evidence Act"). She has further submitted that though the Panch witnesses of the Discovery Panchnama have turned hostile, they have admitted their signatures on the Panchnama meaning thereby according to her, that they have admitted the contents of the Discovery Panchnama.
21. Ms.Acharya has further submitted that human blood of BGroup was found on the knife, which goes against the respondent. PW10 Dr.Rajesh Vrajlal Shah, has deposed that the injury suffered by the respondent could have been self inflicted and the respondent's injury was a Page 13 of 76 HC-NIC Page 13 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT simple one. Though PW5 Kasambhai Pirubhai Belim, the sole eyewitness, has turned hostile, however, his statement can be compared with the explanation given by the respondent in his statement under Section 313 of the Code. PW5 has stated that on the day of the incident at about 9:00 AM, he heard certain sounds of an altercation between two or three boys. This shows that there was an altercation between the respondent and the deceased.
22. That the oral Dying Declaration given by the deceased before PWs3 and 4 ought to have been considered by the Trial Court. There is also another oral Dying Declaration by the deceased before his father. These two declarations have been discarded by the Trial Court without assigning any cogent or legally accepted reasons.
23. On the basis of the above submissions, learned counsel for the revision petitioner submits that the revision be allowed and the judgment and order of the Trial Court acquitting the Page 14 of 76 HC-NIC Page 14 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT respondent be quashed and set aside and he may be held guilty of causing the death of the deceased.
24. On the point of oral Dying Declaration, learned counsel for the revision petitioner has relied upon the judgment of the Supreme Court in the case of State of Maharashtra v. Nisar Ramzan Sayyed - (2017)5 SCC 673 and Vijay Pal v. State (Government of NCT of Delhi) - (2015)4 SCC 749.
25. On the point of completion of the chain of circumstantial evidence, reliance has been placed upon Dasin Bai Alias Shanti Bai v. State of Chhatisgarh - (2015)4 SCC 186 and Khim Singh v. State of Uttarakhand - (2014)12 SCC 562.
26. On the point of Section 25 of the Evidence Act and the extent to which a confessional statement can be relied upon, learned counsel for the revision petitioner has relied upon Bheru Singh s/o. Kalyan Singh v. State of Rajasthan - 1994(2) GLH 304 and Ajitsingh Harnamsingh Gujral v. State of Maharashtra - (2011)14 SCC Page 15 of 76 HC-NIC Page 15 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT
401.
27. Mr.A.D.Shah, learned counsel for the respondent, while strongly opposing the submissions advanced by the learned Additional Public Prosecutor and the learned counsel for the revision petitioner, has submitted that the present is a case of acquittal after thorough appreciation of evidence. The case of the prosecution rests on two oral Dying Declarations and the socalled discovery of the weapon. However, both the oral Dying Declarations cannot be believed and the discovery of the weapon is not in consonance with the provisions of Section 27 of the Evidence Act. No motive has been brought on record for the commission of the crime. The Trial Court has appreciated the entire evidence thoroughly and in proper perspective, supported by cogent reasons. The prosecution has failed to prove its case beyond reasonable doubt, therefore, the judgment of acquittal does not deserve to be interfered with.
28. That the oral Dying Declarations purported to Page 16 of 76 HC-NIC Page 16 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT have been made by the deceased to PW3 in the presence of PW4 as well as to his father, become highly doubtful, looking to his medical condition which was so serious that he would not have been in a position to make the said declarations. It has come in evidence that the place where PWs - 3 and 4 were standing is at a distance of a quarter kilometer from the place where the deceased was injured. As per the evidence of the Doctor, the nature of the wound is such that the deceased would be bleeding profusely and would have gone into a state of shock after ten to fifteen minutes. He could not possibly have walked that distance in a grievously injured condition or been in a position to make an oral Dying Declaration before the said witnesses.
29. That PW1, the complainant and father of the deceased, has stated that he reached the Hospital when his son was being lifted out of an autorickshaw and taken in a stretcher into the Hospital. It is then that he purportedly gave the Dying Declaration to his father. This is not Page 17 of 76 HC-NIC Page 17 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT believable as enough blood had been lost by the deceased at that point of time. The evidence of PW10, Dr.Rajesh Vrajlal Shah, makes it clear that the deceased was only half conscious when he was brought to the Hospital and his pulse was extremely feeble. His bloodpressure was so low that it could not be recorded and he was in a state of total exhaustion. The Doctor has stated that with such an injury, the deceased would come into a state of shock within ten to fifteen minutes. The oral Dying Declaration has, therefore, rightly been believed by the Trial Court.
30. That, had an oral Dying Declaration been made by the deceased before PW-3 in the presence of PW 4, both these witnesses would have recorded this incident in the Diary given to them to record all vital information. PW3 admits that he has not recorded it in his Diary but states that he is not required to do so and he has just to inform the Police Station Officer regarding the incident. Only thereafter the information is recorded in the Diary. PW3 admits that the Page 18 of 76 HC-NIC Page 18 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT information regarding the deceased coming upto them in an injured condition and giving his Dying Declaration and their taking him to the Hospital was not recorded in the Diary. PW4 differs in his testimony in this regard stating that he and PW3 have recorded the incident in the Diary. However, the Diary has not been produced before the Court. Hence, it is difficult to believe that any oral Dying Declaration was given by the deceased to the said witnesses. Nonproduction of the Diary would necessarily lead to an adverse inference that no such information has been recorded.
31. That, the map of the incident shows blood at two different spots at a distance of ninetyfour feet. There was no blood in between. Had a person received injuries as serious as the ones suffered by the deceased, he could not have travelled this distance without leaving a trail of blood. It has come in evidence that the deceased fell down at the place where PW3 and PW4 were standing. There should have been blood at this spot as well, which is not shown in the Page 19 of 76 HC-NIC Page 19 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT map.
32. That PW12 had reached the Hospital on the basis of the information received by the PSO, regarding the incident involving the deceased. In his examinationinchief, PW12 tries to create an impression that when he reached the Hospital, the deceased had already left for further treatment at Ahmedabad. However, this is belied by the 'Yaadi' (Note) referred to by him in his examinationinchief, which is at Ex.20. It contains the information received from PW3 Shri Shriram Dhondiba, Head Constable, to the effect that they found the deceased with a grievous injury on his stomach and brought him to the Hospital for treatment. PW12 arrived at the Hospital pursuant to this 'Yaadi' and made an endorsement on the said 'Yaadi'. He has written that he has come pursuant to the 'Yaadi' pertaining to the injured Modi Dilipkumar who, due to his injury, is not strong enough to speak and who is required to be transferred immediately to Ahmedabad. As there is no relative with him, his complaint could not Page 20 of 76 HC-NIC Page 20 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT be taken. Mr.A.D. Shah, learned counsel, has urged that when PW12 reached the Hospital the investigation into the offence regarding the injury to the deceased had already commenced. It is only thereafter that PW12 found that the respondent was also admitted in the same Hospital and went to meet him and took his complaint. When PW12 went to the Hospital pursuant to the 'Yaadi' regarding the injury to the deceased, investigation had already commenced. Whatever he has done thereafter, including recording of the complaint of the respondent, was done during the course of investigation. Hence, the objection of the defence against the exhibiting of the complaint of the respondent is valid in law in view of the provisions of Section 162 of the Code. The Trial Court has, therefore, committed no legal error in upholding the said objection and refusing to exhibit the complaint at Mark 13/8. The improvements made by PW12 in trying to show that the deceased had already left the Hospital when he arrived are demolished by his own Page 21 of 76 HC-NIC Page 21 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT endorsement on the 'Yaadi' which is his own contemporaneous record.
33. In support of the submission regarding commencement of investigation, Mr.A.D. Shah, learned counsel, has relied upon the judgment of the Supreme Court in the case of H.N.Rishbud and another v. State of Delhi - AIR 1955 SC
196.
34. Regarding the effect of Section 162 of the Code on a statement made by the accused during the course of investigation, learned counsel has relied upon the case of Soma Bhai v. State of Gujarat - AIR 1975 SC 1453.
35. On the point of discovery of the knife, learned counsel for the respondent has submitted that finding the knife is not important but the knowledge of the respondent regarding the concealment of the knife is of importance. The statement of the respondent relating to his authorship of the concealment of the weapon would be vital for fastening the liability of Page 22 of 76 HC-NIC Page 22 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT such discovery. In the present case, no such statement regarding the authorship of the concealment of the knife is present. The words that "he has concealed the knife which he used to commit the offence" are missing. Therefore, there is no discovery in the eyes of law, as required by Section 27 of the Evidence Act. At best, it can be termed as a case of recovery by the Police as even the Panch witnesses have not supported the case of the prosecution. The evidence regarding discovery, therefore, does not stand the scrutiny of law.
36. In support of the above submission, reliance has been placed upon a judgment of the Supreme Court in the case of Pohalya Motya Valvi v. State of Maharashtra - AIR 1979 SC 1949.
37. It is next submitted by Mr.A.D. Shah that the circumstance that human blood of BGroup was found on the knife and the clothes of the respondent and deceased is of no consequence. The blood group of the deceased was never got determined by the prosecution. On the other Page 23 of 76 HC-NIC Page 23 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT hand, the respondent has got determined his own blood group as stated by him in the statement under Section 313 of the Code. He has placed on record the card containing his blood group, from which it is found that the blood of the respondent is also B Positive Group. As the blood found on the knife and clothes of the deceased and respondent is of B group, it cannot be determined whose blood it is, as both have been injured.
38. That, the prosecution has failed to establish that it was the respondent who had inflicted the blow on the deceased. The reliance placed by the learned Additional Public Prosecutor on the statement of the respondent under Section 313 of the Code is misplaced, in light of the settled position of law that a statement under Section 313 is not a substantive piece of evidence but can only be used to lend credence to the case of the prosecution. At best, it can be said to be akin to a statement of a coaccused but does not have any further evidentiary value. In the present case, the prosecution has failed to Page 24 of 76 HC-NIC Page 24 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT stand on its own legs in order to prove its case, therefore, reliance upon the statement under Section 313, would not establish the guilt of the respondent.
39. In support of this submission, reliance is placed upon a judgment of the Supreme Court in the case of Mohan Singh v. Prem Singh and another - AIR 2002 SC 3582.
40. Lastly, it is submitted that the judgment of the Trial Court, being a result of a proper and legal appreciation of the evidence on record, supported by cogent reasons, may not be disturbed as the view taken by the Trial Court is the most possible and probable one.
41. In the background of the above submissions, we would be required to briefly evaluate the oral and documentary evidence on record.
42. PW1, Chandulal Manilal Modi, the father of the deceased, is the complainant in this case. He states that the respondent lived in his neighbourhood and was a friend of his deceased Page 25 of 76 HC-NIC Page 25 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT son Dilip. On the day of the incident, Dilip left the house at 8:00 PM. At 8:45 PM, he received information that his son was injured. The respondent came to his own home and said that Modi's son (deceased) had hit him. As he heard regarding the incident he went with his other son Raju to the Hospital. On reaching there he saw Dilip being taken down from a rickshaw with an injury on his stomach. When Dilip was being put on a stretcher and taken into the Hospital, he asked him what had happened. Dilip said that the respondent had stabbed him with a knife in his stomach. Thereafter, the deceased was taken inside the Hospital and dressing was done. He was told that the deceased is required to be shifted to Ahmedabad immediately as he is injured grievously. Dilip was taken by him to Ahmedabad in an Ambulance. Between Maktupur and Unjha, the ambulance got out of order and Dilip had to be shifted to the Government Hospital, Unjha, in a jeep. When they reached the Hospital at Unjha the Doctor informed him that Dilip had died. He, Page 26 of 76 HC-NIC Page 26 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT therefore, brought Dilip's dead body back to Sidhpur Hospital and got his complaint recorded at the Sidhpur Police Station.
43. During crossexamination, this witness states that on the day of the incident he had seen the respondent who was bleeding. He then states that he was not bleeding but his clothes were blood stained. He had heard that the respondent was taken to the Civil Hospital but had not seen the injury on his hand. He admits that he has not got recorded in the complaint that the respondent came home and stated that he had been injured by "Modi's son".
44. He further admits that when he reached the Hospital the condition of his son was serious. He denies the suggestion that Dilip could not speak to the Doctor after he went into the Hospital. He states that Dilip's clothes were soaked in blood and blood was still oozing out of his wounds. He denies that when he reached Hospital, Dilip was already under treatment or that he was unconscious and not in a position to Page 27 of 76 HC-NIC Page 27 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT speak.
45. PW2, Jyoti Rasiklal Modi, is the Medical Officer at the Municipal Hospital at Sidhpur. She has conducted the postmortem on the body of the deceased. She has described the external injury suffered by the deceased as per Column No.17 of the postmortem report which are as below:
An Incised wound on anterior abdominal wall, left side 2" above Umbilicus starting from mid line. 2"x 1"x Cavity deep Transverse. A portion of transverse colon is seen outside the wound"
46. This witness states in crossexamination that the injury on the stomach of the deceased was a very serious one, due to which a great deal of blood would have flown. Looking to the said injury and the flow of blood, the patient would go into shock within twenty to thirty minutes of the injury. In the absence of intravenous fluid being administered to the patient immediately, it would be difficult to come out of shock. She further states that in every cases where there Page 28 of 76 HC-NIC Page 28 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT is an injury on the stomach and the intestine protrudes out, it is not necessary that death would result. However, it depends on the flow of blood. If more blood has flown, there is greater possibility of death occurring and if a lesser amount of blood flows, the possibility of death recedes.
47. PW3, Shriram Dhondiba, is the Head Constable before whom the deceased is stated to have made the oral Dying Declaration. As per the deposition of this witness, he and Police Constable Kantibhai Virabhai (PW4) were on duty at 9:00 PM when a boy in a bleeding condition came and fell down on the stone. The boy was wearing a Tshirt with open buttons and his intestines, on the left side, had come out. The boy stated that his name was Dilip Chandulal. Upon asking who had injured him, the boy replied that Manojkumar Arvindbhai had stabbed him with a knife. This witness then asked him why Manojkumar had stabbed him. The boy replied that Manoj had a doubt that he (Dilip) was writing bad letters to his Bhabhi so he had stabbed him. Page 29 of 76 HC-NIC Page 29 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT This witness further deposes that thereafter, he took the injured boy to the Hospital in a rickshaw and informed the Police Station regarding the incident telephonically. From the Hospital, the boy was sent for further treatment to Ahmedabad. The PSI arrived and the boy's father was also present and his complaint was taken.
48. In crossexamination, this witness admits that while he is on a patrolling duty he is given a Diary to note down the details of important incidents. He contradicts himself and states that he is not supposed to note down such incidents in the Diary. He then states that whatever incident occurs is supposed to be reported to the Police Station officer and thereafter noted down in the Diary. This Diary is to be shown to his superiors everyday. He states that he has put in nine years of service and served at Sidhpur Police Station several times. He is aware that the information regarding an injured person is crucial and important. This witness further deposes that the Page 30 of 76 HC-NIC Page 30 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT injured boy fell down near the stone and he saw that he was bleeding profusely. However, he did not see whether any blood was there on the spot, or not. He states that the distance between the place where the boy was injured and where he fell down was about a quarter kilometer. He did not hear any sounds before the boy came and fell down. He states that due to a `Bandh' on that day, there was not much traffic and not many people on the road, through usually there is traffic and movement of people. As a rickshaw was passing by he stopped it. He does not know whether PW4 asked the boy anything. He states that he does not know whether the injured person was breathing fast or slowly but he replied to his questions softly. The injured person gave broken answers but it was not as though he could not understand what he was saying or had to repeat. He states that after the injured was taken into the Hospital he gave telephonic information to the Police Station that a person named Dilip Chandulal Modi, aged 26 years has been brought to the Hospital in a seriously Page 31 of 76 HC-NIC Page 31 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT injured condition and admitted. He admits that he did not inform the Police Station that Dilip had told him that Manojkumar (respondent) had stabbed him with a knife on account of a doubt that he (Dilip) used to write vulgar letters to his Bhabhi. This witness admits that there was no reason for not noting this incident in his Diary.
49. PW4, Kantibhai Virabhai, is the Police Constable who was with PW3 on the night of the incident. He states that when they were on duty at about 9:15 PM, a boy in a bloodied condition came and fell down, stating that he was injured in a fight. The boy had a wound on his stomach and told them to take him to the Hospital. He and PW3 went up to the boy and asked him who had injured him. To this, the boy informed them that his name was Dilipkumar Chandulal Modi and Manojkumar Arvindbhai Upadhyay (respondent) who lives in his Mohalla had stabbed him with a knife in the stomach, as Manojkumar doubted that he was writing bad letters to his Bhabhi. This witness states that they took the injured to the Page 32 of 76 HC-NIC Page 32 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT Hospital in a rickshaw.
50. During crossexamination this witness admits that when on patrolling duty he is given a Diary to note down important events, which is checked. He states that he and respondent No.3 have noted down the incident in their Diaries. According to him, a copy of the Diary was not demanded by the Investigating Officer. He denies that he did not submit the Diary when his statement was recorded but then states that it was submitted along with his statement. This witness states that when they questioned the deceased, he replied slowly but they could hear him. He states that he did not reply in a broken manner. He states that the deceased was bleeding profusely, though he voluntarily states that the injury was a simple one.
51. PW5, Kasambhai Pirubhai Belim, the sole eye witness to the incident, has turned hostile and not supported the case of the prosecution. This witness used to work as a Chowkidar at a place called Mohamadi Manzil at Sidhpur. He feigns Page 33 of 76 HC-NIC Page 33 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT ignorance whether the incident took place during day or night, then states that it took place at about 9:00 PM. This witness states that he heard voices of two or three boys. Some altercation was going on between them but he does not know what it was. He denies that two boys were fighting on the road and one was saying why are you writing letters to my Bhabhi. He further states that he did not separate the two boys.
52. The first Panch witness of the Scene of Offence, Bhogilal Prahladji Raval, has been examined as PW6. He has turned hostile. He admits his signature on the Panchnama Ex.36 but does not admit any of its contents. The same is the case with PW7 Jethuji Nathuji, the second Panch witness of the same Panchnama. This witness has also turned hostile and not supported the case of the prosecution.
53. Similar is the case with the Panch witness of the Panchnama of Discovery of knife. The first Panch witness Chandrakant Bhailal Patel, examined as PW8, has stated that he was called Page 34 of 76 HC-NIC Page 34 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT to the Sidhpur Police Station on 15.07.1989 and shown a knife. Then his signature was taken on the Panchnama. He has admitted his signature but denied the contents of the Panchnama. The other Panch witness of the same Panchnama, Prahladbhai Bhogilal, examined as PW9, has also turned hostile. The discovery of the knife, therefore, could not be proved by their testimonies.
54. Dr.Rajesh Vrajlal Shah, the Medical officer, has been examined as PW10. He states that while he was on duty on 03.07.1989, the deceased was brought to the Hospital in a half conscious state. His pulse was extremely weak and his bloodpressure could not be recorded. On examining him, he found that there was a stab injury admeasuring 2 inch x 1 inch at his naval. His intestines could be seen and food particles were coming out. A great deal of blood was flowing and his clothes were soaked with blood. The injured was transferred to the Civil Hospital, Ahmedabad, for further treatment. The injury had been inflicted about fifteen to twenty minutes before the victim reached the Page 35 of 76 HC-NIC Page 35 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT Hospital and was a serious one. Regarding the respondent this witness states that on the same day, at 9:25 PM, Manoj was brought to him. As per the history given by him, Dilip (the deceased) had inflicted the injury on him. The respondent had an injury below the elbow upto his hand measuring 2 cm x 1 cm which was muscle deep. The injury was bleeding. The patient was complaining of vomiting and stomach ache and was admitted to the Hospital. He was discharged on 14.07.1989. This witness states that the injury sustained by the respondent could have occurred in a scuffle.
55. Regarding the deceased, this witness reiterates in crossexamination that when he was brought to the Hospital, his pulse could not be measured and he was totally exhausted. A great deal of blood had flown from his body. When he was brought before this witness, he had gone into extreme shock. There were traces of mud on his body. The Doctor states that the injury sustained by the deceased could have occurred due to a push during a scuffle.
Page 36 of 76 HC-NIC Page 36 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT
56. PW11, Udayrajsinh Chandrabhan Thakur, was serving as Police Inspector at Sidhpur Police Station. He states that after the registration of the complaint at Sidhpur Police Station, he started the investigation and visited the scene of offence and got the Panchnama prepared. The Inquest Panchnama was also prepared by him and statements of witnesses were taken, including those of Police Head Constable Shriram Dhondiba (PW3) and Police Constable Kantibhai Virabhai (PW4). He states that on 14.07.1989, the respondent was discharged from the Hospital and was arrested. On 15.07.1989, between 8:30 and 9:30 PM, the weapon of offence, hidden by the respondent, was seized upon information supplied by him. The Muddamal knife was sent to the FSL. The respondent gave an FIR to PW12, Imamkhan Bhikhankhan Chauhan, which is at Mark 13/8.
57. This witness states, in crossexamination, that he had come to know that before taking the complaint of the complainant, the respondent had given a complaint before PSI Chauhan. This witness clearly states that when he took the Page 37 of 76 HC-NIC Page 37 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT statement of PW4, the said witness did not submit a copy of the Patrolling book. He further admits that there were a few bloodstains here and there at the place of incident, within a radius of 6 feet x 18 feet. A few stains were found 94 feet away on the road going to Saifipura. He states that he did not consider it necessary to investigate whether there were blood stains at Jhampli Pole. He further admits the he did not ask the Doctor to ascertain the bloodgroup of the respondent.
58. Police Sub Inspector Imamkhan Bhikhankhan Chauhan has been examined as PW12. He states that on 13.07.1989 at 9:45 PM, the Police Station Officer at Sidhpur Police Station gave him a "Yaadi" stating that Dilipkumar has been injured and brought to the Sidhpur Hospital. Pursuant to this "Yaadi", he went to the Hospital. Dilip's condition was serious and he was referred to Ahmedabad for further treatment. As injured Manojkumar was also admitted in the same Hospital, he took his complaint. This witness was shown the "Yaadi" and admitted that Page 38 of 76 HC-NIC Page 38 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT it is the one pursuant to which he went to the Hospital. He states he did not find PWs 3 and 4 at the Hospital but a staff Nurse told him that Dilipkumar had been taken for further treatment. He states that he wrote the complaint on a blank paper and then went to the Police Station and registered the FIR. He reached the Police Station between 9:30 to 9:45 PM. He then corrects himself and states he received the Yaadi at 8:45 PM and reached the Police Station at 10:00 PM. He states that he does not remember whether he informed the Police Inspector that Dilipkumar had been taken to Ahmedabad for further treatment, or not. He, however, states that he made an endorsement on the back of the "Yaadi".
59. The map of the scene of offence is at Ex.30. It shows that the place of incident which is circled with dots, depicting blood stains. At a distance of 94 feet from this spot is the place where the second set of blood stains were found. Between both these places no blood stains are depicted. From the place where the second blood Page 39 of 76 HC-NIC Page 39 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT stain is shown, upto Jhampli Pole where the deceased fell down before PWs 3 and 4, no blood stains are indicated. Neither are blood stains depicted at the spot where PWs3 and 4 were standing.
60. The Serological Report is at Ex.29. It indicates that human blood of BGroup was found on the clothes of the deceased and respondent and on the knife.
61. In the background of the above oral and documentary evidence, we may deal with the contentions advanced by learned counsel for the respective parties.
62. Mr.Hardik Soni, learned Additional Public Prosecutor, as also Ms.Archana Acharya, learned counsel for the revision petitioner and original complainant, have laid stress on the evidentiary value of the statement given by the respondent accused under Section 313 of the Code by submitting that by way of this statement, the presence of the respondent is admitted. He has admitted that there was a scuffle between him Page 40 of 76 HC-NIC Page 40 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT and the deceased. Learned Additional Public Prosecutor has relied upon the judgment in the case of Khairuddin And Others v. State of West Bengal (supra), wherein it has been held as below:
"15. That the statement of an accused made under Section 313, Cr.P.C. can be taken into consideration is not in dispute; not only because of what Section 313 (4) of the Code provides but also because of the law laid down by this court in several pronouncements. We may in this regard refer to the decision of this Court in Sanatan Naskar and Anr. v. State of West Bengal (2010) 8 SCC 249 : (AIR 2010 SC 3570 : 2010 AIR SCW 4445), where this Court observed:
"21. The answers by an accused under Section 313 of the Cr.P.C. are of relevance for finding out the truth and examining the veracity of the case of the prosecution....
22. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.P.C. is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, Page 41 of 76 HC-NIC Page 41 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT in relation to his involvement or otherwise in the crime... Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
23. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) of Cr.P.C. explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
24. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of Page 42 of 76 HC-NIC Page 42 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT the Cr.P.C. as it cannot be regarded as a substantive piece of evidence."
To the same effect is the decision of this Court in Ashok Kumar v. State of Haryana (2010) 12 SCC 350 : (AIR 2010 SC 2839 : 2010 AIR SCW 4651).
16. Reference may also be made to the decision of this Court in Brajendra Singh v. State of Madhya Pradesh (2012) 4 SCC 289 :
(AIR 2012 SC 1552 : 2012 AIR SCW 1865) where this Court said :
"15. It is a settled principal of law that the statement of an accused under section 313 of Cr.P.C. can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under section 313 of Cr.P.C. simpliciter normally cannot be made the basis for conviction of the accused. But where the statement of the accused under section 313, Cr.P.C is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced."
(emphasis supplied)
63. Another judgment pressed into service on the same point is in the case of N.V.Subba Rao v. State, Through Inspector of Police, CBI/ SPE, Visakhapatnam, Andhra Pradesh (supra) wherein it is held as below:
Page 43 of 76
HC-NIC Page 43 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT "44. Finally, it was pointed out by learned counsel for A1 that the statement or answers to the questions under Section 313 of the Code cannot be the basis for conviction of the accused. We have already noted that the prosecution has not only relied on the answers given by the accused but also placed acceptable oral and documentary evidence to substantiate the charge. We hold that the statement under Section 313 of the Code can be relevant consideration for the courts to examine, particularly, when the prosecution has been able to establish the chain of events."
64. Mr.A.D.Shah, learned counsel for the respondent has relied upon the case of Mohan Singh v. Prem Singh and another (supra), wherein the Apex Court has held as below:
"31. The statement of accused under S. 313 of Cr. P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant (supra) by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the Page 44 of 76 HC-NIC Page 44 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under S. 313 of Cr. P.C. cannot be made the sole basis of his conviction.
32. In the present case, the exculpatory part of statement of the accused under S. 313 of Cr. P.C. in which he stated that he was attacked by the deceased and his associate, whereupon the villagers rushed for his help and inflicted injuries on the deceased, cannot be outright rejected as false. The inculpatory part of his statement under S. 313 of Cr.P.C., therefore, to the extent of admission of his presence in the compound of Atma Singh when the deceased was attacked, cannot form sole basis of his conviction."
(emphasis supplied)
65. The crux of the principle of law enunciated by the Supreme Court in the above judgments relied upon by learned counsel for the respective parties is that, though the statement of the Page 45 of 76 HC-NIC Page 45 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT accused under Section 313 of the Code can certainly be taken into consideration, however, it cannot be used as a substantive piece of evidence on which the conviction of the accused could be based. It can be used to lend credence to the evidence led by the prosecution but to say that conviction can rest on the sole statement of the accused under Section 313 would be stretching the principle too far, especially when the evidence adduced by the prosecution does not inspire confidence.
66. In the present case, an attempt is made by the prosecution to prove the presence of the respondent by taking the aid of his statement under Section 313, wherein he has stated that there was a scuffle between him and the deceased, during which the deceased took out a knife and injured him. He caught the hand of the deceased when he was inflicting a second knife blow and in the scuffle and does not know whether the deceased got injured with his own knife. Even if it is taken that the deceased was present when the incident took place, his mere Page 46 of 76 HC-NIC Page 46 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT presence cannot be of any aid to the prosecution unless it proves, beyond reasonable doubt, that it is he who inflicted the knife blow on the deceased. The respondent has also been injured. Though his injury was not so serious as that of the deceased, he was admitted in the hospital for six days. The onus rests upon the prosecution to prove beyond reasonable doubt that it was the respondent who inflicted the fatal blow on the deceased. This onus cannot be discharged by mere reliance upon the statement under Section 313 alone. If the evidence led by the prosecution is insufficient in this regard, even the inculpatory part of the statement under Section 313 would not come to its aid to form the basis of the conviction of the respondent.
67. In the present case, there is no eyewitness who has deposed that it was the respondent who had inflicted the injury on the deceased. Between the respondent and the deceased, who had the knife in his possession, took it out and inflicted the blow cannot be ascertained. The sole eyewitness, PW5, has turned hostile and Page 47 of 76 HC-NIC Page 47 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT not supported the case of the prosecution. The reliance sought to be placed by the learned Additional Public Prosecutor and learned advocate for the revision petitioner on the statement under Section 313 of the Code without there being any other clinching evidence on record is, therefore, misplaced.
68. The next relevant question would be whether the oral Dying Declaration purported to have been made by the deceased before PW3 and PW4 at Jhampli Pole Gate and to his father outside the Hospital, has been wrongly discarded by the learned Judge.
69. On this point, Ms.Archana Acharya, learned counsel for the revision petitioner, has placed reliance on the case of State of Maharashtra v. Nisar Ramzan Sayyed (supra) wherein it has been held as below:
"8. The Medical Officer gave his opinion in the letter issued by PW7ASI Argade, inquiring about the conscious mental state of the deceased while stating the cause of the burn injuries on the victim Page 48 of 76 HC-NIC Page 48 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT wife. The Trial Court has rightly relied on the judgment passed by this Court in Satish Ambanna Bansode Vs. State of Maharashtra, (2009) 11 SCC 217, wherein this court reiterated the principles governing dying declaration which had been elaborately discussed in an earlier decision of Paniben Vs. State of Gujarat, (1992) 2 SCC 474 in para 18. Relevant part of the relied judgment is reproduced herein below:
"14. `..... 12 .... (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja v. State of M.P. (1976) 3 SCC 104]
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See: State of U.P. v.
Ram Sagar Yadav (1985) 1 SCC 552, and Ramawati Devi v. State of Bihar (1983) 1 SCC 211].
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See: K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618].
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg v. State of M.P., (1974) 4 SCC 264.] Page 49 of 76 HC-NIC Page 49 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P., (1981) Supp. SCC 25.]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath v. State of U.P., (1981) 2 SCC 654.]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurti Laxmipati Naidu, (1980) Supp. SCC 455.]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha v. State of Bihar, (1980) Supp. SCC 769]
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram v. State of M.P., (1988) Supp. SCC 152.]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. v. Madan Mohan (1989) 3 SCC 390.]
(xi) Where there are more than one statements in the nature of dying Page 50 of 76 HC-NIC Page 50 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700.]"
9. In our considered opinion the High Court erred in acquitting the respondent herein as the spot Panchnama, being Ext.86, was duly proved by PW11Investigating Officer of the case whereby recovery of kerosene mixed soil, burnt pieces of Saree and Blouse etc. etc. was proved.
... ... ...
15. Astonishingly we have found the dying declarations of the deceased with consistent allegations about demand of dowry and modus operandi of the offence which resulted into the death of the declarant and her minor child. Before coming to the conclusion in the present case, we would like to emphasize on the principle enumerated in the famous legal maxim of the Law of Evidence i.e., Nemo Moriturus Praesumitur mentire which means a man will not meet his maker with a lie in his mouth. Our Indian Law also recognizes this fact that "a dying man seldom lies" or in other words "truth sits upon the lips of a dying man". The relevance of this very fact, though exception to rule Page 51 of 76 HC-NIC Page 51 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT of hearsay evidence, has been discussed in numerous judgments of this Court including Uka Ram Vs. State of Rajasthan, (2001) 5 SCC 254; Babulal & Ors. Vs. State of M.P., (2003) 12 SCC 490; Muthu Kutty & Anr. Vs. State, (2005) 9 SCC 113; Dharam Pal & Ors.
Vs. State of Uttar Pradesh, (2008) 17 SCC 337; Lakhan Vs. State of Madhya Pradesh, (2010) 8 SCC 514."
70. The second judgment cited on the point is in the case of Vijay Pal v. State (Government of NCT of Delhi) (supra), wherein the Supreme Court has held as below:
"17. The submission of the learned counsel for the appellant is that the oral dying declaration lacks intrinsic truth and it does not deserve acceptance. At this juncture we think it appropriate to refer to certain authorities how an oral dying declaration is to be scrutinized.
18. In Laxman v. State of Maharashtra6, the Constitution Bench has held thus:
(2002) 6 SCC 710 : (AIR 2002 SC 2973).
"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 Page 52 of 76 HC-NIC Page 52 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT 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 is 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 crossexamination are dispensed with. Since the accused has no power of crossexamination, 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. ......."
19. The aforesaid judgment makes it absolutely clear that the dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice, provided the communication is positive and definite. There cannot be any cavil over the proposition that a dying declaration cannot be mechanically relied upon. In fact, it is the duty of the Court to examine a dying declaration with studied scrutiny to find out whether the same is voluntary, truthful and made in a conscious state of mind and Page 53 of 76 HC-NIC Page 53 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT further it is without any influence."
71. It is no doubt true that an oral Dying Declaration can be taken into consideration if it meets the requirements of law and inspires confidence regarding its truthfulness and correctness, is not a result of tutoring, prompting or a product of the imagination. Further, it can be considered if an injured person making the Dying Declaration is conscious and in a fit state of mind. In the present case, the oral Dying Declaration purported to have been made by the deceased first in point of time is before PW3, Police Head Constable Shriram Dhondiba in the presence of PW4, Police Constable Kantibhai Virabhai, when they were on duty at Jhampli Pole gate. The deceased is stated to have come there grievously injured and bleeding profusely from an open wound in his stomach out of which his intestines were protruding. He fell down before the two Policemen. According to PW3, the deceased took the name of the respondent as the person who had stabbed him in the stomach because he suspected Page 54 of 76 HC-NIC Page 54 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT that the deceased was writing bad letters to his Bhabhi. According to PW3, though the deceased was speaking slowly and brokenly, he could be understood. Along the same lines is the testimony of PW4. The Policemen then took the deceased to the Hospital where the Doctor found his condition to be extremely serious. His pulse and bloodpressure could not be measured and he was in extreme shock. PW10, Dr.Rajesh Vrajlal Shah has stated that the patient was totally exhausted and would have gone into extreme shock ten to fifteen minutes after the injury. The deceased had lost a great deal of blood and was still bleeding when brought to the Hospital. It has come in evidence that there is a distance of 94 feet from the spot where the incident took place to the place where the deceased met PWs3 and 4. There should have been a trail of blood all along, looking to the fact that the deceased was bleeding profusely and continuously. However, the map of the scene of offence shows blood stains only at two places at a distance of 94 feet from each other. No blood stains are Page 55 of 76 HC-NIC Page 55 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT depicted at the place where the deceased fell down in a bleeding condition before PWs3 and 4. The condition of the deceased, as deposed by the Doctor, who is the medical expert, makes it highly improbable that he would have been in a condition to give an oral Dying Declaration in such detail, also disclosing the motive of the crime.
72. Another salient aspect falsifies the testimonies of PW3 and PW4. PW3 is a Police Constable who had put in nine years of service when the incident occurred. He was well aware of the procedure to be followed when an incident such as this took place. He has admitted that Police personnel are given a Diary when on patrol duty, in which they are required to note down all important events. This Diary is scrutinised by their superiors daily. This witness admits that he would be required to note down an incident such as an injury sustained by a person. He denies having noted the incident regarding the deceased coming to them in an injured condition or making a Dying Declaration disclosing the Page 56 of 76 HC-NIC Page 56 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT name of the respondent and the motive. He falters and wavers in this regard, giving evasive replies. PW4 states that he had submitted the relevant portion of the Diary, along with his statement. The evidence of both these witnesses is falsified by the evidence of PW11, Police Inspector Udayrajsinh Chandrabhan Thakur, the first Investigating Officer, who took their statements. He has clearly stated in crossexamination that PW4 did not submit a copy of the Patrol Diary to him when his statement was recorded. Had the deceased actually disclosed before PW3 and PW4 the identity of his assailant or made an oral Dying Declaration before them, the incident was important and vital enough to have been entered in their Patrol Diaries. No extract from either of the Diaries has emerged on record. Therefore, it is highly doubtful that a Dying Declaration was made by the deceased before them.
73. In the "Yaadi" at Ex.20, the telephonic information divulged by PW3 has been noted and sent to Sidhpur Police Station. The name of the Page 57 of 76 HC-NIC Page 57 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT deceased, along with his age (twenty six years) has been written. The injury has also been described. However, there is no mention of the name of the respondent as being the assailant. If the deceased had told PW3 who had stabbed him, this piece of information would also have been recorded in the "Yaadi". This aspect, as well as the physical condition of the deceased, further raises doubts whether the deceased has made an oral Dying Declaration before PW3 and PW4. The nature of the depositions of PW3 and PW4 show that they are neither truthful nor reliable witnesses and their testimonies cannot be taken at face value. The learned Judge, therefore has, in our view, arrived at the correct conclusion by recording that no reliance can be placed upon the oral Dying Declarations stated to have been made by the deceased to PW3 and PW4.
74. Neither is the oral Dying Declaration purportedly made by the deceased to his father, PW1, worthy of credence. By the time the deceased reached the hospital, he was in a state Page 58 of 76 HC-NIC Page 58 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT of shock. His pulse and bloodpressure could not be recorded as stated by the Doctor. According to PW1, he asked his son what had happened while he was being taken on a stretcher into the Hospital. His son purportedly told him that the respondent had inflicted the injury on his stomach. Looking to the physical condition the deceased was in when he was brought to the Hospital, it is highly unlikely that he could have engaged in a conversation with PW1. The deceased was in a halfunconscious state as per the evidence of the Doctor with no pulse and blood pressure. The conclusion arrived at by the Trial Court that the Dying Declaration purportedly made before PW1 is not reliable, cannot be faulted.
75. Much emphasis was laid by the learned Additional Public Prosecutor and learned counsel for the revision petitioner on the aspect that the Trial Court has erred in upholding the objection taken by the defence against exhibiting the FIR given by the deceased. It was contended by Mr.A.D. Shah, learned counsel for the respondent, that Page 59 of 76 HC-NIC Page 59 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT when PW12 went to the Hospital pursuant to the "Yaadi" regarding the deceased being brought there in an injured condition, the investigation had already commenced.
76. On the aspect when investigation can be said to have actually commenced, learned counsel has placed reliance upon H.N.Rishbud and another v. State of Delhi (supra), wherein the Supreme Court has held as below:
"8. ... ... ...
Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.
Thus investigation primarily consists in the ascertainment of the facts and circumstances Page 60 of 76 HC-NIC Page 60 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in Section 162.
... ... ...
Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure, of things Page 61 of 76 HC-NIC Page 61 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a chargesheet under Section 173. ...."
77. Learned counsel for the respondent has submitted that proceeding to the Hospital pursuant to the "Yaadi", constitutes a step after the commencement of the investigation. When the complaint of the respondent was taken the investigation had already begun, therefore, in view of the provisions of Section 162 of the Code, the complaint has rightly not been exhibited.
78. Learned Additional Public Prosecutor has relied upon a judgment in the case of Satish Narayan Sawant v. State of Goa (supra) and submitted that the view taken by the Supreme Court in the earlier judgment in the case of H.N.Rishbud and another v. State of Delhi (supra), has been considerably watered down in this judgment, Page 62 of 76 HC-NIC Page 62 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT wherein it is stated as below:
"22. The issue with regard to the initiation of the investigation without recording the FIR was succinctly addressed by this Court in the case of State of U.P. v. Bhagwant Kishore Joshi, (1964) 3 SCR 71 : (AIR 1964 SC 221, Para 18), (per Mudholkar J.) observed as follows :
"18. What is investigation is not defined in the Code of Criminal Procedure; but in H.N. Rishbud and Inder Singh v. State of Delhi 1 (AIR 1955 SC 196) this Court has described, the procedure, for investigation as follows :
"8. ..... Thus, under the Code investigation consists generally of the following steps, (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so Page 63 of 76 HC-NIC Page 63 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT taking the necessary steps for the same by the filing of a charge sheet under Section 173.
"This Court, however, has not said that if a police officer takes merely one or two of the steps indicated by it, what he has done must necessarily be regarded as investigation.
Investigation, in substance, means collection of evidence relating to the commission of the offence. The Investigating Officer is, for this purpose, entitled to question persons who, in this opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned by him to writing. He is also entitled to search the place of the offence and to search other places with the object of seizing articles connected with the offence. No doubt, for this purpose he has to proceed to the spot where the offence was committed and do various other things. But the main object of investigation being to bring home the offence to the offender the essential part of the duties of an investigating officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender. Merely making some preliminary enquiry upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. In the absence of any prohibition in the Code, express or implied. I am of opinion that it is open to a police officer to make Page 64 of 76 HC-NIC Page 64 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT preliminary enquiries before registering an offence and making a full scale investigation into it. No doubt, Section 5A of the Prevention of Corruption Act was enacted for preventing harassment to a government servant and with this object in view investigation, except with the previous permission of a Magistrate, is not permitted to be made by an officer below the rank of Deputy Superintendent of Police. Where, however, a police officer makes some preliminary enquiries, does not arrest or even question an accused or question any witnesses but merely makes a few discreet enquiries or looks at some documents without making any notes, it is difficult to visualise how any possible harassment or even embarrassment would result therefrom to the suspect or the accused person. If no harassment to the accused results from the action of a police officer how can it be said to defeat the purpose underlying Section 5A? Looking at the matter this way, I hold that what Mathur did was something very much short of investigation and, therefore, the provisions of Section 5A were not violated. Since no irregularity was committed by him there is no occasion to invoke the aid of the curative provisions of the Code."
23. In the instant case, it is quite clear from the evidence on record that PW1 received the information about the death of the deceased from PSI of Panaji Police Station without any detail as to how the incident had happened and who had caused the incident. It was a very cryptic information Page 65 of 76 HC-NIC Page 65 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT received by him regarding the death of a person residing within the jurisdiction of his police station pursuant to an incident taking place on 10.04.1988 between 8.30 p.m. to 8.45 p.m. and, therefore, it appears that there was not enough information available to him either to get a G.D. entry recorded or to get an FIR lodged."
79. Upon a careful perusal of the judgment in the case of H.N.Rishbud and another v. State of Delhi (supra) as well as the judgment in the case of Satish Narayan Sawant v. State of Goa (supra), we find that this submission of the learned Additional Public Prosecutor is not correct. It cannot be said that in the later judgment the principles of law enunciated by the Supreme Court in H.N.Rishbud have been diluted or watered down to any extent. H.N.Rishbud has been decided by three Honourable Judges of the Supreme Court whereas Satish Narayan Sawant is rendered by two Honourable Judges. The very composition of the Bench strength militates against such an argument. On perusal of the Satish Narayan Sawant judgment, it is obvious Page 66 of 76 HC-NIC Page 66 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT that the later judgment by two Honourable Judges has not diluted or watered down the principle laid down in the earlier judgment rendered by three Honourable Judges of the Apex Court. The judgment in H.N.Rishbud was cited and taken into consideration in Satish Narayan Sawant. However, on the facts of that particular case in Satish Narayan Sawant, the Supreme Court stated that it is not said in the judgment of H.N.Rishbud that if the Police Officer takes merely one or two steps indicated by it what he has done must necessarily be regarded as investigation. In Satish Narayan Sawant, it was clear from the evidence on record that PW21 received information regarding the death of the deceased without any details showing how the incident had happened or who had caused the occurrence. This aspect emerges from Paragraph 23 of the judgment. It is in this context that the Apex Court observed that if a Police Officer takes only one or two steps as indicated it cannot necessarily be regarded as an investigation. However, in the present case, Page 67 of 76 HC-NIC Page 67 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT the full details of the incident had been revealed in the "Yaadi" at Ex.40 by PW3 Shriram Dhondiba. The "Yaadi" discloses the date, time, name and age of the deceased as well as the place where the incident took place. It describes the injury stating that the injured is in a serious condition and has been admitted to the Hospital. Pursuant to this "Yaadi" PW12 arrived at the Hospital and went to the deceased. He has stated that the deceased could not speak and as his near relatives were not present he could not record the statement. It is then that he discovered that the respondent was also admitted to the same Hospital and went to him and took his statement. Though PW12 has made a conscious effort in his testimony to create an impression that when he went to the Hospital the deceased had already been shifted to Ahmedabad but his own endorsement on the `Yaadi' exposes his falsehood and demolishes the improvements made by him in his testimony. The endorsement on the Yaadi further falsifies the version of PW1 who states that he met his son Page 68 of 76 HC-NIC Page 68 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT while he was being lifted out from the rickshaw and taken into the Hospital on a stretcher.
80. It is only after PW12 found that he could not take the statement of the deceased, who was too weak to speak and his near relatives were not with him, that he discovered that the respondent was admitted to the same Hospital. PW12 had gone to the Hospital pursuant to the `Yaadi'. His going to the deceased and finding him in too weak a condition and unaccompanied by any near relative, is a step in the investigation. The very coming of the Investigating Officer to the Hospital pursuant to the `Yaadi' is the commencement of investigation. After the commencement of the investigation when PW12 found he could not take the statement of the deceased he went to the respondent and recorded his complaint at Mark 13/8. The said complaint has clearly been recorded after the investigation pursuant to the `Yaadi' had commenced.
81. In Soma Bhai v. State of Gujarat (supra), Page 69 of 76 HC-NIC Page 69 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT relied upon by learned counsel for the respondent, the Supreme Court has held as below:
"19. Secondly the High Court relied on a complaint made by the accused before the police during the course of investigation which constituted his defence before the police. This is Ext. 102. The Sessions Judge held that this report was admissible in evidence as it was not hit by Section 162 of the Code of Criminal Procedure, but held it to have been given under duress. The High Court has, however, held that as the complaint was regarding a different matter it was not hit by Section 162 of the Code and was clearly admissible in evidence and accordingly the statements made in this document have been used by the High Court in its judgment. Here also we feel that the High Court has committed an error of law. Having read the contents of Ext, 102 we are satisfied that they are closely connected with the facts of the present case which form the subjectmatter of the F.I.R, in this case. It is admitted on all hands that the accused had given this statement to the police after the investigation into the F.I.R, lodged by Ratilal Deva had already started and this was, therefore, clearly a statement made by the accused in the course Page 70 of 76 HC-NIC Page 70 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT of investigation and therefore hit by Section162 of the Code. The High Court was, therefore, not right in holding that Ext. 102 was admissible in evidence. We have, therefore, completely excluded this document from consideration."
82. The principle enunciated in the above judgment is squarely applicable to the facts of the present case as the statement of the respondent in the present case has been taken after the investigation into the incident regarding the deceased had commenced. The conclusion of the learned Judge that the complaint given by the respondent could not be exhibited in view of the provisions of Section 162 of the Code cannot be said to be incorrect.
83. Learned counsel for the revision petitioner has relied upon the judgment in Bheru Singh s/o. Kalyan Singh v. State of Rajasthan (supra). This judgment is regarding Sections 25, 26 and 27 of the Evidence Act read with Section 8 thereof, regarding confession before a Police Officer. The judgment does not appear to be relevant on the facts and circumstances of the Page 71 of 76 HC-NIC Page 71 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT present case, as no confessional statement has been made by the respondent. The case of Ajitsingh Harnamsingh Gujral v. State of Maharashtra (supra), also cited by learned counsel for the revision petitioner, does not appear to be apposite to the legal issues involved in the present case. For this reason, there is no need to discuss both these judgments in detail.
84. We next come to the aspect regarding the discovery of the knife. The Panch witnesses of the Discovery Panchnama have turned hostile. Insofar as the testimony of PW11 the Investigating Officer is concerned, he merely states that on 14.07.1989, the respondent was discharged from the Hospital and arrested. On 15.07.1989, between 8:30 to 9:30 PM, the respondent "gave some information" on the basis of which the weapon, which was concealed at a particular spot, was recovered. This witness does not state a single word regarding the exact words spoken by the respondent or whether he showed his willingness to disclose where he had Page 72 of 76 HC-NIC Page 72 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT concealed the knife with which he committed the crime.
85. In Pohalya Motya Valvi v. State of Maharashtra (supra), the Supreme Court has held as below:
"15. .... More so when it is a confessional statement which becomes admissible under S.27 of Evidence Act though made in the immediate presence of a Police Officer. The recovery of a bloodstained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. And in this case Bhamta was another co accused. The appellant may have only the knowledge of the place where it was hidden. To make such a circumstance incriminating it must be shown that the appellant himself had concealed the bloodstained spear which was the weapon of offence and on this point the language used in the contemporaneous record Ext.28 is not free from doubt and when two constructions are possible in a criminal trial, the one beneficial to the accused will have to be adopted. Therefore, this Page 73 of 76 HC-NIC Page 73 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT linchpin of the prosecution case ceases to provide any incriminating evidence against the appellant."
86. The socalled discovery of the knife in the present case falls woefully short of the requirements of Section 27 of the Act. Hence, it cannot be used as an incriminating piece of evidence against the respondent.
87. Learned counsel for the revision petitioner has made a submission that it cannot be said that there has been a recovery of the knife, as the manner in which the incident took place is such that the knife would have been lying at the scene of offence or would have been in the stomach of the deceased. This submission, to our mind, is a curiously selfdefeating one that goes against the case of the prosecution, rather than aiding it.
88. The next relevant aspect is regarding human blood of BGroup being found on the knife and clothes of the respondent and the deceased. There is no material on record to indicate that Page 74 of 76 HC-NIC Page 74 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT the blood group of the deceased was ascertained. Admittedly, it was not determined. Even assuming that it was of BGroup, as found on his clothes, then the aspect that the respondent also has the same blood group nullifies this piece of evidence. With his statement under Section 313 of the Code, the respondent has submitted the card from Harsiddha Pathology Laboratory dated 14.03.1994, wherein his blood group is stated to be BPositive. It thus transpires that the blood group of the respondent is BPositive. The prosecution is assuming from the blood on the clothes of the deceased that his blood is of B Group. Taking this to be the case, if the blood group of the deceased and respondent is the same, then whose blood is on the clothes and knife is impossible to adjudge, as both were injured and bleeding. Under the circumstances, the Serological Report that blood of BGroup was found on the clothes of the respondent and deceased and the knife further weakens the case of the prosecution.
89. The Trial Court has meticulously discussed each Page 75 of 76 HC-NIC Page 75 of 76 Created On Tue Dec 19 23:18:38 IST 2017 R/CR.A/876/1994 CAV JUDGMENT and every relevant aspect of the evidence in a clear and lucid manner. After a thorough scrutiny of the material on record and a careful consideration of the rival submissions in light of the evidence, we remain in no doubt that the Trial Court has arrived at the correct conclusion after properly applying settled principles of law. The judgment under challenge does not suffer from any legal infirmity so as to warrant interference.
90. Criminal Appeal No.876/1994, therefore, stands dismissed. Consequently, Criminal Revision Application No.315/1994, is also dismissed.
91. Bail Bonds, if any, stand cancelled. The R.& P. be sent back to the Trial Court.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) sunil Page 76 of 76 HC-NIC Page 76 of 76 Created On Tue Dec 19 23:18:38 IST 2017