Madhya Pradesh High Court
Dinesh & Ors. vs The State Of M.P. & Ors on 26 April, 2012
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
CRA No.1444/1996
1
HIGH COURT OF MADHYA PRADESH JABALPUR
SINGLE BENCH:
Hon'ble Shri Justice A.K. Shrivastava
CRIMINAL APPEAL No. 1444/1996
.........Appellants: 1. Dinesh s/o Dorilal Kirar, R/o village
Mahalwara, P.S. Pipariya;
2. Parmeshwar s/o Dorilal Kirar, R/o village
Mahalwara, P.S. Pipariya;
3. Devilal s/o Phoolsingh Kirar, R/o village
Mahalwara, P.S. Pipariya;
4. Halkey Paiya, s/o Dorilal Kirar, R/o
village Mahalwara, P.S. Pipariya;
5. Roshansingh s/o Phoolsingh Kirar, R/o
village Mahalwara, P.S. Pipariya;
6. Charan s/o Dorilal Kirar, R/o village
Mahalwara, P.S. Pipariya;
Versus
.......Respondent : State of Madhya Pradesh through
Police Station Pipariya (M.P.)
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Shri A.K. Jain, Advocate for the appellants.
Shri Akshay Namdeo, Public Prosecutor for the respondent/
State.
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JUDGMENT
(Delivered on this 26th day of April, 2012) Feeling aggrieved by the judgment of conviction and order of sentence dated 23.8.1996 passed by learned Additional CRA No.1444/1996 2 Sessions Judge, Sohagpur in Sessions Trial No.151/92 convicting the appellants under Section 304 Part-II and 452 IPC and thereby sentencing them to suffer 7 years' R.I. and 4 years' R.I. each and fine with defaulting clause as mentioned in the impugned judgment, the appellants have taken the shelter of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
2. In brief the case of the prosecution is that on 23.9.1991 at 8.00 A.M. complainant Bhairon Prasad (hereinafter referred to as "the deceased") was sitting on Takhat in his verandah and was interacting with one Vanshi Kirar on the subject of agriculture produce. At that juncture, appellant Charan Patel having an Axe in his hand, Dinesh with Ballam, Parmeshwar with Pharsa and Halke Bhaiya armed with lathi came there. It is stated that in indecent way Charan Patel interacted with the deceased and asked him why he is using a particular path for the access, upon this, he (deceased) told that not only he but other inhabitants of the village also use that path. Thereafter, by hurling abuse of caste of Brahmin to the deceased, these four accused persons threw him on the ground and started causing injuries by Axe, pharsa, ballam and lathi. After some time, Devilal, Roshan and Phoolsingh carrying lathis in their hands also arrived there and they too caused marpeet to the deceased and when son of the deceased, namely, Awadhesh CRA No.1444/1996 3 Kumar, came to intervene and to rescue his father, it is said that Devilal, Roshan and Phoolsingh dealt blows of lathi to him. On account of causing injuries by the appellants to the deceased and his son Awadhesh Kumar they received injuries. The incident was witnessed by the witnesses Habbimia, Gorelal Kirar and Sattar. After causing injuries to the deceased as well as to his son, all the accused persons fled from the spot.
3. Further the case of the prosecution is that one Rajendra Palia brought the deceased to the police station in his Jeep where the deceased (who was alive at that juncture), himself lodged the report. The wife of the deceased also gave statement that she was also assaulted by the appellants. After lodging of the report, all the injured persons were sent for their medical examination in the hospital.
4. It is the further case of the prosecution that the Investigating Agency took pains to record the dying declaration of the deceased by the Additional Tehsildar J. Kispotta. The deceased who was undergoing treatment in the hospital could not survive and ultimately breathed his last on 1.10.1991 i.e. after eight days of the incident. On account of the death of the deceased, case was altered to Section 302 IPC apart from other offences which were registered against the accused persons.
CRA No.1444/19964
5. After investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the Trial Court for trial.
6. Learned Trial Judge framed the charges punishable under Sections 302, 302/34, 459 and 325/34 IPC against the appellants which they denied and requested for the trial.
7. In order to bring home the charges the prosecution examined as many as 27 witnesses and also placed Ex.P-1 to P-46 the documents on record. The defence of the appellants is of false implication and same defence they set forth in their statement recorded under Section 313 Cr.P.C. However, in support of their defence they did not choose to examine any witness.
8. Learned Trial Judge on the basis of the evidence placed on record came to hold that the charges are not proved against accused Phoolsingh and resultantly he was acquitted from all the charges, however, according to learned Trial Court the appellants have committed the offence under Section 304 Part-II and also under Section 452 of IPC and eventually convicted the appellants and passed the sentence which I have mentioned herein-above. 9 In this manner this appeal has been filed by the appellants assailing their judgment of conviction and order of CRA No.1444/1996 5 sentence.
10. The contention of Shri A.K. Jain, learned counsel for the appellants is that in the present case although several persons were examined as eyewitnesses to the incident but they did not support the case of the prosecution and they were declared hostile. Learned counsel submits that the conviction is solely based upon the dying declaration of the deceased but looking to the two dying declarations the conviction cannot be accorded for the simple reason that both the dying declarations are inconsistent to each other on the material point and if that would be the position, learned Trial Court erred in convicting the appellants. In support of his contention, learned counsel for the appellants has placed heavy reliance on three decisions of the Supreme Court, they are; State of Maharashtra vs. Sanjay s/o Digambarrao Rajhans, (2004) 13 SCC 314, Mehiboobsab Abbasabi Nadaf vs. State of Karnataka, (2007) 13 SCC 112, Samadhan Dhudaka Koli vs. State of Maharashtra, (2008) 16 SCC 705. Hence, it has been prayed that by allowing this appeal the impugned judgment of conviction and order of sentence be set aside and the appellants be acquitted from all the charges.
11. On the other hand, Shri Akshay Namdeo, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned Trial CRA No.1444/1996 6 Judge convicting the appellants and for no rhyme or reason the appellants be acquitted and the appeal be accordingly dismissed.
12. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed.
13. In the present case, all the witnesses cited by the prosecution as eyewitnesses did not support the case of the prosecution and they were declared hostile. Despite they were cross-examined by the Public Prosecutor nothing is carved out from their testimony in order to hold that they have seen the incident. However, merely because they were declared hostile and did not support the case of the prosecution, the appellants are not straightway entitled for acquittal for the simple reason that if the dying declaration is found to be proved and reliable, the conviction can solely be based upon it. Thus, the entire case of the prosecution rests on the pivot of the dying declaration of the deceased.
14. In the present case, the first information report (Ex.P-42) was lodged by the deceased himself and after his death on 1.10.1991 the nature of this document would change to his dying declaration as envisaged under Section 32(1) of the Indian Evidence Act. Apart from this, dying declaration, there is another dying declaration which has been recorded by the Additional CRA No.1444/1996 7 Tehsildar J. Kispotta (PW-25). This dying declaration (Ex.P-16) was recorded on the same date i.e. 23.9.1991 at 1.00 P.M. and thus, this Court is required to examine both the dying declarations vis-a- vis to each other in order to ascertain whether in both the dying declarations the consistent stand by the deceased has been taken on the material point.
15. Indeed, the dying declaration is based upon the legal maxim "Nemo moriturus praesumitur mentire", which would mean that a person will not meet his Maker with a lie in his mouth. In this context, I may profitably place reliance on the decision of Supreme Court, Muthu Kutty and another vs. State by Inspector of Police, T.N., (2005) 9 SCC 113. It is well settled in law that if a dying declaration is found to be cogent and trustworthy the conviction can be based upon it. However, in the present case, by keeping the aforesaid two dying declarations in juxtaposition to each other and by reading them conjointly it would reveal that both the dying declarations are inconsistent to each other on the material point. In the first dying declaration i.e. the FIR (Ex.P-42) it has been specifically stated by the deceased that when he was sitting on the Takhat, at that juncture appellants Dinesh, Parmeshwar, Halke Bhaiya and Charan Patel having lethal weapons i.e. Axe, pharsa, ballam and lathi, arrived there and hurled the abuses to the deceased and after throwing him on the ground dealt blows by the CRA No.1444/1996 8 weapons which they were carrying. Thereafter, on hearing hue and cry other three accused persons, namely, Devilal, Roshan Singh and Phoolsingh (acquitted co-accused) arrived there by carrying lathi in their hands and they started causing injuries to the deceased in injured condition.
16. It is significant to mention that the aforesaid four accused persons who took part in the commission of first part of the incident, at that juncture, the presence of these three accused persons, Devilal, Roshan Singh and Phoolsingh (acquitted co- accused) has not been mentioned nor any role has been assigned to them. On the contrary, it is gathered that these three accused persons appeared later on when the deceased was lying in injured condition. Similarly, the presence of other four accused persons who caused injuries to the deceased initially, namely, Dinesh, Parmeshwar, Halke Bhaiya and Charan is not shown when the aforesaid three accused persons were causing injuries to the deceased. However, contrary to the first dying declaration of the deceased an altogether different stand has been taken by him when his dying declaration (Ex.P-16) was recorded by the Additional Tehsildar, J. Kispotta (PW-25) that except Phoolsingh who has been acquitted by the Trial Court, all the six accused persons came together and dealt blows by the weapons which they were carrying. CRA No.1444/1996 9
17. Thus, I am of the view that there is material inconsistency in both the two dying declarations which cannot be separated from each other. The Supreme Court in Samadhan Dhudaka Koli (supra) has categorically held that if there are multiple dying declarations and they are inconsistent to each other they cannot be accepted and as a rule of prudence the corroboration is needed. Similar is the view of the Supreme Court in Mehiboobsab Abbasabi Nadaf (supra). In State of Maharashtra (supra) it has been held that the dying declaration must inspire full confidence in its truthfulness and correctness. Its intrinsic worth and reliability can be determined from its tenor and contents. Where there are more than one dying declarations, they must be tested on the basis of consistency and probability and if they are found to be inconsistent on material point no reliance can be placed upon them unless they are corroborated by other material evidence.
18. In the present case, on bare perusal of the FIR (Ex.P-42) which later on became the dying declaration of the deceased it is gathered that when the four accused persons, namely, Dinesh, Parmeshwar, Halke Bhaiya and Charan were causing injuries to the deceased, at that juncture, his son Awadhesh Kumar (PW-10) arrived there and intervened and he has also seen the incident but he has not supported the case of the prosecution and was declared hostile. Apart from this, he (Awadhesh Kumar) CRA No.1444/1996 10 has put an altogether different story that the deceased was beaten nearby the river bank by unknown persons.
19. The other eyewitnesses have also not supported the case of the prosecution and therefore, according to me, there is no corroboration of the aforesaid two dying declarations of the deceased. Hence, no option has been left with me except to extend the benefit of doubt to the appellants.
20. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellants are acquitted from all the charges. They are on bail, their bail bonds shall stand discharged.
(A.K. Shrivastava) Judge 26-04-2012.
S/